TB9-22239

RAD File / Dossier de la SAR : TB9-22239 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 February 26, 2020 Date de la décision Panel T. Andrews Tribunal Counsel for the person who is the subject of the appeal Peter Lulic 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 (the Appellant) is a citizen of China who appeals a decision of the Refugee Protection Division (RPD) dated July 29,2019, rejecting his refugee claim. [2] The Appellant argues that the RPD was wrong to find that his account lacked credibility. After conducting an independent analysis, I find that the RPD was correct to find that he lacked credibility. The appeal is therefore dismissed. BACKGROUND [3] The Appellant alleges that he practiced Falun Gong in China beginning in 2015. However, his practice group was raided on XXXX XXXX, 2015, when he was not in attendance. He received a call from the lookout to inform him that group members had been arrested and he should go into hiding as the Public Security Bureau (PSB) might attend his home. He therefore ran to a friend's home and he was informed five days later that police had indeed questioned his wife about his whereabouts. The PSB returned to his home several times over the two weeks that followed, therefore the Appellant's family obtained the assistance of an agent to help him depart from China. The Appellant and his step-son subsequently arrived in Canada on XXXX XXXX, 2017 and he made his claim for refugee protection on March 1, 2018. ROLE OF THE REFUGEE APPEAL DIVISION [4] The standard of review is correctness as established in Huruglica1, where the Federal Court of Appeal gives guidance in regard to the role of the Refugee Appeal Division (RAD). The RAD may defer to findings of the RPD where the RPD has a meaningful advantage in assessing the credibility of oral testimony. ANALYSIS Memorandum of Appeal [5] The determinative issue on appeal is credibility. The Appellant argues that the RPD erred in its assessment of his credibility; by finding that he had a lack of subjective fear because of his delay in departure from China and delay in claiming in Canada, because of its negative inferences related to the copy of the summons in evidence, in making an adverse credibility finding regarding his exit from China and in its treatment of his supporting documents; namely three petition letters. [6] The Appellant is not relying on any new evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and he does not request an oral hearing under subsection 110(6) of the IRPA. Findings related to Credibility Summons [7] I find that the RPD's final conclusion about the summons was correct. [8] The RPD made a number of findings related to the copy of the summons. It found that the Appellant's failure to mention the summons in his narrative was not reasonably explained and that had a summons been issued, it would have been reasonable for the Appellant's mother who received the document to mention this in her letter. It also drew a negative inference from the lack of coercive summons/arrest warrant, which it found would have been reasonably expected in the Appellant's circumstances. Based on the above, the RPD found, on a balance of probabilities, that it was unlikely that a summons was issued. [9] The Appellant argues on appeal that it was incorrect to take issue with the type of summons the PSB left. He submits that the RPD appears to say that it does not believe a summons was left with the Appellant's mother, but the RPD cannot speculate as to what the PSB does or does not do in a situation. He also submits that the fact that the RPD is challenging the type of summons that was left indicates that the RPD believes that the PSB are looking for the Appellant and supports the credibility of his claim. He also argues that the copy of the summons cannot be rejected because the RPD believes without any foundation that another type of summons should have been left, particularly if there is nothing irregular about the summons. [10] At the hearing, the Appellant testified that the PSB left the summons on the first day when they went to his home to look for him. He testified that he did not mention the summons in his narrative because when he filled out the application he did not know exactly how to say it. The member pointed out that he could have simply said that the PSB left a summons. In reply he testified that his understanding was that it was sufficient for him to say that the PSB descended upon the home and he did not know what was important to say in his narrative or that the summons should have been included. He testified that he did not think it was possible to send the original summons out of China and explained that he believed that his mother did not mention that a summons was left with them (his parents) because she also did not know what was important to include in her letter. [11] The member then went on to question the type of summons; why the copy of the summons disclosed is used in instances where there is no need for arrest instead of a coercive summons given that his mother states they want to arrest him and others in his practice group were already arrested. He explained that in reality even though this is not an arrest warrant or coercive summons, other practitioners who are issued this same type of summons are arrested once they report to the PSB, so there is a general fear of complying with these summonses. [12] When Counsel questioned the Appellant about how his narrative was completed, his testimony was that he made statements to the consultant which they used to fill out the application. When asked if they gave him any instructions on how to do a narrative, he