TB9-07631

RAD File / Dossier de la SAR : TB9-07631 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 October 7, 2019 Date de la décision Panel T. Andrews Tribunal Counsel for the person who is the subject of the appeal Nkunda I Kabateraine 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) denying her claim for refugee protection. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the decision of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleges that she received a notice from her local demolition office to indicate that her residence would be demolished to make way for new condominiums. She was dissatisfied with the compensation being offered and the price required to secure one of the new residences. Her neighbours XXXX and XXXX shared her concern and they made plans to visit the demolition office. XXXX, XXXX and the Appellant spoke with other home owners in the area. They were selected to represent the group's concerns and sixty owners in total went to the demolition office on XXXX XXXX, 2016. On that date after waiting for two hours they were dismissed without having the opportunity to speak with the appropriate person. [4] XXXX, XXXX and the Appellant decided to appeal to the mayor's office. They wrote a letter detailing their concerns, which the sixty homeowners signed and then they delivered the letter to the office on XXXX XXXX, 2016. After several months without a response, they returned to the mayor's office, but the officials called security to escort them out. [5] As such, XXXX, XXXX and the Appellant decided to organize the owners for a protest, which occurred on XXXX XXXX, 2017. The sixty owners attended the reception at the mayor's office with simple banners, but they were refused entry by the security guard. XXXX ended up in a physical confrontation with the guard and the Public Security Bureau (PSB) were called. They attended to take XXXX into custody and ordered all others to leave. [6] Later that night the Appellant learned from XXXX wife that the PSB had charged him with inciting the masses to oppose the government and disrupting social order and the PSB had stated that they would pursue all those who organized the event. As such, the Appellant went into hiding from XXXX XXXX, 2017 to XXXX XXXX XXXX 2017 at her friend XXXX home. [7] Everyone worried and therefore the Appellant found a smuggler to assist her in making arrangements to leave China. [8] XXXX was subsequently arrested on XXXX XXXX, 2017 after the Appellant arrived in Canada when he came out of hiding and returned to his home due to a family emergency. ROLE OF THE RAD [9] The standard of review is correctness as established in Huruglica,1 where the Federal Court of Appeal gives guidance in regard to the role of the RAD. The RAD will defer to findings of the RPD where the RPD has a meaningful advantage in assessing the credibility of oral testimony. ANALYSIS Memorandum of Appeal [10] The determinative issue on appeal is credibility. The Appellant argues that the RAD erred in its assessment of the Appellant's credibility, documentary evidence, and the sur place aspect of her claim. [11] The Appellant is not relying on any new evidence referred to in subsection 110(4) of IRPA and she does not request an oral hearing under ss.110(6) of the IRPA. Findings related to credibility Protest [12] The RAD finds that the RPD was correct in its finding regarding the protest. The RPD found that the Appellant's inconsistent and evolving testimony about her involvement in opposing the expropriation undermined her credibility. [13] The Appellant submits that the RPD erred by basing its decision on a non-existent inconsistency as she clarified her testimony to indicate that when she mentioned participation in a protest on XXXX XXXX, 2017 this was a slip of the tongue. She submits that the RPD was overzealous in finding that this was an inconsistency. [14] The RAD has reviewed the audio recording of the hearing. In her testimony when asked whether she was ever involved in a protest related to the land expropriation, she replied that she was and that the protest occurred on XXXX XXXX, 2017. When asked whether an actual protest occurred on that date, the Appellant then clarified that there was no protesting event, but they just went to obtain a response/answer on that date and she explained that she had referred to it as a protest because a lot of them (homeowners) attended. [15] In light of her testimony, she was asked how this was possible given that according to her narrative she was in hiding on XXXX XXXX, 2017. She responded that she protested in the morning and she began to hide in the evening. She was confronted again with the fact that her narrative indicated she was in hiding since XXXX XXXX, 2017 and asked to explain why she was now saying she went into hiding on XXXX XXXX, 2017. The Appellant replied that she had not heard clearly. When asked to explain what she had not heard clearly, she responded that she thought she heard about a protest. The member confirmed that her initial question was with respect to a protest and repeated the Appellant's testimony back to her; that the Appellant had said she did participate in a protest and it occurred on XXXX XXXX, 2017. In