TC0-00594

RAD File / Dossier de la SAR : TC0-00594 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 December 24, 2020 Date de la décision Panel K. Qureshi 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 OVERVIEW [1] XXXX XXXX (Appellant) is a citizen of China. The Appellant's allegation in his Basis of Claim form (BOC) are as follows. [2] The Appellant fears persecution by the authorities in China, including the Public Security Bureau (PSB), due to his practise of Falun Gong (FG). Beginning in XXXX 2017, the Appellant developed neck pain. His colleague, TL, recommended FG as it had helped him with his own neck pain. TL taught the Appellant FG movements at home and in early XXXX 2017 he joined an FG practise group. He says in XXXX 2018 his neck pain almost disappeared. On XXXX XXXX XXXX 2018, TL's former co-practitioner, SX, was arrested and TL went into hiding. As a result, the Appellant obtained the services of a smuggler to help him leave China. On XXXX XXXX XXXX 2018 the Appellant was interviewed by the PSB but released. The Appellant was issued a Canadian visa on XXXX XXXX XXXX 2018 and left China on XXXX XXXX XXXX 2018. The Appellant's Basis of Claim (BOC) form was signed on XXXX XXXX XXXX 2018. [3] The claim was heard by the Refugee Protection Division (RPD) on November 14, 2019 and rejected on December 16, 2019 on the basis of credibility. The Appellant appeals to the Refugee Appeal Division (RAD). He does not present new evidence. DECISION [4] I dismiss the appeal. The determinative issue is credibility. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [5] I have reviewed the RPD decision on a standard of correctness and conducted an independent assessment of all of the evidence.1 I acknowledge that when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their veracity. [6] The Appellant submits that the RPD erred as follows:2 a. In its assessment of credibility by focusing on minor and peripheral inconsistencies,3 b. Failing to adequately consider his documentary evidence and relying on his historic use of false documents to make a negative credibility finding,4 c. Determining that his religious beliefs were insincere based on a knowledge test,5 d. Failing to apply the proper legal test with respect to his sur place claim.6 RPD did not err in its negative credibility findings i. When the Appellant joined a FG group [7] The RPD concluded the Appellant had provided inconsistent testimony regarding when he joined a FG practise group.7 In his BOC, he wrote that he joined a FG group in early XXXX 2017, but in an interview with a Canada Border Services Agency (CBSA) officer he stated he joined a FG group in XXXX 2017. Finally, in his testimony he stated that he joined the FG group on XXXX XXXX XXXX 2017. The RPD also noted a second issue where the Appellant provided inconsistent evidence. That is, in his BOC, the Appellant stated that SX was arrested in XXXX 2018. However, in the CBSA interview, he stated that SX was arrested in XXXX 2017. The RPD did not accept the Appellant's explanation for these inconsistencies that he made a mistake and that his memory is not good due to a previous head injury, and drew negative credibility inferences as a result. [8] The Appellant submits in this appeal that the RPD's negative credibility findings were over minor issues, and that his timeline is generally consistent.8 That is, regardless of the specific months when he joined a FG group and SX was arrested, in his evidence before both the Board and the CBSA, the span of time between the events was consistently five months. The Appellant submits he simply has difficulty recalling specific months.9 [9] Based on my independent assessment, I am not persuaded by the Appellant's argument that the inconsistencies are minor in nature, and that they can be explained on the basis that he struggles to remember precise months. First, the submission that he can remember timelines but not months is an arbitrary distinction and lacks any substantiation. Notably, the CBSA interview was only one day after he signed his BOC,10 which makes the inconsistency in the dates even more inexplicable. The events were also recent, having occurred only around a year or less before the date of the BOC. The only explanation the Appellant provided for the inconsistencies was that he has memory deficits due to an alleged head injury. However, as the RPD decision indicates, no medical evidence was proffered with regards to the alleged head injury or memory impairments. I note that in this appeal also there is no medical documentation to substantiate memory impairments. I find that these inconsistencies are material because the events of joining a FG group and SX being arrested are what led to the Appellant leaving China due to his concern that he could be persecuted for practising FG. I therefore do not find that the RPD erred by drawing a negative credibility inference from the inconsistency in the Appellant's evidence regarding when he joined the FG group and when SX was arrested. ii. When the Appellant hired a smuggler [10] The RPD found the Appellant's testimony with regards to hiring a smuggler was also inconsistent.11 Specifically, the RPD noted that CBSA interview notes indicated the Appellant's wife urged him to retain a smuggler in XXXX 2018, but at the hearing he testified that he hired a smuggler in XXXX 2018, and his BOC suggests he hired a smuggler in XXXX. The Appellant submits that the RPD erred in this finding because, either way, he reached out to the smuggler after SX was arrested.12 I am not persuaded by this argument. The Appellant simply pointing to the assertion that he reached out to the smuggler after SX was arrested does not address or reconcile the fact that he provided inconsistent dates in his evidence. As the Appellant has not provided an adequate explanation for this inconsistency, the RPD did not err by drawing a negative