TB8-18870

RAD File / Dossier de la SAR : TB8-18870 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 August 4, 2020 Date de la décision Panel T. Andrews 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), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) dated July 19, 2018, rejecting her refugee claim. [2] The Appellant argues that the RPD was wrong to find that she had no sur place claim. After conducting an independent analysis, I also find that the Appellant does not have a sur place claim. As such, the appeal is dismissed. BACKGROUND [3] Full details can be found in her narrative; however, the Appellant alleges that she is a Falun Gong practitioner who would be at risk in China as three of her fellow practitioners were arrested in XXXX XXXX, 2017. She heard of these arrests while she was in Canada as a tourist and she advanced a refugee claim shortly after receiving this information due to her fears that she will be persecuted by the Public Security Bureau (PSB) and authorities should she return. ROLE OF THE REFUGEE APPEAL DIVISION [4] The standard of review is correctness as established in Huruglica1, where the Federal Court of Appeal gives guidance in regard to the role of the Refugee Appeal Division (RAD). ANALYSIS Memorandum of Appeal [5] The determinative issue on Appeal is credibility and whether there is a sur place claim. [6] The Appellant argues that the RPD erred in its assessment of the sur place aspect of her claim and in basing its decision on minor discrepancies, that were irrelevant or peripheral to the claim. [7] No new evidence was presented under section 110(4) of the Immigration and Refugee Protection Act (IRPA) and the Appellant did not request a hearing under s. 110(6) of the IRPA. Findings related to Credibility The discrepancies in the RPD decision were relevant to the Appellant's Falun Gong practice [8] I find that the contradictions that were identified by the RPD were relevant to the Appellant's practice of Falun Gong in China and in Canada. [9] The RPD found that the Appellant failed to identify two of the arrested members as members of her own practice group during testimony and she had omitted the same information from her Basis of Claim (BOC) narrative, which undermined the credibility of her allegations that she was ever part of a Falun Gong practice group in China. [10] The RPD also found that the Appellant provided inconsistent information about the number of practitioners who were arrested and drew a negative inference from the amendment made to her narrative. [11] In addition, the RPD found that the Appellant provided inconsistent testimony at her hearing about the location of her practice group's meetings and that this further undermined the credibility of her allegations of having attended a Falun Gong group practice in China. [12] Finally, the RPD found that there was a pattern of misrepresentation in the Appellant's immigration forms, her refugee claim and previous Canadian Temporary Resident Visa (TRV) applications that were not reasonably explained and were damaging to the Appellant's credibility; particularly as the misrepresentations continued while advancing her refugee claim. [13] The Appellant argues that the RPD erred by considering discrepancies that were minor or peripheral to the central issues in the claim. She argues that it was not open to the RPD to draw a negative inference from the amendment to the BOC given its minor nature and that elsewhere in the BOC it referred to the arrest of three practitioners; that while it was open to the RPD to make negative inferences about inconsistent testimony surrounding the location of the group practice and the identities of the practitioners. This does not necessarily lead to the conclusion that she was not a practitioner in China and that the negative decision was based primarily on discrepancies between the TRV's, which, while of some relevance, did not exclude the possibility that she was a Falun Gong practitioner and were not central to the claim. [14] I have conducted my own independent assessment. I agree in part that it was an error to find that the amendment to the narrative warranted a negative inference. In paragraph two of the BOC narrative, it referred initially to the fact that two of her fellow Falun Gong practitioners had been arrested and for that reason she fears arrest. At the outset of the hearing, Counsel indicated that it should be amended to reflect that three practitioners were arrested. [15] I find that the narrative has to be read in its entirety. In paragraph twelve, it goes on to talk about the arrests of three different persons; XXXX XXXX (the person who introduced the Appellant to the practice), her cousin and another Falun gong practitioner. Given that the circumstance of the arrests of three persons were included in the original narrative, it follows logically that these are the fellow practitioners she referred to in the beginning of the narrative who were arrested and that it was a simple typographic error. [16] However, I agree with the RPD with respect to its findings regarding the inconsistencies about the location of the group practice and the identities of the practitioners, which the Appellant does not appear to contest. She