TB9-35400

RAD File / Dossier de la SAR : TB9-35400 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 November 9, 2020 Date de la décision Panel Christopher Marcinkiewicz Tribunal Counsel for the person who is the subject of the appeal Stacey Margaret Duong 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] The Appellant, XXXX XXXX, appeals the decision of the Refugee Protection Division (RPD), dated December 2, 2019, rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) substitute a finding that he is a Convention refugee or a person in need of protection.1 DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. Specifically, I find that he is not a genuine Christian who would practice Christianity if returned to China. BACKGROUND [3] The Appellant fears returning to China as he believes he will be arrested and imprisoned for practicing Christianity in an underground house church. The Appellant alleges that his profession as an XXXX XXXX caused him to fear death. His friend introduced him to Christianity and in XXXX 2017, they attended an underground Christian house church. One year later, he was notified that the house church activities were halted, later learning that the two leaders had been arrested by the Public Security Bureau (PSB). With the assistance of a smuggler, the Appellant obtained a Canadian visitor visa and arrived in Canada on XXXX XXXX, 2018 and initiated a refugee claim. Since arriving in Canada, the Appellant has attended church and been baptized. ROLE OF RAD [4] My role is to look at all the evidence and decide if the RPD made the correct decision.2 If I determine that the RPD had a meaningful advantage in assessing the credibility of the Appellant's oral evidence, I can defer to the RPD findings. Having listened to the audio recording of the RPD hearing and reviewing the evidence, I find that the RPD did not benefit from any meaningful advantage in assessing the Appellant's evidence in this case. NO NEW EVIDENCE, NO ORAL HEARING [5] The Appellant has not provided new evidence for the purposes of this appeal, nor does he request an oral hearing.3 Due to a lack of new evidence, I must proceed without a hearing. ANALYSIS OF THE MERITS OF THE APPEAL [6] The determinative issue for the RPD in this claim was credibility. Specifically, the RPD found that the Appellant was not credible regarding joining the underground church in China and its abrupt halt of activities in XXXX 2018. Additionally, the RPD found the Appellant's evidence surrounding his efforts to come to Canada through the use of a smuggler and his evidence regarding his personal passports to undermine his credibility. Finally, the RPD found that while the Appellant had some knowledge about Christianity and evidence of his practice here in Canada, these factors were feigned in order to support his claim and do not outweigh prior negative credibility findings, ultimately concluding that he was not a genuine Christian and has not established a sur place claim. [7] The Appellant argues that the RPD made two fatal errors in respect to its analysis and decision which can not stand. Specifically, it is argued that RPD erred by faulting the Appellant for using and relying on fraud documents to escape China, something not permissible by the legislation and case law to impugn a refugee claimant's credibility. Secondly, the Appellant argues the RPD erred in its sur place analysis by failing to fully engage with the evidence in support of his Christian activities and beliefs since arriving in Canada, instead relying on prior negative credibility findings related to his activities while in China. [8] Before moving to my analysis and findings in respect to the two areas raised on appeal, I must note that the Appellant's arguments do not challenge several significant findings made in respect to the Appellant's allegations from events he claims occurred in China, including his initiation to Christianity and the basis for him fleeing China after two house church leaders were arrested. These two specific findings, in my view, collectively weighed heavily in the RPD's rejection of the Appellant's claim of being a genuine Christian. Uncontested Findings - Initiation to Christianity and Suspension of House Church [9] The RPD found, on a balance of probabilities, that the Appellant was not a genuine Christian in China. This finding was based, in part, on the following. Initiation to Christianity [10] The RPD found the Appellant's testimony regarding how he was introduced to Christianity and the underground church in China to be inconsistent with evidence he provided to Canada Border Services Agency (CBSA) officials at the time of making his refugee claim. Specifically, he testified that his friend introduced him to Christianity and the underground church was located about 10 kilometers away in another village. However, when questioned by an immigration official days after arriving in Canada, the Appellant stated that a man came to his village and would read the bible and afterwards the Appellant would receive a free meal. When confronted with the discrepancies, the Appellant explained that he was only questioned briefly by the CBSA officials and there may have been an interpreter issue, and at the RPD