TB5-03897

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 : TB5-03897 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 22, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Marvin M. Moses 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 and Decision [1] XXXX XXXX (the Appellant), who is a citizen of the People's Republic of China (PRC), is appealing the 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, nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. He is, however, asking the RAD to allow the appeal and remit the matter for reconsideration by a newly constituted panel of the RPD. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. Background [3] The Appellant comes from a dysfunctional family. His father committed suicide before he was born, and his mother ran away with another man, causing the Appellant to lose contact with her. The community is aware of the Appellant's father's death and the circumstances. According to the Appellant, the village in which he lived is superstitious, and they blame the Appellant for his father's death. [4] The Appellant was raised in his aunt's home, where he was treated harshly. Following completion of high school, the Appellant began searching for employment, only to find that his family background came back to haunt him. [5] The Appellant met XXXX XXXX ("XXXX"), a local XXXX XXXX in 2013, and they became friends. XXXX is a Uyghur Muslim and a member of an underground Islamic worship group. The Appellant was admitted into their group in XXXX 2014. However, after attending their meetings a number of times, the PSB raided their gathering on XXXX 27, 2014. He was caught along with "10 to 20 people", and he was detained by the PSB for five days. Nevertheless, he was able to escape and with help of a smuggler, the Appellant made his way to Canada. He was interviewed by Canada Border Services Agency (CBSA) upon entry at the Vancouver International Airport on XXXX XXXX, 2015.1 ROLE OF THE RAD [6] Counsel submits that the RAD owes no deference to the findings of the RPD. The RAD has taken guidance from the Federal Court in Huruglica,2 wherein 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.3 [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".4 [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,5 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. The RAD has applied the reasoning as set out in Huruglica.6 Submissions by Counsel * Did the RPD err in its credibility assessment? * Did the RPD err by ignoring and misconstruing evidence? * Did the RPD err in its analysis of the Appellant's case due to unreasonable preconceptions about the Appellant's case? The Interpreter [8] The Appellant argues that the RPD indicated that it would be sufficient if the interpreter did not provide an exact translation. This had arisen due to concerns that the interpreter was not familiar with the terminology used in Islam. The Appellant submits that this issue had also been dealt with in a pre-hearing conference, when the RPD suggested that the interpreter did not have to provide a detailed account of the Appellant's testimony on religious knowledge but provide an understanding.7 [9] The Appellant argues that the RPD failed to keep in mind the role that interpretation may have played in the inconsistencies, and it failed to consider properly the reasonableness of the explanations provided by the Appellant.8 RAD'S FINDINGS [10] The RAD has independently assessed the entire record. The RAD concurs with counsel that there was much discussion with respect to the issue of interpretation at the outset of the hearing. The RAD finds that this discussion took place to alleviate any problems with certain terminology in Islam and both counsel and the RPD agreed that a literal translation was not necessary. Nowhere does it indicate that counsel objected to proceeding. In fact, counsel consented to proceed. It was then open to counsel, having proceeded, to stop the proceedings and make an argument that the Appellant was not understanding the interpretation. At no time did this occur. Moreover, in counsel's Memorandum, the RAD finds that he does not provide examples of poor interpretation in the transcript. Translation of the proceedings is extremely important in every claim. However, the RAD finds that there is nothing in the transcript that would indicate that an RPD finding was made based on an erroneous interpretation. Accordingly, the RAD concludes that the argument in this regard by the Appellant is without merit. Apprehension of Bias [11] The Appellant submits9 that the RPD jokes about the mistake made by the Appellant as to whether he was in detention for 5 or 10 days. This, in the Appellant's opinion, does not portray a decision maker who takes the matter seriously and raises impartiality concerns. [12] The Appellant submits that the RPD repeatedly editorializes and laughs at various points during the testimony.10 He argues that it is difficult to see how the RPD could impartially judge the Appellant's religious beliefs when it is clearly joking during testimony concerning religion. [13] The Appellant submits that, given the Member's unusual and improper conduct during the hearing, it is unreasonable to give any weight to the Member's ability to provide an