TB3-07575

RAD File No. / N° de dossier de la SAR : TB3-07575 TB3-07576 TB3-07577 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 14, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX (the Appellants), citizens of China, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted no new evidence in support of their appeals. The Appellants ask the Refugee Appeal Division (RAD) to set aside the decision of the RPD and replace it with a positive determination or to refer the matter back to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division refers the Appellants' refugee claims to the Refugee Protection Division for re-determination by a differently-constituted panel. These appeals are allowed. Background [3] The principal Appellant alleged before the RPD that the authorities in China forced her to have an abortion, and, as a result of this trauma, she became depressed. She was introduced to Christianity by a friend and began to attend an underground house church in XXXX of 2012. In October of that year, the house was raided by the Public Security Bureau (PSB), and the principal Appellant went into hiding. She learned that the PSB also came to her home, seeking to arrest her, and left a summons with her husband. Her husband was expelled from work and her son was suspended from school. With the assistance of a smuggler, the Appellants left China and came to Canada via the United States. [4] The Appellants' application for refugee protection was heard on September 12, 2013, and it was rejected in a decision of October 11, 2013. The RPD cited various credibility concerns, including apparent omissions from the Basis of Claim (BoC) narrative, lack of corroborating documents, the apparent irregularities on the face of a summons, a delay in leaving China, and a failure to claim in the United States. The panel also set out plausibility concerns, including the Appellants' use of an American visa and their undetected exit from the country despite the use of their own identity documents. On the basis of these credibility and plausibility concerns, the RPD concluded that the Appellants are neither Convention refugees nor persons in need of protection. [5] The Appellants submit that the RPD made erroneous credibility findings by ignoring testimony, failing to properly weigh relevant evidence, relying on microscopic inconsistencies, and neglecting to assess the risks faced by the Appellants in China because of their religious identity. They ask the RAD to set aside the RPD's decision and substitute its own determination that they are Convention refugees or persons in need of protection; in the alternative, they ask that the RAD remit the matter back to the RPD to be re-determined by a differently-constituted panel. ANALYSIS Standard of Review [6] The Appellants argue that the RPD made errors in considering evidence and credibility, and this raises questions of fact. [7] The Appellants make no submissions on the standard of review to be applied to the RPD's decision here. [8] 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. [9] 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. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [10] In Newton,3 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:4 (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. [11] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [12] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [13] The nature of the question in issue: In this appeal, the questions in issue are ones of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [14] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [15] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [16] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [17] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [18] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [19] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,12 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [20] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [21] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [22] For these reasons, the RAD concludes that, in considering these appeals, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.15 [23] The appropriate standard of review in these appeals is one 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.16 The RPD's Findings [24] The Appellants argue that the RPD made various errors in its assessment of their evidence and credibility. One such error, they allege, is in the RPD's analysis of the principal Appellant's Christian identity. [25] The Appellants' refugee applications are based on the claim that the principal Appellant converted to Christianity and that this became known to security officials in China, who began to seek her. The associated Appellants allege that they are at risk because of the principal Appellant's religion and also because they have now converted to Christianity. As such, the Appellants' religious identity is an important element of these refugee claims. [26] The RPD's reasons deal with various credibility and plausibility concerns, and then turn to the matter of religious identity. The panel noted that the Appellants submitted a corroborating letter from a Canadian pastor, and cited Federal Court jurisprudence which holds that a pastor's assessment of the genuineness of a person's faith cannot be substituted "for the assessment that the panel is required to make."17 It gave little evidentiary weight to the corroborating documents from the Appellants' church in Canada, and then noted that the Appellants' attendance at church does not prove the genuineness of her convictions. It acknowledged the principal Appellant's evidence that she reads the Bible, attends church on Sundays, and participates in Bible study classes on Thursdays, and then placed little