Docket: IMM-1696-17
Citation:
2017 FC 1074
Toronto, Ontario, November 29, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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QIANQIAN FU
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HUAPENG HU
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The Chinese Applicants, QianQian Fu and HuaPeng
Hu, are spouses who claim to be members of the Church of the Almighty God
[Church]. The Church is illegal in China. The Applicants unsuccessfully sought
refugee status in Canada, based on religious persecution in China. The Refugee
Protection Division [RPD] denied the claim at first instance, finding that the
Applicants were not genuine Church adherents. The Refugee Appeal Division [RAD]
later agreed with the RPD that the Applicants were not credible and refused to take
notice of or admit new information on appeal [Decision]. I have concluded that
the Decision is both incorrect and unreasonable based on two evidentiary
issues, and will accordingly allow this application for judicial review [Application].
I.
Background
[2]
In early 2010, Mr. Hu came to study in Canada,
while Ms. Fu remained in China. Ms. Fu’s evidence was that she became
depressed in China after Mr. Hu left, because she was not advancing in her
career like her friends. She stated that her cousin, noticing a change in her
behavior, introduced Ms. Fu to the Church in January 2012. Ms. Fu’s evidence
was that she was afraid to practice the illegal religion, but that she began by
praying with her cousin at home, which caused her to gain confidence. She stated
that, in March 2012, she joined a house Church and thereafter attended services
once a week, with “good safety precautions”.
[3]
The Applicants claimed that Mr. Hu travelled to
China in August 2012 to marry Ms. Fu. Ms. Fu stated that Mr. Hu
was worried because she had joined an illegal religion and told her to be
cautious. Ms. Fu claimed to have then travelled to Canada with Mr. Hu
on October 24, 2012.
[4]
Ms. Fu stated that, after she arrived in
Canada, she learned from her cousin that the Chinese government had begun
suppressing her colleagues at the Church, that the situation was “very tense” and that her cousin had stopped attending
services. Ms. Fu stated that she then located a Church in Toronto, and she
and Mr. Hu started attending services there in January 2013. Ms. Fu
further says that her cousin told her in March 2013 that their Church in China
had resumed services, but that its members had more safety precautions and had
to be “extremely careful”.
[5]
Ms. Fu claimed that she received a call from her
mother in June 2016, stating that her cousin had been arrested during a Church
service, and that the Public Security Bureau [PSB] then came to Ms. Fu’s
parents’ home to ask questions about connections between the family and the
Church. Ms. Fu stated that the PSB came back the next day, threatened her
mother, and left a summons requiring Ms. Fu to return to China within one
month [Summons]. Ms. Fu says she talked about these matters with fellow
Church members in Toronto and was advised to make a refugee claim. Ms. Fu’s
Basis of Claim form, submitted on behalf of herself and Mr. Hu, was signed July
21, 2016.
[6]
The RPD dismissed the Applicants’ claim on the
basis that it was not credible. The RPD accepted that Church members are
persecuted in China, but found that the Applicants were not genuine adherents.
It made these findings in part because the Applicants had waited three and half
years after arriving in Canada to make a refugee claim.
[7]
The RPD also had a major credibility concerns arising
from the fact that Mr. Hu’s passport did not contain exit and entry passport
stamps from Canada to show that he had returned to China in the summer of 2012
to marry Ms. Fu. The RPD found that it was plausible, but not probable,
that the stamps were missing due to human error. It noted that Mr. Hu had
testified that he and Ms. Fu had travelled together, sat beside each
other, and passed through customs together. The RPD found it was not credible
that the customs official would stamp Ms. Fu’s passport but not Mr. Hu’s.
In the RPD’s assessment, this negative credibility finding seriously undermined
the Applicants’ claim.
