TB5-03666

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 : TB5-03666 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 June 3, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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 the People's Republic of China, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted any new evidence in support of his appeal, nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. He is, however, asking the RAD to find him to be a Convention refugee, or in the alternative, refer the matter back for re-determination by a newly-constituted panel of the RPD. DETERMINATION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background [3] The Appellant's claim is based on his illegal Falun Gong activities. In XXXX 2013, the Appellant sustained some medical problems, and although he was receiving traditional medical intervention, the symptoms persisted. Upon the advice of a friend, he went to the underground practice group on XXXX XXXX, 2014, against the wishes of his wife. [4] The Appellant practiced once weekly, as well as at home. After doing the exercises and attending the practice sessions for three months, the Appellant's medical symptoms disappeared. [5] On XXXX XXXX, 2014, the Appellant did not attend his regular practice group, due to employment commitments. However, that evening, his friend, XXXX XXXX called him to inform him that the practice group had been cancelled as the instructor had received a call from a lookout that a group of people were approaching. As a result, the Appellant went to the home of a friend to hide. The following night, the Appellant learned from his wife that the group had in fact, been raided by the Public Security Bureau (PSB), and two co-practitioners had been arrested. That same night, the PSB went to the Appellant's home, where they conducted a search, and he was told to surrender. [6] Through the assistance of a smuggler, the Appellant was able to obtain a United States of America (US) visa, and he entered Canada illegally through the US. According to the Appellant, the PSB are still pursuing him. They returned on XXXX XXXX, 2014, telling his wife that he would be arrested and charged for both participation and recruitment. The PSB returned to the Appellant's home, according to his testimony a total of seven times, including the initial visit. ROLE OF THE RAD [7] Counsel submits that the standard of review involves a full appeal and little deference is owed to the RPD. He cites the reasoning by the Federal Court in Huruglica,1 wherein Justice Phelan states in paragraphs 54 and 55 of the foregoing decision. [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [8] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. The RAD has applied the reasoning as set out in Huruglica.3 COUNSEL'S SUBMISSIONS [9] Did the RPD make unsustainable credibility findings? Specifically, counsel refers to the Appellant's journey to Canada and the corroborative evidence submitted in support of this claim. Journey to Canada [10] The RPD noted the lack of documents to corroborate the Appellant's journey to Canada. Although the Appellant explained that the smuggler seized his passport, his airline tickets and boarding pass had been thrown out, the RPD found that that it had no knowledge of the destination of the Appellant in the US, the length of time spent there, or when he entered Canada. As a result, the RPD drew a negative inference as it did not accept the Appellant's explanation for not providing documentation in this regard. [11] The Appellant submits that he was unable to document his travel from China to the US as the smuggler has seized his passport and he had also thrown away his airline tickets, not knowing that they would be required. The Appellant submits that the RPD's finding that his failure to disclose the foregoing was to "suppress or hide details" is unsustainable. [12] The RAD notes that it is not uncommon for the smuggler to demand the passport, presumably to ensure that he or she is not implicated in the process. Even if the RAD were to find this negative inference by the RPD to be unsustainable, the RAD finds that this is not a determinative issue in this claim. Corroborative Evidence [13] The RPD accorded little evidentiary weight to the medical records, as well as the letter from the Appellant's friend and wife. [14] The Appellant submits that the RPD erred by rejecting all of the Appellant's corroborative evidence, i.e. his medical records and letters in support of his claim. He submits that to have rejected the medical records on the basis that they do not have adequate security features, although they contain official stamps, is contrary to the reasoning by the Federal Court in Zheng.4 With respect to the support letters from the Appellant's friend and wife, it is argued that the RPD erred by rejecting them on the basis that the authors "are not disinterested parties". Counsel cites the Federal Court reasoning in Kanto5 to support his argument. [15] After conducting an independent assessment based on the entire record, the RAD finds that the RPD did not make the foregoing finding in isolation, although its Reasons were not fulsome. The RAD finds that the RPD considered the issues analyzed below, when reaching its conclusion. Moreover, the RAD finds that was not a determinative issue which lead to the RPD's conclusion. [16] The RPD defined the following issues as being the central elements of its decision: a) Credibility of the Appellant's testimony b) Identity as a Falun Gong practitioner RPD'S FINDINGS [17] The RPD concluded that the Appellant was not a Falun Gong practitioner in China, he is not being pursued by the PSB in China for any reason, he is not a genuine Falun Gong practitioner in Canada, and he would not be perceived to be a Falun Gong practitioner upon return to China. Its findings were based on the following analysis. The Raid [18] The Appellant provided contradictory evidence