TB9-14795

RAD File / Dossier de la SAR : TB9-14795 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 30, 2020 Date de la décision Panel Maureen Carter-Whitney Tribunal Counsel for the person who is the subject of the appeal Diane B. Coulthard 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), a citizen of China, appealed a decision of the Refugee Protection Division (RPD), dated May 22, 2019, rejecting her claim for refugee protection. She argues that the RPD erred in assessing her claim and asks the Refugee Appeal Division (RAD) to allow her appeal and determine that she is a Convention Refugee. DECISION [2] The appeal is allowed pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA). I substitute my own decision that the Appellant is a Convention refugee. BACKGROUND AND PROCEDURAL MATTERS [3] The Appellant alleges that she fears religious persecution by the state authorities in China because she is a Falun Gong practitioner.1 [4] The RPD found that the Appellant's evidence was not credible and that she was not a Falun Gong practitioner in China. The RPD also found that the Appellant had not established a sur place claim. [5] On appeal, the Appellant submits that the RPD erred in its credibility findings, was selective in its review of the objective evidence, and imported erroneous credibility findings into its assessment of her sur place claim. [6] The Appellant has not submitted new evidence and, having admitted no new evidence, the RAD did not have jurisdiction to convene an oral hearing.2 Notice regarding any document or written submissions in light of the COVID-19 pandemic [7] On June 15, 2020, the RAD provided Counsel with a notice related to the COVID-19 pandemic. This notice advised Counsel that she had 30 days from the date of receiving this notice to submit any document or written submission in support of the appeal. She was also advised that any document or written submissions in support of the appeal would be accepted without an application and that the other requirements of Rule 29 and s. 110(4) continued to apply. Counsel has not submitted any document or written submissions in response to this notice. ROLE OF THE RAD [8] My role is to look at all the evidence and decide if the RPD made the correct decision.3 I have carried out my own independent analysis of the evidence to determine whether the RPD erred. ANALYSIS [9] For the following reasons, I find that the Appellant's evidence is credible overall, and that she has established a sur place claim in Canada. Credibility The RPD erred in making a negative credibility finding based on the summons document [10] The RPD found that, given the arrest of the Appellant's co-practitioners and the efforts of the Public Security Bureau (PSB) to arrest the Appellant, it was reasonable to expect that the PSB would have issued a further coercive summons or arrest warrant. The RPD further found that the absence of a coercive summons or arrest warrant undermined the genuineness of the summons and the Appellant's credibility. The RPD observed that the signature on the original chuanpiao summons was written over the stamp. [11] The Appellant notes the RPD's observation that the authorizing signature was written over the stamp but submits that documents from foreign jurisdictions are presumed to be genuine unless there is a valid reason to doubt their authenticity. She further submits that the RPD did not address some of the documentary evidence before it, which indicated that policing standards in China are inconsistent. [12] I have reviewed the summons in the documentary evidence,4 and find it to be consistent with a chuanpiao, a subpoena issued by a court.5 The RPD identified the summons as a chuanpiao, describing it as a non-coercive investigative summons requiring the Appellant to appear for interrogation. The objective country condition evidence indicates that a chuanpiao is served to require a party to criminal proceedings to appear in court, although witnesses frequently do not appear in court in China. While Chinese courts have subpoena powers, there is no legal penalty for not complying with a court's subpoena.6 Although a coercive summons may be served where there is non-compliance with a criminal summons,7 the country condition evidence does not speak to the consequences likely to follow non-compliance with a chuanpiao.8 [13] The RPD had the opportunity to examine the original chuanpiao and observed that the signature was written over the stamp. I defer to the RPD's observation, given that the original chuanpiao was presented at the hearing. However, the country condition evidence indicates that procedures for issuing summonses are not always followed in practice.9 Therefore, even if the signature was written over the stamp, I find that this on its own does not establish, on a balance of probabilities, that the summons is not genuine. [14] The RPD acknowledged that it might have erred in its observation and, therefore, provided an analysis of the summons in the alternative. The RPD did not note anything irregular in the chuanpiao itself but focused instead on the fact that the Appellant did not receive a coercive summons or an arrest warrant, in light of the Appellant's evidence that the PSB continued to come to her home to inquire about her whereabouts.10 [15] Regarding the RPD's expectation that the PSB would have