TB4-07167

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 File No. / N° de dossier de la SAR : TB4-07167 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 26, 2014 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Petar Lulic Barrister & Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, (the Appellant) is a citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be Convention refugee, or in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] As a result of a terrible flood in his hometown of August 2013, his best friend was washed away saving the Appellant's life. The resulting dizziness, headaches, and nightmares were not treated effectively by medical intervention. As a result, on September 15, 2013, the Appellant accepted the ministrations of a friend regarding the practice of Falun Gong as a means of dealing with these issues. Because of the improvement in his health through his practice of the Falun Gong exercises, the Appellant joined a Falun Gong group on October 20, 2013. On XXXX XXXX XXXX 2014 the Appellant was out of town and received a call that his Falun Gong group was discovered at 8 PM that day, and some of the members were arrested. The Appellant went into hiding and informed his wife. On January 7, 2014, the Appellant received a call from his wife stating that the Public Security Bureau (PSB) had visited his home for the purpose of arresting him. The PSB continued to visit the Appellant's home, and as a result the Appellant found an agent and left China, arriving in Canada after traveling through the United States of America (USA). The Appellant fears return to China in that his participation in Falun Gong would cause the PSB to arrest him, put him in jail, and torture or kill him. [4] The Appellant's application for refugee protection was heard on June 27, 2014. In a decision of July 17, 2014, the RPD rejected his claim finding that there is insufficient evidence to support that the Appellant has been persecuted or that he would be in the future. [5] In the Appellant's Memorandum of Appeal, the Appellant respectfully requests that the RAD set aside the decision and find that the Appellant is a Convention refugee. In the alternative, the Appellant requests that RAD refer the matter back to the RPD for redetermination. In that no new evidence was submitted, an oral hearing will not be held. Memorandum of Appeal [6] In the Memorandum of Appeal, the Appellant disagrees with specific information provided in the decision. The Appellant argues that the RPD erred in some of its credibility findings, and that the Board's decision was based on speculation and plausibility. [7] The Appellant argues that the Board should have separated the credibility concerns with respect to his Falun Gong activities in China with his identity as a Falun Gong practitioner in Canada. [8] The Appellant argues, with supporting case law, that the decision rejecting the Appellant's exit from China using his own passport is flawed. [9] The Appellant argues that the RPD erred in its decision regarding the adequacy of the Appellant's Falun Gong knowledge. ROLE OF THE RAD [10] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [11] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. CREDIBILITY Note [12] Although the Appellant's memory was not at issue in the Memorandum of Appeal, the issue was addressed in the RPD decision as well as in counsel submissions at the hearing. In addition, the Appellant issued an affidavit, concerning this issue, with the Memorandum of Appeal. Given the inconsistencies noted by the RPD in its' decision, the RAD gives deference to the RPD in this finding. The RAD finds that the Appellant's stated lack of memory was not a determinative issue in his claim for refugee protection. [13] The RAD gives deference to the RPD's adverse finding regarding the Appellant's evolving testimony regarding hiding at a friend's place while in China. The basis of the finding was the Appellant's sworn testimony that he did not leave his place of hiding until he departed China for the USA and Canada. The Appellant changed his testimony when challenged by the RPD regarding acquiring his USA visa. The affidavit submitted by the Appellant states that he misunderstood the panel's question, and meant that he did not live anywhere else. In reviewing the Appellant's testimony on the audio recording of the hearing, the RAD does not accept the Appellant's explanation as reasonable or credible. The Appellant clearly stated that he never left his hiding place until he left China. The RAD will not disturb the RPD's finding on this issue. [14] The RPD's finding the Appellant's potential risk of discovery and detention by visiting the USA consulate in Shanghai is not a strong finding. The RPD's finding is speculative, and not based on any IRB documentation. This RPD finding is not a determinative issue in deciding the Appellant's refugee status. The RAD in reviewing IRB documentation,2 and listening to the audio recording of the hearing, provides the following information. The Appellant testified that the smuggler had helped to acquire a USA visa. The Appellant also testified that he went to the visa office for an interview. The Appellant in his testimony and in his Basis of Claim (BoC) narrative indicated that the PSB were searching for him in order to arrest him. The RAD doesn't find it plausible that the USA consulate would issue a visa to a person who was a wanted felon in China. This issuance of a USA visa provides support that the Appellant was not wanted by the authorities in China for the practice of Falun Gong, and the RAD concurs with the RPD's finding. [15] The RPD found that the Appellant would be unable to leave