response, the Appellant indicated, "Yes, I started hiding on XXXX XXXX, 2017." [16] Given the Appellant's response she was asked why just minutes before she had said that she went to protest on XXXX XXXX, 2017 and then went into hiding after that. She testified that her understanding was that when a lot of people joined them that meant it was a protest and probably there was a misunderstanding. The Member indicated that it was not the protest, but the date that the Appellant went into hiding that was of concern because the Appellant was now saying she went into hiding on XXXX XXXX, 2017 whereas moments before she said it was XXXX XXXX, 2017. The Appellant repeated that probably she misunderstood it as "talking about a protest". [17] Counsel questioned the Appellant on the same discrepancy; that she said the protest was XXXX XXXX, 2017 when she was supposed to be in hiding, but she also said it was on XXXX XXXX, 2017. The Appellant indicated that she had not heard clearly and thought that they were talking about the first time she went to "the office." She clarified that on XXXX XXXX, 2017 she was hiding at the home of her friend XXXX and she did not leave. She was therefore asked what she was referring to when she mentioned XXXX XXXX, 2017. She testified "my understanding was that when I was talking about the XXXX of XXXX, there was a protest and we went to protest together." As this did not answer the question, Counsel asked again more directly whether she left her hiding place and went to protest on XXXX XXXX. She replied that she did not and maybe she misunderstood it as XXXX XXXX, 2016 instead of XXXX XXXX because the former was the day that three of their representatives along with the owners went together to the demolishing office. [18] The member followed up by asking how those two dates; XXXX XXXX, 2016 and XXXX XXXX, 2017 which were in different years could be confused. The Appellant testified that when the member asked about a protest she thought the member was asking about the first time, she probably did not express it clearly and it was a slip of the tongue. [19] The RAD finds that the Appellant's testimony in this regard was evolving and that the inconsistency regarding the date she went into hiding was not reasonably explained. She volunteered the XXXX XXXX, 2017 date when asked if she had participated in a protest. When confronted with the fact that her narrative said she was in hiding on that day, she then indicated that the protest happened in the morning of XXXX XXXX, 2017 and then she went into hiding later that afternoon. When confronted with the further discrepancy about the date she went into hiding; XXXX XXXX versus XXXX XXXX, she stated she misunderstood, but failed to explain to the member what she misunderstood. Only when Counsel questioned did she then offer the explanation that she made a mistake in referring to XXXX XXXX, 2017 when she had really meant that the first protest occurred on XXXX XXXX, 2016. [20] The RAD finds that her explanation is not reasonable. The questioning from the RPD was clear and the Appellant was given every opportunity to explain herself. She went from talking about a protest/event on XXXX XXXX, 2017 (that did not appear in her narrative), to describing XXXX XXXX, 2017 events in her narrative as occurring on XXXX XXXX instead. And then when confronted by the member she had no real response for what she misunderstood and why. Had she made a mistake and been referring to a protest that occurred in XXXX, 2016 she should have stated so when the member asked for an explanation. [21] Further, the RAD finds that her explanation that she was describing a XXXX XXXX, 2016 protest makes little sense as the events she had described as happening on that date; protesting in the morning and then going into hiding in the evening do not align with what she wrote in her Basis of Claim (BOC) about XXXX XXXX, 2016. [22] The RAD finds that her evolving testimony, the inconsistency about when she went into hiding and inability to accurately recall the key dates of events that were impetus for her departure from China significantly detracts from the credibility of her account. Particularly, as she alleges that she was one of the organizers of said events. The RAD finds that on a balance of probabilities that she was not involved in protests as alleged. Address in the visa application [23] The RAD finds that it was incorrect to find that the inaccurate address listed in the Appellant's visa application was not reasonably explained. [24] The RPD found that the fact that the Appellant's real address was not in her Canadian visa application and her inability to explain the necessity of such an alteration cast doubt on her credibility. [25] The Appellant argues that the RPD erred by drawing a negative inference from the fact that her address in the visa differed from her actual home address. She argues that the RPDs conclusion is illogical given that she used a smuggler to apply for the visa and thus would not be in a position to explain that person's actions. Further, she argues that the RPDs reliance on the Wang2 case is misguided as the decision states that a person may need to lie in order to obtain a visa, but he or