TB9-23858

RAD File / Dossier de la SAR : TB9-23858 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 September 4, 2020 Date de la décision Panel Linda Hart Tribunal Counsel for the person who is the subject of the appeal Nkunda I Kabateraine Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the Appellant) is a citizen of China. His claim for refugee protection, based on his practice of Falun Gong, was rejected by the Refugee Protection Division (RPD). The Appellant argues that the RPD erred in assessing his claim, and asks the Refugee Appeal Division (RAD) to allow his appeal and determine that he is a Convention Refugee. Alternatively, the Appellant requests that the matter be referred back to the RPD for redetermination. DETERMINATION [2] Pursuant to paragraph 111(1)(c) and subsection 111(2) of the Immigration and Refugee Protection Act (IRPA), I refer this matter back to the RPD for re-determination by a differently constituted panel. This appeal is allowed. BACKGROUND [3] The Appellant alleged before the RPD that he fears persecution from Chinese authorities due to his identity as a Falun Gong (FG) practitioner. He was introduced to FG in August 2016 by a friend. At the time of introduction, he was aware that FG was viewed by the government as an evil cult. He began practicing with his friend in September 2016, and joined the group practice in November 2016. He began to hear reports of FG practitioners being arrested and detained, and investigated ways to leave China. He contacted a smuggler who assisted with obtaining a visa, and the Appellant left China for Canada on XXXX XXXX, 2018. In Canada, he has participated in Falun Dafa organized activities and group practices. [4] The Appellant's claim for refugee protection was heard by the RPD on August 14, 2019. In a decision dated August 14, 2019, the RPD found that he had not credibly established that he was a genuine practitioner of Falun Gong. This finding was based on the Appellant's failure to claim protection while on a visit to Europe four months after he became a practitioner of Falun Gong and his re-availment back to China; that he does not possess a copy of the book Zhuan Falun; his failure to contact the Falun Dafa Association; and his incorrect knowledge of two Falun Gong concepts. [5] On appeal, the Appellant argues that the RPD erred in making its negative credibility findings. ANALYSIS Re-Availment [6] The RPD found it was more likely than not that the Appellant returned to China from his visit to Europe in XXXX 2017, because he was not a practitioner of Falun Gong at that time. The RPD considered that he had alleged that at the time he went to Europe he was a committed Falun Gong practitioner, was aware that Falun Gong was considered an evil cult by the government and that practitioners could be arrested and persecuted. The RPD rejected his explanations that in his mind he was "not ready yet", as he had only been practising for less than four months, had not spoken to his family about remaining outside China, and was not yet that determined about the practice of Falun Gong. The RPD found that the explanations were inconsistent with his initial testimony that he was committed to Falun Gong by XXXX 2017 when he went to Europe. [7] The Appellant argues that the RPD erred by failing to take into consideration that he faced no immediate risk from Chinese authorities at the time he visited Europe and only became fearful when he heard of some Falun Gong practitioners being arrested and detained. He submits that he had only been practising Falun Gong for a very short period when he visited Europe and his commitment at that time was questionable. [8] I have reviewed the record and note from the Appellant's Basis of Claim (BOC) that he began the practice of Falun Gong in September 2016 and joined his friend's group practice at the end of November 2016. He was aware that precautions were taken during group practice, as the government had banned the practice of Falun Gong in China. At the time he went on vacation to Europe with others from his workplace, he had been practising with the group approximately 1 1/2 months. He stated at the hearing that he had not discussed the option of not returning to China with his family and was not that committed to Falun Gong yet. [9] The Appellant has argued that there was no imminent danger for him when he returned to China from his European trip. I note that the Appellant stated in his BOC that he began to think about leaving China, as there was always a slight feeling of fear at the back of his mind and there were reports of other Falun Gong practitioners being arrested and detained. However, it is not stated in the BOC exactly when he began to hear about these arrests, and he was not asked about this at the hearing. Given that it was this information that compelled the Appellant to decide to flee China and come to Canada, I find that I am unable to assess the Appellant's state of mind at the time he travelled to Europe in regard to his fear of return. I additionally note that, at the time the Appellant went to Europe, he had a wife and young child, as well as elderly parents who were in poor health, all who still resided in China. [10] I have considered the lack of clarity regarding when the Appellant began to hear about arrests in China; that he had only been practising with the group for approximately one and 1/2 months at the time he travelled to Europe; and that he had not discussed leaving China permanently with his