TB7-18530

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 / Dossier de la SAR : TB7-18530 TB7-18531 / TB7-18532 / TB7-18533 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 XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 5, 2018 Date de la décision Panel Laura Brittain Tribunal Counsel for the person(s) who is(are) the subject of the appeal Peter J Wuebbolt Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (hereinafter "the Principal Appellant"), along with his wife and two children, seek Canada's protection because of the Principal Appellant's alleged practice of Falun Gong and his subsequent discovery by authorities in his native China. The Refugee Protection Division (RPD) rejected their claim on the basis of three credibility concerns: the Appellants' ability to exit China, their luck in already having American tourist visas at the time they were in danger, their failure to claim in the United States during a three-day transit, and various plausibility findings regarding the Appellants' allegations. While I share the RPD's concern that the Appellants' allegations are not credible, the reasons offered are simply insufficient to justify rejecting their claims. As addressed below, I am unable to reach a final determination without rehearing the evidence before the RPD. This claim is therefore remitted back to the RPD. DECISION [2] This appeal is allowed. I set aside the RPD's decision. Since I cannot reach a determination without hearing evidence that was before the RPD, this matter is sent back for redetermination by a different member of the RPD. REQUEST FOR ORAL HEARING DENIED [3] The Appellants request an oral hearing. My jurisdiction to convene an oral hearing is limited: there must be admissible new evidence that raises a serious issue of credibility, is central, and determinative.1 No new evidence has been submitted on appeal, and so no hearing can be convened. The Appellants' request for an oral hearing is denied. ISSUES ON APPEAL [4] The Appellants advance a great number of arguments on appeal, the majority of which are rather general in nature. This being said, I agree with the Appellants that the RPD's reasons do not offer sufficient basis for the rejection of the claim, as discussed below. ROLE OF THE RAD [5] The Refugee Protection Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, attracts a standard of review of reasonableness.3 Unless specifically stated below, I have applied a correctness standard. ANALYSIS [6] I do not find it necessary to deal with all of the Appellants' arguments in detail. [7] The RPD's analysis is based upon various plausibility findings and unexplained negative inferences. The RPD's overall assessment of the claim asserted that the evidence was incredible without either asking sufficient questions or explaining why the Principal Appellant's explanations were rejected. I cite two examples: Overall the claimants' testimony did not have the ring of truth when they were describing allegations material to their claim. When confronted with contradictions or inconsistencies, they just made up answers that did not make any sense to respond to the panel's concerns.4 ... The claimants were not in possession of their passports and state that it was taken by the smuggler, first to ensure payment of his fees but that the passport were not given back and the smuggler is not responding. The panel does not accept the principal claimant's explanation and draws a negative inference on their credibility.5 [8] In several instances, however, the RPD lacked the proper evidentiary foundation to draw these conclusions. For example, I find that the RPD's analysis of the Appellants' travel via the US is unsustainable. I note that the following dates are said to be in September in the RPD's reasons - this is an error of fact, as the Appellants clearly alleged in the hearing and in their claim forms that these events took place in November. The Appellants allege that they arrived in the United States on XXXX XXXX, 2015 and arrived in Canada after entering illegally on XXXX XXXX, 2015. On November 26, 2015 the Chinese Public Security Bureau (PSB) went to the Principal Appellant's house to arrest him. These are indeed fortuitous circumstances. The RPD, however, concluded that it was implausible that the Appellants could have found a smuggler to bring them to Canada in this time frame, given the time difference. Again, with more questions asked, this might have been the clearest of cases for this plausibility finding. But an evidentiary basis was needed - what time on November 26th did the Appellant hear that the PSB had come? What time was it in China at that time? How long did it take to find a smuggler? How were the Appellants smuggled to Canada and how long did that take? Absent more information, in the age of instant communications via emails, video telephone calls, even email money transfers, and the ease with which thousands enter Canada illegally, I am unable to conclude this timeline (as it relates to the smuggling alone) is implausible. [9] Moreover, the Principal Appellant's evidence was that he did not make a claim in the United States because his uncle told him not to (an important fact in China's ancestral-organized culture) and because he had a relative in Canada. The RPD rejected these explanations, and held an extremely brief stay and failure to claim in the US against the Appellants. This is not sustainable reasoning. I agree that the fact that the relative in Canada did not provide the Appellants with any assistance is troubling, but what the Principal Appellant knew or believed at the time he was in the US is what is relevant to an assessment of his subjective fear. Without further evidence indicating that the Principal Appellant's explanation was not credible - for example, had the Principal Appellant also testified that he had never spoken to this relative once in Canada, or if he was asked more generally about whether or not he deferred to his uncle's authority, context might have aided in the evaluation of his testimony. Absent this, I am unable to conclude that a sojourn of a maximum of 72 hours in the US is a basis for a negative inference. This was the main thrust of the RPD's analysis; failure to claim elsewhere in such a short time is rarely, if ever, determinative. [10] I agree with the RPD that there are reasons to doubt the veracity of some of the allegations. The fortuitous timing of being in possession of US visitor visas without being able to describe much about why they were sought is concerning. Why the PSB would not pursue legal means such as a warrant or coercive summons, if they are sufficiently motivated to return to his house on multiple occasions over two years, is also troubling. [11] The Principal Appellant was able to speak, however, about Falun Gong and his practice of it. This ought to weigh in his favour. [12] What I am unable to do is determine how much weight to place on any of this evidence without rehearing the claim. I cannot determine without an oral hearing (for which I have no jurisdiction in this case) whether there exists the proper factual basis to support the RPD's negative credibility findings. CONCLUSION [13] For the above reasons, I allow the appeal. I am unable to reach a final determination without rehearing evidence. Therefore, pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), this matter is remitted to the RPD in accordance with the directions below. DIRECTIONS [14] I remit this file to the RPD with the following directions: a. The claim will be reheard by a different Member of the RPD. (signed) "Laura Brittain" Laura Brittain November 5, 2018 Date 1 Subsection 110(6), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 3 Ibid., at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit RPD-1, RPD Reasons, p. 6 at para 11. 5 Ibid., p. 10 at para 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-18530 TB7-18531 / TB7-18532 / TB7-18533 RAD.25.02 (September 18, 2018) Disponible en français 6 RAD.25.02 (September 18, 2018) Disponible en français