TB4-02059

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 : TB4-02059 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX 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 June 18, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jennifer C. Luu Barrister and Solicitor 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 (the Appellant), a citizen of the People's Republic of China, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant does not submit new evidence. The Appellant asks that the Refugee Appeal Division (RAD) set aside the negative decision of the RPD and accept her as a Convention refugee or, in the alternative, that the matter be referred back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. BACKGROUND [3] The Appellant alleges that she began to practice Falun Gong in China in XXXX 2013 because she was suffering from insomnia following the breakdown of her marriage. She practiced weekly in a group and also practiced at her home on her own. She obtained a visitor's visa to Canada to accompany her minor son after he was approved for a study visa to Canada. She joined a Falun Gong group and continued to practice without fear. The Appellant alleges she received an electronic message from her friend and fellow practitioner telling her that an incident happened and not to return to China. She immediately called her parents and asked them to find out more information about her group and fellow practitioners' situation. The Appellant learned from her parents, on XXXX XXXX, 2013, that the Public Security Bureau (PSB) had been to their home asking them about her activities in Canada. The PSB also searched their home and told them that an illegal group was discovered, and two members were arrested. They told her parents that they knew she was a member of this group and that she must return to China and report to the PSB. After receiving this information, the Appellant filed for refugee protection on September 25, 2013. [4] The Appellant's application for refugee protection was heard on November 21, 2013. In a decision of February 12, 2014, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found that the Appellant had not established the central element of her claim: that she is a Falun Gong practitioner wanted by the authorities. [5] The Minister did not intervene in this application. STANDARD OF REVIEW [6] The Appellant submits that this appeal constitutes a de novo proceeding. This is evidenced by: (a) the Appellant's statutory right to an appeal; (b) the RAD's broad power to substitute its own findings for that of the RPD; and (c) the RAD's jurisdiction to consider appeals on questions of fact, law and mixed fact and law. Unlike an appeal in the usual form, where the only issue to be determined is whether or not the decision under appeal is right or wrong based on the record, the RAD is also concerned with what is the correct decision in the Appellant's case, regardless of the findings of the RPD. [7] It is further submitted that there are a number of factors that indicate that the RAD should give little or no deference to the decisions of the RPD. First, in relation to the RAD, the RPD is not a specialized tribunal, as the two bodies belong to the same tribunal. Second, an appeal to the RAD is a full appeal in the sense that it is not limited to issues of law, as the RAD can hear appeals on fact, law or mixed fact and law. Third, the RAD has the broad power to substitute its own findings for that of the RPD, suggesting that it has the ability and expertise to determine the very same questions that are before the Member at the RPD. Therefore, the RAD owes no deference to the RPD's findings in this case. [8] Section 110(1) of the IRPA sets out the grounds for an appeal to the RAD. The appeal may be on a question of law, of fact, or of mixed fact and law. There are a number of decisions or determinations of the RPD that cannot be appealed to the RAD, as set out in Section 110(2) of the IRPA. [9] Section 111(1) sets out the decisions that the RAD can make after considering the appeal. The RAD can confirm the determination of the RPD; set aside the determination and substitute a determination that, in its opinion, should have been made; or refer the matter to the RPD for redetermination, giving directions to the RPD that it considers appropriate. [10] The standard of review is not specified in the legislation. [11] There are a few cases that have dealt with the standard of review to be applied by administrative appellate tribunals. The Alberta Court of Appeal dealt with the issue in the case of Newton v. Criminal Lawyers' Trial Association, 2010 ABCA 399. The case concerned the basic structure and interrelationship of the tribunals in Alberta that review the conduct of police officers when that conduct is called into question in disciplinary proceedings under the Alberta Police Act. The case also dealt with the issue as to whether the administrative appellate tribunal was required to hold a de novo hearing in every case. [12] The matter was first heard by a senior police officer ("presiding officer") from the RCMP. There were two counts of misconduct against an officer. The presiding officer found that one count was proven, and one count was not proven. The determination of the presiding officer was appealed to the Law Enforcement Review Board ("Board"). The Board conducted a hearing de novo. The Board allowed the appeal on the one count not proven, thus, overruling the decision of the presiding officer. The Court found that the Board did not conduct any analysis of the reasoning of the presiding officer, did not reflect on whether it should afford his decision any deference, and did not explain why it disagreed with the inferences he had drawn from the evidence. [13] The Court of Appeal dealt with the nature of hearings before the Board in considering the question as to whether a de novo hearing was required. The Court noted that the legislation establishing the tribunals said nothing about appeals being de novo. The Board had relied on its power