TC2-02162

RAD File / Dossier de la SAR : TC2-02162 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision December 6, 2022 Date de la décision Panel Karen McGovern Tribunal Counsel for the person who is the subject of the appeal Subuhi Siddiqui 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. XXXX XXXX (Appellant) is a citizen of China. [2] The Appellant fears persecution from the Public Security Bureau (PSB) because he is a practitioner of Falun Gong. In XXXX 2018, the Appellant's friend introduced him to Falun Gong, and he began practising with a group on a weekly basis. In XXXX 2018, three members of the group were discovered by the PSB while they were distributing flyers; however, the members escaped. After the group practice was suspended, the Appellant continued to practise at his home. In XXXX 2018, the PSB went door to door with pictures of the three members who had escaped. The Appellant and his family denied any participation in Falun Gong or any knowledge of the three members. In XXXX 2018, the Appellant left China and arrived in Canada. [3] The Refugee Protection Division (RPD) found that the Appellant's delay in seeking protection was not reasonably explained and demonstrated a lack of subjective fear. The RPD found that inconsistencies in the Appellant's evidence about being pursued by the PSB were not reasonably explained and that the Appellant failed to provide corroborative documentation of his Falun Gong practice in China and the PSB's pursuit of him. The RPD also found that the Appellant's knowledge of Falun Gong was less fulsome than expected and that there was no evidence that indicates that the Chinese authorities know of the Appellant's Falun Gong activities in Canada. [4] The Appellant argues that the RPD erred by failing to accept his reasonable explanation for his delay in seeking protection and for the inconsistency in his Schedule 12 form. The Appellant argues that the RPD erred by expecting that the PSB would have left a summons for him and by finding it implausible that he was pursued by the PSB but did not provide any evidence to corroborate it. The Appellant also argues that the RPD failed to assess the sincerity of the Appellant's belief in Falun Gong and applied the wrong test with respect to his sur place claim. [5] The determinative issue is credibility. [6] The RPD was correct in finding that the Appellant's delay in seeking protection was not reasonably explained and is demonstrative of a lack of subjective fear. The RPD was also correct in finding that the inconsistency about the PSB was not reasonably explained and that the Appellant failed to provide corroborative evidence about his practise of Falun Gong in China and the PSB's pursuit of him. The RPD did err in expecting the Appellant to have a higher level of knowledge of Falun Gong; however, the error is not determinative. The RPD correctly found that the Appellant is not a genuine practitioner of Falun Gong and would not face a risk if he returned to China based on his Falun Gong activities in Canada. DECISION [7] 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. NEW EVIDENCE [8] In his written statement, the Appellant indicates that he intends to submit new evidence; however, there is no new evidence in the Appellant's record. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Having reviewed the record and the transcript of the hearing, I find that the RPD did not enjoy a meaningful advantage in assessing credibility. As a result, I am conducting my review on the standard of correctness. Delay in seeking asylum and lack of subjective fear [10] The Appellant argues that the RPD ignored his evidence that reasonably explains his delay in seeking protection and erred in finding that it demonstrates a lack of subjective fear. I disagree. [11] The Appellant arrived in Canada on XXXX XXXX XXXX 2018 and made his refugee claim on February 18, 2020. In his Basis of Claim (BOC) narrative, the Appellant states that the "snakehead" kept his passport when he arrived, as the Appellant still owed him money and told him that, if he made a claim without his passport, he would risk being sent back to China: ...I was so scared and since the snakehead had gotten me this far, 1 believed him. Therefore, I did not make a refugee claim right away as I thought that I should I have my passport back to make my refugee claim and the only way to get my passport back was to work and pay off the remaining money in full. I also had difficulty facing the thought of not seeing my parents and brother again once I made my refugee claim in Canada. 38. Not long after I arrived in Toronto, I found a Falun Gong site in Scarborough and I started practicing Falun Gong with my new fellow practitioners. After learning of my situation, my fellow practitioners advised that I should make a refugee claim without delay. But I still could not make up my mind to initiate my claim as I still had difficulty to accept the fact that I would not be able to see my parents and brother back in China any more. Therefore, I decided to continue to wait and work off my debt to the snakehead without making my claim. 39. When I lived in Scarborough. I kept in contact with my friend [XT] and I told him that although my situation was uncertain, I enjoyed being able to practice Falun Gong surrounding by fresh air in open without having any fear of being persecuted by the authorities. 40. In mid-XXXX 2019, I learned that our Falun Gong group back in China resumed their group practice after being suspended for about one year. After our Falun Gong group resumed our group practice, our Falun Gong group reduced the frequency of the group practice from every week to twice a month and they decided that they would no longer send practitioners out to spread Falun Gong flyers. 