Prompt:
Analyze this Refugee Protection Division decision from the Refugee Law Lab Reporter and identify key legal issues:

2023 RLLR 118 Citation: 2023 RLLR 118 Tribunal: Refugee Protection Division Date of Decision: October 31, 2023 Panel: David Jones Counsel for the Claimant(s): Meryam Haddad Country: Lebanon RPD Number: VC3-06815 Associated RPD Number(s): N/A ATIP Number: A-2024-00593 ATIP Pages: N/A DECISION [1] MEMBER: Okay, so we are now back on the record. So this is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the claim of [REDACTED], AKA [REDACTED], AKA [REDACTED], who is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have reviewed and applied the Chairperson’s Guideline and proceedings before the IRB involving sexual orientation, gender identity, and expression, and sex characteristics. ALLEGATIONS [2] The claimant fears persecution if she were to return to either Lebanon or Ukraine because of her SOGIESC identity. This is a summary of the claimant’s allegations which are found in the narrative attached to her Basis of Claim form, including her amendments which are found at Exhibit 5. The claimant is a 23-year-old transgender woman. The claimant’s father is Lebanese and her mother is Ukrainian. The claimant was born and raised in Lebanon. [3] The claimant’s narrative describes the societal abuse she faced growing up. In 2017 when the claimant was 17, she came out to her parents. Claimant’s mother’s side of the family who are primarily in Ukraine, have responded with violence to the claimant. Around 2019, the claimant began XXXX XXXX. The claimant was at university at the time, and this was when she first was getting threats from radical Islamic groups in the university. [4] The claimant described facing other abuses from other students. The claimant’s narratives also described discrimination faced by LGBTIQ people in Lebanon when it comes to healthcare and employment. After the full-scale Russian invasion of Ukraine, the claimant used the Canadian Ukrainian Authorization for Emergency Travel Program to come to Canada on XXXX XXXX, 2022. In April of 2023, the claimant applied for refugee protection. DETERMINATION [5] I find that the claimant is a Convention refugee. ANALYSIS Identity [6] The claimant’s identity as a citizen of both Lebanon and Ukraine has been established on a balance of probabilities by the claimant’s testimony and her passports which are found at Exhibit 1. Nexus [7] The claimant’s SOGIESC identity establishes a nexus to a Convention ground for the claimant based on her membership in a particular social group. I do note that in general, the country conditions in Ukraine have significantly changed with the Russian invasion in February 2022. That said, given my determination, I find it unnecessary to consider any other nexus to the Convention grounds for the claimant in Ukraine because of the Russian invasion. Credibility [8] I find that the claimant was credible. In making that finding and relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness. In this case, I have no reasons to doubt the claimant’s truthfulness. The claimant provided personal documents which support her claim which are found at Exhibit 4. These documents include photographs of the claimant with her boyfriend and copies of messages between her and her current boyfriend, as well as some earlier messages with an ex-boyfriend. [9] The Exhibit also contains letters of support, including from a XXXX from Montreal and XXXX from Lebanon. There are also copies of the claimant’s prescription for her XXXX XXXX and a copy of the claimant’s XXXX report, showing her [REDACTED]. I have no reason to doubt the genuineness of these documents, and since they relate to the claimant’s SOGIESC identity, I give these documents great weight to support her claim. [10] Given the supporting documents, it was unnecessary to have the claimant testify in detail, and in the claimant’s limited testimony, she responded to questions clearly, and there are no inconsistencies or other concerns. I do note that the claimant was in Canada for almost a year before she applied for refugee protection. That said, I make no negative credibility findings against the claimant for the delay. The claimant had valid status during that time in Canada and explained that she believed the program would make her feel safe, but due to discrimination she faced in Canada, she sought greater protection and applied for refugee protection. [11] I accept the claimant’s explanation for the delay, especially given the status she had in Canada at the time. Given the credibility of the claimant and the documents provided, I find that the claimant has established on a balance of probabilities the facts alleged in her claim, including her SOGIESC identity. [12] Objective basis, Lebanon. The country condition documents supports the claimant’s fears of returning to Lebanon. The US Department of State report found at Item 2.1 in the National Documentation Package for Lebanon which is found at Exhibit 3.1, indicates that significant human rights issues in the country include crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons, as well as the existence and enforcement of laws criminal — criminalising consensual same-sex conduct between adults. [13] NDP Item 6.9 is a 2021 report that also describes criminalisation of individuals with diverse SGOIESC in Lebanon. That report also states that and I quote, “transwomen and persons of feminine gender expression are at a particular risk of police targeting and violence.” Further, a 2014 Response to Information Request at NDP Item 6.4 in — or describes societal views towards SOGIESC individuals in Lebanon. While the report indicates that the conditions are somewhat better in Beirut, it still describes how individuals need to conceal their identity in the city to be safe and how SOGIESC individuals are still strongly condemned in the city. [14] The RIR also indicates that 66 percent of doctors in Lebanon view SOGIESC individuals as having an illness that can be treated through psychotherapy. The claimant’s own narrative describes how she was forced by her family to go to a XXXX who was transphobic and who tried to treat her as if she had a mental illness. [15] I find that the claimant has established that the societal discrimination, criminalization, and the ongoing violence towards SOGIESC individuals, including the abuse and discrimination that she has personally suffered from amounts to persecution, and the claimant has established a well-founded fear of persecution because of her SOGIESC identity if she were to return to Lebanon. [16] As such — sorry. Objective basis, Ukraine. The country condition document also support the claimant’s fears of returning to Ukraine. The US Department of State report found at Item 2.1 in the National Documentation Package for Ukraine which is found at Exhibit 3.2 also indicates that a significant human right issue in the country are crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons. [17] The report states that and I quote, “there was societal violence against LGBTQI+ persons, often perpetrated by members of violent radical groups, and authorities often did not adequately investigate these cases or hold perpetrators to account.”. Further, that report states that, and I quote, “law enforcement at times condoned or perpetrated violence against members of the LGBTQI+ community.” [18] This is also indicated in a 2022 report at Item 6.1, that states that and I quote, “anti-LGBT hate speech and hate crimes continued to be a severe issue this year.” And a report at Item 6.3 on violence against the LGBT Q+ community in 2001 indicates that far-right groups continue to purposefully monitor and attack community events. The report also notes that police continue to respond extremely passively to reports of already committed attacks on LGBTQ+ organizations and activities, and the practice of investigating hate crimes and other violations of rights has not changed significantly. [19] I further note that a Freedom House report at Item 2.3 indicate that SOGIESC individuals experience significant societal discrimination and generally do not receive protection from attacks against them. I find that the claimant has established that the ongoing threats of violence and discrimination towards SOGIESC individuals, including the risks the claimant may face from her own family in Ukraine, amount to persecution, and the claimant has established a well-founded fear of persecution because of her SOGIESC identity if she were to return to Ukraine. State Protection [20] I have considered whether state protection is available to the claimant in either country, and I find that there is none. In both countries, the country condition documents describe the violence perpetrated by law enforcement. The country condition documents (inaudible) also indicate that police enforced criminal laws targeting SOGIESC individuals. As such, I find that there is no operationally effective state protection available to the claimant in her particular circumstances. Internal Flight Alternative [21] I have also considered whether the claimant would have a viable internal flight alternative available to her in either Lebanon or Ukraine, and I find that there is none. In making this finding, I note that the country condition documents provide sufficient evidence to show that there is a location in either country, where SOGIESC individuals do not face discrimination, violence, and in Lebanon there is the ongoing risk of criminal charges. [22] With respect — sorry. With the lack of state protection noted above, I find that there is no viable internal flight alternative available to the claimant, as she would face more than a mere possibility of persecution anywhere in either country. CONCLUSION [23] For the foregoing reasons, I determined that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act. The Board therefore accepts her claim. ——— REASONS CONCLUDED ———

Response:
## Analysis of Refugee Decision: 2023 RLLR 118

### Key Issues
that significant human rights issues in the country include crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex perso

### Legal Analysis
The decision analyzes refugee protection criteria by examining: mant is a Convention refugee. ANALYSIS Identity [6] The claimant’s identity as a citizen of both Lebanon and Ukraine has been established on a balance of probabilities by the claimant’s testimony and her passports which are found at Exhibit 1. Nexus [7] The claimant’s SOGIESC identity establishes a nexus to a Convention ground f

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.


