TB4-03098

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB4-03098 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 14, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Matthew Oh Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, a citizen of China, is appealing his decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted any new evidence in support of his appeal. He is requesting that the RAD either find that he is a Convention refugee or, in the alternative, refer the matter back to the RPD for re-determination, or pursuant to subsection 110(6) that the RAD hold a hearing. [2] Subsection 110(6) reads:- 6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3); (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and, (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [3] Subsection (3) reads:- 3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. [4] In the absence of any new evidence, the RAD denies the Appellant's request for a hearing. DETERMINATION: [5] This appeal is allowed. Pursuant to Section 111 (1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this claim to the Refugee Protection Division for re-determination by a differently-constituted panel. STANDARD OF REVIEW: [6] Counsel has made submissions in this regard, however the Federal Court in Iyamuremye1 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.2 The correctness standard is applicable to questions of law and issues of general legal importance, e.g. principles of natural justice and procedural fairness which fall outside the specialized area of expertise of the RAD.3 COUNSEL'S SUBMISSIONS [7] Did the RPD err in his assessment of the Appellant's credibility? Specifically, the Appellant indicates that it is difficult to understand on which factors the RPD drew negative inferences and it is further submitted that the RPD conducted a microscopic analysis of the evidence and made a number of implausibility findings without any evidentiary basis. This issue involves questions of fact and, therefore, the RAD will be applying the standard of reasonableness to its analysis of the RPD's decision. DETERMINATIVE ISSUE [8] The determinative issue is whether or not the RPD made reasonable credibility findings. Paragraph 12: [9] The RPD found that the fact that the Appellant failed to mention that he had brought his original RIC to Canada was a contradiction as he had initially stated that he had traveled on a fraudulent Canadian passport and no other documents. [10] Counsel submits that the RPD erred when it stated that the Appellant should have volunteered this information. [11] The RAD concludes, after a review of record, that the RPD did not make a clear finding of credibility on this issue. However, even if the RPD had made a clear finding on this issue it would have been unreasonable because the RPD would be aware that the Appellant's RIC had been confiscated. Further, this issue was peripheral and immaterial to the basis of the claim. Paragraph 13: [12] The RPD found that the fact that the smuggler did not tell the Appellant what to do if confronted with a problem, "surprised" the RPD. The RAD again concludes that no clear "finding" was made. However, even had the RPD made a clear finding on this issue, it would have been unreasonable. [13] It is submitted by counsel that the "implausibility" findings by the RPD were made in the absence of an evidentiary basis, against which the Appellant's assertions can be judged. [14] The RAD finds that the RPD's comments that he was "surprised" that the Appellant had no instructions from the smuggler if he had problems were unreasonable. The RAD finds that it could be equally said that using the services of a smuggler would alleviate any problems or any necessity to deal with difficulties along the way. Therefore, the RAD finds the conclusion to be speculative, and therefore unreasonable. [6] Paragraph 14: [15] The RPD could not understand why the Appellant could not remember the name of the airlines on which he had flown to come to Canada. Moreover, the RPD did not believe that there were no Chinese language announcements at any point during his itinerary. In this case, the RPD did make a clear finding when it said "it simply does not believe this." However, when the RAD refers to the transcript of the proceeding, the Appellant repeats four times in his testimony that he wasn't paying attention but he didn't hear any Chinese announcements. The RAD concludes that failure to address the explanation of the Appellant was unreasonable. Paragraph 15: [16] The RPD found that there were discrepancies as to the date of the Appellant's divorce from his former spouse, as well as his parents' dates. The RPD then "wonders" why the examining officer and interpreter would be accurate with respect to the rest of the information but not with respect to those dates. The RAD finds that the RPD's failure to make a clear finding is unreasonable. Further, even had the RPD made clear findings, this finding would have been peripheral and immaterial to the basis of the claim. Paragraph 16: [17] The RPD found that the Appellant when he did not know his mother's date of birth, subsequently made up a date in order to complete the form. This left the RPD "wondering" how reliable any of the Appellant's assertions are. The Appellant submits that to impugn his credibility on the basis of this information is unreasonable. The RAD finds that, not only is this issue peripheral and not material to the claim, which the RPD acknowledges on the one hand, but again no finding is made by the RPD. Even if a finding was made to cast aspersions on the entire credibility of the Appellant, this finding would have been