impartial and balanced decision. RAD'S FINDINGS [14] The RAD concurs with the Appellant that to laugh or make jokes, when posing questions or interpreting responses, is not acting in a judicious manner. We also concur that the transcript reveals that some of the phraseology used by the RPD member was regrettable. [15] The legal test for bias is set out in Committee for Justice and Liberty et al. v. National Energy Board et al,11 and is as follows: "the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information...that test is what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude". [16] The RAD finds, in particular, the remarks with respect to the Appellant's detention to be offensive. The RAD cites this example as it relates to the material aspects of the claim. Accordingly, the RAD finds that, after consideration of the legal test for "apprehension of bias", on this basis alone, the matter must be remitted to the RPD for redetermination. RPD's finding on travel documents [17] The Appellant submits that it has long been acknowledged that the use of a fraudulent document to enter Canada to make a refugee claim should not be used to judge the Appellant's credibility.12 [18] The RAD concurs with the Appellant that many Appellants travel to Canada using fraudulent documents and therefore, the RPD's findings in this regard are unsustainable. Shahadah Document [19] The Appellant submits that an original was, in fact, submitted, contrary to the RPD's comments in this regard.13 [20] The RAD finds that, although the Appellant may not have submitted an original of the foregoing document, to find it lacking in authenticity, without providing an explanation as to why it finds that it is fraudulent, is an error on the part of the RPD. CBSA Interview [21] The RPD found that the Appellant is not a Muslim, nor was he wanted by the PSB prior to his arrival in Canada. It indicated in its reasons that this was based "on many factors and issues". The RPD then went on to provide the following examples from the Appellant's CBSA interview: The Appellant could not explain the basic ideologies of the Islamic faith because "it's been so long already I can't remember", although his involvement in the group had been limited; however, his interview was not long after the Appellant's involvement in the Islamic faith. The Appellant did not know what the Quran was, nor did he know how Muslims conduct their prayer services because he "did not see how they pray and I (he) did not know how to pray". The Appellant attended Muslim service twice a week according to his BOC; however, he had stated at his CBSA interview that his attendance was once per week. The Appellant stated at the interview that the police held him in detention for 10 days, whereas the BOC states 5 days. [22] The Appellant explained that he was tired and nervous following a lengthy journey to Canada and acknowledged that he had made mistakes; however, he testified that his BOC contained the correct version. Moreover, the Appellant admitted that he did not know the prayer book they were reading, as he does not understand the Arabic language. [23] The Appellant submits14 that the RPD joked about the mistake made by the Appellant as to whether he was in detention for 5 or 10 days, which therefore does not portray a decision maker who takes the matter seriously and raises impartiality concerns. [24] The RPD did not accept the Appellant's explanations. It found that the Appellant could not have reasonably forgotten the foregoing information in such a short period of time. The RPD considered the fact that Appellants go through period of stress, and their minds may draw nothing; however, given that the interview lasted two hours, it did not accept the contradictions. [25] The RPD gave further examples of contradictions, discrepancies and inconsistencies in the Appellant's testimony and evidence. For example, in his IMM008 (12-2012) E form, when asked "Have you ever been sought, arrested, or detained by the police or military or any other authorities in any country, including Canada?", he answered "no". The RPD found this response to be surprising in that the Appellant had stated in both his CBSA interview and his BOC that he was arrested and detained by the PSB for five or ten days before he managed to escape. Accordingly, the RPD found that the Appellant had not, in fact, been detained, incarcerated or put in jail. [26] The RPD further found the fact that the Appellant's name was not on his aunt's hukou, to be contradictory in terms of his residency, which was purportedly with his aunt. Instead, his name was on a hukou registered on XXXX XXXX, 2006 with his sister as the head of the household. The RPD further questioned how the PSB would know to look for him at his aunt's house if he was not on her hukou registry. Accordingly, the RPD concluded, on a balance of probabilities, that the PSB did not, in fact, attend at his aunt's home to pursue the Appellant. [27] As a result of the foregoing contradictions, omissions, discrepancies, inconsistencies, and lack of valid explanations, the RPD did not believe that the Appellant was a member of an underground Islamic group. It further found that it did not believe that this group, if there was one, was raided, and that the Appellant