TB8-19170

RAD File / Dossier de la SAR : TB8-19170 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 January 19, 2021 Date de la décision Panel Elana Rose Tribunal Counsel for the person who is the subject of the appeal Elyse Korman Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) dated July 27, 2018. [2] The Appellant seeks refugee protection based on a fear of persecution by the Public Security Bureau (PSB) for her suspected involvement in Falun Gong (FG) practice in China. In XXXX 2016 the Appellant was introduced to the practice of FG and in XXXX 2017 she joined an underground practice group which she attended regularly. On XXXX XXXX XXXX 2017 two members of the underground practice group were arrested and one week later, the Appellant was detained by the PSB for questioning and was released. The Appellant fled from China four months later in XXXX 2017 and filed for protection one month later on XXXX XXXX XXXX 2017. [3] I find the determinative issue is the credibility of the Appellant and her profile, and after an independent review of the record, I find that she has not established on a balance of probabilities that she is a genuine Falun Gong practitioner, nor has she established a sur place claim based on her practice of Falun Gong in Canada. As a result, I confirm the RPD's decision that the Appellant is not a Convention refugee or a person in need of protection. This appeal is denied. I find that the RPD was correct in their decision1. NEW EVIDENCE [4] The Appellant seeks to have new evidence admitted in this appeal, namely the Affidavit of XXXX XXXX dated XXXX XXXX XXXX 2018. The Affidavit is accepted. [5] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [7] The Affidavit which the Appellant seeks to admit, is dated after the RPD decision was issued, and is offered to explain an error in translation in reference to the Chinese Administrative Law contained in the original Administrative Punishment Decision provided by the Appellant.4 The evidence is new as the translation error was only noted when the Appellant received the RPD decision which directly referenced the Chinese Administrative Law. [8] The Appellant argues that the new evidence is probative and relevant as the RPD determined that the Administrative Decision was fraudulent based upon this error in translation. As the correction does speak directly to an issue raised by the RPD and contradicts a finding of fact made by the RPD in the decision, I find the translation error is relevant. I do not agree with the Appellant however, that the correction of this error is sufficient for the Refugee Appeal Division (RAD) to determine the Appellant to be determined to be a Convention Refugee, as that relates to the overall credibility of the entire document. [9] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.5 [10] In this case, I can assess the new document without holding an oral hearing. In addition, I find, for reasons discussed below on the merits, the new evidence is not determinative, as it would not justify allowing or rejecting the refugee protection claim. Even if the documentation is authentic it does not substantiate the Appellant's fear of persecution by Chinese authorities or her sur place claim. Therefore, I deny the request for an oral hearing. ISSUES IN APPEAL [11] The Appellant argues that the RPD erred with the following credibility findings: * The RPD cited no objective evidence supporting its conclusion that it was implausible that the PSB would release a suspected Falun Gong practitioner without conditions beyond a promise not to further practice. * The RPD determined the Administrative Punishment Decision ('APD') to be fraudulent without referencing objective law confirming the legislative provisions that should be referenced in an APD in the decision; without asking the Appellant about the error in reference to Chinese law contained in the original document; and erred as the new evidence confirms a translation error. * The RPD erred by impugning the APD as the Appellant used fraudulent documents to leave China. * The RPD incorrectly held the Appellant to a high level of knowledge of FG. * The RPD failed to consider the sur place aspects of the Appellant's activities outside the Chinese consulate. ANALYSIS Administrative Punishment Decision6(APD)and credibility of PSB interest [12] The RPD found the APD provided to the Appellant referred to the incorrect legislation governing the document; drew a negative inference from the Appellant's release from detention without conditions beyond a promise not to practice FG; and further drew an adverse credibility finding from the history of providing fraudulent documents to immigration authorities in the past, the APD was likely fraudulent. [13] The Appellant argues that the RPD erred. She submits that the new evidence confirms that the incorrect reference to the law in the APD was an interpretation error, which removes that as an obstacle from its authenticity. She further submits that as the RPD did not reference objective evidence when analysing the expectation of content and conditions in an APD and failed to put the issue of the incorrect naming of legislation to the Appellant, the RPD erred. [14] I have reviewed the APD and find, even accepting the new evidence, that the RPD was correct in finding the APD was fraudulent. [15] The Appellant presents several arguments with respect to the treatment of the APD in the RPD decision. Firstly, I do not agree with the Appellant that the RPD member was obligated to put to the Appellant that the APD referenced law not found in the objective material. Inconsistencies arising from the Appellant's evidence must be put to the Appellant, however, the same obligation does not arise between contradictions between claimant specific evidence