TB9-11576

RAD File / Dossier de la SAR : TB9-11576 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 22, 2020 Date de la décision Panel Christopher Marcinkiewicz Tribunal Counsel for the person who is|are the subject of the appeal Mark Rosenblatt Conseil de la|des 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] The Appellant, XXXX XXXX XXXX a citizen of China, appeals the decision of the Refugee Protection Division (RPD), rendered March 26, 2019, rejecting his claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to substitute a finding that he is a Convention refugee or a person in need of protection or refer the matter to the RPD for redetermination.1 [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. As a result, this appeal is dismissed. BACKGROUND [3] The Appellant was introduced to Falun Gong in XXXX 2013 due to pain he was experiencing with his XXXX XXXXjoints. He eventually joined a secret group practice in XXXX 2013, however, the group stopped practicing in XXXX 2014 out of fear that the Public Security Bureau (PSB) will discover them. The Appellant stopped practicing entirely and along with his parents enlisted the help of a smuggler in order to leave China so that he could practice Falun Gong freely and safely. He first applied for a visa to the United States which was refused. The Appellant then obtained a Canadian visitor visa which he used to travel to Canada in XXXX 2014. Over a year later, in October 2015, he initiated a claim for refugee protection. ROLE OF RAD [4] My role is to look at all the evidence and decide if the RPD made the correct decision.2 Where I determine that the RPD had a meaningful advantage in assessing the credibility of the Appellant's evidence, I may defer to the RPD findings. Having listened to the audio recording of the RPD hearing and reviewed the evidence, I find that the RPD did not benefit from any meaningful advantage in assessing the Appellant's evidence in this case. NO NEW EVIDENCE, NO ORAL HEARING [5] The Appellant has not submitted any new evidence for the purposes of this appeal, nor does he request an oral hearing.3 As there is no new evidence, I must proceed without a hearing. ANALYSIS [6] The determinative issue for the RPD in this claim was credibility, including that related to the Appellant's identity as a genuine Falun Gong practitioner. The RPD found the Appellant's evidence regarding his health and circumstances leading up to his initiation, practice, and eventual stoppage of Falun Gong activities in China, undermined his account of having the medical condition he claims to have experienced. Additionally, the RPD took issue with the Appellant's delay in claiming refugee protection for over a year after his arrival in Canada, finding it "significantly undermined the credibility of the claimant's evidence".4 Similarly, the RPD drew an adverse finding in respect to the Appellant's reliance on false information in his Canadian visa application and therefore misrepresenting himself to Canadian government officials. The RPD found these credibility concerns were not overcome by his knowledge and practice of Falun Gong in Canada. [7] Ultimately, for these reasons, the RPD concluded the Appellant had not established, on a balance of probabilities, that he was a genuine Falun Gong practitioner in China nor is he one in Canada. Finally, the RPD rejected the Appellant's sur place claim as there is no evidence that he or his Falun Gong activities in Canada have come to the attention of Chinese officials. The Appellant has not challenged this finding. After conducting my own independent assessment of the evidence, I arrive at the same conclusion as the RPD. [8] The Appellant argues that the RPD erred in numerous respects. Specifically, it is argued: a. The RPD failed to apply the proper test for a plausibility assessment surrounding the Appellant medical and work conditions while in China, including his failure to change his work environment; b. The RPD erred in drawing a negative inference based on the Appellant's friend's failure to tell the Appellant of his Falun Gong practice earlier; c. The RPD failed to consider the Appellant's lack of sophistication when assessing his use of a smuggler in leaving China; d. The RPD erred in its assessment of the plausibility of the Appellant's explanation for the delay in claiming for refugee protection in Canada as he relied on advice of the smuggler; and e. The RPD unreasonably dismissed the Appellant's lengthy Falun Gong practice in Canada which strongly suggests a genuine commitment to the practice. [9] For the reasons that follow, I find the RPD was correct in finding that the Appellant is not and was not a genuine Falun Gong practitioner and therefore is neither a Convention refugee nor a person in need of protection. Initiation and Practice of Falun Gong in China [10] The RPD noted the dangerous reality of being a Falun Gong practitioner in China and considered the motivating factors and circumstances for the Appellant embracing the practice. Falun Gong Impact on Medical Issue [11] The RPD found the Appellant provided inconsistent testimony regarding the impact of Falun Gong practice on his joint/XXXX pain, as first the Appellant testified that within several months of practicing Falun Gong his XXXX pain was cured and he last had XXXX pain in XXXX 2013. When asked why he believed he was still pain free after arriving in Canada and having stopped Falun Gong practice in XXXX 2014, the Appellant now changed his testimony and stated that he did indeed have more pain, describing it as an itch. The RPD found the inconsistent evidence regarding the medical situation undermined the genuineness of his claimed condition. [12] The Appellant argues that his inability to consistently recall whether or not he was pain