TB8-33601

RAD File / Dossier de la SAR : TB8-33601 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 July 29, 2020 Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Hart A. Kaminker Barrister and Solicitor 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), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), dated December 3, 2018, rejecting her claim for refugee protection. The Appellant alleges she faces persecution on the basis of her religion. The determinative issue in this case for the RPD was credibility. [2] I agree with the RPD that the Appellant has not credibly established her allegations. For the reasons that follow, the appeal is dismissed. BACKGROUND [3] The Appellant alleges that she and her father converted to Christianity and became members of an underground church in China. The Appellant alleges that she was introduced to Christianity through her father's friend. The Appellant alleges that she attended the underground church regularly for over a year and was baptized in China. [4] The Appellant alleges that her mother did not approve of herself and her father being involved in the church. The Appellant alleges that her mother advised her to leave China, as it was not safe to practice her religion. The Appellant alleges that a family friend assisted her in obtaining a visa through a smuggler. The Appellant travelled to Canada in XXXX 2018 and initiated a refugee claim. She alleges that she continues to practice her faith in Canada and regularly attends church and Bible study. Notice regarding any document or written submissions in light of the COVID-19 pandemic [5] On June 15, 2020, the RAD provided Counsel with a notice related to the COVID-19 pandemic. This notice advised Counsel that they had 30 days from the date that the notice was received to submit any document or written submission in support of the appeal. Additionally, counsel was also advised that the other requirements of Rule 29 and 110(4) continue to apply. Counsel has not submitted any document or written submissions in response to this notice. ROLE OF THE REFUGEE APPEAL DIVISION [6] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.1 ANALYSIS Appellant's arguments [7] The Appellant argues that the RPD violated procedural fairness by continuing with the hearing after she complained that she did not feel well. The Appellant argues that the RPD failed to consider her circumstances when it decided to continue with the hearing. Further, the Appellant argues that her stomach pain prevented her from testifying accurately. The Appellant also argues that she provided credible evidence regarding her Christian faith. Therefore, the Appellant argues that the RPD erred in finding that she did not participate in the Christian faith in China and was not a genuine adherent of Christianity. The determinative issue is credibility Procedural Issue The RPD did not violate procedural fairness by continuing with the hearing. [8] The RPD noted in its decision that the Appellant seemed to be nervous throughout her hearing but was able to testify about her identity, place of residence, family composition and educational history without difficulty. The RPD found that, when the Appellant was asked questions about her religion, she often hesitated for significant periods of time, and her answers were generally vague. The RPD noted that, towards the end of its questioning of the Appellant, she conceded that she would be willing to attend a government-sanctioned church in China. The RPD noted that, when it explained the difference between state sanctioned and underground churches in China and once again attempted to confirm the Appellant's willingness to attend a government-sanctioned church, the Appellant became silent. The RPD noted that, at this time, the Appellant indicated she was having a stomach ache. [9] In its reasons, the RPD noted that the Appellant was given an opportunity to take a break, and when she returned, her Counsel indicated that she was feeling well enough to continue. The RPD noted that it asked the Appellant if she required medical attention which she indicated she did not. The RPD also noted that, when it asked the Appellant if she could proceed, she did not object and said she would try to proceed. The RPD also noted that the Appellant's Counsel did not object to proceeding but only cautioned the Appellant that, if she had problems, she should bring it to his attention. [10] The RPD noted that Counsel's written submissions were accompanied by a doctor's note and prescriptions for medication that the Appellant obtained after the hearing for acute XXXX. The RPD also noted that, in Counsel's written submissions, Counsel argued that it was inappropriate for the RPD to continue with the hearing given the Appellant's discomfort. In its reasons, the RPD concluded that there was no error in proceeding with the hearing given the Appellant's willingness to proceed after being asked. The RPD accepted that the Appellant's condition could have worsened after the hearing such that she would feel the need