TB3-07539

RAD File No. / N° de dossier de la SAR : TB3-07539 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 18, 2013 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M. Lewis Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX XXXX, a citizen of China, has appealed a negative determination of the Refugee Protection Division (RPD) dated September 6, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. BACKGROUND [3] Mr. XXXX (the Appellant) alleges that he fears arrest by the Public Security Bureau (PSB) for his practice of Falun Gong. The Appellant alleges that he turned to Falun Gong practice in mid-July 2012 because of medical problems, which did not respond to traditional Chinese medicine. [4] The Appellant was introduced to Falun Gong by a friend. The Appellant began to practice at home by himself. After eight weeks, the Appellant saw some improvement in his health, and then the Appellant agreed to attend a group practice session in mid-September 2012. [5] The Appellant alleges that his group practice site was raided on February 16, 2013. The Appellant escaped and went to his wife's cousin's home to hide. The PSB searched the Appellant's home and questioned his wife on February XXXX, 2013. The PSB confiscated a book with telephone numbers and accused the Appellant of illegal Falun Gong activities. The Appellant was ordered to report to the PSB as soon as possible. The PSB continued to come to the Appellant's home to look for him and left a summons on February XXXX, 2013. The PSB also visited the Appellant's aunt's and uncle's homes. [6] The Appellant came to Canada with the help of a smuggler on May 6, 2013. The Appellant made his claim for protection on May 23, 2013. [7] The Appellant had a refugee determination hearing which spanned two sittings (July 19, 2013 and September 6, 2013). The Minister intervened1 by documents and focused on issues of credibility based on inconsistencies in the Appellant's employment history and residence between his claim documents and the information the Appellant provided in his US visa application. The Minister maintained that the inconsistencies represent an intent to mislead Canadian or US authorities which goes to the Appellant's credibility. [8] The RPD provided oral reasons dismissing the claim on September 6, 2013. In its decision, the RPD found that: 1. The Appellant did not provide reasonable explanations as to why he provided inconsistent information regarding his employment and his address to US visa officials, and therefore the Appellant was found to have knowingly provided false information to US authorities. This finding undermined the Appellant's credibility. 2. The Appellant has demonstrated that he will use fraudulent means and provide fraudulent information to obtain his goals; therefore, the RAD doubted the authenticity and placed little weight on the documents provided in support of the claim such as the PSB summons and the letter concerning the Appellant's Falun Gong practice in Canada produced by the Appellant's friend. 3. The RPD assigned a negative inference to the Appellant's inability to provide evidence of how he obtained the documents from China. 4. The Appellant did not testify in a straightforward and spontaneous manner. He provided indirect responses, and there were numerous, serious inconsistencies and contradictions in his testimony. Examples of these include: inconsistent evidence regarding his residence; the Appellant provided inconsistent testimony regarding the fact that he feared his father in China; the Appellant provided inconsistent dates for when he was first introduced to Falun Gong; the Appellant provided inconsistent evidence as to how long after he began to practice Falun Gong that he saw an improvement to his health; the Appellant provided inconsistent evidence regarding the snakehead's possession of his passport. The Appellant provided several explanations for the contradictions such as: he was nervous; he made a mistake; he did not remember; he did not listen to the question; or he had difficulty expressing himself. The RPD found that the explanations were not reasonable and that the concerns resulted in the Appellant being found not to be a credible witness. The RPD found that each individual discrepancy may not be determinative of the claim; however, when viewed cumulatively and in conjunction with the Appellant's willingness to provide false information to authorities and in conjunction with concerns with the Appellant's documentary evidence, the credibility of the Appellant's testimony and allegations was put in question. 5. The RPD found that the Appellant's responses to counsel's questions on Falun Gong were hesitant and obtuse, and he appeared to be unsure of his answers. When counsel asked the Appellant to give a demonstration of the exercise, the Appellant indicated that he only knew how to do the exercises while following. 