between his oral testimony and the information contained in his Basis of Claim form (BOC) with respect to the raid. When questioned in the hearing with respect to his reason for going into hiding, the Appellant stated that his friend simply told him that the practice group had been cancelled, but did not provide a reason for this cancellation. In his BOC, however, he stated that the instructor had received a call from a lookout who said that a group of people were approaching the practice location. When confronted with this contradiction, the Appellant responded that the BOC was correct and that he was nervous when answering the panel's questions. The RPD drew a negative inference as it considered the raid as going to the heart of the claim. [19] The RAD concurs with the RPD that this contradictory testimony calls into question the credibility of the Appellant. The RAD further concurs with the RPD that this raid is a central issue, in that this is purportedly the reason the Appellant went into hiding. As submitted by counsel, the Appellant was nervous when responding to questions by the RPD. In this regard, the RAD owes deference to the RPD's findings which flow from this. The RAD finds that this issue is significant as it is purportedly as a result of the raid, that the PSB are allegedly pursuing the Appellant and hence his decision to leave China. How the PSB came to know he was a Falun Gong practitioner [20] The RPD drew a negative inference when, contrary to the Appellant's testimony, the BOC did not contain the information that one of the arrested co-practitioners knew the Appellant's address and gave his name to the PSB. [21] The RAD concurs with the RPD that something as important as the address of the individual wanted by the PSB is central to the claim. Accordingly, the RAD finds that the conclusion by the RPD was absent of any error. Sur Place Claim [22] The RPD gave little weight to a photograph taken in November 2014, three months after the Appellant came to Canada, as it provides no confirmation of regular Falun Gong practice and does not speak to the genuineness of the Appellant's convictions. The letter from the friend was also accorded little weight by the RPD as the author is unknown and he did not appear as a witness. [23] The RPD noted that the Appellant stated in his BOC narrative that he began practicing the Falun Gong exercises and studying Zhuan Falun with a group in XXXX 2013. It was further noted that he stated that he has Master Li's book. The RPD asked the Appellant to identify the exercise and movement depicted in the photograph that he had submitted into evidence. He provided three contradictory responses; however finally correctly identified the third exercise, but he could not recall the name of the movement. Although he provided some correct further responses, he did not know the Lotus Hand Position or the end position for the fifth exercise. He was unable to respond to the question of what Master Li tells practitioners to do when sending out righteous thoughts. In totality, the RPD found that the Appellant's answers about Falun Gong theory did not reflect a reasonable knowledge for someone with his experience, and therefore he had not established, on a balance of probabilities that he is a genuine Falun Gong practitioner. It then found that the Appellant had not established a sur place claim based on its finding that the Appellant is not a genuine practitioner. It cited the Federal Court in Jiang.6 The RPD further found that there was no specific information before the panel that the Appellant's practice of Falun Gong in Canada had been observed by Chinese authorities, and therefore, he has not come to the attention of the Chinese authorities due to his activities in Canada. RAD FINDINGS [24] After conducting an independent assessment of the entire record, the RAD finds that although the Reasons set out by the RPD may not be fulsome, its conclusion is justifiable. Specifically, the RAD finds that the RPD did not specifically state why it found that the Appellant was not a Falun Gong practitioner in China. Although the RPD noted the lack of responses to questions relating to Falun Gong, it did not specifically address all of the issues relating to its findings with respect to the Appellant's practice in China. [25] After listening to the audio recording of the proceedings, and conducting an independent assessment, the RAD finds the following. Left China on his personal passport [26] The Appellant was asked if he left China legally on his own passport. He replied in the affirmative. He confirmed the smuggler had assisted him in applying for a visa to the US on his behalf and that he was aware of some of the information used in the application. [27] The RAD finds that the Appellant has identified that he fears arrest by the PSB in China. His oral testimony alleges the PSB have attended his family home in search of him on numerous occasions. The Appellant used his own genuine passport to leave China, with the help of a smuggler. [28] Documentary evidence indicates that the Chinese authorities have access to a computerized record system7 which has the ability to track entry/exit from the country. The RAD finds it reasonable to believe that if, as the Appellant alleges, the PSB were repeatedly in pursuit of him, the PSB would be aware of his ability to flee the country, and they would be monitoring locations, including the embassy where he obtained his US visa. [29] The Appellant testified that he went through four security checkpoints at the airport and that the smuggler had bribed only one official. When questioned in this regard, the Appellant responded that he just followed the smuggler and only at one checkpoint, did the officer stamp his passport. In the absence of the passport, the RAD is unable to verify the stamps. [30] However, the RAD notes the PSB has a computer linked security system8 that contains information on individuals who would