TB9-17714

RAD File / Dossier de la SAR : TB9-17714 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 June 11, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Shelley S. Levine 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] I allow this appeal. The Appellant, XXXX XXXX, is a citizen of China who claims refugee protection on the grounds of religion as a Falun Gong practitioner. The refugee claim was heard on June 6, 2019, and rejected on June 18, 2019. The Appellant has not applied to submit new evidence, under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), but has requested an oral hearing. This request is denied because no new evidence was submitted that would need to be assessed pursuant to subsection 110(6) of the IRPA. No transcript has been prepared, but a digital audio recording of the hearing is available. [2] The claim was first heard on March 4, 2015 and rejected on March 12, 2015. The Refugee Appeal Division (RAD) allowed the appeal on June 25, 2015 on the basis that the Refugee Protection Division (RPD) erred in its assessment of the Appellant's profile as a Falun Gong practitioner. The RAD upheld the RPD's determination that the Appellant is not likely being sought by the Public Security Bureau (PSB). It conducted an independent assessment of the summons and inconsistent, together with information in the National Documentation Package (NDP) before concluding that the summons is likely fraudulent. Nevertheless, insufficient questions were asked about her activities and knowledge of Falun Gong teachings to determine whether she is a genuine Falun Gong practitioner. Basis of Claim summary [3] The Appellant was introduced to Falun Gong in XXXX 2013 and joined a group of 9 practitioners in XXXX 2013. She was able to escape and go into hiding at her maternal aunt's house when the PSB raided the group on XXXX XXXX XXXX 2014. Two other practitioners were not so fortunate and were arrested. She left China with the help of a smuggler and arrived in Canada on XXXX XXXX XXXX 2014. The PSB went to her home on XXXX XXXX XXXX 2014 and left a summons (Chuanpiao) with her husband. They returned twice in 2015. Findings of the RPD [4] The determinative issue for the RPD was credibility. It rejected the claim on the following grounds: i) The Appellant travelled to Canada with her own passport. She testified that she had no problems exiting China. No specific evidence was introduced that corruption is rampant at China's airports. The RPD considered the Chuanpiao which was issued after she left China. However, her departure without incident was improbable, given the arrests of her two co-practitioners on XXXX XXXX XXXX 2014. Her name would likely have been flagged. It is reasonable to conclude that the PSB would have been aware of her identity prior to delivering the Chuanpiao; ii) No Further PSB documents have been issued, including a coercive summons. In addition, her family has not suffered any consequences. This is inconsistent with the modus operandi of the PSB as outlined in the objective evidence. The PSB is known for its relentless pursuit of Falun Gong practitioners; iii) The Appellant's profile as a Falun Gong practitioner in China is low. She was only involved in doing exercises, studying Falun Gong philosophy at home, and meeting secretly once a week with her small group of nine. It is unlikely that the PSB would commit the alleged time and resources to continue to search for her, given her minor profile; iv) The RPD gave little weight to evidence in support of her Falun Gong practice in Canada. Jurisprudence cautions against accepting the reliability of evidence from family and friends which is not subject to cross-examination.1 None of authors of supporting letters appeared as witnesses; and v) The Appellant's religious knowledge was poor. Her responses to questions about Falun Gong were simplistic and likely the result of rote learning. It was insufficient to support the claim that she is a genuine Falun Gong practitioner, especially given the credibility concerns. Grounds of Appeal [5] The Appellant submits that the RPD erred for the following reasons: i) Travel to Canada: The RPD erred in stating there was no specific evidence presented to support the submission that corruption is rampant at airports in China. The RPD also committed an error in finding that her departure without incident is improbable because her two co-practitioners were arrested on XXXX XXXX XXXX 2014. She testified that she hired a smuggler to assist with her departure. The existence of a system like Golden Shield does not establish that no breach could take place. Given the inconsistency of policing standards in China, it is plausible that a smuggler helped her circumvent airport security; ii) Supporting documents: There is a presumption that government-issued documents are genuine. Not every document from China is fraudulent. Documents must be individually assessed. The RPD did not assess the summons against features in a genuine summons, but instead discredited it on the basis of cumulative adverse credibility findings. The RPD's erred in its conclusion that failure of the PSB to issue a coercive summons was inconsistent with PSB actions; iii) Falun Gong profile and identity: The RPD misapprehended this issue. She could not practice Falun Gong openly and freely in China, notwithstanding her profile. The RPD erred in its assessment of her knowledge of Falun Gong and ignored evidence; and iv) The sur place claim: The RPD disregarded evidence that China monitors citizens who practice Falun Gong activities in foreign countries. Summary of RAD Decision [6] The determinative issue for the appeal is credibility. The question of whether the summons is authentic and the PSB is looking for the Appellant cannot be determined without the matter being sent back to the RPD because the issues of concern identified by the previous