TC0-09557

RAD File / Dossier de la SAR : TC0-09557 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 28 April 2021 Date de la décision Panel R. Stratigopoulos Tribunal Counsel for the person who is the subject of the appeal Wennie Lee 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) is a citizen of China. He is appealing a decision of the Refugee Protection Division (RPD) dated July 13, 2020, rejecting his claim for refugee protection. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee/person in need of protection. No new evidence was presented, and as such I have not convened an oral hearing. The determinative issue in this appeal is credibility. BACKGROUND [3] The Appellant fears the Chinese authorities because of his practice of Falun Gong. The Appellant alleges he started practicing Falun Gong in XXXX 2017 to help him with his health following an accident where he was hit by a car. In XXXX 2017, he joined his cousin's Falun Gong underground practice group. Although Falun Gong benefited the Appellant's health, he and his parents argued over his continued practice. Their opposition grew stronger when they became aware of the arrest of a classmate of the Appellant's uncle who was also a Falun Gong practitioner. The Appellant decided to leave China for a country where he could practice Falun gong freely. With the help of a smuggler the Appellant obtained a Canadian visa and came to Canada on XXXX XXXX XXXX 2018. The Appellant made a claim to refugee status on September 26, 2018. ANALYSIS [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I may defer to the RPD on a credibility finding where the RPD had a meaningful advantage in assessing and weighing the credibility of the oral evidence. I do not find that the RPD had any meaningful advantage in making its findings. [5] The RPD determined that there was insufficient evidence that the Appellant was a bona fide Falun Gong adherent. The RPD was unpersuaded by the reasons that the Appellant provided for joining a Falun Gong practice group and found it unreasonable that he would join the group, given the associated risks, when he could have simply continued to practice in the privacy of his home. Further, the RPD found that it was unreasonable that the Appellant would not have simply practiced at home rather than leaving his family and coming to Canada. Finally, the RPD determined that the Appellant was not a refugee sur place owing to his Falun Gong activities in Canada. [6] The Appellant argues that RPD made erroneous credibility findings as there were no substantive contradictions, omissions or implausabilities in his testimony. He also argues that the RPD erred when it expected him to practice Falun Gong discreetly and in private, contrary to Federal Court jurisprudence. Finally, the Appellant has argued that the RPD erred in its sur place assessment. The Appellant was a credible witness [7] After conducting an independent assessment, I find that the RPD did err in finding that the Appellant was not a bona fide adherent of Falun Gong. The Maldonado2 principle in refugee law outlines that sworn testimony is presumed to be true unless there are reasons to rebut that presumption. The Appellant provided clear and concise testimony at his hearing. He testified that following his accident, that left him hospitalized for over XXXX days in a XXXX-month period, he was introduced to Falun Gong by his cousin and started to practice it in XXXX 2017. He also testified that XXXX months later he joined his cousin's practice group because his cousin told him that he could benefit more from a group practice. The testimony of the Appellant was not inconsistent with his Basis of Claim (BOC) form, there were no omissions, and no implausabilities. A review of the record shows that the Maldonado presumption was not rebutted. [8] The only instance where the RPD drew a negative inference regarding the Appellant's credibility was in relation to his testimony about why he decided to leave China. The RPD determined that in this area, the Appellant's testimony evolved and was inconsistent. The Appellant testified that once his parents learned of the arrest of his uncle's classmate, they asked him not to continue his practice.3 The Appellant also added that his parents stopped him from going to group practice.4 The Appellant was asked by the RPD why it was not written in his BOC form that his parents had stopped him from attending group practice and he stated he did not know that he should have written that portion. I have listened to the Appellant's testimony in this regard, and I do not find it to be evolving or inconsistent as the RPD determined. The Appellant's parents wanted him to cease his practice because they feared his arrest and detention, this concern was heightened following the arrest of the uncle's classmate. This is consistent with the information that he provided in his BOC form, that his parents wanted him to stop practicing Falun Gong. The RPD erred in its finding, the Appellant was credible in his testimony regarding his impetus to leave China. [9] The RPD found the Appellant's motivation and explanation for joining a group practice to be unreasonable. The Appellant had seen his symptoms improve from home study, and his cousin told him of the group study. The Appellant testified to the benefits of group study and to the safety precautions that the group undertook to avoid detection and arrest. I find his explanation to be reasonable. [10] The RPD found that the Appellant could have returned to practising in private and that his symptoms would improve, and that he would mitigate the risk of possible arrest. I find that the RPD is correct that this would mitigate against the risk of arrest. If the Appellant practiced only at home, it is likely that only his parents and cousin would be aware of his adherence to Falun Gong and the probability of being arrested diminishes significantly. I do not agree with the RPD that it was implausible that