be persons of interest to the PSB. As noted previously, the PSB had allegedly attended the Appellant's home on a number of occasions. It would be reasonable to believe therefore that the Appellant's name and his address would be linked and identified in this system. When reviewing documentary evidence9 on entry and exit procedures as well as the "Golden Shield" system, the RAD concludes it is not plausible if the Appellant was being sought by the PSB that his passport could be scanned through the computer system at the airport without detection. The RAD further notes this action would likely trigger accountability checks, which could not be ignored by a single individual accepting remuneration to assist a smuggler. Given the alleged PSB interest in the claimant the RAD concludes on a balance of probabilities, it is unlikely that the claimant would have been able to leave China without being detected. The RAD acknowledges that the documentation states, in part, that in some instances, there have been reports of police not sharing information. However, given the alleged relentless pursuit of the claimant by the PSB, it is reasonable to expect that the Appellant's name would have been entered in the database as a person wanted by the PSB and as such he would not have been able to exit the country. [31] The RAD finds that the Appellant's testimony runs counter to documentary evidence about the PSB's methods as well as normal entry/exit procedures and is found not to be credible. [32] In reviewing the claimant's testimony in the areas discussed above, the RAD concludes on a balance of probabilities, the Appellant is not being sought for arrest by the authorities in China for his association with the practice of Falun Gong. The PSB visit [33] After listening to the audio recording of the proceedings, the RAD notes that the RPD inquired how many times the PSB had come to the Appellant's home in China in search of the Appellant. He replied, "Seven times". The Appellant was asked if the PSB had left a summons or warrant with his family indicating their interest in him. The Appellant said "no". [34] The RAD notes that country condition documents10 indicate that a summons is often left with or shown to family members when the police want someone to come to their headquarters. In addition, the summons is the documentary basis for the subsequent issuance of an arrest warrant if the person in whom they are interested does not respond to the summons. [35] Although the documentary evidence is mixed, it is reasonable to conclude that the authorities have concluded some investigation which gives rise to them stating that he was identified as an illegal Falun Gong practitioner. Further, given that the authorities have allegedly continued to inquire about the Appellant, it is reasonable to expect, given the documentary evidence, that an arrest warrant or summons would have been left with the Appellant's family. [36] The RAD finds that to have allegedly attended his family home on seven occasions would indicate that the PSB had far more than a casual interest in the Appellant. The absence of a summons when one should reasonably have been issued damages the credibility of the Appellant. [37] The RAD finds that the Appellant's testimony runs counter to documentary evidence about the PSB's methods and the RAD finds it is not credible. [38] The RAD concludes, considering the Appellant was not present for the raid and he never held any specific or leadership role, the PSB had been to his home seven times to ask about him, taking no additional action against his family, thereby wasting their valuable time and resources, is implausible and further detracts from his credibility. The Appellant's family in China [39] The Appellant did not adduce any evidence that his family in China has suffered any consequences as a result of his participation in Falun Gong and failure to surrender to the police. Country documentary evidence11 regarding Falun Gong states that it is considered a cult by the Chinese government and is banned, and indicates that Chinese authorities use the family of absconding practitioners as hostages to force the practitioner to give up the practice. If a practitioner does not cooperate with the authorities, the family is subject to punishment as well, including harassment, arbitrary interrogation, losing a job, and losing housing benefits. The Appellant alleges that his family was only warned not to conceal information on the whereabouts of the Appellant and warned that they would suffer consequences if they were found to assist him in any way. The RAD draws a negative inference from the Appellant's family's continuing ability to carry on with their normal life without facing consequences at the hands of the PSB. RAD'S CONCLUSION [40] The RAD finds that, after conducting an independent assessment of the entire record, it concurs with the RPD that the raid did not occur, that the PSB are not looking for the Appellant, and that he is not a genuine Falun Gong practitioner in China or in Canada. [41] Accordingly, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [42] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. (signed) "Roslyn Ahara" Roslyn Ahara June 3, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Supra, footnote 1. 4 Zheng, Sing Ya v. M.C.I. (F.C., no. IMM-240-08), Tremblay-Lamer, July 16, 2008; 2008 FC 877. 5 Kanto v. M.C.I. (F.C., no. IMM-3230-13), Tremblay-Lamer, June 27, 2014; 2014 FC 628. 6 Jiang, Sumei v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012; 2012 FC 1067. 7 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (31 October 2014), item 10.4. 8 Exhibit RPD-1, RPD's Record, NDP, item 10.4. 9 Exhibit RPD-1, RPD's Record, NDP, item 14.3, RIR CHN102869.E. 8 July 2008; and item 10.3, RIR CHN103133.E, July 2, 2009. 10 Exhibit RPD-1, RPD's Record, NDP, item 9.8. 11 Exhibit RPD-1, RPD's record, NDP, item 12.25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :