Docket: IMM-1034-14
Citation:
2015 FC 551
Toronto, Ontario, April 28, 2015
PRESENT: The Honourable Madam Justice Simpson
|
BETWEEN:
|
|
YANG, JIANZHU
|
|
JIANG, WEIBIN
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
(Delivered Orally from the Bench in Toronto, Ontario on April 16, 2015)
[1]
This is an Application for Judicial Review of a
decision of the Refugee Appeal Division of the Immigration and Refugee Board [the
RAD] dated January 22, 2014 [the RAD Decision] dismissing an appeal from a
decision of the Refugee Protection Division [the RPD] delivered orally on
September 30, 2013 [the RPD Decision]. The RPD dismissed the Applicants’
refugee claim and the RAD confirmed that the Applicants are neither convention
refugees nor persons in need of protection.
I.
Background
[2]
The principal Applicant and her minor son are
citizens of China who live in Guangdong province. In August 2012, the
principal Applicant joined a Christian house church [the Church] and attended
weekly gatherings. However, between December 2012 and February 2013, the Church
closed because house churches were having problems with Chinese authorities.
[3]
In early February 2013, the Church reopened and
the principal Applicant attended services every two weeks. However, on March
23, 2013, the Public Security Bureau [PSB] raided the Church. The principal
Applicant escaped and went into hiding. She later learned that two members of
her Church had been arrested and that the PSB had gone to her home. She also
learned that she was dismissed from her work, and that her son was dismissed
from school due to her involvement with the Church.
[4]
In June of 2013, with assistance of a smuggler,
the Applicants left China using their own passports.
II.
The RPD Decision
[5]
The RPD did not find the principle Applicant
credible for the following reasons:
1.
She failed to include all three names of her
religion in the narrative in her Basis of Claim Form;
2.
She described the tenets of her religion in a
hesitant and incomplete manner [the Religion Finding]. Notably, she omitted
reference to the group’s belief in the apocalypse;
3.
She exited Beijing on her own passport [the Exit
Finding];
4.
Her answers to questions were generally
unresponsive;
5.
She was unable to give a complete description of
the security precautions at her Church;
6.
She went to work while she was supposedly in
hiding;
7.
She said she did not know the name of the
airline she took to fly out of Beijing, but later said it was Cathay Pacific.
III.
The RAD Decision
[6]
Only items 1 – 3 listed above were appealed to
the RAD. The RAD decided that the RPD’s decision about the names of the
religion was microscopic and unreasonable. The RAD then considered the RPD’s
Religion Finding and found it to be reasonable. The RAD also considered the
RPD’s Exit Finding and concluded that it was reasonable as well.
[7]
It is noteworthy that the RPD did not make any
findings about a risk to the Applicant based on her religious practice in
Canada [the Sur Place Claim]. Nevertheless, although the topic was not
raised by the principal Applicant on the appeal, the RAD independently evaluated
the Sur Place Claim. It examined the record and relied on the RPD’s
credibility findings to conclude that the Applicant did not have a Sur Place
Claim.
IV.
The Issues
[8]
Against this background, there are four issues:
1.
What are the standards of review to be applied
by this Court and by the RAD?
2.
Did the RAD err when it reviewed the RPD’s Religion
Finding using reasonableness as the standard of review?
3.
Did the RAD err when it reviewed the RPD’s Exit
Finding using reasonableness as the standard of review?
4.
Did the RAD err in deciding the Sur Place Claim?
V.
Issue 1 – The Standards of Review
[9]
I rely on my earlier decisions in Bahta v
Canada (Minister of Citizenship and Immigration), 2014 FC 1245 and
Hossain v Canada (Minister of Citizenship and Immigration), 2015 FC 312.
In those cases, I concluded that:
▪
This Court is to review the RAD’s choice of
standard of review using the correctness standard; and
▪
The RAD’s review of the RPD’s decisions requires
an independent fact-based assessment.
VI.
Issue 2 – The RPD’s Religion Finding
[10]
In my view, the RAD applied the wrong standard
of review when it reviewed the Religion Finding. It used reasonableness and,
for this reason, this part of the RAD Decision must be reconsidered.
VII.
Issue 3 – the RPD’s Exit Finding
[11]
In my view, notwithstanding the language used,
the RAD did engage in an independent analysis of the Exit Finding. Further, I
found its conclusion to be reasonable in the absence of any contradictory
documentary evidence which is directly on point. For these reasons, the Exit
Finding need not be reconsidered by the RAD.
VIII. Issue 4 – the Sur Place Claim
[12]
In my view, the RAD lacked jurisdiction to
independently decide the Sur Place Claim. The RAD did not cite any
authority for taking this step, and section 111(1)(b) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA] does not apply because
there was no RPD decision to set aside. In these circumstances, since it felt
that the issue ought to have been decided, the RAD should have referred the Sur
Place Claim back to the RPD for a decision. Given that it did not take
this approach, the RAD’s decision was unreasonable.
IX.
CONCLUSION
[13]
For these Reasons, the application will be
allowed and the RAD Decision will be referred back for a reconsideration of the
Religion Finding. The reconsideration is to be undertaken in accordance with
these Reasons.
[14]
The RAD will be directed to refer the Sur
Place Claim to the RPD for its decision.
[15]
No question was posed for certification for
appeal pursuant to section 74(d) of the IRPA.
Email this Content