TB0-13960

RPD File No. / N° de dossier de la SPR : TB0-13960 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing August 7, 2012 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision August 28, 2012 Date de la décision Panel Stephen E. Rudin Tribunal Counsel for the Claimant(s) Michael Korman 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] XXXX XXXX XXXX (the claimant), is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1 ALLEGATIONS * Living in XXXX Province in the People's Republic of China, the claimant alleges that he suffered from migraine headaches that did not respond to traditional medical treatment. In discussions with his classmate XXXX, XXXX who also suffered from migraines, the claimant learned that XXXX did not take any medication but practiced Falun Gong to help his medical situation. [2] The claimant continued to take his medication and in early XXXX 2008, the claimant also reluctantly began to practice of Falun Gong in his own home. By mid XXXX 2008, he began to attend the Falun Gong group practice sessions that were held in the homes of different members and noticed that his practice appeared to augment the effects of the medication. [3] On XXXX XXXX XXXX 2009, the claimant came to Canada as a student and communicated with his friend XXXX, XXXX about his ongoing practice of Falun Gong in Canada. [4] On XXXX XXXX XXXX 2010, the claimant received a phone call from his mother informing him that the Public Security Bureau (PSB) had searched their home and confiscated mail and a fax machine. The PSB accused the claimant of being engaged in illegal activities. The PSB also told his mother that they had arrested three members of the practice group including XXXX, XXXX. The claimant has learned that the PSB still seek his arrest and that those arrested have been sentenced to jail terms of 2-3 years. [5] The claimant also alleges that his common law wife is currently XXXX months pregnant with their first child and it their desire to have three children which would cause them to violate the Family Planning Policy and face the possibility of sterilization. [6] Based on his fear of returning to China as a Falun Gong practitioner and because of his potential violation of the family planning policy, the claimant made his application for refugee protection on September 9, 2010. DETERMINATION [7] For the reasons that follow, the panel finds that the claimant is not a Convention refugee and does not have a well founded fear of persecution or harm should he return to the People's Republic of China. IDENTITY [8] For the following reasons, the panel finds that the claimant is citizen of the People's Republic of China. His citizenship is established by his Resident Identity Card2 (which contains security features3 such as microchip technology for verification of the card's authenticity) and his Passport.4 ANALYSIS [9] In assessing this claim, the panel focused on the credibility of the claimant's allegations of the risk of persecution or harm he might face upon his return to the People's Republic of China. [10] The panel is cognizant of the difficulties faced by the claimant in establishing his claim. These include cultural factors, the environment of the hearing room, and the stress inherent in responding to oral questions through an interpreter. The panel has taken these considerations into account in arriving at its determination. The panel also considered the written submissions provided by counsel.5 [11] Even without disbelieving every part of the claimant's testimony, a panel may find the claimant so lacking in credibility that it concludes that there is no credible evidence relevant to his claim.6 Further, a claimant's contradictory testimony can cast doubt upon the totality of his oral evidence.7 [12] For the reasons that follow, the panel finds that the claimant has not provided sufficient credible, trustworthy evidence in support of his allegations and, on a balance of probabilities, the panel finds that the claimant would not face the possibility of persecution or harm should he return to the Peoples Republic of China. [13] The determinative issue in this claim is the credibility of the claimant's Personal Information Form8 narrative and oral testimony concerning his membership as a Falun Gong practitioner and his pursuit by the PSB. The panel finds for the reasons that follow that the claimant was not a credible witness in this regard and is not currently wanted for arrest by the PSB as a result of his Falun Gong activities in China. The panel finds that there is not a serious possibility that he would face persecution should he return to China. Falun Gong Knowledge [14] The panel finds that the claimant demonstrated a reasonable knowledge of Falun Gong and a basic knowledge of the book, Zhuan Falun, the principle text associated with the practice of Falun Gong. [15] The claimant provided letters of support that were purported to have been written by members of his Toronto practice group. The panel gives these letters no weight as they could have been provided by anyone, as they are not witnessed by any independent source and, are not otherwise validated. The panel also notes that these letters of support only attest to the claimant's practice, they do not speak to the genuine nature of the claimant's beliefs. [16] It is reasonable to expect that someone who had practiced Falun Gong since XXXX 2008 would have been able to correctly answer the following questions. The claimant was asked when the practice of Falun Gong was banned by the authorities in China and