she ought to correct the record before the refugee claim is made, which the Appellant did. [26] At the hearing, the Appellant's testimony was that a snakehead filled out her Canadian visa application. When she was shown the address that was included on the form, she testified that it was not her correct address, she did not know the address on the form and did not know why an incorrect address was used. [27] The RAD finds that snakeheads are typically used to increase one's chances of success in securing documents as they understand foreign requirements and/or they have various connections. They are known to manipulate information. The RPD seemingly acknowledges this in her decision, accepting that some information in visa applications are known to have a bearing on whether it would be accepted. Hence, the RAD finds that it is not unreasonable that the Appellant would not know why some information is or is not accurate given she is not the person with the expertise in completing the application itself. The RAD also agrees with the Appellant in that she corrected/gave accurate information upon initiating her refugee claim by providing the right address to Immigration, Refugees and Citizenship Canada (IRCC) and in her BOC form. While it was an error to find that this information in the visa undermined her credibility, the RAD finds that this is not fatal to the decision as it is a peripheral matter and not determinative. Use of a smuggler [28] The RPD drew a negative inference from the Appellant's explanation as to why she required a snakehead given that the PSB had not gone to look for her in May 2017. [29] The Appellant argues that the RPD erred in not accepting the Appellant's explanation for why she used a smuggler. She argues that her explanation was reasonable as she feared she would be arrested given the arrests of the other two representatives who organized the petition. She believed that she too would be sought because of her opinion. [30] The RAD finds it is unnecessary to deal with these arguments given that it would not change the outcome of the appeal as it is not determinative. Implausibilities [31] Notice of Expropriation: The RAD finds that the RPD did not err in drawing a negative inference from the notice of expropriation in evidence as it was missing pertinent information. [32] The RPD found that the Appellant's explanation was not reasonable and it was not logical that the notice of expropriation in evidence did not include the address of the property that was being expropriated and drew a negative inference. [33] The Appellant argues that the RPD erred in finding it implausible that the notice of expropriation would have no address as there is no evidentiary basis for this finding, and because implausibility findings should only be made in the clearest of cases. [34] At the hearing when questioned about the notice of expropriation, the Appellant testified that her home address is the address of the land that was being expropriated. When asked why the address of the property in question/her home address does not appear anywhere on her notice of expropriation, she testified that she did not understand why the address did not appear and that she was only provided this written notice and given verbal notification that this address would be expropriated for the renovation of the city. [35] The RAD agrees with the Appellant in part as there is no indication in the objective documents either way to indicate that the address should or should not appear on such a notice. However, the RAD finds that it is reasonable to expect that a document that explicitly serves as the official notice of expropriation would identify the property that is actually being expropriated given a person could own multiple properties. The RAD finds that this expropriation notice that is in evidence is not authentic and as such the RAD gives it no weight in establishing that the Appellant's residence was being expropriated as alleged. [36] Wanted by the PSB: The RAD also finds that the RPD was correct in its overall finding that it was implausible that the Appellant is wanted based on her participation in a petition and organized a protest given the PSBs actions or lack thereof. [37] The RPD found that if the PSB was interested in arresting the Appellant they would have gone to her relatives' homes or her daughter's school to inquire about her and she would know. Alternatively, it found that if she did not know whether they went looking for her that based on her testimony that the PSB had not been to her relatives or daughter's school that it could conclude either way that the PSB was not looking for the Appellant in China. [38] The Appellant argues again that it was an error to find that it was implausible that the PSB is looking for her given there is no evidentiary basis for this finding and because implausibility findings should only be made in the clearest of cases. [39] The Appellant's testimony on the matter was that the PSB had not gone to any of her relatives' homes or to her daughter's school to look for her. [40] The RAD has reviewed the objective documents on China. Several sources indicate that family members of persons with various profiles including