Prompt:
Explain how this Federal Court of Appeal of Canada decision clarifies immigration law:

Rana v. Teamsters Local Union No. 938 Court (s) Database Federal Court of Appeal Decisions Date 2023-05-15 Neutral citation 2023 FCA 103 File numbers A-245-22 Decision Content Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent Heard at Toronto, Ontario, on May 15, 2023. Judgment delivered from the Bench at Toronto, Ontario, on May 15, 2023. REASONS FOR JUDGMENT OF THE COURT BY: MONAGHAN J.A. Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on May 15, 2023). MONAGHAN J.A. [1] The applicant, Mr. Rana, seeks judicial review of a decision of the Canadian Industrial Relations Board (2022 CIRB LD 4846) dismissing his application to the Board for reconsideration of an earlier reconsideration decision. That earlier decision dealt with Mr. Rana’s application for reconsideration of a 2019 Board decision (2019 CIRB LD 4112). That 2019 decision dismissed Mr. Rana’s complaint that the respondent union breached its duty of fair representation under section 37 of the Canada Labour Code, R.S.C. 1985, c. L-2. [2] Mr. Rana’s first application for reconsideration, made in 2019, was dismissed by the Board (2019 CIRB LD 4231) and his application for judicial review of that decision was dismissed by this Court (2020 FCA 190). The Supreme Court of Canada dismissed Mr. Rana’s application for leave to appeal: 39510 (1 April 2021). [3] Undaunted, in March 2022, Mr. Rana made an application to the Board for reconsideration of the earlier reconsideration decision, asserting he had obtained relevant information during the assessment of costs proceeding in this Court that followed his unsuccessful judicial review application. [4] The Board determined that Mr. Rana’s second reconsideration application was not timely made and Mr. Rana neither demonstrated due diligence nor provided any explanation for his delay. On that basis the Board dismissed his application. Nonetheless, the Board went on to explain in detail why, even if Mr. Rana’s application had been timely, the Board would not have reconsidered its 2019 decision. [5] Before us, Mr. Rana takes no issue with the Board’s determination that his second reconsideration application was not timely made. Rather, he submits the Board erred because it did not invite the union to respond to the evidence he submitted. This, he submits, is contrary to the principles of natural justice and procedural fairness. [6] There is no merit to Mr. Rana’s submission. The Board concluded that the second reconsideration application was not timely made and chose not to exercise its discretion to extend the time. We see no error in the Board’s exercise of its discretion. [7] As he has done on prior occasions, in this application Mr. Rana attempts to challenge the Board’s prior decisions and the bona fides of the Board and its members towards his complaints and applications. Mr. Rana’s allegations of this nature have been addressed and rejected, both by the Board and this Court, in prior proceedings stemming from the 2019 Board decision. We reiterate that they are completely unfounded. The fact that the Board does not accept Mr. Rana’s arguments or his version of the facts does not constitute bad faith. [8] We will dismiss the application with costs. “K.A. Siobhan Monaghan” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPLICATION FOR JUDICIAL REVIEW OF THE CANADA INDUSTRIAL RELATIONS BOARD’S (THE BOARD) LETTER DECISION 2022 CIRB LD 4846 (THE DECISION) DATED OCTOBER 27, 2022 DOCKET: A-245-22 STYLE OF CAUSE: TARIQ RANA v. TEAMSTERS LOCAL UNION NO. 938 PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 15, 2023 REASONS FOR JUDGMENT OF THE COURT BY: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. DELIVERED FROM THE BENCH BY: MONAGHAN J.A. APPEARANCES: Tariq Rana For The Applicant ON HIS OWN BEHALF Nora Parker For The Respondent SOLICITORS OF RECORD: Wright Henry LLP Toronto, Ontario For The Respondent

Response:
## Analysis of Court Decision: Rana v. Teamsters Local Union No. 938

### Key Issues
CIRB LD 4846) dismissing his application to the Board for reconsideration of an earlier reconsideration decision. That earlier decision dealt with Mr. Rana’s application for recon

### Standard of Review
Rana v. Teamsters Local Union No. 938 Court (s) Database Federal Court of Appeal Decisions Date 2023-05-15 Neutral citation 2023 FCA 103 File numbers A-245-22 Decision Content Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent Heard at Toronto, Ontario, on May 15, 2023. Judgment delivered from the Bench at Toronto, Ontario, on May 15, 2023. REASONS FOR JUDGMENT OF THE COURT BY: MONAGHAN J.A. Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on May 15, 2023). MONAGHAN J.A. [1] The applicant, Mr. Rana, seeks judicial review of a decision of the Canadian Industrial Relations Board (2022 CIRB LD 4846) dismissing his application to the Board for reconsideration of an earlier reconsideration decision. That earlier decision dealt with Mr. Rana’s application for reconsideration of a 2019 Board decision (2019 CIRB LD 4112). That 2019 decision dismissed Mr. Rana’s complaint that the respondent union breached its duty of fair representation under section 37 of the Canada Labour Code, R.S.C. 1985, c. L-2. [2] Mr. Rana’s first application for reconsideration, made in 2019, was dismissed by the Board (2019 CIRB LD 4231) and his application for judicial review of that decision was dismissed by this Court (2020 FCA 190). The Supreme Court of Canada dismissed Mr. Rana’s application for leave to appeal: 39510 (1 April 2021). [3] Undaunted, in March 2022, Mr. Rana made an application to the Board for reconsideration of the earlier reconsideration decision, asserting he had obtained relevant information during the assessment of costs proceeding in this Court that followed his unsuccessful judicial review application. [4] The Board determined that Mr. Rana’s second reconsideration application was not timely made and Mr. Rana neither demonstrated due diligence nor provided any explanation for his delay. On that basis the Board dismissed his application. Nonetheless, the Board went on to explain in detail why, even if Mr. Rana’s application had been timely, the Board would not have reconsidered its 2019 decision. [5] Before us, Mr. Rana takes no issue with the Board’s determination that his second reconsideration application was not timely made. Rather, he submits the Board erred because it did not invite the union to respond to the evidence he submitted. This, he submits, is contrary to the principles of natural justice and procedural fairness. [6] There is no merit to Mr. Rana’s submission. The Board concluded that the second reconsideration application was not timely made and chose not to exercise its discretion to extend the time. We see no error in the Board’s exercise of its discretion. [7] As he has done on prior occasions, in this application Mr. Rana attempts to challenge the Board’s prior decisions and the bona fides of the Board and its members towards his complaints and applications. Mr. Rana’s allegations of this nature have been addressed and rejected, both by the Board and this Court, in prior proceedings stemming from the 2019 Board decision. We reiterate that they are completely unfounded. The fact that the Board does not accept Mr. Rana’s arguments or his version of the facts does not constitute bad faith. [8] We will dismiss the application with costs. “K.A. Siobhan Monaghan” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPLICATION FOR JUDICIAL REVIEW OF THE CANADA INDUSTRIAL RELATIONS BOARD’S (THE BOARD) LETTER DECISION 2022 CIRB LD 4846 (THE DECISION) DATED OCTOBER 27, 2022 DOCKET: A-245-22 STYLE OF CAUSE: TARIQ RANA v. TEAMSTERS LOCAL UNION NO. 938 PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 15, 2023 REASONS FOR JUDGMENT OF THE COURT BY: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. DELIVERED FROM THE BENCH BY: MONAGHAN J.A. APPEARANCES: Tariq Rana For The Applicant ON HIS OWN BEHALF Nora Parker For The Respondent SOLICITORS OF RECORD: Wright Henry LLP Toronto, Ontario For The Respondent

### Legal Analysis
The court's analysis focuses on: to, Ontario, on May 15, 2023. REASONS FOR JUDGMENT OF THE COURT BY: MONAGHAN J.A. Date: 20230515 Docket: A-245-22 Citation: 2023 FCA 103 CORAM: RENNIE J.A. LASKIN J.A. MONAGHAN J.A. BETWEEN: TARIQ RANA Applicant and TEAMSTERS LOCAL UNION NO. 938 Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, O

### Precedential Value
As a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation.


Prompt:
What is the key legal reasoning in this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada?

