TB7-23676

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 File / Dossier de la SAR : TB7-23676 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 3, 2018 Date de la décision Panel T. Cheung Tribunal Counsel for the person(s) who is(are) the subject of the appeal Nkunda I. Kabateraine Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX, is a citizen of China who is appealing the decision of the Refugee Protection Division (RPD) dated November 9, 2017, which rejected his claim for refugee protection. DETERMINATION [2] I have reviewed the testimony at the RPD hearing, the RPD decision, the documentary evidence, and the Appellant's arguments. For the reasons elaborated below, I find the Appellant is a genuine Falun Gong practitioner who has a subjective fear of persecution if he is to return to China. [3] As such, the appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. BACKGROUND AND OVERVIEW [4] The Appellant began practising Falun Gong in XXXX 2016 while he was in Guyana working as a XXXX and later as a XXXX in a XXXX XXXX. According to the Basis of Claim (BOC), the Appellant was introduced to Falun Gong to alleviate his low spirits caused by the separation from his family, and exhaustion and pain from work. The Appellant stated that he could not afford the medical expenses to alleviate the symptoms. [5] According to the BOC, the Appellant quit his job in Guyana in XXXX 2016, and he returned to China. He initially did not practice Falun Gong for the first month back in China, because he could not connect with any Falun Gong practitioners since Falun Gong is illegal in China, and people are prohibited from discussing Falun Gong publicly. The benefits of Falun Gong dissipated as a result of the Appellant not practising Falun Gong. When the Appellant started practising Falun Gong again in China, it became apparent to him that Falun Gong was a very important part of his life. He decided to leave China for the purpose of practicing Falun Gong. [6] According to the BOC, the Appellant left China on XXXX XXXX, 2016, and flew to New York. He was taken by a smugger to Seattle, and from there, he entered Canada illegally. He travelled to Toronto where he had a friend who helped him settle. The Appellant alleges he began practising Falun Gong as soon as he arrived in Toronto. As he was not being sought by the Chinese authorities, he was unaware he could make a refugee claim in Canada until he learned 7 months later that he can make a refugee claim on grounds that he cannot practice Falun Gong freely in China.1 [7] The Appellant argues that the RPD made the following errors: a. The RPD erred in drawing a negative inference from the absence of the Appellant's passport when identity was not an issue, and the Appellant did not allege that he was being sought by the Chinese authorities.2 b. The RPD erred in drawing a negative inference from the Appellant's delay in making a refugee claim, as the delay was not overly lengthy and should not have influenced the RPD's decision.3 c. The RPD erred in finding that the Appellant is not a genuine Falun Gong practitioner, as the RPD Member applied an overly stringent and microscopic examination of the Appellant's knowledge of Falun Gong.4 STANDARD OF REVIEW [8] The applicable standard of review of an RPD decision is correctness on questions of law, fact, or mixed fact and law where there is no issue of credibility in the oral evidence. 5 The RAD can accord deference when the RPD has a meaningful advantage in making a finding of fact or mixed fact and law.6 Unless otherwise stated, the standard of review of the RPD decision is correctness. The RAD carries out its own analysis of the record, on a correctness standard, to determine whether the RPD erred.7 ANALYSIS Knowledge of Falun Gong and the sur place claim [9] The RPD found the Appellant does not have a fundamental understanding of the core and significant concepts in Falun Gong, and that he did not practice Falun Gong in Guyana or China. The RPD found the Appellant's practice of Falun Gong in Canada is not genuine, and that the practice is being used as a way to advance his refugee claim in Canada. [10] Having reviewed the RPD hearing, paying close attention to the Appellant's testimony on his knowledge of Falun Gong, I find the RPD erred in finding that the Appellant does not have a fundamental understanding of the core and significant concepts in Falun Gong. I have considered the following in arriving at this conclusion: the Appellant has a limited education of six years attained in Guangzhou, China; he had approximately 2 years of practice in Falun Gong as he started learning Falun Gong in XXXX 2016; and, he testified in Cantonese and stated that his proficiency in Mandarin was not