TB4-01235

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 : TB4-01235 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 April 30, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal S. Levine 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 (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX (the Appellant) is a citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He did not submit new evidence in support of his appeal and did not request an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that the Appellant is a Convention refugee. In the alternative, the Appellant asks that the matter be referred back to the RPD to a differently-constituted panel. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that his home was expropriated by government authorities in China. He was offered unfair compensation for his property. The Appellant joined a protest against the government actions and, together with others, rallied other expropriated property owners to join the protest. The Appellant was part of a group that set up a human blockade to prevent the demolition crews from entering the neighbourhood. The following day, he and another villager led a group of fellow villagers in another protest which culminated in a clash with police and security guards. Six villagers were arrested; however, the Appellant was able to escape and go into hiding. Police attended his home and left an arrest subpoena with his mother. Fearing he would be arrested, the Appellant used the services of a smuggler to travel to the US and then into Canada. [4] His application for refugee protection was heard on January 8, 2014. In a decision of January 9, 2014, the RPD rejected the Appellant's claim finding that he is not being pursued by the police. [5] The Appellant submits that the RPD's decision is flawed because: (a) The RPD erred by engaging in a microscopic analysis of the Appellant's ownership of the property; (b) The RPD erred in its analysis of the Appellant ability to leave China undetected; and (c) The RPD breached procedural fairness in the panel's analysis of the Appellant's subpoena. Standard of Review [6] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. The Appellant makes no submissions on the standard of review [7] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [8] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and given the relationship between the RPD as a tribunal of the first instance and the RAD as an appellate administrative tribunal, the Newton factors are highly relevant. [9] These factors are: 1. the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; 2. the nature of the question in issue; 3. the interpretation of the statute as a whole; 4. the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; 5. the need to limit the number, length and cost of appeals; 6. preserving the economy and integrity of the proceedings in the tribunal of first instance; and 7. other factors that are relevant in the particular context. [10] In considering the factors in Newton, the RAD has considered which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [11] Both the RPD and the RAD derive their jurisdiction from the same statute: IRPA. The Act gives each Division similar powers, although their roles are not the same. It is the primary role of the RPD as a tribunal of first instance to hear testimony, review evidence and determine a claim on its merits; while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [12] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.4 The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.5 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD, in most cases, must conduct a hearing6 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [13] In contrast to the RPD's authority to assess a claim for protection, IRPA places some limitations on the RAD's ability to consider evidence. For instance, persons who are the subject of the appeal are limited in their ability to present evidence to the RAD. The RAD is not a tribunal of first instance but exists primarily to review the decision made by the RPD and, in the cases where new evidence is considered, to review those decisions in the context of that new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.7 The RAD's authority to consider new evidence is also limited by the conditions set out in IRPA. Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.8 [14] It is the RAD's view that, given the limitations imposed on the role of the RAD by IRPA, the presence of a right of appeal in and of itself does not warrant a correctness standard on all issues. Rather, given that the RPD has held a hearing on the totality of the evidence, and given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD will be, in most cases, in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".9 [15] Dunsmuir also states that most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals. [16] However, unlike the situation in Dunsmuir, both the RAD and the RPD have similar expertise in the interpretation of IRPA. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, the RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal and tends to support a standard of correctness for questions of law. Also, both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. Furthermore, the RPD's advantage of holding hearing in all cases does not seem to provide a reason for the RAD to show deference on questions of law. [17] Additionally, under s.171(c) of IRPA, Parliament has given the RAD authority to review decisions of the RPD. Section 171(c) provides that decisions of a three-member RAD panel have "the same precedential value as a decision of an appeal court has for a trial court" for "the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division." Decisions of appeal courts are binding on questions of law. That is why this provision suggests a correctness standard. The provisions of IRPA suggest that the RAD is empowered to bring finality to the refugee protection process and, as such, is entitled to show less deference to the RPD in matters of errors of law. [18] For these reasons, the standard of correctness will be applied to errors in law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.10 [19] In the case at hand, the Appellant alleges both errors of fact in its findings on the Appellant's ownership of property and his ability to leave China undetected and errors of law by breaching procedural fairness in its analysis of the Appellant's subpoena. [20] As stated, errors of law will be assessed on a standard of correctness, and errors of fact will be assessed on a standard of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law." ANALYSIS OF THE MERITS OF THE APPEAL Was the RPD's analysis of the Appellant's property ownership unreasonable? [21] The RPD found that the Appellant's testimony concerning his ownership of the property in question was not credible and