was arrested and detained by the PSB. Furthermore, the RPD did not believe that the Appellant managed to escape while in custody and is wanted by the PSB. [28] With respect to the Appellant's name being on his sister's hukou, the RAD finds that the Appellant provided a reasonable explanation. He had resided with his aunt since the age of 8, and was not a family member in the true sense; however, his aunt had taken over his rearing due to his father's death and the disappearance of his mother. However, having said this, what is important in the RAD's opinion, is the fact that allegedly the PSB went looking for the Appellant at the home of his aunt, where there would be no official record of his domicile. [29] The RAD concurs with the RPD, even acknowledging the short time that the Appellant has been involved as a practicing Muslim, that his knowledge was extremely limited. Moreover, the RAD finds that the contradiction between the Appellant's CBSA interview and his BOC with respect to his attendance is significant in terms of that knowledge. His lack of knowledge of the prayer book, in the RAD's opinion, is very questionable. While he may not have an understanding of the language and the name of the most important book to Christians, such as the Bible, it, again, calls into question the credibility of the Appellant's allegations. The RAD notes that, when prompted with the name, the Appellant basically drew a blank concerning the word "Quran". [30] With respect to the detention of the Appellant following pursuit by the PSB, the RAD concurs with the RPD that there is a huge difference between 5 days and 10 days in detention, when purportedly, he was being held in unpleasant surroundings and being treated harshly. Added to this, the RAD finds the fact that the Appellant, when asked at his CBSA interview if he had ever been detained, and he responded "no", further casts a doubt on the veracity of this evidence. Moreover, when questioned with respect to the date of the raid, the Appellant could only provide a month, as opposed to a day. The RAD concurs with the RPD that the Appellant was not, in fact, detained. Furthermore, although the Appellant was purportedly in hiding, he returned to his home on several occasions prior to his departure. As well, after reviewing the transcript, the RAD finds no evidence to suggest that the PSB have been pursuing the Appellant since his departure from China. Documentary Evidence [31] Notwithstanding the credibility findings by the RPD, the RPD considered the documentary evidence and acknowledged that China is a totalitarian state controlled by the Chinese Communist Party. It noted the record of human rights violations and abuses and the fact that members of underground religious groups have known to be arrested, put in jail, and tortured, without due process. It further noted the treatment of Uyghurs and members of other minority religion groups. However, when the RPD found the Appellant not to be Muslim and his story of being pursued by the PSB not to be credible, it was not necessary to consider the foregoing. [32] The RAD concurs with the RPD that this finding is absent of any error, having made the findings that the Appellant was neither a Muslim nor was he wanted by the PSB, as alleged. Religious Identity [33] The Appellant submits that the RPD ignored the fact that he attends at the Islamic Centre regularly and that he would continue to practice his Muslim faith if he was returned to China.15 [34] The Appellant submits that, given the Member's unusual and improper conduct during the hearing, it is unreasonable to give any weight to the Member's ability to provide an impartial and balanced decision. CONCLUSION [35] Notwithstanding the sustainable credibility finding by the RPD, the RAD finds that the Member's conduct created an apprehension of bias, as defined by the legal test. [36] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara June 22, 2015 Date 1 RPD's Record, p. 92, Exhibit 4. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Ibid., Huruglica, para 54. 4 Ibid., Huruglica, para 55. 5 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 6 Huruglica ,supra, footnote 2. 7 RPD's Record, RPD's decision, paras. 14-15; Appellant's Record, Transcript, and p. 2 (lines 15-23), and p. 4 (lines 12-14), and p. 11 (lines 7-20). 8 Appellant's Record, Transcript, p. 5, line 23 through to p. 6, line 12, and p. 80, line 28 through to p. 82, line 27. 9 Appellant's Record, p. 70 of the transcript, lines 11 to 25. 10 Appellant's Record, pp. 71-79 of the transcript. 11 Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII2 (S.C.C.), [1978] 1 S.C.R. 369, at 294. 12 Fajardo, Mercedes v. M.E.I. (F.C.A., no. A-1238-91), Mahoney, Robertson, McDonald, September 15, 1993; (1994), 21 Imm. L.R. (2d) 113 (F.C.A.), F.C.J. No. 915; and Quinteros, Carolina Elizabeth Lovato v. M.C.I. (F.C.T.D., no. IMM-4030-97), Campbell, September 22, 1998, F.C.J. No. 1363. 13 RPD's Record, RPD's decision, paras. 12; and Exhibit P-2, Appellant's Record, Affidavit of Qiang Lu, para. 11. 14 Exhibit P-2, Appellant's Record, p. 70 of the transcript, lines 11 to 25. 15 Exhibit P-2, Appellant's Record, transcript, p. 101, line 24 through to p. 103, line 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03897