TB6-15197

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 No. / N° de dossier de la SAR : TB6-15197 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, Ontario Appel instruit à Date of decision November 30, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nkunda I. Kabateraine Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision by the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not provided new evidence in support of his claim, and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that the Appellant is a Convention refugee. Alternatively, the Appellant requests that the matter be remitted to the RPD for reconsideration by a differently constituted panel. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged in his Basis of Claim (BOC) form that he joined an underground church on XXXX XXXX, 2015. He attended weekly services and also participated in Bible studies during the week. Because of his limited education, other members would explain the contents of the Bible to him. The Appellant also distributed church flyers to his family and friends. When members brought their friends to the church, the Appellant would distribute flyers to them. The Appellant also indicated that he tried to introduce them to the benefits of Christianity. [4] On XXXX XXXX, 2015, the police came and took all of the people in the church to the station. Others were released, but the Appellant and his friend, XXXX, were detained. The Appellant was told that the police were aware he was a frequent visitor to this illegal organization. They asked him to identify the leader and he refused. He was beaten, detained for XXXX days and released on bail. He was warned to remain at home and told they knew he was both a member of the church and that he distributed church flyers. They told the Appellant that he would be punished further after they caught the pastor and completed their investigation. [5] The Appellant contacted his fellow believers via the internet, and they suggested he leave China. A fellow believer contacted a smuggler, and the Appellant left China on XXXX XXXX, 2016, and he arrived in Canada on XXXX XXXX, 2016. In Canada, he was informed by his father that the pastor was arrested at the XXXX XXXX XXXX 2016, and the police went to the Appellant's home twice looking for him. The Issues [6] The RPD panel (the panel) indicated that the determinative issue in regard to this claim is credibility. [7] The Appellant submits that the issues in this appeal are the following: (a) Did the Tribunal err in basing its decision on minor discrepancies in his evidence that were either irrelevant or peripheral to the claim? (b) Did the Tribunal err in assessing the Appellant's identity as a genuine Christian? (c) Did the Tribunal err in assessing the Appellant's sur place claim? The Role of the RAD [8] The RAD notes that the Federal Court of Appeal's decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [9] The RAD concludes from its statutory analysis, with respect to findings of fact and mixed fact and law, that the RAD is to review RPD decisions applying the correctness standard, and that there may be deference to the RPD where the findings of fact involve the assessment of oral evidence. [10] The RAD must carefully consider the RPD's decision and, after doing so, must carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. The Panel's Findings and Conclusion [11] The RPD found that inconsistencies, vague responses, a limited ability to explain Christianity and the nature of his Christian identity resulted in its conclusion that the Appellant was not a credible witness as to his allegations. Past History in China [12] The panel noted that the Appellant could not remember when he stopped school, and he was vague regarding the timing of his employment after leaving school. The panel further noted that the Appellant was inconsistent as to his residence. He stated he lived with XXXX for a number of years but he indicated in his Schedule A form that he lived in his father's house. The panel acknowledged that the Appellant was in detention when he filled out his forms and did not have counsel. The panel noted, however, that the Appellant signed the forms indicating they were accurate. The panel further noted that the Appellant's testimony in this regard was vague, and he failed to clarify these issues. The panel noted as well that some of these issues relate to the circumstances of the claim. [13] The panel acknowledged that the Appellant referred to his limited education as the reason he did not have much knowledge of Christianity and why he had trouble answering questions. The panel noted that the Appellant had trouble providing dates or clear descriptions of what happened in response to some questions, but he provided detailed evidence at other points. The panel suggested the full responses reflected questions that were anticipated and concluded that the Appellant had the capacity to clearly respond to questions if he was able to do so. Church Activities in China, Detention and Release, Arrangements to Leave China [14] The panel noted the Appellant was inconsistent with respect to alleged activities in the church in China. The panel further noted the Appellant stated in his BOC that they prepared church flyers and distributed them to family and friends. The Appellant further stated in his BOC that the flyers were given to friends brought by other believers, and he did his best to introduce them to Christianity. [15] The panel noted, however, that the Appellant testified that he never talked to anyone about Christianity except XXXX friends. The