he was never asked about this man coming to his village and forgot to mention it. [11] The RPD rejected this explanation, noting that it was not likely that the Appellant would inform the CBSA official that his initiation to Christianity was due to a man coming to his village to speak about the bible and offer a free meal and yet made no mention of this in his Basis of Claim (BOC) narrative or his testimony. The RPD found the Appellant was fabricating his evidence when the inconsistencies were put to him and found the events likely did not occur. [12] Having independently reviewed the evidence, I agree with the RPD. I find that it would be reasonable to expect the Appellant to provide consistent details, including of the man coming to his village to teach about the bible and offer free meals, if this was his initiation to Christianity. Instead he wrote and testified about an entirely different initiation to Christianity through his friend who took him to a village 10 kilometers away to the house church as his introduction to Christianity. [13] Further, I do not accept his explanation that the interview with the CBSA official was brief and perhaps there were interpreter issues resulting in the discrepancies. First, the interview was conducted with the use of an accredited interpreter who declared having interpreted accurately in the Mandarin language, including the verbal exchange between the Appellant and officer.4 On this same declaration, the Appellant declared that he "understood the nature and effect of the information interpreted".5 As a result, I do not accept that interpreter issues explain the discrepancies. [14] Finally, I also do not accept the Appellant's explanation that the interview with the CBSA official was brief and this was the basis for the inconsistencies. While I agree it was brief, the Appellant had ample time and opportunity to provide these details in his BOC narrative and in his testimony when discussing his initiation to Christianity and he did not do so. As such, it does not make sense that he would provide such specific details in his brief interview yet not provide these same pertinent details when given an opportunity to write or speak about his initiation to Christianity. Therefore, I reject his explanation. I find the Appellant's introduction to Christianity and the underground church did not occur as alleged, on a balance of probabilities. Circumstances Surrounding the Halting of Underground Church [15] The RPD found the Appellant's evidence relating to the halting or "disbanding" of the underground church in China to be problematic. Specifically, it noted that in his BOC narrative, the Appellant indicated he did not know initially why the services were disbanded but later learned that two leaders of the underground church were arrested by the PSB. When he was asked by the RPD regarding the arrest, the Appellant explained he did not know the circumstances of the arrest. Yet, evidence the Appellant provided from his Canadian pastor indicated that the two leaders were arrested during a raid of the house church and imprisoned for a year. When asked to explain why he omitted the raid from his BOC narrative and testimony, the Appellant explained that he did not want to tell anyone out of, in essence, embarrassment as this type of event is not "glorious" and looked down upon in China. [16] The RPD rejected this explanation as it did not accept the Appellant would leave out such details from his BOC narrative and testimony yet describe it to his pastor who then wrote about it in his support letter. The RPD found that this significantly undermined the Appellant's claim as this was a significant event that resulted in the Appellant's desire to flee China. [17] Having independently reviewed the evidence, I agree with the RPD and reject the Appellant's explanation for the same reasons. I would also add that it does not make sense for the Appellant to leave out such details from his refugee claim, even if inglorious or embarrassing, as the BOC instructions are clear and require claimants to provide details of everything that is important for the claim.6 In my view, the raid on one's house church in China is a very important detail and clearly the Appellant thought so as well as he provided these details to his pastor, yet chose not to do so on in his BOC narrative or in his testimony. For these reasons, I do not accept his explanation and find, on a balance of probabilities, that there was no raid on the underground house church. This lack of consistent evidence undermines the Appellant's credibility. [18] Both events, the Appellant's initiation to Christianity and the events allegedly leading him to flee China, go to the crux of the Appellant's fear emanating from his claimed Christian activities in China. However, for the above stated reasons, I find the Appellant was never a member of a house church nor was there a raid on this house church and as such, I find he was not a genuine and practicing Christian in China. This impugns his general credibility. The Appellant's Passports and Use of a Smuggler [19] The RPD made two distinct findings regarding the Appellant's efforts related to coming to Canada. The first concerned previously issued passports