petitioners often themselves become targets. However, the RAD is aware that this is not always the case. While the RAD does not necessarily agree with the RPD on this particular point as it is not clear that family is always approached, this is not fatal as for other reasons, the RAD does not accept that the Appellant is wanted in China. [41] The RPD also found that it was reasonable to expect that if she was an organizer of the petitioning group and if they had her name, she would have been arrested on XXXX XXXX, 2017; the same date that XXXX was arrested. Alternatively, the RPD found that they would have looked for her at some point after that incident if interested in her. [42] The Appellant argues again that this implausibility finding was made in error given there is no evidentiary basis for this finding and because implausibility findings should only be made in the clearest of cases. She also argues that it is an error to engage in speculation about how the PSB should have reacted toward her and case law warns about making assumptions regarding how the Chinese government will behave. [43] The RAD finds that while the caselaw that is cited specifically talks about making assumptions about how the Chinese authorities would rationally behave, for three of the cases3 it is in the context of whether one would expect the PSB to issue a summons or not for a wanted individual. In the fourth case, Chen4, the Federal Court of Appeal overturns a decision in which the RPD made no adverse credibility findings, but found that the claimant's fear was not well founded because it found it implausible that the authorities would have released the individual from jail and permitted her to keep an exit visa if interested in her. The court found that the implausibilities had to do with the tribunal's appreciation of the attitude and efficiency of the authorities and nothing to do with the Appellant's conduct. [44] In this case, the RPD did not draw a negative inference from the fact that a summons was not left or from actions taken after a release from jail, but rather from the fact that no one came to look for the Appellant at all in the five months before her departure nor in the year and three months before her hearing while she was in Canada. This case can also be distinguished from the latter case as there were discrepancies/ adverse credibility findings made as discussed above. [45] The RAD has done its own independent assessment and finds that it does not necessarily agree that the Appellant should/or would have been arrested on the same day as the incident between XXXX and security given XXXX was only charged later that same evening. However, it was correct to conclude that if the PSB was interested in pursuing the Appellant, that there would be some indication of this or that the PSB would have gone looking for her at some stage. That is the very definition of being wanted; that you have been accused of a crime and are being pursued, hence the need to hide or take refuge to avoid arrest. The RAD finds that she is not a wanted person on a balance of probabilities. [46] The RAD has already found that she was not involved in protests as alleged given her evolving testimony, the inconsistency about when she went into hiding and her inability to accurately recall the key dates of events. The RAD has also considered her testimony that no-one has looked for her at her home or at anyone else's home. The RAD finds on a balance of probabilities that she is not wanted by the authorities in China because of her participation in organizing a petition to the local government. Substance of the claim [47] The Appellant argues that the RPD erred by focusing on peripheral issues and failed to address the substance of the claim including the sur place claim. She argues that she never alleged that she would be viewed as anti-regime or a political opponent, but only that she feared returning to China because of her perceived political opinion as she criticized corrupt officials. [48] The RAD finds that in reviewing the record that this is not the case. The RPD questioned on material aspects of the claim including both her fears related to land expropriation, and also questioned at length on her Falun Gong practice. In the final analysis, the RPD found that the Appellant was not at risk on a balance of probabilities due to the expropriation of her land and that she is not a genuine Falun Gong practitioner in Canada. [49] While it may have been an error to specifically make the finding that she would not be considered anti-regime or a political opponent based on what documents say about who is pursued; those who escalate their complaint to higher levels of government, the RAD has already found that on a balance of probabilities she is not wanted by the PSB for her perceived political opinion based on reasons as cited above. This error is not fatal as it does not change the outcome of the appeal. Petition [50] The RAD finds that the RPD was correct regarding its finding regarding the petition. The RPD found that petition was insufficient to establish the allegations on a balance of probabilities as the hand-written petition letter that includes a list of names and fingerprints is not