41. I discussed with my parents the possibility for me to return to China, but my parents insisted that I should stay in Canada longer. Also, since I still had a remaining balance of money owing to the snakehead, I would not be able to get my passport back from him for me to use travel back to China. Therefore, 1 continued to stay in Canada and enjoy my Falun Gong practice here.2 [12] The Appellant states that, in XXXX 2020, his mother called to tell him that the Falun Gong group had been raided and that XT and another member were taken into custody. Two days later, the Appellant's mother called to tell him that the PSB had come to their house looking for him and told them that they knew that the Appellant practised Falun Gong. He states that it was at this point that he realized he could not return to China, so he began to take steps to make a claim for protection. [13] At the hearing, the Appellant initially stated that he intended to apply for asylum when he arrived in Canada, but he did not because the smuggler said that he would be returned to China if he applied without his passport. When the RPD asked him why he did not speak to an immigration consultant, he gave an answer that is inconsistent with his initial testimony that he intended to seek asylum as soon as he arrived in Canada: CLAIMANT: At the time in my groups, my co-practitioner also mentioned to me there were immigration, consultant service available, but around that time, my plan was to just hide here for a while and then we can see and maybe I will go back. MEMBER: Why will you want to go back okay, if you left because you said you were not able to practice Falun Gong in China? CLAIMANT: Because around that time, I will still - want to see the chances are if the PSP would let me go not to looking for me constantly because I do still miss my parents. And then just this year XXXX XXXX my group in China, there were two practitioners were arrested (00:35:00) And PSP renewed they came to my home again looking for me it was at this point that I realized I couldn't go back anymore. [...] MEMBER: So why did you decide not to take the advice of your fellow members in XXXX 2018? CLAIMANT: Because I was - still owed smuggler money my original plan was to pay off the money to get my passport back and I still want to go back to China to see my parents, because I really miss them that was my plan.3 [emphasis added] [14] The Appellant either intended to immediately seek protection when he arrived in Canada, or he did not. It is inconsistent for the Appellant to be scared to seek asylum because he feared being returned to China and then wait to see if he could return to China once he had his passport back. [15] I also find it significant that the Appellant's fellow Falun Gong practitioners told him to seek asylum "without delay" and that immigration consultants were available for him to consult with, yet the Appellant did not follow this advice or make an inquiry about what would happen if he made a claim for protection without his passport. While I appreciate that the Appellant missed his parents, if he was fearful of being returned to China because he did not have a passport, I find it reasonable to expect that he would make some effort to follow the advice he received from his fellow Falun Gong practitioners. I find no error in the RPD's conclusion that the Appellant's delay in seeking protection is, on a balance of probabilities, not reasonably explained. I also concur with the RPD's finding that the Appellant's statements that he wished to return to China, as noted above, are inconsistent with subjective fear. I draw negative inferences as to credibility based on both of these findings. The Appellant's evidence about being sought by the PSB is inconsistent [16] The RPD found that the Appellant's testimony about being pursued by the PSB was inconsistent with his Schedule 12 form and was not reasonably explained. The Appellant argues that the RPD failed to consider his Counsel's submission about handwritten statements in his Schedule 12 form, which shows that the information that he provided is consistent with his other evidence. I disagree. [17] In his Schedule 12 form, the Appellant indicated in typewritten form that he was sought by the PSB. The Appellant's form also indicates in handwritten form that he was detained from XXXX XXXX to XXXX XXXX, 2018; these dates are crossed out and new dates are added stating that he was detained from XXXX XXXX to XXXX XXXX 2019. The Appellant's initials are adjacent to the handwritten portion. [18] The RPD asked the Appellant if he had been pursued by the PSB anytime prior to XXXX 2020, and he responded that he had not. The RPD asked why his Schedule 12 form gives different information: MEMBER: So why did you say in your Schedule 12 that you were sought by the PSB from XXXX XXXX to XXXX XXXX, 2019? CLAIMANT: Yes, correct that time was regarding distributing flyers they were twice. (01:45:00) MEMBER: What happened at that time, because you didn't say anything about it in your testimony? CLAIMANT: That time was because of those three members distributing flyers on the XXXX XXXX and they were recorded on the surveillance video. That's when PSB, print out their photos and they searched and they went to each household in the village ask everybody who are these people it was that time. They requested any household who knows these three people they know that these