used a coercive summons or an arrest warrant when the Appellant failed to report in response to the chuanpiao, the objective country condition evidence indicates that a public security authority "may" serve a coercive summons on a suspect who fails to appear in response to a summons;11 the language does not mandate that a coercive summons be issued in these circumstances. The country condition evidence further suggests that there is limited oversight of the police,12 and the Federal Court has held that policing standards are inconsistent in China.13 A coercive summons or an arrest warrant might be expected to follow a chuanpiao, where the suspect failed to appear. However, given the lack of mandatory language requiring the use of a coercive summons in this situation and given inconsistent policing in China, I do not find that the absence of a coercive summons or arrest warrant necessarily undermines the genuineness of the summons or the Appellant's credibility. [16] The basic rule in Canadian law is that foreign documents purporting to be issued by a competent foreign public officer should be accepted as evidence of their content unless there is a valid reason to doubt of their authenticity.14 On my assessment of the record, I have not found sufficient evidence to rebut the presumption that the chuanpiao is authentic. Therefore, I find that RPD erred in making a negative credibility finding based on the summons document. The RPD erred in basing a negative credibility finding on the lack of consequences for the Appellant's family [17] The RPD drew an adverse credibility finding from the fact that the Appellant's family members were able to carry on with their lives in China without facing consequences from the PSB. [18] The Appellant argues that the RPD erred in making a speculative finding given that the documentary evidence demonstrates inconsistent policing standards in China. [19] When asked if anything had happened to her husband or son after she left China, the Appellant testified that there had been no effect on her son or husband, other than her husband being told that he would be committing a crime if he did not report to the PSB should the Appellant came home.15 [20] For the reasons discussed above, I accept that policing standards are inconsistent in China and find nothing in the country condition evidence to indicate that the PSB would always make life difficult for the family members of an individual who has eluded them. Therefore, I make no adverse finding about the Appellant's credibility because her family members have continued their lives in China undisturbed by the PSB. I find that the RPD was speculating in making this adverse credibility finding. The RPD erred in making adverse credibility findings based on inconsistencies in the Appellant's evidence [21] The RPD found an inconsistency between the Appellant's testimony that she only showed her passport to obtain her boarding pass, and the country condition evidence, which states that a traveller's passport will be checked three or four times when flying out of an airport in China. The RPD also found that the Appellant should have had been able to recall her exit through the airport better. [22] The Appellant argues that it was not reasonable for the RPD to expect her to have a more precise recollection of her journey through the Beijing airport, given the extensive passage of time. She submits that the RPD erred in attempting to connect her ability to remember these details to whether she was wanted by the PSB and was a genuine Falun Gong practitioner in China. [23] The Appellant testified that, while departing from China through the Beijing airport, she showed her passport to get her boarding pass but did not show it at any other time. She stated she was following the smuggler and holding her passport when she boarded the aircraft, but no one checked it at that point.16 The Appellant's testimony is not consistent with information in the objective country condition evidence: one source states that a person departing from a Chinese airport may be requested to produce their passport four times, including at the boarding gate when boarding the airport; and another source indicated that passengers are required to show their passports at three locations.17 [24] However, I note that a substantial amount of time passed between the Appellant's travel out of the Beijing airport in 2013, and her 2019 RPD hearing. The RPD first heard and dismissed the Appellant's refugee claim in 2013. The RAD granted her appeal of that decision, also in 2013, and referred her claim back to the RPD, which heard the claim again six years later.18 Based on this lengthy period, I do not find this inconsistency in the Appellant's evidence to be significant. [25] I note that the Appellant did not raise, on appeal, two other credibility findings made by the RPD, relating to a discrepancy regarding evidence about how many times the PSB visited her husband, and an inconsistency concerning communications with her family members when she was in hiding. However, I have addressed these findings as they relate to my analysis of the Appellant's sur place claim. [26] The RPD found that the Appellant attempted to embellish her claim by testifying that the PSB made additional visits to her family in 2013 after she left China, given that she did not provide this