TC2-04248

RAD File / Dossier de la SAR : TC2-04248 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 June 28, 2022 Date de la décision Panel D. Thorne Tribunal Counsel for the person who is the subject of the appeal Gokhan Toy 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] The Appellant, XXXX XXXX, is a citizen of China who has appealed a December 2, 2020 decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. For the reasons set out below, the appeal is denied. [2] The Appellant, a XXXX, alleges that he fears persecution in China as a Falun Gong practitioner. He states that at the beginning of 2017 he was experiencing XXXX XXXX, and that a friend subsequently introduced him to the practice of Falun Gong, stressing the medical and health benefits that it provided. By XXXX 2017 he began practicing Falun Gong with his friend and eventually joined the friend's Falun Gong practice group, with whom he met each weekend for practice and study sessions. In addition to these weekly meetings, the Appellant states that he studied Fa, read the Zhuan Falun text and practiced the exercises alone at home. He also spoke of the virtues of Falun Gong to close family and friends, one of whom joined the group in XXXX 2017. [3] The Appellant attended the practice group from XXXX - XXXX, 2018. However, he states that on XXXX XXXX, 2018, he arrived at the weekly group practice location to find a Public Security Bureau (PSB) vehicle parked outside the building. He notes that he immediately left and fled to his cousin's house, and then called his wife to tell her that he was going into hiding. He states that the next day his wife called and told him that two people from his practice group had been arrested, and he later learned the friend he had introduced to the group had gone into hiding. He decided to flee the country, and his cousin introduced him to a smuggler who facilitated his departure. On XXXX XXXX, 2018, he flew to Canada, and he subsequently claimed asylum. He states that he learned that on XXXX XXXX, 2018, the PSB searched for him at his home in China and left a summons with his wife at that time. He also states that he occasionally attends a Canadian Falun Gong practice group and studies at home. [4] The RPD ultimately rejected the refugee protection claim, on the basis of credibility. It specifically found that: a. The Appellant's testimony was replete with contradictions that he could not reasonably explain, including with respect to his passport, evidence of a previous passport, and prior international travel; b. His testimony with respect to his alleged pursuit by the PSB was vague, incoherent, lacking in specificity, and marked by omissions that could not be reasonably explained; c. The summons left with his wife was actually a non-coercive witness subpoena, the use of which was inconsistent with his claims that the PSB were pursing and seeking to arrest him; d. Given the surveillance capability of the Chinese state, and that he had travelled under his own passport, the authorities would have known that he had left the country, undermining his claims that his home was continually searched; e. The Appellant did not face a sur place risk in relation to his activities in Canada, as a risk of persecution by the Chinese state had not been established or that he would be perceived as a Falun Gong practitioner; and f. The Appellant was not a genuine practitioner of Falun Gong, but had rather acquired knowledge about Falun Gong for the purpose of bolstering his refugee claim. [5] The Appellant has appealed the RPD Decision and is now asking the Refugee Appeal Division (RAD) to recognize him as a Convention1 refugee or a person in need of protection, or, in the alternative, to refer this matter back to the RPD for redetermination.2 He has not requested an oral hearing, nor is he seeking to submit new evidence in the context of this appeal.3 He essentially argues that the RPD erred in its assessment of his credibility, and in particular that: a. The Appellant's use of a smuggler should be accepted as adequate explanation in relation to the undisclosed additional passport and travel records; b. With respect to the omission in the Appellant's materials regarding the alleged police search of his home shortly after he fled China, the RPD should have accepted as reasonable his explanation that he had not thought to include this information; c. Though the summons left with his wife was indeed non-coercive, there was no evidence that the PSB always used coercive summonses; d. With respect to his having left the country using his own passport despite China's strict exit controls, the RPD failed to account for the fact that he had used a smuggler; and e. The RPD's assessment of his sur place claim was coloured by its erroneous credibility findings. DETERMINATION [6] 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 Immigration Refugee Protection Act (IRPA).4 ROLE OF THE RAD [7] The Refugee Appeal Division reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.5 The exception to this rule is that the RAD may apply a deferential standard in certain circumstances where the RPD has a meaningful advantage in the assessment of credibility.6 I have conducted my own independent assessment of all of the evidence in this case, including the oral recording and transcript of the RPD Hearing. I find the appropriate standard in this case to be one of correctness. ANALYSIS Summary [8] The RPD found that the Appellant was not a credible witness, and not a genuine