and the objective evidence7. There is no obligation for the Board to point out what specific items of documentary evidence that it may rely upon either.8 [16] I do agree with the Appellant, however, that the RPD should have referred to an objective basis for determining that the Appellant would not have been released without conditions; or provided an objective basis for the conclusion that a reference to the article violated would be contained in the APD. That said, my independent review of the objective evidence and the Appellant's APD results in a finding that the APD submitted by the Appellant is inconsistent with the objective evidence in the NDP. [17] Article 969 speaks to the contents of the APD, setting out specific requirements for inclusion. It states that the Decision is to include not just the name of the individual, but also the number of the identity certificate of the individual subject to the Decision, which is notably absent from the one provided by the Appellant.10 I find this inconsistency detracts from the credibility of the APD document. [18] The Appellant's APD indicates that she was arrested for having 'illegal Falun gong group activities'11. The applicable legal provision relating to this activity is found in Article 27 of the Public Security Administration Punishments Law of the People's Republic of China12, which refers to breaches of social order through illegal religious activity. This article indicates that anyone who commits any of the following acts may be detained for not less than 5 or 10 days but not more than 10 or 15 days: Article 27: Anyone who commits any of the following acts may be detained for not less than 10 days but not more than 15 days, and may be concurrently fined not more than 1, 000 yuan. If the circumstances are relatively lenient, he (she) shall be detained for not less than 5 days but not more than 10 days, and may be concurrently fined not more than 5,00 yuan: (1) Organizing, instigating, intimidating, inducing or inciting any other person to carry out activities of any cult or superstitious sect or secret society, or disturbing the social order or impairing the health of any other person by using any cult, or superstitious sect or secret society, or superstitious activity; or (2) Disturbing the social order or impairing the health of any other person in the name of any religion or Qigong. [19] The governing law under the Act indicates a strict and serious approach to FG offenses. The Appellant testified that she was detained by the PSB for a 2-3-hour interrogation13 (Basis of Claim narrative states one half a day14) and she was released; the only requirement was to sign a guarantee letter. The Appellant offered evolving testimony on the contents of the guarantee letter, initially stating that she had to promise to no longer practice FG in order to secure her detention release; and then amended her testimony and stated that she had to promise that she has never been a FG practitioner and will not join in the future15. [20] The Appellant testified that her arrest and questioning arose after the arrest of two fellow Falun Gong members16; yet she was unable to explain in detail how she convinced the PSB that she was not a FG practitioner17 during the 2-3 hour interrogation. All the Appellant could offer was the repetitive answer that she told them she 'was not with Falun gong'. [21] Given that her APD indicates that she was arrested for FG activities, her evidence does not align with the treatment that is set out in the law itself, and is not consistent with the APD that she provided which indicates that the Appellant was arrested for participating in illegal FG activities. Objective sources confirm that religious and ethnic minorities, especially Falun Gong adherents, remain at risk of torture in custody, extra legal detention, heavy sentences after trials lacking due process and restrictions on hiring independent legal counsel. The bulk of the objective evidence lends itself to a very heavy hand when seeking out FG practitioners, overall18. [22] I find that the Appellant failed to establish the events of PSB detention and pursuit with sufficient credible evidence. Credibility is essential and the primary issue in every claim. This interaction is also tied to the reliability of the APD decision, and the past immigration conduct of the Appellant. [23] The Appellant correctly argues that case law supports that one cannot draw an adverse finding from a genuine refugee engaging with a smuggler to facilitate exit from danger in their home country; as fraudulent means are often essential as a method of exit, including providing fraudulent information in visa applications. This, however, is not the Appellant's situation. [24] The Appellant engaged in international travel prior to becoming an FG practitioner in 2017 and chose to use fraudulent means to secure access to foreign countries when she was travelling for leisure, and not fleeing persecution. When asked why she would use a 'snakehead' to secure travel visas to Europe and Japan in 2014, the Appellant testified that it was easier than finding a travel agency19. Her use of a smuggler coupled with the provision of false information to immigration authorities for travel purposes undermines her overall credibility. Past immigration history is relevant for assessing motivations and credibility of an applicant20. [25] The Appellant has proven capable of misleading immigration authorities as a pattern in the past, and this further undermines the genuineness of the APD, a document presented also to achieve an immigration goal.21 [26] I see no overall error by the RPD in its conclusion on the APD, although my analysis differs slightly. I find that the APD is fraudulent which undermines the credibility of the Appellant's claim. The