wife, child and elderly parents. I find that the RPD erred in its finding that the Appellant was not a practitioner of Falun Gong at the time he travelled to Europe in January 2017, given his personal circumstances and the evidence in the record. I find that the RPD did not have sufficient information necessary to make that finding. Falun Gong Books [11] The RPD found that the Appellant had not reasonably explained why he possesses no Falun Gong books of his own to deepen his understanding of Falun Gong, given his testimony that knowledge is a very important part of Falun Gong. The RPD considered that he had been practising Falun Gong for three years at the time of the hearing and had never possessed the book Zhuan Falun personally, despite being in Canada, where he would be free to purchase and own the book. The RPD rejected his explanations that he had not found the avenue to get the book so far and that the other practitioners in his group in Canada also did not own the book. The Appellant was asked whether his group leader had the book and he replied that he got it from the Falun Dafa Association, but changed his answer to say that he had not asked his instructor where he had obtained his book. [12] The RPD found that the Appellant's piecemeal approach to Falun Gong was not credible, as he is a highly educated individual who was clearly resourceful enough to find an agent, travel to Europe, retain counsel and advance a refugee claim. The RPD found that it was illogical that he would not have the means to obtain his own copy of Zhuan Falun or any other book on Falun Gong. The RPD found, on a balance of probabilities, that the Appellant does not possess Falun Gong books of his own because he is not true and sincere practitioner in Canada or China. As Falun Gong is a knowledge-based practice, the RPD found that his actions cast serious doubts on his allegations that he is a true practitioner. [13] The Appellant argues that the RPD did not refer to any documentary evidence stating that genuine Falun Gong practitioners are required to have physical copy of Falun Gong books in their possession. He submits that, while Falun Gong is knowledge-based, it is common knowledge that Falun Gong books and other materials are readily available on the Internet. [14] The Appellant submits that the key point was whether or not he studied Falun Gong and that the possession of the books was an irrelevant consideration. He submits that he studied Falun Gong theory in a group setting. [15] I have reviewed the record and agree with the RPD that the Appellant's failure to acquire Falun Gong books is suspect, given his alleged commitment to this knowledge-based practice and his background. However, the Appellant did testify that he studies the philosophy regularly with a group in Canada every week for approximately two hours. This is confirmed in the letter from a fellow practitioner.1 I find that his argument, that there is nothing in the documentation regarding a Falun Gong requirement to possess the Master's books, has merit. While the Master has emphasized the importance of the study of the philosophy,2 there is no indication that he requires his followers to own his books. [16] I find that the RPD erred in finding that the Appellant is not a genuine practitioner in Canada or China based on his lack of possession of the books of the Master. While it is questionable that the Appellant would not at least acquire the book Zhuan Falun, which is the most important of the Master's books, I find that the RPD has made a plausibility finding that is not grounded in the documentary evidence. He has acknowledged the importance of study and he has provided evidence that he does regularly study the philosophy, which the RPD did not consider probative when making its finding. Falun Dafa Association [17] The RPD found that the Appellant had not approached the Falun Dafa Association, to either assist him in obtaining a copy of the book Zhuan Falun or to lend support for his refugee claim, because he was not a genuine practitioner of Falun Gong. The RPD found that his explanation that he did not have the phone number was not reasonable. [18] The Appellant argues that failure by an alleged Falun Gong practitioner to seek assistance from the Falun Dafa Association is not a ground for rejecting the refugee claim. [19] I agree with the RPD that not having the phone number was not a reasonable explanation for failing to contact the Association, as there are many avenues for discovering the contact information, including the Internet. However, the Appellant additionally explained that that he did not seek out the organization because he had his group practice and the people he studied with. I find that there is insufficient information in the record regarding membership in the Falun Dafa Association as a requirement or norm amongst that community, to support a negative credibility finding based on failure to contact the Association. The documentary evidence states that the Association does not keep membership lists and that there is no information on the procedures for becoming a member.3 I find that the RPD erred by concluding that the Appellant did not contact the Association because he was not a genuine practitioner, as there is insufficient evidence in the record regarding the requirements and norms of membership. Falun Gong Knowledge [20] The RPD found that the Appellant had limited knowledge about Master Li's teachings on fasting and anointment and that this cast further