testified that they did not really advise or instruct him on what to say. They asked him questions and told him to be truthful. [13] I have done my own independent assessment and I agree with the Appellant, in part. I find there is merit to their arguments related to taking issue with the type of summons left given that the country documents specify that the Chinese legislation on the issuance of coercive summons clearly indicates that coercive summons are discretionary if the person being summoned is absent.2 [14] However, I agree that there was a significant omission, which was not reasonably explained. The summons confirms that the PSB wants the Appellant. According to his own testimony, such documents have been issued to Falun Gong practitioners in the past and have resulted in them being arrested when they report. I find that given the importance of this document and what it signifies that it should have been mentioned. His explanations that he did not know how to say it and that he did not know it was important are not reasonable particularly given that he knew to present said document in support of his claim. He states that he was not told what to say by his consultant and rightly so. They asked him to be truthful regarding his experience and had this happened, it would have been reasonable for him to convey this/include this detail. There are very specific instructions on the Basis of Claim (BOC) indicating that he should include everything that is important to his claim and he signed to indicate that the document was correct, true and complete. [15] Furthermore, I note that his representative at the hearing was not the same individual as the consultant that was used for the preparation of the BOC. The Appellant would have prepared for the hearing with his new representative and there was ample time between the initial completion of the BOC on March 1, 2018 and the hearing date, July 10, 2019 for any amendments or additions to be made. I find that it is not credible that he would omit this detail if it happened. This is only further bolstered by the fact that his mother did not include that a summons was left with her in her fairly detailed letter where she outlines all occasions when the PSB attended the home to look for the Appellant. It is reasonable to anticipate that she would indicate what they said and did, particularly as she received the summons. Presumption of authenticity [16] The Appellant also argues later in the memorandum at point nineteen and twenty that there is a presumption of authenticity afforded to foreign documents as per Federal Court jurisprudence, which the RPD failed to apply. Although this does not appear with the rest of the arguments related to the summons, I can only assume that this is what the Appellant intends as they go on to quote Response to Information Request (RIR) CHN103401 titled China: Implementation of the Criminal Procedure Law of the People's Republic of China in regard to arrest warrants and summonses, particularly in Guangdong, Fujian and Liaoning. He submits that because China is a large country with so many regions that the chance of error or irregularity is common and the RIR is used to support this argument. [17] I find that the presumption described is only so when there is no reason to doubt the authenticity of a document. However, when there are issues with a document which are readily apparent on its face or based on comparison to genuine samples available, such documents may be scrutinized and conclusions can be drawn as appropriate. [18] I have closely examined the copy of the summons3 that was before the RPD which was tendered to show that the principal Appellant is wanted by the Chinese authorities. First of all, I note that the Appellant's original summons was never provided to the RAD nor to the RPD. With a photocopy, it is difficult to ascertain whether said document is authentic. However, I have compared the copy to the available samples. The Chinese characters found at the top of the summons on the second line, which identify the summons type, match the sample for the public security summons (zhi'an chuanhuan). Thus, I compared the document to the sample. [19] According to the National Documentation Package (NDP) summonses have not varied in format since 2003. Further, the same document indicates that "...such forms are supposed to be used throughout the country and that regional variations are not meant to exist."4 Hence, the summons in evidence should duplicate the sample in terms of its format and structure. [20] However, even in examining the photocopy, I find that the summons in evidence differs significantly from the sample contained within the NDP. To begin, four lines down from the top of the document, on the left side of the document, the sample has a Chinese character for the word "To"5, which is the salutation written prior to the name of the summoned individual. Whereas, the summons proffered by the Appellant does not. [21] In addition, the lines in the main body of the document do not match the sample in terms of their format. The sample summons has a total of three lines of text in the main body of the document, whereas this document has five lines of text in the same place. [22] And finally, the bottom three lines of text that appear on the sample, which are justified to the left of the document are missing entirely from the summons in evidence. [23] In Jiang6, Justice Crampton found that small differences can be telling: "In my view, it may very well be reasonably open to the RAD or another decision maker to question the authenticity of a document based on very small or even microscopic differences between the document and an authentic counterpart. It is in the small or microscopic details where a forgery may well be exposed." [24] I also note that the RIR that is referenced in the memorandum is not found in the current NDP dated December 20, 2019, nor in the previous version dated June 28, 2019 that was used at the time of the hearing before the RPD. The memorandum indicates that the RIR is from July 6, 2010, however it is unclear where Counsel got this outdated information. I note that there was no application to disclose the RIR as new evidence in the case, therefore I need not consider it. And, even if it had been disclosed and accepted, I note that the objective evidence that I quote above, which indicates that regional variations in summonses are not meant to exist comes from an RIR that is more recent, having been published in 2013. The related document (with the English translations of the attachments within the 2013 RIR) was published as recently as 2018. [25] I find on a balance of probabilities, that the copy of the summons submitted is fraudulent. The Appellant's submission of a fraudulent document in support of his case significantly undermines his credibility. [26] This summons was expressly proffered to illustrate that the Appellant is wanted by the Chinese authorities for his illegal Falun gong activities. I note that Falun Gong is a banned group that is considered to be an evil cult in China and its members are actively pursued. The Appellant's allegations were that he was practicing with a Falun Gong group that was raided by the PSB on a day that he was absent. He went into hiding after being informed about the raid and the PSB went looking for him shortly thereafter at his home and left this summons with his parents. [27] Given that the summons is fraudulent, I find on a balance of probabilities that the Appellant was not wanted nor is he being investigated by the PSB or authorities in China for being a Falun Gong practitioner as alleged. As there is no credible documentation provided to support that he is wanted by authorities, I find on a balance of probabilities, the Appellant is not a credible witness and that the determinative basis of his claim, i.e. being wanted by the authorities in China for his alleged involvement in the practice of Falun Gong, is not credible. Three petition letters [28] I find that the RPD was correct in giving no weight to the petition letter. The RPD did so because the letter writers were unknown to the panel, there was no opportunity to question them as to their knowledge of the Appellant's Falun Gong practice in China and because it had already found that the Appellant was not a practitioner in China. [29] The Appellant argues that it was an error to reject his petition letters without providing any reasoning and solely based on the fact that the RPD disbelieved that he was a Falun Gong member. They argue that the RPD failed to analyse the contents or the relevance of the documents. [30] I find that the RPD did provide reasoning for rejecting the letters; because the writers were unknown and could not be questioned in addition to the fact that he disbelieved that the Appellant was a Falun Gong practitioner. I agree with the RPD in this case as I have examined the petition letters from XXXX XXXX, XXXX XXXX and XXXX XXXX. They are simple typed letters that are all very similar in appearance. There is no identification attached to any of them to establish who the writers are. These persons do not provide any evidence that they are affiliated with Falun Gong in any way and they all indicate that the Appellant is being persecuted because he practiced Falun Gong and that the PSB is trying to arrest him. However, I have already found that this is not the case. [31] As per case law, the submission of a false or irregular document may have an impact on the weight assigned to other documents provided by the Appellant, especially when they are interrelated,7 and on the overall credibility of an Appellant.8 I note that the RPD also reached a general negative credibility finding. I find that given the use of a fraudulent summons, that no weight can be put on this document, which was allegedly issued in relation to the same event. Delay in claiming [32] I find that the RPD was correct to find that the delay undermined the Appellant's subjective fear. The RPD found that the Appellant's reasons for the long delay in making a claim evolved and were unreasonable. It found that the more than one-year delay raised significant doubt as to the Appellant's subjective fear. [33] The Appellant submits that the RPD was wrong to find that he lacked subjective fear based on his delay in claiming in Canada. He submits that the fact that he had temporary legal status until he made his claim, which is relevant to subjective fear was ignored and there is no requirement to make a claim immediately if one is in status. He suggests that as he claimed immediately after losing that status this shows a subjective fear. [34] At the hearing, the Appellant testified that upon arrival he knew he could remain as a visitor for six months and when that six-month period elapsed he applied for an extension to that status rather than for refugee protection. He testified that the visa was legitimately issued to allow him to accompany his step-son who was studying in Canada, but that his real intention was to escape from China. He testified that he did not apply for refugee protection because at that time he believed that to remain in Canada legally the best reason would be to accompany his step-son, but due to the snakehead's interference, the study permit was not approved so they had to go