Appellant failed to establish a genuine Falun Gong (FG) identity [27] The courts have held that it is difficult to measure faith and that it cannot be a knowledge-based analysis only;22 it is the genuineness of the beliefs that must be established. Since the knowledge of FG beliefs and the practice exercises can be memorized from the objective material found in the National Documentation Package (NDP),23 the onus was on the Appellant to provide sufficient evidence of genuineness or sincerity of her practice, especially where the continuation of the practice of FG could expose the Appellant to risk in his home country.24 [28] I find that the genuineness of the Appellant's practice was undermined by her inability to articulate certain core FG concepts in her own words, reflecting a thoughtful and meaningful attachment to FG, such that would compel her to abandon her family and country to seek refuge in Canada. [29] The genuineness of her faith and dedication is also undermined by her evidence on her practice. 'Through consistent and dedicated practice, the student of Falun Gong aspires to achieve a state of selflessness, greater insight and awareness, inner purity, and balance-the inner workings of what might be called true health'25 [30] The Appellant indicated that she began her home practice in XXXX 2016; attended group practice three times per week beginning in XXXX 2017, which continued until XXXX 2017 when she was detained. Her Background Schedule indicates that she became a member of a Falun Gong 'Cultivate' in XXXX 201626, offering a slightly different timeline. [31] She was asked about her practice between XXXXandXXXX XXXX 2017, after detention and prior to coming to Canada, and she spontaneously indicated that she 'wasn't doing anything at all'.27 When pressed by counsel to explain why she had stopped her practice at home, the Appellant amended her testimony and stated that she continued to practice FG at home. I find the Appellant's first spontaneous answer to be truthful and candid, and her lack of commitment to the practice of FG in her home does not reflect a level of dedication to her faith which is expected in a true FG practitioner. [32] It is through daily practice that one sends out righteous thoughts to target one evil being or a few evil beings, each day targeting the evil beings' persecution of Dafa. It may be that some religions place little value on knowledge, and therefore, it would be an error to expect adherents to value knowledge, however Falun Gong is a practice that places an importance on knowledge28 as well as practice. [33] The Appellant did not know the FG concept of Fa29; she did not recall the words to recite prior to the 4th exercise30. She testified that she only exercises with other people and reads Zhuan Falun alone31. She also indicated that she does not really understand the book. This runs afoul of the teachings of her faith, where learning and practice are essential32 and was not consistent with the level of practice alleged. [34] Other fundamentals in the FG practice include the concept of the Law wheel. The Appellant could not recall where in the body that was located, until after the mid-hearing break. [35] For the Appellant, the purpose of engaging in FG was to improve her health, however Master Li differentiates FG from qi gong- which is a practice that is designed to address health issues. Master Li states in his practice paper that FG is different from all other practice systems of qi gong as it focuses on cultivation33. The Appellant could not achieve this without practice and reading. Fundamental knowledge is essential for proper cultivation according to the theology.34 [36] The Appellant's answers to questions were brief, and while she knew a few exercises there was little depth of knowledge displayed of the philosophy behind this practice. The level of detail provided by the Appellant could easily have been obtained from a cursory review of FG information available online and in books, rather than from committed FG practice. I am not convinced based on the Appellant's general testimony about FG exercises and practice that she has established that she is a genuine FG practitioner, on a balance of probabilities. [37] A refugee claim may be rejected as lacking in credibility if the claimant's testimony is found to be incoherent or vague,35 or lacking in sufficient knowledge or detail reasonably expected of a person in the claimant's situation. The Appellant's inability to relay the philosophy of her faith spontaneously and display a basic knowledge commensurate with the length of practice alleged, was undermining of her genuineness. I find she did not provide sufficient credible evidence of a commitment to practice. [38] The Appellant offered limited details on her Canadian practice also. She indicated her Canadian practice began in XXXX 2017 when she first arrived, and that she attended a FG group parade in XXXXandXXXX XXXX of 2018, in front of the Chinese consulate; however, she became confused as to what the parades symbolized36. [39] The Appellant has provided one reference letter from a fellow practitioner37, which offers very general information about the writer and the Appellant, with no indication as to how the writer determines her to be a genuine practitioner. I give this letter little weight given the lack of substance provided. [40] This supporting letter, along with a few photographs of her with a group of people38, are insufficient to credibly establish the genuineness of the FG practice in the absence of other credible evidence. With one letter of support on the record, the Appellant has not garnered an impressive Canadian FG community support for her claim either. [41] The Appellant further rests her sur place claim on her attendance at two demonstrations