TB4-07116

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 : TB4-07116 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 29, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, a citizen of China, is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. No new evidence has been submitted in support of her appeal, however the Appellant is requesting an oral hearing. The Appellant is asking that the appeal be allowed, and that she be accepted as a protected person. DETERMINATION [2] The RAD finds the decision of the RPD to be wrong in law. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. Background: [3] The Appellant's claim is based on her activities as a Falun Gong practitioner in China. In XXXX 2008, her marriage failed after what she described as stress in her work, causing her to become moody easily. Her husband obtained custody of their son. [4] Following the divorce, the Appellant had difficulty in moving forward. Her father suggested that she seek help from a psychologist. However, she refused as she did not want to be perceived as having a "mental disease". [5] In mid-February 2012, the Appellant was speaking to her friend, XXXX XXXX about her problems. She suggested that Falun Gong could help her XXXX and improve her overall well-being. Since her friend told her that she and her fellow practitioners did not practice in public and they took precautions, after several discussions with XXXX XXXX the Appellant began the practice at her home for several months before joining a group in mid-May, 2012. [6] The Appellant found that her Falun Gong activities had positive changes in her personality and improved her relationship with her son and her co-workers. [7] However, on XXXX XXXX, 2013, about one hour after their practice began, they were warned that the Public Security Bureau (PSB) were approaching the home. The Appellant fled to a friend's house in the outskirts of the city. While in hiding, on XXXX XXXX, 2013, she learned that the PSB officers had been to her home looking for her. The PSB told the Appellant's father that they had arrested two members of her group. The Appellant also learned that the PSB had gone to her former husband's home. With the assistance of a smuggler, the Appellant came to Canada, using her own passport, and a Canadian visitor's visa, which the smuggler improperly obtained. [8] The Appellant alleges that, while in hiding, the PSB continued to search for her, they harassed her family members, she was dismissed by her work unit and in mid-XXXX 2013, her son was dismissed from his school. ROLE OF THE RAD [9] A recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision. * 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. * 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." COUNSEL'S SUBMISSIONS [10] Did the RPD err in its findings with respect to the Appellant's identity? [11] Did the RPD err in its credibility findings? Identity: Hukou: [12] The RPD accorded little weight to the above document as evidence of her identity or where she resided in China. The Appellant had testified that she had lived at the same address all of her life. However, when the RPD confronted her with the HUKOU, wherein it indicates that she had moved on XXXX XXXX, 2000, she was unable to provide a reasonable explanation. [13] Furthermore, the RPD noted that the HUKOU also listed her son, when her husband had obtained custody of him in 2008. Both the Appellant and her counsel submit that his name can appear, notwithstanding that her son is living elsewhere with his father. Added to this, was the concern by the RPD that the entry of her son moving in XXXX of 2000 remains unexplained. Moreover, the HUKOU was issued in 2012, when she did not have custody of her son. [14] In light of the unexplained inconsistencies, the RPD found that it could place no weight on this document as corroborative evidence of the Appellant's identity, where she lived, as well as drawing a negative credibility inference from the Appellant's testimony and problems with her document. [15] The Appellant submits that the RPD misinterpreted the evidence before it. [16] The RAD concurs with the RPD's findings that identity has not been established as the Appellant has not provided acceptable documentation or any other credible or trustworthy evidence establishing her identity and she has not provided a reasonable explanation for the lack of acceptable documentation with respect to her identity. Absence of Passport: [17] The RPD did not accept the Appellant's explanation for not having her passport. She had paid the owed monies and the agreement between her and the snakehead was that the passport would then be returned to her. She has been unable to contact the snakehead but, more importantly, after reviewing the audio recording, although not stated in the RPD reasons, it was the Appellant's friend's husband who knew and trusted the snakehead. This fact, in the RAD's opinion, exacerbates the RPD's concerns that the Appellant's explanations for not having her passport are unreasonable. It begs the question as to why, if this snakehead was a trusted friend of her husband's friend, that he was unable to contact him to procure the passport. The Appellant had testified that the travel arrangements had been arranged through these two parties. [18] The RAD is guided by Section 106 of the Act and Rule 11 of the RPD Rules. Section 106 of the Act imposes a duty on the Appellant to provide acceptable documents establishing her identity. In assessing the Appellant's credibility, the RPD must consider the lack of such documents and any reasonable explanation given for not providing them, as well as the steps taken to obtain them. Documents that are not genuine, that have been altered, or that are otherwise improper are generally not acceptable proof of identity. Rule 11 of the RPD Rules states that the claimant must provide acceptable documents establishing identity and other elements of the claim. [19] The RPD found that the HUKOU and lack of passport lead to a finding that the Appellant's identity had not been established. The RAD concurs with this finding given the lack of reasonable explanations provided by the Appellant. These findings were properly assessed, in the RAD's opinion, to lead to this conclusion. Resident Identity Card (RIC) [20] The RPD indicates, in its Reasons, that an RIC has been submitted, however makes no findings in this regard. Counsel has not made submissions as well. [21] However, the RAD finds that the RPD's lack of consideration of this document, both during the hearing and its Reasons, constitutes an error in law. The partial transcript and the audio recording reveals that this identity document was not canvassed or considered prior to the RPD's finding that "identity" had not been established. The RAD, in the absence of the original of this document, and the inability to question its authenticity, is unable to make a determination on this document with respect to the Appellant's identity. [22] Since the RPD ignored this significant piece of evidence, which goes to identity, the RAD finds this was an error in law and, therefore, it is not necessary to consider the submissions made by counsel. CONCLUSION [23] The Appellant's request for an oral hearing by the RAD is denied, pursuant to ss 110(6) of IRPA, since she has not submitted any new evidence in support of her appeal. [24] The RAD is unable to substitute its own decision for two reasons. Firstly, the error in law by the RPD relates to a document which has not been considered by the RPD and, therefore, the issue of "identity" remains at issue. [25] Furthermore, the RAD is unable to consider the merits of the claim, as the RPD made no determination with respect to the Appellant's identity as a Falun Gong practitioner. [26] The RAD finds the decision of the RPD to be wrong in law. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. (signed) 'Roslyn Ahara' Roslyn Ahara October 29, 2014 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07116