to seek medical attention; however, the RPD was not satisfied that the Appellant's complaint of a stomach problem adequately explained the difficulties in her testimony. [11] The Appellant argues that she advised Counsel during a break in the proceedings that she had been suffering from stomach pain since the outset and made a request not to continue with the hearing. The Appellant argues that it was the Member's intention to proceed with the hearing and conclude the hearing despite the fact that medical difficulties were brought to the Member's attention and that those medical difficulties were affecting the Appellant's ability to concentrate.2 The Appellant argues that, in addressing whether or not she was prepared to continue in spite of her discomfort, the RPD failed to take into consideration that she was 19 years old and was nervous. The Appellant also argues that, contrary to the RPD's statement in its reasons, Counsel did request that the hearing be adjourned and continued on another date given the stomach pains that had been brought to his attention. The Appellant argues that it was inappropriate for the Member to then rely on asking her directly whether or not she required medical attention and then continuing with the proceedings. Therefore, in view of the circumstances, the Appellant argues that it was procedurally unfair to continue with the proceeding given the discomfort she felt. [12] Further, the Appellant argues that the RPD erred in concluding that her stomach pain did not adequately explain the difficulty in her testimony. The Appellant argues that it was her own evidence that she was having difficulty concentrating and testifying. Further, the Appellant submits that, in an already stressful situation, suffering from stomach pains would have impacted the testimony. [13] Having independently reviewed the record, I agree with the reasons of the RPD and find that it was not procedurally unfair for the hearing to continue. Firstly, I would note that the RPD took great care at the outset of the hearing to explain the procedures and the importance of accurate testimony to the Appellant. The RPD also advised the Appellant before she began testifying that she could request a break at any time.3 Despite being told of her ability to ask for a break at any time and being represented by Counsel, the Appellant makes no reference to stomach discomfort for the majority of the hearing. As accurately reflected in the RPD's reasons, it is only when she is asked about her willingness to attend a state-sanctioned church after over an hour of testimony that the Appellant indicates she has a stomach ache.4 [14] The RPD reasonably provided the Appellant with a twenty-minute break when she raised this concern.5 When the Appellant and her Counsel returned from the break, the RPD indicated that it had no further questions of the Appellant, and that was Counsel's turn to question his client. At this point, Counsel indicated that the Appellant advised him that she had not been feeling well and that she was not feeling well enough to continue. The RPD then asked the Appellant if she required medical attention to which she replied she did not. The RPD asked the Appellant if she would be able to proceed and provided details about how much longer the hearing might go and what the procedure for the remainder of the day was. The RPD advised the Appellant that the hearing would likely conclude in under an hour and that the RPD was willing to allow Counsel to make written submissions if that was the preference of the Appellant. After providing this context, the RPD asked the Appellant if she would be able to proceed, and she indicated that she would try to continue with the hearing. I also note that, after the Appellant indicated her willingness to proceed, Counsel asked her to let them know if she was experiencing any problems to which the Appellant responded, okay.6 [15] I also note that, following this exchange, Counsel proceeded to question the Appellant for approximately twenty minutes and raised no further concern about her ability to testify. At the conclusion of the Appellant's testimony, Counsel asked for the ability to make written submissions but, once again, raised no further issue with the Appellant's ability to testify or her physical condition. [16] I find that a thorough review of the record demonstrates that the RPD acted appropriately and observed the principles of procedural fairness and natural justice. I find that the RPD's conduct was appropriate in the circumstances, as the Appellant indicated her willingness to continue with the hearing after receiving a thorough explanation of the procedure and time left in her matter. [17] Further, I agree with the RPD's finding that, even accepting that the Appellant had some stomach discomfort, this does not adequately explain all of the difficulties in her testimony. For the reasons that will follow, I find that the Appellant's testimony in relation to the central elements of her allegation is vague and inconsistent. I agree with the RPD