free between when he stopped the practice in XXXX 2014 while in China and XXXX 2014 when he resumed practice in Canada was within the range of plausibility as he "would honestly forget...given the lengthy passage of time. It is completely normal to forget this information over time".5 [13] Having independently reviewed the evidence, I find the RPD did not err as alleged. With respect, I disagree with the Appellant that this is a situation concerning the plausibility of the Appellant remembering or forgetting whether he was pain free. The issue, in my view, is that he provided inconsistent testimony, initially stating he was cured in 2013 shortly after starting Falun Gong and later changing his testimony that he indeed had the pain return. It is not an issue of forgetting as the Appellant did not testify that he did not remember when the pain ended or if it reoccurred. Instead he provided conflicting accounts and I note he was cautioned at the start of the hearing to state if he did not know the answer to a question and not to speculate or guess when giving responses.6 When confronted with the discrepancy, the Appellant tried to explain that it was just a little bit of pain and he did not know if it was the XXXX issue with his XXXX again or a joint issue and described it as sometimes feeling itchy.7 [14] I do not find this to be a reasonable explanation for the inconsistent evidence as the Appellant provided two different unreconciled accounts, one where he was pain free in XXXX 2013 and later trying to explain he had more pain, was unsure what caused it, and the feeling was more of an itch, which I find was more likely than not an attempt by the Appellant to downplay the inconsistency when brought to his attention, as opposed to actually explaining it. Treatment Locations [15] The RPD found the Appellant was unable to correctly identify one of the two hospitals where he claims to have received treatment for his joint/XXXX pain before turning to Falun Gong. The RPD found it reasonable to expect the Appellant to know the other hospital he attended for treatment on numerous occasions given that he had only attended two hospitals for care. [16] The Appellant argues the RPD erred by drawing a negative inference from his inability to recall the name of the hospital he received treatment. Specifically, it is argued it was unreasonable for the RPD to base such a finding given the passage of six years, and it is plausible and "completely normal" to not remember such information.8 [17] Having reviewed the record, I disagree with the Appellant that the RPD erred in respect to this evidence. While I agree that individuals may forget details with the passage of time, this was not the Appellant's evidence. He did not testify that he did not recall the name of the hospital, instead he gave the wrong name for the hospital he claims to have attended on numerous occasions for specific treatment for his XXXX/joint pain. When confronted by the RPD with the medical report bearing a different name of the hospital, the Appellant did not say he forgot, but rather first tried to explain that it was the same hospital, then explained it is two different places, and finally saying he thought he said it was the same hospital but it was actually two different places or locations.9 I reject the explanation as the Appellant first maintained it was the same hospital, then acknowledged it was in fact another one and only explaining he thought he said the correct hospital. [18] Finally, while I am mindful that details and memories may fade with time, the circumstances of the Appellant are not that he visited a dozen hospitals to seek medical care, which in my view, could reasonably explain him not knowing the name of one of them or mixing the names up. Instead, the Appellant visited only two hospitals over a span of about XXXX months and given his youthful age and no evidence of having memory problems, it would be reasonable to expect him to know the names of these hospitals, and if he did not, it was open to him to say so. His inconsistent evidence and lack of a reasonable explanation undermine his medical claim. Failing to Consider Changing Harmful Employment Environment [19] The RPD found that the Appellant believed his joint/XXXX pain was as a result of the humid work environment he was employed in, yet the Appellant remained in the same job and did not even contemplate leaving this job. The RPD found it implausible that the Appellant would not even consider changing his work environment given his belief it contributed to his medical issue and instead was willing to engage in Falun Gong, an illegal practice in China. [20] The Appellant argues the RPD erred by making an adverse credibility finding based on the Appellant not changing his employment situation and that this was plausible as he instead sought medical care for his medical issues and at no time was he advised by his doctor to change his employment. [21] I find the RPD did not err. In my view, the Appellant misses the point of the RPD finding as it was not so much concerned with him changing his work environment as with the fact that he believed it was causing his medical distress yet gave no thought to changing this environment or removing himself from it. I find it would be reasonable for someone in the Appellant's circumstances, if truly suffering a medical condition believed to be caused by their work environment, to at the very least contemplate and consider changing their work situation. Further, in my view, it would be implausible for any worker, regardless of their age, country or origin, or profession, to not give thought and consideration to leaving or changing their work conditions if they believed it negatively impacted their physical or mental health. The Appellant's lack of