TB9-26560

RAD File / Dossier de la SAR : TB9-26560 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 29, 2020 Date de la décision Panel Elana Rose 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] XXXX XXXX (Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) dated September 18, 2019. [2] The Appellant fears returning to China as she is a Falun Gong (FG) practitioner. She has been practicing since June 18, 2016, after her friend XXXX XXXX introduced her to the practice to assist with her sleeping and medical issues. The Appellant engaged a smuggler and obtained a Canadian visitor's visa on XXXX XXXX, 2016. She left China on XXXX XXXX, 2017, six months after the visa was issued, arriving in Canada on the same day. The Appellant claimed for refugee protection one year later.1 [3] The Written Statement of the Appellant indicates that she is not relying on any new evidence. As the Appellant has not provided any new evidence, pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA),2 and has not requested an oral hearing, no hearing is required. ISSUES IN APPEAL [4] The Appellant argues that the RPD erred in their credibility findings by engaging in overly microscopic examination and questioning like a trivia quiz,3 and failed to consider the Appellant's circumstances,4 holding the Appellant to an unreasonably high standard. The Appellant also argues that delay is generally not a sufficient basis for dismissing a claim.5 The Appellant asks that the appeal be allowed and that the claim be remitted to the RPD for re-determination by a differently constituted panel. [5] The RPD drew an adverse credibility finding on the Appellant's 11 month delay in claiming and risk associated with being out of status,6 and did not find that the Appellant's level of knowledge of practice and FG theory supported that she is a genuine FG practitioner. [6] My role is to look at all the evidence and decide if the RPD made the correct decision.7 I find the determinative issue to be credibility. I do not find that the Appellant provided sufficient credible evidence establishing her appeal and for the reasons that follow, the appeal is dismissed. ANALYSIS The Appellant failed to establish herself as a genuine FG practitioner with sufficient credible evidence [7] The Appellant submits that the RPD erred in holding the Appellant to a high level of knowledge, and the microscopic assessment of her answers to questions around knowledge of Zhuan Falun resulted in an error in the RPD finding. [8] As the Appellant submits, there is Federal Court jurisprudence, including that cited by the Appellant, which cautions against determining religious identity on the basis of a refugee appellant's religious knowledge; as, it is not the microscopic knowledge of religion that is essential, it is the sincerity of faith. [9] In following the jurisprudence, I must also consider the nature of the religion or practice. It may be that some religions place little value on knowledge, however, this is where FG is differentiated. FG adherents are expected to study, gain knowledge and practice. The objective evidence establishes that knowledge is an important component of FG (also referred to as Falun Dafa): The foundation of Falun Dafa consists of a body of fundamental knowledge essential for the task of undertaking proper cultivation towards higher stages of attainment. It comprises Master Li's teachings collected in a number of books, the most important of which being Zhuan Falun (Revolving the Law Wheel); and China Falun Gong is a good summary of principle and exercise recommended for the beginners. Much of the teachings are highly classified knowledge that are hitherto imparted exclusively from master to trusted disciples since antiquity in China.8 [10] As the foundation of FG is a body of fundamental knowledge, essential for the task of undertaking proper cultivation, it would be rather difficult for a purported FG practitioner, who has been studying for some length of time, to claim to have little of this fundamental knowledge. [11] The Appellant stated that she embraced the practice of FG in 2016. She testified that she pursued it to assist with some medical issues, however, after engaging in group practice for four months she no longer attended and just practiced at home daily.9 The Appellant also indicated that she attended group practice in Canada once a week for the past two years and therefore has attended over 100 times, in addition to continuing her home practice.10 Therefore, she alleges a lengthy and dedicated practice. [12] I have reviewed the record and I do not agree with the Appellant that the RPD was overly microscopic or submitted the Appellant to a trivia quiz. In fact, the questions that were posed by the RPD spoke directly to the central tenets and basics of the FG belief and practice, all of which are contained in the objective documentation in evidence. It would be reasonable to expect the Appellant, who voluntarily left her country and family in order to safely practice FG in Canada, to demonstrate a level of fundamental knowledge commensurate with her experience in the practice and alleged dedication. [13] The Appellant mentioned several times during the hearing that she does not understand the books written by Master Li; as a result, she must ask her friends to help her.11 She also explained that she does not understand even the basic concept of "attachment".12 [14] When asked about the importance of sending righteous thoughts and the method of sending righteous thoughts the Appellant's testimony was vague and full of pauses.13 While the Appellant has been practicing daily for years, and in groups weekly, she was confused over the purposes of some of the exercises, providing answers like "I can't remember",14 or "I can't tell you details of the exercise but it has a good benefit".15 The Appellant's knowledge and understanding of FG did not reflect