TC0-07067

RAD File / Dossier de la SAR : TC0-07067 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 March 31, 2021 Date de la décision Panel Joseph Wyger 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] I dismiss this appeal. The Appellant XXXX XXXX (Mr. XXXX XXXX is a citizen of China. a. Mr. XXXX. allegedly joined an underground Christian church and fled China when he heard that an overseas pastor was arrested by the Public Security Bureau (PSB) in Tibet. b. The Refugee Protection Division (RPD) found Mr. XXXX. not credible about his Christian activities in China and that he was not a genuine Christian convert; Mr. XXXX. says he is a Christian who will be persecuted in China. c. The determinative issue for the Refugee Appeal Division (RAD) is whether Mr. XXXX. is a genuine Christian convert with a valid sur place claim. d. The RAD decides that the RPD was correct because Mr. XXXX. has not established the truth of his narrative of Christian conversion in China or his sur place claim due to a lack of credibility. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] Mr. XXXX.'s allegations can be summarized as follows: [4] Mr. XXXX. fears persecution by the Chinese government for his participation and involvement in an underground Christian Church. He was introduced to Christianity in 2015 by his friend XXXX and was baptized in 2016. In March 2018, the Chinese government started paying closer attention to religious gatherings and activities, causing Mr. XXXX.'s church organizer to advise against further meetings. In July 2018, Mr. XXXX. heard that an overseas pastor was arrested in Tibet by the PSB authorities, causing Mr. XXXX XXXX's family to worry about him. On November 12, 2018, with the help of a smuggler, they arranged for Mr. XXXX. to leave China for Toronto. On November 21, 2018, the PSB came to his home looking for him and charged him with four offences for his religious activities. Soon after, Mr. XXXX.'s friend XXXX was arrested and sentenced to imprisonment and the PSB continued to look for Mr. XXXX., so he decided to claim protection in Canada. RPD FINDINGS [5] The RPD made a number of findings in support of its determination that Mr. XXXX.'s narrative was not credible: a. The lack of reasonable initiative to retrieve his passport from the snakehead undermines Mr. XXXX.'s credibility. b. Mr. XXXX.'s vague and evolving testimony with respect to his attendance at the underground church and his religious activities in China undermine his credibility. c. The lack of reasonable efforts to obtain reliable corroborative evidence of Mr. XXXX.'s Christian activities in China undermines his credibility. d. There was no summons issued even after four charges were laid against him or any other persuasive evidence to establish that Mr. XXXX. was sought by the PSB or continues to be of interest to the PSB. e. Mr. XXXX.'s religious knowledge was superficial and his testimony about his participation at a church in Canada was not credible. f. The evidence in support of Mr. XXXX.'s Christian practice in Canada warrants very little weight and there is insufficient evidence to establish the sur place aspect of the claim. APPELLANT'S POSITION [6] Mr. XXXX. advanced the following grounds in support of his contention that the RPD decision was wrong: a. The RPD indulged in a microscopic and speculative analysis with respect of Mr. XXXX.'s Christian practice in China and PSB interest in him. b. The panel was microscopic on Mr. XXXX.'s attendance at the Canadian church. c. The RPD failed to clearly state why it drew a negative credibility inference with respect to his supporting documents. d. The panel was speculative and hypothesizes on Chinese policing standards with respect to the absence of a summons. e. There was a failure by the RPD to conclusively assess the sur place aspect. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I determine that Mr. XXXX. has not established the truth of his narrative of Christian conversion in China or his sur place claim due to a lack of credibility. RPD was not speculative and microscopic with respect to Mr. XXXX.'s China narrative [8] The RPD identified a number of concerns with Mr. XXXX XXXX's testimony about his alleged religious activities in China: vague and non-substantive responses to the knowledge required for his alleged baptism; changing his answer about the number of attendees at his baptism; inability to recall his first communion; the omission from his narrative about spreading the gospel and other activities; and his virtually non-existent religious practice in the eight months prior to leaving China. The panel drew a negative credibility inference from these issues in Mr. XXXX.'s testimony. [9] The Appellant's Memorandum (AM) begins with a misrepresentation of the facts. It claims that in March of 2018, the Chinese government took notice of the activities at Mr. XXXX.'s church and the organizer advised them to stop gathering. Mr. XXXX.'s Basis of Claim (BOC) form says the Chinese government started to pay close attention to