TB9-25115

RAD File / Dossier de la SAR : TB9-25115 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 July 28, 2020 Date de la décision Panel Karen Wallace 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 (the Appellant) is a citizen of China. She fears persecution in China because she is a Falun Gong (FG) practitioner and FG is banned in China. [2] The Refugee Protection Division (RPD) rejected the Appellant's claim because they found that she is not credible. They did not believe that she is a genuine FG practitioner because she had limited knowledge of key FG concepts, provided inconsistent evidence about when she learned the fifth FG exercise, and did not provide any letters of support from family in China. [3] The Appellant is appealing the RPD decision. She argues that the RPD applied too high a standard to her understanding of FG concepts, and erred in its assessment of the Appellant's credibility based on microscopic or peripheral issues. [4] No new evidence has been submitted in this appeal. An oral hearing is not requested. [5] The determinative issue in this appeal is whether the RPD erred in assessing the credibility of the Appellant and the genuineness of her FG practice. DECISION [6] The appeal is allowed. The Appellant is a genuine FG practitioner. I substitute my own decision that the Appellant is a Convention refugee. BACKGROUND AND ALLEGATIONS [7] The Appellant began her FG practice in 2017 after a friend recommended FG to help the Appellant deal with health difficulties she was experiencing from menopause. She began attending group practices in XXXX 2017. In XXXX 2018, her family asked her to stop practicing due to the risk of being caught by the authorities, but she refused to give up FG. She decided to leave China with the help of a smuggler and came to Canada in XXXX 2018 so that she could continue practicing FG without risk. She applied for refugee protection in August 2017. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I have conducted my own independent analysis of the evidence. This included listening to the recording of the RPD hearing and reviewing all the documents submitted. The RPD erred in its assessment of the Appellant's credibility [9] The RPD determined that the Appellant is not credible. I disagree with that determination for the reasons that follow. I find that the Appellant is credible, and that her sworn testimony is presumed to be true. The Appellant did not provide inconsistent evidence about learning the fifth FG exercise [10] The RPD found that the Appellant provided inconsistent evidence about when and where she learned the fifth FG exercise and made a negative credibility inference based on the inconsistency. The Appellant testified that she learned the fifth exercise in Canada. The RPD found that the Appellant's Basis of Claim narrative states that she learned it in China. I disagree and find that the RPD misconstrued the evidence regarding the fifth exercise. [11] The Appellant's narrative states that a friend "came to my home to practice with me before I mastered the 5 sets of exercises and learned how to send righteous thoughts. This lasted XXXX XXXX XXXX XXXX XXXX." The paragraph that follows states: "During group practice, the practitioners practiced the first 4 exercises and sent righteous thoughts together."2 [12] When read together, these paragraphs are not inconsistent with the Appellant's testimony that she knew of the fifth exercise in China, but the group did not practice it, and she did not learn it until she came to Canada. [13] The Appellant's narrative does not state that she learned the fifth exercise in China. It states that her friend came to her home to practice with her before she mastered the five exercises. [emphasis added] There is more than one way to interpret what is written. The RPD interpreted what is written in the narrative to assume that the Appellant learned the fifth exercise in China. [14] The RPD erred in making a negative credibility inference based on their mistaken assessment that the Appellant provided inconsistent evidence about when she learned the fifth exercise. Furthermore, I agree with the Appellant that this is a peripheral or minor issue that is not determinative of the genuineness of the Appellant's FG practice. The lack of letters of support from China does not support a negative credibility inference [15] The RPD made a negative credibility inference because the Appellant did not provide letters of support from her family in China who have firsthand knowledge of the Appellant's FG practice. The RPD found that the Appellant was not wanted by the authorities at the time she left China, so this reduces any risk she or her family would face in sending letters of support abroad. [16] The Appellant argues that the RPD erred in finding that there is no risk in sending letters of support from China. She relies on the National Documentation Package (NDP) for China, which states that the authorities in China often fail to respect the privacy of citizens. They monitor telephone calls, text messages, faxes, emails, instant messaging and other digital communication that is intended to be private. They also open and censor domestic and international mail.3 [17] The NDP also reports that family members of known FG practitioners can be detained and questioned, and subjected to harassment and mistreatment by the authorities.4 In this context, together with lack of privacy for citizens in China, the RPD erred in determining that there is minimal risk to the Appellant or her family in sending letters of support from China. [18] As a result, there is no basis for a negative credibility inference based on the lack of letters of support from China. The Appellant displayed substantial