doing so undermines his claim that he believed his work was the source of his medical issues. [22] In summary, evidence surrounding the Appellant's medical issues and employment situation are crucial as they were what steered him towards Falun Gong practice. I find for the above reasons, on a balance of probabilities, that the Appellant did not experience the medical issues he claims resulted in him trying Falun Gong practice. Finally, the documentary evidence of the medical visits does not remedy or outweigh the lack of credible evidence directly from the Appellant in respect to these issues. Friend's Failure to Mention Falun Gong Earlier [23] The RPD found that the Appellant had no explanation for why his friend XXXX XXXX, who introduced him to Falun Gong, had not told him about his own Falun Gong practice until XXXX 2013 when he had already been practicing for a number of years. [24] The Appellant argues that it was an error to fault the Appellant for being unable to provide an answer as to why his friend did not tell him about his Falun Gong practice earlier. It is argued only the Appellant's friend is in a position to answer this question and as a result no negative inference should be drawn against the Appellant. [25] Having independently reviewed the record, I agree with the Appellant that the RPD erred. Specifically, the Appellant was not in a position to explain why his friend chose not to tell him about his own Falun Gong practice for years until XXXX 2013. That question would be better suited for the Appellant's friend as if they did not discuss this issue, the Appellant would only be speculating or guessing as to the reason. Instead he stated that his friend simply did not tell him he was a practitioner until that time.10 Although the RPD does not explicitly state how it treated this evidence, the inference I draw from the RPD's mention of this detail is that it negatively impacted the Appellant's credibility. However, in my respectful view, the Appellant can not be faulted for the actions of his friend and as such I draw no negative inference in respect to this evidence. Use of Smuggler and False Information to Come to Canada [26] The RPD considered the Appellant's circumstances at the time of engaging the use of a smuggler and providing false information to obtain a Canadian visitor visa, including the fact that he was not sought by the PSB and had voluntarily discontinued the practice as of XXXX 2014, and rejected his explanation that he did not know how to apply properly on his own as unreasonable as through some online research he could have found information on how to come to Canada legally. Further, the RPD found there was no evidence that there was a sense of urgency for the Appellant to leave China that would justify a need to apply for a Canadian visa with false information. Additionally, his lack of research regarding whether he could practice Falun Gong safely in Canada and not asking the smuggler about this detail, along with his testimony that his parents wanted him to "try out" living in Canada, led the RPD to draw a negative inference in respect to the Appellant's credibility. Finally, the RPD found this willingness to deceive by providing fraudulent information to Canadian officials was "not warranted by his personal situation".11 [27] The Appellant argues the RPD mischaracterized his evidence as he did not voluntarily stop practicing Falun Gong but rather did so when the group practice was halted in XXXX 2014 due to a belief the PSB may be cracking down on Falun Gong groups and his parents wanted him to stop practicing. Additionally, it is argued the decision to take the Appellant to a "risk-free environment" was made by his parents as the Appellant was "just 20 years old" and the RPD failed to take into consideration his "young age and lack of sophistication...when assessing plausibility".12 Finally, it is argued that "it is highly unlikely that he would have been able to obtain a Canadian visitor visa without the assistance of a snakehead".13 [28] I find that the RPD erred in part. I agree with the Appellant that the RPD erred by labelling his termination of Falun Gong practice as voluntary. It must be pointed out that the Appellant's evidence was more consistent with him stopping practice out of necessity, given the group stopped meeting out of fear of being identified by the PSB and his parents request that he stop practice in light of this information. I do not find, however, this error to be fatal to the overall analysis and decision of the RPD as the reality of the situation was that he stopped practicing for a short period of time. Further, this was at a time when he claims he was pain free and as a result, the medical reason for initially turning to Falun Gong by his account was resolved. [29] Having said that, I agree generally with the RPD that there was no sense of urgency to leave China that would warrant or justify his use of a smuggler and false information to Canadian officials. Firstly, I disagree with the Appellant's argument that he would be highly unlikely to obtain a visa if indeed he applied. There is no evidentiary basis for this argument and in my view, it is highly speculative. Additionally, if indeed the Appellant applied and was rejected, perhaps this argument would have some merit and likely would justify the use of a smuggler. However, his lack of any effort to come to Canada in lawful manner is indicative of the Appellant, given he was present for the meetings with the smuggler, and his parents, being willing and able to circumvent Canadian immigration laws to serve his personal interests. [30] I also agree with the RPD that there was no need to automatically resort to fraudulent means to gain admission to Canada. At the time of engaging the smuggler and using