Docket: IMM-876-17
Citation:
2017 FC 1175
Ottawa, Ontario, December 20, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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BINGQIU LIN
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Applicant
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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
I.
Introduction
[1]
On May 22, 2016 the Applicant, Mr. Bingqiu Lin,
arrived in Canada and claimed he is a Convention refugee or a person in need of
protection under the Immigration and Refugee Protection Act, SC 2001, c
27 at sections 96 and 97(1) [IRPA]. When the Refugee Protection Division [RPD]
dismissed his refugee claim on August 24, 2016, the Applicant appealed that
decision to the Refugee Appeal Division [RAD]. The RAD dismissed his appeal on February 1, 2017.
[2]
The Applicant says the RAD decision includes errors
such as failing to admit relevant new evidence, unreasonably deciding documents
are fraudulent, and impugning his credibility. He now asks this Court to
judicially review the RAD decision.
[3]
Because I find the RAD decision is transparent,
justifiable, and intelligible, and that the RAD did not err by excluding the
new evidence, nor breach the Applicant’s right to procedural fairness, I am
dismissing the judicial review for the reasons that follow.
II.
Background
[4]
The Applicant says he lived in the People’s Republic
of China and is fearful to return there because he will be arrested and jailed
for practicing his religion freely.
[5]
The Applicant alleges that in August 2015, on
the advice of his friend Guo Xiu, he joined a Church whose members are known as
“Shouters” as a way to reduce stress. His narrative alleges that on March 26,
2016 four Shouters, including him, were in a public park handing out Shouters
informational leaflets. What he alleges happened next is that the Public
Security Bureau [PSB] arrived and arrested two of them, but the Applicant managed
to flee and went into hiding. He says his employer was told he is a Shouter and
fired him. He also alleges the PSB searched for him at his home three times and
issued a summons which they gave to his wife.
[6]
As a result, the Applicant says he left China on
May 12, 2016 and began his journey to Canada with the help of a smuggler. He
alleges he was able to exit China using his own passport, which was stamped, but
not scanned, at the airport. The Applicant’s evidence is that before arriving
in Canada, the smuggler told him to destroy the passport and then took all his
travel documents including his boarding passes. The Applicant says that his
friend Guo Xiu was arrested while trying to leave China.
[7]
The Applicant arrived in Canada on May 22, 2016 and
made a refugee claim. On July 18, 2016, his RPD hearing took place. The
RPD decision, issued on August 24, 2016 dismissed his claim because it found 1)
he is not a genuine adherent of the Shouters; and 2) he is not wanted by the
Chinese authorities.
[8]
The Applicant appealed to the RAD and on
February 1, 2017, the RAD dismissed his appeal by confirming the RPD decision.
III.
Issues
[9]
The issues put forward by the Applicant are:
- Did the RAD err
in not allowing all of the new evidence put forward by the Applicant?
- Did the RAD err
in its assessment of the Applicant’s documents, specifically, the
Applicant’s letter of termination and summons?
- Did the RAD err
in impugning the Applicant’s credibility because he did not tender his
passport or other travel documents?
- Did the RAD err
in finding that the Applicant could not exit China on his own genuine
passport if he was wanted by the PSB?
- Did the RAD err
in its assessment of the Applicant’s sur place claim?
IV.
Standard of Review
[10]
The standard of review that applies to RAD
decisions is established by the jurisprudence, and is reasonableness (Canada
(Minister of Citizenship and Immigration v Huruglica), 2016 FCA 93 at para
35).
[11]
The standard of review for procedural fairness
issues is correctness (Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 43).
V.
Analysis
A.
Did the RAD err in not allowing some of the new
evidence put forward by the Applicant?
[12]
The Applicant argues the RAD should have
admitted all the newly submitted evidence. The evidence submitted by the
Applicant to the RAD includes: a letter dated August 7, 2016 from the Church in
Toronto with undated photos; a letter from Bi Lan Wang (wife of Guo Xiu) dated
September 6, 2016; Bi Lan Wang’s Chinese Resident Identity Card; and a jail
visitor card for Min Jiang Prison of Fujian Province.
[13]
Only the August 7, 2016 letter from the Church
in Toronto was admitted into evidence. Yet the Applicant argues the letter from
Guo Xiu’s wife and the jail visitor card also met the newness test because both
are dated after the RPD hearing, and both contain information that was not
available at the hearing.
[14]
According to section 3(3)(g)(iii) of the Refugee
Appeal Division Rules, SOR/2012-257 [RAD Rules], the Applicant must
explain how the new evidence satisfies IRPA section 110(4), and how it relates
to the Applicant. Section 110(4) of the IRPA says that new evidence is evidence
that: 1) arose after the RPD rejected the applicant’s claim; 2) was not
reasonably available before the RPD hearing; or 3) that could not reasonably
have been expected to be presented at the RPD hearing. As pointed out by the
RAD, if the evidence meets the section 110(4) requirements, then the Raza
v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 factors of
credibility, relevance, and newness apply. Materiality is addressed in section
110(6) of the IRPA.
