TB9-01975

RAD File / Dossier de la SAR : TB9-01975 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 February 14, 2020 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Jacqueline M Lewis 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 [1] XXXX XXXX (the "Appellant") is a citizen of China and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The Appeal is dismissed. BACKGROUND AND ALLEGATIONS [3] The Appellant is a citizen of China and alleges to be a member of a Christian house church. The Appellant became depressed due to his sister's illness and was introduced to a house church by a friend. The Appellant first attended this church in XXXX 2016. [4] After speaking with his mother, the Appellant and his family decided that he should get a student visa to Canada where he would also have the freedom to practise his faith. The Appellant left China on XXXX XXXX 2017 and was baptised in Canada in XXXX 2017. [5] On XXXX XXXX 2017, the Public Security Bureau (PSB) went to the Appellant's family's home in China searching for the Appellant. His friend and two other members had been arrested the previous night (XXXX XXXX) while distributing leaflets. [6] The Appellant made his refugee claim in Canada in XXXX 2017. His claim was refused by the RPD on the grounds he was found not to be credible and not to be a genuine Christian as claimed. NO NEW EVIDENCE OR ORAL HEARING [7] The Appellant did not submit any new evidence to be considered under s.110(4) of the Immigration and Refugee Protection Act (IRPA).1 No analysis of new evidence is therefore required. [8] As an oral hearing can only be held where there is new evidence that has been admitted under s.110(4), and since there is no new evidence in this case, no oral hearing is required. ISSUES IN APPEAL [9] The Appellant argued the following issues in his appeal: (a) The RPD erred in its assessment of the Appellant's evidence regarding his Christian faith and its finding that he is not a genuine Christian as claimed. The RPD also erred by providing inadequate reasons for its findings. (b) The RPD erred in finding the Appellant would be able to practise Christianity safely in China. (c) The RPD erred by failing to consider the Appellant's sur place claim due to his Christian practice in Canada. (d) The RPD did not properly assess the Appellant's documentary evidence, including the PSB arrest notice for his friend and confiscated item list. (e) The RPD erred in making a negative credibility finding and finding that the Appellant lacked subjective fear due to his delay in making his refugee claim. [10] I find that the determinative issues in this appeal are: (a) Credibility. (b) Whether the Appellant is wanted by the PSB. (c) Whether the Appellant is a genuine Christian. ANALYSIS [11] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,2 the RPD Decision,3 and the Appellant's Basis of Claim (BOC) form,4 amongst other documents. Arrest notice is fraudulent [12] One of the grounds that the Appellant argued the RPD erred was regarding the RPD's assessment of the arrest notice5 of his friend. The RPD had found that the notice was of little value due to other adverse credibility findings and the fact that fraudulent documents are readily available in China and can easily be replicated. The Appellant argued that the RPD did not carry out a proper assessment of the document, and that the fact that fraudulent documents were readily available was not sufficient justification to dismiss this document. [13] I find that the RPD did err in as much as it did not carry out a proper assessment of the document. That said, the error can be corrected through my independent analysis. [14] I take note of the Response to Information Request (RIR) on arrest notices6 which states that "...the format of notices of detention and of arrest is 'basically' the same across China, and the information that remains the same in the notices issued by different police stations across China is the address, the official seal of the PSB, the time of arrest or detention and the 'type of crime'".7 [15] I have compared the document provided by the Appellant with the samples contained in the RIR and find that it does not match any of the samples provided. In particular, the Attachments 1 and 2, 6 and 7 are listed as notices handed to an arrestee's family. Examples of discrepancies include the second line at the top having far more characters on the Appellant's document than in the samples. The formatting of what should be a preprinted form is also completely different from those in the samples. [16] Additionally, I note that contrary to what the RIR says, the time of arrest has not been noted in the arrest warrant and should be there. [17] These are not microscopic examinations given that if the document was genuine, the format should be almost identical, with all of the described information in the RIR being present, with no exceptions. [18] I also note that the RPD found that the Appellant's account of getting this document via DHL in his own name from his mother in his own name, without consequence from the Chinese authorities, further undermines the provenance of this document. I will discuss this element further below. [19] Given the number of discrepancies, I find the arrest notice to be a fraudulent document and draw an adverse credibility finding against the Appellant. Given the severity of putting forward a fraudulent document, and given that it goes to the heart of the Appellant's claim of being wanted by the PSB, I find that this adverse credibility finding also taints the rest of the Appellant's evidence. RPD did not err regarding DHL envelope [20] The RPD also drew an adverse credibility finding against the Appellant regarding how he received a number of documents from China including the PSB arrest notice. The RPD made reference to the fact that the Chinese government monitors communications, including mail, and that the fact that the Appellant's mother was able to send the documents under his name and address without incident undermined the Appellant's credibility regarding being wanted by the PSB. [21] The Appellant has argued that the RPD Member disregarded the Appellant's explanation that his mother did not think using DHL would be a problem, and that the issue was otherwise simply speculative on the part of the RPD Member. I do not agree. [22] The Appellant has disregarded the fact that it is established in Canadian jurisprudence that in similar situations where there is routine monitoring of communications including mail, it is a reasonable conclusion " '...that it was unreasonable for the [Appellant] to have documents mailed to [him] in [his] own name when [he] was a wanted fugitive." (CITATION OMITTED)'8. [23] I find the RPD did not err in finding the Appellant's explanation unconvincing and drawing an adverse credibility finding against the Appellant. Disappearance of passport undermines credibility [24] The RPD also drew an adverse credibility finding against the Appellant with regards to the disappearance of his passport. The Appellant stated he