to the Appellant and the second concerned his use of a smuggler to come to Canada. Previously Issued Passports [20] The RPD found the Appellant was not truthful regarding how many Chinese passports he had issued to him. Specifically, the Appellant testified to only having two passports in his lifetime, one issued in 2004 and another in 2018 that he used to come to Canada.7 However, the RPD noted that the record reflects at least three separate passports issued to the Appellant. The Appellant initially explained that he had no idea about this and later explaining perhaps the smuggler had obtained the other, or 3rd passport. The RPD rejected this explanation as the Appellant's own 2018 passport referenced the previous passport it replaced. Further, the RPD was of the view that evidence in passports is significant as it can provide critical details including one's status in other countries or their whereabouts at the time of the allegations put forth. The RPD found the concealment of this third passport negatively impacted the Appellant's claim and credibility. [21] The Appellant does not challenge this finding directly and instead focuses his arguments on the RPD's findings regarding the use of a smuggler and fraudulent documents in the visa application, something I will turn to shortly. [22] I have however considered the above finding in my own independent assessment of the evidence as it contributes to the overall and cumulative negative credibility findings reached by the RPD. I find the RPD was correct in their finding in respect to the Appellant's passports. I agree that the record before the RPD establishes, on a balance of probabilities, that the Appellant has had at least three passports issued to him: one used for his American visa application in 20078 (XXXX), the replacement passport he had issued to him in 2018 and used to come to Canada and listed in the Temporary visa application9 (XXXX), and finally the passport that preceded and was replaced by the 2018 passport that is listed within the 2018 passport10 (XXXX). I too reject his explanation that he did not know about this other passport and perhaps it was the smuggler who arranged for it. I note the Appellant testified he applied for the 2018 replacement passport on his own.11 Therefore, it could not have been obtained by the smuggler as claimed and was clearly issued by Chinese officials and replaced a different passport that preceded the 2018 passport. [23] I also agree with the RPD that an individual's passport can contain significant evidence related to who they are and where they have been, factors that could impact one's refugee claim if known. The Appellant's evidence regarding his passports lacked credibility and, in my view, impugn his general credibility as he has not come forward with clean hands before the RPD. Use of a Smuggler [24] The RPD found that the Appellant's evidence regarding his use of the smuggler lacked credibility. Specifically, the RPD found that it did not make sense for the Appellant to pay the smuggler the sum of almost one year's worth of his salary instead of at least trying to come to Canada through legitimate means via a travel agency. Noting the Appellant's education and intelligence, the RPD found the Appellant had no reason to believe a smuggler could make arrangements for the Appellant any faster than a travel agency and further, a reasonable person would have at least have made some inquiry with a travel agency before incurring the costs associated with using a smuggler. The RPD also noted the objective evidence in the National Documentation Package that indicates fraudulent documents are readily available in China and that the Appellant used fraudulent documents and paid a lot of money for them when there was no need to. The RPD found these details "cast doubt over the entirety of the claim".12 [25] On appeal, the Appellant argues that the RPD erred as it "indicated its serious concerns with the Applicant's credibility [arising] as a consequence of the Applicant using a [sic] fraudulent information to flee China".13 The Appellant acknowledges that the Appellant "was not directly punished for his use of the fraudulent passport",14 but noted the RPD made negative conclusions on his use of false documents to come to Canada. The Appellant argues that case law and "legal norms" dictate that a "refugee claimant should not be held liable in any way for the use of manufactured documents while fleeing from a country of persecution to a safe heaven [sic]".15 Finally, the Appellant argues that "[b]y relying on the fact that the Applicant was required to use false documents to flee from persecution at the hands of the PSB to impugn the authenticity of the Applicant's Hukuo [sic], the Panel did indirectly that which the Criminal Code, the IRPA, and the Convention expressly prohibit authorities from doing directly: it punishes the Applicant for the manner in which he sought to secure his escape from persecution".16 It is argued that the RPD cannot rely on the Appellant's use of fraudulent documents in China to impugn his credibility. [26] I have independently assessed the evidence and I find that the RPD's overall conclusion regarding this evidence was correct. I will say that generally