6. The RPD found that the photographs of the Appellant's participation in Falun Gong were staged, as the Appellant could not explain who took the photos and why. [9] The Appellant's counsel submitted pleadings on November 6, 2013. In the pleadings, the Appellant's counsel alleged that the RPD made several errors including: 1. The RPD made erroneous credibility findings of fact including: the RPD had insufficient grounds to reject the Appellant's explanation regarding his US visa application; the RPD engaged in a microscopic finding related to the discrepancy in the Appellant's address; the RPD did not consider the Appellant's explanation for why there was a discrepancy related to how long he lived at XXXX XXXX XXXX XXXX; the RPD drew a negative inference based on a lapse in speech regarding when the Appellant was introduced to Falun Gong; the RPD mischaracterized the Appellant's testimony regarding his father and engaged in a simplistic analysis; the RPD demonstrated excessive zeal in its finding related to its assessment of the discrepancy concerning when the Appellant first began to see improvements in his health after beginning to practice Falun Gong. The RPD's overall finding of a lack of credibility was based on numerous incorrect findings, and therefore the RPD lacked substantial grounds upon which to conclude that the Appellant is less than credible. 2. The RPD erred in its finding that the Appellant changed his testimony regarding the snakehead and the Appellant's passport, as this was based on the RPD's misconstruing the Appellant's testimony. 3. The RPD erred by applying a standard that is too high to the Appellant's practice of Falun Gong. 4. The RPD erred in not making a clear determination regarding the Appellant's Falun Gong practice. [10] The Appellant did not provide new evidence. The Appellant requests that the determination be set aside or that the matter be referred back for redetermination or that a hearing be held under Rule 66 of the RAD Rules. The RAD noted that s. 110(6) of IRPA directs the RAD to hold a hearing if there is documentation referred to in subsection 3, which refers to new evidence from the Minister, and evidence admitted under s. 110(4) of IRPA. Given that the Appellant has not provided new evidence, the RAD dismisses the request for an oral hearing. STANDARD OF REVIEW [11] The RAD focused on two issues in assessing this appeal: a) Did the RPD err in its findings of fact that the Appellant was not a credible witness and that his allegations were not credible? and b) Did the RPD err in mixed fact and law by not making a clear finding regarding the Appellant's Falun Gong practice? [12] In the pleadings counsel argued that the RAD owes no deference to the RPD's findings. Counsel argued that in regard to the RAD, the RPD is not a specialized body, as the two divisions belong to the same tribunal. Counsel argued that the RAD is a full appeal in the sense that it is not limited to issues of law. The RAD has the broad power to substitute its own findings for that of the RPD and has the ability and expertise to determine the very same questions that were before the member at the RPD. [13] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [14] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [15] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,4 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [16] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." While the Divisions have many of the same powers, their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [17] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;5 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [18] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.6 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing7 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [19] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance, but it reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.8 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.9 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.10 [20] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".11 [21] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".12 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.13 [22] In the case at hand, the Appellant alleges that the RPD made errors of fact based on its assessment of the evidence and the Appellant's explanations and that the RPD erred in mixed fact and law in failing to make a clear finding related to the Appellant's Falun Gong practice. Given the analysis above, the RAD affords the RPD with deference and considered the reasonableness of the determination for the alleged errors of fact, and in the alleged error of mixed fact and law. As such, the RAD rejects the Appellant's position that the appeal should be assessed on a correctness standard. ANALYSIS OF THE MERITS OF THE APPEAL [23] As identified above, based on a review of all of the evidence and pleadings in the appeal, the RAD focused on two issues in assessing this appeal: a) Did the RPD err in its findings of fact that the Appellant was not a credible witness and that his allegations were not credible? and b) Did the RPD err in mixed fact and law