TC1-00569

RAD File / Dossier de la SAR : TC1-00569 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, 2021 Date de la décision Panel I. Singh 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] XXXX XXXX (Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), dated January 14, 2021, rejecting his 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 he fears returning to China because he is a Falun Gong practitioner and was sought by the Public Security Bureau (PSB). [4] The Appellant's application for refugee protection was heard on December 8, 2020. By a written decision on January 14, 2021, the RPD rejected the claim. The RPD found that the determinative issue was credibility. [5] The Appellant submits that the RPD erred in its credibility findings by failing to provide him with his rights to natural and fundamental justice and procedural fairness, and by failing to correctly consider and apply the relevant law. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] My role is to look at all of the evidence and decide if the RPD made the correct decision.1 ANALYSIS The RPD erred in some of its findings but not in its overall conclusions [7] The RPD found that: (a) Due to the Appellant's ability to exit China using his own genuine passport, he was not of interest to Chinese authorities, on a balance of probabilities; (b) Due to the Appellant's failure to demonstrate a level of knowledge commensurate with the amount of time he alleged to have been practicing Falun Gong, he was not a Falun Gong practitioner in China and is not practicing Falun Gong in Canada, on a balance of probabilities; and (c) With regard to the sur place aspect of the claim, the Appellant's unsworn letters from fellow practitioners in Canada were awarded no weight. The RPD found, on a balance of probabilities, that owing to the credibility concerns, the Appellant engaged in Falun Gong activities in Canada for the purposes of bolstering a refugee claim and not because he is a genuinely committed Falun Gong practitioner. The RPD also found, on a balance of probabilities, that if the Appellant is practicing Falun Gong in Canada, this has not come to the attention of Chinese authorities. [8] The Appellant's arguments are detailed in the analysis below. The Appellant's exit from China [9] The Appellant argues that the RPD's error arises from two assumptions underpinning its findings which are not dealt with in its reasons. First, the Appellant submits that no summons was issued and the RPD assumed that the PSB's interest in him would translate into a nationwide alert that would have caused the authorities at the border to detect that he was attempting to depart the country. In the absence of prima facie evidence of a summons or arrest warrant, the RPD's assumption that the Appellant would be registered in the database as a person of interest was based on speculation. Second, given the evidence of corruption in China and the Appellant's evidence that he used a smuggler to circumvent the government's border controls, the RPD failed to properly account for evidence that indicates smugglers conspire with border officials to facilitate the entry and exit of contraband, including humans. [10] I am persuaded by the Appellant and find that the RPD erred based on the second of the two assumptions argued. Given the Appellant's testimony that the smuggler paid money to assist in the Appellant's departure from China,2 and given the country conditions evidence that corruption and bribery of government officials is a problem in China,3 I find that the RPD erred in failing to account for this evidence in its analysis. [11] In my independent assessment of the record, I find that, based on the country conditions evidence, the Appellant's ability to exit from China using his own genuine passport, and the assistance he received from a smuggler, there is insufficient evidence to find that he is not of interest to Chinese authorities. I therefore find that the RPD's finding on this point cannot stand. The Appellant's Falun Gong Identity [12] The RPD: (a) drew a negative credibility inference because the Appellant was unable to articulate the occasion for a parade he attended as part of his Falun Gong activities in Canada; the Appellant was unable to give details of what he studied despite his testimony that his Falun Gong activities included studying Falun Gong, and the RPD found that someone who had been practicing since February 2017 would be able to answer the RPD's questions; (b) drew a negative credibility inference concerning the authenticity of the Appellant's Falun Gong practice because he did not understand the reason or the method for sending righteous thoughts, though he testified that he had read two Falun Gong books and did send forth righteous thoughts; (c) found, on a balance of probabilities, that the Appellant did not know the purposes of the exercises other than exercise two and drew a negative credibility inference regarding the Appellant's assertion that he is a committed Falun Gong practitioner and that he had been practicing for over three years; (d) drew a negative credibility inference from the Appellant's inability to correctly articulate the three main principles of Falun Gong, given his testimony that he had studied and practiced Falun Gong for three years; and (e) found that the Appellant did not demonstrate a level of knowledge commensurate with the amount of time he alleged to have been practicing Falun Gong. The RPD acknowledged that the Appellant was nervous but noted that he was unable to answer even the most basic questions about Falun Gong. The RPD drew a negative credibility