credibility inference from it. [11] The Appellant also submits the RPD erred by mistaking when he reached out to the smuggler with when he actually hired a smuggler.13 That is, the Appellant says he contacted the smuggler in XXXX 2018, but he did not actually hire the smuggler until XXXX 2018. I am not persuaded by this argument. The Appellant's narrative is written chronologically. In paragraph 9 the Appellant discusses the events of XXXX 2018 and includes the statement "a smuggler was hired to assist me to leave" [emphasis added]. In the following paragraph the Appellant discusses being interviewed by the PSB, which suggests that the interview occurred after the smuggler was hired, as mentioned in the preceding paragraph in the BOC. Finally, in an even later paragraph, the BOC states that, after the PSB interview "I urged the smuggler to speed up the process" [emphasis added] which further suggests that the smuggler had already been hired before the PSB interview. Overall, I find that the RPD did not err in concluding that the Appellant's BOC conflicts with his testimony, and even the CBSA notes, with respect to when a smuggler was hired, and that this undermines the credibility of his allegations and overall credibility. iii. Absence of documentation regarding SX's arrest [12] The Appellant submits the RPD erred by drawing a negative credibility inference based on an absence of proof that SX was arrested.14 Having read the RPD decision, I do not find that the RPD required the Appellant to provide evidence of SX's arrest. Therefore, I do not find that the RPD erred in the manner asserted. iv. TL's medical condition [13] Finally, the Appellant submits the RPD erred by drawing a negative credibility inference over what he asserts is a minor inconsistency regarding TL.15 That is, the RPD decision noted that the Appellant stated in his BOC that TL practised FG because he had neck pain, however the Appellant informed the CBSA officer that TL had low back pain.16 Based on my independent assessment, I do not find that this is a minor discrepancy. The Appellant indicates both in his narrative and in his testimony that he began to practise FG for his neck pain on the advice of TL because it had helped him with his own neck pain.17 That is, the Appellant's own decision to try FG is specifically related to TL's neck pain. Therefore, TL's neck pain is an important detail. When the inconsistency regarding TL's medical condition was put to him, the Appellant explained that the back pain was a by-product of the neck pain. I do not accept the Appellant's explanation. It was precisely the fact of neck pain which is important to the Appellant's claim, as discussed above and therefore the reference to low back pain is arbitrary. Finally, although the Appellant suggests that this inconsistency is "absurdly microscopic," I note that this is not the sole inconsistency in the Appellant's evidence, but rather another inconsistency in a series of them, as outlined above, the cumulative effects of which are significant. v. Summary on credibility [14] Overall, based on my independent assessment as outlined above, I do not find the RPD erred in its negative credibility inferences and that these undermine the credibility of the Appellant's claim and credibility overall. RPD did not err in finding that the Appellant's corroborative documents do not establish his claim i. The Appellant's documents from China do not corroborate his allegations [15] The RPD concluded that the Appellant's Administrative Punishment Decision was not genuine due to its credibility concerns, the fact that the Appellant has access to falsified documents, the lack of security features on the document itself and the availability of fraudulent documents in China.18 The Appellant submits that the RPD erred by failing to adequately consider his documentary evidence, relying on his historic use of false documents to make a negative credibility finding and on the general fact that fraudulent documents are available in China.19 [16] Based on my independent assessment, I find that the Appellant's Administrative Punishment Decision is not genuine. The Appellant was given notice of a recent Response to Information Request (RIR) in the National Documentation Package (NDP).20 This document indicates that an Administrative Penalty Decision would include the legal provision of the applicable law, as well as the offender's identification number.21 The Appellant's document lacks these two items. As well, according to the NDP, at the bottom of the document is a statement that: Three copies shall be made of this document. The person subject to the penalty and the unit executing the decision shall each receive one copy, and one copy shall be kept on record. For public security cases involving a victim, a photocopy shall be delivered to the victim. [17] Contrarily, the Appellant's document merely states "This copy is for the person punished." Also, according to the RIR, the Administrative Punishment Decision is to be signed by the offender to acknowledge its receipt. However, the Appellant's document does not bear his signature or any section where he is required to sign. Finally, according to the RIR, legal documents in localities are printed by them based on "nationally unified forms." Therefore, it is unlikely that any variation in the Appellant's Administrative Punishment Decision can be explained based on jurisdiction. The court has said "it may very well be reasonably open to the RAD or another decision maker to question the authenticity of a document based on very small or even microscopic differences between the document and an authentic counterpart. It is in the small or microscopic details where a forgery may well be exposed."22 The Federal Court has also determined that the RAD is not required to give an appellant notice of inconsistencies in their own documents. They are reasonably expected