that he was not the owner, as he has alleged. The RPD also found that the Appellant was not being pursued by the PSB after having found the subpoena was inconsistent with the sample provided in the documentary evidence. [22] The Appellant submits that the RPD had no basis for ignoring the explanation offered by his counsel that the Appellant may have confused ownership of the land with ownership of the property due to his limited education. The RAD is not persuaded by the Appellant's arguments in this regard. [23] The RAD notes that the Appellant did not offer the explanation that he confused the land and house ownership due to his limited education. Rather, the Appellant's counsel offered it as an explanation for the Appellant's testimonial failings. Nevertheless, the RPD did address the explanation in its reasons and reasonably found that the Appellant ought to have known the details of his own property ownership given that he was making representation to officials over compensation. Furthermore, the RPD reasonably found that if there was a difference over land vs. house ownership, the Appellant ought to have offered that explanation when questioned by the panel member. [24] The Appellant's actual explanation was that his father was worried about his failing health and transferred the ownership to him in 1992. The RPD reasonably rejected the Appellant's explanation finding that the Appellant's testimony was internally inconsistent and that his explanation evolved and did not explain the discrepancy in his earlier testimony. The RPD's finding was based on the inconsistency between the Appellant's testimony and the property ownership document he presented in support of his claim. The Appellant testified that his father bought the property in 1992, and he became the owner of the property in 2004 when his father died. However, the documents he tendered reflected that he was the owner of the property since 1992. The RAD finds that, on this basis, it was open to the RPD to find that the Appellant's testimony in this regard was not credible. [25] The Appellant also submits that the RPD's analysis was microscopic in nature and that the discrepancy identified by the RPD amounted to little more than an immaterial inconsistency in the documents that does not go to the heart of the claim. The Appellant argues that regardless of whether he became the owner in 1992 or 2004, he was still the owner at the time of the expropriation. [26] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the ownership of the property is the centrepiece of the Appellant's claim. Discrepancies which undermine the credibility of the allegations of ownership undermine the basis of the claim. The RAD finds that the Appellant's argument in this regard fails. Did the RPD err in its Analysis of the Appellant's Ability to Exit from China Undetected? [27] The Appellant argues that the RPD misapprehended the evidence when it found it implausible that the Appellant could not leave the country using his own passport. Although the Appellant testified that his departure was facilitated by a smuggler who arranged everything on his behalf, the RPD found, on a balance of probabilities, that the Appellant was able to leave China because he was not wanted by the police, as he has alleged. [28] The RPD noted that there are exit controls in place to vet Chinese citizens before they travel abroad and that persons wanted by the authorities would not be able to leave undetected. The RAD notes, however, that the RPD did not provide any references to the objective evidence. The RAD finds, nonetheless, that there is evidence in the National Documentation Package (NDP) bearing out the RPD's reasons. [29] Country documents11 state that the PSB have established a national policing database, which includes "criminal fugitive information" and "information on passports and exit and entry." In 17 June 2009, correspondence with the Research Directorate, a counsellor at the Embassy of the People's Republic of China in Ottawa, provided the following information on PSB information sharing: 1. The national computer network of policing is called the Golden Shield Project. 2. The Project has eight databases: (1). Population information, mainly the information on the citizen ID; (2). Criminal record information; (3). Criminal fugitive information; (4). Information on stolen and robbed cars; (5). Information on passports and exit and entry; (6). Information on registered cars and drivers; (7). Information on police officers; (8). Information on key fire-prevention units. 3. Now all police departments at county level and above (namely, police departments at provincial, city and county levels) and most police stations and other grass-roots units (namely police under the county level) can connect to the system. Some small police stations and grass-roots units in remote areas cannot connect to the system. 4. Chinese police are in charge of exit and entry administration. Just like CBSA [Canada Border Services Agency], in all ports of entry including international airports there are police units in charge of examination and they can connect to the system ... A researcher... stated the following in correspondence with the Research Directorate: 'China's Public Security Departments absolutely do have nationwide computer information sharing networks, and have been working hard to develop and expand those for at least a decade'... It also includes monitoring phone conversations with advanced speech recognition technology, and monitoring citizens' movement through a vast network of surveillance cameras, equipped with face recognition technology... [30] According to a 13 April 2006 article from the New York-based Epoch Times, an official from the Ministry of Public Security indicated that the objective of the Golden Shield project is to "facilitate the transmission and sharing of data among police so as to enhance the capability of the police to solve cases." The article also describes the Golden Shield as a "digital system for information management within the Public Security Ministry," with 640,000 network computers that are "grouped into 23 operating systems," which contain population, crime, vehicle registration and border control information (The Epoch Times 13 Apr. 2006). [31] A researcher, who has conducted research and published on the Chinese policing system for fifteen years and who was previously a professor of Chinese and East Asian Politics at Western Michigan University, stated the following in correspondence with the Research Directorate: China's Public Security Departments absolutely do have nationwide computer information sharing networks, and have been working hard to develop and expand those for at least a decade.... [A] fair amount is published about them in Chinese language police journals. One does read complaints about provincial police departments not being willing to share information with each