to a proper immigration consultant. He testified that he did ask the consultant firm about how he could remain in Canada permanently and they mentioned a refugee claim, but he did not pay attention at the time as he believed that if he applied for refugee status in Canada and the PSB in China found out, they may do something to harm his family. When asked why he thought they would become aware of his refugee claim, he indicated that he does not know what happens between countries as he is just an ordinary person. [35] He further explained that there were two visitor visa extension applications that he put forward. One that he submitted in XXXX 2017 with the assistance of an individual who he found on an internet forum who submitted false information with his application unbeknownst to him. He subsequently withdrew that application when he learned of the inaccuracies and submitted a second one in XXXX 2017 which was completed with the assistance of the consulting firm but subsequently was rejected. [36] During counsel's questions the Appellant explained further that he first heard about refugee claims a few days after coming to Canada from the snakehead's associate who told him he could either apply for refugee status because of his Falun Gong practice or he could choose to stay because of the study permit. He elected to do the latter because he did not want anything more to happen to his family. He hoped that money and time might resolve the issue with the PSB or they would drop the charges to allow him to return to China and be with his family. He explained that he thought that making a claim would make things worse for his family as the PSB would press them for information about him because they want to arrest him and he thought if he applied it would be insulting to the government of China. He also testified that although the snakehead's associate told him quite a bit about refugee claims, he did not pay attention as that individual mentioned money and he believed that the associate was trying to get more money from him. [37] I agree with the RPD in this case. Given that his purpose for coming to Canada was to flee from harm, I find that it is not reasonable that he did not seek out a permanent option to remain and rather went for temporary measures, particularly, when the six-month visitor visa had elapsed. It may not be an obligation to apply immediately when in status, but the failure to do so and his reasoning are certainly factors that can be considered. As pointed out by the RPD, the Appellant's family were already being pressed by the PSB given their frequent visits to their home, so it is unclear how or why this could become worse or why he believed that the problems would resolve themselves. The Appellant is educated and fairly sophisticated, having a university degree in Business administration and having worked as a Deputy Manager for several years in china9. He also had the wherewithal to find someone on the internet to assist him in the completion of his first visa extension and eventually he found a consultant. I find that he would have been able to educate himself on the refugee process and if he were truly fearful of return, it would have been reasonable to take steps to regularize his status at an earlier time. Uncontested Finding [38] The Appellant has never practiced Falun Gong in Canada and he made no arguments on appeal related to the RPD's finding on the issue of sur place. After conducting its own independent assessment and reviewing the entire record including the oral hearing, I come to the same conclusion and will not deal with this. [39] Given all of the credibility concerns outlined above; the significant omission, the fraudulent summons and the delay in claiming, I find that the Appellant was not a Falun Gong practitioner in China. I find it unnecessary to deal with the arguments related to his ability to exit from China using his own passport and his delay in departure given they would not change the outcome of the appeal and given my finding that the Appellant is not being investigated and/or is not wanted in China for Falun Gong related activities. Although he displayed some knowledge of Falun Gong concepts, such information could have easily been learned in Canada for the purpose of advancing a refugee claim and I place no weight on his ability to answer questions given the above credibility findings. CONCLUSION [40] Having found that the Appellant is not being sought in China because of his Falun Gong practice, I find that there is not a serious possibility that he would be persecuted should he return to China, nor would he be subjected personally, on a balance of probabilities, to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should he return to China. [41] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and the appeal is dismissed. (signed) "T. Andrews" T. Andrews February 26, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), at paras 70, 103. 2 National Documentation Package (NDP) for China (20 December 2019), Item 9.5. 3 Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 165-166. 4 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP for China (20 December 2019), RIR CHN104458, Item 9.10, at p. 1. 5 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP for China (20 December 2019), RIR CHN106016, Item 9.2. 6 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064 (CanLII). 7 Uddin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 451 (CanLII). 8 Gochez v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16258 (FC). 9 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-22239 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