Docket: IMM-1188-17
Citation:
2017 FC 936
Toronto, Ontario, October 19, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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JIANFENG LUO
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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
[1]
This Application concerns a Pre-Removal Risk
Assessment (PRRA) application in which the Applicant, a Chinese citizen, makes
a sur place claim for
protection on the basis that he is a Falun Gong practitioner and, if returned
to China, he will face more than a mere possibility of persecution.
[2]
In the decision under review, dated January 10,
2017, a PRRA Officer (Officer) rejected the Applicant’s claim.
[3]
In the PRRA decision, the Officer referred to
the decision by the Refugee Protection Division (RPD), dated November 12, 2014,
where the RPD rejected the Applicant’s claim as a Falun Gong practitioner in
China. In rejecting the Applicant’s claim, the RPD made a particular finding with
respect to the genesis of the Applicant’s interest in Falun Gong. The Applicant
explained he was introduced to Falun Gong by a fellow worker at Toyota, his
place of employment. Without notice, the RPD Member did not accept the
Applicant’s evidence that he was an employee of Toyota and wanted documentary
proof, which the Applicant could not supply. The RPD drew a negative inference against
the Applicant for his failure to provide evidence respecting his employment at
Toyota and, as a result, dismissed the Applicant’s claim for protection, in
part, on this finding.
[4]
With respect to the Applicant’s present
application to the Officer, the Applicant tendered the documentation he did not
have in his possession to offer to the RPD to prove that he worked at Toyota. The
issue then became whether the document complied with s. 113 of Immigration
and Refugee Protection Act (the IRPA), SC 2001, c 27 as new evidence, in
particular, whether the Applicant could have reasonably been expected, in the
circumstances, to have presented the document before the RPD. In the
Applicant’s “Application for Pre-Removal Risk
Assessment” the Applicant made a declaration that the information he
provided in his application is “truthful, complete and
correct” (Certified Tribunal Record, Vol. 1, p. 80). Accordingly, the
Applicant provided the following explanation as to why he did not provide the
documentation to the RPD:
I further submit that this evidence was not
reasonably available to me to present at the RPD hearing or, alternatively,
that I could not reasonably have been expected in the circumstances to have
presented the evidence to the RPD. On the one hand, it is correct to state that
I did not even know that this document was relevant to my refugee claim at the
time of my RPD hearing. Leading up to my RPD hearing, I was chiefly focused on
providing support letters from my fellow practitioners in Canada because that
seemed most important and most relevant to my claim for refugee protection as a
Falun Gong practitioner. It was only after the hearing, and after seeing the
RPD’s findings relating to my ability to provide documents regarding my
employment at Toyota that I understood why these documents were at all relevant
to my claim.
Upon realizing the importance of these
documents, I requested that my parents retrieve the documents on my behalf and
send them to me here in Canada. Nevertheless, my parents refused my request.
They were simply too nervous that the PSB was monitoring them and that the PSB
would increase their harassment were they to find out that my parents were
sending documents to me in Canada. This is the same reason why they refused to
provide me with a support letter or any other type of verification of the
allegations contained in my refuge [sic] claim. As such, my plan was to ask my
parents to give the documents to a friend who was travelling to China and who
would be willing to bring the document to me in Canada by hand. In October
2015, my friend Wang Lan Chen brought the documents to me in Canada.
In light of the above, it is my submission
that the documents are credible, relevant, new, material and not reasonably
available to me at the time of the RPD decision. As such, I humbly submit that
the documents comply with the express statutory and implied terms of IRPA
s. 113.
[Certified Tribunal Record, pp. 17-18]
[5]
The Officer rejected these explanations and
found that the evidence submitted by the Applicant to show that he was an
employee of Toyota could not be considered new evidence. The Officer found as
follows:
I am not persuaded that the applicant was
not aware of the importance of supporting documentation. I am not persuaded
that he requested an opportunity to file supporting documentation with the RPD
post-hearing and I find that he has not provided a reasonable explanation why
he did not.
[Decision, p.5]
[6]
In support of the PRRA application, the
Applicant presented original documentation establishing that, indeed, he was an
employee of Toyota. The authenticity and veracity of the documentation was not
questioned by the Officer. However, in the result, the Officer rejected the
documentation on the basis that it was not “new
evidence”, which in part, resulted in the rejection of the Applicant’s
application.
[7]
In my opinion, the reasons given by the Officer
for the rejection of the evidence is contrary to the evidence on the record as
above mentioned and constitutes a negative credibility finding which is
unsubstantiated. Therefore, I find that the decision under review is
unreasonable.
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