TB9-09474

RAD File / Dossier de la SAR : TB9-09474 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 27, 2020 Date de la décision Panel Caitlin Maxwell Tribunal Counsel for the person who is the subject of the appeal Nkunda I. Kabateraine 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] These are my reasons for dismissing the appeal of XXXX XXXX ("the Appellant"). The Refugee Appeal Division ("RAD") upholds the determination of the Refugee Protection Division ("RPD") that the Appellant is neither a Convention refugee nor a person in need of protection. [2] The Appellant claims a fear of persecution on the basis of his religious beliefs as a Falun Gong practitioner. The RPD determined that the Appellant lacked a subjective fear of persecution and was not credible due to inconsistencies and omissions in his testimony and Basis of Claim narrative. On appeal, the Appellant argues that the RPD erred in its credibility determination and failed to properly assess his sur place claim. SCOPE OF THE APPEAL [3] The RAD reviews decisions of the RPD on a standard of correctness, after conducting an independent assessment of the evidence before it. 1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which may attract deference in particular cases. 2 In this case, the RPD had no advantage. I have therefore applied a correctness standard. [4] The Appellant has not submitted new evidence in support of his appeal. In the absence of any new evidence, the RAD has no jurisdiction to convene an oral hearing.3 ANALYSIS [5] The determinative issue on appeal remains credibility. For the reasons that follow, I find the RPD did not err in its credibility assessment nor in determining the Appellant had not made out a sur place claim. The Appellant's actions were inconsistent with a subjective fear of persecution [6] The Appellant submits that the panel erred in finding the Appellant lacked a subjective fear of persecution because he chose to return to China when initially denied entry to Canada in XXXX 2018. The port of entry notes from this encounter indicate that the Appellant insisted he was in Canada for tourism and that he was not afraid to return to China. The Appellant explained that he did not know he could make a refugee claim at the airport and that the snakehead who had arranged his visa had instructed him to find a consultant in Chinatown after his arrival. He further indicated he was worried he would be detained in Canada for a long time. [7] The Appellant submits that the panel failed to consider that he was under difficult and unusual circumstances at the port of entry. He relies on the case of Lubana,4 where the Federal Court explained that while the failure to report certain facts upon entry could be a cause for concern, this is not always the case, and the Board should be mindful that most refugees have good reason to distrust authority figures. He further points out that he stayed with his cousin upon his return to China, rather than return home, and that he returned to Canada to make a refugee claim several weeks later. [8] While I agree with the Appellant that the Board should not be overzealous in relying on inconsistencies at the port of entry, in this case, the Appellant voluntarily returned to the country where he alleges a fear of persecution. Like the panel, I accept that the Appellant may not have known the process and may have been worried about detention. However, this does not adequately explain his behaviour. I agree that had the Appellant truly feared persecution, he would have found a way to express this rather than return to China, and that detention in Canada still would have been preferable to returning to a country where he believed he would be persecuted. Inconsistencies and omissions in the Appellant's evidence go to the heart of the claim [9] The Appellant is not challenging the RPD's determination that there were inconsistencies and omissions in his evidence, but submits that these issues were peripheral to the claim and do not go directly to his identity as a genuine Falun Gong practitioner. The panel noted the following issues in its reasons: PSB interest in friend * The Appellant provided inconsistent testimony on whether the Public Security Bureau (PSB) had gone to the home of his friend, a fellow Falun Gong practitioner. The Appellant indicated in his narrative that the PSB had not gone to their homes after their fellow practitioners were arrested. At the hearing, he testified that the PSB had been looking for his friend and that he learned this from the snakehead who arranged his visa in midXXXX XXXX 2018. He then testified that the PSB was not looking for his friend at that time. When asked to clarify this discrepancy by his counsel, he indicated that his wife told him in mid-June 2018 that the PSB had visited his friend's home. Group practice * The Appellant provided inconsistent evidence on when his group Falun Gong practice ended. In his narrative, he stated that the group leader cancelled practice in February 2018 after two group members were arrested. In testimony, he indicated that he continued his group practice up until he came to Canada in XXXX 2018. He confirmed this timeline when given an opportunity to clarify by the panel. Later, when questioned by his counsel, he indicated he had not heard the question properly and that the group practice had ended in February 2018. * The panel further determined the Appellant could not provide detailed evidence when