TB9-25108

RAD File / Dossier de la SAR : TB9-25108 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 4, 2020 Date de la décision Panel Devika Ratnayake Tribunal Counsel for the person who is the subject of the appeal Hart A. Kaminker Barrister and Solicitor 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] I dismiss this appeal. XXXX XXXX ("Appellant/Ms. XXXX") is citizen of China. She fears persecution based on her alleged Falun Gong practice. The Refugee Protection Division's (RPD's) hearing was held on July 29, 2019. By reasons, dated August 23, 2019, the RPD rejected her claim. [2] Ms. XXXX alleged she started practicing Falun Gong in June 2017 while in China. Ms. XXXX was not wanted by the Chinese authorities either at the time she left China or thereafter. Notwithstanding, in consultation with her family in China, Ms. XXXX travelled to Canada in XXXX 2018 because she wanted to practice Falun Gong freely. Since arriving in Canada, Ms. XXXX continues practicing Falun Gong both privately and in a group. Ms. XXXX fears returning to China because Falun Gong is outlawed there, and she has been publicly active in her Falun Gong practice in Canada. [3] The RPD rejected the claim based on lack of credibility and insufficient evidence. Ms. XXXX asserts the RPD erred in its credibility finding by engaging in microscopic analysis of her Falun Gong knowledge. As well, she argues that the RPD erred in its sur place assessment because it was not based on an independent assessment of her Falun Gong activities in Canada but rather was based on its finding that she was not a genuine Falun Gong practitioner in China. She asserts that the RPD failed to provide any evidentiary basis for its sur place finding. [4] The RPD rejected the claim citing the following reasons: (a) although Ms. XXXX demonstrated some knowledge of Falun Gong concepts and exercises, she lacked knowledge of some important Falun Gong concepts that undermined her alleged profile as a practitioner of over two years; (b) the documentary evidence did not establish the genuineness of Ms. XXXX practice and was insufficient to overcome the credibility concerns identified; and (c) insufficient evidence that Ms. XXXX participated in Falun Gong activities in Canada and/or that such practice in public spaces has come to the attention of the Chinese authorities. [5] The Appellant's arguments can be broadly categorized as follows: (a) The RPD erred in its credibility assessment because it engaged in an overly stringent and microscopic analysis of her Falun Gong knowledge; and (b) The RPD erred in its sur place claim because it did not assess the genuineness of her Falun Gong activities in Canada independent of its assessment of the genuineness of her Falun Gong practice in China. [6] The determinative issues for the RAD are whether the RPD erred in its credibility and sur place assessments by engaging in a microscopic analysis and failing to assess Ms. XXXX conduct in Canada. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [8] My role is to look at all of the evidence and decide if the RPD made the correct decision.1 Credibility The genuineness of Ms. XXXX Falun Gong practice. [9] Ms. XXXX alleged that she was drawn to Falun Gong practice because of her XXXX XXXX. Ms. XXXX testified that she started practicing Falun Gong on June 19, 2017. While in China, she practiced daily at home and once a week with a group. After coming to Canada in XXXX 2018, in addition to continuing her daily home practices, she practiced in a group each Saturday and Sunday. Ms. XXXX testified she read the Zhuan Falun almost daily; she owns a copy and has read the entire text. In essence, this means that, at the time of the RPD's hearing, Ms. XXXX would have engaged in more than 500 at-home practices and more than 150 group practices. [10] Relying on Zhang2 and Ren,3 the Appellant argues that the RPD assessed her testimony based on its own subjectivity regarding how much detail she ought to have provided, expected that she uses the exact terminology as what is found in the objective documentary evidence about Falun Gong in a verbatim manner, and judged the genuineness of her faith based on merely a couple questions and made an implausibility finding. [11] Zhang and Ren are distinguishable. In this case, the RPD did not engage in a manner of questioning that amounted to a debate between scholars on the correct interpretation of theology, as the RPD was found to have done in Zhang, or adopt an unrealistically high standard of knowledge that was not commensurate with someone of Ms. XXXX alleged practice profile, as it was found in Ren. The RPD's questioning in this case was not microscopic. [12] Further, in Zhang, the evidence established without a question that the Appellant had