dishonest means to come to Canada, the Appellant was not sought by the PSB nor was he practicing Falun Gong. As a result, there was no urgency for him to leave the country justifying the use of the smuggler and false visa information. As pointed out by the RPD, it was open for the Appellant to do some basic research online on how to come to Canada legally, which he did not do. In my respectful view, it would be reasonable to expect the Appellant to research lawful ways to come to Canada before resorting to illicit means. His failure to do so undermines his credibility and indicates a preference to do things unlawfully if it serves his purpose. [31] While I agree the Appellant was a relatively young adult and his parents played a role in his departure from China, I do not agree that his age necessarily makes him unsophisticated or somehow less accountable. It is not as if he had no idea what was going on and his parents took care of all the arrangements with the smuggler. To the contrary, the Appellant was involved in meetings with the smuggler and understood the process that was being undertaken to obtain the Canadian visa with fraudulent information and then he was the one who reaped the rewards of the misrepresentations to arrive in Canada. [32] Based on the above, I find the Appellant is prepared to engage in, and resort to, deceit and misrepresentations before even pursuing legal avenues that may be available to him and when there is no necessity or justification for doing so. These actions, in my view, impugn his credibility. Delay in Claiming Asylum in Canada [33] The RPD found the Appellant's delay in claiming refugee status in Canada of some 15 months undermined credibility. Specifically, the RPD found the Appellant's lack of his visa or passport after arriving in Canada, and his lack of knowledge regarding the contents of these documents which gave him his status in Canada, undermined his subjective fear of returning to China. Further, the RPD found that an individual who is "truly fearful can reasonably be expected to claim refugee status at the first opportunity" and absent a reasonable explanation indicates a lack of subjective fear.14 Finally, the RPD rejected the Appellant's explanation that his smuggler told him he had a 10 year visa and that his parents wanted him to first decide if he liked Canada before claiming asylum, something the RPD referred to as "country shopping".15 [34] The Appellant argues that the RPD considered his evidence through a North American lens and logic as the Appellant relied on his smugglers advice which is within the range of plausibility. It is argued the Appellant truly believed he had legal status in Canada and as a result there was no sense of urgency in his mind to file a refugee claim. Further, the Appellant argues that his immediate resumption of Falun Gong practice after arriving in Canada is more probative in establishing his Falun Gong identity than the delay in seeking refugee protection and his continued practice for over 4 years renders the delay peripheral to the claim. [35] Having independently reviewed the record, I find the RPD did not err in its assessment of the Appellant's delay in claiming protection in Canada. I disagree with the Appellant that the RPD considered his evidence from a North American perspective. Rather, I find the RPD was correct to find that a true Falun Gong practitioner fleeing China and fearful of returning would make a refugee claim at the earliest opportunity, irrespective of their age or social upbringing. After all, that was apparently the sole purpose for coming here, to seek safety in order to practice freely. The Appellant testified that he knew Canada for its human rights and freedoms yet took no action for over a year to seek Canada's protection due to his Falun Gong practice. This, coupled with the significant sum of $XXXX XXXX XXXX paid to the smuggler for the sole purpose of getting the Appellant out of China and to Canada for safety,16 I find it is reasonable to expect someone in his situation to claim asylum immediately upon arrival, or shortly thereafter, as opposed to living undocumented after gaining admission on a false visa. [36] Moreover, I do not accept the Appellant's explanation that he truly believed he had status in Canada for 10 years as per his smuggler. To begin, even if the smuggler told him such information, the Appellant knew that his entire travel to Canada was based on misrepresentations and false information that resulted in a visa being improperly issued to him, therefore making his "legal" admission and stay in Canada precarious. Further, almost immediately after he came to Canada, he no longer had his passport or visa, two documents that could in theory attest to his personal identity and "legal" status in Canada, nor did he have a way to actually obtain these details if encountered by immigration or other Canadian officials, again making his time in Canada precarious and unstable. His cavalier attitude to being in Canada under false pretences and without any supporting documents calls into question the true purpose for arriving in Canada. [37] Further, I agree with the RPD that the Appellant's explanation that his parents wanted him to try out Canada to see if he would like it first before claiming asylum is highly problematic and indicative of someone who is "country shopping" and looking for a better life, as opposed to someone who came to Canada fearful after escaping potential persecution in China. I do not accept that a genuine Falun Gong practitioner, regardless of whether they were wanted by the PSB at the time or not and after spending a large sum of money to come to Canada, would wait to see if they like it here first before claiming asylum. [38] Finally, I disagree with the Appellant