[8]
On appeal to the RAD, the Applicants attempted
to submit new evidence under section 110(4) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], or to have the RAD take notice of the
facts therein, including (i) a copy of a Government of Canada website page
stating that upon entry, “[t]he officer will stamp your
passport with a date, or let you know how long you can stay in Canada”,
and a second stating that an officer “may” stamp
a visitor’s passport [the GC Websites]; (ii) copies of postings from various
private websites and message boards speaking to the same issue of passport
stamps; (iii) copies of photos of a marriage ceremony dated September 23, 2012;
(iv) a copy of a boarding pass for “Toronto/Beijing”
in the name of “Hu/Huapeng”, dated July 30
(no year visible); and (v) Government of Canada travel history information
relating to Mr. Hu.
[9]
The Applicants also requested that the RAD hold
an oral hearing under section 110(6) of IRPA on the basis of this new evidence
and the credibility findings to which it was relevant. The RAD did not accede
to this request for an oral hearing because it neither admitted the “new” evidence, nor found that any other criteria
permitting an oral hearing were met.
II.
Standard of Review
[10]
The RAD’s assessment of the evidence, and
findings of mixed fact and law, are to be reviewed on a standard of
reasonableness (Canada (Citizenship and Immigration) v Huruglica, 2016
FCA 93 at para 35; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47, 51,
54, and 57). The parties agree that procedural fairness breaches, on the other
hand, attract a correctness review, which I will accordingly apply,
notwithstanding that this is currently the subject of some dispute (Vavilov
v Canada (Citizenship and Immigration), 2017 FCA 132 at para 11).
III.
Issues and Analysis
[11]
The Applicants point to evidence that they argue
the RAD erred in (1) addressing, (2) overlooking, and (3) excluding. I will consider
each issue below in turn. I will then address the Respondent’s argument that
the RAD’s finding on the Applicants’ lack of subjective fear, which it inferred
from their delay in seeking refugee status, was determinative of the Decision.
A.
Evidentiary Issues
(1)
Unfairly Addressed Evidence
[12]
The Applicants argue that the RAD breached
principles of procedural fairness by making credibility determinations distinct
from those raised by the RPD in relation to the Summons without affording the
Applicants any opportunity to respond. The Respondent counters that the RAD was
entitled to make credibility determinations without a hearing as there was no
new evidence before it, and that no rules of natural justice were breached.
[13]
In the Decision, the RAD made several
determinations in respect of the Summons not raised by the RPD. For instance,
the RAD found that, if the Applicants’ allegations were true, the PSB would
have initially used a more forceful state instrument, such as a coercive
summons or an arrest warrant. It further found that the PSB would have at least
issued a coercive summons following Ms. Fu’s non-compliance with the original
Summons. As there was no evidence before the RAD that a coercive summons had
been issued or received by the Applicants’ family in China, it found that the
Summons was not credible.
[14]
The RAD has a duty to allow parties to address
pivotal new matters not raised by the RPD (Ehondar v Canada (Citizenship and
Immigration), 2016 FC 1253 at paras 13-14). In Ortiz v Canada
(Citizenship and Immigration), 2016 FC 180, Justice Shore faulted the RAD
for raising doubts about the genuineness of a police report, which were neither
raised as an issue by the RPD, nor put to the applicant (at para 22). In
another case, Justice Hughes found that where “the RAD
chooses to take a frolic and venture into the record to make further
substantive findings, it should give some sort of notice to the parties and
give them an opportunity to make submissions” (Husian v Canada
(Citizenship and Immigration), 2015 FC 684 at para 10).
[15]
Here, I agree that there was a breach of
procedural fairness: the Applicants were entitled to an opportunity to respond
to the RAD’s “frolic” into Chinese criminal
procedure because these concerns were not raised by the RPD. While this Court
has the discretion to dismiss a judicial review application notwithstanding
breaches of procedural fairness (Bergeron v Canada (Attorney General),
2017 FC 57 at paras 73-74), I will not do so in this case. As discussed further
below, the Decision was neither reasonable nor inevitable in spite of the RAD’s
breach of procedural fairness and thus must be reconsidered.