notarized and the fingerprints were not verifiable. The RPD noted that without security features, these types of documents could be made by anyone, and referred to documentary evidence which indicates that fraudulent documents are readily available in China. [51] The Appellant argues the RPD erred by rejecting the petition because it was not notarized and based on the fact that fraudulent documents are readily available in China. She argues that there is no statutory requirement that documents be notarized and finding that fraudulent documents are widely available is not a valid ground for rejecting a claimant's documents. [52] The RAD has examined the document in evidence. It is a hand-written letter. The Appellant is correct in her statement that there is no statutory requirement for a document to be notarized. However, there is no way of validating this document. The RAD places no weight on this document as the names are not translated. RPD Rule 32(1) specifies that documents written in a language other than English or French must be translated into English or French when being disclosed as evidence. While the first page is translated, the second page is not and given that the RAD cannot read this document, it is unclear what is contained on the second page. The RAD gives no weight to this document in establishing her allegations. [53] The RAD finds that the petition is not sufficient to overcome the credibility concerns related to when the protest/incidents related to the petition occurred. Additionally, the Appellant has not established that she is wanted or being investigated for protesting land expropriation. Importing negative credibility findings [54] The RAD finds that it is unnecessary to address whether it was an error to import negative credibility findings because the decision to reject the Appellant's sur place claim was not based solely on importing negative credibility findings about what happened in China. [55] The RPD found that as per Madam Justice Gleason in Li, the RPD is entitled to import credibility findings into an assessment of a sur place claim. [56] The Appellant argues that it was an error to import negative credibility findings regarding land expropriation to the sur place assessment when that was not relevant to her Falun Gong practice in Canada. [57] The RAD finds that in the case cited above that it dealt explicitly with a claimant's assertion of having been a victim of religious persecution, which was found to be a fabrication and the motive and sincerity findings made by the Board about that claimant's practice of the same religion in Canada were found to be intertwined. In this case there are two distinctly different claim types involved and the Appellant is arguing that this caselaw should not apply. However, The RAD finds the decision to reject the Appellant's sur place claim was not based solely on importing negative credibility findings about what happened in China. That was only one of the factors that the RPD considered. The RPD also considered the Appellant's Falun Gong practice and found she was not a genuine adherent due to discrepancies about when and where she learned about the practice and based on her lack of knowledge about one of the fundamental aspects of Falun Gong. Hence, the RAD will not address this as it is not determinative nor will it change the outcome of the appeal. Sur place claim [58] The RAD finds that the RPD did not err in finding that the Appellants' evidence concerning her practice of Falun Gong in Canada was not credible. [59] The RPD found that the Appellant is not a genuine Falun Gong practitioner in Canada. [60] The Appellant argues that the inconsistency regarding when and where she learned about Falun Gong and the fact that she did not send out righteous thoughts daily were insufficient to find she was not genuine in her practice. [61] The Appellant's testimony on the matter was that she was introduced to Falun Gong in April 2018 after meeting XXXX XXXX XXXX (XXXX) at a coffee shop. The Appellant explained that they were drinking coffee at the same table and this individual noticed her pallor and that she looked down and started to talk to her about Falun Gong. She testified that she began practicing in May 2018. The member confirmed that this is the same person whom the Appellant asked for a support letter and that letter was in evidence. She was asked a second time when she met XXXX and the Appellant testified they met on April 6, 2018. When asked why the letter in evidence from XXXX indicated that they first met on XXXX XXXX, 2018, the Appellant testified that May 5, 2018 was when she first attended Falun Gong practice and when they first met she did not accept or believe what was said. When asked why the letter from XXXX indicated that they met at Queen's Park, the Appellant explained that when XXXX first introduced Falun Gong to her she was resistant and did not accept it. [62] The RAD finds that the Appellant did not reasonably explain the discrepancy in her evidence regarding when and how she was introduced to Falun Gong. Had this person met her at a coffee shop and persuaded her to try a practice, which she knew to be illegal in China, the RAD finds that the evidence from