people are Falun Gong practitioners any household know their names that they must report to the police station. That's why I didn't mentioned, that later on. They mentioned that I didn't report I know this inside information, but I didn't report to the PSB station regarding these practitioners that's why they say my crime will be more, higher.4 [19] At the hearing, the Appellant's Counsel submitted that the Schedule 12 form was completed by the Appellant with Counsel in typewritten form and that the handwritten portions were added in the Appellant's interview with an immigration officer: There was one issue I think of discrepancy that the claimant is asked about, and that was in Schedule 12 with respect to the issue of period detained or sought. I think it's clear from that that there was just some misunderstanding about the nature of the information that was being elicited. This was a form that was originally as I said earlier in the hearing typed out and then was handwritten in - at the interview by an immigration officer. Of course, we don't have any kind of a record of what the questions were that were put to the claimant or the answers that were provided we have these kinds of scrolls and fraudster and began responses. I would submit that that really has no bearing on assessment of the claimant's credibility or the account of events that he's provided. That he only provided in the BOC narrative, and I think that it's I would ask the member to give the claimant the benefit of the doubt in regard to this kind of confusing information.5 [20] In this appeal, Counsel argues that "the circumstances surrounding the insertion of the hand-written dates is unknown" because there is no record of what transpired when the handwritten portion was added, and it was unreasonable for the RPD to ignore his submissions.6 [21] With respect, I disagree. The Appellant's initials are beside the handwritten changes, which is an indication he is aware of the addition and agrees that it is accurate. In addition, the Appellant did not testify that the handwritten information in the form was inaccurate or that he did not know what he was asked by the immigration officer. The Appellant made changes to his BOC narrative but did not make any amendments to his Schedule 12 form, nor did he indicate that the information was inaccurate. [22] In my view, the Appellant did not answer the RPD's question about why his initial testimony was inconsistent with his Schedule 12 form and did not explain why the form states that he was detained by the PSB. He later testified that he has never been detained by the PSB. I agree with the RPD that the inconsistency is not reasonably explained and that it relates to a key element of the Appellant's claim. I concur in drawing a negative inference on this basis. Failure to provide corroborative evidence [23] Based on the above-noted credibility concerns, the RPD found that the Appellant failed to provide corroborative documentation about his Falun Gong practice in China, including whether he was or is still being sought by the PSB. [24] The Appellant argues that the RPD erred in finding that it was implausible for the Appellant to be wanted by the PSB and not have any evidence of it. He argues that country documentation indicates that summonses are not always issued, and the RPD erred by presuming how the Chinese authorities would act. [25] In my view, the Appellant has mischaracterized the RPD's finding. The RPD did not presume that the PSB would have left a summons or warrant for the Appellant. In their decision and reasons, the RPD notes that the Appellant "was asked if there was any evidence such as a summons or warrant that he tried to obtain for his hearing but was unable to obtain and his response was 'no.'"7 The reference to summons or warrant is as an example of corroborative evidence that the Appellant may have tried to obtain but was unsuccessful. Other examples of corroborative evidence could be statements from the Appellant's parents about the PSB coming to their house, or from XT's mother, who spoke to the Appellant's mother. [26] I find no error in the RPD's conclusion that the Appellant failed to provide corroborative evidence that is reasonable in the circumstances with respect to his allegation that the PSB are pursuing him. [27] I note that the Appellant has not made any argument disputing the RPD's finding that the Appellant has not provided corroborative documentation about his Falun Gong practice in China. I have independently reviewed this finding and find no error; I concur with the RPD's finding that, on a balance of probabilities, the Appellant did not practise Falun Gong in China and is not being pursued by the PSB. Sur place claim The Appellant demonstrated sufficient knowledge of Falun Gong [28] I agree with the Appellant that the RPD erred in finding that he did not fully demonstrate the Falun Gong knowledge one would expect of someone who has practised since XXXX 2018. The RPD's analysis was focused on minutiae and appeared to expect an academic display of Falun Gong literature. Having reviewed the transcript of the hearing, I find that the Appellant demonstrated sufficient knowledge of Falun Gong, including describing the five exercises, righteous thoughts and the basic principles. The Appellant is not a genuine practitioner of Falun Gong [29] The Appellant argues that the RPD erred by failing to conduct an independent assessment of the Appellant's Falun Gong practice in Canada and that the RPD's credibility findings should not be imported into the assessment. I disagree. [30] The Federal Court has been