[15]
In this judicial review, the Applicant argued
that the evidence is relevant because it is evidence of a similarly situated
person. Yet, his submission to the RAD provided no explanation as to why the
letter about Guo Xiu is relevant to the Applicant. The Applicant only said “this new evidence and the evidence introduced above further
corroborates the [Applicant’s] claim, and adds credibility to the evidence that
the Board Member previously rejected.” This lack of explanation led to
the letter from Guo Xiu’s wife and jail visitor card being dismissed as
irrelevant.
[16]
It is not for the Applicant to now bolster his
argument by providing me with the explanation of why the evidence is relevant
to him. I cannot reweigh the evidence or accept new evidence in a judicial
review. While I believe the evidence could be relevant because it shows the
situation of a similarly situated person, the problem is the Applicant only
submitted this argument for the first time at the judicial review hearing. Since
this is the first time this argument has been raised, it cannot affect the
reasonableness of the RAD’s decision.
[17]
Furthermore, even if the Applicant had followed
the RAD Rules, an unreasonable decision about this evidence would not affect
the decision as a whole. The reason the RAD dismissed the claim is due to
credibility issues, so evidence of a similarly situated person is not
determinative. Neither the RAD or the RPD continued their analysis to the point
to where evidence of what happened to other Shouters became relevant.
B.
Did the RAD err in its assessment of the
Applicant’s documents, specifically, the Applicant’s letter of termination and summons?
[18]
The Applicant submits the RAD breached his right
to procedural fairness by not giving him a chance to respond to a new issue. This
alleged new issue arose when the RAD found additional reasons to believe his
summons and letter of termination are fraudulent. The Applicant relies on Ching
v Canada (Minister of Citizenship and Immigration), 2015 FC 725 [Ching]
and Kwakwa v Canada (Minister of Citizenship and Immigration), 2016 FC
600 [Kwakwa] for the proposition that an applicant must be allowed an
opportunity to respond if a new issue is raised.
[19]
This Court has previously held that when the RAD
raises a new issue, procedural fairness dictates the Applicant be notified and
allowed an opportunity to make submissions (Ching at para 71). Similarly,
in Kwakwa Justice Gascon held that Mr. Kwakwa’s right to procedural
fairness was breached because the RAD had formed new arguments, implausibility
findings, and reasoning during its decision, without allowing him an
opportunity to respond (Kwakwa at paras 2-3). Justice Gascon
explained at para 24:
In other words, the RAD is entitled to make
independent findings of credibility or plausibility against an applicant,
without putting it before the applicant and giving him or her the opportunity
to make submissions, but this only holds for situations where the RAD does not
ignore contradictory evidence or make additional findings or analyses on issues
unknown to the applicant.
[20]
Although the Respondent submits factual findings
are not issues, the Kwakwa decision does not distinguish between factual
issues and legal issues.
[21]
As submitted by the Applicant, in Ching this
Court cited to R v Mian, 2014 SCC 54 [Mian], where the Supreme
Court of Canada [SCC] defined “new issue” at para 30:
it raises a new basis for potentially
finding error in the decision under appeal beyond the grounds of appeal as
framed by the parties. Genuinely new issues are legally and factually
distinct from the grounds of appeal raised by the parties (see Quan v.
Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at para. 39) and cannot
reasonably be said to stem from the issues as framed by the parties. It follows
from this definition that a new issue will require notifying the parties in
advance so that they are able to address it adequately.
[Emphasis added.]
[22]
While the RAD may have made factually distinct
findings, the issue of document genuineness was the legal issue in both
hearings (and therefore not legally and factually distinct as required by the
SCC in Mian). Therefore, the issue was already known to the Applicant,
and I find the Applicant failed to show how the RAD breached his right
to procedural fairness.
(1)
Document Analysis
[23]
The Applicant, relying on this Court’s decision
in Cai v Canada (Minister of Citizenship and Immigration), 2015 FC 577
at paras 16-17 [Cai], submits there are three reasons the RAD did not
overcome the presumption of authenticity of foreign government documents. First,
the Applicant says that the summons is for an interrogation, so it may not
contain an offence (in other words, the Applicant might not have been criminally
charged at that point). Second, the Applicant argues that the Red Seal of Issue
on the summons shows the RAD that it received approval from an in-charge
officer, and means it was approved by a person in authority. Third, the
Applicant submits the RAD can only speculate that a private company would cite
to regulation in a letter of termination.