practitioner of Falun Gong due to inconsistencies and contradictions in his testimony and evidence that he could not reasonably explain. As noted below, while I disagree that all of these supposed factors should be held to impugn the credibility of the Appellant, on the whole, a review of the evidence indicates that the RPD did not err in concluding that the Appellant lacked credibility, and I agree with the RPD's findings. This includes their finding that he did not establish, on a balance of probabilities, that he was a Falun Gong practitioner, or that he faces a serious possibility of persecution if he were to return to China. THE RPD'S CREDIBILITY ASSESSMENT [9] As previously noted, the RPD made a number of findings which established that the Appellant was not credible with regard to his allegations, and credibility was, accordingly, the determinative issue in this appeal. The RPD did not err in its findings relating to the Appellant's passports and in holding that these undermined his credibility [10] To begin with, I note that the RPD drew a negative credibility inference from the Appellant's testimony in relation to his passport and previous international travel. As the RPD noted, the Appellant travelled to Canada using a passport that was issued on XXXX XXXX, 2018. He testified that this passport had been legitimately issued by the Chinese authorities, that this was the only passport he had ever been issued,7 and that while he had obtained the passport because he had then been considering a trip to South Korea, he did not ultimately undertake that trip,8 and his journey to Canada was, instead, his first and only international travel.9 However, as noted by the RPD, the Appellant's XXXX XXXX, 2018 passport contained an official notation indicating that it was a replacement for a previous passport, and which also recorded the number of that original, cancelled passport.10 The RPD further noted that a copy of the original passport, which was issued XXXX XXXX, 2017 was included in the Appellant's Temporary Residence Visa Application. This passport, which had a number matching the notation for it listed in the new passport, contained a visa for the country of Brunei and travel stamps indicating a visit to that country had been undertaken in XXXX, 2018.11 [11] When questioned about these discrepancies, the Appellant stated that he did not know anything about this, that the earlier passport was forged by the smuggler and that he had no clue about its records relating to the Brunei trip.12 The RPD rejected this explanation and held that his "continued efforts to maintain the falsehood that he had never previously been issued a passport" or left China, undermined his general credibility.13 [12] Upon appeal, the Appellant essentially reiterates his earlier explanation, stating that he had trusted the smuggler to make all of the arrangements for his departure from China, that he had not intended to mislead the Immigration and Refugee Board (the Board), that his testimony regarding the passport and travel should be considered in light of his previous experiences and finally declares that this is a trivial detail unworthy of determinative value.14 [13] Upon my own review of the record, I do not find the Appellant's explanations persuasive, and note that they do not address the concerns raised by the RPD. As it noted, the Appellant contends that his XXXX XXXX, 2018 passport was a legitimate one that he obtained from the Chinese state before his involvement with the smuggler, as he had acquired it prior to the alleged exposure of his Falun Gong practice group. Given this, in my view, it is reasonable to believe that this passport can be relied upon for the truth of its contents. As that passport contains a record noting that it had been issued to replace an earlier, cancelled passport and that the number it lists for the earlier passport matches that of the passport reproduced in his TRV application, it seems apparent that the Appellant did indeed have an earlier passport, and that his claim that the XXXX 2018 passport was the sole one he had ever possessed was untrue. The Appellant's explanation that the smuggler must have forged the earlier passport in no way explains how his legitimate XXXX 2018 passport, which he asserts he obtained from the authorities prior to his involvement with the smuggler, nonetheless contained the notation referring to the earlier passport (that he now claims the smuggler somehow forged). From this, it would appear that the Appellant's claims of not ever having more than one passport or leaving China prior to coming to Canada are falsehoods and, on a balance of probability, I find that that Appellant had his previous passport cancelled and replaced by the one dated XXXX XXXX, 2018, in order to conceal his prior international travel to Brunei, and that it is for this same reason that he continues to deny the authenticity of the original passport. [14] Accordingly, I draw a negative credibility inference from the ongoing discrepancies in the Appellant's testimony and evidence regarding his previous passport and his claims of never having internationally travelled prior to coming to Canada. I also disagree with the Appellant's claim that these issues should be considered trivial, as they belie his declaration that he did not intend to mislead the Board, and instead demonstrate an apparently ongoing willingness to continue to do so. Though I agree with the Appellant that this finding is certainly not determinative of his credibility or