lost his passport in Toronto and reported it missing to the police. However, he only gave a vague description about the circumstances of its loss, and did not produce any documentation establishing that he actually reported the loss to the police. The Appellant stated that he gave the report to the immigration officer. [25] The Appellant has argued that his explanation about the passport and police report was clear and that there is no reason for the RPD to make a negative credibility finding. I do not agree. [26] It is incumbent on the Appellant to put his best case forward, including putting forward the best evidence. In this case, I firstly note that a copy of the police report, allegedly given to the immigration officer, is not contained in the Canada Border Services Agency (CBSA) Exhibit 1 in the RPD Record. If it had truly been presented to the officer, then one would expect the report to be present. [27] That said, even if the explanation for the report's absence from Exhibit 1 was due to something like the CBSA losing the report, the Appellant could have asked the police for another copy as evidence and did not. I further note that almost a month elapsed between the RPD Hearing when the issue was raised, and the date of decision. This is plenty of time for the Appellant to have approached the police for the document, but the Appellant still chose not to. [28] When this is combined with the vague explanation about how the passport was lost, I find the RPD did not err in finding the Appellant's explanation unacceptable and in drawing a negative credibility finding against the Appellant. I also concur with the RPD's point that the absence of the full passport makes it difficult to corroborate the Appellant's travel pattern and further frustrates the refugee claim process. [29] I find the RPD did not err in this regard and uphold these findings accordingly. [30] Having found the Appellant not credible on these points, and in the absence of further positive evidence outweighing these negative credibility findings, I find that the RPD did not err in finding the Appellant is not wanted by the PSB as claimed. Appellant is not a genuine Christian [31] Having found that the Appellant is not wanted by the PSB, it still remains to assess whether or not the Appellant is a genuine Christian or not. Having conducted my independent assessment, I find the RPD did not err in finding the Appellant is not a genuine Christian. [32] In reviewing the RPD audio, I find that in general, the Appellant did show knowledge of Christianity, but when faced with questions about what his faith means to him, the answers given were either evasive or general, and did not demonstrate genuine faith. At one point, the Appellant was asked what stories he was told by his friend when introduced to Christianity. The Appellant recounted two particular stories. However, when asked about the meaningfulness of one of these stories to him, the following is said: "MEMBER (RPD): The first story you told me about the blind man. Why is that story meaningful? APPELLANT (A): My friend tried to tell me that Jesus has a power do anything. He can cure any illness as long as you believe in him. He also told me that God has given his only son to us, to this world. He's trying to help us and because human beings are very weak, we need God's help."9 [33] The Appellant's answer makes a passing reference to his sister's illness, but in general is simply a broad restatement of Christian faith, rather than actually answering the RPD Member's question. [34] Another example can be seen in the following exchange: "RPD: How do you incorporate your faith into your daily life? A: I pray. I pray every day. RPD: How do you incorporate the principles of your faith into your daily life? A: Other than pray daily, I read Bible, and I follow the 10 Commandments every day. I love people. I love...as God...as directed by God."10 [35] Again, the Appellant just gives a broad statement that he prays and follows the 10 Commandments, despite the RPD Member giving him two opportunities to explain how his faith is integrated into his life. The answers are so broad and general as to not actually answer the RPD Member's question about how his faith is important to him. [36] I then also consider the Appellant's answers to questions as to why he cannot practise in an approved Christian church in China. The fact that his first answer was that he was not interested, is particularly telling. The answer reveals that the Appellant doesn't appear to have truly considered what it is about this particular church that he finds compelling against any other Christian denomination. The Appellant had also said during testimony that he only went with the Protestant faith he was introduced to by his friend because it was the first one he was introduced to, without any kind of consideration or thought for why he should dismiss other faiths. I find this undermines the Appellant's assertion about just how important his faith is to him. [37] When these answers, combined with the other adverse credibility claims, are put together, I find that the RPD was correct in finding that the Appellant on a balance of probabilities has simply been attending church to bolster his claim, and not because of any true faith in Christianity. [38] In terms of the documentary evidence including the photos and support letter, I find that at best, these show the Appellant's attendance at church, and not any meaningful demonstration of faith. They are not capable of overturning the other adverse findings. [39] I therefore find the RPD did not err in finding the Appellant is not a genuine Christian. As the Appellant has not been found to be a genuine Christian, and not to be wanted by the PSB, he does not face a serious possibility of persecution if he were to be returned to China. CONCLUSION [40] Having reviewed the entire claim, and having conducted my independent analysis, I find the RPD did not err in finding the Appellant not credible, not of interest to the Chinese authorities, and not to be a genuine Christian. [41] Pursuant to s.111(1)(a) of the IRPA, the RPD's decision that the Appellant is neither a Convention refugee nor a person in need of protection is confirmed. [42] The appeal is dismissed. (Signed) "T. Card" T. Card February 14, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit P-2, Appellant's Record, Pages 5-26. 3 Exhibit RPD-1, RPD Record, RPD Decision, Pages 3-12. 4 Ibid., Exhibit 2, Pages 13-24. 5 Ibid., Exhibit 7, Pages 181-182. 6 National Documentation Package, China, 20 December 2019, tab 9.6: Format of notices of detention and notices of arrest, including signatures, letterhead and information contained in the documents (2015-June 2018). Immigration and Refugee Board of Canada. 5 July 2018. CHN106128.E. 7 Ibid., Page 2. 8 Exhibit RPD-1, RPD Record, RPD Decision, Page 7, Paragraph 9. 9 RPD Hearing Audio, 26 November 2018 at 0:30:19 - 0:31:29. 10 Ibid at 1:01:11 - 1:02:16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01975 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