any gathering and religious activities so the organizer informed members that they should stop gathering. This is an important distinction because it highlights that neither Mr. XXXX nor his underground church were of any particular or direct notice by the PSB contrary to his counsel's submission. This misrepresentation simply draws attention to the fact that Mr. XXXX. fled China while under no imminent threat. [10] The AM contends that it was the RPD's vague questioning that led to Mr. XXXX.'s imprecise responses. I disagree and found that the panel's questioning was professionally inquisitive and conducted in a manner that sought to elicit details that were not forthcoming from Mr. XXXX. The AM submits that it is not the panel's duty to assess the organizational standard or practice of the underground church with respect to prerequisites for baptism. I agree that this was not a strong finding by the RPD. I find it is plausible that Mr. XXXX. could not explain or identify the knowledge required because that was within the purview of the church leadership. By itself, it should not warrant a negative credibility inference. [11] The AM contends that it was speculative and unfair for the RPD to conclude that Mr. XXXX. had abandoned his beliefs because he did not participate in any religious activities or explore attending a different church or a government church during the eight months after his underground church suspended their meetings. I agree that this is a weak finding by the RPD as the AM is right that church attendance is not determinative, and it would seem plausibly prudent not to attend another underground church if your leader fears the discovery of your own underground church. [12] The AM is silent on other credibility concerns about the number of baptism attendees, and Mr. XXXX.'s first communion. It does not address the omission from his BOC of important aspects of his religious activities in China, such as spreading the gospel, donating to the church, acting as a lookout and driving the pastor around. The RPD noted that these items were only mentioned when prompted by counsel's questions. I conducted an independent assessment, including listening to the audio recording, and I agree with the RPD that the omission of proselytizing and the evolving nature of Mr. XXXX.'s testimony raise doubts about his credibility. I found his testimony to be vague and lacking in expected elaboration, while punctuated with a lot of "I don't remember," "I forgot" and "I didn't think about it." In my view, the presumption of Mr. XXXX.'s truthfulness needs some help from corroborating evidence. Mr. XXXX corroboration of religious activities in China is insufficient [13] The RPD was not impressed with Mr. XXXX.'s explanations for not obtaining any support letters from his alleged fellow practitioners, or his wife, or his parents in China to corroborate his story. The panel recited Mr. XXXX.'s explanations of turned off cell phones, not having thought of asking, and not wanting anyone to know that he left China. [14] The AM faults the RPD for drawing a negative inference from the lack of supporting documents because the panel failed to say whether Mr. XXXX.'s testimony was untrue, or was the panel simply displeased with the lack of effort in trying to obtain them. The AM contends that the RPD disregarded and ignored Mr. XXXX.'s testimony on his inability to contact fellow practitioners or his wife and parents after the Church was shut down and the organizer arrested as well as sentenced. The AM submits that in such circumstances, a reasonably prudent person would also hide and avoid contact with members that are potential targets of the Chinese authorities. The problem with that argument is that this is not what Mr. XXXX. said was his reason for not obtaining corroboration and so is itself speculative. [15] Mr. XXXX.'s explanations for his inability to contact anyone in China who could corroborate his account of events in China were not ignored, but the AM is correct that the panel did not make a direct finding about the veracity of the explanations. In my independent assessment, I find that Mr. XXXX.'s explanations are not true and that he displayed a lack of effort to obtain any support letters. Mr. XXXX. had various explanations for no corroboration: not liking letters; not wanting anyone to know he left China; and he just never thought about it. I find it somewhat incongruent that Mr. XXXX. did not want people to know he was in Canada, but his own wife informed the PSB that he was here. [16] I consider the most unbelievable explanation was that he was unable to locate any of the nine members of his Christian group because they all had their cell phones turned off. In a world where individuals in Mr. XXXX.'s cohort seemingly never turn their phones off, I find on a balance of probabilities that all nine of his former associates having their phones off at the same time during the time he was trying to contact them, is not a likely scenario. [17] The AM makes a gratuitous submission by