lack thereof, it is nonetheless one factor that may appropriately be considered in relation to this issue. The RPD did not err in finding that the Appellant's omissions and vague and evasive testimony undermined his credibility The unchallenged findings of the RPD are correct [15] Upon Appeal, the Appellant failed to address the RPD's finding that his testimony in relation to his allegations that he was being pursued by the PSB was unreasonably vague and lacking in specificity, and that in addition to failing to provide fulsome details, he had also embellished his testimony about the actions of the police. I have reviewed the evidence relating to these allegations and I agree with the RPD's findings on these issues as set out in paragraphs 15 - 17 of its decision. Accordingly, for the same reasons, I find that these inconsistencies also undermine the credibility of the Appellant. The omission and evolving evidence in relation to the alleged PSB search at his home in China [16] During the RPD hearing, the Appellant stated, for the first time, that the police had come to his home in China seeking to arrest him on XXXX XXXX, 2018, shortly after he had fled the country. When the RPD questioned him as to why he had not included this vital information in either his original Basis of Claim (BOC) narrative, or his XXXX XXXX, 2020 BOC Narrative Addendum,15 the Appellant stated only that he had not thought about it.16 Noting that he had been ably represented by counsel, the RPD rejected this explanation as unreasonable. It held that this omission undermined his credibility and found that he had, rather, embellished his testimony by adding this claim in the hearing. It found that this, too, undermined his credibility. [17] Upon appeal, the Appellant argues that his explanation of not having thought to include this information should be accepted as reasonable and adequate,17 stating that even though he was represented by counsel, he should not be expected to have known how much detail to include in his BOC and that claimants before the Board are not expected to provide "encyclopaedic detail" in their narratives.18 He also argues that this omission did not conflict with his other evidence, that it was not material, and that the RPD was being microscopic in this finding.19 [18] I disagree. That the Appellant had knowledge that the authorities had come to arrest him at his home in China just after he fled the country is not minutiae, but rather a - if not the - seminal detail in establishing the threat that he faces in China, as he is wanted by the police. In other words, this is exactly the sort of material information that is to be recorded in the BOC, and it is not reasonable that he would not have thought to include the very detail which most establishes the danger that he claims to face. This is particularly so, given that he was represented by counsel, whose role was to guide the Appellant with respect to providing such pertinent information, and who actually did file a BOC addendum shortly before the RPD hearing to add other such information to bolster their client's claim. I also note that including such key information is hardly requiring encyclopaedic or excessive detail on the part of the Appellant, given how obviously material this information was. In addition, I note that when questioned as to this sudden assertion, the Appellant was unable to provide any detail of substance: when the RPD asked when he became aware of the police visit to his home on XXXX XXXX, 2018, the Appellant replied only that he learned this "after I came to Canada."20 When asked if he could specify the day, month or even year this occurred, the Appellant stated only that he had forgotten and could not recall this.21 [19] Given all of the above, I find, on a balance of probabilities, that the Appellant was not being truthful, but rather embellishing his evidence by adding this account - for the first time - in his testimony at the hearing. I find that this, too, undermines the credibility of the Appellant and his allegations of being pursued by the police. I also note that this finding is significant, as it goes to the very heart of the Appellant's claim. His fear of persecution at the hands of the Chinese authorities, due to his Falun Gong participation, is allegedly what triggered his flight to Canada. That these allegations have been significantly undermined throws into doubt not only the allegations of pursuit, but also the foundation of the Appellant's entire claim. The Chaunpiao non-coercive summons does not undermine the credibility of the Appellant [20] The RPD noted that the Chaunpiao, essentially the summons or subpoena in the evidence of the Appellant, which the Appellant states was ultimately left with his wife by the police, was a non-coercive summons. The RPD further noted that objective evidence indicated that such summonses are routinely ignored in China, and that there are other forms of summons which are more imperative or coercive and which can be used to compel persons charged with crimes to appear in court. The RPD found that the issuance of a non-coercive, rather than imperative, summons was inconsistent with the claimant's allegations of being pursued by the PSB and held that this undermined the credibility of the claimant's allegations of being pursued by the state.22 [21] Upon appeal, the Appellant notes that this same objective evidence states only that it is possible for the police to issue a coercive summons, where there is a need to limit the recipient's