by not making a clear finding regarding the Appellant's Falun Gong practice? RPD's Credibility Findings [24] The RPD found that, in his visa application, the Appellant deliberately misled US officials regarding his residence and occupation. Counsel argued that the Appellant provided a coherent and thorough explanation regarding the inconsistency, and therefore the RPD had insufficient grounds to reject the Appellant's explanation. The RPD therefore erred in finding that the Appellant knowingly misled US authorities. The RAD considered the totality of the evidence on the record regarding this issue. The RAD found that the Appellant's explanation (he used a tour company to fill the forms, and his friend signed the form on his behalf) was not reasonable, as it was not supported by the evidence. The Minister's evidence14 contradicted the Appellant's explanation that he was not involved in the visa application process. The fingerprint match, which was uncontested in the appeal, revealed that the Appellant had been fingerprinted in Beijing on January 20, 2009. The Appellant's being fingerprinted at the Embassy is evidence that the Appellant actively participated in the visa application process and is contrary to the Appellant's explanation that he was not involved in the process of obtaining his visa. Given this, the RAD finds that the RPD did not err in finding that the Appellant had misled US authorities, as his explanation did not conform to the documentary evidence attesting to the fact that he had been fingerprinted at the Embassy in Beijing. [25] Furthermore, the Appellant provided contradictory oral testimony about the visa application. Upon questioning by his counsel, the Appellant indicated that he provide the tour company with: the application fee, the processing fee, the passport, and nothing else. The RPD later asked the Appellant if he provided the company his address and his employer and he indicated yes. The Appellant confirmed that he provided the following address: XXXX Province, XXXX City; XXXX County; XXXX Town; XXXX XXXX XXXXVillage; no XXXX, and he indicated that he worked at home managing XXXX XXXX XXXX XXXX XXXX. When asked to explain why he did not indicate to his counsel that he provided his address and his employment to the tour company, the Appellant was unable to respond. The RPD and Appellant's counsel had to rephrase and pose the question on several occasions. Finally, the Appellant explained that he thought that he was asked what material things he provided to the travel/tour office. This explanation was not reasonable given that, at the hearing, the Appellant's counsel clearly asked the Appellant: "What did you tell the tourist company to get the visa? What information did you give them?" The Appellant's counsel went on to specify: "So what information did you give to the travel company to get this visa?" Given that the Appellant was asked specifically on at least two occasions what information he provided to the tourist company, and he did not indicate his address and employment information, the RAD finds that the Appellant's explanation was not reasonable. For the reasons highlighted above, the RAD finds that the RPD did not err in its finding that the Appellant provided misleading information to the US government and that this finding undermined the Appellant's credibility. [26] The RPD found that the Appellant's contradictory testimony regarding his addresses and his inability to provide a reasonable explanation for the contradiction undermined his overall credibility as a witness. In the pleadings, counsel argued that the discrepancy between XXXX and XXXX was minor. In addition, counsel argued that the Appellant "corrected himself without being prompted by stating that the address was in fact XXXX XXXX XXXX XXXX Village". The RAD reviewed the section of the recording concerning the Appellant's address and finds that counsel's characterization in the pleadings was not entirely accurate and represented a selective analysis of the questions and responses regarding the Appellant's addresses. The questions and answers regarding the Appellant's addresses went on for at least 10 minutes. The Appellant maintained that his wife lived at number XXXX for 6 years, and that he had lived at number XXXX for 29 years, except for when he had been out of town for a period of time. The recording did not reveal that the Appellant correct himself without being prompted. After approximately 10 minutes of questioning, the RPD asked the Appellant if he ever resided at XXXX XXXX XXXX XXXX Village. The Appellant then apologized and indicated that he was living at number XXXX instead of XXXX XXXX XXXX XXXX. The Appellant explained that he was nervous. The Appellant's correction came as a result of a direct question by the RPD. [27] Counsel argued that the negative inference was a microscopic examination of the evidence. The RAD finds that the RPD's assignment of a negative inference was not microscopic given that credibility was a central issue in the claim. The Appellant had