I agree with the Appellant that a refugee claimant should not be penalized for using false or fraudulent documents to flee their country or to arrive in Canada. However, I disagree with the Appellant that this is what the RPD found in his case and the arguments on appeal do not accurately reflect the decision. My review of this portion of the RPD decision is that it faults the Appellant for not, at the very least, considering or exploring the possibility of leaving China through legitimate means via a travel agency and instead automatically resorting to the use of a smuggler. [27] I agree with the RPD in this respect. The Appellant paid a significant sum of money to secure a Canadian visa through fraudulent means and I agree it would be reasonable to expect someone in his circumstances to at least first inquire into how they could leave China without resorting to illicit means and presumably for much less than what a smuggler would charge. Further, I disagree with the Appellant's submission that he was "required" to use false documents to flee as this is mere speculation, given that he never made any attempt to leave through legitimate means. That is the issue, in my view, that concerned the RPD, the Appellant's reliance on false means to leave when perhaps there was no need to do so. It is indicative of someone who is prepared to perhaps unnecessarily take actions involving deceit if it serves his purpose. Such actions, in my view, do impugn his credibility. Sur Place Claim [28] The RPD found that the Appellant's lack of credibility in respect to what transpired in China and his efforts to come to Canada, rebutted the presumption of truthfulness ascribed to sworn testimony. Further, the RPD did not agree that even if the events in China were not proven, the Appellant has nevertheless established he is a genuinely practicing Christian here in Canada. While acknowledging the Appellant's testimony of his motivation for joining Christianity and his knowledge of the religion, ascribing it some positive weight, the RPD found that the Appellant "has feigned such belief and knowledge to give an appearance of genuine religious persecution".17 The RPD placed more weight on the previous negative credibility findings, noting they are "a more reliable marker of this claim's credibility", which was not outweighed by his knowledge and professed Christian beliefs.18 [29] The Appellant argues that the RPD erred by failing to properly assess and engage the evidence in respect to his sur place claim. It is argued that the RPD dismissed the Appellant's knowledge of Christianity and already decided that he was not a genuine Christian, whereas it could have still found that he became a genuine Christian while in Canada, independent of prior findings. Finally, the Appellant argues that the RPD had ample evidence, consisting of photographs, letters, and testimony, some of which it ignored, on which to conclude he was a genuine Christian practitioner in Canada. [30] Canadian courts have considered the issue of sur place claims when the refugee claimant's allegation was found to lack credibility and have ruled in both directions, with some judgements indicating the RPD is not required to assess the sur place aspect of the claim,19 while others indicate decision makers are still required to consider the sur place claim even if the original account of the persecution alleged in the claimant's home country may not be credible.20 With this in mind, I accept the Appellant's argument that there may be situations in which an individual becomes a sur place refugee even if the merits of their initial claim arising out of their home country is not believed. Conversely, however, I am of the view that an individual's sur place claim may be impacted by negative credibility findings related to their initial claim arising from their home country. Put another way, a person's past actions may impact the assessment of their current and future actions. In my view, to ignore such evidence would be akin to turning a blind eye to indicators of an individual's willingness and ability to engage in discreditable conduct. [31] Having independently considered the evidence, I find overall that the RPD did not err in its assessment of the sur place claim. The RPD considered the Appellant's knowledge of Christianity and found that it did not outweigh previous concerns relating to the Appellant's credibility. This is the essence of the task of decision makers, balancing and weighing the evidence and preferring certain pieces of evidence over others. [32] I would also add that knowledge of Christianity does not necessarily mean that one is a genuine Christian. Some individuals may have limited knowledge of Christianity and be genuine practitioners or believers, while others may have all the knowledge but not be genuine Christians or believers. [33] The RPD considered the letter from Rev. XXXX about the Appellant's practice in Canada and found, due to previously inconsistent evidence provided by the Appellant relating to the house church raid, that the Appellant attending church or having a relationship with Rev. XXXX is not "reflective of genuine religious devotion".21 I agree. Even if Rev. XXXX believes the Appellant is a