responded that the practice was banned in 1997. Asked by the panel if he was sure, the claimant responded that he was because of a self immolation incident that occurred in 1997. According to the documentation,9 an official announcement of the decision of the Ministry of Civil Affairs banning Falun Dafa was carried on Xinhua and broadcast on state television on 22 July 1999. The announcement stated that "the Falun Dafa Institute, and the Falun Gong organisation under its manipulation, is an unlawful organisation that has to be outlawed". [17] The claimant was asked the significance of the date May 13th to adherents of Falun Gong. He replied that May 13th was Master Li's Birthday and the date on which he founded Falun Gong. When asked if there was any other significance to May 13th, the claimant could not identify that it is also Falun Dafa Day. [18] The claimant was asked about the daily obligations of a Falun Gong practitioner and did not identify "giving out righteous thought" as one of those obligations. The panel finds that it would be reasonable to expect that someone who has practiced Falun Gong for four years would immediately identify a daily obligation that is supposed to be performed four times per day. [19] The claimant was able to name the 5 exercises and properly recited the verse for exercise number one and correctly demonstrated it. [20] The claimant testified that he had listened to the audio tape of the book "Zhuan Falun" but was not able to purchase a copy of the book until he arrived in Canada. Since he has been in Canada, the claimant indicated that he had read "Zhuan Falun about 3 times" and acknowledged the importance of the book to Falun Gong practitioners. As the claimant had stated in his Personal Information Form and testified at the hearing that his motivation to consider the practice of Falun Gong was health related, the panel asked if that topic is addressed in "Zhuan Falun". The claimant told the panel that this topic is addressed in the 8th Talk. As the claimant testified that he had read Zhuan Falun 3 times and was motivated to begin his illegal Falun Gong practice because of a health issue, the panel finds it reasonable to expect that the claimant would know that the discussion of healing takes place in the 7th Talk. Lack of Summons [21] The panel inquired how many times the PSB had come to his home in China in search of the claimant up to the day prior to his refugee hearing. He estimated that they had visited 7-8 times with their last visit in XXXX 2012. The claimant was asked if the PSB had left a summons or warrant with his family indicating their interest in him. The claimant said "no". The panel notes that country condition documents10 indicate that a summons is often left with or shown to family members when the police want someone to come to their headquarters. In addition, the summons is the documentary basis for the subsequent issuance of an arrest warrant if the person in whom they are interested does not respond to the summons. Although this policy is not always implemented, it is reasonable that one would have been issued in respect of the claimant given that the claimant testified that the PSB had gone to his home in search of him on 7-8 occasions and appear to continue to do so. [22] Although the documentary evidence is mixed, it is reasonable to conclude that with the interest the authorities have shown in the claimant by visiting his home 7-8 times, they have conducted some investigation which gives rise to them stating that he was identified as a Falun Gong practitioner. Further, given that the authorities have allegedly continued to inquire about the claimant, it is reasonable to expect, given the documentary evidence, that an arrest warrant or summons would have been left with the claimant's family. [23] The panel explained that according to the documentation11 if practitioners do not cooperate with the authorities, their family members will be punished. The panel questioned whether his parents had been punished in any way, such as removal of access to services such as health care, seizing of a RIC or Hukou or punishment at work, in order to influence the claimant to return to the People's Republic of China. The claimant replied that his parents had lost their jobs; his mother prior to the 2012 XXXX XXXX and his father in XXXX 2012. The claimant was asked by the panel why he had not included this important information in his Personal Information Form Narrative and the claimant replied that they were subsequent events. The panel notes that this information was not included in the PIF amendment.12 The panel would reasonably expect that such compelling and important information would have been included in the amendment and therefore draws a negative inference from its omission. Further, to have allegedly attended his family home on 7-8 occasions would indicate that the PSB had far more than a casual interest in the claimant. The absence of a summons when one should reasonably have been issued damages the credibility of the claimant. [24] This causes the panel to question the activities of the PSB. The actions (or lack thereof) indicated by the clamant run counter to conventional beliefs that the PSB are a ruthless and fearsome police force. The claimant's testimony runs counter to documentary evidence about the PSB's methods and is found not to be credible. As well, the claimant provided a list13 issued by the PSB of items that had been confiscated from the home of parents after the claimant had already left China for Canada. Asked by the panel if