Appellant also testified that he never gave pamphlets, or did not remember doing so, to anyone other than XXXX friends. The Appellant stated that he did not remember what he wrote in his BOC in this regard. The panel found this explanation unsatisfactory as the alleged activities took place within the past year. [16] The panel noted that the Appellant testified that he only spoke to XXXX after his release from detention and he never connected with other church members. The panel further noted, however, that the Appellant indicated in his BOC that he contacted fellow believers via the internet, and they suggested he leave China. The Appellant also stated in his BOC that a fellow believer tried to find a smuggler for him. The panel noted that the Appellant did not identify this person as XXXX, and he had previously always identified XXXX by name. [17] The Appellant explained that the error was likely due to interpretation. The panel noted, however, that he affirmed the correctness of the contents of his BOC, and the entire form was translated back to him before he signed it. Christian Knowledge [18] The panel noted that the Appellant's description of his churches in China and Toronto were vague. The panel further noted that the Appellant mentioned blessing, baptism and gospel, but he could not explain them. The Appellant explained his inability to explain "loving Jesus" as the result of his recent joining and his lack of understanding of much. [19] The panel acknowledged that it had been just a year since the Appellant's introduction to Christianity. The panel noted, however, that the Appellant stated that XXXX told him lots of Bible stories, and he had discussions with his father in this regard. The Appellant had also been attending church in China weekly, and he attended Bible studies as well. He also stated that other believers explained the contents of the Bible to him over a three-month period. The Appellant also testified that he had been attending church weekly in Canada. The panel found that, although a deep understanding of Christianity could not be reasonably anticipated on the basis of his experience, it was reasonable to expect him to have an understanding of the basic concepts and terms. [20] The panel questioned the Appellant as to what it meant to be a Christian, and he stated that he believed in Jesus Christ. When he was asked to expand on that answer, he responded that there was a lot that he did not understand. The Appellant was unable to describe the significance of baptism and did not know why he would go to heaven someday. He was also unable to explain what motivated him to remain a Christian. [21] The panel found the Appellant's responses had not established that he was a sincere Christian. The panel noted a letter from the pastor of the XXXX XXXX XXXX.2 It indicates that the Appellant has attended this church since XXXX XXXX, 2016, and the Appellant was baptized on XXXX XXXX, 2016. The panel further noted that the pastor stated in his letter that he asked the Appellant some questions testing his Christian knowledge when he first met the Appellant and that he answered them correctly. On this basis, the pastor found that the Appellant is a real Christian. [22] The panel noted as well that the Appellant testified that the pastor did not ask any questions concerning his being a Christian. Rather, the Appellant told the pastor that he attended a church in China, and the church was persecuted. The panel found that there was no basis for the pastor's statement that the Appellant was a real Christian in China. The Minister intervened in the hearing and stated, in submissions, that the letter should be given no weight. The panel agreed. [23] The panel concluded, on the basis of its analysis of the evidence above, that the Appellant is not a credible witness and that he is neither a Convention refugee nor a person in need of protection. The Appellant's Response and Argument [24] The Appellant argues that he was subjected to a microscopic examination, and the panel's decision was based on irrelevant considerations and discrepancies not central to the claim. [25] The Appellant submits that the minor or irrelevant discrepancies related primarily to his employment and residence history. [26] The Appellant further submits that the discrepancies concerning whom he spoke to about the benefits of Christianity and to whom he distributed church flyers are minor and have no relevance to the central issue, whether he is a genuine Christian. [27] The Appellant noted the inconsistencies between his oral testimony and the information in Schedule A and submits that he was in detention when the Schedule A document was prepared without the benefit of counsel. The Appellant cites Federal Court jurisprudence stating the Board should not place undo reliance on Port of Entry (POE) statements. [28] The Appellant argues that he was subjected to a microscopic examination as to his Christian knowledge instead of focusing on the sincerity of his Christian belief. The Appellant cited Federal Court jurisprudence indicating an unrealistically high standard of knowledge in this regard should not be adopted by a tribunal, and a low bar has been set for claimants seeking protection. [29] The Appellant submits that the panel assessed his sur place claim in a perfunctory manner. The Appellant noted that a baptism certificate and a pastor's letter were provided as corroboration of his Christian identity. The Appellant further noted that the pastor's letter stated that he had attended church services regularly and had participated in church activities. [30] The