only contests the conclusion that these findings led to; that she was not a Falun Gong practitioner in China, but failed to explain further what conclusion should be drawn and why. [17] I find that given her contradictory testimony about where the group practices were held and her inconsistent testimony about who was in her practice group, this establishes that her allegations about practicing in a group were untrue. According to her narrative, after practicing initially at home and then in the group this led to an improvement in her health, her illnesses were cured and her character elevated. It is also this group's members that were allegedly arrested and her fears stem from those arrests. However, given I am finding that the group did not exist, it follows that her testimony about what led to that practice is also not credible and these are not minor or peripheral matters. They go directly to the central issue in the claim, whether she was practicing Falun Gong in China as alleged or not. In my view, these findings alone are sufficient to establish that her allegations regarding her practice in China were not credible on a balance of probabilities. [18] The Appellant suggests that the discrepancies in the temporary resident visa applications were relevant, but not relevant to whether she was a Falun Gong practitioner. She argues that the RPD's negative decision was based primarily on these discrepancies, however she does not explain on what basis this conclusion is drawn. She points to paragraphs 31-41 of the decision. However, if the implication is that because a large number of paragraphs are devoted to explaining why the discrepancies within the TRVs are not reasonable, this means that the decision was primarily based on these findings, I disagree. I find that does not mean that the RPD primarily relied on these findings to discredit the Appellant's Falun Gong practice. [19] I note that the first areas of concern written about in the decision were the difficulties with testimony about the actual Falun Gong group practice in China as these were of primary importance. Further, the member took into account all of the information in the claim in coming to a decision about Appellant's lack of overall credibility. And, the evidence that the Appellant provided aside from that about the visa was not otherwise consistent. As previously indicated, there were problems with the testimony regarding the group practice in China. Hence, while peripheral, the findings about the temporary resident visas were certainly relevant to whether she was a credible witness overall and they only further served to support the conclusion already made regarding the central elements of the claim about her practice in China. The Appellant does not have a sur place claim [20] The RPD found that claimant demonstrated some knowledge of Falun Gong, but did not correctly describe how a person's Gong grows. [21] Little weight was given to the medical booklets as the Appellant's medical condition did not establish that she was a genuine Falun Gong practitioner in China or in Canada. [22] The RPD noted that the contents of the verification letter from a fellow practitioner were unsworn and that the panel did not have the opportunity to test the evidence given the author did not present himself as a witness. Despite this, the RPD accepted that based on the letter and photographs, that the Appellant has attended some Falun Gong activities in Canada. [23] However, after considering the entirety of the evidence, the RPD found that the Appellant had not established her core allegations on a balance of probabilities. The RPD also found that the credibility issues outlined, discrepancies around the practice group in China and the arrested individuals from her practice group, as well as the misrepresentations in her Schedule A and TRV applications were sufficient to rebut the presumption of truthfulness. [24] The RPD found that the Falun Gong knowledge displayed and the verification letter and photos were insufficient to establish her profile as a genuine practitioner and did not establish a sur place claim when weighed against the credibility issues, as participation in such activities after initiating a refugee claim on the basis of Falun Gong would be expected and the genuineness of her motivation to attend these events is at issue. [25] The Appellant argues that it was an error to reject the sur place aspect of the claim because the RPD found that she was not a Falun Gong practitioner in China. She argues that the RPD was required to assess her activities in Canada for the purpose of determining whether she had become a genuine Falun Gong practitioner in Canada. She submits that the RPD's assessment was perfunctory and influenced by its past negative credibility findings, that her Falun Gong knowledge was discounted without reasons and it was an error to give little weight to the letter from a fellow practitioner as there is no legal requirement that such documents be sworn or accompanied by the author's identification. [26] I find that the sur place aspect of the claim was addressed by the RPD. I have reviewed the evidence and the audio recording of the hearing and find that the member asked questions