that the Appellant was able to testify without difficulty regarding her background information and uncontested issues. I also agree with the RPD that the doctor's note and prescription for medication to ease the Appellant's stomach discomfort does not amount to evidence that her condition negatively impacted her ability to recall the events in China. I note that the doctor's note simply indicates that the Appellant was under the doctor's care from XXXX XXXX to XXXX, 2018 and could return to work or school on XXXX XXXX, 2018.7 The Appellant's written submissions to the RPD argued that her condition negatively impacted her ability to testify, but no evidence was present to substantiate this position. The Appellant has not tendered any objective evidence with her appeal to indicate that her stomach pain on the day of the hearing led to an inability to recall the details of the events in China. I find that, in the absence of such evidence and considering her ability to recall uncontested details, I am not persuaded that any stomach pain the Appellant felt adequately explains the difficulty in her testimony regarding the core elements of her allegation. The Appellant's testimony regarding her religious practice and beliefs is not credible [18] The RPD found that the Appellant's testimony regarding her Christian faith and involvement in an underground church in China was not credible. The RPD noted that the Appellant's oral testimony was extremely poor and that, during her testimony, she often claimed to have no memory of events. [19] The RPD found that the Appellant's evidence about when she started to believe in Jesus was vague. The RPD noted that, when the Appellant was asked when she began believing in Jesus, she indicated it was on October 16, 2016; however, when the RPD asked what happened on that day, the Appellant stated she did not know. The RPD found that the Appellant's inability to provide context as to when she started believing in Christianity impugned the credibility of her allegation. Further, the RPD noted that the Appellant's evidence was that a family friend introduced her to Christianity; however, when she was asked what exactly this individual told her about the faith, she provided vague testimony. Specifically, the RPD noted that the Appellant testified that the family friend talked to her about the Bible and prayer. However, when the Appellant was asked how he taught her to pray, she simply stated that he made her believe in God.8 The RPD noted that, when the Appellant was asked for more detail, she said she could not remember, and she was unable to identify any stories or passages that this individual read with her.9 [20] The RPD also noted that, when the Appellant was asked about anything she had ever read in the Bible, she responded that she had read Psalms, but, when asked for more detail, she merely stated prayer.10 The Appellant went on to testify that she read nothing else in the Bible apart from Psalms,11 despite her testimony about attending an underground church in China frequently as well as weekly Bible study classes in Canada. The RPD found that the Appellant's vague testimony regarding her knowledge of Christianity undermined the credibility of her claim that she was a Christian. [21] The RPD also found that the Appellant lacked any meaningful memory of the underground church she alleges she attended for over a year in China. The RPD noted that, when the Appellant was asked to provide information about the church, she responded that there was a Bible prayer, preaching and blessing.12 However, the RPD noted that, despite the Appellant's claim that she attended this church on a weekly basis, she was unable to provide a physical description of the church or provide details about where it was located. The only information she could provide was that there was a cross on the outside of the building. She also was unable to recall any of the other attendees at this church aside from the pastor and the church organizer. The RPD found that, given the Appellant's narrative which indicated that she participated in every church activity, it would be reasonable for her to recall more detail about the church and its members. As such, the RPD found that the Appellant's inability to provide this information raises questions about the credibility of her allegation that she attended this church in China. [22] The RPD also found that the Appellant was inconsistent in her evidence about having received Holy Communion at her underground church in China. The RPD noted that the Appellant initially testified that she received Holy Communion for the first time in April 2017 at her underground church13 which was consistent with her basis of claim narrative. However, the RPD noted that, when she was later questioned by her Counsel regarding the differences between the underground church in China and the church she tends in Canada, she indicated that, in China, she did not receive Holy Communion at church.14 The RPD noted that the Appellant's own Counsel questioned her about this