Appellant submits that the panel discounted this evidence without conducting a meaningful analysis. The Appellant further submits that the reason for refusing to give weight to the pastor's letter was that he was not able to articulate in the hearing the questions asked by the pastor regarding his Christian knowledge. The Appellant submits as well that the questions the pastor may have asked related to his activities in China and had no relevance to the question of whether he was a genuine Christian in Canada. The Appellant cites Federal Court jurisprudence concerning the Board's failure to assess a pastor's statements concerning an applicant's church attendance, church activities and baptism. The Appellant submits that the panel ignored parts of the pastor's letter concerning his Christian activities in Canada. The RAD'S Analysis and Decision Events in China [31] The RAD has reviewed all of the evidence in the record, including the CD recording of the RPD hearing. [32] The RAD finds that, while the Appellant's inconsistent and vague testimony regarding his residence, schooling and work experience in China raises a credibility concern, it agrees with the Appellant that these issues are not related to the central issue in this claim and are an insufficient basis on which to base a negative credibility finding. [33] The RAD is not persuaded, however, by the Appellant's argument concerning the vagueness and inconsistency of his evidence as to his alleged underground church activity in China. The RAD finds that the Appellant's inconsistent testimony regarding his church activities is material to the central issue in this claim. The Appellant was inconsistent as to whom he distributed church flyers. He was further inconsistent as to whom he talked to about the benefits of Christianity. The Appellant was inconsistent as well regarding whom he contacted after he was released on bail and from whom he received advice about leaving China and help in finding a smuggler. The RAD finds it was open to the panel to reject the Appellant's explanation that his BOC statements were different because of an interpreter error. The RAD notes that the Appellant confirmed the accuracy of his BOC statements at the beginning of the RPD hearing. [34] The RAD finds, on the basis of its review and analysis of the Appellant's oral and written evidence concerning events in China, that the panel did not err in in making a negative credibility finding in this regard. Lack of a Summons [35] The RAD notes that the Appellant stated in his BOC that his father informed him after his arrival in Canada that his pastor in China was arrested at the XXXX XXXX XXXX 2016, and, subsequently, the police came to the Appellant's home on two occasions looking for him. The RAD further notes that the Appellant did not disclose a summons or arrest warrant reflecting police interest in him, and finds that, if such documentation had been available to the Appellant, it would have been disclosed in the RPD hearing. The RAD notes as well that the panel did not provide any analysis or finding as to the significance of this issue regarding the credibility of the Appellant's allegation of police pursuit. The RAD finds it is able to deal with this issue. [36] The RAD acknowledges that country documentary evidence indicates that the PSB (police) practice regarding the issuance of a summons varies from one locality to another. The RAD finds, however, that given that the police allegedly returned to the Appellant's home twice and indicated they were looking for him, this demonstrated an interest in the Appellant that would have resulted in a summons document being issued and left at their home, and likely an arrest warrant when there was no response to the summons.3 [37] The RAD notes, in this regard, that in addition to the two police visits, the Appellant stated that the police had already arrested him, that he was only released on bail, that he was told to remain at home, that he was further told that the police knew he was a member of an illegal organization, that he had distributed flyers critical of the government, and that he would be further punished after the pastor was arrested. The RAD notes as well that the Appellant is a resident of XXXX XXXX, XXXX XXXX XXXX XXXX XXXX in XXXX province. The RAD finds, on a balance of probabilities, that police authorities in this city would likely document their clear interest in the Appellant and follow the law in this regard. [38] The RAD cites in this regard the Federal Court's decision in Zhang,4 in which the Court stated that, while the police did not always leave a summons, given the number of times the claimant alleged police visits, the documentary evidence indicated that it was reasonable that the police would likely have left something at some time. In addition, the Court, in Lin,5 noted that no evidence was adduced by the applicants that the PSB does not leave a warrant with family members in their province, and so the RAD concluded that the RPD did not err in its finding concerning the lack of a summons. [39] As well, the Federal Court, in Cao,6 noted that documentary evidence suggested that the PSB's practice with respect to leaving a summons was not uniform. However, it was held by the Court that, given the number of times the PSB came to the applicant's home, it was reasonably open to the Board to conclude that a summons would have been left. In addition, the Court, in Sun, stated that the documentary evidence is to the effect that a written summons would normally be given.7 [40] The RAD finds that, in the circumstances, the lack of a