both parties about their encounter should match. Her explanation that she did not believe or was not persuaded at their first meeting does not explain why XXXX would not indicate the same. The fact that they contradict one another regarding such an important thing as when and how the Appellant began her practice is significant, and the RAD finds that this illustrates a lack of credibility regarding her Falun Gong practice in Canada. [63] The RPD also found that the Appellant's lack of knowledge about sending righteous thoughts was telling. [64] The Appellant argues that this is insufficient to find that her practice was not genuine. [65] The RAD has reviewed the record and notes with respect to the testimony on righteous thoughts, when asked initially what she does every day to practice Falun Gong, she responded that she studies Zhuan Falun, she does exercises one to five and says the verses with the exercises and she sends out righteous thoughts. When asked why she sends out righteous thoughts she testified she does so because it is based on Master Li. She indicated it is a "conception," which she explained means it is to get rid of the devils from the evil world. When asked whether she send out these types of thoughts daily, she indicated "sometimes yes and sometimes no" and when asked how many times per day she indicated once a day. [66] The documents indicate that Master Li places great important to the practice of sending out righteous thoughts and indicates that they should be sent out on a daily basis: Dafa disciples' sending forth righteous thoughts at this special historic period-in orderto reduce the evil beings' persecution of Dafa, Dafa disciples, and the people of the world-has played a very critical role...Dafa disciples are now sentient beings' only, sole hope for salvation. So, in order to do Fa-rectification more effectively, while you clarify the facts you have to take sending righteous thoughts very seriously, and in a timely manner purge the evil and your own problems so that you won't be taken advantage of by the evil.5 [67] The RAD finds that given the importance of this act, and that Master Li stresses that it is to be done on a daily basis in order to save sentient beings and reduce losses, that it is not reasonable that the Appellant only sometimes gives them out as this does not align with the Master's teachings. The RAD accepts that genuine Falun Gong practitioners may not be perfect in their practice and perhaps on its own this may have been insufficient to suggest that she is not a genuine practitioner given there were other questions about Falun Gong which she answered correctly. However, the RAD finds that the evidence must be considered in its totality and there were other credibility issues related to her Falun Gong practice. It is the combination of these things that led the member to her conclusion to be discussed below and the RAD agrees. [68] Further, the RAD finds that by the time of the hearing that the Appellant had allegedly been practicing Falun Gong for approximately eight months in a country where she was free to access the appropriate books and attend group classes as required. Hence, she has been practicing and studying Falun Gong since arriving in Canada. She has a high school education and had worked in China for a number of years as a business agent and an insurance agent.6 Thus, the RAD finds that any knowledge she has could easily have been gained here and the RAD places no weight on her ability to answer questions about the practice. [69] The RAD finds that it is not only this issue of vague testimony and sometimes sending out righteous thoughts that led the member to find she was not a genuine adherent. It was that in combination with the discrepancy regarding when and where she learned of Falun Gong and the fact that she did not furnish any supporting documents regarding the medical conditions which led her to try the practice in Canada. The combination of these three things led the RPD to its decision and the RAD finds that the RPD was correct. CONCLUSION [70] Based on all of the above, and on the RAD's own assessment of the evidence including the audio recording, the supporting documents, and the objective evidence, the RAD finds that the Appellant's allegations of having participated in and organized a protest are not credible and she is not wanted by the PSB for such activities. The RAD also finds that she is not a genuine Falun Gong practitioner in Canada. [71] The RAD finds the Appellant is neither a Convention refugee nor a person in need of protection. [72] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "T. Andrews" T. Andrews October 7, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras 70, 103. 2 Wang, Yong v. M.C.I. (F.C., no. IMM-5464-15), Zinn, August 26, 2016, 2016 FC 972. 3 Valtchev, 2001 FCT 776, Leung, [1994] FCJ No. 774 and Mahmood, 2005 FC 1526 4 Chen, 2014 FC 749 5 Exhibit RPD-1, RPD Record, Exhibit #3, National Documentation Package (NDP) for China (30 April 2018), at item 12.25. 6 Exhibit RPD-1, RPD Record, Exhibit #1 Schedule A (IMM 5669), at p. 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-07631 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français