there were any actions taken by the PSB against his parents, the claimant replied that as the documents were sent by him and the receiver of the fax was already under arrest, their was no reason to pursue his parents. The panel finds that it would be reasonable to expect that upon finding items such as a fax machine and fax letter regarding Falun Gong matters, the PSB would have taken action against the claimant's parents prior to the XXXX of 2012. Further, the panel does not find it plausible that knowing that Falun Gong was illegal, he would send Falun Gong documents to the home of his parents, thus placing them in jeopardy. [25] Based on the foregoing analysis, the panel finds that the PSB are not looking for the claimant. Student Status [26] The claimant alleges in his Personal Information Form Narrative14 that "On XXXX XXXX, 2009, I came to Canada as a student". In his application for a study permit,15 the claimant indicated that he planned to attend XXXX College in Ottawa to take a post secondary course in XXXX and XXXX. For the following reasons the panel finds that the claimant did not attend school, as he could provide no documentation in support of his attendance at XXXX College. Asked by the panel if he had any such documentation, the claimant testified that he had lost the documents when he moved to Toronto. The claimant was asked if he could provide any transcripts of grades to demonstrate that he actually attended Algonquin and he testified, "No, I just went and they did not give me a report card." The claimant told the panel that he could not obtain any documents from Algonquin College now. The claimant then went on to say that he did have documents but with his poor English he did not know what they said and he no longer has these documents. The claimant testified that his student visa16 was issued on XXXX XXXX, 2009 and he thought it was valid until XXXX XXXX XXXX 2013. The conditions of his student visa are that the claimant is prohibited from working unless otherwise authorized and that attendance at the University, College or institution specified by the Immigration Officer (XXXX College) is required. The claimant testified that he moved to Toronto and attended a XXXX program in Scarborough for two semesters from XXXX 2009 to XXXX 2010. The claimant could not provide the panel with any documents supporting his testimony in this regard. Based on the foregoing analysis, the panel finds that the claimant entered Canada on a fraudulent basis, as he never was a legitimate student in Canada. [27] The panel considered the other ground of the claim, fear of returning to the People's Republic of China because the claimant was in violation of the Family Planning Policy. [28] The claimant provided no evidence, such as a medical note, in support of this allegation and the panel finds that this information is easily obtained. Although the panel believes that without documentation this aspect of the claim is hypothetical, the panel finds that the claimant would be able to return to XXXX, China. According to the documentation17 the XXXX Province Population and Family Planning Regulations adopted in 2002 stipulates that a couple may apply to have a second child if, among other things, both spouses are returned overseas, Chinese or former residents of Hong Kong, Macau or Taiwan who have relocated to the mainland, with only one child accompanying them" (PRC 30 Nov. 2002). [29] The claimant did testify that he wished to have three children and the birth of a third child is prohibited in XXXX Province. As well, the panel notes that there is a penalty for violating the provisions in Article 17 and a social maintenance fee would have to be paid by both parents. CONCLUSION [30] The panel considered the documentary evidence about conditions in province and the claimant's personal circumstances and finds, on a balance of probabilities, that the PSB are not looking for the claimant because of his Falun Gong practice and the claimant has provided no evidence that he is in violation of the Family planning policy. Therefore, the panel finds that the claimant could return to China and that there is not a serious possibility that he would face persecution. [31] On the totality of findings noted above, the panel determines that the claimant 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. [32] The panel finds that the claimant is neither a Convention refugee nor a person in need of protection. Therefore, the Refugee Protection Division rejects his claim. (signed) "Stephen E. Rudin" Stephen E. Rudin August 28, 2012 Date REFUGEE PROTECTION DIVISION / RELIGION / RELIGIOUS PRACTICE / RISK / FORCED STERILIZATION / FAMILY PLANNING / VISA / STUDENT / AMENDMENTS / PERSONAL INFORMATION FORM / OMISSIONS / FEMALE / NEGATIVE / CHINA 1 Enacted by S.C. 2001, c. 27. 2 Exhibit C-3. 3 Exhibit R/A-1, item 3.15. 4 Exhibit R/A-2. 5 Exhibit PHS. 6 Sheikh v Canada(Minister of Employment and Immigration), [1990] 3 F.C.238 (C.A.). 7 Dan-Ash v. Canada(Minister of Employment and Immigration) [1988], 93 N.R.33 (F.C.A.), at 35. 8 Exhibit C-1. 9 Exhibit R/A-1, item 12.24. 10 Exhibit R/A-1, item 9.1, Information request CHN42444.E, June 1, 2004. 11 Exhibit R/A-1, 12.18. 12 Exhibit C-2, Updated Personal Information Form narrative. 13 Exhibit C-3. 14 Exhibit C-1, Original PIF narrative. 15 Exhibit R/A-3. 16 Exhibit R/A-2. 17 Exhibit R/A-1, item 5.8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (May 18, 2010) Disponible en français RPD.15.7 (May 18, 2010) Disponible en français RPD File No. : TB0-13960 RPD File No. :TB0-13960