(2)
Overlooked evidence
[16]
This application raises the issue of how this
Court should treat material evidence that has, to this point, been overlooked
by all involved, even though it was contained in the record before both the RPD
and the RAD. Specifically, the Applicants draw this Court’s attention to Global
Case Management System [GCMS] notes, which were in the Certified Tribunal
Record [CTR] and as such before both the RPD and RAD, but which went
unaddressed. One line buried in the GCMS notes states that Mr. Hu’s “Last Entry Date” was “2012/10/24”.
This Canadian government data thus corroborates his travel claim, and
undermines the RPD’s and RAD’s findings that Mr. Hu did not travel into Canada
on the date in question.
[17]
The Applicants submit that, although this
evidence was overlooked by all counsel and both the RPD and RAD, it is “unequivocal” evidence that Mr. Hu travelled on the
dates he says he did. The Applicants submit that the RAD’s finding that Mr. Hu
did not return to China in 2012 was critical to its analysis, and that there
has thus been a “mistake of fact”, such that the
Decision must be quashed and the significance of the GCMS notes argued before
the RAD.
[18]
The Respondent answers that the GCMS notes are
first of all inadmissible and in any event do not overcome the Applicants’ other
credibility issues. The Respondent has not argued that the oversight was due to
any lack of diligence on the part of the Applicants.
[19]
I disagree that the GCMS evidence is somehow “inadmissible” in this Application. It has always been
a part of the documentary record in this matter, although its significance was
apparently overlooked by all involved. The GCMS notes are indeed highly probative,
although not “unequivocal”, evidence of certain
of Mr. Hu’s travel claims. Given that the lack of stamps in Mr. Hu’s passport
was central to the RPD and RAD’s credibility concerns, this Court cannot know
if the outcome of the Decision would have been different had the RAD been
alerted to the GCMS evidence.
[20]
These facts are highly unusual. I find that although
it cannot be said that the RAD unreasonably overlooked evidence (because the
GCMS notes were not brought to its attention), material evidence before the RAD
was nevertheless missed. The Applicants cannot be faulted for this oversight in
the circumstances. As such, I am satisfied that the overlooked evidence has
resulted in an unreasonable Decision such that the RAD must reconsider its findings.
(3)
Excluded Evidence
[21]
As set out above, the Applicants unsuccessfully
attempted to introduce new evidence before the RAD to remedy the RPD’s
credibility concerns. This proposed new evidence included the GC Websites, intended
to corroborate the Applicants’ explanation that Mr. Hu could have exited and
re-entered Canada without a Canadian visa officer stamping his passport.
[22]
The RAD is not limited by technical or legal
rules of evidence (IRPA at section 171(a.2)), but at the same time it does not
have untrammeled discretion to consider any new evidence tendered on appeal.
Specifically, section 110(4) prohibits an applicant from introducing new
evidence that was reasonably available prior to the claim’s rejection (like the
GC Websites). Thus the Applicants sought to rely on the information contained
in the GC Websites on appeal by asking the RAD to “take
notice” of it, which means asking the RAD to simply accept certain facts
as being “beyond reasonable dispute” (R v
Find, 2001 SCC 32 at para 48 [Find]; IRPA at section 171(b)). Faced
with these arguments, the RAD applied the test set out in Find, the
leading authority on judicial notice, and determined that the information
contained in the GC Websites amounted to only “informal”
or “anecdotal” descriptions of Canadian laws,
regulation and procedure, and as such was not appropriate to take notice of.
[23]
In this Application, the Applicants maintain
that the GC Websites were not “new evidence”,
but rather government “policy” amounting to “common procedure”, which they say would have been
appropriate for the RAD to consider, notwithstanding that it was not before the
RPD. They submit that the RAD’s failure to consult “its
own government’s web-site” amounted to improper adherence to strict
rules of evidence and a “blatant disregard” for
the truth.
[24]
Because the Decision must be quashed based on my
findings above on the procedural fairness and evidentiary oversight issues, it
is not necessary for this Court to also determine whether the RAD unreasonably
refused to take notice of, or otherwise admit, the GC Websites. However, as this
Court’s view on the issue may be of assistance to the parties when this matter
is reconsidered, I have considered the RAD’s admissibility analysis and find it
to have been reasonable. A specialized tribunal is the master of its own
procedure, subject to rules of fairness (Prassad v Canada (Minister of
Employment and Immigration), [1989] 1 S.C.R. 560 (SCC) at 568-569). It will be
up to the RAD whether it wishes to take notice of, or otherwise admit, any materials
not before the RPD, when this matter is reconsidered.
B.
Delay
[25]
The Applicants waited over three years before
claiming refugee protection. As a result of this delay, the RPD, and then the
RAD, concluded that the Applicants lacked the subjective fear required to
support their claim for refugee status. The RAD referred to the Applicants’
delay as “excessive” and “determinative”, finding that the Applicants’ lack of
subjective fear of persecution meant they were not genuine Church adherents.
[26]
In arriving at its conclusion on subjective
fear, the RAD noted that (i) the Applicants both confirmed that they knew the
Church was illegal and considered a cult around the time they left China, (ii)
Ms. Fu learned from her cousin shortly after arriving in Canada in October 2012
that the Chinese government had been “cracking down”
on Church adherents, (iii) at least one practitioner in their circle had been
arrested and other adherents in China had stopped attending services, and (iv)
the Applicants were sophisticated, university-educated individuals, with
experience in Canadian immigration processes.
[27]
During the hearing of this Application, counsel
for the Respondent submitted that the RAD’s findings on delay were both
reasonable and determinative of the RAD’s Decision, such that the Application
should be dismissed on that basis.
[28]
Whether or not the RAD was persuaded by the Applicants’
explanations for their lengthy delay in seeking status is a question of fact and
owed considerable deference (Juma v Canada (Citizenship and
Immigration), 2015 FC 844 at para 19). However, an applicant’s delay in seeking
status, in and of itself, cannot determine the outcome of a refugee claim.
Justice Shore recently wrote on this issue in Ntatoulou v. Canada
(Citizenship and Immigration), 2016 FC 173:
[14] The Court finds that the RPD erred
in its determination that the Applicant lacked credibility because of her
alleged lack of subjective fear. Neither failure to make a claim elsewhere,
nor, delay in making a claim are, in and of themselves, determinative (Pena
v Canada (Minister of Citizenship and Immigration), 2011 FC 326 at para 4 [Pena];
Hue v Canada (Minister of Citizenship and Immigration), [1988] FCJ No
283; Wamahoro v Canada (Minister of Citizenship and Immigration), 2015
FC 889 at para 32):
[T]he long delay in making a claim
must not be a pretext and is not in itself sufficient to reject a refugee claim
without reviewing the other facts in the record.
(Malaba v Canada (Minister of
Citizenship and Immigration), 2013 FC 84 at para 11)
[29]
As the RAD’s findings on “delay” could not reasonably have been determinative
of the appeal before it, neither are they determinative of this Application.
Further, and despite the RAD’s use of the word “determinative”
in respect of the Applicants’ delay, the RAD’s overall credibility findings
were clearly made in the context of other significant evidentiary
determinations which I have concluded justify this Court’s intervention. Thus,
the Applicants’ claim — including the weight ascribed to any inferences drawn
from the Applicants’ delay in seeking refugee status — will have to be
reconsidered by the RAD in light of the totality of the evidence.
IV.
Conclusion
[30]
I allow this Application for two reasons: (i) the
RAD’s breach of procedural fairness in failing to provide the Applicants with
an opportunity to respond to new concerns raised about the Summons, and (ii)
the overlooked GCMS records of Mr. Hu’s travel dates. My conclusion does not
turn on the RAD’s findings in respect of either the admissibility of the GC Websites
or the Applicants’ delay in seeking status, as the former was reasonable and
the latter not reasonably determinative of the issue before the RAD.
[31]
The Application is granted. No questions for
certification exist and none arise.
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