inconsistency and pointed out to her that she had testified that she had received communion in China. The RPD noted that the Appellant's response was that she had not provided that testimony which was not supported by the record. The RPD found that the Appellant was unable to provide a reasonable explanation for this inconsistency and therefore found this impugned the credibility of her allegation. [23] In considering the Appellant's other supporting evidence, the RPD found it did not overcome the significant credibility concerns in her case. The RPD acknowledged that the Appellant was able to provide documents and certificates indicating that she attended a Christian church in Canada and was baptized at that church. The RPD accepted that the Appellant had been attending a Christian church and had been baptized in Canada, as indicated in her documents. However, the RPD found that, given the Appellant's lack of knowledge of the Christian faith, it was not persuaded that she was a genuine Christian. Therefore, the RPD rejected the Appellant's claim and found that she did not face a risk to life or a serious possibility of persecution. [24] In addressing the RPD's credibility findings, the Appellant reiterates her position that it was inappropriate for the RPD to continue with a hearing in spite of her stomach ache. The Appellant itemizes the details she believes she accurately recalled before the RPD, including the date she attended the underground church, her description of communion and baptism, and her evidence regarding miracles that she learned Jesus performed. The Appellant also once again highlights the evidence from the Christian church in Canada confirming her attendance. The Appellant argues that, in spite of the credibility concerns set out by the RPD in its reasons, there was sufficient evidence before the RPD to substantiate that the Appellant is, in fact, a genuine Christian. Therefore, the Appellant argues that there was sufficient credible and trustworthy evidence to establish her claim and that the RPD erred in finding that she did not participate in the Christian faith in China and was not a genuine adherent of the Christian faith at the time of the hearing. The Appellant makes no other specific arguments regarding the RPD's credibility findings. [25] Having independently reviewed the record, I agree with the reasons of the RPD. I find that the Appellant's evidence before the RPD was often vague and inconsistent. I note that, during the Appellant's testimony before the RPD, she was able to provide evidence regarding her educational and familial background without any difficulties.15 However, when she was asked questions regarding when and how she came to be a Christian, she would frequently take long pauses, and, when she did provide answers to the questions being put to her, they were often short and vague. I acknowledge the Appellant's argument that she was able to provide exact dates which were consistent with her basis of claim narrative. However, I find that this does not credibly establish her allegation. I would also note that her ability to remember exact dates contradicts her position that her medical difficulties impacted her ability to testify. I find that the Appellant's ability to provide dates which matched her narrative in regard to when she began attending the church, the last day she attended the church, and when she was baptized do not overcome her inability to provide any details regarding the context of her joining the Christian faith or her understanding of that faith. I also find that the Appellant's ability to briefly reference a Bible story and state the general purpose of baptism do not overcome the other significant gaps in her evidence. [26] I agree with the RPD that the Appellant was unable to provide any context or information about the day she claims she became a Christian. As noted by the RPD, when the Appellant was asked when she started to believe in Jesus, she testified that it was October 16, 2016; however, when she was asked what happened on that day, she was unable to answer the question.16 I would also note that, after her inability to answer this question, the RPD asked her if she could explain why she was having difficulty in answering, and she responded, no.17 I find that this is in contradiction with the Appellant's argument that her stomach difficulties prevented her from testifying, as when asked directly, she did not complain of any difficulties to the RPD. I find that the Appellant's inability to explain what led her to become a Christian on the very specific date she provided undermines the credibility of her allegation. The Appellant's belief in Jesus and Christianity are the central elements to the Appellant's claim. Therefore, I find that her inability to explain why she came to believe in Jesus is a significant issue in assessing the credibility of her faith. [27] I also agree with the RPD that the Appellant did not provide reasonable detail about how her family friend introduced her to Christianity and what she learned