been regularly practicing Christianity in Canada. He submitted numerous documents from various religious establishments, including a letter from his pastor and his baptism certificate. In this case, there was only one brief handwritten and unsworn letter from someone who purportedly practices Falun Gong with Ms. XXXX. [13] While the Federal Court has consistently cautioned against a microscopic examination of an applicant's religious knowledge, it has also held that, in assessing the sincerity of an applicant's religious belief, the RPD is entitled to assess an applicant's knowledge of the details of the religion. The question of whether an inquiry is microscopic is a factual determination based on the transcript and reasons.4 [14] In this case, the RPD asked open-ended and follow-up questions and assessed Ms. XXXX responses commensurate with the degree of knowledge that could be fairly expected from someone with Ms. XXXX alleged profile. The RPD was alert to Ms. XXXX level of education and the frequency of her alleged Falun Gong practice and considered them in its credibility assessment. [15] Based on my independent review of the Appellant's record, I find the RPD did not err in drawing a negative credibility inference based on Ms. XXXX vague and inconsistent testimony regarding fundamental aspects of the Falun Gong practice. [16] For instance, according to documentary evidence in the Immigration and Refugee Board's (IRB's) Response to Information Request (RIR) in the National Documentation Package (NDP), the sending of righteous thoughts is a fundamental practice in Falun Gong because it is believed to play a critical role in reducing the persecution of the Dafa people by evil forces.5 The main force considered to persecute Falun Gong practitioners is the Chinese Communist Party. However, Ms. XXXX testimony was that sending righteous thoughts was to cleanse oneself, remove distractions and get rid of evil, which is vague and inconsistent with the stated purpose. In light of her testimony that she has been sending righteous thoughts daily, reading almost daily from two Falun Gong texts and the centrality of righteous thoughts to Falun Gong, I find the Appellant ought to have known the purpose of sending righteous thoughts. It was not an error for the RPD to have expected the same. [17] Further, questions regarding the purpose of a practice, in my view, are broad and cannot be equated or reduced to the level of what a detail entail. As well, I find that, given the stated purpose of sending righteous thoughts was to reduce persecution, it would have particularly resonated with Ms. XXXX, if she was fleeing her country because of the Chinese Government's persecution of Falun Gong practitioners. [18] Similarly, based on my independent review, the RPD was correct to find that Ms. XXXX responses regarding the purpose of the fifth exercise was vague, evolving and not reflective of someone with Ms. XXXX alleged practice profile. While the documentary evidence indicates that the purpose of the fifth exercise is to increase one's supernatural abilities, the audio recording of the RPD's hearing indicates that Ms. XXXX testified its purpose variously as being about goodness, truthfulness and tolerance; to cultivate the mind's character; adding strength; and improving character through exercise. Given Ms. XXXX stated level of experience, the RPD did not err in drawing a negative inference from her varied and evolving testimony regarding the fifth exercise. [19] Finally, I find it was not an error for the RPD to draw a negative inference with respect to Ms. XXXX alleged regular study of the book Zhuan Falun. It was Ms. XXXX testimony that, based on her study, Chapter 3 of the Zhuan Falun included the five exercises, the law wheel in the abdomen, and ways to get rid of karma. The RPD noted that this is inconsistent with what is contained in Chapter 3, and, while there are some general references to exercises throughout the book, they are not all named or contain instructions on how to perform the five exercises either in the third talk or anywhere else in the Zhuan Falun. [20] To conclude, based on my independent review, I find that the RPD properly assessed Ms. XXXX testimony objectively, applying the appropriate standard of knowledge commensurate with her education and alleged practice profile. The RPD was correct in its credibility assessment. Sur place claim [21] In addition to her identity documents, Ms. XXXX submitted four photographs6 and a letter from Ms. XXXX XXXX with the biographic page of Ms. XXXX Canadian passport7 in support of her activities in Canada. [22] The RPD found that the photographs on their own were insufficient to establish the genuineness of her practice and were insufficient to overcome the credibility