TB9-21684

RAD File / Dossier de la SAR : TB9-21684 TB9-21685 TB9-21686 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 8, 2020 Date de la décision Panel T. Cheung Tribunal Counsel for the persons who are the subject of the appeal Jacqueline M Lewis Conseil des personnes en cause Designated representative

XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX (Principal Appellant), XXXX XXXX XXXX XXXX XXXX (Associate Appellants) are citizens of China who appealed a decision of the Refugee Protection Division (RPD). XXXX XXXX is the Principal Appellant's spouse, and XXXX XXXX is their minor child. [2] The Principal Appellant claims a fear of persecution for having joined a Falun Gong group in early XXXX 2016 to address her gambling addiction. On XXXX XXXX, 2017, the Public Security Bureau (PSB) raided the group and took their identity information before they were allowed to leave the house. After this incident, the neighbourhood committee officers came to her house and warned the family to not get involved in Falun Gong, which is considered an evil cult by the Chinese government. The Appellants fled China and arrived in Canada through the United States. [3] The RPD rejected the claims on the basis of negative credibility concerns that flow from the Principal Appellant's inability "to correctly answer all the questions about Falun Gong".1 The RPD assigned no weight to the letter from a fellow Falun Gong practitioner in Canada for reason that it is not a sworn statement.2 The RPD also rejected the sur place claim due to insufficient evidence that the Principal Appellant's participation in Falun Gong in public spaces in Canada has been brought to the attention of the Chinese authorities.3 [4] The Appellants argued at the Refugee Appeal Division (RAD) that the RPD erred in testing the Principal Appellant's knowledge of theology rather than assessing her sincere belief in Falun Gong; that the RPD erred in assigning no weight to the letter in support of the Principal Appellant's religious profile; and that the RPD erred in assessing the sur place claim.

DETERMINATION [5] No new evidence was presented by the Appellants at the RAD appeal, and the Appellants did not request a RAD hearing. [6] The appeals are allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees.

ANALYSIS Principal Appellant's knowledge of Falun Gong [7] The RPD considered the Principal Appellant's length and frequency of group practice and practice at home in China and Canada and found the Principal Appellant's testimony about some precepts of Falun Gong to be an inadequate display of knowledge of Falun Gong. [8] The RAD agrees with the Appellants' argument that the RPD erred in its approach to assessing the sincerity of the Principal Appellant's religious profile by holding the Principal Appellant to an untenable high standard of knowledge of Falun Gong precepts.4 The Federal Court of Canada jurisprudence has consistently held that it is an error to expect the claimant to answer questions about her religion with the equivalent level of knowledge as the Panel's knowledge.5 [9] I agree with the Appellants' argument that the RPD was contradictory in its finding that the Principal Appellant was unable to give examples of "bad attachments", when it had previously acknowledged that the Principal Appellant testified that "being engrossed" is an example of a "bad attachment" in our daily life. The RPD held that the Principal Appellant did not have in-depth knowledge of the concept of attachments that is expected of a person that has practiced Falun Gong for two and a half years.6 I find the RPD erred in holding the Principal Appellant to a standard that is the equivalent

level of knowledge of the RPD member.7 [10] The Principal Appellant testified that there are different forms of attachment in our daily lives, and that based on the principles of truth, compassion and forbearance, we must get rid of bad attachments such as "being engrossed".8 Given the Principal Appellant's nine years of education,9 her testimony is consistent with the objective evidence of Zhuan Falun which teaches that cultivation leads to the relinquishment of attachments such as "the mentality of showing off, jealousy, the competition mentality, and zealotry." Zhuan Falun teaches that "everyday attachments must be discarded".10 [11] Although the Principal Appellant did not precisely name the specific examples of attachments that are given in Zhuan Falun, her own example of "being engrossed" as an attachment has a quality of self-centeredness that is consistent with the examples given in Zhuan Falun. Her testimony covered the concept that attachments come in different forms in our daily lives; that attachments are "bad", and that one should get rid of attachments.11 [12] The RAD's independent review of the evidence indicates that the RPD selectively focused on the inadequacies in the Principal Appellant's answers to the RPD's specific questions to support a negative credibility inference, while ignoring the Principal Appellant's testimony that supports a positive inference

in favour of the Principal Appellant's belief in Falun Gong. The favourable testimony was in response to the RPD's open-ended questions. [13] For example, the RPD drew a negative credibility inference from the Principal Appellant's vague testimony that the purpose of Zhuan Falun's second lecture is for good health.12 The RAD's review of the RPD testimony indicates that the Principal Appellant was asked one specific question about the purpose of the second exercise; however, no follow up questions were asked to give the Principal Appellant an opportunity to elaborate on her testimony.13 [14] Another example of the Principal Appellant's inability to answer the RPD's question about a specific topic occurred during the line of questioning about "dual cultivation and longevity". The RPD was correct in its determination that the Principal Appellant was unable to explain the concept of "dual cultivation and longevity".14 According to Zhuan Falun, the aging process of the body slows down when one cultivates their character; therefore, a person is cultivating longevity when he or she cultivates their character.15 The Principal Appellant's testimony did not touch upon this concept. Rather, the Principal Appellant testified that Master Li taught that dual cultivation and longevity is related to Buddha and the "wisdom eye". The Principal Appellant could not elaborate when the RPD asked for