already given contradictory testimony regarding his address in the US visa application. The Appellant maintained for over 10 minutes in testimony that he lived at number XXXX. It would be reasonable to expect that the Appellant, who was able to bring from his memory details of Falun Gong theory, to be able to remember the address where he lived for most of his life. Given that the Appellant's address was not a minor detail in his claim, and given that the Appellant only changed his testimony in response to a question by the RPD, the RAD finds that the RPD did not err in assigning a negative credibility inference to the Appellant's inconsistent evidence regarding his address in China. [28] The RPD assigned a negative inference to the Appellant's testimony that he lived at XXXX XXXX XXXX XXXX for three months; whereas, his Schedule "A" stated that it was for approximately three years. In the pleadings, counsel argued that the Appellant's explanation was that there was a mistake on the Schedule "A" and that the Appellant clarified the mistake without hesitation. Counsel argued that the RPD undertook a microscopic examination in drawing a negative inference to this inconsistency. The RAD noted that the Appellant's Schedule "A"15 appears to have been edited after the typewritten content was inserted. For example, responses to Questions 8 and 12 had been revised in writing, and the changes had the Appellant's signature. The Schedule "A" was translated by an interpreter who was present at the time the Appellant submitted the Schedule "A" (see Interpreter's declaration at page 4). With reference to Question 12, the Appellant changed his response to when he lived at XXXX XXXX XXXX XXXX Village from February 2013 to September 2009. The RAD finds that there is evidence on the record (corrections to Schedule "A" which were signed by the Appellant) to support a finding, on a balance of probabilities, that the Appellant's Schedule "A" was translated to him and that he had an opportunity to make changes to any irregularities in his Schedule "A". Given this, the RAD finds that the Appellant's explanation that there was an error in his Schedule "A" was not reasonable. The RAD finds that the RPD did not err in assigning a negative inference to the inconsistent testimony and evidence of the Appellant in this regard. Again, the RAD also finds that the Appellant's address before and after the time of the alleged persecution is not an insignificant fact, and therefore an inconsistency in his addresses is not a microscopic examination of the evidence. [29] The RPD found that the Appellant initially testified that he was first introduced to Falun Gong in June 2011 and then he changed his testimony to June 2012. Counsel argued that the Appellant corrected himself and that this was a result of his nervousness. The RAD finds that this argument could have been reasonable; however, a further review of the recording indicates that the Appellant made a similar error regarding the dates of his early Falun Gong practice. At approximately the 18:30 time mark during the September 6, 2013 sitting, the Appellant was asked questions concerning his Falun Gong practice. The Appellant was asked: "How long after your friend told you about Falun Gong did you start practicing?" The Appellant responded: "It was in 09 -no, it was in 12, it was July 2012". The Appellant's allegations indicated that he had begun practicing Falun Gong in July 2012. The RAD finds that it was unreasonable for the Appellant not to provide consistent testimony about when he first began to practice Falun Gong given that this was the basis of his claim and given that it was approximately one year before his hearings. The RAD finds the fact that the Appellant provided inconsistent evidence regarding the time he began to practice Falun Gong on two occasions, supported the RPD's finding that the inconsistency undermined the Appellant's credibility as this amounted to more than a single slip of the tongue. [30] Counsel argued that the RPD mischaracterized the Appellant's testimony regarding his fearing his father in China. The RAD finds that the Appellant's fear of his father was not central to the claim and therefore any finding of the RPD regarding this was not determinative, and it did could not contribute to a particular or general credibility finding. [31] The RPD assigned a negative credibility inference to the fact that the Appellant provided his passport to the snakehead after he had been in Canada for two days. Counsel argued that the RPD misconstrued the testimony regarding taking the passport away, and there was not a contradiction. The RAD reviewed the portion of the recording that dealt with this issue, including the portion of the recording before and after the section cited by counsel. Before the portion cited by counsel, the RPD asked the Appellant where his passport was now, and he responded that the snakehead took it away. The RPD then asked the Appellant: "When did the snakehead take it away", and the Appellant responded the second day after