in front of the Chinese consulate in support of her FG brothers and sisters. I agree with the Appellant that the RPD is duty bound to consider the evidence of the Appellant's activities outside of the Chinese consulate, and that the ramifications cannot be dismissed where her motivations are not genuine. [42] While it is true that there is objective evidence that Chinese authorities monitor the activities of Chinese dissidents outside of China39, the Appellant has not established with sufficient evidence that she, in the midst of all the protestors in front of the Consulate, has come to the attention of the Chinese authorities amongst the many pictures at the parade in her pictures. [43] There is no evidence in the record indicating that the Appellant or her family members in China have been contacted or mistreated due to her participation at a Canadian FG demonstration which occurred a year ago. In light of the objective evidence that family members of FG practitioners and dissidents can experience targeting by Chinese authorities, such as harassment, arbitrary arrest, and detention40, the Appellant has not established with sufficient credible evidence that her activities have raised any forward-looking risk. [44] I find that overall, the supporting evidence on the genuineness of practice in Canada before the RPD was insufficient to overcome the identified credibility concerns, and the RPD is entitled to import credibility findings into an assessment of a sur place claim.41 [45] These findings support the conclusion that the Appellant's FG activities were simply to bolster a fraudulent refugee claim. I also find that the Appellant is not a genuine FG practitioner, is not of interest to the PSB, and that she has not provided sufficient evidence that her FG activities have come to the attention of the Chinese authorities. [46] The Appellant has been in Canada for almost three years and there is no evidence before RAD that she has been of any further interest to the PSB since this one alleged detention either. She testified that she is not wanted by the PSB currently42. [47] Even had the Appellant established with sufficient credible evidence that she had been detained, her release with no conditions and unimpeded departure several months later, coupled with no evidence of further PSB interest in her or her family, confirms that she has no future risk from the PSB for any suspected past involvement. As the Appellant has not established her FG identity with sufficient credible evidence, there is no future risk for her as a practitioner on return. CONCLUSION [48] The appeal is dismissed, and I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Elana Rose Elana Rose January 19, 2021 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended 110(4). 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 4 Exhibit P-2, Appellant Record, Appellant Memorandum, at p. 9. 5 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, subsection 110(6). 6 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 205. 7 Osei, Gyana Nana v. M.E.I. (F.C.T.D., no. T-2992-92), Reed, November 17, 1993. 8 M.E.I. v. Zhou, Ting Yu (F.C.A., no. A-492-91), Heald, Desjardins, Linden, July 18, 1994. 9 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at Item 9.14. 10 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 204. 11 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 204. 12 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at item 9.14. 13 Transcript of [July 23, 2018], RPD Hearing, at pp. 17-18. 14 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 11, para 7. 15 Transcript of [July 23, 2018], RPD Hearing, at p. 18. 16 Transcript of [July 23, 2018], RPD Hearing, at pp. 17-18. 17 Ibid. 18 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at item 2.7, at p. 20. 19 Transcript of [July 23, 2018], RPD Hearing, at p. 7. 20 Matthew L.L Enright v Minister of Citizenship and Immigration (MCI) 2013 FC 209. 21 Wang v. Canada (Citizenship and Immigration), 2016 FC 184 at paras. 58. 22 Bouarif, Arezki v. M.C.I. (F.C., no. IMM-3108-19), Roy, January 15, 2020, 2020 FC 49. 23 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at item 12.33; Li Hongzhi, ?Falun Dafa, "Chapter IV: The Falun Gong Practice System, Falun Gong, 6th Translation Edition", September 2014; item 12.7, Li Hongzhi, Falun Dafa, "Chapter V: Questions and Answers, Falun Gong, 6th Translation Edition", September 2014. 24 Su, Hao Wen v. M.C.I. (F.C., no. IMM-7356-12), Gleason, May 17, 2013, 2013 FC 518, at para 18; and Bouarif, Arezki v. M.C.I. (F.C., no. IMM-3108-19), Roy, January 15, 2020, 2020 FC 49. 25 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at item 1.17 at p. 10. 26 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 33. 27 Transcript of [July 23, 2018], RPD Hearing, at p. 26. 28 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at item 12.32 at p. 1. 29 Transcript of [July 23, 2018], RPD Hearing, at p. 12. 30 Transcript of [July 23, 2018], RPD Hearing, at p. 13. 31 Ibid., p. 14. 32 Ibid, at p. 73. 33 Ibid, at p. 19. 34 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at item 12.32. 35 Chen v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16469 (FC). 36 Transcript of [July 23, 2018], RPD Hearing, at p. 27. 37 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 207. 38 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 210-214. 39 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at item 12.31. 40 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (April 30, 2018) at item 12.27; 1.17 at para 2-4. 41 Jiang v. Canada (Citizenship and Immigration), 2012 FC 1067 (CanLII). 42 Transcript of [July 23, 2018], RPD Hearing, at p. 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-19170 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