to admit fresh evidence to justify de novo hearings. The Court stated that the proper interpretation of that part of the legislation was that the Board has discretion to receive new evidence if it was not available at the time of the original hearing, or if it was available but not presented, there are good reasons for allowing it on appeal. The section does not mean that there are no limits on introducing new evidence on appeal, nor by corollary that appeals are to be held de novo. The Court also reviewed other sections of the legislation and concluded they did not signal an intention to mandate a de novo hearing in every appeal. [14] The IRPA sets out in section 110(3): (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..... [15] Subsection (4) states: (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that person could not reasonably have expected in the circumstances to have presented, at the time of the rejection. [16] Subsection (6) states: (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 person who is the subject of the appeal; (b) that is central to the decision with respect the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [17] These sections are similar to legislative sections outlined in the Newton case. A plain reading of the Immigration and Refugee Protection Act leads to the conclusion that an appeal to the RAD cannot result in a de novo hearing of the Appellant's refugee claim. [18] 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 challenges the RPD's decision to reject her claim based on credibility, risk of persecution and sur place claim issues. [19] 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. [20] 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 first instance and the RAD as an appellant administrative tribunal, the Newton factors are highly relevant. [21] These factors are: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [22] 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. [23] 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. [24] 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. [25] 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 [26] 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 [27] 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. [28] However, unlike the situation in Dunsmuir, both the RAD and the RPD have similar expertise in the interpretation of the 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 hearings in all cases does not seem to provide a reason for the RAD to show deference on questions of law. [29] 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. [30] 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 [31] In the case at hand, the Appellant alleges the RPD made erroneous credibility findings. The RAD finds these allegations of errors deal with issues of fact and the RPD's treatment of the evidence before it. [32] For these reasons, the RAD concludes that, in considering this issue, it must show deference to the factual and credibility findings of the RPD. The appropriate standard of review is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility with the RPD's decision making process, but with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.11 Application for an Oral Hearing [33] The Appellant requests an oral hearing pursuant to Section 110(6) of IRPA on the basis that the evidence in this appeal: (a) raises a serious issue with respect to the Appellant's credibility; (b) that is central to the decision with respect to the RPD claim; and (c) if accepted, would justify allowing or rejecting the Appellant's claim. [34] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [35] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is new evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [36] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case, the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [37] The Appellant has submitted no new evidence in support of her appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL [38] In the case at hand, the RAD focused its decision on the Appellant's submissions that the RPD erred in its credibility findings. The RPD's Findings [39] The determinative issue in the RPD's reasons was credibility. Credibility Findings [40] The Appellant submits that the RPD made its credibility findings based on her motivation for practicing Falun Gong, the PSB's visits to her parent's home, and her identity as a Falun Gong practitioner. Motivation for practicing Falun Gong [41] The Appellant argues that the RPD found her reasons for turning to Falun Gong implausible. The Appellant submits that she testified that she was aware of the risks associated with Falun Gong prior to joining the practice, and she had "no other way to improve her health." In addition to improving her health, the Appellant testified that her friend's practice group had very good cautions. [42] The RPD found it not plausible that the Appellant would pursue the practice of Falun Gong, not only jeopardizing her career but also the safety of her son, because she suffered from insomnia, a condition she failed to try to remedy by other means. [43] The RAD notes that the RPD considered the Appellant's evidence that she was warned by a doctor who suggested that sleeping pills had side effects. However, it is not clear if the RPD considered the Appellant's evidence that she was also advised that sleeping pills did not have a long-term effect and their impact upon her decision or willingness to seek medical assistance in assessing the Appellant's explanation for her interest in Falun Gong. The RAD finds, based on the evidence before the RPD, that the Appellant did seek a remedy for her insomnia by attending a doctor and accepting their advice. The RAD finds the RPD drawing an adverse inference from the Appellant's failure to try to remedy her insomnia by other means before practicing Falun Gong was not justifiable, and the RAD therefore finds the negative credibility finding to be unreasonable and cannot stand. PSB Visit to the Appellant's Parents' Home [44] The RPD found, on a balance of probabilities, that PSB officials would know the Appellant left China and therefore finds it implausible that they would attend her parents' home looking for her. The RPD acknowledged that the Appellant left China on her own passport and that the PSB officials would have accessed a computer database in order to find the address of the Appellant's parents in order to attend their home looking for the Appellant. The RPD found that they would therefore have access to the information indicating that the Appellant and her son left China legally with exit stamps of XXXX XXXX, 2013. The RPD found it implausible that the PSB officials would seek the Appellant at her parents' home. The panel drew a negative credibility inference and found, on a balance of probabilities, that the Appellant is not wanted by the PSB owing to her Falun Gong activities. [45] The Appellant submits that the Appellant's narrative states the PSB went to her parents' home to tell her parents that she must return to China and report to the PSB office as soon as possible and not to look for her. The PSB also informed them at that time of how they knew the Appellant was a Falun Gong practitioner. The RAD notes the evidence put forth by the Appellant and is persuaded by the Appellant's submissions in this regard. The evidence tendered in the Appellant's narrative clearly states that on XXXX XXXX, 2013: I learned from my parents that the PSB had just been to the home of my parents to ask my parents about my activities in Canada and the PSB also searched their home. The PSB told my parents that an illegal Falun Gong group was discovered when their practice session was raided and two members had been arrested. The PSB told my parents that they already knew that I was one of the members of the group. The PSB also told my parents that I must return to China and report to the PSB office as soon as possible. [46] The RAD finds the RPD misconstrued the evidence provided by the Appellant on the issue of the visit by the PSB, and therefore the finding that it was implausible that the PSB officials would seek the Appellant at her parents' home is not justifiable and therefore unreasonable. Identity as a Falun Gong Practitioner [47] The RPD found the Appellant was able to answer some basic questions about the five exercises and other details of Falun Gong teachings. However, it went on to state there were credibility concerns with her "motives for joining" and that she is not, on a balance of probabilities, wanted by the authorities. The RPD found, on a balance of probabilities, that her knowledge of Falun Gong was acquired for the purpose of making a refugee claim. [48] The Appellant argues there was no evidence before the RPD to find that the Appellant acquired her Falun Gong knowledge in Canada as opposed to China, and therefore the RPD's findings are highly speculative. The Appellant points to the decision of the Federal Court in Zhang12 to support this argument. [49] The RPD questioned the Appellant about her practice of Falun Gong. She was able to answer questions to the satisfaction of the RPD; however, the RPD did not afford weight to her ability to answer questions about Falun Gong. The RPD did not provide any clear reasoning how it reached its conclusion that the Appellant's knowledge of Falun Gong was acquired for the purpose of making a refugee claim in spite of this evidence. The RAD finds the RPD's findings were speculative and not based on the evidence, and therefore it was unreasonable to afford little weight to the Appellant's knowledge of Falun Gong. SUMMARY [50] The RAD has determined that there are several examples where the RPD's findings were not reasonable. These unreasonable credibility findings set out above involve key elements of the RPD's decision. The RPD made an overall credibility determination which rested in large part on conclusions that are not defensible in fact. The RAD finds that the RPD failed to support its findings with reference to the totality of the evidence. The unreasonable credibility findings and errors in fact are significant enough to the overall determination of credibility that they render the RPD's decision unreasonable. The RAD finds that the RPD's decision does not fall within a range of possible, acceptable outcomes which are defensible in regard to the facts, and the decision is therefore set aside. DISPOSITION AND REMEDY [51] The Appellant asks that her refugee claim be returned to the RPD for redetermination. [52] Section 111(b) of IRPA allows the RAD to set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made. The RAD may only refer the matter back to the RPD if 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.13 [53] The RAD finds that the RPD's decision in this matter was wrong in fact. The RAD considered the totality of the evidence before it and found that it could not substitute a decision for that of the RPD without hearing evidence that was presented to the RPD. [54] Once the RPD's unreasonable conclusion is removed, there is insufficient evidence for the RAD to make its own determination. The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on her refugee claim. The Appellant has submitted no new evidence, and therefore any substitute decision would have to rely on evidence that was already presented to the RPD. 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 a person in need of protection. CONCLUSION [55] For the reasons given above, the RAD finds that the decision of the RPD is wrong in fact, and the appeal is allowed. The RAD therefore exercises its discretion under Section 111(1)(c) of IRPA to refer the matter back to the RPD for redetermination by a differently-constituted panel. (signed) "C. Forbes" C. Forbes June 18, 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 Dunsmuir, para. 47; in Khosa, para. 4, the "range of reasonableness outcomes". 12 Zhang, Haixhin v. M.C.I. (F.C., no. IMM-2216-11), Campbell, May 4, 2012; 2012 FC 503. 13 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02059