an explanation.16 In response to the Principal Appellant's counsel's questions in re-examination, the Principal Appellant reiterated the concept of the "wisdom eye" or the "celestial eye" and its connection with the body.17 This testimony has no basis in the objective evidence. [15] However, the RPD did not consider the favourable evidence of the Principal Appellant's testimony in response to an open-ended question about her favourite "talk" in Zhuan Falun. The Principal Appellant testified that Chapter Four in Zhuan Falun about doing righteous deeds and receiving virtue is her favourite teaching.18 When asked by her counsel to elaborate, the Principal Appellant testified that the fourth talk is about "virtue and karma": a person acquires virtue from doing righteous things (described as a white substance); a person acquires karma from doing bad things (described as a black substance); and a Falun Gong practitioner would want to perform more good deeds to acquire virtue.19 [16] At another instance in the testimony, the Principal Appellant reiterates Master Li's teaching that doing good deeds allows one to gain virtue. She related this concept of good deeds and virtue to different theories in Buddhism based on truth, compassion and forbearance. She testified that morals and virtue do not change even if people change.20 This testimony is consistent with the objective evidence of

Chapter Four of Zhuan Falun which contains extensive references to virtue and karma as described respectively as white and black substances.21 [17] The Principal Appellant also demonstrated her understanding of sending righteous thoughts when asked to explain the purpose of the exercise. She testified that the purpose of sending righteous thoughts is to eliminate evils, and she demonstrated with hand movements in the shape of a lotus.22 [18] I find the Principal Appellant's testimony demonstrated the sincerity of her belief in Falun Gong. Although the Principal Appellant's testimony was vague when asked specific questions about two Falun Gong topics, she was able to adequately demonstrate her knowledge with cogent testimony about other concepts such as attachment and "virtue and karma". [19] I apply the principle that the Principal Appellant is not to be held to the same standard of knowledge as that of the Panel.23 I accept the Appellants' argument that the RPD erred in not applying the presumption of truthfulness, in the absence of internal contradictions and inconsistencies. Therefore, I find an insufficient basis to rebut the presumption of the truth of sworn testimony.24 Evidence of Falun Gong practice in Canada [20] The evidence in support of the Principal Appellant's Falun Gong practice in Canada consists of her testimony, a letter of support from a fellow Falun Gong

practitioner,25 and several photographs of the Principal Appellant reading Zhuan Falun in a group and handing out flyers in a group.26 [21] The RPD erred in assigning no weight to the letter from a fellow Falun Gong practitioner in Canada because it was not a sworn statement.27 The author of the letter provided his or her address and phone number for verification. On its face, the letter of support shows no indication of inauthenticity.28 The Federal Court of Canada has held that if a letter appears authoritative and provides detailed contact information for verification, the requirement that documents must be notarized or accompanied by other objective identification documents before they can be given evidentiary weight, overlooks the indicia of authenticity that is apparent in the letter. Therefore, it is an error to accord no weight to a letter of support merely because it is not a sworn statement.29 [22] The Principal Appellant's testimony elaborated on the substance of the photograph showing her reading Zhuan Falun in a group. She testified that when she has difficulty understanding the readings, she looks to the group to explain the theories to her.30 [23] I assign weight to the letter of support and photographs of the Principal Appellant practicing Falun Gong in Canada. If the Appellant is a genuine Falun Gong practitioner, it is irrelevant whether the Chinese

authorities are aware of her Falun Gong activities in Canada. [24] The Principal Appellant testified that she intends to practice Falun Gong because it improves her health and character; and the practice keeps her calm, honest and humble.31 Falun Gong continues to be considered an illegal cult under China's Criminal Law, and the objective evidence indicates that persecution of Falun Gong practitioners continue in China.32 Therefore, the Principal Appellant would not be able to practice Falun Gong in China without a fear of persecution.