asked to give examples of experiences shared by practitioners at the group practice. Significance of Falun Gong to the Appellant * In addition, the panel determined that the Appellant had failed to provide a sufficiently detailed or personalized explanation as to why Falun Gong is important to him. [10] Contrary to the Appellant's submission, I find these inconsistencies and omissions go to the heart of the claim. The PSB's interest in his Falun Gong group and the group leader's decision to end the practice precipitated the Appellant's decision to come to Canada to seek protection. His ability to recall details of the group practice, including when it ended and what went on during the sessions, goes directly to whether he engaged in group practice as alleged. Finally, his ability to explain the significance of his personal beliefs in Falun Gong go to whether he is indeed a genuine practitioner. The RPD did not err in making negative credibility findings. Sur place claim not credibly established [11] The Appellant further submits that the panel erred by not independently assessing whether he had established a sur place claim. He cites the case of Yin,5 where the Federal Court found the Board had erred in failing to assess the evidence on record of the claimant's religious activities in Canada and in simply concluding that he was not a Christian because he had not established his membership in a church in China. The Court found that the panel had failed to assess relevant parts of a pastor's letter and that it completely ignored another letter from a friend. [12] The present case is distinguishable. The panel reviewed the evidence provided by the Appellant, which consisted of a letter from a fellow Falon Gong practitioner, Ms. XXXX, and an undated photo of group practice in Toronto. It noted that Ms. XXXX did not appear as a witness, and that her letter did not explain why she believed the Appellant was a true believer. It further noted that the evidence did not indicate any requirements for participation in Falun Gong activities in Toronto, and so it would be possible for someone to participate without being a true believer. For these reasons, the panel ultimately concluded that while this evidence established that the Appellant had participated in Falun Gong activities in Canada, it did not establish his identity as a true believer and was not sufficient to overcome its credibility concerns. [13] The panel in this case assessed the evidence presented and explained why it was not giving it weight. It did not err in doing so. As the Federal Court found in Su, the Board may consider a claimant's motive for engaging in religious practice in Canada.6 Moreover, it is open to the Board to assess the genuineness of a claimant's religious practice in light of credibility concerns relating to the original authenticity of a claim.7 [14] While the panel found that the Appellant had demonstrated some correct knowledge of Falun Gong, a degree of knowledge and a single letter indicating participation in activities in Toronto are not sufficient to establish his genuine religious beliefs on a balance of probabilities. This is particularly so in light of the panel's finding that the Appellant was not able to adequately explain why Falun Gong was important to him-a finding which is not challenged by the Appellant on appeal. [15] The panel further noted that the Appellant had not alleged that his activities in Canada had come to the attention of Chinese authorities, and had not provided any evidence which would suggest as much. The Appellant has not challenged this finding on appeal. While I acknowledge evidence in the NDP which indicates the Chinese government monitors activities of Falun Gong practitioners in Canada,8 in the absence of any allegations or evidence in this regard, I find on a balance of probabilities that the Appellant's activities have not come to the attention of Chinese authorities. I further note that the Appellant has not alleged that anyone in China has been approached by the authorities because of his activity in Canada. I therefore agree with the RPD that a sur place claim has not been made out. [16] Based on the foregoing, I find that the RPD did not err and agree that the Appellant has not met his burden to establish his claim. CONCLUSION [17] For the reasons set out above, the RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Caitlin Maxwell" Caitlin Maxwell July 27, 2020 Date 1 Canada (MCI) v Huruglica, 2016 FCA 93, at para. 103. 2 Ibid., at para. 70. 3 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 110(6). 4 Lubana v Canada (Minister of Citizenship and Immigration), 2003 FC 116, at para. 13. 5 Yin v Canada (Citizenship and Immigration), 2010 FC 544, at paras. 85-91. 6 Su v Canada (Citizenship and Immigration), 2013 FC 518, at para. 18. 7 Jiang v Canada (Citizenship and Immigration), 2012 FC 1067, at para. 28; Hou v Canada (Citizenship and Immigration), 2012 FC 993, at para. 57; Yang v Canada (Citizenship and Immigration), 2012 FC 849, at para. 19. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for China (21 December 2018), Item 12.18, IRB Research Directorate, Response to Information Request CHN105635.E, "Monitoring of Chinese citizens who practice Falun Gong (Falun Dafa) outside of China; consequences upon return to China (2013-September 2016)," 19 October 2016. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-09474 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