clear that credibility findings can be imported into sur place claim assessments.8 The RPD correctly considered the credibility findings related to delay in seeking protection, lack of subjective fear, and the findings that the Appellant did not, on a balance of probabilities, practise Falun Gong in China and was not pursued by the PSB. Although the RPD erred in finding that the Appellant's knowledge of Falun Gong was not commensurate with his alleged practice since 2018, my independent assessment confirms that the RPD's conclusion was correct. [31] In addition to the Appellant's testimony about his knowledge of Falun Gong, which I have found was sufficient, I have considered the photographs and the letter from the Appellant's fellow Falun Gong practitioner. The Appellant testified that the photographs show him distributing flyers near Queen's Park, doing group practice in Milliken Park, and other Falun Gong activities. The photographs are undated. The letter from YZ states that he met the Appellant in XXXX 2018 while doing group practice at Milliken Park and has practiced with the Appellant and studied together. The letter itself is undated and does not provide any specifics such as dates or places other than when YZ initially met the Appellant. [32] I find that this evidence does not overcome the credibility concerns. In particular, the Appellant's BOC narrative states that his medical condition led him to be an introvert with emotional difficulties and feelings of isolation, as well as being physically weak. His practise of Falun Gong in China improved his mental health and confidence and gave him more energy and was the basis for him leaving China and continuing his practice in Canada. The Appellant's alleged practice in China is directly linked to the sincerity of his practice in Canada as is his allegation that he was pursued by the PSB because of his practice of Falun Gong. As such, my findings that the Appellant was not credible about these allegations raises significant doubt about the genuineness of his practice of Falun Gong in Canada. When I weigh these findings, along with the delay in seeking protection, the lack of subjective fear and the lack of corroborative evidence, I find that the Appellant's knowledge of Falun Gong, and the photographs and the letter attesting to his practice are insufficient to establish, on a balance of probabilities, that the Appellant is a genuine practitioner of Falun Gong. No persuasive evidence that the Appellant would face persecution based on his practise in Canada [33] The Appellant argues that the RPD erred by unreasonably requiring him to provide evidence that his Falun Gong activities have come to the attention of Chinese authorities and failed to indicate what type of evidence would suffice. The Appellant also argues that the photographs he submitted and the country documentation that indicates the Chinese authorities monitor the activities of Chinese citizens abroad are sufficient to establish that there is a reasonable chance that he would face persecution in China due to his practise in Canada. I disagree. [34] The RPD concluded that the Appellant lacked an identifiable presence in Canada as a Falun Gong practitioner that would put him at risk in China. Contrary to the Appellant's argument, the RPD did indicate that being a member of the Falun Dafa Association could establish that there is a reasonable chance that the Appellant has come to the attention of Chinese authorities. The Appellant testified that he is not a member. The RPD also noted that the Appellant testified that, other than his group practice at Millikin Park, he has only attended one Falun Gong activity when he took part in a demonstration in XXXX 2021. [35] The fact that the Appellant has four photographs of him practising Falun Gong in Canada, and that authorities monitor Chinese citizens abroad, is insufficient to establish that there is a reasonable chance that the Appellant has come to the attention of Chinese authorities. I agree with the RPD's conclusion and find that there is no persuasive evidence to suggest that the Appellant's Falun Gong practice has come to the attention of Chinese authorities as he has not participated in significant demonstrations or anti-Chinese government activities and is not a member of the Falun Dafa Association. [36] The Appellant has failed to establish, on a balance of probabilities, that he is a genuine practitioner of Falun Gong or that there is a serious possibility of persecution if he were to return to China based on his Falun Gong activities in Canada. CONCLUSION [37] I find that the Appellant does not face a serious possibility of persecution, nor does he, on a balance of probabilities, face a risk to his life or of cruel and unusual punishment or treatment if he returns to China. [38] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Karen McGovern Karen McGovern December 6, 2022 Date 1 M.C.I. v. Huruglica (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, Rozas del Solar v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 2 Exhibit RPD-1, RPD Record, at p. 31. 3 Transcript of the RPD Hearing, at pp. 10-11. 4 Transcript of the RPD Hearing, at p. 23. 5 Transcript of the RPD Hearing, at p. 43. 6 Exhibit P-2, Appellant's Record, at p. 39, para 71. 7 Exhibit RPD-1, RPD Record, at p. 11. 8 Wang v. M.C.I. (F.C., no. IMM-6759-21), Brown, October 7, 2022, 2022 FC 1384; Li v. M.C.I. (F.C., no. IMM-4420-18), Fothergill, April 12, 2019, 2019 FC 454. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-02162 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français