TB9-23853

RAD File / Dossier de la SAR : TB9-23853 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 8, 2020 Date de la décision Panel I. Singh Tribunal Counsel for the person who is the subject of the appeal Jacqueline M. Lewis 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), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), dated July 29, 2019, rejecting her claim for refugee protection. DECISION [2] The appeal is dismissed. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleged before the RPD that she fears returning to China because she is a Falun Gong practitioner. [4] The Appellant's application for refugee protection was heard on July 16, 2019. By a decision of July 29, 2019, the RPD rejected the claim. The RPD found that the determinative issue was credibility. [5] The Appellant submits that the RPD erred in its assessment of the Appellant's credibility, identity as a Falun Gong practitioner, and her sur place claim. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] My role is to look at all the evidence and decide if the RPD made the correct decision.1 ANALYSIS The RPD did not err in its assessment of the Appellant's credibility and in finding the Appellant is not a genuine Falun Gong practitioner [7] The RPD found the Appellant had not established, on a balance of probabilities, that she was a genuine Falun Gong practitioner in China or Canada. The RPD drew negative inferences regarding the Appellant's credibility for the following reasons: a. Given the Appellant's allegation that she had been regularly practicing Falun Gong for over two years and had engaged in sending righteous thoughts, the RPD found it unreasonable she could not explain, or even try to explain, how the critical element of sending righteous thoughts is done; b. Given the Appellant's allegation that she had been an active member of the Falun Gong community in Toronto for over a year and had engaged in "clarifying the fa" here, the RPD found it unreasonable she could not explain, or even attempt to explain, what "clarifying the fa" meant or what it involved; c. The Appellant testified that every week she went to Milliken Park to practice group exercises and engage in Falun Gong discussion. She could not explain what was discussed. She testified she had gone to Milliken Park and participated in discussions the previous Sunday; but when asked what was discussed, she testified she left early. The RPD found that given the Appellant testified she had been attending group practice and engaging in group discussions on a weekly basis for over a year, it was unreasonable that she could not explain, or even attempt to explain, the content of the discussion; d. The Appellant testified the seventh talk in the Zhuan Falun was her favourite, but could not explain why it was personally meaningful to her, despite being asked multiple times. The RPD found the Appellant's testimony was evasive and that it was unreasonable she could not provide any explanation as to why the seventh talk was personally meaningful to her, given it was her favourite; and e. The Appellant was inconsistent about when she decided to leave China: she testified it was after she was released from detention in January 2018; however, her Basis of Claim (BOC) narrative indicates it was prior to her detention. The Appellant testified she had two different smugglers, the first of whom arranged a sightseeing trip to Vietnam with a man named XXXX, XXXX, who posed as her husband, which she ultimately refused because of her joint pain. She testified after her arrest, she again thought about going overseas and hired a different smuggler, who ultimately assisted her in leaving. The RPD rejected this explanation because the Appellant's narrative states she left China with the smuggler and XXXX XXXX XXXX, the alleged false husband who had been arranged by the first smuggler. The RPD found, on a balance of probabilities, the smuggler who arranged the Vietnam trip was the same smuggler with whom the Appellant left China. The RPD also rejected the Appellant's explanation for why the second smuggler was omitted from her narrative. The RPD found the point at which the Appellant decided to come to Canada was significant to her claim and drew a negative inference due to the inconsistency and lack of reasonable explanation. [8] The RPD also found the Appellant's limited education was insufficient to explain the concerns as they all related to personal matters. [9] The RPD also found the Appellant's supporting documents were insufficient to establish, on a balance of probabilities, that the Appellant is a genuine Falun Gong practitioner. [10] The Appellant argues the RPD erred in its assessment of the Appellant's credibility by: a. Engaging in improper religious testing; b. Failing to properly consider the Appellant's limited education; c. Failing to presume the Appellant's testimony to be true; d. Engaging in improper focus on minor issues; e. Making an unreasonable finding regarding the omission of the second smuggler in the Appellant's BOC narrative; and f. Implying the Appellant was simulating her identity as a genuine Falun Gong practitioner. [11] These arguments are address in turn below. The RPD did not