[24]
The general rule is that foreign government
documents are presumptively valid (Cai at paras 16-17). This presumption
cannot be rebutted simply for the reason that fraudulent documents are easy to
obtain. Some evidence or additional reasons are required and there must be a
reason for questioning the absence of security features.
[25]
In this case, the RAD did have a reason to rebut
the government document. Specifically, it reviewed The Public Security
Administration Punishment Law of the People’s Republic of China at article
82. Article 82 requires approval from an in-charge person and to “inform the summons of the reason and grounds for summoning.”
Since these requirements were missing on the Applicant’s summons, the RAD found
this was enough to rebut the presumption.
[26]
The Applicant also argues the document is an
interrogation summons, and likely does not require an actual charge. However, the
RAD came to the conclusion it was a public security summons by comparing the
summons to samples in the documentary package. Next, the RAD reviewed article
82 to determine the features of this type of summons. Though the Applicant offered
other possibilities, the RAD decision regarding the summons was reasonable and
based on evidence.
[27]
While the RAD did not discuss the presence of
the Red Seal of Issue on the summons, in this case, a lack of security
features or stamp is not what led the RAD to find the documents were
fraudulent. After discussing the article 82 requirements, the RAD decision
explains the summons “attempts to cite the correct
section for the issuing of a summons but is deficient in citing the actual
substantive offence.” It is the fact that the document tries, but fails,
to cite the correct offence that led to the RAD finding it is fraudulent.
[28]
As for the letter of termination, the Applicant submitted
the RAD unreasonably declared that the document is fraudulent because no
evidence was put forward that a private company would cite to a regulation. In
this case, the RAD states that there is no reference to which regulation and “according to the Public Security Administration
Punishments Law of the People’s Republic of China the Shouters are not specifically
mentioned.” Without the Shouters mentioned as a reason to be punished in
China, it is reasonable that the company would have cited the regulation relied
upon to terminate the Applicant. The RAD considered this along with the flaws
of the summons and found on a balance of probabilities that the termination
letter was also false. The RAD’s explanation and reasoning is reasonable even
though I may have decided differently that is not the test on a judicial
review.
C.
Did the RAD err in impugning the Applicant’s
credibility because he did not tender his passport or other travel documents?
No Travel Documents
[29]
The Applicant submits the RAD made three errors
while analyzing why he has no passport or travel documents.
[30]
First, the Applicant argues the RAD failed to
provide any reasons why it is unpersuaded by his allegations that a smuggler
told him to destroy his passport.
[31]
Second, the Applicant argues the RAD improperly
relied on Elazi v Canada (Minister of Citizenship and Immigration)
(2000), 191 FTR 205 (FC) because “the issues of identity
and proof of journey which necessitated the passport in Elazi were not
significant in the case at hand.” He also distinguishes his situation by
arguing he was more vulnerable because, while the Elazi applicant had
already arrived in Canada, the Applicant was still in transit.
[32]
Third, the Applicant argues the RAD failed to
consider the jurisprudence involving smugglers. Specifically, the Applicant
submits there is jurisprudence holding that “a negative
inference cannot be drawn against a refugee claimant for following the
smuggler’s instructions.” In support, the Applicant cited to: Kandot
v Canada (Minister of Citizenship and Immigration), 2003 FC 1275; Takhar
v Canada (Minister of Citizenship and Immigration), 1999 Canlii 7544 (FC); Koffi
v Canada (Citizenship and Immigration), 2016 FC 4; Rasheed v Canada
(Minister of Citizenship and Immigration), 2004 FC 587.
[33]
The Applicant has cited to a plethora of case
law illustrating a smuggler may very well instruct refugees to commit certain
actions. Yet the RAD’s decision found that commercial air travel does create
records. These are records the Applicant could have obtained since he travelled
on his own passport. If contacted, the airline may provide duplicate or other
proof of a flight. But as the RAD points out, the Applicant made no attempt to
obtain copies of travel documents after arriving in Canada. I do not find that
requiring the Applicant to try to obtain proof he was present in China during
the material time is unreasonable in this situation.
D.
Did the RAD err in finding that the Applicant
could not exit China on his own genuine passport if he was wanted by the PSB?
[34]
The Applicant submits the RAD erred by
concluding a wanted person cannot flee China using his own passport. The
Applicant says this is an error because the RAD 1) misinterpreted the
documentary evidence; 2) ignored contrary evidence; and 3) ignored binding case
law.
[35]
First, the Applicant argues the documentary
evidence was misinterpreted because the evidence doesn’t say a departure will always
be prevented. In addition, the Applicant alleges his passport was never
scanned, so it couldn’t trigger the Golden Shield database. He says this
distinguishes the evidence because the only examples the RAD cited involved people
with scanned passports.
[36]
Second, the Applicant submits the RAD and RPD both
ignored an entire disclosure package.