unreasonable. Paragraphs 18-19: [18] The RPD acknowledges that the Notice of Expropriation is arguably one of the most important documents submitted in support of the Appellant's claim. It then questioned the authenticity of the document as it was not individually addressed to the Appellant, unlike the Compensation Notice. In this regard, the RPD finds that it is "more likely than not" that this important document would be addressed to specific landowners for the same sort of reasons that this might be done in other jurisdictions; i.e. to put a specific individual on notice as of a specific date and time. The RPD, however, did not explain why it did not accept the Appellant's response that "within the area of demolition everyone got one delivered to their home," as opposed to the Notices of Compensation which was addressed to specific landowners, and provided the details on the specific compensation they might expect to receive. In the RAD's opinion, the RPD's conclusion was speculative and lacks any evidentiary basis. The use of "unlike" most other jurisdictions, when the documentary evidence speaks to the lack of effective rule of law in China, is an unreasonable conclusion.4 Moreover, the RPD does not indicate what jurisdictions to which he is referring, which is an unreasonable statement. Accordingly, this is speculative as there was no evidentiary support for the RPD's finding. Paragraph 21: [19] The RPD was "at a loss to understand" why the Public Security Bureau (PSB) did not remain at the Appellant's house when they attempted to arrest him, and he was out at the time collecting accounts receivable. The Appellant submits that this is a purely speculative statement. The RAD finds that the RPD failed to make a clear finding with respect to this issue. Moreover, it speculated with no evidentiary basis that the PSB officers would remain and wait for the Appellant to return home. The RAD further finds that the RPD ignored the evidence that the Appellant's father had called him to inform him of their visit; therefore, had the PSB waited, they would have waited a long time. Even if the RPD had made a clear finding in this regard, it was speculative and, in the RAD's opinion, would not have been reasonable. [7] Paragraph 22: [20] The RPD was also "skeptical" that the PSB, having failed to detain the Appellant on the above date of November 5th, would tell his father to report to the PSB of XXXX XXXX the following day without specifying either a place or time. The RPD "thinks" it is more likely than not that there would have been more than one PSB given the size of the county, namely 600,000 people. Counsel submits that the Appellant was merely relating what his father had informed him, and this does not necessarily constitute a lack of information in this regard. Although the RPD did not make a clear finding in this regard, the RAD finds that, if it had, it would have been unreasonable, given the fact that the Appellant's father told him to go into hiding, and, therefore, the information relating to the PSB became immaterial. Paragraph 24: [21] Although not addressed by the Appellant, the RPD was left "wondering" whether the local authorities would have any current interest in the Appellant, given the fact that his house has been demolished. Again, the RAD finds that there was no clear finding in this regard, but merely an inference, and therefore the RPD erred in failing to provide clear findings. CONCLUSION [22] The RAD concludes the following:- [23] There are few, if any, clear findings which lead to the conclusion by the RPD that there was insufficient credibility or trustworthy evidence to reach a positive determination. [24] Some of the inferences are made on the basis of peripheral issued that are not material to the claim. [25] The only finding that is specific to the merits of the claim revolves around the Notice of Expropriation. The RPD compares to other jurisdictions, but then fails to specify to which jurisdictions he is referring. The RAD concludes that this is an unreasonable finding in the absence of more complete information on the part of the RPD in the absence of specifying to which jurisdictions. The RAD also finds that the RPD does not indicate why it rejects the response by the Appellant that this notice went to all homeowners and, therefore, would not require specific names, and, therefore, the RAD finds this conclusion to be speculative. [26] The words "I am surprised," the panel "wonders," "the panel "thinks," the panel is at a loss to "understand," the panel cannot understand," are simply not clear findings. At best, they are inferences; however, they are not clear findings. There is nothing left in the RPD's findings that could sustain the decision. [27] After carefully reviewing all the evidence, the RAD finds that the credibility findings were unreasonable and lacked the justification, transparency, and intelligibility required of a reasonable decision, and ultimately fell outside the range of acceptable outcomes which are defensible in respect of the facts and law. In light of the foregoing, it would be impossible for the RAD to substitute its own decision without conducting a full hearing. [28] This appeal is allowed. Pursuant to Section 111 (1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this claim to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) 'Roslyn Ahara' Roslyn Ahara July 14, 2014 Date 1 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 2 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47 3 Ibid. 4 NDP Package, China, item 9.4, Response to Information Request CHN103402.E, 31 October 2013 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03098