evidence at her first RPD hearing or in an addendum to her Basis of Claim (BOC) narrative prior to her second RPD hearing. [27] When the RPD questioned her about this at the hearing, the Appellant testified that the immigration consultant did not ask for those details when she first prepared her BOC, and nobody suggested that she provide this information as an addendum to her BOC.19 I find that there is an inconsistency between the Appellant's BOC narrative and her oral testimony regarding the number of visits made by the PSB. However, I accept the Appellant's explanation that she was not advised to include or add this information, and I find that this is not a significant enough discrepancy to seriously undermine her credibility. [28] The RPD also questioned the Appellant about inconsistencies in her story regarding who communicated with her family members when she was in hiding at her cousin's house. In her BOC narrative, the Appellant stated that she herself phoned her husband from her cousin's house; she further stated that she asked her cousin to find out information about her co-practitioners and her cousin obtained news that two of the Appellant's co-practitioners had been arrested.20 At the hearing, the Appellant testified that when she arrived at her cousin's home, she asked her cousin to call her husband, and also asked her cousin to call her husband and her mother to find out about the co-practitioners rather than asking the cousin to gather the information directly. The Appellant explained, when asked about these inconsistencies, that she had not known there was a mistake in the BOC.21 The RPD found that, while not determinative, the Appellant's testimony in this regard had evolved and could not be assigned much, if any, weight. [29] Regarding these credibility findings, I note again the passage of time on the Appellant's testimony and the impact this may have had on her recollection of events. I find that, while there are inconsistencies between the BOC narrative and the Appellant's testimony, I do not find them to adversely affect her credibility overall, especially given the lengthy period of time since these events occurred. Sur place claim [30] The RPD imported its adverse credibility findings into its assessment of the Appellant's sur place claim. The RPD found that the Appellant's evidence in support of her sur place claim indicated that she attended Falun Gong activities in Canada but did not demonstrate that she was a genuine Falun Gong practitioner. The RPD further found that the Appellant's responses to its questions about Falun Gong were not correct. [31] The Appellant submits that the RPD imported its erroneous credibility findings into its assessment of the Appellant's sur place claim. She further submits that the RPD erred in affording little weight to her evidence on the sur place claim. [32] To establish a sur place refugee claim, the Appellant must demonstrate that she has a well-founded fear of persecution, such that there is a "reasonable chance" or a serious possibility, as opposed to a minimal or mere possibility, that she will be persecuted.22 The Federal Court of Canada has held that a sur place claim cannot be rejected due to a lack of credibility or an improper motive; instead, there must be an assessment of the genuineness of the claimant's religious practice to determine if she will be at risk if returned to China.23 I have come to different findings than the RPD on issues of credibility and, as a result, I have not imported any credibility concerns into my analysis of the Appellant's sur place claim. [33] In support of her sur place claim, the Appellant provided photographs of her engaged in Falun Gong activities in Canada, along with other practitioners.24 The Appellant also submitted letters of support from five fellow Falun Gong practitioners, one written in 2013,25 and the other four letters dated 2019.26 All of the letters are from individuals who state that they have practiced Falun Gong with the Appellant and believe her to be a genuine practitioner; each of these individuals provided a phone number where they could be reached. The writers of the 2019 letters included identity documents. At the hearing, the RPD asked the Appellant why she had not called anyone to be a witness regarding her practice of Falun Gong in Canada; she responded that she thought about asking someone to testify on her behalf but one fellow practitioner had moved to Vancouver and the others were at work on the day of her hearing.27 [34] I find the Appellant's explanation for not calling a witness to be reasonable. RPD hearings take place on weekdays and it may not be possible for fellow practitioners to take time off work to testify. I find nothing on the face of the letters of support to indicate that they are not genuine, and I accord them some weight in establishing the Appellant's practice of Falun Gong in Canada. [35] When questioning the Appellant about her practice of Falun Gong in Canada, the RPD asked what she knew about the Falun Dafa Association; the Appellant responded that she knew a bit about it and that one can practice Falun Gong freely in Canada.28 The RPD found that the Appellant had not properly answered the question about the Falun Dafa Association. While the Appellant did not provide a specific response, I do not assign that response much weight in