doubt on his identity as a Falun Gong practitioner. The RPD considered his level of education and found that he had not established on a balance of probabilities that Falun Gong was a belief system, or way of life for him. The RPD concluded that he had gathered, memorized and studied some information about Falun Gong since arriving in Canada, but that he would not join a Falun Gong practice group in China if returned there. [21] The Appellant argues that the RPD erred by subjecting his knowledge of Falun Gong to a microscopic examination, and failed to assess the sincerity of his beliefs. He argues that his failure to give answers expected by the RPD about two concepts was not sufficient to justify a finding that he was not a genuine practitioner, as Falun Gong philosophy is about a lot more than those two concepts. The Appellant submits that the Federal Court has imposed a very low standard on refugee claimants to demonstrate Falun Gong knowledge as a requirement for establishing identity. [22] I have considered the country conditions documentary evidence indicating that Falun Gong is a knowledge based practice.4 I agree with the RPD that there is an expectation that the Appellant would have some knowledge of the philosophy of Falun Gong. I have listened to the recording of the hearing and I note that the Appellant responded to questions about other areas of Falun Gong philosophy including truth, the Celestial Eye, karma, attachments, loss and gain, jealousy, eating meat, and the heavenly circuit. The RPD then went on to ask the Appellant about fasting and anointment. He had some knowledge about the concepts, but this knowledge was not completely accurate and in the case of fasting, was incomplete. When asked why he did not know what the Master had said about fasting, he replied that he was nervous. When asked why he had taken a while to respond to questions about anointment, he replied that he had not fully understood the question. [23] I have considered that the Appellant was able to respond easily to questions about several concepts of Falun Gong, such as attachments and truth. I note that the RPD continued to ask questions about Falun Gong philosophy until the Appellant provided incomplete/incorrect responses to the queries about fasting and anointment. The RPD then stopped asking questions. [24] When writing about its concerns regarding the Appellant's knowledge in the decision, the RPD concluded that the Appellant did not have a true grasp of, connection, or commitment to Falun Gong. I disagree. I do not find that the problems with the Appellant's testimony about fasting and anointment were sufficient to rebut the totality of the other testimony he provided about Falun Gong philosophy. Although the RPD had the expectation that the Appellant would know all of the concepts contained in the book Zhuan Falun, I find that the basis for that expectation was insufficiently grounded in the evidence. The RPD considered that the Appellant had 16 years of education and had been studying the philosophy of Falun Gong with a group for approximately 2 1/2 years at the time of the hearing. However the RPD did not question the Appellant regarding how much of the book Zhuan Falun he had studied or understood. I note that this book contains nine talks with five to ten subjects per talk5, and that the writing is sometimes complex and difficult to understand. Furthermore, the Appellant's postsecondary education was in finance, which would not necessarily have accustomed him to the sort of writing in Master Li's books. The RPD asked no questions about the Appellant's practice of Falun Gong in China, and therefore did not ascertain how much his group studied Falun Gong philosophy and what specifically was studied. [25] I find that the RPD erred in finding that the Appellant did not have a true grasp of or commitment to Falun Gong from his inability to answer questions about two of the many concepts written about by the Master. CONCLUSION [26] I have found that the RPD erred in its assessment of the Appellant's Falun Gong identity. I find that the RPD decision is insufficiently fulsome to support the conclusion that there is less than a mere possibility the Appellant would be persecuted should he return to China. [27] I am, however, unable to substitute a positive decision as the Appellant was not questioned at the hearing about his practice of Falun Gong in China. Given his allegation that his practice of Falun Gong in Canada was based on a continuation of his alleged practice in China, I find that it was necessary for the RPD to assess the credibility of the events in China. The Appellant was not questioned at the hearing about any aspect of his practice in China or the present circumstances of his co-practitioners in China. [28] Given the errors noted earlier and that the record is insufficiently fulsome to support a positive determination, I allow this appeal and remit the matter to a newly constituted panel of the RPD for re-determination. [29] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently constituted panel. (signed) Linda Hart Linda Hart September 4, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 5. 2 Ibid., Exhibit 3, National Documentation Package (NDP) for China 28 June 2019, item 12.9. 3 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China 28 June 2019, item 12.19. 4 Ibid. 5 Ibid., item 12.12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-23858 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français