China if he was wanted by the PSB for the practice of Falun Gong. The RPD provided documentation supporting its decision regarding the Appellant's inability to leave China. [16] The Appellant argues that in a Response to Information Report (RIR) CHN 36091.80 deals with the possibility of errors been made at the airport. The RAD rejects this argument in that the documentation referred to was produced in 2001 and is no longer in the National Documentation Package. There is more current documentation available, as referenced below. The RAD does not accept this documentation as probative given that more current documentation exists. [17] The Appellant refers to Zhang3 to support to his argument. In that case, the reviewing court took exception to the RPD's findings when it concluded that possible hundreds of officials had to be bribed to facilitate undetected departure from China. [18] The Appellant argues that he used the services of a snakehead to leave China and that it is reasonable to assume that the snakehead used by the Appellant had the means of avoiding detection by airport officials. [19] The RAD is not persuaded by the Appellant's argument that these cases are similar. The RAD notes that in the Zhang matter, the Appellant provided testimony that officials were bribed. There is no such evidence in the case at hand. The Appellant merely testified that his exit was facilitated by the snakehead. Furthermore, in the case at hand, the RPD did not engage in the speculation that hundreds of officials would have to be bribed. [20] More importantly, the decision in Zhang was based on the documentary evidence that existed in 2008 and made no reference to the Golden Shield Project which was relied upon by the RPD in this case. In the Zhang matter, the reviewing court made reference, as stated above, to a 2001 RIR which addressed security and exit control procedures at Chinese airports. The documentary evidence before the RPD, in this case, however, on issues of security and exit control is contained in RIR CHN102869.E dated July 2008. The RIR states in part: In March 2008, the General Administration of Civil Aviation of China (CAAC), China's aviation regulator, reportedly introduced new security regulations (Airport International 17 Mar. 2008; Xinhua 27 Mar. 2008). The regulations instruct airport security to conduct a more thorough examination of hand luggage, to ban liquids on flights (ibid.; Airport International 17 Mar. 2008), and to have passengers remove their shoes for security checks (Xinhua 27 Mar. 2008). The regulations additionally prohibit "easy Boarding" services, which had previously allowed passengers to obtain faster security checks and priority Boarding (ibid.; Airport International 17 Mar. 2008). According to a 27 March 2008 article by the Chinese Xinhua News Service, the CAAC has also requested that all international airlines provide "accurate," "complete" and "timely" information on passengers and airline staff to the Chinese border authorities (Xinhua 27 Mar. 2008). The requested information reportedly includes name, nationality, gender, date of birth and passport number and expiration date (ibid.). [21] Based on the foregoing, it is clear security practices have become increasingly stringent in recent years in China and that there a number of systems now in place to identify persons leaving the country. The RPD's findings with regard to the Appellant's departure from China should not be disturbed under the circumstances. . The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.4 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.5 In this case, there is an evidential foundation for the RPD's findings. The RAD concurs with the RPD's credibility finding on this. [22] The panel finds, on a balance of probabilities that it would be highly improbable to make arrangements to leave China on your passport if you are wanted by the PSB, given the number of people that would have observed the Appellant's electronically transmitted information. [23] The RPD's finding that the Appellant did not demonstrate subjective fear by not making a claim in the USA has some merit, but the RAD finds it is not a determinative issue in this claim. DETERMINATIVE ISSUE The Appellant's Practice of Falun Gong in China and Canada [24] The RAD concurs with the RPD's findings that the Appellant was not a genuine Falun Gong practitioner in China or in Canada. The Appellant disagrees with this issue in the decision and states that the RPD held the Appellant to an unrealistically high standard of knowledge of Falun Gong and imposed its own understanding of Falun Gong upon the Appellant. The RAD disagrees. The RAD, in listening to the audio recording of the hearing, concurs with the following findings of the RPD. [25] The Appellant's lack of knowledge of "righteous thoughts" is not credible. According to the documentation cited in the RPD's decision, the giving of righteous thoughts, "sending for righteous thoughts" is a meditation ritual in Falun Gong, a technique performed in addition to the other five meditative qi Gong forms the compromise exercise system of Falun Gong. For the Appellant to have no knowledge of this, given his alleged experiences in both China and Canada, supports a finding that those alleged experiences did not in fact occur. [26] When the Appellant was asked to describe his practice of Falun Gong in China, he testified that they do: "Not much... After the gathering we cleaned up the place." In additional questioning by the RPD, and written in the decision, the Appellant indicated that the Falun Gong practitioners did not talk to each other, and left the room when they finish their exercises. Master Li indicates that