the Appellant would have continued with his group practice. The Appellant perceived that there were additional improvements with such practice. The Appellant testified to the benefits of group practice, including help with certain things he did not understand in relation to Falun Gong. The Appellant reasonably explained that group practice had additional benefits beyond those he gained from practicing at home, alone. The RPD erred in limiting the Appellant's practice to his home [11] The RPD continuously stated that even if the Appellant was a Falun Gong practitioner, it was not persuaded that the Appellant could not simply leave his group practice and continue to practice in the privacy of his own home. The Appellant argues that the RPD erred by expecting him to practice in secret in the privacy of his home. I agree with the Appellant. The Appellant testified that he benefited from group study, he studied with other practitioners which was helpful when he had problems understanding, was led by an instructor, and that group practice produced more energy build.5 The Appellant provided reasonable answers as to the benefits he received from group practice. The RPD expectation of the Appellant is contrary to the case law. As the Appellant has provided, the Federal Court has found that it is not up to the RPD to determine how a claimant should practice their faith.6 More so, in a similar matter regarding Falun Gong the court seems to accept the notion that one should not have to be limited to practicing his religion in private or in quiet.7 The RPD is correct that the Appellant was not involved in promoting Falun Gong publicly, criticizing the Chinese authorities, or proselytizing. However, the Appellant was attending group practice in China, the group had safety precautions in place, he was benefiting from the group practice, and he wanted to continue his practice in that manner. In light of this, the RPD erred when it determined it was unreasonable that the Appellant would not simply have practiced Falun Gong at home. The Appellant is knowledgeable about Falun Gong [12] The RPD found the Appellant to be relatively knowledgeable with respect to Falun Gong. A review of the record shows that the Appellant was able to speak to the practice exercises 1-5 and he was able to explain exercise 2 when asked by the RPD. The Appellant was able to explain the notion of sending out righteous thoughts and the position the practitioners are in when doing so. The Appellant testified that he studied the Zhuan Falun, he was able to correctly answer that the book contained nine talks and was also able to provide some detail on the second talk, jealousy. The RPD attempts to discount his knowledge, noting that Falun Gong materials are readily available in Canada and that the Appellant, being young and alone, has had time to accumulate this knowledge while awaiting his hearing. This is pure speculation and an error on behalf of the RPD. The record shows that the Appellant, at the time of his hearing, had been practicing for over three years. I find that the Appellant demonstrated knowledge of Falun Gong that is commensurate for someone that has been practising weekly for the last three years and there is no evidence that this knowledge was acquired to bolster his claim. [13] In Canada, the Appellant has continued his practice of Falun Gong, he testified to attending group practice on Saturdays and Sundays and that he was part of a study group on Fridays. He has attended a Falun Gong anti-persecution parade along with a Shen Yun gala. The Appellant has also presented a letter of support from a fellow practitioner in Toronto. The RPD notes that no evidence was provided to corroborate the letter writer's identity but has not drawn any negative credibility inference. [14] In summary, I find that the Appellant has established that, on a balance of probabilities, he is a genuine Falun Gong practitioner. Treatment of Falun Gong practitioners in China [15] In China, the practice of Falun Gong has been banned and it is perceived by the authorities to be an "evil cult." Contrary to the RPD finding that the Appellant's motivation was not spiritual, the record shows that the Appellant was concerned about karma and attachments returning to him, that he felt a connection with the group, and that there was a higher energy build. The documentary evidence shows that Falun Gong practitioners are subjected to residential detention and criminal, and other forms of administrative punishment.8 Falun Gong practitioners are perceived as political opponents to the Chinese authorities and are treated as such. Some 20 years after Falun Gong was made illegal in China, practitioners continue to receive long prison terms and others are arbitrarily detained in 'legal education' facilities.9 There have even been some reports that Falun Gong prisoners have had their organs harvested.10 I find that the objective evidence shows that Falun Gong practitioners in China are persecuted by the Chinese state. Should the Appellant return to China, even if he practiced in secret, he would run the risk of being discovered and being persecuted. As the state is the agent of harm, there is no state protection available to him, and similarly, no viable internal flight alternative. CONCLUSION [16] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Ron Stratigopoulos R. Stratigopoulos 28 April 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.) 3 RPD Hearing Recording, March 5, 2020, at 30:02. 4 Ibid., at 31:03. 5 Ibid., at 21:20. 6 Mohebbi v. Canada (Citizenship and Immigration), 2014 FC 182, paragraph 10. 7 Mu v. Canada (Minister of Citizenship and Immigration), 2004 FC 1613, paragraph 9. 8 National Documentation Package for China, 30 October 2020, item 1.10, page 33, paragraph 3.98. 9 Ibid., item 2.7, page 14. 10 Ibid., item 1.8, page 44, paragraph 6.3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-09557 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