summons or any other documentary evidence concerning the Appellant's alleged underground church affiliation in China, the raid and the arrest, undermines the credibility of his allegation that he is being pursued by the police. Exit from China [41] The RAD notes that the panel did not consider the Appellant's ability to leave his home province and travel by bus and car to the border of Vietnam and leave China.8 The RAD finds, on a balance of probabilities, that the Appellant was a person of interest to the police, and, as a result, his name would have been entered into the online Golden Shield system after his initial arrest, his release on bail with a warning to remain at home and the police statement that he would be subject to further punishment. [42] The RAD notes that the Appellant indicated in Schedule 12 that he travelled by bus and then by car to the Vietnam border.9 The RAD cites, in this regard, the country documentary evidence10 that indicates that identity documentation is required for domestic travel and that the authorities check the identity of bus and train travellers. The RAD further notes that the Appellant disclosed a resident identity card and a hukou and finds that, if such documentation had been checked by the police, his failure to remain at home would be revealed, and he would not have been allowed to travel to the Vietnam border. [43] The RAD notes as well that the Appellant stated in Schedule 12 that he was given an English language passport in Manila.11 The RAD further notes that the Appellant stated in his BOC that he left the Philippines by using a false passport.12 The RAD notes as well that, while the Appellant provided no evidence as to the passport he used to leave China, he indicated in Schedule 12 that he was in possession of a genuine passport, although he did not use it to travel to Canada. The RAD also notes that the Appellant stated that he received a false passport in Manila which he used to travel to Canada. The RAD finds, on a balance of probabilities, that if the Appellant had used a false passport to leave China and enter Vietnam, he would not have had to obtain another false passport in the Philippines. The RAD further finds, on a balance of probabilities and in the context of the analysis above, that the Appellant likely exited China using his own passport. The RAD finds the Appellant would not have been allowed to leave China, if he was a person of interest to the authorities. [44] The RAD cites in this regard country documentary evidence concerning the Golden Shield system, an overarching state monitoring network to which all police units have access.13 The RAD is further guided in this regard by the decision of the Federal Court, in Ma, in which the Court stated that the Board's finding that it is implausible that the applicant would be able to leave China undetected, using her own genuine passport, if she was wanted by the PSB is reasonable.14 [45] The RAD finds, on the basis of the analysis and findings above, that the Appellant is not being pursued by the police in China. The RAD concurs with the panel's conclusion that the Appellant was not a credible witness as to his allegations concerning events in China. The RAD further finds that the Appellant made a false claim when he arrived in Canada, and therefore his general credibility is in doubt. Christian Knowledge and Sur Place Claim [46] The RAD has reviewed all of the evidence in the record concerning the Appellant's Christian knowledge. The RAD is not persuaded by the Appellant's argument that the panel's questioning in this regard was microscopic and exceeded the low bar set by the Federal Court. The RAD acknowledges, as did the panel, that it had been just a year since the Appellant's introduction to Christianity and that the Appellant has had a limited formal education. The RAD finds however that the panel's questions concerned very basic Christian teachings and the Appellant's alleged Bible studies and church attendance in China, in addition to his church attendance in Canada were sufficient to expect an understanding of at least such basic concepts as baptism, the gospel, communion and heaven. The RAD notes as well that the Appellant was unable to respond to the panel's question as to what it means to be a Christian and what motivated him to remain a Christian. [47] The RAD acknowledges that the Appellant has some Christian knowledge. He was aware of the significance of Easter and Christmas and of the importance of believing in Jesus. He could not, however, explain what it meant to believe in Jesus. The RAD finds the Appellant's Christian knowledge is insufficient to challenge its finding above concerning the Appellant's alleged Christian experience in China and to establish a genuine Christian identity in Canada. [48] The RAD has reviewed the letter from the Appellant's pastor in Canada.15 The RAD notes, as did the panel and the Minister's representative, who participated in the RPD hearing, that the letter states that the pastor asked the Appellant questions concerning his Christian knowledge when he first visited the pastor. The pastor noted that the Appellant could answer them correctly and on that basis found that the Appellant is a real Christian. However, the Appellant was questioned in the RPD hearing regarding his interview with the pastor, and the Appellant stated that he was not asked questions concerning his being a Christian, and the panel found no basis for the pastor's statement that he was a real Christian. [49] The RAD notes that the Appellant's argument that the panel's reason for refusing to give weight to the