inference and found, on balance, that the Appellant was not a Falun Gong practitioner in China and that he is not practicing Falun Gong in Canada. [13] The Appellant concedes that he had some difficulty in responding to the RPD's questions about Falun Gong; however, he submits that he was able to respond to many related questions from his own Counsel. The Appellant submits that the RPD could have observed his difficulty was not his inability to answer but the paralysis that overcame him due to the process. He submits that the RPD erred by failing to adequately consider how his nerves could be a significant inhibiting factor. He also submits that the RPD erred by failing to consider whether he is perceived as a Falun Gong practitioner by virtue of his association with other practitioners. [14] I reject the Appellant's arguments and find that the RPD did not err. [15] In assessing the Appellant's testimony, I have kept in mind that the Federal Court has stated that claimants can be questioned about their religious knowledge, not to determine the "theological soundness" of their answers or as a test on religious trivia, but in order to determine the genuineness of the beliefs they allege.4 The decision-maker, in assessing the genuineness of the beliefs, can consider "...whether the claimant holds a level of religious knowledge that would be expected of someone in the claimant's position..."5 Keeping in mind that the Appellant has limited formal education, I find that his testimony does not reflect what he might reasonably be expected to know as a genuine, committed Falun Gong practitioner who had been practicing regularly since 2017, and including since 2018 in Canada. [16] Though the Appellant testified that he was nervous, which was considered by the RPD,6 there is no medical evidence on record regarding the Appellant's mental health and whether it impacted upon his testimony. [17] Based on my independent assessment of the record, I do not find that the Appellant's nervousness is a reasonable explanation for his testimony. At the time of the hearing, he had allegedly been practicing Falun Gong for over three years, including over two years in Canada. He was able to answer some questions correctly, such as the purpose of exercise two, some basic information about other exercises,7 and the meaning of karma.8 However, there were far more questions that he was unable to answer. In addition to those assessed by the RPD, the Appellant did not know how practitioners get rid of karma, which is another important teaching in Falun Gong.9 In my view, assessing the genuineness of the Appellant's Falun Gong identity is not only based on whether he answered correctly to more questions than not. I am also considering the types of questions he was unable to answer. In his case, he was unable to answer several very basic questions about Falun Gong's central teachings, such as the three main principles, the reason or the method for sending forth righteous thoughts, and how to get rid of karma. I agree with the RPD's assessment that an individual who had allegedly been practicing Falun Gong for over three years would have been able to answer these questions despite being nervous. [18] Though Falun Gong is a knowledge-based practice, it is also a way of life. I find that, if the Appellant had actually been a committed practitioner for over three years, he would have been able to answer the basic questions from the RPD and his Counsel irrespective of his nervousness, on a balance of probabilities. Moreover, the Appellant had been informed at the start of the hearing that he could have requested a break; however, he did not do so. I therefore reject his submission that "paralysis overcame him due to the process." Instead, I find, on a balance of probabilities, that the Appellant memorized some information for the purpose of his refugee claim, which he then had difficulty recalling during the hearing. This is confirmed in his testimony when he stated that he could not "recall those things I have learned about Falun Gong."10 [19] Therefore, based on the above, I do not find that the RPD erred in considering how the Appellant's nerves impacted his testimony. I further find that the Appellant did not demonstrate a level of knowledge commensurate with the amount of time he alleged to have been practicing Falun Gong. [20] I find that, on a balance of probabilities, the above-noted negative credibility findings, taken cumulatively, lead to the conclusion that the Appellant's knowledge is inadequate to demonstrate that he was/is a sincere Falun Gong practitioner in China or Canada. [21] Therefore, I find, on a balance of probabilities, that the Appellant was not a Falun Gong practitioner in China and that he is not a genuine Falun Gong practitioner in Canada. [22] Turning to the second part of the Appellant's argument, I am persuaded that the RPD erred by failing to consider whether he is perceived as a Falun Gong practitioner by virtue of his association with other practitioners. I consider this issue further below. The Appellant's friend's Detention Notice [23] The Appellant alleged that he was introduced to Falun Gong by his friend, Mr. XXXX XXXX.11 The Appellant also submitted Mr. XXXX Detention Notice.12 [24] Although the RPD did not make any findings on this document, I have concerns about its authenticity, and therefore, too, the Appellant's credibility. I also note that the Federal Court has determined that the RAD is not required to give an appellant notice of inconsistencies in their own documents. They are reasonably expected to be aware of the contents of the documents that they themselves