TB9-13486

RAD File / Dossier de la SAR : TB9-13486 TB9-13487 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 20, 2020 Date de la décision Panel K. Wallace Tribunal Counsel for the persons who are the subject of the appeal Warren Chin Barrister and Solicitor 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 (the 'Appellant') and her daughter, XXXX XXXX (Associate Appellant), are citizens of China. They are appealing the decision of the Refugee Protection Division (RPD), dated April 26, 2019, which rejects their claims for refugee protection. [2] No new evidence has been submitted in this appeal. An oral hearing has not been requested. [3] The determinative issue in this appeal is whether the RPD erred in its credibility findings. DETERMINATION [4] The appeal is dismissed. Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the decision of the RPD that the Appellants are not Convention refugees, nor persons in need of protection. BACKGROUND [5] The Appellant alleges that she is a Falun Gong practitioner. She was introduced to Falun Gong in 2017 by her friend and also by a cousin, after she became a depressed and had trouble sleeping following her divorce from her husband. She turned to Falun Gong to cope and found it useful. [6] The Appellant is the mother and Designated Representative of her minor child. The child's claim is based on her mother's claim. The child is not involved in the practice of Falun Gong. [7] The Appellant allegedly began attending Falun Gong group practices in China in XXXX 2017. [8] In XXXX 2017, the Appellant was allegedly questioned and detained by the Public Security Bureau (PSB) for one day. She was released after signing a guarantee that she would not participate in Falun Gong activities. [9] The Appellant and her daughter came to Canada on a visitor's visa in XXXX 2018. They used the services of a smuggler to obtain their visas and come to Canada. [10] After arriving in Canada, the Appellant found out that the PSB allegedly left a summons for her at her home in China in XXXX 2018. [11] The Appellants applied for refugee protection in XXXX 2018. ANALYSIS [12] In considering this appeal, I have applied a standard of correctness to the RPD's findings as per the Federal Court of Appeal decision in Huruglica1. I have conducted my own independent analysis of the evidence. This included listening to the recording of the RPD hearing and reviewing all of the documents submitted. The RPD Decision [13] The RPD rejected the claims for refugee protection because they determined that the Appellant is not credible. In particular, the RPD did not believe that the Appellant is a genuine Falun Gong practitioner or that the PSB is interested in her. [14] The RPD determined that the Appellant is not credible due to the following: * The Appellant has limited knowledge of Falun Gong principles and exercises; * The PSB summons is not genuine; and, * The RPD also determined that the Appellant is not a genuine practitioner of Falun Gong and the Chinese authorities have no knowledge of her activities in Canada. Therefore, there is no basis for the sur place claim. The Appellants' Position [15] The Appellants argue that the RPD erred in its credibility findings. In particular, they argue that the RPD engaged in an unreasonable analysis of the authenticity of the summons that corroborates the Appellant's Falun Gong involvement; and incorrectly relied on the fact that the Appellant used fraudulent documentation to support her Canadian Visitor's Visa to conclude that documents to support her claim were also fraudulent. [16] The Appellants also argue that the RPD failed to fully assess the sur place claim based on the Appellant's Falun Gong activities in Canada. The Claim of the Minor Child [17] The claim of the minor child is based on her mother's claim. The child is not a Falun Gong practitioner. No evidence of any type of harm or persecution the child has faced or will face in China was presented at the RPD hearing. There is no mention of or argument provided concerning the minor child in the Appellants' appeal memo. [18] The minor child has no independent claim. Since the claim of her mother fails, the child's claim also fails. Appellant's Lack of Knowledge of Falun Gong [19] The RPD summarized examples of the Appellant's lack of knowledge in great detail in paragraphs 11 to 26 of the decision. I agree with the RPD's conclusion that the Appellant's knowledge of Falun Gong is not consistent with the amount of time she alleges she has been practicing. [20] The hearing recording reveals that the Appellant was unable to explain many of the main Falun Gong concepts and practices. She displayed a very limited understanding of the practice. This lack of knowledge leads me to conclude that the Appellant is not a genuine Falun Gong practitioner. [21] The Appellants have not provided arguments in their appeal memo regarding the Appellant's lack of knowledge or that portion of the RPD decision, other than to state that it is quite possible that the Appellant became a genuine Falun Gong practitioner in Canada. This point will be addressed in my assessment of the sur place claim set out below. The PSB Summons [22] The RPD determined that the PSB summons is not genuine. They based this finding on the following: The Appellant was able to obtain fraudulent documents to support her visitor's visa application; fraudulent documents are widely available in China; and the PSB would not have served a summons on the Appellant in China one month after she had already left the country. They would have known that the Appellant left China one month prior by accessing the widely used database that monitor citizens' entry to and exits from China. [23] The Appellants argue that the RPD undertook a highly speculative and erroneous analysis regarding the genuineness of the summons; and erred by relying on the Appellant's use of fraudulent documents to obtain her visa to conclude that she provided a fraudulent summons. [24] I agree that a negative credibility finding cannot be made based on the fact that a claimant used fraudulent documents to flee their country when they are in fear for their safety. [25] However, the RPD did not rely on the fraudulent visa documents to make a negative inference about the Appellant's credibility. They merely stated that the prior use of fraudulent documents shows that the Appellant found a way to obtain them in the past. This is just a statement of fact. It is also an undisputed fact. [26] The Appellants argue that the RPD's reasons for determining that the summons is not genuine are insufficient. I agree that the RPD decision provides limited analysis to support the conclusion that the summons is not genuine. The widespread availability of fraudulent documents and the fact that the Appellant used fraudulent documents to obtain her visa, are insufficient to conclude that the summons is not genuine. [27] The Appellants also argue that it was unreasonable for the RPD to conclude that the summons is not genuine when it is consistent with the summons found in the National Documentation Package. However, the summons is not consistent with the sample in the Package. [28] The Appellant presented a PSB "Notice of Summoning" dated XXXX XXXX XXXX 2018.2 [29] I