engage in improper religious testing [12] The Appellant argues the RPD erred in its zeal to discredit her by engaging in a trivia-like examination of the Appellant's knowledge of Falun Gong and her ability to recall the topics of discussions held after Falun Gong practice sessions to assess the genuineness of her faith, and that these questions were, at best, corollary to her claim. She argues the RPD disregarded the core issue of her claim due to Falun Gong activities, and instead focused on issues of minor relevance. She argues the RPD failed to consider the possible explanations in Zhang,2 such as not understanding the question, possessing a weak memory, or the answer was never learned, and that the RPD failed to clarify which answers or manner of answering would have been satisfactory. She also argues religious knowledge cannot be equated to faith and it was unreasonable for the RPD to rely on a few "incorrect" answers as a basis for dismissing all of the Appellant's evidence that established her identity as a Falun Gong practitioner. She submits that when her education level is considered with the sincerity of her belief and her ability to answer the questions from the RPD more than adequately, the RPD improperly used an unreasonably high threshold of quiz-type questions to improperly establish a too-high standard of knowledge against which it tested her beliefs, which was impermissible as per the case law. She also submits the RPD used a subjective standard to assess her knowledge and it is not transparent what is needed for that threshold to be met, which has been struck down by the Federal Court. [13] I am not persuaded by the Appellant's arguments and I find the RPD did not err. The RPD's question was far from trivia-like and in my assessment, shows no "zeal to discredit" the Appellant. The Appellant herself testified she sent righteous thoughts, clarified the fa, participated in group discussions, and that she liked the seventh talk in the Zhuan Falun the most. The RPD's questions asked the Appellant to explain and elaborate on activities she already professed to be doing and alleged she had been doing for over one to two years. It was entirely correct for the RPD to enquire into how the Appellant sent righteous thoughts, what clarifying the fa involves, what was discussed at group meetings, and why the seventh talk was personally meaningful to her. This was not quiz-like, this was not the RPD strictly testing the Appellant's knowledge; this was the RPD attempting to assess the genuineness of the Appellant's faith based on activities the Appellant herself alleged to have been doing for over one to two years. I do not find that these issues were corollary or of minor relevance to the Appellant's claim. Central to the claim is the Appellant's identity as a Falun Gong practitioner, which is exactly what the RPD enquired about. [14] The Appellant's arguments that the RPD failed to consider possible explanations, such as not understanding the question, possessing a weak memory, or the answer was never learned, do not resolve the Appellant's lack of credibility in being unable to answer the RPD's questions. The Appellant has not alleged she misunderstood the questions, nor did she testify she could not remember. Rather, her answers were that she could not describe or explain or did not know. Moreover, the possible explanation that the answer was never learned is not applicable as the Appellant was being asked about activities she did and their meaning to her. [15] The Appellant argues the RPD failed to clarify which answers or manner of answering would have been satisfactory, and that the RPD used a subjective standard to assess her knowledge but it is not transparent what is needed for that threshold to be met; but these arguments miss the point. The Appellant did not provide any answers, despite alleging she had been participating in Falun Gong activities for over a year. This is not credible. In my view, the RPD was correct to rely on the Appellant's inability to answer basic questions about how she practices Falun Gong as a basis to dismiss her identity as a genuine practitioner. [16] I also reject the Appellant's argument that when her education level is considered with the sincerity of her belief, she was able to answer the RPD's questions more than adequately. The Appellant did not answer the RPD's questions, therefore I fail to see how she answered "more than adequately." Even when I consider her limited education (discussed in more detail below), I find it is unclear how her limited education would prevent her from answering questions about basic activities from her practice which she allegedly practiced at least weekly. [17] For the foregoing reasons, I find the RPD did not err as it did not engage in improper religious testing. The RPD did not fail to properly consider the Appellant's limited education [18] The Appellant argues that because of her limited education and the stressful hearing environment, there was an obvious possibility of the Appellant not being a particularly articulate and well-spoken individual, and that the RPD failed to conduct any examination or reasoning why this possibility did not provide an adequate explanation