provided.13 [25] I have three concerns with this document. First, it refers to Mr. XXXX as a female. Second, there is no address provided for the detention centre, which is meant to be included.14 Third, the document cites "Article 91 of the Criminal Procedure Law of People' Republic of China [sic];"15 however, that Article does not seem to be relevant to the document and scenario. [26] Article 91 states: Where public security organs feel that a person in custody needs to be arrested, they shall submit it to the people's procuratorate for review to approve arrest within 3 days of taking the person into custody. In special circumstances the time for submitting for review for approval of arrest may be extended by 1-4 days. The time for submitting for review for approval of arrest may be extended to 30 days for those suspected of committing crimes across multiple regions, committing multiple crimes, or cases of gang crimes. The people's procuratorate shall issue a decision to approve arrest or not approve within 7 days of having received an arrest certificate submitted for approval by a public security organ. Where the people's procuratorate does not approve arrest, the public security organ shall immediately release the suspect upon receiving notification, and promptly notify the people's procuratorate of the enforcement circumstances. Where it is necessary to continue investigation and the requirements for release on guarantee pending further investigation or residential surveillance are met, they should be released on guarantee or put under residential surveillance in accordance with law.16 [27] I also note that, although not all of the samples in the National Documentation Package (NDP) refer to a particular article number, three documents titled "NOTICE OF DETENTION" refer to Article 80 of the Criminal Procedure Act of the People's Republic of China.17 [28] Article 80 states: "Arrest of suspects or defendants must be decided upon by a people's procuratorate or people's court and will be enforced by public security organs."18 [29] In my assessment, Article 80 appears to be more relevant as it grants the PSB the jurisdiction to detain. [30] I find, on a balance of probabilities, that a genuine and official document would not contain these errors. [31] The errors I have noted, on their own, may not support a finding that the document is not genuine. Yet, the Federal Court has recognized that differences in small or microscopic details may be the way that a forgery is exposed. Whether those small differences are sufficient to conclude that a document is not authentic will depend on the facts of each case.19 [32] When the errors are viewed together with the RPD's findings, which I have upheld, and the widespread availability of fraudulent documents in China,20 I find, on a balance of probabilities, that there is a sufficient basis to find that the Appellant's friend's Detention Notice is not genuine. [33] The Appellant's submission of a fraudulent document to support his claim leads me to conclude, on a balance of probabilities, that he is not credible overall, that he is not a bona fide Falun Gong practitioner, and that he is not wanted by the PSB. The Appellant's Sur Place Claim and his Falun Gong activities in Canada [34] The RPD noted the Appellant's testimony that he practiced Falun Gong and attended a parade in Canada. The RPD awarded no weight to the letters from fellow practitioners,21 which claim that the Appellant is a "real" practitioner, because the letters are not sworn, the authors did not testify, and the letters could have been written by anyone from anywhere. The RPD found, on a balance of probabilities, that owing to the credibility concerns, the Appellant engaged in Falun Gong activities in Canada for the purposes of bolstering a refugee claim and not because he is a genuinely committed Falun Gong practitioner. The RPD also found, on a balance of probabilities, that if the Appellant is practicing Falun Gong in Canada, this has not come to the attention of Chinese authorities. [35] The Appellant argues that the RPD erred in failing to give any weight to the letters. He submits that, while a sworn statement and the production of a witness may carry more weight than the unsworn letters, the failure to provide these does not mean that the letters should have been given no weight. The Appellant also submits that the RPD erred by failing to consider the content of the letters. The Appellant argues that the RPD also erred in initially concluding that he was not practicing Falun Gong in Canada, then later concluding that he had practiced but that his practice is not genuine. He submits that, where the RPD has made two contradictory findings, the finding that is favourable to him must be preferred; thus, the RPD's finding that he does not practice Falun Gong is in error and must be completely disregarded. The Appellant also submits that the RPD erred in its sur place analysis by misapprehending the law and creating an erroneous evidentiary burden on him, as a successful sur place claim does not require that he demonstrate that his activities in Canada have come to the attention of the authorities in China. [36] I am persuaded by the Appellant and find that the RPD erred in its analysis of the letters and in its sur place assessment. Based on my own independent assessment of the record, I find that I am able to make a determination on both of these issues. [37] With regard to the letters, I first note that they are very similar. The first is dated October 10, 2019 and is written by XXXX, XXXX. The second is dated October 10, 2020 and is written by