assessing her sur place claim. [36] The Appellant also responded to questions from the RPD about the First Talk and the Third Talk.29 The RPD found that the Appellant's response to the question about the First Talk did not resemble its real meaning, and that she had left out an element of the Third Talk. I have analyzed the record and find that, while the Appellant did not address the points that the RPD expected, her answers reflected aspects of these talks. For example, with reference to the First Talk, the Appellant spoke about truth and compassion as standards to assess whether a person is good or bad, and about chi-gong. The First Talk addresses these concepts, discussing the sole measure of goodness and the traditional practice of chi-gong.30 The Appellant stated that the students are disciples and referred to the commitment to Buddhism in discussing the Third Talk. The Third Talk states that all who learn are students and includes a discussion of Buddhist energy practices and religious Buddhism.31 [37] Falun Gong is founded on a body of fundamental knowledge.32 The RPD member asked the Appellant to tell her about each of the talks; in her responses, the Appellant did not address the central messages anticipated by the RPD but she did demonstrate knowledge of their contents. The Federal Court jurisprudence cautions against adopting an unrealistically high standard of knowledge or focusing on a few points of error or misunderstandings to a microscopic level.33 I note that, while the Appellant has been practicing Falun Gong since 2012, she completed high school but has no post-secondary education.34 I find that the Appellant has demonstrated a reasonable knowledge of Falun Gong given her circumstances. [38] The Appellant testified about her own practice at home of Falun Gong and her practice with others at a park on Saturdays and Sundays.35 In response to questions from her counsel, the Appellant identified an exercise she was performing in the photographs and recited the corresponding verse. She also spoke about the importance of group practice of Falun Gong and the purpose of the exercises.36 I find that the Appellant's responses to these questions are consistent with information about Falun Gong in the objective country condition evidence,37 and demonstrate a knowledge of Falun Gong that would reasonably be expected of a person in her circumstances. Overall, I find that the Appellant has established, on a balance of probabilities, her active practice of Falun Gong since coming to Canada. [39] The Appellant testified that the practice of Falun Gong is very beneficial for her and she would not give it up if she returned to China.38 Having established that the Appellant is a genuine Falun Gong practitioner, I find that if she were to return to China, she would have to practise Falun Gong surreptitiously because she is known to the authorities, and this would constitute persecution. [40] I find that the Appellant has established, on a balance of probabilities, a sur place claim as a genuine practitioner of Falun Gong, and that she would face a serious possibility of persecution due to her Falun Gong practice if she were to return to China. State protection and internal flight alternative [41] I find that the presumption of state protection has been rebutted, as there would not be adequate state protection for the Appellant because she is a Falun Gong practitioner. The Chinese government views Falun Gong as an evil cult, has outlawed its practice, and has cracked down on practitioners of Falun Gong in China since 1999.39 [42] I further find, because the agent of persecution is the state, that there is no internal flight alternative for the Appellant since there is a serious possibility of persecution throughout China. CONCLUSION [43] The appeal is allowed pursuant to section 111(1)(b) of the IRPA. I substitute my own decision that the Appellant is a Convention refugee. (signed) Maureen Carter-Whitney Maureen Carter-Whitney September 30, 2020 Date 1 Exhibit RPD-2, Amended RPD Record, Exhibit 2, Basis of Claim (BOC) forms and narrative, pgs. 25-36. 2 Subsection 110(6), IRPA. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Exhibit RPD-2, Amended RPD Record, Exhibit 4, pgs. 90-91. 5 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 9.10: ?Samples of summonses and subpoenas. Immigration and Refugee Board of Canada. 18 October 2013. CHN104458.E. Pgs. 2, 5. 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 9.11: Circumstances and authorities responsible for issuing summonses/subpoenas; procedural law; whether summonses and subpoenas are given to individuals or households; format and appearance; whether legality can be challenged; penalties for failure to comply with a summons or subpoena?. Immigration and Refugee Board of Canada. 30 November 2012. CHN104188.E. Pgs. 3-4. 7 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 9.11: Circumstances and authorities responsible for issuing summonses/subpoenas; procedural law; whether summonses and subpoenas are given to individuals or households; format and appearance; whether legality can be challenged; penalties for failure to comply with a summons or subpoena?. Immigration and Refugee Board of Canada. 30 November 2012. CHN104188.E. Pg. 2. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 9.11: Circumstances and authorities responsible for issuing summonses/subpoenas; procedural law; whether summonses and subpoenas are given to individuals or households; format and appearance; whether legality can be challenged; penalties for failure to comply with a summons or subpoena?. Immigration and Refugee Board of Canada. 30 November 2012. CHN104188.E. 9 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 9.11: Circumstances and authorities responsible for issuing summonses/subpoenas; procedural law; whether summonses and subpoenas are given to individuals or households; format and appearance; whether legality can be challenged; penalties for failure to comply with a summons or subpoena?. Immigration and Refugee Board of Canada. 30 November 2012. CHN104188.E. Pg. 5. 10 Exhibit RPD-2, Amended RPD Record, Exhibit 2, BOC narrative, pg. 36; RPD audio recording of the hearing, May 6, 2019, at 46:35. 11 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 9.3: ?Regulations on summonses; information on the contents of summonses, including whether these indicate where a person must present his or herself, including street address (2014-October 2015). Immigration and Refugee Board of Canada. 20 October 2015. CHN105217.E. Pg. 1. 12 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 2.9: China: COI Compilation. Austrian Red Cross. Austrian Centre for Country of Origin and Asylum Research and Documentation. March 2014. Pg. 34. See also item 2.1: ?China. Country Reports on Human Rights Practices for 2017. United States. Department of State. 20 April 2018. Pgs. 8-9. 13 Chen v. Canada (Citizenship and Immigration), 2013 FC 311 (CanLII), para. 17. 14 Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587 (CanLII), para. 19. 15 RPD audio recording of the hearing, May 6, 2019, at 49:40. 16 RPD audio recording of the hearing, May 6, 2019, at 45:40. 17 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 3.4: ?Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, security checkpoints, and the use of facial recognition technology (2013-2014). ?Immigration and Refugee Board of Canada. 22 September 2015. CHN105049.E. Pgs. 4-6. 18 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, pgs. 17-18, paras. 9-12. 19 RPD audio recording of the hearing, May 6, 2019, at 46:35. 20 Exhibit RPD-2, Amended RPD Record, Exhibit 2, BOC narrative, pg. 36. 21 RPD audio recording of the hearing, May 6, 2019, at 25:25. 22 Sebastiao v. Canada (Immigration, Refugees and Citizenship), 2016 FC 803 (CanLII), para 13. 23 Li v. Canada (Citizenship and Immigration), 2012 FC 998 (CanLII), para. 24 to 26; Jin v. Canada (Minister of Citizenship and Immigration), 2012 FC 595 (CanLII); El Aoudie v. Canada (Minister of Citizenship and Immigration), 2012 FC 450 (CanLII); Hannoon v. Canada (Minister of Citizenship and Immigration), 2012 FC 448 (CanLII); Jia v. Canada (Minister of Citizenship and Immigration), 2012 FC 444 (CanLII); Huang v. Canada (Minister of Citizenship and Immigration), 2012 FC 205 (CanLII); Wang v. Canada (Minister of Citizenship and Immigration), 2011 FC 614 (CanLII); Yin v. Canada (Minister of Citizenship and Immigration), 2010 FC 544 (CanLII); Chen v. Canada (Minister of Citizenship and Immigration), 2009 FC 677 (CanLII). 24 Exhibit RPD-2, Amended RPD Record, Exhibit 4, pg. 94 and Exhibit 5, pgs. 124-133. 25 Exhibit RPD-2, Amended RPD Record, Exhibit 4, pgs. 92-93. 26 Exhibit RPD-2, Amended RPD Record, Exhibit 8, pgs. 215-227. 27 RPD audio recording of the hearing, May 6, 2019, at 53:30. 28 RPD audio recording of the hearing, May 6, 2019, at 52:47. 29 RPD audio recording of the hearing, May 6, 2019, at 54:40. 30 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, tab 12.12: ?Zhuan Falun. English Version. Falun Dafa. Li Hongzhi. 2018. Pgs. 7-34. 31 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, tab 12.12: ?Zhuan Falun. English Version. Falun Dafa. Li Hongzhi. 2018. Pgs. 62-92. 32 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 12.9: Falun Dafa (Falun Gong, Falungong); history, details of practice, organizational structures; treatment of practitioners; laws and practice regarding other non-recognized practices and religions?. Immigration and Refugee Board of Canada. 26 November 1999. CHN33180.EX. Pg. 1. 33 Zhang v. Canada (Citizenship and Immigration), 2012 FC 503 (CanLII), para. 12. 34 Exhibit RPD-2, Amended RPD Record, Exhibit 1, Schedule A Background/Declaration, pg. 46. 35 RPD audio recording of the hearing, May 6, 2019, at 50:56. 36 RPD audio recording of the hearing, May 6, 2019, at 1:22:16. 37 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 12.9: Falun Dafa (Falun Gong, Falungong); history, details of practice, organizational structures; treatment of practitioners; laws and practice regarding other non-recognized practices and religions?. Immigration and Refugee Board of Canada. 26 November 1999. CHN33180.EX. 38 RPD audio recording of the hearing, May 6, 2019, at 1:43:33. 39 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 21 December 2018, item 12.9: Falun Dafa (Falun Gong, Falungong); history, details of practice, organizational structures; treatment of practitioners; laws and practice regarding other non-recognized practices and religions?. Immigration and Refugee Board of Canada. 26 November 1999. CHN33180.EX. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-14795 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