RAD decision were not considered. The Appellant's knowledge of Master Li's teaching was superficial, but adequate. The Appellant filed letters from three Toronto Falun Gong practitioners, together with photographs of her participation at activities at Milliken Park and at Toronto City Hall that document her participation beginning in XXXX 2015. The totality of the evidence establishes that she is likely a genuine Falun Gong adherent, albeit one who has not taken a deep interest in the finer points of Falun Gong teaching. DECISION [7] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.2 The RPD erred on its assessment of her exit from China and PSB interest [9] Counsel submitted at the hearing that the first RAD erred in drawing an adverse conclusion from the fact that she was able to leave China with her own passport because the summons was issued two days after she left the country. Notwithstanding this error, the RAD concluded that the summons is likely fraudulent because it is not consistent with a genuine example in the documentary evidence and because she presented unreliable testimony about her husband being monitored. [10] The RPD ignored the first RAD decision on rehearing and reconsidered the question of the summons and of the PSB interest. The RPD acknowledged that the summons was issued two days after her departure, but concluded that the PSB was likely aware of her participation in the Falun Gong activities before she left. [11] The Appellant obtained a Canadian Temporary Resident Visa (TRV) on XXXX XXXX XXXX 2014 which she used to visit Canada between XXXX XXXX XXXX 2014 and XXXX XXXX XXXX 2014.3 She then returned to Canada on XXXX XXXX XXXX 2014, five days after the alleged raid on the Falun Gong meeting at which two co-practitioners were detained. It is not implausible that it took a few days for the PSB to obtain information from the detainees about the identity of the other members of the group and that the summons was issued after her departure. The RPD made an impermissible implausibility finding. [12] The RPD also drew an adverse inference from the fact that the PSB did not leave a warrant for her arrest at either of the two subsequent visits, despite her not having complied with the summons. Furthermore, her family did not experience any problems. Given the fact that the Appellant left China by air and that her passport was stamped, it is likely that the PSB knew that she was not in the country. Under the circumstances, it is not reasonable to speculate that they would have left a warrant with family members. The documentary evidence shows that some family members are harassed, but not all of them are. The RPD's findings on this issue were more speculative than substantiated. [13] I note that the Appellant already had a valid Canadian TRV in her passport when the PSB raided the meeting. She left the country five days later at a time when there was no evidence that the PSB was aware of her affiliation with Falun Gong. Under these circumstances, a smuggler would not likely have been required. Even if she were not telling the truth about hiring a smuggler, this could not support the conclusion that she is not a person of interest to the PSB because of how she left China. The issue of current PSB interest concerns the authenticity of the summons and the truthfulness of her testimony about it, not how she came to Canada. [14] The RPD's reasons for concluding that the summons is not likely authentic were not correct. Although the first RAD appeal supported its conclusion that it is not likely genuine based on unreliable evidence about the PSB having put her husband under surveillance, this issue was never raised or addressed by the RPD. As a result, I am unable to evaluate this issue in the context of her wider credibility. The inconsistency between the summons and the example in the NDP is not dispositive in itself. Its significance would need to be evaluated in light of the reliability of her testimony. Given the lack of questions asked by the RPD about it, this issue would need to be sent back to the RPD for redetermination. Falun Gong profile [15] The determinative issue is whether the Appellant is a genuine Falun Gong practitioner or whether she would be perceived to be so by Chinese authorities. [16] The RPD showed the Appellant two pictures of a man sending righteous thoughts.4 The Appellant testified that they illustrate part of exercise five in which the person was moving the law wheel with the Buddha's hand. This is done to increase energy by penetrating the meridians that run through the body. The description of the practice in Falun Gong indicates that there are a number of Buddhist symbols on the law wheel, but it is the practitioner who learns to move it, not the Buddha.5 Given that the law wheel is located in the lower abdominal area, it is difficult to understand how she could have thought that hands extended upwards over the upper torso could have moved the law wheel. Her testimony on this issue was erroneous. [17] The Appellant was aware of the significance of karma and the need to transform black karma to white karma. She also described the role that sending righteous thoughts in "correcting" heaven and earth. She testified that karma follows one from a previous life, and she was aware of eastern teachings about energy moving through meridians. Nevertheless, at no time did she refer to the important underlying supernatural beliefs of Falun Gong.6 For example, righteous thoughts are not designed to open meridians for one's qi, but to expel evil spirits from oneself and to vanquish them from the world. However, the RPD limited itself to a few open-ended questions without asking meaningful follow-up questions. The Appellant's answers were incomplete and somewhat superficial, but not technically incorrect, with the exception of her description of the hand positions for sending righteous