RAD File / Dossier de la SAR : TC1-04323 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision January 26, 2022 Date de la décision Panel Neil Kaufman Tribunal Counsel for the person who is the subject of the appeal Leonard H. Borenstein Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), dated March 29, 2021, rejecting his claim for refugee protection. He alleges that he fears persecution and/or harm from the Chinese authorities because he is a Falun Gong practitioner and Falun Gong practitioners are persecuted by the state in China. He argues that the RPD erred, and asks the Refugee Appeal Division (RAD) to substitute a positive determination or remit the matter to the RPD for redetermination. He does not seek to rely upon new evidence and does not request an oral hearing. [2] I have conducted an independent assessment of all the evidence, including listening to the audio recording of the RPD hearing, and the arguments of the Appellant. I am reviewing the RPD's decision on the standard of correctness as I do not find the RPD enjoyed a meaningful advantage in the assessment of oral testimony relating to the determinative issue.1 DETERMINATION [3] I dismiss the appeal and confirm the determination of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection. BACKGROUND AND OVERVIEW OF THE APPEAL Appellant's allegations [4] The details of the Appellant's allegations are included in his Basis of Claim Form (BOC),2 including his narrative,3 and in his testimony at the hearing. Briefly, the Appellant alleges that he is (now) 46-years-old, and was a farmer in China. In XXXX 2017, he developed XXXX in his XXXX. He sought medical attention from both Western doctors and Chinese traditional doctors, but obtained no relief. [5] In XXXX 2017, a friend introduced him to Falun Gong to relieve his pain, and despite being concerned because it is banned in China, he obtained permission from his wife to practice, but only in private. After being taught in his home by his friend for a short time he obtained relief from his pain. His friend proposed that he attend a group practice that the friend attended, and with the permission of his wife, he began to do so in XXXX 2017. The group met weekly and rotated between different practitioners' homes. In XXXX 2018, the group decided to stop group practice as the leader heard that the Public Security Bureau (PSB) was about to crack down on Falun Gong practitioners assisted by the neighbourhood committee. The sessions ended, and because of this information, his wife also told him to stop practising Falun Gong. The Appellant did not want to stop practising. He wanted to live somewhere he could practice Falun Gong without risk, and, with his wife's agreement, he decided to go to North America. He hired a smuggler who obtained a Canadian visitor's visa based on false information. He travelled with the smuggler to Canada, arriving on XXXX XXXX, 2018, and claimed refugee protection in January 2019. He resumed practising Falun Gong immediately when he arrived. He alleges that he will continue to practise Falun Gong, even if he is returned to China, and that if he is returned to China, his Falun Gong practice will be discovered by the authorities, resulting in persecution and harm. RPD's findings [6] The RPD found that the Appellant did not credibly establish that he is a genuine Falun Gong practitioner. It found that he did not demonstrate knowledge of Falun Gong that was commensurate with his claimed background and exposure to Falun Gong, that there were gaps in his knowledge of Falun Gong that would not reasonably be expected in someone with his Falun Gong experience, and that he did not demonstrate substantial understanding of the philosophy underlying the practice of Falun Gong. Appellant's arguments [7] The Appellant argues that the RPD erred in its assessment of his identity as a Falun Gong practitioner, which is based on a microscopic and flawed analysis of the Appellant's Falun Gong knowledge, in which the RPD expected the Appellant to display perfection regarding his Falun Gong knowledge. He also argues that the RPD wrongly failed to raise its concerns with the Appellant at the hearing, thereby denying the Appellant the opportunity to address those concerns. NEW ISSUE IDENTIFIED BY THE RAD [8] At the same time this appeal was assigned to me, another appeal (Appeal 2)4 was assigned to me that was based on a BOC narrative containing what appear to be striking similarities to the BOC narrative in this appeal, thereby raising questions and concerns in my mind. Those questions and concerns required that I give the Appellant notice of my concerns and afford him the opportunity to make submissions and/or provide further evidence regarding my concerns and questions. The Appellants in both appeals were represented by the same counsel. However, in order to allow me to fully disclose the basis for my concerns, I considered that it was necessary to disclose to the Appellant in this appeal the BOC narrative from Appeal 2. [9] There is a specific procedure set out in the Refugee Protection Division Rules (RPD Rules)5 to be followed when the RPD seeks to disclose to a claimant personal and other information that it wants to use from any other claim because the claims involve similar questions of fact or if the information is otherwise relevant to the determination of their claim. There is no specific rule in the Refugee Appeal Division Rules6 addressing this situation. However RAD rule 52,7 provides that, in the absence of a provision in the RAD Rules dealing with a matter raised during the proceedings, the RAD may do whatever is necessary to deal with the matter. Pursuant to that rule, the RAD followed, by analogy, the procedure set out in rule 21 of the RPD Rules, and gave notice to the Appellant in Appeal 2 and their counsel, that it intended to use information from their refugee file in Appeal 2 as evidence in the hearing of another claim. As is provided in RPD rule 21, the Appellant in Appeal 2 was given the opportunity to notify the RAD in writing whether they agreed or objected to the disclosure of information in their file in the other claim. The Appellant in Appeal 2 did not respond to that notice. The RAD assessed that there was no serious possibility that disclosing information from Appeal 2 would endanger the life, liberty or security of any person, or was likely to cause an injustice.8 Therefore, the RAD concluded that information from Appeal 2 could be used in this appeal. [10] The RAD then notified the Appellant in this appeal (and their counsel), and the Minister that it would be considering, as a new issue, the existence of similar narratives in Appeal 2 and this appeal, and invited them to make submissions and/or provide further evidence as follows (the Notice)9: * comments and/or explanations regarding the similarities and/or regarding the existence of the other similar narrative; and * submissions as to the significance, if any, of the similarities, and as to what findings, if any, should result from the similarities and/or the existence of the other similar narrative, including, without limitation, whether the similarities and/or the existence of the other similar narrative have any impact on the credibility of the Appellant and his claim. [11] Attached to the Notice were: * a copy of the BOC narrative in this appeal; * an anonymized/redacted copy of the BOC narrative in Appeal 2 (redacted to eliminate unnecessary personally identifying information regarding the identity of the Appellant in Appeal 2);10 and * a comparison table (the Comparison Table) prepared by the RAD highlighting similarities between the two BOC narratives,11 a copy of which is attached as Schedule "A" to these Reasons. [12] The Minister responded to the Notice,12 agreeing that there appear to be striking similarities between the narratives in this appeal and in Appeal 2. The Minister stated that the RAD can properly assess the claim without the assistance of the Minister, and declined to intervene. [13] Counsel for the Appellant responded to the Notice, providing submissions (Submissions).13 I have considered those Submissions in my independent assessment of the evidence. ANALYSIS OF THE MERITS OF THE APPEAL [14] In a decision identified as a RPD and RAD persuasive decision (X (Re)),14 the RAD outlined steps that can be taken in an analysis of similar narratives in a transparent and fair manner. The decision in X (Re) suggests the following principles:15 1. Analysis of a BOC narrative begins with the Maldonado principle, namely, that sworn evidence is presumed to be true unless there is reason to doubt its truthfulness; 2. This presumption may be displaced by a BOC narrative that bears striking resemblance to one or more others. Such striking similarity raises concern with regard to the integrity of the claim; 3. When BOC similarities are found similar enough to call the integrity of the claim into question, the burden of proof shifts to the claimant. The claimant must explain the similarities or establish, in whatever way they choose, on a balance of probabilities, that the narrative is their own; 4. If the claimant establishes the narrative as their own, on a balance of probabilities, the member goes on to fully consider the merits of the claim; 5. If the claimant identifies a new narrative or story, the member would then go on to fully consider the merits of the claim; and 6. When a claimant fails to establish, on a balance of probabilities, that the BOC narrative in question is a true representation of their story, the foundation of the claim may be unsubstantiated and the member may, depending on the circumstances, have sufficient basis to reject the claim without having to make additional credibility findings beyond those inherent in the claimant's explanation or testimony relating to the narrative. [15] Although members of the RPD and RAD are encouraged to adopt the reasoning of persuasive decisions in the interests of consistency and effective decision-making, they are not binding on members of those tribunals, and it is for the panel member, as an independent decision-maker, to decide whether the facts of the case before them are sufficiently similar to those in the persuasive decision, and whether to follow the reasoning in that decision. I have decided that it is appropriate in this case to follow and apply the reasoning in X (Re), because the issues raised in that decision are also raised in this case, and because I agree with the analytical framework and principles set out in that decision. The similarities in the BOC narratives [16] The striking similarities between the two similar narratives are readily apparent from the Comparison Table. Although different words are used at times in describing events, there are also many instances in which the Appellant's narrative uses words and sentences identical or nearly identical to those used in the Appeal 2 narrative, while in others, the same events are somewhat paraphrased. As was the case in X (Re), the Appellant's narrative, while not identical to the narrative in Appeal 2, is replete with identical or near-identical sentences and paragraphs. Most significant, in my assessment, is that, as was the case in X (Re), "the flow, themes, and sequencing of events in the narratives are virtually identical." The two narratives tell substantially the same story, with the same series of events, in the same sequence, using similar and sometimes identical terminology, although sometimes with variation in detail. [17] As was also the case in X (Re), the narratives are duplicative of each other in matters not necessarily central to the claimants' alleged fear of persecution. These include but are not limited to the communications between the claimants and their wives about permission being given to practice Falun Gong and later being revoked, the involvement of cousins who connected them with smugglers, and the involvement of their landlords in Toronto in connecting them with other Falun Gong practitioners. [18] In my assessment, the striking similarities found in both central and non-central elements of the Appellant's story as found in the Comparison Table provide evidence that these narratives are substantially duplicative of each other. I recognize that not every element and paragraph is identical, and that some words are changed when describing similar events. However, the duplication in the stories, including both material and non-material elements of the claim, and in their structure and sequence, is so extensive as to rebut the presumption of truthfulness of the Appellant's narrative. Like the RAD in X (Re), it is not