just doing Falun Gong exercises without the study of the philosophy, Zhuan Falun, does not make one a Falun Gong practitioner. He states that is necessary to do both. In this case, the Appellant who indicated that he did not read, and did not have a copy of any of the Falun Gong materials, it would be imperative that such information was shared. The group organizer, according to the Appellant, did not say anything. The RAD finds the Appellant's testimony not credible. Without this knowledge, the Appellant is just practicing another qi Gong exercise, and according to Master Li Hongzi is not a true Falun Gong practitioner.6 [27] According to the Appellant's testimony, he goes every Sunday to XXXX XXXX to practice the exercises of Falun Gong, but does, "[n]ot much" aside from this practice of exercises. The Appellant testified that he does not own any of the Falun Gong books or literature. The Appellant gave inconsistent testimony regarding his reading ability when he testified that when he has problems reading "the book," he will ask others to read it to him and explain to him the characteristics of Falun Dafa. The RAD finds that the Appellant's alleged practice of Falun Gong is not consistent with that of a genuine Falun Gong practitioner. [28] The RAD concurs with the RPD that the photographs submitted are not determinative or probative in making a determination that the Appellant is a genuine Falun Gong practitioner. The photographs of the Appellant practicing, and distributing flyers cannot and do not establish the genuineness of the Appellant's practice. Sur place [29] Although the sur place was not specifically addressed in the Memorandum of Appeal, the RAD considered the issue. [30] The RAD is cognizant that the Board is entitled to take its negative credibility findings into account when assessing the sur place claim of Falun Gong practice as per Ding7and Jiang8. As outlined above, the Appellant's allegations of genuine Falun Gong practice in China, and his being wanted by the PSB for his practice were found not to be credible. The RAD is also cognizant that it is reasonable to take into account the fact that the Appellant fabricated the allegations in assessing the genuineness of the Appellants' practice and to consider the Appellants' motive for practicing Falun Gong as per Su.9 [31] The RAD is guided in its analysis by a decision of Madam Justice Gleason in Li,10 in assisting it in assessing its forward-looking decision. Madam Justice Gleason concludes that an Appellant must stratify the RPD that he or she will continue to practice his or her faith in China. According to Li: Proof of joining a church and knowledge of its precepts, however, does not equate to proof that the individual would be at risk if returned to his or her country of origin. In the context of a country such as China, where persecution is practiced against Christians not for apostasy but for the practice of their religion, the Appellant must satisfy the RPD that he or she will continue to practice his or her faith in China.11 [32] Based on the totality of the evidence, and considering that the allegations of genuine Falun Gong practice in China were found not to be credible; and given the concerns with the evidence provided in support of his practice, the Appellant has failed to provide sufficient credible and trustworthy evidence to establish a genuine Falun Gong practice in Canada and that he would practice Falun Gong in China. [33] The RAD finds that no persuasive evidence was produced to show that the Appellant came to the attention of the Chinese authorities. [34] The RAD finds that, on the basis of the totality of the evidence in this appeal, the Appellant 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 danger of torture by any authority in China. The Appellant has alleged that the RPD erred in rejecting his claim. The RAD finds no such errors and, upon review of the evidence, has reached the same conclusion as the RPD. [35] The RAD finds that the RPD should have reasonably concluded that there was No Credible Basis for the claim. Section 107(1) and 107(2) of IRPA states: 107. (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the Appellant is a Convention refugee or person in need of protection, and shall otherwise reject the claim. (2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim [emphasis added]. [36] The RAD, after reviewing all of the documentation and hearing information in this file, believes that the RPD ought to have made a finding of No Credible Basis. Disposition [37] The RAD has found that the RPD decision can stand it will not be disturbed. CONCLUSION [38] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Robert S. Garner" Robert S. Garner November 26, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit 3, Item 14.3, Exit controls and security measures at airports in China for mainland citizens traveling overseas and to Hong Kong. Code: CHN102869.E Source: Immigration and Refugee Board of Canada Date of Document: 8 July 2008. 3 Zhang, Xiu Jie v. M.C.I. (F.C., no. IMM-3703-07), Dawson, April 23, 2008; 2008 FC 533. 4 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 5 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 6 Zhuan Falun, Turning The Law Wheel, February 2003, North America. 7 Ding, Lijie v. M.C.I. (F.C., no. IMM-3708-13), Mactavish, August 22, 2014; 2014 FC 820. 8 Jiang, Sumei v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012 FC 1067. 9 Su, Hao Wen v. M.C.I. (F.C., no. IMM-7356-12), Gleason, May 17, 2013; 2013 FC 518. 10 Li, Shi Jie v. M.C.I. (F.C., No. IMM-8521-11), Gleason, August 15, 2012; 2012 FC 998. 11 Ibid, para. 32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07167