to be aware of the contents of the documents that they themselves provided.23 Overall, I do not find that the Appellant's Administrative Punishment Decision is genuine or that it corroborates his allegations that he practised FG in China or was interviewed by the PSB, and I give it no weight. [18] Regarding the Appellant's medical records concerning his neck pain, the RPD concluded that while these may establish that he had neck pain for which he sought medical attention, they are insufficient to establish that he started practising FG for that reason.24 I agree with the RPD that the possibility that the Appellant had a period of neck pain is not sufficient, in itself, to establish the rest of his claim, which is that he began to practise FG, and then SX was arrested, and then he was interviewed by the PSB himself and he had to escape the country. ii. The Appellant's FG documents from Canada are of limited probative value [19] Regarding the affidavit of the fellow FG practitioner in Canada and photographs of the Appellant engaging in FG activities in Canada, I also do not find that these are sufficient to establish that the Appellant is a genuine practitioner of FG. Regarding the photos, there is no evidence to suggest that there are any standards or minimum requirements for anyone to participate in the activities depicted in the photos. Regarding the affidavit, I find it is vague in detail and does not provide any additional information beyond what is already before the Board. For example, it appears that the only information that the affiant has relied upon in concluding that the Appellant is a genuine practitioner is that the Appellant attends at a study group and distributes leaflets. This information is already available to the Board as evidenced by the photos the Appellant provided. There is also no description in the Affidavit of other relevant details such as, for example, how often or how many times the affiant has encountered the Appellant practising FG, or any other information which would give insight into the affiant's claim that the Appellant is a genuine practitioner. [20] Overall, based on my independent assessment above, I find that the Appellant's corroborative documents regarding his practise of FG in Canada are of limited probative value and do not establish that he is a genuine practitioner of FG. RPD did not err in finding the Appellant's lacking knowledge of FG undermined the sincerity of his belief [21] The RPD concluded the Appellant did not demonstrate the level of knowledge of FG one can expect of someone, even with limited education, to have after practising regularly since XXXX 2017.25 The Appellant submits that the RPD erred by assessing his religious beliefs based on a knowledge test.26 [22] Based on my independent assessment, while I acknowledge jurisprudence in which the Courts caution against setting an unreasonably high standard in assessing a claimant's knowledge of their religion, I must also consider that FG, unlike some other religions, is a very knowledge-based practice. According to the Falun Dafa, The foundation of Falun Dafa consists of a body of fundamental knowledge essential for the task of undertaking proper cultivation towards higher stages of attainment. It comprises Master Li's teachings collected in a number of books, the most important of which being Zhuan Falun (Revolving the Law Wheel); and China Falun Gong is a good summary of principle and exercise recommended for the beginners. Much of the teachings are highly classified knowledge that are hitherto imparted exclusively from master to trusted disciples since antiquity in China.27 [23] Furthermore, in the Appellant's case, his evidence is that he specifically joined FG for the purposes of obtaining its benefits through active practise. Common sense and rationality therefore dictate that this would necessarily have required the Appellant to have acquired some knowledge of FG. Therefore, I find it was open to the RPD to test the genuineness of the Appellant's FG practise by asking knowledge-based questions. The RPD also did not set an unrealistically high standard of religious knowledge, having asked very basic questions such as why one sends righteous thoughts, and what is the purpose of exercises 2 and 4. [24] Regarding the RPD's actual findings, it quoted that when the Appellant was asked to describe why righteous thoughts were sent, he replied it was to "cleanse oneself external and internal. There must be more but I can't remember right now." The RPD noted that the stated purpose is actually to "reduce the evil beings' persecution of Dafa, Dafa disciples, and the people of the world." The RPD found that the Appellant's testimony regarding righteous thoughts was insufficient, vague, and only partially correct. The RPD also noted that the Appellant did not know the purposes of exercises 2 and 4, with him answering incorrectly or admitting he did not know.28 The Appellant submits that the RPD erred in its findings because his answers were consistent with that of a middle school graduate.29 [25] Based on my independent assessment, I am not persuaded by the Appellant's submission. Although the Appellant has a limited education and this may hinder him to a certain degree such as, for example with reading difficult texts, a limited education does not automatically mean that one lacks intelligence or that they are unable to learn or grasp new concepts. Rather, by the Appellant's evidence, he alleged that practising FG mostly resolved his neck pain30 thereby suggesting that he did have a grasp and well-implemented practise of FG. Accordingly, I do not accept the Appellant's submission that he could not provide a basic answer regarding the purpose of righteous thoughts because of his middle school education. Finally, regarding the Appellant's actual testimony, I note that his response for the purpose of sending righteous thoughts, as