possible - or necessary - for me to conclude from the similarities alone that the Appellant's narrative is not his own, or to determine at this stage whether the Appellant's narrative is real, the narrative in Appeal 2 is real, or whether both narratives are false. As was the case in X (Re), there is a prima facie evident integrity issue with the narrative such that the burden shifts to the Appellant to address this issue, and to credibly establish, on a balance of probabilities, that his narrative is a truthful representation of his own story. [19] Once the apparent integrity issue was flagged, the Appellant was informed of my concern, and given an opportunity to provide an explanation and/or further evidence to establish, on a balance of probabilities, that what he asserts is true. As noted in X (Re), the explanation provided by the Appellant can take any one or more of multiple forms, such as evidence from the merits of the claim, evidence that demonstrates that the narrative is their own (such as testimony about how/when/with whom he wrote the narrative, an affidavit from someone who assisted them with the narrative, or evidence of the transfer of the narrative by email), and many other ways. The point is that, once the presumption of truthfulness is rebutted, the onus shifts to the Appellant to establish that the narrative is probably his. [20] In this case, once the issue was identified to the Appellant, his response did not include any new testimony from him or from anyone else supporting the assertion that the narrative is his. Rather it consists of submissions from counsel. That does not mean that the explanation is insufficient, but it does leave me with no evidence from the Appellant as to the creation of the narrative and his ownership of the narrative, or explaining the similarities. Instead, I am left with explanations from counsel, and it is those explanations I have considered. [21] To begin with, the response provided by counsel for the Appellant begins by stating that the Notice raising the issue of the similar narratives impugns "both the credibility of my clients and the undersigned...." That is not the case. Giving notice to a claimant of a new identified potential credibility issue - something the RAD is required to do - is not impugning the credibility of the Appellant. It is letting him know that there is a concern, and giving him an opportunity to address the concern. It is certainly not impugning the credibility of counsel. While the Notice states that the Appellants in both appeals are represented by the same counsel, that does not impugn counsel's credibility, and there are many potential explanations other than impropriety by counsel, even if the narratives are strikingly similar and even if the Appellant's narrative is not shown to be credible. I neither made nor intended any suggestion of misconduct by counsel. [22] In substance, the explanation provided by counsel for the similarities is that the substance of the story told in both narratives is the story told by almost all claimants whose claims are based on being Falun Gong practitioners from China. Counsel asserts that, to suggest any kind of impropriety or credibility issue as a result of the similarities reflects a "misunderstanding of the nature of refugee claims based on Falun Gong affiliation." Counsel asserts that the fact pattern in these narratives is common to almost every Falun Gong claim; that, when assisting claimants in completing their BOC and providing their narratives, certain questions have to be answered and that their answers disclose that common fact pattern, and "there are only so many ways to set out" those answers; any similarities in language, whether striking or not, are said to be "simply a reflection of that truism." [23] I acknowledge that claims by individuals claiming to be Falun Gong practitioners often contain many factual similarities and similar elements. They are commonly based on allegations that the claimant was introduced by another person to the practice of Falun Gong to address life concerns or illnesses, that they practiced initially alone or with their friend, and then in private group settings, and found the practice beneficial to them. Often it is alleged that their group practices are interrupted by a PSB raid or because of the perceived threat of an impending crackdown by the authorities. Often the claimants allege that they leave China because they are wanted by the authorities, although in others, they leave because they want to continue practising Falun Gong freely. In almost all, they allege that they resumed their Falun Gong practice in Canada. [24] However, the acknowledgment that similar allegations or elements are made by many other claimants does not adequately explain the issues with the similarities between the narratives of the Appellant in this appeal and in Appeal 2. First, the fact that similar core or "boiler-plate" allegations are made by many Falun Gong claimants does not mean that such allegations made by any particular claimant are a true reflection of events experienced by that claimant. Claims by claimants from many countries are often based on similar allegations or fact patterns. More importantly, the significance and role of the narrative in the refugee claim process must be considered. As was stated in X (Re), "[the] narrative portion of the BoC is quite literally the foundation of the claim for refugee status. As is the case in this appeal, and in the vast majority of refugee claims and appeals, virtually all evidence presented in support of a claim, including testimony, flows from the BoC narrative. The BoC narrative is not just any piece of evidence - it underpins everything the claimant is bringing forward in the claim."16 [footnotes omitted]. [25] The narrative is the story of that refugee claimant. It is their recitation of the important events upon which their claim is based. It is not merely a generic summary of conditions in their own country or what others have experienced (although it may certainly contain and be based on such information), but rather, it is highly personalized testimony about what happened to them, and why they claim entitlement to refugee protection. While many claimants undoubtedly and quite properly obtain guidance from professional advisors and others, who are trying to help the claimants to put their best case forward, as to the kind of information that should be included in their narrative, it is not the advisors who are telling the story. Based upon my understanding of counsel's submissions, I understand him to be saying that similar questions are asked of their clients, and counsel may then assist in setting out in the narrative the information provided by their clients. I do not suggest that there is anything improper in doing so, as long as what is stated in the narrative is the claimant's own story. Some repetition of generic statements may be expected in narratives based on similar claim types. [26] I acknowledge that narratives in claims having a similar basis may at times be broadly similar as counsel ensures that each claimant addresses important issues. The problem with the narratives under consideration is that they do not only describe broadly similar stories, but the details of the stories are strikingly similar. The sequence and chronology of events are virtually identical, and the interactions between the Appellants and the other persons are virtually identical. By way of a few examples only:17 - in this appeal: "My friend talked to me about the benefits of Falun Gong and he promised that Falun Gong would help me with my XXXX as well as my mental well-being if I practice Falun Gong exercises regularly and live according to the principles of Truthfulness, Compassion and Forbearance." - in Appeal 2: "My friend talked to me about the benefits of Falun Gong.... My friend promised me that if I practiced Falun Gong regularly and lived according to the Falun Gong principles of Truthful, [sic] Compassion and Forbearance, my physical and mental health would be improved." - in this appeal: "I told my friend I need to talk with my wife first.... I discussed my friend's advice with my wife. After I promised to practice only in private, my wife agreed." - in Appeal 2: "I told my friend I need to talk with my wife first.... I asked my wife's permission to try Falun Gong. After I promised my wife I would only practice in private, my wife agreed." - in this appeal: "I tried to get my wife to practice with me, but she was not interested due to the ban. - in Appeal 2: "As I was receiving benefit from the practice of Falun Gong, I tried to get my wife to practice with me, but due to the ban, my wife was no [sic] interested. - in this appeal: "My friend told me group practice could provide stronger energy field and I could learn more Falun Gong knowledge from experienced practitioners as Falun Gong materials were banned by Chinese government." - in Appeal 2: "My friend told me that in group practice the energy field would be stronger. Also, as Falun Gong materials are banned in China, I could learn more Falun Gong knowledge from the leader. [27] Counsel for the Appellant points out in his submissions that there are differences in the claims, and points to the different ages of the Appellants, their different provincial origins, their different dates of arrival in Canada, and the differing genders of the smugglers they claim to have used. I would add to this list other differences, such as the "other basic Falun Gong knowledge" they each claim to have been taught by their friends. Counsel submits that "a detailed review of the two files in question will reveal a list of additional facts to support the obvious conclusion that both of these men made refugee claims based on circumstances that were personal to each of them, based on their own life's circumstances," although no details of such additional facts are provided. I do not agree. I acknowledge that some details are different, and that the Appellants in the two appeals are not the same person. However, in my assessment, differences in some details do not detract from the striking linguistic, stylistic, and chronological similarities that are apparent when comparing the narratives. [28] As noted previously, the Appellant provided no new evidence explaining the similarities and/or showing that the narrative was created by him. Although I have been open to the possibility that there is a valid reason for the similarities, and gave the Appellant the opportunity to provide submissions and/or evidence showing such a reason, in my assessment, the explanation by counsel that there are only so many ways to describe events that are common to many Falun Gong claims, and the Appellants were represented by the same counsel, does not provide such a valid reason. I find that the offered explanation does not explain or overcome the improbable coincidence of the narratives being similar in so many respects.18 I find that the Appellant's credibility is impugned when something so personal as the facts described in the narrative are so strikingly similar to another unrelated narrative,19 and when such similarity is not reasonably explained. Summary [29] I find that the Appellant has not satisfied his onus of credibly establishing, on a balance of probabilities, the truth of his explanation for the striking similarities in the narratives in this appeal and Appeal 2, or that the narrative in this appeal is the Appellant's own. The absence of evidence from the Appellant explaining the similarities in the narratives or establishing that his narrative is his own suggests that such evidence does not exist because he did not write his own narrative. [30] Because of my findings regarding the narrative, it is unnecessary for me to consider further the RPD's other credibility findings or the Appellant's arguments concerning those findings. Given the centrality of the BOC narrative in a refugee claim, the finding that the Appellant's BOC narrative is not his own automatically undermines the allegations underlying the claim. This includes his allegation that he became a Falun Gong practitioner in China. He alleges that his practice of Falun Gong in Canada is a continuation of his practice in China, and does not allege a new impetus to become a Falun Gong practitioner in Canada. Therefore, even if the RPD's credibility findings regarding the Appellant's lack of knowledge regarding Falun Gong principles and practice are incorrect, that does not change my conclusion regarding the Appellant's lack of credibility resulting from my finding that the narrative is not his. Further, given that he has not established that the narrative is his, he has not established that he is likely to engage in Falun Gong practice should he return to China. [31] The RPD found that the Appellant did not establish a sur place claim. That finding is not challenged in this appeal. Although the finding is unchallenged, having considered all the evidence, I have come to the same conclusion as the RPD. [32] I am not satisfied that the Appellant has established that he faces a serious possibility of persecution on a Convention ground or a risk of subsection 97(1) harm if he returns to China. CONCLUSION [33] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.20 (signed) Neil Kaufman Neil Kaufman January 26, 2022 Date 1 Canada (M.C.I.) v. Huruglica, 2016 FCA 93, at para. 103. 