the level of practice and engagement that is alleged, and the RPD was correct to draw an adverse finding in this area. [15] The Appellant abandoned her group practice in China, after four months, as she was cured of her insomnia and medical condition.16 This also runs afoul of the teaching of Master Li, as FG practice is not designed to cure medical issues. [16] Master Li differentiates FG from qi gong, which is a practice that is designed to address health issues; "Qigong healing eliminates the root cause of illness".17 Master Li states in his practice paper that FG is different from all other practice systems of qi gong as it focuses on cultivation.18 The Appellant's lack of continuation of group practice, where she stated she learned from friends as she still does not understand the teachings of Master Li, is not consistent with being a genuine FG adherent. While features of FG cultivation methods include synergy of mind and body believing to lead to a longer life and a deterrence to aging, its purpose is not to cure health issues,19 as worrying about health issues actually detracts from practice and cultivating which is the primary goal of FG.20 [17] In testimony the Appellant is heard defaulting to the phrase "truth, compassion and forbearance,"21 in an effort to display her FG knowledge; however the reference to a phrase that can be memorized, offered unrelated to the questioning, is not sufficient to credibly establish that she is a genuine FG adherent. [18] While the Appellant testified that she has been involved in other FG activities in Canada other than attending parades, when asked to articulate what those activities were, she stated that she "can't remember".22 [19] Given the incoherent and vague testimony provided by the Appellant at the hearing, and the lack of sufficient knowledge or detail reasonably expected of a genuine FG practitioner, I find that the RPD did not err in drawing an adverse finding on the Appellant's FG identity, as is supported by the caselaw.23 [20] I also agree with the RPD that the Appellant's only supporting evidence, two photographs of the Appellant participating in an FG activity in Canada,24 are insufficient to overcome the deficiencies with the Appellant's evidence on identity. They do not establish a forward-looking risk as there is no evidence that these two photographs have come to the attention of the Chinese authorities. This finding by the RPD was uncontested by the Appellant. The Appellant's delay in claiming undermines her credibility [21] The Appellant engaged a smuggler to assist with access to Canada for the purpose of seeking safety to continue as an FG adherent; yet, she did not claim for refugee protection until she had been in Canada for one year, and when she claimed, she had been out of status and at risk of deportation for six months. [22] The Appellant argues that the RPD should not make delay a determinative issue.25 It is true that someone who is truly fearful can reasonably be expected to claim refugee status at the first opportunity;26 and while it is not generally a decisive factor, the circumstances of the delay is a relevant element to be taken into account.27 [23] My review of the record confirms that delay was not determinative, and therefore, the RPD did not err. It was an additional factor that the RPD considered in the context of the Appellant's overall credibility. [24] In addition, I also agree with the RPD that the failure of the Appellant to provide a reasonable explanation for remaining at risk of deportation to China for six months, prior to claiming for protection, reflects adversely on her overall credibility. CONCLUSION [25] The Appellant has failed to provide sufficient credible evidence of genuine FG practice and belief, and therefore she has not established forward looking risk if returned to China. As such, 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, pursuant to paragraph 111(1)(a) of IRPA. (signed) Elana Rose Elana Rose September 29, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 44. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 Exhibit P-2, Appellant's Record, Appellant's memorandum, at pp. 15, 16. 4 Exhibit P-2, Appellant's Record, Appellant's memorandum, at p. 17, referencing Lin v. Canada (Citizenship and Immigration), 2012 FC 288, at para 61. 5 Exhibit P-2, Appellant's Record, Appellant's memorandum, at p. 15, referencing Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.); Soueidan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 956. 6 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 5, paras 8-12, referencing Mesidor v. Canada (Citizenship and Immigration), 2009 FC 1245, at para 12. 7 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China (June 28, 2019), item 12.9, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR), CHN33180.EX, November 26, 1999. 9 RPD Hearing Recording, July 31, 2019, at 17:20 onwards. 10 RPD Hearing Recording, July 31, 2019, at 22:00-23:20. 11 RPD Hearing Recording, July 31, 2019, at 25:00. 12 RPD Hearing Recording, July 31, 2019, at 25:00-28:28. 13 RPD Hearing Recording, July 31, 2019, at 30:00-35:20. 14 RPD Hearing Recording, July 31, 2019, at 36:00. 15 RPD Hearing Recording, July 31, 2019, at 36:55. 16 RPD Hearing Recording, July 31, 2019, at 41:02. 17 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (June 28, 2019), item 12.7, at p. 10. 18 Ibid., at p. 19. 19 Ibid., at p. 22. 20 Ibid., at p. 71. 21 RPD Hearing Recording, July 31, 2019, at 57:58. 22 RPD Hearing Recording, July 31, 2019, at 52:54. 23 Chen v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16469 (FC). 24 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 93. 25 Exhibit P-2, Appellant's Record, at p. 15, para 8. 26 Espinosa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1324. 27 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-26560 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