noted above, is also the same answer that he provided when asked what the purpose of exercise four was - to clean the body inside and out.31 This is incorrect according to the Falun Gong which states that the purpose of exercise four is to enable the human body's energy to circulate over large areas.32 [26] Overall, based on my independent assessment, I agree with the RPD that the Appellant did not demonstrate a level of knowledge of FG commensurate with his years of practise, and which does not convey that he is a sincere practitioner. RPD did not err by finding Appellant does not have a sur place claim [27] The RPD concluded it had not established that the Appellant's participation in FG activities in Canada escalated his profile such that he was, or would be, brought to the attention of the Chinese authorities, and that he is not likely to practise FG upon return to China.33 The Appellant submits that the RPD erred by assessing sur place based on its credibility findings and alleged sincerity of the Appellant's faith, and failing to consider the risk of persecution if the Appellant was returned to China.34 [28] Based on my independent assessment I do not find that the Appellant has a sur place claim. As discussed previously, the Appellant's account of practising FG in China and being interviewed by the PSB are not credible. Furthermore, the Appellant testified that he was not asked by the PSB to report to them from XXXX XXXX XXXX 2018 until he left China, that a warrant for him has not been issued and that, since XXXX XXXX XXXX 2018, the PSB have not contacted any of his family.35 Therefore, there is no reason to believe that he has come to the attention of the PSB in China such that they would have any interest in monitoring the Appellant's activities in Canada. [29] Secondly, regarding his activities in Canada, there are photos and an affidavit from a Canadian FG practitioner. However, the mere existence of these documents does not automatically establish that they may come to the attention of the authorities in China who might then persecute the Appellant as a result. The Appellant, who bears the onus of proof, has not provided any evidence or explanation to establish why he would have come to the attention of the Chinese authorities because of his activities in Canada and that he has a sur place claim as a result. [30] Finally, I agree with the RPD that the Appellant is not a genuine practitioner of FG and that the Appellant is unlikely to practise FG upon his return to China and therefore, he would not be at risk of persecution as a result. Notably, the Court has stated that a "high degree of proof is required for a sur place claim where other elements of the claim have been deemed not credible."36 I find that the Appellant has not satisfied this degree of proof, and I do not find he has established that he has a sur place claim. Summary of claim [31] Overall, I find that the RPD correctly concluded that the Appellant's allegation of being a genuine practitioner of FG is not credible, and that he does not face a serious possibility of persecution in China or, on a balance of probabilities, a risk to his life, or risk of cruel and unusual treatment or punishment, or a danger of torture. CONCLUSION [32] 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) K. Qureshi K. Qureshi December 24, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 2-3, 11. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 15-36. 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 37-52. 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 53-62. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 63-77. 7 Exhibit RPD-1, RPD Record, RPD Reasons, at paras. 22-29. 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 24. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 21. 10 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 34. 11 Exhibit RPD-1, RPD Record, RPD Reasons, at paras. 14-17. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 26. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 27. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 28. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 29. 16 Exhibit RPD-1, RPD Record, RPD Reasons at para. 24. 17 Exhibit RPD-1, RPD Record, Exhibit 2, BOC, at p. 15, para. 4 and RPD Hearing Recording, November 14, 2019, at 01:09:00. 18 Exhibit RPD-1, RPD Record, RPD Reasons at paras. 18-20. 19 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 37-52. 20 Letter to Appellant dated December 3, 2020 21 Exhibit RPD-1, RPD Record, Exhibit 3, NPD for China, (October 30, 2020), item 10.9, Immigration and Refugee Board of Canada, October 15, 2020 at pp. 2, 15, RIR CHN200326.E. 22 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064 (CanLII), at para. 31. 23 Konare v. Canada (Citizenship and Immigration), 2016 FC 985 (CanLII). 24 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 28. 25 Exhibit RPD-1, RPD Record, RPD Reasons at para. 30-36. 26 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 53-62. 27 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China, (30 October 2020), item 12.9, RIR CHN33180.EX. 28 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 33. 29 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 57. 30 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, at p. 15, para. 7. 31 RPD Hearing Recording, November 14, 2019, at 01:34:00 - 01:36:00. 32 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China, (30 October 2020), Item 12.7 at p. 55. 33 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 36. 34 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 63-77. 35 RPD Hearing Recording, November 14, 2019, at 00:43:00 - 00:47:00. 36 Mao, Chenchen v. M.C.I. (F.C., no. IMM-543-19), Favel, April 27, 2020, 2020 FC 542, at para. 45. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-00594 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