2 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 11-26. 3 Ibid., at pp. 21-26. 4 The RAD file number for Appeal 2 is TC1-02963. The RPD decision in that appeal was issued on March 17, 2021. 5 Refugee Protection Division Rules, SOR/2012-256 (RPD Rules), rule 21. 6 Refugee Appeal Division Rules, SOR/2012-257 (RAD Rules). 7 Ibid., rule 52. 8 RPD Rules, sub-rule 21(5). 9 Exhibit RAD-1, Revised Notice to Appellant and Minister - RAD Member's Direction, December 7, 2021 (the Notice). 10 Ibid., Redacted copy of BOC narrative, Appeal 2. 11 Ibid., the Comparison Table. A copy of this table is attached as Schedule "A" to these Reasons. 12 Exhibit M-1, Minister's response to Direction, December 9, 2021. 13 Exhibit P-3, Appellant's response to Direction, December 22, 2021 (Submissions). 14 X (Re), 2018 CanLII 101516 (CA IRB) (X (Re)), application for leave and judicial review dismissed (October 15, 2018, Federal Court File IMM-2291-18); Notice of Identification of Persuasive Decision - RAD TB7-16268, February 27, 2019, https://irb.gc.ca/en/decisions/Pages/persuasive-decision-boc.aspx (Notice of Identification). 15 Ibid., Notice of Identification. 16 X (Re), supra note 14, at para. 38. 17 Other examples are apparent from the Comparison Table. 18 For a similar conclusion by the RAD in another case involving similar narratives, see X (Re), 2019 CanLII 142489 (CA IRB), leave to appeal dismissed, November 11, 2020, Federal Court File No. IMM7368-19, per Elliott J. (X (Re) 2). 19 X (Re), supra, note 14, para. 60. 20 Pursuant to paragraph 111(1)(a) of the IRPA. SCHEDULE "A" Comparison of narratives TC1-02963 TC1-04323 I was a farmer in China for most time of my life. [The claimant does not state his occupation in his narrative, but testified at the hearing that he was a farmer in China] I began to suffer from XXXX in XXXX 2017.... I went to seek help from both Western and Chinese Doctors for about half a year...but those medical treatments could not give me much help. The pain caused me to have bad sleep and short temper. In XXXX 2017, I had XXXX. I sought assistance from both Chinese and Western doctors for about XXXX months but to no avail. My sickness made me short-tempered. In middle XXXX 2017, my friend LZ came to my home to visit me. After he heard about my complaint about my sickness, my friend introduced me to Falun Gong. In XXXX 2017, my friend, ML, introduced me to Falun Gong when he heard me complain about my sickness during visiting my home My friend told me that he was a Falun Gong practitioner for XXXX months and he practiced Falun Gong for his XXXX pain. My friend talked to me about the benefits of Falun Gong...My friend promised me that if I practiced Falun Gong regularly and lived according to the Falun Gong principles of Truthful, Compassion and Forbearance, my physical and mental health would be improved. My friend told me he practiced Falun Gong XXXX months ago for his XXXX pain and after XXXX months practicing he had got much relief from his XXXX pain. My friend talked to me about the benefits of Falun Gong and he promised that Falun Gong would help me too with my XXXX as well as my mental well-being if I practice Falun Gong exercises regularly and live according to the principles of Truthfulness, Compassion and Forbearance. I was surprised by what my friend told me as I knew Falun Gong was banned by the Chinese government. I asked my friend if he was concerned about violating the ban, and my friend told me that he only practiced at his home and other practitioners' homes and therefore he had nothing to worry about.... I told my friend I need to talk with my wife first. I was concerned because Falun Gong is banned in China. My friend told me if I only practiced Falun Gong in private I would have nothing to worry about. I told my friend I need to talk with my wife first. I asked my wife's permission to try Falun Gong. After I promised my wife I would only practice in private, my wife agreed. I discussed my friend's advice with my wife. After I promised to practice only in private, my wife agreed. A few days after my friend's introduction of Falun Gong, my friend began to come to my home to teach me the Falun Gong exercises and some Falun Gong basic knowledge. It took me about two weeks to feel comfortable to practice the exercises on my own. In addition to the Falun Gong exercises and knowledge, my friend also taught me how to send "Righteous Thoughts" to put an end to the persecution of Falun Gong practitioners by the Chinese government. After I felt comfortable to practice the five sets of Falun Gong exercises, I practiced every night at my own home and send "Righteous Thoughts" four times a day. A few days after my friend's introduction of Falun Gong, he began to go to my home to teach me the five sets of Falun Gong exercises. In addition, my friend also taught me some Falun Gong basic knowledge such as the transformation of Kama [sic]to Virtue and getting rid of attachments. It took me XXXX weeks of instruction to learn from my friend to be able to do the exercises properly on my own. I then practiced the Falun Gong exercises on my own at home. After XXXX months of regular practice, I got relief from my XXXX pain. Besides the physical improvement I also felt more energetic. XXXX months after I practiced Falun Gong, my XXXX improved and I felt more energy. As I was receiving benefit from the practice of Falun Gong, I tried to get my wife to practice with me, but due to the ban my wife was no [sic] interested. I tried to get my wife to practice with me, but she was not interested due to the ban. In XXXX 2018, my friend invited me to join his Falun Gong practice group for more benefit. My friend told me that in group practice the energy field would be stronger. Also, as Falun Gong materials are banned in China, I could learn more Falun Gong knowledge from the leader.... After getting support from my wife again, I joined the Falun Gong practice group in XXXX 2018. The group practice was held once every weekend (Saturday or Sunday) at different members' homes. In XXXX 2017, under my friend's suggestion I joined a Falun Gong practice group after getting my wife's permission again. My friend told me group practice could provide stronger energy field and I could learn more Falun Gong knowledge from experienced practitioners as Falun Gong materials were banned by Chinese government. My group practice which rotated between practitioners' homes was held on Saturdays or Sundays. The group practice stopped in XXXX 2018 when the leader heard the PSB would crackdown against Falun Gong and other illegal activities. I regularly attended the group practice until XXXX 2018 when we decided to stop group practice as the leader heard the PSB were going to crack down on Falun Gong practitioners assisted by neighbourhood committee. After my wife heard this information, she told me to stop practicing Falun Gong even at our own home. I informed my wife and that news made my wife very nervous. She told me to stop practicing Falun Gong before I got into real trouble. I do not want to give up Falun Gong as it already brought me lots of benefits. I talked with my wife and she would not permit me to practice Falun Gong at our own home. I decided that I wanted to move to another country where Falun Gong is free to practice and if I could get status in that country I would bring my wife and our daughter to join me. As Falun Gong already brought me much benefits I did not want to give up practicing. After several discussions with my wife I decided to go to North America to practice Falun Gong without any risk. I told my wife that once I am settled, I would arrange for her and our son to join me. My younger cousin found a snakehead to help me to leave China. The snakehead improperly obtained a Canadian Visitor Visa for me on XXXX XXXX, 2018 by using false information My cousin advised me to use a snakehead to help me and he offered to find a snakehead for me...The snakehead helped me obtain a Canadian Visitor Visa in XXXX 2018 by using some false information on the Visa application. On XXXX XXXX, 2018 I left China and flew to Toronto, Canada accompanied by the snakehead as I had never been outside of China before. On XXXX XXXX 2018 I, accompanied by the snakehead, flew from China to Toronto as I wanted the snakehead to help me get settled in Toronto. The snakehead took my original passport after he brought me to my rental place in Scarborough, Canada. The snakehead gave me copies of my passport's photo page and Canadian Visa page for my records. He told me that I have valid status in Canada for the next six months and if I want I could find an immigration consultant to consult on how to remain in Canada permanently. After we left Toronto PIA, the snakehead brought me to my rental room in Toronto. As I still owed her some money, she directed me to give her my original passport to hold. I asked the snakehead to make me a copy of the photo page and Canadian Visa page of my passport so I would have a record. Before the snakehead left, she told me that my Canadian Visitor Visa allowed me to stay in Canada legally for six months and I should find an immigration consultant to help me going forward. On the day I arrived in Canada, I resumed my practice of Falun Gong immediately in my rental room. I told my landlord that I was a Falun Gong practitioner and he informed me I would find other Falun Gong practitioners at XXXX XXXX. I went to XXXX XXXX in late XXXX 2018 and began to practice at XXXX XXXX with other practitioners several times each week. Once I arrived in Canada, I resumed Falun Gong practice. A few days later, I found a Falun Gong practice group in XXXX XXXX through my landlord. Since late XXXX 2018 I have been practicing Falun Gong at XXXX XXXX with other practitioners several times a week and on my own at home. I also purchased Master Li's book Zhaun [sic] Falun in XXXX bookstore at XXXX XXXX. Now I already finished the first talk of Zhaun Falun. It is hard for me to understand because I only have XXXX years' education. I purchased Master Li's book Zhuan Falun from XXXX bookstore in XXXX XXXX and I am on the second talk. This is the first time that I had access to Falun Gong material. Zhuan Falun is difficult for me to understand. I am trying my best. In the middle of XXXX 2018 I found an immigration consultant through a Falun Gong practitioner. I told the immigration consultant that I am a Falun Gong practitioner from China and I want to practice Falun Gong openly and freely in Canada for the rest of my life. The immigration consultant told me I could file a refugee claim in Canada based on my Falun Gong identity. I went to see an immigration consultant in late of XXXX 2018. I told the consultant I am a Falun Gong practitioner from China and I want to practice Falun Gong openly and freely in Canada permanently. The immigration consultant told me I could file a refugee claim in Canada. The immigration consultant brought me to see an immigration lawyer in middle XXXX 2018. I completed my refugee claim forms with the lawyer in middle December 2018. The immigration consultant referred me to an immigration lawyer. I, the immigration consultant and my lawyer together finished my refugee claim application forms in January 2019. It is impossible for me to practice Falun Gong openly and freely in my own country. My wife also refuses to allow me to practice in my own home. I cannot imagine the Chinese government removing the ban on Falun Gong for the rest of my life. It is impossible for me to practice Falun Gong openly and freely in my home country and I cannot imagine the Chinese government will remove the ban on Falun Gong in my lifetime. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC1-04323 RAD.25.02 (August 20, 2021) Disponible en français 2 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.25.02 (August 20, 2021) Disponible en français