good, which impacted his understanding of Zhuan Falun.8 [11] I find the Appellant's articulation of the fundamentals of Falun Gong were in response to questions requiring knowledge retrieval from memory of information contained in Zhuan Falun. As elaborated below, I find that the Appellant's limited education and lack of proficiency in Mandarin was a factor in his articulation of his understanding of Zhuan Falun, which was reflected in his inability to fully answer questions to the satisfaction of the RPD Member. [12] The Appellant testified that after having been introduced to the Falun Gong exercises by a friend, he started reading Zhuan Falun. The Appellant was credible in his testimony that his limited education prevented him from fully understanding Zhuan Falun. His testimony is credible that his Mandarin is not good, which hindered his recall of the topics of the fourth talk. These explanations are credible because the RPD's questions required the Appellant to recall information learned from Zhuan Falun. If his ability to assimilate concepts from Zhuan Falun is hindered by his limited grade six education and limited proficiency in Mandarin, it would be difficult to fully answer questions which require information retrieval from his memory based on assimilation of concepts from Zhuan Falun. [13] The Appellant was initially unable to spontaneously name the sections of Zhuan Falun, but after further questions from the RPD Member, he correctly testified that there are nine talks in Zhuan Falun.9 Notwithstanding this initial difficulty formulating answers requiring information retrieval from memory, the Appellant was later able to succinctly articulate with clear, cogent, convincing testimony on how he has used the Falun Gong precepts to improve his specific life circumstances. [14] The Appellant was able to describe in sufficient detail some of the basic principles of Falun Gong, such as transforming karma, elevating character, attachment, sending righteous thoughts, and the law wheel. The Appellant described how some of these concepts give insight into his life to transform his outlook and actions to effect positive changes to his life. For example, he learned from Falun Gong to give up attachments which are negative forces for one's body. He named possession of objects, wanting to earn more money, and an unmoderated pursuit of work as examples of attachments that are bad for one's body. Drawing from his own life experience, he testified about his own striving to XXXX XXXX XXXX XXXX in his XXXX XXXX XXXX as an example of how attachment to perfectionism of one's work can be bad for one's physical health. Likewise, his testimony on righteous thoughts and the law wheel demonstrated a sufficient understanding of the Falun Gong concepts that are commensurate with his level of education and his lack of proficiency in reading Zhuan Falun which is in Mandarin.10 [15] The Appellant's testimony of the how these Falun Gong precepts apply to his personal life demonstrates a genuine incorporation of Falun Gong practice into his life. In this case, given the Appellant's limited education and lack of proficiency in Mandarin, I find his testimony on how he applies Falun Gong concepts in his life is a better indication of a genuine Falun Gong practitioner than an encyclopedic knowledge of Zhuan Falun which requires a high level of literacy for assimilation of the Falun Gong precepts. [16] I find the RPD erred in finding that the Appellant did not understand the concept of elevation of character. Given the Appellant's limited education and his lack of proficiency in Mandarin, his testimony that improving one's character is to be a good person is a sufficient understanding of the concept. [17] The Appellant testified that if he returns to China, he will not practice Falun Gong because it is banned in China. As I have found the Appellant to be credible in his practice of Falun Gong, I accept his testimony that he came to Canada seeking freedom to practice Falun Gong, because Falun Gong is banned in China, and he will go to jail if he practices Falun Gong in China.11 Delay [18] The assignment of weight to any inferences drawn from the Appellant's delay in seeking refugee status needs to be considered in the context of the other facts in the record. Delay, in and of itself, is not determinative of a refugee claim, and it must not be a pretext to the denial of a refugee claim.12 [19] The Appellant stated in his BOC and in testimony that he was initially afraid to disclose his personal circumstances to his fellow Falun Gong practitioners because he entered Canada illegally. He claims that he was not aware that he could make a refugee claim in Canada because he was not being sought by the Chinese authorities.13 