for her answers and her lack of ability to testify "in a more substantive and consistent manner." [19] I am not persuaded by the Appellant's arguments and I find the RPD did not err. The RPD considered the Appellant is of limited education but found this was insufficient to explain the concerns. I agree with the Appellant that there was an obvious possibility she would not present as an articulate and well-spoken individual; however, that was not a requirement. I also find the RPD did consider the Appellant's personal circumstances and limited education. The answers to the RPD's questions did not require the Appellant to be highly articulate and well-spoken. As an example, she testified she sent righteous thoughts and was asked to explain how this is done, but she said she could not even attempt to describe it. It is unclear how her level of education would have any bearing on her ability to even attempt to explain how she does something that she, herself, admitted to doing in the past. The RPD correctly reasoned that the Appellant's limited education was insufficient to explain why she could not testify to aspects of her Falun Gong practice which she alleged to have regularly participated in, and that her inability to explain was due to her lack of credibility rather than her limited education. [20] For the foregoing reasons, I find the RPD did not err as it did not fail to properly consider the Appellant's limited education. The RPD did not fail to presume the Appellant's testimony to be true [21] The Appellant argues the RPD disregarded the principle that oral testimony is presumed to be true unless there is a valid reason to believe otherwise, and argues that there is no evidence that suggests the Appellant was not telling the truth. [22] I am not persuaded by the Appellant's arguments and I find the RPD did not err. Based on my review of the record, I find the RPD did start by presuming the Appellant's testimony to be true; however, as it is apparent that credibility concerns arose along the way, I find there was valid reason to believe otherwise. I reject the Appellant's argument that there is no evidence to suggest she was not telling the truth. As discussed above, her inability to answer basic questions about her Falun Gong practice is a valid reason to rebut the presumption of truthfulness. Moreover, as discussed below, the inconsistency regarding the timing of her decision to leave China and the addition of a second smuggler, are also valid reasons that rebut the presumption. Therefore, I see no error on the part of the RPD in this regard. [23] For the foregoing reasons, I find the RPD did not err as it did not fail to presume the Appellant's testimony to be true. The RPD did not engage in an improper focus on minor issues [24] The Appellant argues the RPD, at best, focused on microscopic detail that was corollary to the claim, for example by questioning how to send righteous thoughts, explaining what it means to "clarify the fa," and topics discussed at group sessions, and that the RPD's findings in this regard are peripheral to her claim. [25] I am not persuaded by the Appellant's arguments and I find the RPD did not err. As discussed above, I do not find that these issues were microscopic and corollary to the Appellant's claim. Central to the claim is the Appellant's identity as a Falun Gong practitioner, which is exactly what the RPD enquired about. If the Appellant could not testify credibly about her alleged Falun Gong practice, I fail to see how that is peripheral to her claim in which she alleges to be a Falun Gong practitioner afraid of returning to China. I find the RPD's focus was on the core of the claim, and as a result, significant issues arose from the Appellant's testimony. [26] For the foregoing reasons, I find the RPD did not err as it did not engage in an improper focus on minor issues. The RPD's unreasonable finding regarding the omission of a second smuggler from the Appellant's narrative does not impact the RPD's finding that the Appellant was inconsistent regarding when she decided to leave China [27] The Appellant argues the RPD erred in its negative finding when addressing her explanation on when she decided to leave China. She argues the RPD erroneously found her explanation was unreasonable and that it did not make sense that she failed to mention there were two different smugglers involved. The Appellant further argues that there was no evidence suggesting her information was not true and that it was perverse for the RPD to reason that because she provided details about arrangements made with a smuggler, that this would imply she would exhaustively include all details on this peripheral issue. She also argues the RPD's bald assertion that the omission "does not make sense" is not sufficient to establish any rational connection between the minor and peripheral omission and her credibility. The Appellant also argues there was no actual inconsistency regarding when she decided to leave China as she had been thinking about it for some time before the thought solidified into concrete action after her arrest. She argues the RPD failed to give her the presumption of truthfulness and the omission was not serious, but