Response:
## Analysis of Refugee Decision: TC1-04323

### Key Issues
soning in X (Re), because the issues raised in that decision are also raised in this case, and because I agree with the analytical framework and principles set out in that decision

### Legal Analysis
The decision analyzes refugee protection criteria by examining: d on a microscopic and flawed analysis of the Appellant's Falun Gong knowledge, in which the RPD expected the Appellant to display perfection regarding his Falun Gong knowledge. He also argues that the RPD wrongly failed to raise its concerns with the Appellant at the hearing, thereby denying the Appellant the opportunity to add

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.


Prompt:
What legal errors did the Federal Court of Appeal identify in this Federal Court of Appeal of Canada decision?

Public Service Alliance of Canada v. Canada (House of Commons) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-24 Neutral citation 2023 FCA 110 File numbers A-122-21 Decision Content Date: 20230524 Docket: A-122-21 Citation: 2023 FCA 110 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: PUBLIC SERVICE ALLIANCE OF CANADA Applicant and HOUSE OF COMMONS Respondent Heard at Ottawa, Ontario, on May 16, 2023. Judgment delivered at Ottawa, Ontario, on May 24, 2023. REASONS FOR JUDGMENT BY: RIVOALEN J.A. CONCURRED IN BY: ROUSSEL J.A. GOYETTE J.A. Date: 20230524 Docket: A-122-21 Citation: 2023 FCA 110 CORAM: RIVOALEN J.A. ROUSSEL J.A. GOYETTE J.A. BETWEEN: PUBLIC SERVICE ALLIANCE OF CANADA Applicant and HOUSE OF COMMONS Respondent REASONS FOR JUDGMENT RIVOALEN J.A. [1] This is an application for judicial review of the arbitral award rendered on April 21, 2021 (2021 FPSLREB 45) by the Federal Public Sector Labour Relations and Employment Board (the Board) established pursuant to section 50 of the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp) (the Act). [2] In its decision, the Board rejected the applicant’s proposal seeking a new appendix to the collective agreement between the employees of the House of Commons in the Reporting Sub-Group and Text Processing Sub-Group (the bargaining unit) and the House of Commons. The proposal consisted of a Memorandum of Understanding that included a lump sum payment of $2,500 to each member of the bargaining unit for general damages to compensate for the stress, aggravation, and pain and suffering experienced related to the employer’s implementation of the Phoenix pay system. The applicant justified the proposal in an attempt to mirror an agreement between tens of thousands of employees from the core public administration and the Treasury Board (2020 Phoenix settlement agreement). [3] The parties agree that the standard of review of the Board’s decision is reasonableness. The question before the Court is whether the arbitral award was reasonable within the meaning of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov]. [4] The applicant submits that the arbitral award is unreasonable and must be set aside. The applicant says that the Board rejected its proposal for the lump sum payment of $2,500 on the erroneous basis that it was not convinced that the implementation issues experienced by members employed by the House of Commons were sufficiently widespread to justify an award of damages when compared to the issues experienced by the employees of the core public administration. [5] The applicant argues that the arbitral award is based on a flawed premise that proof of stress, aggravation, or pain and suffering caused by the Phoenix pay system is required and is unreasonable for this reason. In particular, the applicant submits that the Board failed to grasp the distinction that, in the 2020 Phoenix settlement agreement, there was no requirement for the applicant’s members to provide evidence of stress, aggravation, or pain and suffering related to a specific Phoenix-related pay problem in order to receive general damages of $2,500. The applicant’s rationale is that being under the Phoenix pay system is sufficient to establish the evidence of stress based on the potential for serious pay problems. As it did before the Board, the applicant also points to the example of employees working for the Canada Revenue Agency (CRA), who were under the Phoenix pay system, having received the lump sum payment of $2,500 without having experienced any Phoenix-related pay problems. The applicant further argues that, in its analysis on this point, the Board improperly treated general damages as if they were part of total compensation. [6] I am of the view that the applicant’s arguments cannot stand. I see no basis to conclude that the Board’s decision was unreasonable. [7] Under the judicial review framework set out in Vavilov, a reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para. 85). The burden is on the party challenging a decision to show that it is unreasonable, a conclusion that requires showing that the decision contains a serious flaw. In addition, the reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker. Reviewing courts must also ordinarily refrain from deciding the issue that was before the decision maker and must respect the decision maker’s role and expertise (Vavilov at paras. 75, 83, 100, 125). [8] The Board, in this case, had wide authority—under the interest arbitration process—to resolve matters referred to it, determine the appropriate terms and conditions of employment, and impose those terms via a binding award. This Court has recognized that interest arbitrators are afforded wide discretion to settle the terms of the parties’ collective agreement, and the decisions they make are almost always policy determinations and rarely involve legal issues. Additionally, this Court has recognized that the need for finality, which animates the need for deference in labour cases generally, is particularly acute in interest arbitration cases (Laurentian Pilotage Authority v. Pilotes du Saint-Laurent Central Inc., 2018 FCA 117, 299 A.C.W.S. (3d) 235 at paras. 60-61, 63). [9] As its reasons disclose, the Board took into account the factors set out in section 53 of the Act. It weighed the evidence and considered the proposals made by the parties. At paragraphs 75 to 83 of its reasons, the Board set out a coherent and rational basis for its decision to reject the proposal for a lump sum payment of $2,500 to each member of the bargaining unit. Weighing all considerations, the Board was not prepared to establish the precedent of matching the 2020 Phoenix settlement agreement in the arbitral award and did not accept that matching a damage award designed to compensate employees for the specific problems that occurred in the Treasury Board’s jurisdiction was justified by a comparability argument without having clearer evidence that problems of similar or substantial extent occurred at the House of Commons. [10] Similarly, the Board was not convinced by the situation of the employees of the CRA who were entitled to the lump sum. The Board noted, at paragraph 77 of its reasons, that the CRA employees received a smaller general economic increase in the third and fourth years of their collective agreement than that awarded by the Board in its arbitral decision. It was within the Board’s ambit to consider total compensation in conducting its comparability analysis with respect to the CRA employees. [11] Turning specifically to the evidence on the record, I note that the evidence submitted by the applicant before the Board consisted of a sample of four employees of the bargaining unit (out of a total of 62) who experienced pay issues during the Phoenix implementation. There was no evidence to substantiate that members suffered stress, aggravation, or pain and suffering because of pay-related issues. [12] In response, the evidence submitted by the respondent before the Board was that it implemented efficient and flexible mechanisms to mitigate against any negative impacts the Phoenix pay system caused to its employees. In addition, the respondent offered extensive reasons for opposing the lump sum payment proposal. It outlined the history of the Phoenix implementation in the core public administration and provided reasons why that history differed considerably from that experienced by employees of the House of Commons. Also, of the four samples provided by the applicant, three were not related to Phoenix issues but were rather because of human error. [13] As previously mentioned, the Board considered and weighed the proposals from both sides, as it was required to do. There was no evidence before it that any of the applicant’s members working at the House of Commons had experienced stress, aggravation, or pain and suffering from Phoenix-related pay problems, let alone problems of similar or substantial extent to those experienced by the employees of the core public administration. [14] Thus, I am of the view that the applicant has not met its burden to show that the Board’s decision was unreasonable. I see no serious flaw in the Board’s reasoning, based on the record that was before it and the positions taken by both parties in the arbitral dispute. The arbitral award is based on an internally coherent and rational chain of analysis that is justified in relation to the record and the Board’s authority under the Act. [15] The applicant is asking this Court to reweigh the evidence that was before the Board, which is not its role. I see no reason to intervene. [16] For these reasons, I would dismiss the application for judicial review with costs. "Marianne Rivoalen" J.A. “I agree. Sylvie E. Roussel J.A.” “I agree. Nathalie Goyette J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-122-21 STYLE OF CAUSE: PUBLIC SERVICE ALLIANCE OF CANADA v. HOUSE OF COMMONS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 16, 2023 REASONS FOR JUDGMENT BY: RIVOALEN J.A. CONCURRED IN BY: ROUSSEL J.A. GOYETTE J.A. DATED: MAY 24, 2023 APPEARANCES: Andrew Astritis Simcha Walfish For The Applicant Carole Piette Jean-Michel Richardson For The Respondent SOLICITORS OF RECORD: Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Ottawa, Ontario For The Applicant Emond Harnden LLP/s.r.l. Ottawa, Ontario For The Respondent