knowledge of FG concepts and exercises [19] The Appellant was questioned in depth about several FG concepts and exercises. She displayed considerable knowledge of many concepts and very in-depth knowledge of the five exercises. She also provided many personal examples of how her FG practice has changed her character and approach to life. [20] The Appellant had knowledge of key FG concepts such as righteous thoughts, the law wheel, the third eye, karma and achieving buddha body. She knew the three guiding principles of FG (truthfulness, compassion and forbearance) and that the purpose of FG is to cultivate yourself to a higher level. [21] I agree with the RPD that the Appellant provided confusing answers to the questions she was asked about the key FG concept of attachments. However, during the hearing, the translator was mixing up the word for attachments with the word for karma when translating. The translator also stated that many of the words the Appellant used when talking about attachments have more than one meaning.5 When the Appellant's answers are assessed with the knowledge that the word "karma" was used in translation instead of "attachments", her answers make sense. The stories she told about personal situations, such as envy of a friend's large home, returning a product to the store that she wasn't charged for, or resolving an argument with a neighbour over chickens, make sense if she is describing situations involving karma instead of providing examples of attachments. [22] Due to the translation error, I disagree with the RPD's determination that the Appellant lacked knowledge of the concept of attachments. When she was asked more about the concept when she appeared to understand the translation, she said that anything that a person pursues and will not give up is an attachment and talked about jealousy as the most harmful attachment.6 [23] The Appellant testified that she has only eight years of formal education, her literacy level is not very high, and some parts of the Zhuan Falun book are hard for her to understand.7 In this context, I find that the Appellant displayed considerable knowledge of key FG concepts. She also displayed very detailed knowledge of the five FG exercises and was able to describe their purpose, benefits, and how to physically conduct them. [24] Based on this level of knowledge I find, on a balance of probabilities, that the Appellant is a genuine FG practitioner. The Appellant's supporting documentation establishes her FG activity in Canada [25] The Appellant's continued involvement in her FG practice in Canada is another indication that she is a genuine practitioner. She provided detailed testimony about her individual home practice, how she found her FG group in Toronto, how often and where she attends group practices, and where she goes to give out FG pamphlets to the public.8 [26] The Appellant provided photographs of herself 9 participating in a parade in Toronto protesting the persecution of FG practitioners, and engaging in FG exercises in outdoor locations in Toronto. [27] The Appellant also provided a letter from a fellow FG practitioner10 which states that they met the Appellant in XXXX 2018 and often participate in FG exercises and study with her. [28] The RPD gave these documents no weight due to their credibility concerns. I have determined that the RPD erred in its credibility findings. Therefore, the letters are given weight to establish that the Appellant participates in FG activities in Canada. The Appellant's fear of persecution in China is well-founded [29] Objective evidence in the NDP establishes that the Chinese government view FG as an evil cult that is a threat to the Communist government. The government is actively attempting to crack down on and contain the spread of FG. National security laws ban cult organizations like FG, and those belonging to cults can receive sentences of up to life in prison.11 The persecution of FG practitioners is well documented. The NDP establishes an objective basis for the fear of persecution of FG practitioners in China. [30] Given the Chinese government's very active interest in containing the spread of FG, and the Appellant's testimony that she cannot abandon her beliefs, there is a serious possibility of persecution of the Appellant, if she returns to China. [31] If the Appellant returned to China and continued her FG practice, it is more likely than not that she will come to the attention of the authorities in China in the future and will face more than a mere possibility of persecution, including arrest and detention, simply for being a FG practitioner. [32] There is no state protection or internal flight alternative for the Appellant in China. The state is the agent of persecution. CONCLUSION [33] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Karen Wallace Karen Wallace July 28, 2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit RPD-1, RPD Record, Exhibit 2, p. 22. 3 Exhibit RPD-1, RPD Record, exhibit 3, National Documentation Package (NDP) for China (June 28, 2019), item 2.1 at p. 19. 4 Exhibit RPD-1, RPD Record, exhibit 3, National Documentation Package (NDP) for China (June 28, 2019), item 12.22. 5 RPD Hearing Recording, August 15, 2019, at 1:08 and 1:15. 6 RPD Hearing Recording, August 15, 2019, at 1:30 and 1:39. 7 RPD Hearing Recording, August 15, 2019, at 1:37. 8 RPD Hearing Recording, August 15, 2019, at 0:33:35 to 0:38:55. 9 Exhibit RPD-1, RPD Record, exhibit 5, p.148. 10 Exhibit RPD-1, RPD Record, exhibit 5, pp.167-169. 11 Exhibit RPD-1, RPD Record, exhibit 3, National Documentation Package (NDP) for China (June 28, 2019), item 12.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-25115 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