personal freedom, and that while they may do so, there is no evidence indicating that such coercive measures are always utilized by the authorities.23 Accordingly, he argues that the RPD erred in this finding. [22] Upon review of the evidence, I agree with the Appellant that the RPD seems to have jumped to the conclusion that a coercive summons would invariably have been issued in a case such as the Appellant's, and that the evidence cited by the RPD does not support this conclusion. In essence, the RPD has found it to be implausible that the police might have begun by serving a non-coercive, as opposed to coercive, summons on the Appellant. While this could well be, it is a well-established precept that implausibility findings are to be made by administrative decision-makers only in the clearest of cases.24 In lieu of further evidence in respect of the practice of the Chinese authorities in relation to the use of summons, I cannot find that this is such a case. As a result, I do not find that the type of Chuanpiao presented in the Appellant's evidence somehow undermines his credibility. The RPD did not err in finding that the fact that the Appellant travelled from China using his own passport undermined the credibility of his claims of ongoing searches for him at his home in China [23] In its decision, the RPD noted the abundant objective evidence as to the extent of the electronic surveillance capabilities of the Chinese authorities, their strict monitoring of entry and exit from the country, the fact that China has gone to the use of biometric passports and the capacity of security officials to access a web of public security databases which allow them to conduct background searches of virtually all Chinese citizens.25 [24] It essentially held that in light of this information, and given that the Appellant had travelled using his own passport, the authorities would clearly have been aware that he had departed from China, and that his claims that they had later repeatedly searched for him at his family home in that country therefore lacked credibility. The RPD went on to find that these allegations were likely not true but had rather been embellishments to bolster his refugee claim.26 [25] In his response upon appeal, these findings went unchallenged as the Appellant did not address this reasoning of the RPD. Upon review of the record, I agree with this finding, and for the same reasons, as noted in paragraphs 29 - 34 of the decision of the RPD, hold that this also undermines the credibility of the Appellant's claims that the PSB has repeatedly sought him at his home in China. [26] Incidentally, while the Appellant's Memorandum of argument on appeal did not address the above-noted findings of the RPD, I note that the Memorandum, rather curiously, did address an argument or finding that the RPD did not actually make in its decision. In particular, it states that the RPD had found it to be implausible that the Appellant was able to leave China using his own passport, given its surveillance technology and border controls.27 The memo goes on to argue that the RPD erred in this plausibility finding.28 As this was not, in fact, a finding made by the RPD, it is not necessary for me to address the Appellant's arguments in this regard, and I will not do so here. The RPD did not err in finding that the Appellant has not established a viable sur place claim [27] Finally, upon appeal, the Appellant also argues that the RPD erred in its assessment of his claim that his Falun Gong practice in Canada should be taken to have given rise to a serious possibility of a sur place risk of persecution, were he to return to China. He essentially argues that the RPD's analysis in this regard was tainted by its credibility finding that the Appellant was not a genuine Falun Gong practitioner and that this led the RPD to be overly skeptical of any potential sur place claim and to fail to properly consider the evidence attesting to the Appellant's participation in Falun Gong activities in Canada. He also particularly argues that "NDP documents provide reliable, probative documentary evidence that Chinese authorities monitor activities of Chinese citizens abroad. On the basis of this evidence, the Appellant's disclosed pictures suffice to show that his practice of Falun Gong would have come to the attention of Chinese authorities."29 [28] Again, I must disagree. First, though the Appellant affirmatively asserts that the Board's National Documentation Package (NDP) objective evidence establishes that China monitors its citizens abroad, a review of the cited document in question reveals that it is not so categorical and, in fact, specifically notes that very little documentary evidence exists concerning the monitoring of Falun Gong practitioners outside of China.30 Importantly, the Appellant has also tendered almost no specific evidence with respect to his Falun Gong activities in Canada. Again, I note that his testimony in this regard, upon questioning, was almost entirely lacking in specificity and detail with respect to these activities,31 though he did note that since the onset of the pandemic he would rarely take part or "go out" to engage in these activities.32 In addition, though the Appellant has generally said that prior to the pandemic he would sometimes meet with a group on weekends to practice and distribute Falun Gong pamphlets, he has not provided any detail about these activities, such as the dates of these happenings or any media accounts about these events.33 