pastor's letter was that he was unable to articulate in the hearing the questions asked by the pastor regarding his Christian knowledge. The RAD has reviewed the recording of the Appellant's testimony and finds the Appellant had no apparent difficulty articulating his response to questions concerning his one meeting with the pastor. The Appellant testified that the pastor did not talk to him much. He further testified that the pastor asked why he wanted to be baptized, and he said that he had been persecuted in China. He testified as well that he was asked nothing else, and there were no questions about Christianity. [50] The Appellant further argues that the questions the pastor may have asked related only to his experience in China and had no relevance to the question of whether he was a genuine Christian in Canada. The RAD acknowledges in this regard that the pastor indicated in his letter that the Appellant was a member of his congregation, participated in the volunteer program and made donations to the church. [51] The RAD finds that the pastor's statement that he tested the Appellant's Christian knowledge was clearly untrue and that this false statement undermined the integrity of the letter. The RAD further finds that the pastor provided no evidence that challenges the panel's finding as to the Appellant's Christian knowledge. The RAD notes that the panel did not challenge the Appellant's testimony that he attended this church, volunteered and made donations, but noted that these activities were not clearly explained, as to how they provided a basis for the faith. [52] The RAD notes that the panel's consideration of the Appellant's sur place claim was brief, but the panel did consider both the pastor's letter and the Appellant's church activities. The RAD notes that the panel made no specific comments about the baptism certificate but further notes that the panel is not required to comment on all of the documentation in the record. [53] The RAD finds that the Appellant's church activities and his baptism, in addition to having some Christian knowledge, are insufficient to establish the Appellant's sur place claim. The RAD notes that it has found that the Appellant made a fraudulent claim when he came to Canada and that his general credibility is in doubt. The RAD notes as well that no evidence was provided indicating that the Appellant had a sudden religious experience on arrival in Canada leading to a commitment to Christianity. [54] The RAD finds that the totality of evidence needs to be considered in making a judgement concerning the genuineness of the Appellant's alleged Christian faith. The RAD cites in this regard the decision of the Federal Court, in Jiang, in which the Court stated that the Board must be entitled to import its credibility findings into its assessment of an applicant's sur place claim.16 The RAD further cites the decision of the Court, in Li, in which the Court held that it is completely reasonable for the RPD to require a much higher degree of proof of sincerity regarding an applicant's beliefs in support of a sur place claim.17 [55] The RAD concludes, on the basis of its review and analysis of all the evidence in the record, that it concurs with the panel's finding concerning all aspects of this claim that the Appellant was not a credible witness. DISPOSITION [56] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel November 30, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 RPD's Record, p. 134, Exhibit 6. 3 RPD's Record, National Documentation Package (NDP) for China (30 October 2015), item 9.10, Response to Information Request (RIR) CHN104458, Samples of summonses and subpoenas, October 18, 2013. While this item concerns samples of summonses and subpoenas, it begins with a note stating: "For details on summonses and subpoenas and how they are used, please see Response to Information Request CHN104188." 4 Zhang, Xi Shun v. M.C.I. (F.C., no. IMM-6200-10), Kelen, June 8, 2011, 2011 FC 654. 5 Lin, Bizhu v. M.C.I. (F.C., no. IMM-9100-11), Scott, October 15, 2012, 2012 FC 1200. 6 Lan Cao, Feng v. M.C.I. (F.C., no. IMM-2326-12), Near, November 29, 2012, 2012 FC 1398. 7 Sun, Tingting v. M.C.I. (F.C., no. IMM-1862-08), Snider, November 12, 2008, 2008 FC 1255. 8 RPD's Record, Schedule 12, p. 35. 9 RPD's Record, Schedule 12, p. 35. 10 RPD's Record, NDP for China (30 October 2015), item 3.3, RIR CHN104134.E, Identity documents required to purchase tickets to travel by train, bus or boat; whether authorities check the identity of train travellers during their travel through China, 6 December 2012. 11 RPD's Record, Schedule 12, p. 35. 12 RPD's Record, p. 18, BOC. 13 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (October 30, 2015), item 10.4, Response to Information Request (RIR) CHN104762.E, The Public Security Bureau (PSB) Golden Shield Project, including implementation and effectiveness; Policenet, including areas of operation; level and effectiveness of information sharing by the authorities (2010-February 2014) and item 14.3, RIR CHN104761.E, Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports (2011-February 2014), item 14.15, RIR CHN105153.E, Passenger information gathered by airlines for international flights to and from China (2014-2015), 31 March 2015. 14 Ma, Lan v. M.C.I. (F.C., no. IMM-5123-14), Kane, July 9, 2015, 2015 FC 838. 15 RPD's Record, p. 134. 16 Jiang, Sumei v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012, 2012 FC 1067. 17 Li, Shi Jie v. M.C.I. (F.C., No. IMM-8521-11), Gleason, August 15, 2012, 2012 FC 998. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-15197