presumptively suggesting that corroborative evidence from family members would have been discounted by the RPD anyways as self-serving. I consider this submission unwarranted, because counsel ought to know that this is not some rule of general application at the RPD or the RAD. I determine that the RPD was correct that its negative credibility findings, along with the absence of any corroborating evidence is quite sufficient to doubt the veracity of Mr. XXXX.'s narrative of his alleged journey to a Christian identity. RPD is correct that there is insufficient evidence to establish PSB interest in Mr. XXXX. [18] The RPD assessed Mr. XXXX.'s claim that the PSB was after him in China for his religious activities and that they had laid four charges against him. The panel found his testimony about his communications with his wife on this question was inconsistent, but it was more concerned with the lack of any documentation to corroborate PSB interest in him. There was no summons issued, nor was there any evidence from his wife or parents to confirm that they were visited by the PSB many times. [19] The panel cited objective evidence that the PSB often leave or show a summons to family members when they want someone to come in for questioning.2 The panel expressed a reasonable expectation that a summons would have been issued given the number of times the PSB searched for him and because his friend was allegedly arrested. The RPD concluded that Mr. XXXX. was not charged and is of no interest to the PSB. [20] The AM submits that it is plausible that the PSB was in pursuit of Mr. XXXX. notwithstanding the absence of a summons. It asserts that there is nothing consistent or reasonable about policing practices in China and to hypothesize that a summons would have been issued is mere speculation. I agree that the documentary evidence suggests that policing standards are inconsistent. It is possible that the PSB would make numerous visits but neglect to bring any official documentation of the four charges laid or a legal means to coerce the co-operation of the alleged offender that they seek. It may even be plausible that they neglected to formally document the seemingly serious charge that Mr. XXXX. was involved in activity threatening the national security. It is possible that even though Mr. XXXX. was never in any trouble with the PSB and suspended his religious activity for eight months, that the PSB sought him out nine days after he landed in Canada. [21] What is problematic is that Mr. XXXX.'s wife and parents could have easily provided some evidence to corroborate Mr. XXXX.'s hearsay account of the numerous visits by the PSB that commenced just over a week after he arrived in Canada. As the RPD noted, his family sent many of his other documents for the purpose of his refugee claim, but nothing to document persecution because Mr. XXXX. simply never thought of that and also said that he doesn't like letters. Given my earlier finding of the need for corroboration, I determine that the presumption of truthfulness can also not apply to this hearsay testimony about PSB visits. I find that the RPD was correct that Mr. XXXX. has failed to establish that the PSB has an interest in him. RPD correct that Mr. XXXX. is not a genuine Christian and there is no valid sur place claim [22] The RPD determined that Mr. XXXX XXXX's attendance and participation at a Canadian Pentecostal church was not credible for a number of reasons: he could not recite the details of his route to the church; he was inconsistent about his involvement with the youth program; he could not recall the subject-matter of a prayer group or Sunday service from the week prior to the hearing; he demonstrated a superficial understanding of religious knowledge he had acquired; his testimony about the Pentecost was vague, evolving, unnatural and devised; and he contradicted Reverend Ko's letter about attendance in the missionary program. [23] The RPD determined that Mr. XXXX.'s religious belief was not genuine, and he did not establish the sincerity of his faith. The panel found the negative credibility of his Christian practice in China undermined the credibility of his sur place activities in Canada. The panel considered that his church attendance and Reverend Ko's letter were insufficient to establish his genuine religious convictions but were only to bolster his refugee claim. [24] I agree with the AM that the RPD was somewhat overzealous over Mr. XXXX. not knowing his route to the church, as it is plausible he did not memorize the stops on the way due to reliance on navigation technology such as Google maps. I do not agree that the panel was too microscopic to expect Mr. XXXX. to have absorbed something from his most recent attendances at church and be able to recall at least some of the subject-matter. [25] The AM contends that the RPD set too high a standard for religious knowledge, engaging in what amounts to religious trivia. It does not address the other problems cited by the RPD over involvement in the youth program or