He only learned about refugee status through talking to co-workers in his XXXX job, who told him the Canadian government will give him protection. He testified to not claiming refugee status in the United States because he believed his visa was for transit only.14 [20] Regarding the 7-month delay in making a claim, the Appellant's arguments is confined to the Fu case as support for the submission that a 7-month delay is not overly lengthy and does not justify a negative inference.15 Having reviewed the evidence in the record, including the Appellant's testimony, which is consistent with the allegation in the BOC on this issue, I find the Appellant's explanation for the delay is credible. Therefore, I find the RPD erred in drawing a negative inference from the delay in making a claim. Absence of a recent passport and other travel documents [21] For the reasons that follow, I find the RPD erred in its negative credibility finding due to the absence of the Appellant's most recent passport. The RPD found the Appellant did not give a reasonable or credible explanation as to the absence of his passport and travel documents used to travel to Canada, such as luggage tags, boarding passes or flight itineraries. The RPD held that it was unable to determine the claimant's travel history prior to his entrance into Canada, and that the Appellant is not credible that the snakehead would take his passport.16 [22] I agree with the Appellant's argument that the RPD erred in drawing a negative inference from the absence of his passport because the Appellant's identity is not an issue. Once the RPD accepted that the Appellant is a Chinese national, and he is who he claims to be, the lack of a passport is not determinative of the central issue of whether the Appellant is a genuine Falun Gong practitioner, and whether there is a serious possibility that he would be persecuted if he returned to China. [23] With respect to the Appellant's travel history, the Appellant disclosed his Guyanese driver's license which was issued in XXXX 2015 with an expiry date in XXXX 2018.17 As a government-issued document, the driver's license is reliable evidence to corroborate the Appellant's allegation that he was living in Guyana before he returned to China in XXXX 2016. As the documentary evidence does not contradict the Appellant's allegations of his travel history, I apply the principle that sworn testimony is presumed to be truthful unless there is good reason to doubt its veracity.18 Accordingly, the RPD erred in its negative credibility finding stemming from the absence of a passport. CONCLUSION [24] To sum up, having conducted an independent assessment, I find the Appellant gave credible testimony to support a finding that he is a Falun Gong practitioner with a subjective fear of persecution if he is to return to China. Based on the findings of fact, there is no reason to doubt the veracity of the Appellant's testimony. As such, I find the Appellant was credible in his explanations for the delay in making a refugee claim, and for the absence of a recent passport and travel documents. Practitioners of Falun Gong are persecuted in China, and there is no state protection or internal flight alternative for Falun Gong practitioners in China. [25] Accordingly, the appeal is allowed. Pursuant to section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "T. Cheung" T. Cheung December 3, 2018 Date 1 Exhibit RPD-1, RPD Record, pp. 16 to 17, Basis of Claim narrative. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 14, para. 7. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 15, para. 9. 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 16-17, paras. 10-11. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 6 Ibid., para. 70. 7 Ibid., para. 103. 8 Exhibit RPD-1, RPD Record, Audio of RPD hearing at 00:27. 9 RPD Record, Audio of RPD hearing at 00:24. 10 RPD Record, Audio of RPD hearing at 00:45. 11 RPD Record, Audio of RPD hearing at 00:59. 12 Fu, Qianqian v. M.C. I. (F.C., no. IMM-1696-17), Diner, November 29 2017, 2017 FC 1074, para. 28 to 29, quoting Malaba v Canada (Minister of Citizenship and Immigration), 2013 FC 84 at para 11. 13 Exhibit RPD-1, RPD Record, p.17. BOC narrative. 14 Exhibit RPD-1, RPD Record, Audio of RPD hearing at 1:27. 15 Fu, Qianqian v. M.C. I. (F.C., no. IMM-1696-17), Diner, November 29 2017, 2017 FC 1074, para. 28 to 29, quoting Malaba v Canada (Minister of Citizenship and Immigration), 2013 FC 84 at para 11. 16 Exhibit RPD-1, RPD Record, RPD decision, p. 6, para. 8 17 RPD Record, p. 71, Driver's license. 18 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-23676 RAD.25.02 (September 18, 2018) Disponible en français 8 RAD.25.02 (September 18, 2018) Disponible en français