other, however. For Chinese readers, a good deal of information about nationwide arrest warrants is openly available on the webpage of the Ministry of Public Security (www.mps.gov.cn) and on the webpages of the various provincial public security departments. There has really been an explosion of this online police information in the past 6-7 years. (11 May 2009)12 [32] In light of this evidence, the RAD finds that it was open to the RPD to find that the Appellant's departure from China undermined his allegations of being wanted by the police. Was there a Breach of Procedural Fairness? [33] The Appellant tendered a subpoena in support of his claim. The RPD found that the subpoena was not reliable and based its finding on information found in the National Documentation Package for China dated October 31, 2013. In its decision, the RPD relied heavily upon a comparison of the subpoena tendered to a sample subpoena that formed part of RIR CHN104458.E. [34] The Appellant submits that the RPD breached procedural fairness by relying on the sample subpoena. The Appellant argues that this issue was not raised at the hearing, and, as such, his counsel could not anticipate that the panel member would raise an issue from the comparisons to a sample document. Therefore, the Appellant's counsel was not provided sufficient notice in order to question the Appellant or to make submissions on the issue at the hearing. [35] The Appellant further submits that, in part, the RPD based its findings on the subpoena on the comparison of the subpoena to a sample contained in the Board's National Documentation Package on China. The Appellant argues, however, that those samples are not available on the publicly accessible website, and, as such, the RPD was relying on evidence that was unavailable to the Appellant. [36] The Appellant argues that the procedural fairness breach was further aggravated when his counsel attempted to obtain a copy of the subpoena sample relied upon by the RPD. The Appellant's counsel was instructed by an individual at the Board that the sample was only accessible through a special request to the case officer. [37] The RAD notes that the RPD does not always have to put a credibility concern to a claimant. In particular, when a contradiction is between the claimant's evidence and country condition documents that form part of the evidence, notice may not be required.13 Here, while the sample subpoena may, in a technical way, have formed part of the evidence and been available to the claimant, it does seem that he could not reasonably have been expected to make a special request to see the sample when he did not have notice that it would be the basis of a credibility finding. [38] Therefore, the RAD finds the Appellant's arguments to be well founded. The RAD finds that, given the sample subpoena is unavailable on the publicly accessible website of the Board, it was necessary for the RPD to have disclosed this document to the Appellant so that the Appellant could have the opportunity to present his case fully and fairly. [39] As provided in the Supreme Court in Baker: The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.14 [40] Although the RAD finds that the RPD also relied, in part, upon documentary evidence which was properly disclosed to the Appellant, the RAD finds that in these circumstances it cannot engage in assessing what the outcome of the RPD's decision might have been in the absence of the comparison to the sample subpoena. Further, given that no notice was given to the Appellant that the RPD had concerns with the Subpoena and that the Appellant's counsel did not have the opportunity to question the Appellant or to make submissions on the subpoena the RAD cannot make its own findings based on the objective evidence. DISPOSITION AND REMEDY [41] Section 111(1) of IRPA allows the RAD to: (a) confirm the determination of the Refugee Protection Division; (b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; and (c) refer the matter back to the RPD, giving the directions to the RPD. [42] The RAD can only make the referral described in 111(1)(c) if it is of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.15 [43] Once the RPD's unreasonable credibility conclusions are removed, there is insufficient evidence left on the record for the RAD to confirm the determination of the RPD. Furthermore, the RAD notes that the RPD commented in its reasons that some of the Appellant's evidence did not raise credibility concerns. [44] The RAD finds, however, that in addition to the credibility findings made by the RPD, there are a number of credibility concerns that were not addressed by the RPD, and the RAD is not able to substitute its own determination. In particular, the RAD notes the following credibility concerns: the Appellant's decision to leave his place of hiding to attend the US Consulate in China to obtain a visa; the Appellant's decision not to obtain a Canadian visa; the lack of persuasive documents to corroborate that members of his village were arrested and that the PSB are actively pursuing them in light of the objective evidence concerning arrest, detention and prosecution. However, these concerns were never put to the Appellants, and, as such, the RAD cannot draw any conclusions. [45] In addition, the RAD notes that the objective evidence suggests that land expropriation is an issue which is administered on a local basis and that conflicts arising out of protests to land expropriation may not be considered to be politically motivated crimes or treated as political crimes. Rather, the objective evidence and jurisprudence suggests that, in certain cases of land expropriation, there is no nexus. However, again, this issue was not put to the Appellant or explored in the hearing, and, as such, the RAD cannot make any determination based on an assessment of this nature. [46] The RAD has not seen or questioned the Appellant, and there is no new evidence, so the RAD would not be able to conduct a hearing to address the concerns noted above. The RAD is therefore in no position to make its own findings on his refugee claim. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or person in need of protection. [47] This appeal is allowed. Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "L. Favreau" L. Favreau April 30, 2014 Date 1 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110(3). 8 RAD Rule 57. 9 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 10 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 50. 11 Exhibit R/A-1, National Documentation Package (NDP) for China (3 May 2013), item 10.3, Response to Information Request (RIR) CHN103133.E, 2 July 2009. 12 Exhibit RPD-1, NDP for China, item 10.3. 13 Osei, Gyane Nana v. M.C.I. (F.C.T.D., no. T-2992-92), Reed, November 17, 1993. 14 Baker, Mavis v. M.C.I., [1999] 2 S.C.R. 817; (1999), 1 Imm. L.R. (3d) 1 (S.C.C.). 15 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01235