missionary program. I find that the RPD did not engage in religious trivia or Catch-22 questioning but correctly sought to elicit from Mr. XXXX. a level of reasonably expected basic religious knowledge. I have conducted an independent assessment of Mr. XXXX.'s evidence related to his church activities in Canada and agree with the RPD's characterization that the inconsistencies and omissions undermine the credibility of his devotion to the church, again requiring some corroboration. [26] The AM asserts that the panel erred in concluding that the corroboration proffered by Reverend Ko's letter and documentary evidence showing Mr. XXXX.'s baptism did not support his religious activities while in China. It argues that the panel failed in its positive duty to independently assess each item and so it failed to conclusively assess the sur place claim. In my view, the RPD was saying that Reverend Ko's repetition of Mr. XXXX.'s underground church activity in China does not substantiate the truth of that activity and the panel is correct about that. Further, it is clearly true that the baptism documents do not help with the China narrative. [27] The AM is right that the RPD appeared to be fixed on the China narrative, to the detriment of a pure sur place analysis that should be independent of that narrative. The panel did examine Mr. XXXX.'s seemingly distant relationship with Reverend Ko and pointed out his inability to recall much of the detail around his request to Reverend Ko for a support letter. The panel also found inconsistency in Reverend Ko saying that Mr. XXXX. was active in the missionary program, because Mr. XXXX. denied knowledge of or involvement in such a program. The RPD thought that Reverend Ko's letter was not enough to establish that Mr. XXXX. now has a religious conviction that was absent when he left China, and I agree with that finding. [28] I determine that Reverend Ko's tepid endorsement and the items documenting his baptism are insufficient to establish Mr. XXXX.'s religious conviction. When asked if any of his friends were invited to attend his baptism, Mr. XXXX. responded that he did not invite anybody because they were all working at jobs that day. That day was December 25, 2019. While it is not implausible that all of his friends worked on Christmas Day, Mr. XXXX.'s response just adds to my general impression that he was making it all up as he went along. [29] The AM is right that the RPD should have considered Mr. XXXX sur place claim with a full assessment of his evidence in Canada. However, that consideration can not be conducted in a vacuum where Mr. XXXX.'s serial prevarications are ignored in their entirety. In my view, where an Appellant's credibility is as seriously undermined as it is here, it is incumbent on him to provide more persuasive corroboration for the sur place claim than is offered in this case. [30] The AM says that it appears the RPD believed that a sur place claim is established when the panel is satisfied that the authorities back home know of the claimant's actions. It submits that the test is only to have regard to whether Mr. XXXX.'s actions came to the attention of the authorities, but that this is not a compulsory component of establishing a sur place claim. In my view, the AM mischaracterizes the RPD decision because the panel mentions this aspect qualified by the modifier "furthermore," which indicates to me that the RPD correctly saw it as a complementary finding and not some compulsory component. My independent regard for this aspect leads me to find that Mr. XXXX. was totally unknown to the PSB while he was in China and after he left China. I determine that Mr. XXXX.'s activities in Canada have not come to the attention of Chinese authorities. [31] The AM contends that the RPD erred because it was incumbent on the panel to assess whether Mr. XXXX. could go back to China to practice openly and freely without a risk of persecution. The AM is wrong because the RPD found Mr. XXXX. to be not a genuine Christian and that he would not likely continue to practice were he to return to China. I agree with the RPD that Mr. XXXX. is not a genuine Christian and would not practice upon return, obviating the need to consider whether such practice could be conducted openly or freely. I conclude that there is not a serious possibility that Mr. XXXX. would face persecution if returned to China. CONCLUSION [32] I conclude that Mr. XXXX. has not established the truth of his narrative of Christian conversion in China or his sur place claim due to a lack of credibility. I dismiss the appeal and confirm the decision of the RPD that he is neither a Convention refugee nor a person in need of protection. (signed) J. Wyger Joseph Wyger March 31, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 National Documentation Package (NDP) for China (October 31, 2012) Item 9.11, as cited by the RPD, in Exhibit RPD-1, RPD Record, RPD Reasons, p. 9, para. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-07067 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