that his delay in claiming has become a peripheral matter given his continued practice of Falun Gong for approximately 5 years. In my view these are two separate issues as, while I acknowledge the Appellant practiced Falun Gong, I do not find that his motivation for doing so was genuine based on the totality of the evidence relating to actions he took prior to coming to Canada and shortly after his arrival where he did not seek the protection of the state he fled to. To take this analysis further, an individual may engage in illegal or immoral acts, and right after continue on with their otherwise law abiding life, but this does not excuse or expunge their prior transgression. As a result, I do not accept that his continuous practice for approximately 5 years in any way diminishes or outweighs his failure to claim asylum shortly after his arrival in Canada. Identity as a Genuine Falun Gong Practitioner Not Established [39] The RPD found that the Appellant had not established, on a balance of probabilities, that he was a genuine Falun Gong practitioner in China or that he came to Canada due to his commitment to the practice. The RPD found that while the Appellant was able to answer basic questions concerning Falun Gong and this information is available in the National Documentation Package (NDP), knowledge of the practice is vital but alone is not determinative of the genuineness of his practice in light of the other credibility concerns. The RPD considered other documentary evidence from the Appellant and acknowledged that it placed him in places and engaging in certain Falun Gong activities, the evidence does not speak to his motivation for doing so. As a result, the RPD found the Appellant was not a genuine Falun Gong practitioner in Canada and relied on the above referenced evidence simply to bolster his claim. Finally, the RPD found the Appellant has not come to the attention of Chinese officials here in Canada. [40] The Appellant argues that his practice over the span of the last 5 years is strong indication that he is a genuine Falun Gong practitioner and requires protection. It is also argued the RPD approached the Appellant's evidence with a "suspicious mind" and the RPD incorrectly dismissed the evidence from other practitioners attesting to the Appellant's practice.17 Finally, the Appellant argues the RPD erred by drawing a negative inference from his failure to join the Falun Dafa Association and speculating his Falun Gong knowledge was derived from the NDP. [41] I find that the RPD erred in part. Specifically, I agree with the Appellant that it was incorrect for the RPD to draw a negative inference from the Appellant's failure to join the Falun Dafa Association in Canada as this is not indicative of a genuine member. The evidence indicates some people join while others do not and the organization does not keep a list of its members.18 Similarly, I find that while the RPD simply noted that information on Falun Gong is contained in the NDP, by doing so it insinuated that this is how the Appellant obtained his knowledge, something not supported by the evidence. [42] Despite these errors, I find that the RPD was correct in finding that knowledge of Falun Gong is not determinative of one being a genuine practitioner. There may be occasions where genuine practitioners, especially if relatively new to the practice, have limited knowledge and conversely, there was be cases where individuals have considerable knowledge yet not be genuine practitioners. Further, while I acknowledge the Appellant has provided evidence of his practice in Canada and engagement in various Falun Gong activities, as pointed out by the RPD, this evidence alone does not necessarily reveal his motivation for doing so or if he is a true practitioner. In my view, his Falun Gong activities in Canada post arrival do not outweigh or overcome the other concerns related to his credibility and lack of subjective fear arising from actions in China and in Canada. [43] I disagree that the RPD viewed the Appellant's evidence with a suspicious mind. In my view, the RPD considered the entirety of the Appellant's evidence, including activities in China, along with efforts and subsequent actions after arriving in Canada, and found it failed to establish that he is a genuine practitioner. For the previously stated reasons, I agree with the RPD. CONCLUSION [44] The RAD dismisses the appeal and confirms 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 the IRPA. (signed) "Christopher Marcinkiewicz" Christopher Marcinkiewicz September 22, 2020 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 103-104, paras. 55-57. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Exhibit P-2, Appellant's Record, Written Statement, p. 15, paras. 1-2. 4 Exhibit RPD-1, RPD Record, RPD Decision, at para. 40. 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 97, paras. 22-23. 6 RPD Hearing, Transcript, p. 14. 7 RPD Hearing, Transcript, pp. 22, 24. 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 96-97, paras. 20-21. 9 RPD Hearing, Transcript, p. 21. 10 RPD Hearing, Transcript, p. 26. 11 Exhibit RPD-1, RPD Record, RPD Decision, at para. 31. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 98, para. 26. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 98, para. 27. 14 Exhibit RPD-1, RPD Record, RPD Decision, at para. 36. 15 Exhibit RPD-1, RPD Record, RPD Decision, at para. 38. 16 Exhibit RPD-1, RPD Record, Exhibit 1, p. 46, #7. 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 101-102, para. 46. 18 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China (21 December 2018), Item 12.19. Canada and China : The Falun Dafa Assocation of Canada. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-11576 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