rather an omission of an elaborative detail, which was reasonably explained. [28] I find the RPD erred in part. I am persuaded by the Appellant that the omission of the second smuggler from her narrative was not serious and merely an omission of an elaborative detail which was reasonably explained. However, I find the RPD's analysis about the inconsistency regarding when the Appellant decided to leave China is correct. [29] The Appellant's BOC suggests she decided to leave China prior to her detention, but she testified it was after she was released from detention. As identified by the RPD, her explanation about the second smuggler lacks credibility because of the man named XXXX XXXX XXXX, a point the Appellant has not contested in this appeal. The Appellant alleged the first smuggler made arrangements for XXXX XXXX XXXX to be the Appellant's false husband for her trip to Vietnam. She later indicates in her BOC that she left China with XXXX XXXX XXXX and the smuggler, which she would allege was the second smuggler. The discrepancy is clear: if XXXX XXXX XXXX was arranged by the first smuggler, why and how was the Appellant leaving China with him after retaining a new smuggler? This discrepancy casts doubt on the Appellant's explanation that there was a second smuggler, which was her explanation for the inconsistency about when she decided to leave China. I find the inconsistency is unresolved and find, as the RPD did, on a balance of probabilities, that the smuggler who arranged the Vietnam trip and false husband was the same smuggler with whom the Appellant left China. Further, I find this inconsistency is material as it casts doubt on the Appellant's allegations about when she decided to leave China, whether before or after her detention, which is significant to her claim. Therefore, I reject the Appellant's arguments and find the RPD did not err, the Appellant's explanation was unreasonable, and the presumption of truthfulness was rebutted. [30] With regard to the Appellant's argument that there was no actual inconsistency as she had been thinking of leaving China for some time before the thought solidified into concrete action after her arrest, I reject this argument too. Had this been her answer in the hearing, instead of her answer that there was a second smuggler, perhaps it would have carried more credibility. However, at this stage, her BOC indicates she made arrangements with a smuggler prior to her detention, but testified she decided to leave after her detention and hired a smuggler at that time. These are inconsistent, she failed to provide a reasonable explanation, and therefore, I find the RPD did not err in this aspect of its analysis. [31] For the foregoing reasons, I find the RPD erred by making an unreasonable finding regarding the omission of a second smuggler from the Appellant's narrative; however, I find this does not impact the RPD's finding that the Appellant was inconsistent with regard to when she decided to leave China. The RPD did not imply the Appellant was simulating her identity as a genuine Falun Gong practitioner [32] The Appellant argues the RPD erred in making an adverse credibility finding by speculating that the Appellant's Falun Gong activities are voluntary, and one can choose to participate in them in order to bolster a refugee claim. She argues the RPD exhibited an improper zeal to discredit her by suggesting she was merely participating in Falun Gong activities to bolster her claim. [33] I am not persuaded by the Appellant's arguments and I find the RPD did not err. Based on my assessment, the Appellant has misconstrued the RPD's reasons. The RPD, in assessing a letter of support from a fellow Falun Gong practitioner and photographs, stated that these "merely establish that the claimant has participated in Falun Gong activities in Toronto. However, participating in Falun Gong activities does not in itself establish that one is a genuine Falun Gong practitioner... Furthermore, such activities are voluntary and one can choose to participate in them in order to bolster a refugee claim." In my view, the RPD did not make a finding that the Appellant merely participated in Falun Gong activities to bolster her claim. Rather, the RPD placed little weight on the letter and photographs because participating in such activities is voluntary and can be done to bolster a claim. Moreover, the documents and participation in activities did not outweigh the RPD's credibility findings and did not establish, on a balance of probabilities, that the Appellant is a genuine Falun Gong practitioner, which I find to be correct as it is based on real credibility findings regarding the Appellant's beliefs and practice. [34] Therefore, for the foregoing reasons, the Appellant's arguments are rejected and I find the RPD did not err as it did not imply the Appellant was simulating her identity as a genuine Falun Gong practitioner. [35] For all of the above reasons, I find the RPD did not err in its assessment of the Appellant's credibility and in finding the Appellant is not a genuine Falun Gong practitioner, on a balance of probabilities. The Appellant has failed to establish a sur place claim [36] The RPD found the Appellant had not