have done my own analysis of the summons and I agree with the RPD's conclusion that the summons is not genuine. I have compared the Appellant's summons to the sample of an authentic summons in the National Documentation Package for China. Although it is very similar to the authentic sample in many aspects, there are significant differences. [30] The National Documentation Package establishes that the form and content of the various summonses in China has not changed since 2003 and there are no regional or jurisdictional differences.3 [31] The biggest and most problematic difference between the sample summons and the Appellant's summons is found in the reference to the statute or law that the summons is issued under. [32] The sample summons is found in item 9.10 in the National Documentation Package. It is sample four on page 8 of the document. It is also found in item 9.3 in the Package. The English translation of that summons is found in item 9.2 of the National Documentation Package. [33] The sample summons states that the summons is issued under Article 82 of the Public Security Administration and Punishment Law. [34] The Appellant's summons states that it is issued under Article 82 in the Regulations of the Public Security Administrative Punishment Law (emphasis added). [35] The Administrative Penalty Decision4 that the Appellant said she received when she was allegedly questioned by the PSB also refers to the statue in the same incorrect manner. [36] Another significant difference is the title of the two documents. The Appellant's summons is titled "Notice of Summoning". In the sample summons it is titled either a "Notice of Summons" or a "Summons for Appearance". [37] On a balance of probabilities, the name of the statute would not be set out incorrectly in a genuine, official summons. Neither would the title of the document. [38] These differences, on their own, may not support a finding that the summons is not genuine. Yet, the Federal Court has recognized that differences in small or microscopic details may be the way that a forgery is exposed. Whether those small difference are sufficient to conclude that a document is not authentic will depend on the facts of each case.5 [39] When the differences in the summonses are viewed together with the fact that the Appellant displayed limited knowledge of Falun Gong, and the widespread availability of fraudulent documents in China6, there is a sufficient basis to find that the summons is not genuine. I make this finding on a balance of probabilities. [40] The fact that the Appellant provided a fraudulent summons to support her claim, leads me to conclude that she is not credible overall. It also leads me to conclude that she is not wanted by the PSB. [41] My additional findings about the genuineness of the summons is not a "new issue" that requires notice and submissions from the Appellants. The issue of the genuineness of the summons is known to the Appellants, since it is set out in the RPD decision. Also, the Appellants argue in their appeal memo that the summons is genuine because it is consistent with the sample in the National Documentation Package. The Federal Court has recognized that the Refugee Appeal Division (RAD) is permitted to make additional findings on a known issue without inviting additional submissions or holding a hearing.7 [42] Furthermore, the Federal Court has determined that the RAD is not required to give an appellant notice of inconsistencies in their own documents. They are reasonably expected to be aware of the contents of the documents that they themselves provided.8 Sur Place Claim [43] The Appellants argue that the RPD erred by failing to undertake a sur place assessment based on the Appellant's religious activity in Canada. [44] The Appellant attends group Falun Gong practices in Canada. She testified that she has attended about 30 group practices at a park in Toronto.9 [45] The Appellant provided two handwritten letters of support from fellow Falun Gong practitioners.10 The letters state that one practitioner met the Appellant in the park in XXXX 2018 and the other met her in XXXX 2018. They practice Falun Gong together. [46] Given this activity, it is necessary to determine the merits of a sur place claim for protection. The Appellants are correct that the RPD did a cursory analysis the sur place claim. [47] I have determined that the Appellant provided the RPD with a fraudulent summons. Given this determination, the Appellant is not credible and I unable to presume that any of the Appellant's testimony is truthful. [48] The Appellant has not established that the Chinese authorities have any interest in her. She has also have not established that the authorities currently have any knowledge of her practice in Canada or are likely to have that knowledge in the future. No evidence of this was presented. [49] I have determined that the Appellant is not a genuine Falun Gong practitioner. The Appellants argue that, even if the Board is not satisfied that the Appellant was a genuine practitioner in China, they still must assess whether she is a genuine practitioner in Canada. [50] The Appellant testified that she has attended weekly group practices since she came to Canada and practices at home every day. She has read the main Falun Gong text three times. She estimated that she has attended at least 30 group practices since arriving in Canada. This is more than the estimated 20 group practices she allegedly attended while she was in China. [51] Despite this alleged increased involvement in Canada, the Appellant still displayed limited knowledge of Falun Gong main concepts and practices. This limited knowledge leads me to conclude that the Appellant is not a genuine practitioner in Canada. Her level of knowledge is not consistent with her alleged activity. [52] Given my finding about the genuineness of the Appellant's practice, along with the lack of any evidence that the Chinese authorities are aware of or likely to become aware of her activity, I am not satisfied that there is anything more than a mere possibility of persecution of the Appellants in China. Therefore, there is an insufficient basis for the sur place claim. CONCLUSION [53] The appeal is dismissed. I confirm the decision of the RPD that the Appellants are neither Convention refugees, nor persons in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "K. Wallace" K. Wallace February 20, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 2 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 185-186. 3 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China (December 21, 2018), items 9.10 and 9.3. 4 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 187-188. 5 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064 (CanLII). 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China (December 21, 2018), item 3.22. 7 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064 (CanLII). 8 Konare v. Canada (Citizenship and Immigration), 2016 FC 985 (CanLII). 9 RPD Hearing Recording from March 19, 2019, at approximately 0:41:45. 10 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 205-208. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-13486 TB9-13487 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