from him. I agree with the RPD that the Appellant's testimony regarding the Bible and prayer was vague and that she was unable to provide any details when asked by the RPD.18 I also agree with the RPD that, given the Appellant's testimony that she had been regularly attending an underground church in China for over one year as well as weekly Bible study and church services in Canada, it was unreasonable that she had not read any other part of the Bible aside from Psalms.19 I find that the Appellant's inability to explain or recall anything that she read in the Bible, which she claims led to her becoming a Christian, impugns the credibility of her allegation. [28] I also agree with the RPD that the Appellant's inability to provide any description of the church she attended in China calls into question the truthfulness of her allegation that she attended an underground church for over a year and participated in all church activities.20 I agree with the RPD that the Appellant's evidence about her recollection of this church was vague and that she was unable to describe the building or its location despite testifying that she attended once per week. As noted by the RPD, the Appellant indicated that approximately thirty people attended this church, but she was unable to recall any of them aside from the organizer and the pastor. The only detail she was able to provide about the church, after repeated questions and prompting, was that it looked like a church from the outside and that there was a cross.21 I would also note that the Appellant's narrative indicates that church services were held in one of the church member's homes, which is inconsistent with her oral testimony that the building was clearly a church and could be identified as such from the outside. I find that the Appellant's inability to recall any details about where she attended church or about the other members of the congregation impugn her allegation that she attended an underground church in China for over a year. [29] I also agree with the RPD that the Appellant's testimony regarding receiving communion was inconsistent. I agree with the RPD that the record clearly reflects the Appellant testified that she received communion for the first time at the underground church in China on the day she was baptized.22 However, when she was asked by her Counsel about the differences in the churches, she testified that she was only able to receive communion in Canada. When confronted with this contradiction, the Appellant did not provide an explanation. I agree with the RPD that this is significant. As an alleged adherent to the Christian faith, I find it would be reasonable for the Appellant to be able to recall whether she received First Communion in China or Canada. I find that her testimony about this issue was evolving and contradictory, and it undermines her allegation that she is a practising Christian. [30] In considering the Appellant's supporting evidence, I agree with the RPD's assessment. While I accept that the Appellant has been attending a church in Canada, as indicated by the documentary evidence, I find that this fails to establish that she is a Christian. Given the significant credibility concerns I have outlined, I find that confirmation of her attendance at a Christian church in Canada and even a baptismal certificate fails to credibly establish her Christian beliefs. I find that, given that the Appellant has not credibly established her profile as a Christian, she does not face a risk to life or serious possibility of persecution. CONCLUSION [31] 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) J. Lourenço J. Lourenço July 29, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; [2016] 4 FCR 157, at para 103. 2 Exhibit P-3, Memorandum of Argument, December 17, 2019, at para 5. 3 Audio Recording of the RPD Hearing, from 00:15:54. 4 Audio Recording of the RPD Hearing, from 01:11:03. 5 Audio Recording of the RPD Hearing, at 01:11:45. 6 Audio Recording of the RPD Hearing, from 01:12:35 to 01:17:00. 7 Exhibit RPD-1, RPD Record, at p. 205. 8 Audio Recording of the RPD Hearing, from 00:24:11. 9 Audio Recording of the RPD Hearing, from 00:25:12. 10 Audio Recording of the RPD Hearing, from 00:30:54. 11 Audio Recording of the RPD Hearing, from 00:31:40. 12 Audio Recording of the RPD Hearing, from 00:33:00. 13 Audio Recording of the RPD Hearing, from 00:46:49. 14 Audio Recording of the RPD Hearing, from 01:23:03. 15 Audio Recording of the RPD Hearing, from 00:16:20 to 00:19:00. 16 Audio Recording of the RPD Hearing, from 00:22:19 to 00:22:50. 17 Audio Recording of the RPD Hearing, from 00:23:16. 18 Audio Recording of the RPD Hearing, from 00:28:38 to 00:30:30. 19 Audio Recording of the RPD Hearing, from 00:30:30 to 00:31:40. 20 Exhibit RPD-1, RPD Record, at p. 25, BOC narrative, para 17. 21 Audio Recording of the RPD Hearing, from 00:34:22 to 00:42:20. 22 Audio Recording of the RPD Hearing, from 00:46:49. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-33601 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