alleged nor provided any evidence to indicate that her Falun Gong activities have come to the attention of the authorities in China. [37] The Appellant argues the RPD erred in not considering the Appellant's sur place claim as it failed to consider whether the Appellant can freely practice Falun Gong in China. She argues that given the RPD's erroneous discounting of her credibility, the RPD could not reasonably approach the issue of her sur place claim. The Appellant argues it is unclear what evidence the RPD would expect and accept as evidence that the Appellant's activities in relation to her Falun Gong activities here in Canada amount to sur place. The Appellant also argues the RPD erred by applying the wrong test and focusing only on whether the Appellant's activities have come to the attention of the authorities and by failing to appreciate that a sur place claim lays in whether the Appellant can freely practice Falun Gong in China as she has done here in Canada. [38] I find the RPD erred in failing to consider whether the Appellant can freely practice Falun Gong in China; however, I also find that there is insufficient evidence to support a sur place claim for the reasons that follow. [39] With regard to the Appellant's argument about whether she can freely practice Falun Gong in China, as I have found she is not a genuine practitioner, I therefore find she would not practice Falun Gong in China, on a balance of probabilities. [40] I am also mindful that I must independently consider the evidence in relation to the sur place claim, even if the motivation behind such activities was not in good faith.3 [41] In my independent assessment of the sur place claim, I have considered whether there is sufficient credible evidence of the Appellant's Falun Gong activities in Canada which would result in a well-founded fear of persecution, or cruel and unusual punishment upon her return to China. [42] I have considered the objective evidence that Falun Gong practitioners outside of China may be monitored by Chinese authorities. A source at the Falun Dafa Association of Canada (FDAC) indicated that the monitoring was described as photographing protesters outside the embassy or consulates, surveillance at Falun Gong parades, and infiltration of community groups and university campuses in cities with Falun Gong communities. The extent and consequences of such monitoring is inconclusive as "very little documentary evidence exists" related to the monitoring of Falun Gong practitioners outside of China and the potential consequences they face upon their return to China.4 [43] I find that there is insufficient evidence to find that the Appellant's Falun Gong activities in Canada were/are likely, on a balance of probabilities, to come to the attention of the Chinese authorities. It is speculative that she could have been photographed when participating in Falun Gong activities and she could have been identified, or that a Chinese spy could have infiltrated her Falun Gong group. I find, however, that this speculation does not meet the applicable standard of proof. Further, there is no evidence that the Appellant's photographs have been published online and it is speculative that they will be published online. Finally, given the objective evidence indicates that very little documentary evidence exists related to the monitoring of Falun Gong practitioners outside of China, I find that there is insufficient evidence to support a sur place claim. CONCLUSION [44] For the above reasons, and after conducting its own analysis of the record, including the audio recording of the RPD hearing, the RAD finds that the RPD did not err in rejecting the Appellant's claim. The RAD finds that the Appellant has not established her allegations on a balance of probabilities. As a result, the RAD finds that she has not established that she faces more than a mere possibility of persecution as per section 96, or that she faces harm, on a balance of probabilities, under section 97 of the Immigration and Refugee Protection Act (IRPA). Therefore, the RPD's final determination that the Appellant is not a Convention refugee nor a person in need of protection is correct, and this appeal is dismissed. [45] 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 section 111(1)(a) of the IRPA. (signed) "Inderpreet K. Singh" I. Singh September 8, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Zhang v. Canada (Minister of Citizenship and Immigration), 2012 FC 503. 3 Koua v. Canada (Citizenship and Immigration), 2015 FC 793 (CanLII), para. 21 and 23; Ejtehadian v. Canada (Citizenship and Immigration), 2007 FC 158 (CanLII), para. 11; see also Ghasemian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1266 (CanLII), at paragraphs 21-23, and Ngongo c. Canada (M.C.I.), [1999] A.C. F. No 1627 (C.F.) (QL). 4 National Documentation Package (NDP) for China (29 March 2019), tab 12.18: Monitoring of Chinese citizens who practice Falun Gong (Falun Dafa) outside of China; consequences upon return to China (2013-September 2016). Immigration and Refugee Board of Canada. 19 October 2016. CHN105635.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-23853 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