I arrived in Canada. The RPD then asked why the Appellant would surrender his genuine passport to the snakehead after he was already in Canada, and the Appellant testified that he had to listen to the snakehead and comply with what he was told. The RPD went on to request a clarification from the Appellant as to why he would give the snakehead the passport. The Appellant then responded that the snakehead was in possession of the passport since they arrived in Canada. The Appellant testified that he had asked the snakehead for the passport and she did not give it back to him. [32] The RAD finds that a review of the recording indicates that the Appellant did not "explain coherently without hesitation that the passport had remained on her person but was only physically taken away the second day after he arrived" as argued in the pleadings. The Appellant only testified that the snakehead kept his passport the entire time in response to questioning by the RPD regarding why he would give up his passport after he was safe in Canada. The Appellant's initial response to the questioning by the RPD regarding why he would surrender the passport to the snakehead was to respond that he did not understand anything here and that he had to listen to whatever the snakehead said and to supply whatever the snakehead wanted. Given a review of the entirety of the interchange, the RAD finds that the Appellant did not testify without hesitation as argued by counsel in the pleadings. In addition, given the reasonable finding that the Appellant had deceived US officials, and the reasonable findings regarding the Appellants' credibility (highlighted above), the RAD finds that it was reasonably open to the RPD to assess the Appellant's testimony in light of the overall testimony and to find that the Appellant's testimony regarding his passport was not credible. [33] The RPD found that the photos of the Appellant's participation in Falun Gong exercise were staged, as the Appellant could not provide testimony as to who took the photos and why. This finding was not challenged in the appeal. A review of the recording of the hearing also revealed that the Appellant changed his testimony during the second sitting regarding the occasions that the photos were taken at Queen's Park. He indicated that the photos were taken on the same day; however, he then changed his testimony to say that they were taken a week apart. When asked for an explanation, the Appellant indicated that he did not remember. It is unreasonable for the Appellant not to be able to provide consistent testimony regarding the evidence that he himself presented in support of his claim. Given that the claim was based on the Appellant's allegations of alleged genuine Falun Gong practice, it would be reasonable for the Appellant to provide clear, decisive evidence to support this allegation, especially regarding who, when, and why photos of his practice were taken. Given the concerns with the Appellant's testimony regarding the photos, and given that this assertion was not contested in the appeal, the RAD finds that the RPD's findings that the photos were staged was reasonable. [34] The RPD doubted the authenticity of the Appellant's documents in support of his Falun Gong involvement, given that the Appellant discarded the envelope or box in which the documents came, and the Appellant could not remember when the documents were requested or received. The RPD also found that the documents were not authentic, given that the Appellant had demonstrated that he will use fraudulent means in order to obtain his goals, e.g., US visa. The RAD finds that the RPD's finding concerning the authenticity of the documents was reasonable, given the overall finding that the Appellant was not credible, and his history of providing fraudulent evidence to attain his goals. The Appellant was represented by counsel when he allegedly received the documents from China (sometime in June), and it was unreasonable that he would not be informed to retain proof of how the documents came from China and when. The RAD further noted that fraudulent documents are available throughout China.16 Given the totality of the evidence and the finding that the Appellant was not a credible witness, the RAD finds that the RPD's finding that the documents from China were not authentic was reasonable. [35] The RPD noted in its reasons that the Appellant could only do the exercises while following and that there may be deviations if he attempted to teach the exercises. Counsel argued that the RPD was holding the Appellant's knowledge against a too-high standard. The RAD noted that the Appellant's ability to perform exercises was not a question of knowledge. The Appellant alleged that he had been performing the exercised since July of 2012, including practicing in Canada since May. The Appellant alleged that he obtained health benefits from his practice. Falun Gong has only five sets of exercises, which are rudimentary and simple to learn. The RPD was not provided with evidence of any psychological or cognitive