Nor has he provided any evidence of any sort of publicity or coverage of the activities. Given this, even if one were to accept that the Chinese authorities engage in some sort of widespread monitoring of overseas Falun Gong activities, there has been no indication or evidence tendered to indicate that accounts of the Appellant's activities have appeared in the public realm or media, which begs the question of how the authorities he fears could have become aware of his activities in Canada. [29] Indeed, I note that even in relation to the one set of photographs the Appellant has submitted (of a group practicing Falun Dafa outdoors and leafleting),34 there is no indication that the pictures are in the public domain, or that they were anything other than private pictures that he is now sharing with the Board. Again, there has been no indication that these photos are publicly accessible, and no evidence has been provided to indicate why the Appellant fears that this, or any other evidence of his participation in Falun Gong activities, has - or could - come to the attention of the Chinese authorities. In lieu of any such evidence, I cannot find that the Appellant has established there is a serious possibility that he faces a forward looking sur place risk in relation to his activities in Canada. In any event, as noted below, I also find that the Appellant has not established that he is a genuine Falun Gong practitioner, and as a result I find that, on a balance of probabilities, he would not engage in the practice of Falun Gong were he to return to China. CONCLUSION [30] For the foregoing reasons, and based upon my own analysis of the record, I agree with the finding of the RPD that the Appellant is not a credible witness, that he has not established that he is a genuine Falun Gong practitioner, and that the cumulative impact of the credibility concerns noted is to rebut the Appellant's presumption of truthfulness. I further find that, on a balance of probabilities, the Appellant was not credible with regard to his allegations that he faces persecution by the authorities in China and that this ultimately led to his flight to Canada and claim of refugee status. These findings go to the core of the Appellant's narrative, and I find that he has not established, on a balance of probabilities, that he is being sought by the Chinese authorities. Finally, I additionally find that contrary to the claims of the Appellant, the RPD did not err by engaging in a microscopic or overzealous analysis. As I have noted, there are a series of key discrepancies, and evidentiary contradictions that have resulted in my finding of the Appellant's loss of credibility. As a result, I therefore concur with the RPD decision that the Appellant's claim is not established, and that he does not face a serious possibility of persecution, nor that, on a balance of probabilities, is he subject to a risk to his life, or cruel and unusual treatment or punishment or torture in China. [31] Accordingly, 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 Immigration and Refugee Protection Act. (signed) D. Thorne D. Thorne June 28, 2022 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 4, 90. 3 Exhibit P-2, Appellant's Record, Appellant's Written Statement, at p. 16. 4 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA, [2016] 4 FCR 157, at para. 103. 6 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC, [2019] 2 FCR 597. 7 RAD-1, Transcript of the RPD Hearing held on October 20, 2020, at p. 29. 8 Ibid., at p. 11. 9 Ibid., at p. 7. 10 Exhibit RPD-1, RPD Record, Specific Information Research Unit (SIRU) Response to AIF, received July 13, 2020, Appellant's XXXX XXXX, 2018 Passport, at p. 131. 11 Ibid., at p. 134. 12 RAD-1, Transcript of the RPD Hearing held on October 20, 2020, at p. 9. 13 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 14. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 28 - 30. 15 Exhibit RPD-1, RPD Record, Basis of Claim (BOC) Narrative Addendum, at p. 32. 16 RAD-1, Transcript of the RPD Hearing held on October 20, 2020, at p. 13. 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 33. 18 Ibid., at para. 38. 19 Ibid, at paras. 36 and 32, respectively. 20 RAD-1, Transcript of the RPD Hearing held on October 20, 2020, at p. 13. 21 Ibid. 22 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 20 - 25. 23 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 43 - 45. 24 Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131. 25 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 30 - 33. 26 Ibid, at paras. 29, 34. 27 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 54. 28 Ibid., at paras. 68 - 69. 29 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 82. 30 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China (November 5, 2021), item 12.18, Response to Information Request (RIR) CHN105635.E, Immigration and Refugee Board (IRB). 31 See, for example, RAD-1, Transcript of the RPD Hearing held on October 20, 2020, at pp. 27 - 28. 32 Ibid., at p. 28. 33 I note that there is one, similarly non-specific letter of support in the file from another Falun Gong practitioner, dated XXXX XXXX, 2020 that states that they met in XXXX 2019 and had practiced and studied Falun Gong together, presumably up to the date of the letter: Exhibit RPD-1, RPD Record, Practitioner's Letter, at p. 271. 34 Exhibit RPD-1, RPD Record, Photos at p. 278. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC2-04248 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