TC0-05875

RAD File / Dossier de la SAR : TC0-05875 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 December 18, 2020 Date de la décision Panel Joseph Wyger 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 dismiss this appeal. The Appellant XXXX XXXX (Mr. S.) is a citizen of China. He allegedly fears authorities in China because he practices Falun Gong (FG). a. The Appellant practiced Falun Gong for a year and then fled China when he heard the Public Security Bureau (PSB) was going to crack down on the banned activity. b. The Refugee Protection Division (RPD) found that Mr. S. was not a credible genuine practitioner of FG, while the Appellant says the PSB will find out if he continues to practice in China and will persecute him. c. The determinative issue for the Refugee Appeal Division (RAD) is whether the RPD erred in finding that Mr. S. is not a genuine practitioner of FG. d. The RAD determines that the Appellant is not a credible and genuine practitioner of FG and does not face a serious possibility of persecution in China. DECISION [2] I dismiss the appeal. 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's allegations can be summarized as follows: [4] The Appellant fears persecution in China due to his identity as a FG practitioner. In XXXX 2014, Mr. S. began to experience back pain that could not be cured with either Eastern or Western medicine. In XXXX 2015, his friend XXXX XXXX suggested he try FG. After discussing it with his wife, he agreed to try FG in the privacy of his home. XXXX taught Mr. S. at his home and after two months, he began to experience relief. The Appellant then joined a practice group in XXXX 2015. In XXXX 2016, following news of a crackdown on FG, the group leader decided to suspend practice. Mr. S.'s wife became scared and told him he should leave China. Mr. S. left China for Canada on XXXX XXXX XXXX 2016, and filed a refugee claim. He purchased and begun studying Zhuan Falun and has joined a FG practice group in Canada. [5] After Mr. S. filed his refugee claim, the Minister filed a Notice of Intent to Intervene for the purpose of program integrity because Mr. S.'s narrative contained nearly identical allegations and sentences as five other unrelated but similar Basis of Claim (BOC) narratives. The Minister subsequently withdrew the intervention notwithstanding "...concerns arising from the noted similarity of Basis of Claim between this claim and numerous other claims..."1 The Notice of Withdrawal explains that the representative did not expect to be available for the scheduled hearing date and did "...not have new disclosure to add to what is already before the Panel for consideration." 2 RPD FINDINGS [6] The RPD made several findings in determining that Mr. S. faces no more than a mere possibility that he would be persecuted for a Convention ground nor would he face a S. 97 risk if returned to China. The findings: a) Several similarly worded BOCs from other claimants are insufficient evidence to seriously undermine the Appellant's credibility; b) Mr. S.'s knowledge of FG is not consistent with the length of his study and practice; c) Mr. S. is not a genuine practitioner and his FG activities in Canada are for the purpose of bolstering his refugee claim; d) There was insufficient evidence that Mr. S.'s FG activities in Canada have come to the attention of Chinese authorities; and e) The objective evidence indicates that Mr. S. could practice FG discreetly in China should he choose to. APPELLANT'S POSITION [7] The Appellant contends that the RPD was selective in the evidence it relied on and failed to properly consider his evidence that he is a genuine FG practitioner. He set out the following grounds of appeal: a) The RPD discarded evidence of Mr. S.'s ability to answer questions correctly which undermined its finding that he is trying to support a fraudulent claim; b) The RPD's trivia-like method of questioning to determine Mr. S.'s religious identity was wrong; c) The panel was mistaken in misapplying the low standard for demonstrating religious knowledge and rebutting the presumption of truth concerning Mr. S.'s religious identity; d) The RPD erred in simply dismissing Mr. S.'s supporting documents without giving cogent reasons why; e) The RPD misapprehended the definition of religious persecution by ignoring how Mr. S. would be perceived by the PSB; and f) The panel incorrectly inferred a broad general proposition that every sur place claim must show that the claim came to attention of authorities. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.3 I determine that the RPD was right to find Mr. S. not credible and that he is not a genuine practitioner of FG. In my independent assessment of the evidence, I conclude that Mr. S. attends FG practice groups in Canada only to bolster his refugee claim. I conclude that he would not face a serious possibility of persecution by the PSB if he returned to China. Evidence of similar narratives undermines Mr. S.'s credibility [9] The RPD wrote that it considered the five redacted versions of similarly worded BOCs in evidence, questioned Mr. S. about them and considered counsel's submissions. The panel noted that while there are similarities among the six BOCs (including Mr. S's), there are also differences. The RPD found that it was not implausible that similar phrases may be used to describe similar events, and therefore the information was not probative and deserved little weight. The panel determined that the similarities found between the five narratives and Mr. S's narrative were insufficient persuasive evidence to undermine Mr. S.'s credibility. [10] The Appellant's Memorandum did not deal with the issue of similar BOC narratives and I intend to address it. In order to comply with the principles of procedural fairness, I requested submissions4 from Mr. S.'s counsel on the question of whether and how the evidence of similar BOCs from five unrelated refugee claimants might impact Mr. S.'s overall credibility. [11] By letter dated December 4, 2020, counsel5 for Mr. S. submitted that the question called for more evidence and should be addressed to Mr. S. directly. Counsel suggested that I could "remit the matter back to the Refugee Protection Board or hold an oral hearing."6 No substantive submissions were provided on the issue in question. [12] I find that more evidence, over and above the Minister's analysis of five similar BOCs, is not required. It is also not necessary to send the matter back to the RPD because I can conduct an independent assessment of this evidence. [13] I disagree with the RPD's assessment of the evidence on this issue for the reasons which