Response:
## Analysis of Court Decision: Public Service Alliance of Canada v. Canada (House of Commons)

### Key Issues
inced that the implementation issues experienced by members employed by the House of Commons were sufficiently widespread to justify an award of damages when compared to the issues

### Standard of Review
3] The parties agree that the standard of review of the Board’s decision is reasonableness. The question before the Court is whether the arbitral award was reasonable within the me

### Legal Analysis
The court's analysis focuses on: t further argues that, in its analysis on this point, the Board improperly treated general damages as if they were part of total compensation. [6] I am of the view that the applicant’s arguments cannot stand. I see no basis to conclude that the Board’s decision was unreasonable. [7] Under the judicial review framework set out in

### Precedential Value
As a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation.


Prompt:
What is the key holding of this Federal Court of Appeal of Canada decision?

Canadian Tire Corporation Ltd. v. Canada (Border Services Agency) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-30 Neutral citation 2023 FCA 117 File numbers A-3-22 Decision Content Date: 20230530 Docket: A-3-22 Citation: 2023 FCA 117 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: CANADIAN TIRE CORPORATION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent Heard at Ottawa, Ontario, on May 30, 2023. Judgment delivered from the Bench at Ottawa, Ontario, on May 30, 2023. REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY J.A. Date: 20230530 Docket: A-3-22 Citation: 2023 FCA 117 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: CANADIAN TIRE CORPORATION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on May 30, 2023). DE MONTIGNY J.A. [1] At issue in this appeal is the proper classification under the Customs Tariff of goods described as “marine winch straps” (the goods at issue). They comprise both a textile strap and a forged metal hook at one end of the strap, which is used to fasten the strap to the load that is to be moved by operation of a winch (sold separately). The sole issue before the Canadian International Trade Tribunal (the Tribunal), and now before us on appeal, is whether the goods should be classified under heading 59.11 as “Textile products and articles, for technical uses, specified in Note 7 to this Chapter” or under heading 63.07 as “Other made up articles, including dress patterns”. The appellant argues that these goods should be classified under heading 59.11. Once the goods are placed under the correct heading, the parties do not dispute the applicable subheading or specific tariff item. [2] In its Decision of November 9, 2021 (Canadian Tire Corporation Limited v. President of the Canada Border Services Agency, AP-2020-20), the Tribunal confirmed the Canada Border Service Agency’s decision that the goods at issue do not fall within heading 59.11, but are rather classifiable under heading 63.07. The Tribunal came to that conclusion on the basis of Legal Note 7 to Section XI of Chapter 59 of the Customs Tariff (S.C. 1997, c. 36), which prescribes that only goods falling within either Note 7(a) or Note 7(b) may be classified under heading 59.11. The Tribunal further found that Note 7(b) was the only one being applicable to the goods at issue. It reads as follows: Textile articles (other than those of headings 59.08 to 59.10) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper-making or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts. [3] While recognizing that the goods at issue were both “textile articles” and “used for technical purposes”, the Tribunal nevertheless found that they could not be classified under heading 59.11 because explanatory note (B) to heading 59.11 requires that goods must remain “essentially articles of textile” to fall under that heading. Relying on earlier jurisprudence considering the nature of an “accessory”, the Tribunal determined that the metal hook would have to be “optional, incidental or a mere accessory” for the goods to be “essentially” an article of textile. Since the hook is essential to the operable functionality of the marine winch strap and cannot be removed or replaced with another type of fastener, the Tribunal found that these goods were not classifiable under heading 59.11 but fell under heading 63.07. [4] Before us, the appellant claims that the Tribunal erred in applying heading 59.11 to the goods at issue, and contends that the marine winch straps are indeed essentially articles of textile. Yet the application of a provision of the Customs Tariff to a set of facts is a mixed question of fact and law, and is not properly before us. Pursuant to subsection 68(1) of the Customs Act, R.S.C. 1985, c. 1, this Court may only hear appeals from decisions of the Tribunal based on questions of law. We have not been persuaded that the Tribunal erred in its application of the General Rules for the Interpretation of the Harmonized System found in the Schedule to the Customs Tariff, and in particular of Rule 1 and of its interplay with Rule 2. [5] Even if we were prepared to entertain the appellant’s arguments, we have not been convinced that the Tribunal erred in its interpretation of Legal Notes 7(b) or 8(a). With regard to Note 7(b), the appellant argues that the Tribunal failed to consider that “paper-making machines” is but one example of the type of machine that the goods can be attached to in order to benefit from heading 59.11. A careful reading of the Tribunal’s reasons belies that claim. Not only did the Tribunal italicize the words “of a kind used in paper-making or similar machines” when quoting Legal Note 7(b) (at para. 72 of its reasons), but it also stressed in the following paragraph that the marine winch is not “of a kind” used for paper-making machines and observed that there was no evidence that the hand operated winch is used in conjunction with the goods at issue is “similar” to a paper-making machine. [6] As for Legal Note 8(a), the appellant contends that the Tribunal erred in relying on Legal Note 8, pursuant to which goods that are “made up articles” within the meaning of Legal Note 7 are prima facie excluded from Chapter 59. There is no issue that the goods are “made up articles”; what the appellant claims is that the Tribunal paid no attention to the words “except where the context otherwise requires” in Legal Note 8. Once again, this argument is without merit because the Tribunal did advert to these words and expressly found there to be “no probative evidence … concerning the nature of any context that would render legal note 8 (sic) inapplicable or irrelevant to the goods at issue or to the classification analysis” (at para. 84). Moreover, the appellant failed to provide any element of context that was put forward and ignored by the Tribunal. [7] For all of the foregoing reasons, we are therefore of the view that the Tribunal did not err in finding that heading 59.11 does not apply to the goods at issue, and that the goods at issue are more properly classifiable under heading 63.07. As such, the appeal will be dismissed, with costs. "Yves de Montigny" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-3-22 STYLE OF CAUSE: CANADIAN TIRE CORPORATION LTD. v. PRESIDENT OF THE CANADA BORDER SERVICES AGENCY PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: May 30, 2023 REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. DELIVERED FROM THE BENCH BY: DE MONTIGNY J.A. APPEARANCES: Michael Kaylor For The Appellant Sarah-Dawn Norris Taylor Andreas For The Respondent SOLICITORS OF RECORD: Lapointe Rosenstein Marchand Melançon, LLP Montréal, Quebec For The Appellant Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent

Response:
## Analysis of Court Decision: Canadian Tire Corporation Ltd. v. Canada (Border Services Agency)

### Key Issues
to a set of facts is a mixed question of fact and law, and is not properly before us. Pursuant to subsection 68(1) of the Customs Act, R.S.C. 1985, c. 1, this Court may only hear

### Standard of Review
Canadian Tire Corporation Ltd. v. Canada (Border Services Agency) Court (s) Database Federal Court of Appeal Decisions Date 2023-05-30 Neutral citation 2023 FCA 117 File numbers A-3-22 Decision Content Date: 20230530 Docket: A-3-22 Citation: 2023 FCA 117 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: CANADIAN TIRE CORPORATION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent Heard at Ottawa, Ontario, on May 30, 2023. Judgment delivered from the Bench at Ottawa, Ontario, on May 30, 2023. REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY J.A. Date: 20230530 Docket: A-3-22 Citation: 2023 FCA 117 CORAM: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. BETWEEN: CANADIAN TIRE CORPORATION LTD. Appellant and PRESIDENT OF THE CANADA BORDER SERVICES AGENCY Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario, on May 30, 2023). DE MONTIGNY J.A. [1] At issue in this appeal is the proper classification under the Customs Tariff of goods described as “marine winch straps” (the goods at issue). They comprise both a textile strap and a forged metal hook at one end of the strap, which is used to fasten the strap to the load that is to be moved by operation of a winch (sold separately). The sole issue before the Canadian International Trade Tribunal (the Tribunal), and now before us on appeal, is whether the goods should be classified under heading 59.11 as “Textile products and articles, for technical uses, specified in Note 7 to this Chapter” or under heading 63.07 as “Other made up articles, including dress patterns”. The appellant argues that these goods should be classified under heading 59.11. Once the goods are placed under the correct heading, the parties do not dispute the applicable subheading or specific tariff item. [2] In its Decision of November 9, 2021 (Canadian Tire Corporation Limited v. President of the Canada Border Services Agency, AP-2020-20), the Tribunal confirmed the Canada Border Service Agency’s decision that the goods at issue do not fall within heading 59.11, but are rather classifiable under heading 63.07. The Tribunal came to that conclusion on the basis of Legal Note 7 to Section XI of Chapter 59 of the Customs Tariff (S.C. 1997, c. 36), which prescribes that only goods falling within either Note 7(a) or Note 7(b) may be classified under heading 59.11. The Tribunal further found that Note 7(b) was the only one being applicable to the goods at issue. It reads as follows: Textile articles (other than those of headings 59.08 to 59.10) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper-making or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts. [3] While recognizing that the goods at issue were both “textile articles” and “used for technical purposes”, the Tribunal nevertheless found that they could not be classified under heading 59.11 because explanatory note (B) to heading 59.11 requires that goods must remain “essentially articles of textile” to fall under that heading. Relying on earlier jurisprudence considering the nature of an “accessory”, the Tribunal determined that the metal hook would have to be “optional, incidental or a mere accessory” for the goods to be “essentially” an article of textile. Since the hook is essential to the operable functionality of the marine winch strap and cannot be removed or replaced with another type of fastener, the Tribunal found that these goods were not classifiable under heading 59.11 but fell under heading 63.07. [4] Before us, the appellant claims that the Tribunal erred in applying heading 59.11 to the goods at issue, and contends that the marine winch straps are indeed essentially articles of textile. Yet the application of a provision of the Customs Tariff to a set of facts is a mixed question of fact and law, and is not properly before us. Pursuant to subsection 68(1) of the Customs Act, R.S.C. 1985, c. 1, this Court may only hear appeals from decisions of the Tribunal based on questions of law. We have not been persuaded that the Tribunal erred in its application of the General Rules for the Interpretation of the Harmonized System found in the Schedule to the Customs Tariff, and in particular of Rule 1 and of its interplay with Rule 2. [5] Even if we were prepared to entertain the appellant’s arguments, we have not been convinced that the Tribunal erred in its interpretation of Legal Notes 7(b) or 8(a). With regard to Note 7(b), the appellant argues that the Tribunal failed to consider that “paper-making machines” is but one example of the type of machine that the goods can be attached to in order to benefit from heading 59.11. A careful reading of the Tribunal’s reasons belies that claim. Not only did the Tribunal italicize the words “of a kind used in paper-making or similar machines” when quoting Legal Note 7(b) (at para. 72 of its reasons), but it also stressed in the following paragraph that the marine winch is not “of a kind” used for paper-making machines and observed that there was no evidence that the hand operated winch is used in conjunction with the goods at issue is “similar” to a paper-making machine. [6] As for Legal Note 8(a), the appellant contends that the Tribunal erred in relying on Legal Note 8, pursuant to which goods that are “made up articles” within the meaning of Legal Note 7 are prima facie excluded from Chapter 59. There is no issue that the goods are “made up articles”; what the appellant claims is that the Tribunal paid no attention to the words “except where the context otherwise requires” in Legal Note 8. Once again, this argument is without merit because the Tribunal did advert to these words and expressly found there to be “no probative evidence … concerning the nature of any context that would render legal note 8 (sic) inapplicable or irrelevant to the goods at issue or to the classification analysis” (at para. 84). Moreover, the appellant failed to provide any element of context that was put forward and ignored by the Tribunal. [7] For all of the foregoing reasons, we are therefore of the view that the Tribunal did not err in finding that heading 59.11 does not apply to the goods at issue, and that the goods at issue are more properly classifiable under heading 63.07. As such, the appeal will be dismissed, with costs. "Yves de Montigny" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-3-22 STYLE OF CAUSE: CANADIAN TIRE CORPORATION LTD. v. PRESIDENT OF THE CANADA BORDER SERVICES AGENCY PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: May 30, 2023 REASONS FOR JUDGMENT OF THE COURT BY: DE MONTIGNY J.A. LASKIN J.A. MACTAVISH J.A. DELIVERED FROM THE BENCH BY: DE MONTIGNY J.A. APPEARANCES: Michael Kaylor For The Appellant Sarah-Dawn Norris Taylor Andreas For The Respondent SOLICITORS OF RECORD: Lapointe Rosenstein Marchand Melançon, LLP Montréal, Quebec For The Appellant Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent

### Legal Analysis
The court's analysis focuses on: ssue or to the classification analysis” (at para. 84). Moreover, the appellant failed to provide any element of context that was put forward and ignored by the Tribunal. [7] For all of the foregoing reasons, we are therefore of the view that the Tribunal did not err in finding that heading 59.11 does not apply to the goods at is

### Precedential Value
As a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation.