TB7-00745

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 File No. / N° de dossier de la SAR : TB7-00745 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 7, 2017 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Patricia Ritter Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who is a citizen of the People's Republic of China, is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has not submitted any new evidence in support of her appeal, nor is she requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. She is, however, asking the RAD to substitute a positive determination, or in the alternative, to remit the matter to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant's claim is based on her Falun Gong (FG) activities. She alleges that she was introduced to FG in June 2015 by a friend, XXXX XXXX, after trying both western and Chinese treatments for neurasthenia. In mid-September 2015, she alleges she decided to join a FG group. [4] On XXXX XXXX, 2016, the Appellant alleges she left China with her daughter who came to Canada to study. She indicates that she planned on returning to China on XXXX XXXX, 2016. However, on XXXX XXXX, 2016, her husband advised her that Public Security Bureau (PSB) officers had visited her home in China to seek her whereabouts with respect to her involvement in FG and requiring her to surrender herself. The Appellant's husband told her that the PSB had raided her underground practice group on XXXX XXXX, 2016 and that her friend and instructor, XXXX XXXX, had been arrested. [5] The Appellant alleges that the PSB returned to her home on XXXX XXXX XXXX 2016 and XXXX XXXX, 2016 and threatened her husband. She fears being arrested and sentenced to jail if she returns to China. ROLE OF RAD [6] Counsel has made no submissions on the role of the RAD. The RAD takes guides from the recent decision in Huruglica.1 The justices stated in Huruglica at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. SUBMISSIONS BY THE APPELLANT * Did the RPD err in its credibility findings in concluding that the Appellant is not a genuine Falun Gong practitioner? Alleged PSB interest after the Appellant left China [7] The Appellant testified that she left China on XXXX XXXX, 2016 to accompany her daughter, who was starting school in Toronto. She testified that she left from Liuting Airport in Qingdao City to Shanghai, and from Shanghai to Toronto on XXXX XXXX, 2016. [8] The Appellant further testified that the PSB had visited her home on XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX, 2016. At the first visit, the Appellant's husband advised the PSB that she had gone abroad. On the second visit, the PSB allegedly asked when she would return to China and threatened her husband not to conceal any information. On the third visit, her husband was once again threatened. However, the Appellant testified that no documentation was left with her husband. [9] The RPD noted the documentary evidence with respect to the measures in place in China to monitor the exit of citizens (Golden Shield or PoliceNet), and therefore, the PSB would have been aware that she had left China. Since, according to the Appellant's testimony, she used her own genuine passport and followed standard procedures in exiting China, the RPD found , on a balance of probabilities, that the PSB would have known that the Appellant had exited China on XXXX XXXX, 2016. Accordingly, it found that it was not reasonable in the circumstances that the PSB would then attend the Appellant's residence on 3 occasions when they would have known that she had already left. [10] The Appellant submits that the RPD made an unreasonable plausibility finding. Moreover, it is argued that persons associated with FG practitioners can be harassed and detained. Furthermore, it is submitted that the PSB could have repeatedly come to the house to harass a family member or perhaps to pressure the FG member to return to China. [11] The RAD finds that the RPD's finding that the PSB would not have come to her home, because they would know that she left the country from the database, is incorrect. Firstly, there was no reason to search the databases for the Appellant at the time she departed China, as she was not wanted by the PSB at that time. Hence, if they did search, in fact, they would not have been aware of any reason to apprehend the Appellant at that time. Secondly, the RAD finds that the RPD erred given the fact that the Appellant's testimony reveals that the Appellant's husband himself told the PSB that she had gone abroad. Accordingly, the RAD concludes that this credibility finding cannot stand. Having said this, the RAD will go on to examine the remainder of the evidence to determine if the Appellant's allegations have been established, i.e. if she is a genuine FG practitioner, and if so, are the PSB in pursuit as a result. No documentary evidence of PSB's alleged interest [12] The RPD noted the Appellant's testimony in which she indicated that during the first visit by the PSB, her home was searched, including her bookcase and drawers, and the Appellant's husband was told that she would be punished for her involvement in FG. The same PSB officers returned on two further occasions. However, the Appellant was unaware of their names or their contact information and indicated that they were from "XXXX XXXX station as they showed their PSB identity." The Appellant was unaware if her husband knew the names of the two officers, and she testified that although her husband has asked for a search warrant, no documentation was left by the PSB during any of these alleged visits. [13] The RPD considered counsel's submissions that "there is a significant difference between the legal systems of Canada and China"; however, it rejected this argument. The RPD relied on the most recent provision in the Criminal Procedure Law of the People's Republic of China (2012 Amendment) at Article 105. Moreover, the RPD was not comparing summonses or subpoenas between the two countries, but rather it found it unreasonable that a summons would not have been issued given the number of attendances by the PSB. The RPD cited the Federal court in Zhang.2 [14] The Appellant submits that the foregoing finding is an unreasonable plausibility determination, given the fact that the documentary evidence confirms that the PSB sometimes do not leave written summonses.3 [15] The RAD rejects the Appellant's argument. Firstly, the PSB have allegedly visited her home on three separate occasions. Secondly, allegedly two of her co-practitioners have been detained. Accordingly, the RAD finds that the PSB had more than a casual interest in the Appellant. The RAD concurs with the contents of the Criminal Procedure Law of the People's Republic of China (2012 Amendment) at Article 105. The RPD correctly applied the most recent documentation in this regard. The RAD further concurs that the RPD was not comparing summonses or subpoenas, but rather found that it was not reasonable in the circumstances, that a summons had not been left with the Appellant's husband, given her failure to comply with the demand to surrender. The RAD agrees that this finding was upheld by the Federal Court in the decision of Zhang. [16] Although the documentary evidence states that the issuance of the summons is not uniformly carried out throughout the country, the RAD notes that in this instance, the PSB has made continued efforts to find the Appellant on 3 occasions, and has arrested two members of her alleged FG group. To have allegedly attended her family home this regularly would indicate that the PSB had more than a casual interest in the Appellant. A lack of a summons or arrest warrant, when one should reasonably have been issued, damages the credibility of the Appellant. In this regard, the RAD draws a negative inference. Arrest of two co-practitioners [17] Although the Appellant's Basis of Claim form (BOC) speaks to this issue and upon a review of the audio recording, the RAD notes that the Appellant surmises that her name may have been provided by the detainees, no evidence has been proffered to support this assertion. While the RAD accepts, as there is no contrary evidence, that these two co-practitioners have been detained, the question remains as to whether they are still detained. More importantly, the RAD finds that this does not assist in establishing the identity of the Appellant as a FG practitioner. Contacting the Falun Dafa Association [18] The RPD drew a negative inference with respect to the lack of contact made to this Association. It rejected the Appellant's explanation that the Appellant's instructor at XXXX XXXX and fellow practitioners would advise her that such information is unavailable to her. The RPD found this particularly noteworthy given the fact that this is the only official organization representing FG practitioners in Canada. Moreover, it did not accept the Appellant's explanation that she did not speak English as her daughter could have assisted her as she did for her Canadian visa application. Furthermore, the RPD found that since she searched online to assist in completing her Canadian visa, she ought to have been able to do the same on the internet with respect to the Falun Dafa Association. [19] The Appellant submits that contacting the Falun Dafa Association simply is not a prerequisite in order to make a determination that a claimant is a genuine FG practitioner. Furthermore, the documentary evidence indicates that there are practitioners who do not contact the association.4 Clearly, it is implied that a letter from the association is not required in order for one to prove their bona fides of their FG practice. Moreover, it is argued that the RPD indicates that the Appellant had a reasonable understanding of the concepts of FG but found that in light of the other negative credibility findings, her articulation of the concepts was insufficient to establish that she is a genuine practitioner. [20] The RAD concurs with the Appellant that contacting the Falun Dafa Association is not a prerequisite for finding that an individual is a bona fide FG practitioner. Conversely, the RAD finds that to do so does not necessarily establish this identification. [21] Having said this, the RAD finds that the Appellant has not understood what the RPD took from this lengthy exchange with respect to the Falun Dafa Association. Upon review of the audio recording of the hearing, the RAD finds that the overall credibility of the Appellant has been called into question. The RAD finds that none of her responses made sense and that her answers were evolving as the RPD asked the questions. The responses varied from the instructor and fellow practitioners being unable to inform her of how to make this contact, to the fact that she was unable to conduct research on the internet due to her lack of language skills when her daughter is studying in English and assisted in her visa application. Quite frankly, the RAD finds that the Appellant would have been better off to simply say that she does not know anything about this organization, instead of her ever changing testimony in this regard. Knowledge of FG and Sur Place [22] The RPD acknowledged that the Appellant had a reasonable understanding of FG concepts, however, it found that this knowledge had to be weighed against the negative credibility findings. [23] The Appellant testified that she practices FG in Canada with a group at XXXX XXXX on Saturdays and Sundays and at home on a daily basis. She provided photographs and a letter from an alleged co-practitioner in support of her practice here in Canada. However, the RPD concluded that it could not assess an applicant's genuineness and therefore its sur place claim in light of its credibility concerns. [24] The RPD found, on a cumulative basis, that the Appellant's genuineness of her FG practice has not been established. RAD'S FINDINGS [25] With respect to the Appellant's alleged FG practice in China, the RAD finds that the Appellant has not established that she was a FG practitioner in China, nor has she established that the PSB are in pursuit. [26] The RAD finds that there is no corroborative evidence, and that while this is not essential to establish a claim, in light of the allegations that the PSB are in pursuit of her, the absence of a summons or an arrest warrant, particularly when allegedly two co-practitioners have been detained, is important to establish the material allegations of this claim. [27] With respect to the sur place aspect of this claim, the RAD finds that the evidence surrounding the Falun Dafa Association is so damaging, that it discounts the Appellant's practice here in Canada. The RAD finds that the photographs and letter from an alleged co-practitioner provide no probative value to establish the central allegations of this claim. [28] The RAD concludes that there is insufficient persuasive credible evidence upon which to find that the Appellant is a genuine FG adherent either here or in China. CONCLUSION [29] Pursuant to subsection 111(1)(a) of the Immigration and Refugee protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara June 7, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Zhang, Xi Shun v. M.C.I. (F.C., no. IMM-6200-10), Kelen, June 8, 2011, 2011 FC 654, paras. 22-23. 3 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (May 31, 2016), item 9.3. 4 Exhibit P-2, Appellant's Record, p. 162, Memorandum, para. 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-00745