TB0-14410

RPD File No. / N° de dossier de la SPR: TB0-14410 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing September 20, 2012 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision September 20, 2012 (rendered orally) October 16, 2012 (written reasons) Date de la décision Panel Milton Israel Tribunal Counsel for the Claimant(s) Michael Korman Barrister & Solicitor Conseil(s) du (de la/des) demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) du tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre [1] The Refugee Protection Division heard the claim of XXXX XXXX (the claimant) to be a Convention refugee. At the conclusion of the hearing, the panel rendered an oral negative decision. These are the written reasons which have been edited for syntax and grammar, with added references to the appropriate documentary evidence and case law. ALLEGATIONS [2] The claimant alleged in his Personal Information Form (PIF)1 narrative that he had health problems which could not be resolved by medical treatment. As a result, on the recommendation of his cousin, he began to practice Falun Gong. He joined a group in XXXX 2009 and that group was raided in XXXX 2010 by the Public Security Bureau (PSB). He further indicated that the PSB came to his home on XXXX XXXX XXXX 2010 and they searched his house. He indicated as well that in a second visit, they left a summons. As a result, he left China and came to this country. IDENTITY [3] The claimant's identity as a citizen of the People's Republic of China is confirmed in a number of documents,2 including a resident's identity card and a hukou. ANALYSIS [4] The claimant testified that he was aware before his cousin talked to him that Falun Gong was illegal and there was a risk of arrest and detention. He further testified that his health problems improved as a result of practicing Falun Gong at home only with his cousin. He testified as well that he joined a group in order to get a faster benefit from practice. He was asked why he took a risk of arrest and detention, as aside from himself, it might bring trouble to his wife and child. He responded he wanted a faster cure. He was further asked if he was aware that this faster cure might result in trouble for his wife and child and put them at risk. He said 'yes'. His response to a further question regarding whether he was concerned about the welfare of his wife and child, was yes, he was very concerned. It was noted, however, that in response to an earlier question, he indicated no apparent concern about the welfare of his wife and child. There was no evidence of concern in his testimony or in his PIF narrative. I find, on a balance of probabilities, that someone in his situation who had a wife who was pregnant and therefore vulnerable and subsequently a wife and a child, an infant, that it is reasonable to assume there would be some evidence of concern for these people and perhaps greater effort to seek an alternative to a practice that might result in his arrest and detention. [5] The claimant was asked who reported him to the PSB, since he had managed to flee the practice group which allegedly was raided by the PSB. He first responded that he did not know but then said it must be his cousin's friend who was arrested. He further testified that his cousin told him that he told his father that his friend gave his name to the PSB. However, subsequently, he testified that it was his cousin who gave his name to the PSB. I draw a negative inference from this inconsistent testimony. [6] It was noted that the claimant indicated in his PIF narrative that the PSB searched his home and he was asked if the PSB left a search warrant. He responded, "Yes and my wife saw it." He was further asked why this document had not been disclosed to the Board. He responded it could not be found. It was noted that his wife had managed to disclose many other documents, which were sent to him in Toronto. This time his response was that it was thrown away. It was noted that he was not at home when the search warrant was allegedly left with his wife. He agreed. He was asked how he knew what his wife did with the document. After a delay, he said, "She forgot where she put it." He was further asked if he had asked his wife to send the document to him. He said 'yes'. He was asked as well how he knew a search warrant was left. He responded, "I do not know." His testimony in this regard was vague and inconsistent and he appeared to be inventing responses as follow-up questions were asked. I draw a negative inference in this regard. [7] It was noted that a summons had been disclosed3 and he was asked if this was correct. After a delay, he said, "I think so." He was asked why he responded "I think so", when a summons document was disclosed to the Board and mentioned in his PIF narrative. He responded with a question, "What do you mean?" I draw a negative inference from the claimant's vague responses to questions concerning the summons. In response to a subsequent question from counsel in this regard, the claimant indicated there was an interpreter problem. He further explained that he thought the question referred to the search warrant. I reject this explanation. The term 'summons' was repeated a number of times. I draw a negative inference from the claimant's testimony in this regard. [8] It was further noted that the summons document the claimant disclosed to the Board lacked a number of elements, which country documentary evidence4 indicates should be there. This document indicates that two names, the name of the person who issued the summons and the name of the person who served it, should be noted on the face of the document. It is further noted in this document that there is a section for a signature and receipt signed, in this case, by the claimant's wife when the document was served. Not only is there no signature from his wife when she received it but there is no section in this document which indicates a place for the person who receives it to sign. In addition, country documentary evidence5 indicates that the original summons is retained by the PSB and only a copy is disclosed to the person to whom it is served. However, the document the claimant disclosed is an original. It is reasonable to assume there may be some differences in a summons document from one province to another. However, the elements noted here seem quite basic and necessary. If the PSB was going to the trouble of serving a summons, it is reasonable to assume they would want a signature confirming that it had been served. Similarly, it is reasonable to assume that the names of the issuer and the server would be noted in order to facilitate any follow-up requirements for the PSB. [9] I noted in the hearing that there was a difference of opinion in the Federal Court regarding the usefulness of the country documentary evidence I cited because of the age of the document. However, I also noted that aside from one decision that challenges the document, there were many recent decisions by the Court that either explicitly or implicitly accepted the validity of the document. I draw a further negative inference from the differences in the document disclosed by the claimant from the description of a summons indicated in country documentary evidence. [10] In this regard, I note that fraudulent documents are commonly manufactured in China and easily purchased. I, therefore find, on a balance of probabilities and in the context of findings and negative inferences that I have noted, as well as in the context of country documentary evidence and case law cited above, that the claimant was not a Falun Gong practitioner in China, that he is not being pursued by the PSB and that he made a claim on a fraudulent basis when he came to this country. [11] The claimant was asked a number of questions regarding Falun Gong theory and practice. He answered most of them correctly but his responses to questions regarding the nature of cultivation and attachments, were vague and only partial. Merely being able to answer a few basic questions regarding Falun Gong theory and practice is not in itself a satisfying basis for judging the genuineness of his Falun Gong identity. [12] In the context of my finding regarding the claimant's alleged Falun Gong practice in China, I further find that his general credibility is in doubt. The Federal Court has indicated that it is reasonable if a claimant's testimony regarding events in China or that is in the claimant's home country, is found not to be credible, it is reasonable for the RPD to raise the bar regarding a judgment concerning the genuineness of practice in this country. I, therefore find, on a balance of probabilities, that it is reasonable to assume that a person who was not a Falun Gong practitioner in China when he arrived in this country would not become a practitioner upon arrival other than to support a fraudulent claim for protection. [13] I, therefore find, on a balance of probabilities and in the context of the totality of evidence available to the panel, that the claimant is not now a genuine Falun Gong practitioner and as a result, I find that he has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment or a risk of torture by any authority in the People's Republic of China. CONCLUSION [14] I conclude that the claimant is neither a Convention refugee nor a person in need of protection. Therefore, the Refugee Protection Division rejects his claim. "Milton Israel" Milton Israel "October 16, 2012" Date 1 Exhibit C-1. 2 Exhibit C-3, pp. 2 to 10, photocopies of the above mentioned documents. 3 Exhibit C-3, pp. 28 and 29. 4 Exhibit R/A-1, item 9.1. 5 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (May 18, 2010) Disponible en français RPD.15.7 (May 18, 2010) Disponible en français RPD File No. / N° de dossier de la SPR : TB0-14410 RPD File No. :TB0-14410