weight on her apparent ability to answer questions about Christianity. [27] Nothing in the RPD's reasons indicates that the panel had any specific concerns with the principal Appellant's testimony about her religious identity. However, it went on to reject her professed religious identity, on the basis of other credibility findings: Having previously found that the principal claimant's underground house church was not raided and that she is not pursued by the PSB, the panel also finds that the principal claimant was not a genuine practitioner in China as she alleges. The panel further finds that, on a balance of probabilities and on the basis of the findings and negative inferences noted above, the principal claimant's allegation that she was a genuine practicing Christian in China is not credible and that this credibility finding raises a significant doubt about the principal claimant's general credibility.18 [28] The RPD then went on to consider whether the principal Appellant is a genuine practicing Christian in Canada. It repeated its negative credibility finding in respect to her claim to have belonged to an underground house church in China, and it concluded: On the basis of the totality of the evidence disclosed and in the context of the principal claimant's knowledge of the practice and philosophy of Christianity, the panel finds that the principal claimant is not a genuine practicing Christian, nor would she be perceived to be in China.19 [29] Finally, the RPD considered whether the associated Appellants are genuine Christians. It acknowledged baptismal certificates and a pastor's corroborating letter, and that the adult associated Appellant, when questioned, demonstrated some knowledge of Christianity. Once again relying upon its earlier credibility findings about the principal Appellant's participation in an underground church in China, the RPD concluded that this finding also "raises doubt" about the general credibility of the associated Appellants. [30] The Appellants argue before the RAD that their religious identity is central to their refugee claims and that the RPD had a duty to engage in a fair and balanced analysis. Instead, they submit that the RPD engaged in contradictory and speculative reasoning with respect to their religious identity, failed to consider that the Appellants were able to provide letters and give testimony about their faith, and rejected their evidence on this matter only because it had a credibility concern with other parts of their refugee claims. [31] For the following reasons, the RAD finds that the RPD erred in its assessment of the Appellants' religious identity, an issue which goes to the heart of their refugee claims. [32] First, the RPD used inappropriate methodology to reject evidence of the Appellants' religious identity. The panel relied on Cao, where the Federal Court reviewed an RPD decision, also dealing with a refugee claimant from China who claimed to be Christian and to be sought by the PSB. The Court held that the RPD was not required to defer to a pastor's corroborating letter, as it is for the RPD member to assess the truthfulness of the refugee claim. [33] In the RAD's view, Cao could indeed have been of assistance to the RPD. In that case, the RPD rejected the refugee claim because the claimant gave inconsistent evidence in a number of areas, including in respect to his wife's medical documents, the exclusion of his wife from the introduction to Christianity, his knowledge of the risk involved in attending an underground church, his knowledge of PSB procedures during an arrest, and his knowledge of Christianity and its Pentecostal branch. The RPD concluded that the entire refugee claim was fraudulent.20 The Court dismissed the application for judicial review, finding that the RPD's decision was not irrational or unsupported by the evidence. [34] In Cao, the RPD had found that the entire claim was fraudulent, and it therefore rejected all of the refugee claimant's evidence, including that of his religious identity. It is well-established in law that, even without disbelieving every part of a claimant's testimony, the RPD may find a claimant so lacking in credibility that it may conclude there is no credible evidence relevant to his claim.21 A claimant's contradictory testimony can cast doubt upon the totality of his oral evidence.22 [35] Here, though, the RPD did not make a clear finding in respect to the overall credibility of the Appellants. After noting that refugee claimants are entitled to a presumption of truthfulness, the RPD found the principal Appellant's testimony "not to be credible in respect to the following areas."23 It went on to discuss concerns with omissions, implausibilities, and inconsistencies, and drew multiple negative inferences. It then found that the principal Appellant had not established that her underground church was raided or that she was being pursued by the PSB for belonging to an underground church, and later it found that she was not credible in alleging that she was a genuine practicing Christian in either China or Canada. [36] The RPD made no finding in respect to other aspects of the Appellants' claims-such as that the principal Appellant was forced to undergo an abortion, or even that she is being pursued by the PSB. The RPD did express concerns about the Appellants' overall credibility: "....this credibility finding raises a significant doubt about the principal claimant's general credibility"24 and "this credibility finding also raises doubt about the associate and the minor claimant's general credibility in that they support her allegations...."25 [37] Where the RPD makes assessments of credibility, these must be made in clear and unmistakeable terms.26 The Appellants were entitled to the presumption of truthfulness before the RPD,27 and in the