[37]
Third, the Applicant relies on case law to
illustrate it is plausible a person may exit China with their own passport
through bribery: Sun v Canada (Minister of Citizenship and Immigration),
2015 FC 387 [Sun]; Ren v Canada (Minister of Citizenship and Immigration),
2015 FC 1402; Zhang v Canada (Minister of Citizenship and Immigration),
2008 FC 533; Yao v Canada (Minister of Citizenship and Immigration),
2016 FC 927; Yang v Canada (Minister of Citizenship and Immigration), 2016
FC 543.
[38]
The Applicant also submitted that “there is relevant and binding case law that holds that
individuals wanted by the authorities in China can bypass border security using
their own passports.”
[39]
In fact, the jurisprudence illustrates the
Applicant is incorrect that there is binding case law. While Sun is
similar factually to the case at bar, recent cases have distinguished it as old
law based on particular evidentiary findings. For example, in Chen v Canada
(Citizenship and Immigration), 2017 FC 539 at para 29 [Chen],
Justice Mosley distinguished Sun because the applicant in Chen did
not provide evidence about bribing customs agents and no explanation was
provided about how the exit from China was arranged. In another case, Yan v
Canada (Minister of Citizenship and Immigration), 2017 FC 146 at
para 20, Justice Brown explained:
the country condition information before
this RAD was more up to date and was not before the Court in the earlier
decisions, specifically in regard to China’s exit controls and the Golden
Shield. In my respectful view, decisions concerning China’s exit controls based
on earlier or different country condition evidence, while important for the
principle that each case must be determined on the evidence, are not
determinative of subsequent applications such as this. These determinations are
both fact-driven and findings in respect of which the RPD and RAD are entitled
to a degree of deference given they are both specialized tribunals.
[40]
In the instant case, the RAD’s decision
addressed the Applicant’s allegation that his passport was not scanned. Based
on the evidence, the RAD found that although the Applicant might get around some
checkpoints, it is highly unlikely he could get around all checkpoints.
For instance, the RAD said since the travel infrastructure is completely
computerized, “it is reasonable the [Applicant] would
not be issued a boarding pass or would otherwise be prevented from exiting
China if he was wanted by the authorities.”
[41]
The general rule is that the decision maker is
assumed to have reviewed the relevant evidence. While the Applicant submits
their disclosure package titled “Refugee Claimants Using Valid Passports to
Flee China” was ignored, the RAD said it reviewed the documentary evidence
before it, but found little documentary evidence with “relevant
information which applies to activities to overcome security measures in place
border controls.”
[42]
In this case, the exit is relevant insofar as it
is proof of whether or not the Applicant is a wanted man in China. Further, the
Applicant’s passport was not just valid, it is his own passport. The Applicant
did not convince me or show me anything specific to indicate that the package
was ignored. This is not a reviewable error.
E.
Did the RAD err in its assessment of the
Applicant’s Sur Place claim?
[43]
The Applicant submits the RAD erred in finding that
attending the Church in Toronto does not put him at risk. He says the evidence
illustrated the Church is the same denomination or philosophy as Shouters and the
RAD misinterpreted the letter the Church in Toronto wrote. He says he is a
practicing Shouter and there is no evidence to the contrary, but that there is
plenty of evidence to prove Shouters are persecuted in China. Therefore, the
Applicant submits the RAD decision was incorrect and unreasonable.
[44]
The Applicant’s submissions did not address the addendum
of the Church in Toronto’s letter:
in regards to the present day so-called ‘Shouters
Church’ sect of China, we would like to state for the record that the
Church in Toronto is not affiliated in any way with the aforementioned
group
[Bold emphasis in original; Underlined
emphasis added.]
[45]
It is open for the RAD to give more or less
weight to the letter or documentary evidence, including this statement from the
Church in Toronto. The Applicant is asking this Court to reweigh the evidence,
which cannot be done. Furthermore, the Applicant himself submitted the letter
containing this addendum information to the RAD. The RAD did not commit a
reviewable error.
[46]
In regards to the Applicant’s submission that
even ordinary Christians face future persecution in China, the Respondent
submitted this argument was brought for the first time at the Federal Court hearing
and so must be disregarded.
[47]
However, since the RAD did decide that “[t]here is no persuasive evidence that he would be unable to
practice Christianity if he returned to China,” it is part of the RAD
decision and reviewable before this Court.
[48]
The RAD decision did not find there was no
evidence, but rather found that there was no persuasive evidence that
the Applicant would be unable to practice Christianity in China. So the
Applicant’s allegations that the RAD ignored this evidence misstate the RAD
decision. I see no reviewable error and again will not reweigh evidence.
[49]
I am dismissing this application as the RAD
decision is reasonable and I did not find any procedural unfairness.
[50]
The parties did not present any Certified Questions
and none arose.
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