thoughts. When asked about the key principles of Falun Gong, the Appellant correctly answered truthfulness (Zhen), compassion (Shan), and forbearance (Ren). She also correctly cited the verse that accompanies exercise one when asked by counsel. [18] The RPD did not ask the Appellant to demonstrate an exercise. Although her testimony was lacking in detail, this may well have been the result of the RPD not asking for more details. Although it is true that she could have gained this knowledge through reading a few documents about Falun Gong, it is equally consistent with a practitioner who focused on the exercises, not on the finer points of Master Li's teaching. Her knowledge about Falun Gong teachings is not conclusive one way or the other. This issue must be assessed in light of the totality of the evidence. Supporting documents [19] The Appellant filed three letters of support from Falun Gong practitioners in Toronto, all of which were accompanied by a piece of photo identification. The first is from Z.L.7 dated XXXX XXXX XXXX 2015, who states that they met in XXXX 2014 and the Appellant has practiced in Milliken Park since then.8 [20] The second letter is from J.Q.9 dated XXXX XXXX XXXX 2019.10 They met at Milliken Park in XXXX 2015. The Appellant has participated in parades and is very serious in her practice. [21] The third letter is from J.L.11 dated XXXX XXXX XXXX 2019, who met the Appellant at Milliken Park in XXXX 2016.12 RAD assessment [22] The Appellant is likely a genuine Falun Gong practitioner. The issue of whether or not the Appellant is wanted by the PSB cannot be determined without a rehearing by the RPD. Her knowledge of Falun Gong teaching is weak and cannot establish a serious degree of integration on this basis alone. Nevertheless, it is important to keep in mind the Federal Court jurisprudence which emphasizes the need to consider the totality of the evidence. In particular, a finding that a claimant is not generally credible does not extend to evidence from third parties.13 Sufficient reasons need to be given to give little weight to this evidence. [23] The Appellant filed photographs of her at Milliken Park from XXXX 2015 and XXXX 2019.14 She also filed a photograph of herself at a Falun Gong event outside the Toronto City Hall.15 She testified that this involved a protest against Chinese suppression of Falun Gong. [24] The Appellant arrived in Canada on XXXX XXXX XXXX 2014 and signed the refugee claim documents shortly thereafter, on XXXX XXXX XXXX 2014. One support letter indicates that she began attending Falun Gong activities at Milliken Park the following month, in XXXX 2014. This behaviour is consistent with a genuine adherent. [25] Given the superficial nature of her testimony about Falun Gong beliefs, her testimony that she reads about Falun Gong teachings every day is not likely true. However, she is likely telling the truth that she participates regularly in Falun Gong practice, and has done so since shortly after her arrival in Canada in 2014. The documentary evidence follows her attendance to XXXX 2019. [26] A document in the NDP indicates that Chinese authorities monitor Falun Gong activities outside of the country.16 The Appellant's participation in a protest event at Toronto City Hall puts her at particular risk of detection. Although this cannot be established on a balance of probabilities, it is not determinative, given the conclusion that she is likely a genuine Falun Gong practitioner. [27] Risk to Falun Gong practitioners is well established.17 [28] When all of the evidence is considered together, there are sufficient grounds to conclude that the Appellant likely participates actively in Falun Gong public exercises and that she has done so since her arrival in Canada. It is likely an important part of her life as a genuine adherent now, even if this were not the case in China. As a result, she has a well-founded fear of persecution in China. Given that the PSB is agent of persecution, state protection and an internal flight alternative are not available. CONCLUSION [29] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, I substitute my own decision that the Appellant is a Convention refugee. (signed) "H. Shepherd" H. Shepherd June 11, 2020 Date 1 El Bouni v. Canada (Citizenship and Immigration), 2015 FC 700 (CanLII). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 3 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 77. 4 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (29 March 2019), item 12.20: The Two Hand Positions for Sending Forth Righteous Thoughts. 12 June 2001. 5 NDP for China, (31 March 2020), item 12.7: ?Falun Gong. 7th Translation Edition. 2016, at pp. 18-19. 6 Ibid., at pp. 34-38. 7 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. [Personal identifier] 8 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 114-115. 9 Personal identifier, supra, footnote 7. 10 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 204-205. 11 Personal identifier, supra, footnote 7. 12 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 207-208. 13 Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 (CanLII) at paras. 85-86. 14 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 116-118. 15 Ibid., Exhibit 6, at p. 209. 16 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China, (29 March 2019), item 12.18: ?Monitoring of Chinese citizens who practice Falun Gong (Falun Dafa) outside of China; consequences upon return to China (2013-September 2016). Response to Information Request (RIR) CHN105635.E. 19 October 2016. 17 Ibid., item 12.23: Treatment of Falun Gong practitioners by state authorities; whether state authorities treat Falun Gong leaders differently than other Falun Gong practitioners (2013-September 2015). . RIR CHN105282.E. 14 October 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-17714 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