genuine Christian, the Appellant has exhibited before the RPD that he has the willingness and ability to try to deceive others if he believes it serves his purpose and in my view, this can reasonably extend to Rev. XXXX given that he has the ability to support the Appellant's refugee claim. Furthermore, my review of Rev. XXXX letter reveals that it is very general in nature and lacking specific details as to how the Appellant contributes to the church and its parishioners, beyond providing financial donations.22 Again, in my respectful view, financial contributions do not make one a genuine Christian. Finally, while the letter states that the Appellant "...joins our volunteer and serve our Lord faithfully" and "has been actively taking part in all kinds of activities and programs at our Church", it fails to provide any details of what all these activities consists of.23 For these reasons, I give this letter little weight towards determining whether or not the Appellant is a genuine Christian. [34] The Appellant rightfully directs my attention to the Baptismal certificate and photos of his attendance at church, as well as what appear to be photos of the Appellant with banners of the church he attends in the background. The RPD erred by not referencing these documents in their decision, given their potential significance to the Appellant's claimed Christian practice. [35] Having independently reviewed the evidence, I accept that the Appellant was baptised and attends church. I am unclear as to what the photos of the Appellant with the church banners and other individuals are depicting or what their purpose was and as such, I place no weight on them. As for the Baptismal certificate and photos of the Appellant at church, I place little weight on them in support of his claimed Christian practice. In my view, this evidence only indicates that he is a Christian on paper, and it is insufficient to establish, on a balance of probabilities, that he is now a genuine Christian who has had adopted Christianity for spiritual purposes. There is no evidence of him having a spiritual epiphany since arriving in Canada, and in my view, it is more likely than not that the ceremonies and events depicted in the pictures were created for the purpose of supporting and assisting him in the refugee determination process. As a result, I place minimal weight on this evidence towards establishing the Appellant's genuine Christian beliefs. [36] When the Appellant's evidence is assessed in totality, I find that the Appellant's knowledge of Christianity, Rev. XXXX's letter, and the photos depicting his Christian practice in Canada do not on their own establish he is a genuinely practicing Christian in Canada, nor does this evidence, in the alternative, outweigh the negative credibility findings related to his claimed Christian practice in China. [37] Finally, having found the Appellant not to be a genuine Christian practitioner in Canada or China, I do not accept that if returned to China he would practice Christianity, in an underground church or elsewhere. Therefore, he would not face persecution on account of religion nor would he face, on a balance of probabilities, a risk to life or cruel and unusual treatment or punishment, or torture, if returned to China. CONCLUSION [38] 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) Christopher Marcinkiewicz Christopher Marcinkiewicz November 9, 2020 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 34-35, paras. 33-34. 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 3 Exhibit P-2, Appellant's Record, Appellant's Written Statement, at p. 26. 4 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 90-91, 67. 5 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 91. 6 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 13. 7 RPD Hearing, Audio, December 2, 2019, at [00 :18 - 00:19:30] 8 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 106-108. 9 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 71, and Exhibit RPD-1, RPD Record, Exhibit 4, at p. 112. 10 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 72 11 RPD Hearing, Audio, December 2, 2019, at [00 :18 - 00:18:30] 12 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 34. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 28-29, para. 11. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 28, para. 11. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 29, para. 12. 16 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p.30, para. 17. 17 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 40. 18 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 40. 19 Ghribi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1191; see also Lai v. Canada (Minister of Citizenship and Immigration) 2005 FC 179. 20 Huang v. Canada (Minister of Citizenship and Immigration), 2012 FC 205; see also Manzila v. Canada (Minister of Citizenship and Immigration), IMM-4757-97, September 22, 1998. 21 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 41. 22 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 156. 23 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 156. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-35400 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