follow. Included in the evidence is a paragraph by paragraph analysis of the similarities, and I find that they are clearly too numerous to plausibly represent the unrelated stories of six different refugee claimants. These were not just similar events, but an identical sequence of incidents, feelings, concerns, and reactions among three people (claimant, spouse, friend) times six unrelated claims, and so experienced by eighteen unique individuals. [14] The RPD says there are also differences, but differences are the expected norm among what should be unique narratives in unrelated claims. What is not expected, believable, probable, or plausible is six nearly identical religious journeys. This is not some boiler-plate language on state protection or internal flight alternative for example, that might be expected on the question and answer portion of BOC forms dealing with a particular country. These are the supposedly individual narratives of events that transpired over several years as dictated to an immigration consultant. [15] The similarities in the narratives go well beyond similar phrases used to describe similar events. I counted twenty-two points of near identical incidents, which included how a friend: was in pain and started practicing FG; got no relief through "...Western and Chinese medicine..."; got relief from pain and an improved mood from FG; offered to teach exercises and basic knowledge of FG to the claimant; and invited the claimant to his practice group because it "...makes the energy field stronger..." [16] There are numerous points of comparison relating the reactions and feelings of each claimant's wife: being "promised" by her husband that his FG practice would be private or discreet; "supported" her husband's decision to take up FG following that promise; declined to join FG herself after her husband "...tried to get my wife to practice"; and "...after talking to my wife and getting her support again... I joined the practice group in (month/year)." [17] Following word that the group organizer decided to stop group practice because of a PSB crackdown, the claimants' respective wives said it was too risky or unsafe to practice even at home. While all five narratives were similar in this respect, two of the claims had identical passages to Mr. S.'s narrative: "My wife told me that it was now too risky to practice in China, even in our own home."7 [18] The Minister also expressed concern about the similarities between Mr. S.'s claim and "numerous" other claims and noted that those numerous other claims were not limited to the five narratives in the RPD Record. The Minister did not attend the RPD hearing or add to what was already before the RPD. In my view, each additional similar narrative renders an exponentially smaller chance that any of them are reflective of any objective reality. [19] I understand that implausibility findings are reserved for only the clearest of cases, and I find this is such a case. I calculate the odds of Mr. S.'s claim being so substantively identical to these five or more un-related narratives by coincidence to be so miniscule as to be implausible. I draw a negative credibility inference about Mr. S.'s narrative. No serious possibility of persecution by PSB [20] The RPD determined that Mr. S. did not have a valid sur place claim because he is not a genuinely committed FG practitioner and engaged in FG activities in Canada for the purpose of bolstering his refugee claim. The panel noted that FG is not even considered a religion by its followers, and does not have a political agenda. The panel found that there was insufficient evidence that if Mr. S. has practiced FG in Canada, that this was brought to the attention of the Chinese authorities. The RPD further cited documentary evidence that the vast majority of FG practitioners in China can practice without it coming to the attention of authorities and do not experience problems from authorities. The panel concluded that Mr. S. could do the same with not more than a mere possibility that he would be persecuted. [21] Mr. S. argues that the RPD engaged in a trivia-like method of questioning and ignored his correct answers that displayed his religious knowledge. He contends that he cleared the low standard for religious knowledge and demonstrated he is a genuine practitioner. Mr. S. says that because he has attended FG group practice in Canada he would be perceived so by Chinese authorities and that overseas FG practitioners who return to China face punishment. [22] I have conducted an independent assessment of the evidence including listening to the audio recording of the RPD hearing. I agree with the RPD that Mr. S.'s overall level of knowledge was not consistent with someone who claimed to have read the Zhuan Falun multiple times and had been practicing in group settings for over four years. I find that his answers to numerous questions were unsure and hesitant, punctuated by long pauses and reaching for non-specific responses. [23] The Appellant's Memorandum decried the RPD expecting Mr. S. to equal the panel's specialized knowledge or views on FG theory. The panel did appear to display some experience with FG claims, but I don't consider that a bad thing. In my view, it allowed the panel to gauge the spectrum of religious knowledge from an informed position. The panel did not selectively focus on answers that were less than ideal as submitted but made the correct determination that Mr. S. did not clear the low standard for religious knowledge in the context of his alleged FG experience. [24] The Appellant is wrong to assert that the RPD failed to consider the issue of whether he would be at risk of persecution in China due to his practice in Canada. The panel correctly performed an in-depth sur place analysis before reaching its conclusion. My independent finding about Mr. S.'s lack of credibility leads to my conclusion that he has not established that he practices FG in Canada. CONCLUSION [25] I determine that Mr. S. would not face a reasonable chance of persecution in China due to his FG practice, because he has not established that he is a practitioner. [26] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) J. Wyger Joseph Wyger December 18, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 8, p. 186. 2 Ibid. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Exhibit RAD-1, Member's Direction, November 19, 2020. 5 Exhibit P-3, Response to Member Direction, December 4, 2020. 6 Ibid. 7 Exhibit RPD-1, RPD Record, Exhibit 2, BOC Narrative, p. 25 para. 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-05875 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