RAD's view, a credibility assessment expressed as the panel's "doubt" or even "significant doubt" is not clear and unmistakeable. It is not clear from the RPD's reasons whether the panel rejected the Appellants' evidence in its entirety. [38] The RPD's treatment of the Appellants' overall credibility is significant. Had the RPD found the Appellants to be generally lacking in credibility, this finding could reasonably have included their evidence of their Christian identity. There was no such global finding, however, and as the Appellants point out, the Federal Court has cautioned against the approach apparently used by the RPD here: A decision to reject certain aspects of the evidence does not constitute, absent a negative credibility finding, carte blanche to reject all of the remaining evidence. Each aspect of the evidence must be assessed on its own merits.28 [39] In the RAD's view, as the RPD did not make a negative global credibility finding, it could not reasonably reject the Appellants' professed religious identity only because it did not believe their evidence about the principal Appellant's attendance at a house church or the PSB's raid of that church. Even if the Appellants were not truthful about the events in China, it does not necessarily follow that they cannot be believed about the authenticity of their faith-unless the RPD has determined that they are generally lacking in credibility. [40] Second, the RPD's reasons are contradictory on the matter of religious identity. The panel gave little weight to a pastor's corroborating letter because "a pastor's assessment of the genuineness of a person's faith cannot be substituted for the assessment that the panel is required to make."29 While this statement itself is an accurate reflection of the Federal Court's decision in Cao, it is unfortunate that the RPD failed to actually conduct such an assessment. It gave little weight, without explanation, to corroborating documents or to the Appellants' testimony about their faith: "The panel puts little weight on the principal claimant's ability to answer questions about Christianity."30 The RPD did observe that the Appellant could have obtained the religious knowledge since she arrived in Canada-but, even if true, this does not mean the Appellant is not a genuine Christian in Canada. The RPD proceeded to this conclusion: "On the basis of the totality of the evidence disclosed and in the context of the principal claimant's knowledge of the practice and philosophy of Christianity, the panel finds that the principal claimant is not a genuine practicing Christian, nor would she be perceived to be in China."31 It is difficult to see how the Appellants' unchallenged evidence of their faith could be held against them in a determination that they are not adherents of such faith. Further, if their evidence relating to religious identity was indeed given little weight, it would be inappropriate for the RPD to rely upon that evidence to make a negative credibility finding on that very subject. [41] For these reasons, the RPD's decision to reject the Appellants' religious identity is not justifiable, transparent, or intelligible. It does not fall within a range of possible, acceptable outcomes defensible with respect of the facts and the law. [42] Although the Appellants raise numerous other grounds of appeal, it is not necessary for the RAD to consider these issues. The matter of religious identity is a central element of the Appellants' refugee claims, and the RPD's erroneous assessment of this matter renders the decision to reject those claims unreasonable. Disposition [43] The RPD's decision to reject the Appellants' refugee claims is unreasonable. The Appellants ask that the RAD set aside that decision and substitute its own positive determination, finding the Appellants to be Convention refugees or persons in need of protection. [44] The RPD's decision sets out many credibility and plausibility concerns. While the Appellants challenge these, in the RAD's view, there may indeed be a reasonable basis for some of these findings. The principal Appellant testified that the PSB returned to seek her twice after they left a summons, but this important information was not included in her BoC narrative. She took significant risks to obtain an American visa, which required her attendance at an interview, without seeking a Canadian visa, for which no interview was required. She delayed for months in leaving China, and she then left on her own passport without being detected by security officials. She arrived in the U.S. and remained there for a month without making a refugee claim. [45] In the context of these credibility concerns, it would be inappropriate for the RAD to make a decision finding the Appellants to be Convention refugees or persons in need of protection. CONCLUSION [46] These appeals are 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) "Edward Bosveld" Edward Bosveld January 14, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 RPD's Reasons, para. 49, citing Cao, Wo Ji v. M.C.I. (F.C., no. IMM-1303-08), Mosley, October 17, 2008; 2008 FC 1174. . 18 RPD's Reasons, para. 50. 19 RPD's Reasons, para. 51. 20 Cao, paras. 7-8. 21 Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.). 22 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.) at 35. 23 RPD's Reasons, para. 14. 24 RPD's Reasons, para. 50, repeated at para. 53. 25 RPD's Reasons, para. 53. 26 Hilo v. Canada (M.E.I.) (1991) 15 Imm. L.R. (2d) 199 (F.C.A.). 27 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 28 Chen v. Canada (Minister of Citizenship and Immigration), 2013 FC 311, para. 24. 29 RPD's Reasons, para. 49, citing Cao. 30 RPD's Reasons, para. 49. 31 RPD's Reasons, para. 51, emphasis added. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-07575 TB3-07576 TB3-07577