problems of the Appellant, which would impede his ability to perform the exercises accurately. The Appellant was able to provide appropriate responses to questions that dealt with his knowledge of Falun Gong theory. The Appellant testified that he was unsure of his ability to perform Falun Gong exercises correctly. Given that the Appellant alleged that he had practiced Falun Gong regularly for over one year, given the simplicity of the exercises, and given the lack of evidence to attest to any problems or issues which could interfere with the Appellant's ability to perform the exercises, the RAD finds that the RPD's finding that the Appellant was unsure of his answers regarding his practice was reasonable. The RAD finds that the RPD did not hold the Appellant's behaviour against a too-high standard, as argued by counsel. [36] The RPD found that the Appellant did not testify in a straightforward and spontaneous manner and that his responses were often indirect. The RAD listened to the recording of the hearings and concurs with the RPD. The Appellant was unable to provide spontaneous responses to seemingly simple questions such as his address, the process he went through to apply for the US visa, and regarding the photos of his Falun Gong practice in Toronto. The RAD therefore finds that the RPD did not err in its finding that the Appellant was not a credible witness overall given that this finding was based on an assessment of the Appellant's testimony and concerns with the testimony that were clearly identified and assessed on the record. [37] The RPD made a general finding that the Appellant was not credible as a witness and in relation to his allegations of his Falun Gong practice based on contradictions and concerns with the Appellant's testimony and evidence. As outlined above, the RAD finds that the RPD made findings that were reasonable, as they fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. As such, the RAD finds the RPD's findings and overall determination were reasonable. Findings Regarding Falun Gong Practice [38] Counsel argued in the pleadings that the RPD failed to make a clear determination regarding the Appellant's Falun Gong practice which is an error. The RAD noted that the RPD made clear findings in its reasons which apply to the Appellant's practice of Falun Gong. The RPD found it difficult to accept the claimant as credible based on his attempt to mislead the US government related to the visa application. The RPD found that the Appellant has demonstrated that he will use fraudulent means and provide fraudulent information in order to obtain his goals. The RPD found that the Appellant did not testify in a straightforward and spontaneous manner and that his responses were often indirect. The RPD found that the Appellant was not a credible witness based on contradictions in his testimony that were not reasonably explained. The Appellant was found to be lacking in credibility overall. [39] The RPD makes a finding at lines 25 - 26, on page 4, of the reasons: "The panel therefore does not accept the claimant's assertion that he is a member of the Falun Gong who faced problems in China." The reasons went on to assess the Appellant's evidence regarding his practice in Canada, e.g., the letter from the Appellant's co-practitioner, his responses to Falun Gong questions and exercises, and the photographs which the RPD found not to be credible. [40] The RAD finds that the RPD made clear findings regarding the Appellant's overall credibility as well as his claim of Falun Gong in China, and his practice in Canada. As such, the RAD finds that the RPD did not err in failing to make a clear determination regarding the Appellant's Falun Gong practice. SUMMARY AND DETERMINATION [41] Based on the totality of the evidence before it, the RAD finds that the RPD's findings that the Appellant was not a credible witness overall and that his allegations of being a genuine Falun Gong practitioner in China and in Canada were not credible were reasonable. The RAD also finds that the RPD's finding that it did not have sufficient credible or trustworthy evidence upon which to make a favourable decision was also reasonable. [42] Based on the totality of the evidence, the RAD confirms the RPD's determination that the Appellant is not a Convention refugee nor is he a person in need of protection as per s. 111(1)(a) of IRPA. [43] The RAD dismisses the appeal. (signed) "Daniel McSweeney" Daniel McSweeney December 18, 2013 Date 1 RPD's Record, Minister's Notice to Intervene dated July 9, 2013, pp. 86 - 98. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 IRPA, s. 110 (1). 6 IRPA, s. 107. 7 IRPA, s. 170. 8 IRPA, s. 110(3). 9 IRPA, s. 110(4). 10 RAD Rule 57. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 14 RPD's Record, Minister's evidence, pp. 86 - 98. 15 RPD's Record, Schedule "A" - pp. 29 - 32, with Question 12 on p. 31. 16 RPD's Record, Exhibit 3, Response to Information Request (RIR), Number CHN103134.E, 24 June 2009. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-07539