CONCLUSION [25] Having independently assessed the evidence, I find on a balance of probabilities that the Principal Appellant is a genuine Falun Gong practitioner who would face a subjective fear of persecution upon return to China. XXXX XXXX and XXXX XXXX would be subjected to a fear of persecution on the basis of being members of a particular social group, namely a family member of the Principal Appellant. [26] There is no internal flight alternative for the Appellants because the agent of persecution is the state, as the illegality of Falun Gong is country-wide. Where the perpetrators are state agents, it is not necessary to inquire into the effectiveness of state protection.33 [27] The appeals are allowed. Pursuant to section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. (signed) "T. Cheung" T. Cheung January 8, 2020 Date 1 Exhibit RPD-1, RPD Record, pp. 6 and 9, Reasons for Decision, para. 12, 27 to 28. 2 Exhibit RPD-1, RPD Record, p. 8, Reasons for Decision, para. 25. 3 Exhibit RPD-1, RPD Record, pp. 8 to 9, Reasons for Decision, para. 26. 4 Exhibit P-2, Appellant's Record, pp. 13 to 16, Appellants' Memorandum of Fact and Law, para. 12 to 19. 5 Zhang v. Minister of Citizenship and Immigration 2012 FC 503 (CanLII), para. 12 to 14; Penghui Wu v Minister of Citizenship and

Immigration, 2009 FC 929; Ullah v. Canada (Minister of Citizenship and Immigration), 2000 FCJ No 1918, para 11. 6 Exhibit RPD-1, RPD Record, pp. 3 to 10, Reasons for Decision, para. 17 to 26. 7 Zhang v. Minister of Citizenship and Immigration 2012 FC 503 (CanLII), para. 12 to 14; Penghui Wu v Minister of Citizenship and Immigration, 2009 FC 929; Ullah v. Canada (Minister of Citizenship and Immigration), 2000 FCJ No 1918, para 11. 8 Audio of RPD Hearing, 00:49 - 00:52. 9 Exhibit RPD-1, RPD Record, pp. 111, Generic Application Form For Canada. 10 National Documentation Package (NDP) for China, December 20, 2019, item 12.12. Zhuan Falun. English Version, Lecture Four. Falun Dafa. July 31, 2019. 11 Audio of RPD Hearing, 00:49 - 00:52. 12 Exhibit RPD-1, RPD Record, p. 6, Reasons for Decision, para. 14 to 16. 13 Audio of RPD Hearing, 00:52 to 00:54. 14 Exhibit RPD-1, RPD Record, pp. 7 to 8, Reasons for Decision, para. 20 to 23. 15 National Documentation Package (NDP) for China, December 20, 2019, item 12.12. Zhuan Falun. English Version, Falun Dafa. July 31, 2019,pp. 97 to 98. 16 Audio of RPD Hearing, 00:56 to 00:59. 17 Audio of RPD Hearing, 1 :19 to 1:22. 18 Audio of RPD Hearing, 00:55 to 00:56. 19 Audio of RPD Hearing, 1:17 - 1:19. 20 Audio of RPD Hearing, 1 :27 to 1:32. 21 National Documentation Package (NDP) for China, December 20, 2019, item 12.12. Zhuan Falun. English Version,

Falun Dafa. July 31, 2019, pp.93 to 101, 123, 139. 22 Audio of RPD Hearing, 00:46 - 00:49. 23 Zhang v. Minister of Citizenship and Immigration 2012 FC 503 (CanLII), para. 12 to 14; Penghui Wu v Minister of Citizenship and Immigration, 2009 FC 929; Ullah v. Canada (Minister of Citizenship and Immigration), 2000 FCJ No 1918, para 11. 24 Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 at para 3, 5. 25 Exhibit RPD-1, RPD Record, Exhibit 7, pp. 193 to 194, letter dated XXXX XXXX 2019. 26 Exhibit RPD-1, RPD Record, Exhibit 6, pp. 184 to 186, photographs. 27 Exhibit RPD-1, RPD Record, p. 8, Reasons for Decision, para. 25. 28 Exhibit RPD-1, RPD Record, Exhibit 7, pp. 193 to 194, letter dated XXXX XXXX 2019. 29 Paxi v. Canada (Citizenship and Immigration), 2016 FC 905 (CanLII).<http://canlii.ca/t/gsw1t>, para. 52; Kojouri v Canada (Minister of Citizenship and Immigration), 2003 FC 1389 (CanLII) at paras 18-19; Huyen v Canada (Minister of Citizenship and Immigration), 2001 FCT 904 (CanLII), [2001] FCJ No 1267 at para 5. 30 Audio of RPD Hearing, 1:27 to 1:32. 31 Audio of RPD Hearing, 1:22 to 1:23. 32 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, March 29, 2019, item 12.2. China. United States Commission on International Religious Freedom 2018 Annual Report. United States. Commission on International Religious Freedom,

page 35, April 2018; item 12.1. China (Includes Tibet, Hong Kong, and Macau). International Religious Freedom Report for 2017. United States. Department of State.May 29, 2018. 33 Canada (Minister of Citizenship and Immigration) v. Chen, 2004 FC 1403 (CanLII); Zhuravlev v. Canada (MCI), 2000 CanLII 17128 (FC), [2000] F.C.J. 507. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-21684 TB9-21685 TB9-21686 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français