XXXX, XXXX, although his first name appears to be misspelled as "XXXX" in the body of the letter. Both letters contain the same phone number for the author. The content of both letters is quite similar. Therefore, I find, on a balance of probabilities, that the letters were written by the same individual. [38] I find that the RPD erred in failing to award any weight to the letters. The letters purport to corroborate that the Appellant practices Falun Gong in Canada. I find that the letters merit some weight in corroborating the Appellant's allegations. However, given my cumulative credibility findings above, I find that the weight given to the letters, as well as the Appellant's photographs,22 is insufficient to overcome or outweigh the credibility findings. [39] With regard to the Appellant's sur place claim, I note that the Federal Court has held that the Board must be allowed to import its credibility findings when considering the sur place aspect of a claim and that it is permissible to assess an appellant's genuineness and sur place claim in light of credibility concerns relating to the original authenticity of a claim.23 [40] On this basis and having found that the Appellant submitted a fraudulent document and failed to establish his Falun Gong identity, on a balance of probabilities, I import these findings into my sur place analysis. I find that the Appellant failed to establish a sur place claim, as there is no persuasive evidence that his Falun Gong activities in Canada have or would come to the attention of Chinese authorities or that he would be perceived to be a genuine practitioner upon his return to China. I further concur with the RPD that, on a balance of probabilities, the Appellant engaged in Falun Gong activities in Canada for the purposes of bolstering a refugee claim and not because he is a genuinely committed Falun Gong practitioner, and I find that he would not practice Falun Gong upon return to China, on a balance of probabilities. [41] Lastly, with regard to whether the Appellant would be perceived as a Falun Gong practitioner by virtue of his association with other practitioners, I do not find that this has been established. I have not found the Appellant credible overall, nor do I find that he has established his allegations. Although he testified to practicing in Canada, attending a parade, and although there is a letter from one individual who allegedly practices with the Appellant, and some photographs with other individuals, there is no evidence that the Chinese authorities have or would become aware of any of this evidence. Therefore, I find that there is no persuasive evidence that the Appellant would be perceived as a Falun Gong practitioner by virtue of his alleged association with other practitioners. CONCLUSION [42] For the above reasons, and after conducting its own analysis of the record, the RAD finds that the RPD did not err in rejecting the Appellant's claim. The RAD finds that the Appellant has not established his allegations, on a balance of probabilities. As a result, the RAD finds that he has not established that he faces more than a mere possibility of persecution, as per section 96, or that he faces harm, on a balance of probabilities, under section 97 of the Immigration and Refugee Protection Act (IRPA).24 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. [43] 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 paragraph 111(1)(a) of the IRPA. (signed) Inderpreet K. Singh I. Singh September 8, 2021 Date 1 M.C.I. v. Huruglica (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145, [2019] 2 FCR 597. 2 Transcript of the RPD Hearing (December 8, 2020), at p. 8. 3 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (October 30, 2020), item 7.1, Hui Xu; Sean Wu; Catherine Palmer, Global Legal Insights, China: Bribery and Corruption 2020, December 4, 2019. 4 Gao v. M.C.I. (F.C., no. IMM-7310-14), Southcott, October 6, 2015, 2015 FC 1139, at paras. 26-27. 5 Ibid., at para. 26. 6 Exhibit RPD-1, RPD Record, at p. 12. 7 Transcript of the RPD Hearing (December 8, 2020), at pp. 19-20. 8 Ibid., at pp. 20-21. 9 NDP for China (October 30, 2020), item 12.7, Li Hongzhi, Falun Dafa, Falun Gong - 7th Translation Edition, 2016; and item 12.12, Li Hongzhi, Falun Dafa, Zhuan Falun (English Version), March 2000. 10 Transcript of the RPD Hearing (December 8, 2020), at p. 18. 11 Exhibit RPD-1, RPD Record, at p. 24. 12 Ibid., at pp. 194-195. 13 Konare v. M.C.I. (F.C., no. IMM-5313-15), Bell, August 30, 2016, 2016 FC 985. 14 NDP for China (October 30, 2020), item 9.6, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) CHN106128.E, Format of notices of detention and notices of arrest, including signatures, letterhead and information contained in the documents (2015-June 2018), July 5, 2018. 15 Exhibit RPD-1, RPD Record, at p. 194-195. 16 NDP for China (October 30, 2020), item 9.5, China, "Criminal Procedure Law", 2018, at p. 16. 17 NDP for China (October 30, 2020), item 9.6, IRB, RIR CHN106128.E, July 5, 2018. 18 NDP for China (October 30, 2020), item 9.5, China, "Criminal Procedure Law", 2018. 19 Jiang v M.C.I. (F.C., no. IMM-358-18), Crampton, October 23, 2018, 2018 FC 1064. 20 NDP for China (October 30, 2020), item 3.22, RIR CHN104579.E, IRB, October 21, 2013. 21 Exhibit RPD-1, RPD Record, at pp. 196 and 215. 22 Ibid., at pp. 199-201. 23 Jiang v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012, 2012 FC 1067, at paras. 27-28. 24 S.C. 2001, c. 27, as amended. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC1-00569 RAD.25.02 (May 19, 2021) 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 (May 19, 2021) Disponible en français