concerns identified. Further, the RPD noted that the author of the letter referred only to practicing with Ms. XXXX and not the genuineness of Ms. XXXX practice. The RPD also noted that the author was not present at the hearing, and, as such, it was unable to corroborate matters such as the genuineness of Ms. XXXX practice, when Ms. XXXX allegedly began practice, or other details such as the reason Ms. XXXX started to practice in China. Lastly, the RPD found there was insufficient evidence to find her participation in Falun Gong activities in public spaces in Canada has been brought to the attention of Chinese authorities. [23] Ms. XXXX submits that the RPD erred because its finding regarding her sur place claim was largely based on its erroneous credibility determinations, and the RPD did not assess whether she had become a genuine Falun Gong practitioner in Canada. [24] For reasons already articulated by the RAD, the RPD was correct in its credibility findings. Regarding Ms. XXXX Falun Gong practice in Canada, in the RAD's independent assessment of the sur place claim, I have considered whether there is sufficient credible evidence of Ms. XXXX Falun Gong activities in Canada which would result in a well-founded fear of persecution, or cruel and unusual treatment or punishment upon her return to China. I must independently consider the evidence in relation to the sur place claim, even if the motivation behind such activities was not in good faith. [25] I have considered the objective evidence that Falun Gong practitioners outside of China may be monitored by Chinese authorities. A source at the Falun Dafa Association of Canada indicated that the monitoring was described as photographing protesters outside the embassy or consulates, surveillance at Falun Gong parades, and infiltration of community groups and university campuses in cities with Falun Gong communities. The extent and consequences of such monitoring is inconclusive, as "very little documentary evidence exists" related to the monitoring of Falun Gong practitioners outside of China and the potential consequences they face upon their return to China. [26] I have considered the letter from Ms. XXXX XXXX, an alleged Falun Gong practitioner in Canada. The letter states that the author met Ms. XXXX at a Falun Gong group practice in February 2018, and they practice together on a weekly basis. Given that it is a handwritten and unsworn document which does not speak to the genuineness of Ms. XXXX practice or where and when Ms. XXXX may have been handing out pamphlets in Canada, I accord the letter little weight. [27] In addition, Ms. XXXX submitted four photographs in support of her Falun Gong activities in Canada, which photographs she testified that she had asked a bystander to take. They capture what appears to be Ms. XXXX performing exercises outside in an open space and handing out pamphlets. While these photographs establish that Ms. XXXX may have been part of an exercise performance and has handed out pamphlets, they do not establish the genuineness of her Falun Gong practice or that the activities may have been under surveillance by the Chinese authorities. [28] Regardless of whether the RPD erred by relying on its credibility assessment of Ms. XXXX activities in China, I concur with the RPD that there is insufficient evidence to find, on a balance of probabilities, that Ms. XXXX Falun Gong activities in Canada have come to the attention of the Chinese authorities. There is no evidence that Ms. XXXX public activities in Canada occurred near the Chinese consulate or at a university campus where, according to the objective evidence, there may be an increased likelihood of being photographed or monitored by the Chinese authorities. Given the objective evidence indicates that very little documentary evidence exists related to the monitoring of Falun Gong practitioners outside of China and other reasons articulated in the foregoing paragraphs, I find that there is insufficient evidence to support a sur place claim. CONCLUSION [29] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Devika Ratnayake Devika Ratnayake September 4, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 2 Zhang, Haixhin v. M.C.I. (F.C., no. IMM-2216-11), Campbell, May 4, 2012, 2012 FC 503. 3 Ren, FeiHu v. M.C.I. (F.C., no. IMM-1558-15), Boswell, December 18, 2015, 2015 FC 1402. 4 He, Wei v. M.C.I. (F.C., no. IMM-1115-16), McVeigh, October 27, 2016, 2016 FC 1196, at para 15. 5 NDP for China (December 20, 2019), item 12.25, Righteous thoughts, Falun Dafa, 13 October 2002. 6 Exhibit RPD-1, RPD Record, at pp. 104-105. 7 Exhibit RPD-1, RPD Record, at p. 108. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-25108 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français