about the Appellant's Falun Gong practice in Canada and then after assessing all of the evidence with respect to her practice in Canada found that she was not a genuine practitioner. I agree that the finding was correct and find there was no error. [27] Contrary to what is presented in the memorandum, the member did not give little weight to the letter from a fellow practitioner. It noted some issues with the letter, but ultimately accepted that the Appellant was participating in said activities as described by the writer. However, I find that while a letter can speak to what the Appellant has done, a letter from a fellow practitioner does not establish that her practice was indicative of a genuine commitment to Falun Gong, which it is the member's job to assess and I place little evidentiary weight on this document as support for the Appellant's identity as a genuine Falun Gong practitioner. [28] Additionally, in my independent assessment, I find that the Appellant's actions demonstrate a lack of sincerity regarding the genuineness of her practice. The RPD found that the Appellant's contradictory testimony regarding the location and the persons in her practice were not reasonably explained and went to the core of her allegations. The RPD also found that various discrepancies within a number of temporary resident visa applications made prior to her departure from China and within her Schedule A were not reasonably explained, illustrated her lack of credibility and undermined her claim as a whole. These individual findings themselves were uncontested on Appeal with the exception of the one discussed above regarding the amendment to the BOC. Despite that one error, I have reviewed the evidence, I find no error with the remaining findings and come to the same conclusion as the RPD; that the Appellant was not a genuine Falun Gong practitioner in China. [29] I also do not find that she is sincere as since her arrival in Canada the Appellant has continued to be untruthful with authorities here about her intentions. She was untruthful with the RPD, the very authorities from whom she is seeking protection. She did not present herself as someone who sincerely became a Falun Gong practitioner after her arrival in Canada. Instead, she alleged to be someone who had learned Falun Gong from a friend and then attended a practice group in China to continue that practice, which was not true. I find that in these circumstances she has not shown her sincerity at any point along this process and the credibility concerns are such that despite showing Falun Gong knowledge, the sincerity of her beliefs now has not been sufficiently established on a balance of probabilities. [30] The Appellant's allegations were that her desire to commence the practice of Falun Gong took place as a result of circumstances, which occurred in China. She alleges that her practice in Canada is a continuation of the practice she began in China. However, the RPD found that she was not a genuine Falun Gong practitioner in China and I agree. Having insufficient, reliable and persuasive probative evidence of her genuine practice in Canada, I find, on a balance of probabilities, the Appellant is not a genuine Falun Gong practitioner, she affiliated herself with the practice for the sole purpose of supporting and bolstering her claim and she will on a balance of probabilities, not practice on return. [31] In my review of the record I also find that there was no persuasive evidence submitted/adduced at the RPD hearing or in her BOC form to suggest that the Appellant's participation in Falun Gong activities has come to the attention of Chinese authorities, or that she would be perceived to be a genuine Falun Gong practitioner upon return to China. She did not provide any evidence to indicate that she or her practice group in Toronto were ever observed, photographed, or approached by or faced harassment from anyone while engaged in Falun Gong activities, which the documents2 suggest can and does happen when there are such concerns. Hence, I find on a balance of probabilities, these activities in Canada would not place her at risk upon return. CONCLUSION [32] Having reviewed all the evidence in this appeal, I agree with the RPD, on a balance of probabilities, that the Appellant is not a genuine Falun Gong practitioner. I find that she is neither a Convention Refugee nor a Person in need of Protection as there is not a serious possibility that she would be persecuted because of her practice of Falun Gong nor would she be personally subject to a risk to her life or a risk of cruel and unusual treatment or punishment or danger of torture. [33] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (Signed) T. Andrews T. Andrews August 4, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157 2 National Documentation Package (NDP) for China 31 October, 2019, item 12.18 Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR), CHN105635.E Monitoring of Chinese citizens who practice Falun Gong (Falun Dafa) outside of China; consequences upon return to China (2013-September 2016); and version (20 December 2019), item 12.18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-18870 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