TB5-06128

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 File No. / N° de dossier de la SAR : TB5-06128 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 September 15, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jeffrey L. Goldman 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 ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX, is a citizen of China, and appeals a decision of the Refugee Protection Division (RPD) dated March 25, 2015, rejecting his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD or that the RAD refer the matter back to the RPD for reconsideration. DETERMINATION [2] Pursuant to section 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] The Appellant fears returning to China because he alleges that he is a Falun Gong practitioner. The Appellant alleges that he was employed as a XXXX in China and in May of 2013 was diagnosed with periarthirtis. A year later, in May of 2014, a friend of the Appellant, XXXX, told the Appellant that he had been practicing Falun Gong and suggested that the Appellant should join to see if he would receive any benefits for his shoulder. However, the Appellant advised XXXX that he should not continue with Falun Gong because the Appellant was aware that it is banned in China. However, at the end of May 2014, through the insistence of XXXX, the Appellant decided to join Falun Gong. [4] The Appellant alleges that he practiced Falun Gong at home for approximately two months after which he decided to join XXXX Falun Gong group on August 1, 2014. On November 2, 2014 the Appellant alleges that the Public Security Bureau (PSB) raided the Falun Gong group which he was attending. The Appellant went into hiding and two days later he was told by his wife that the PSB had gone to his house ordering that he should report to the police. When he did not report, the PSB returned to his house and left a summons. At the end of January he was informed by the smuggler that his Canadian visa was ready and he left China using his own valid passport on February 15, 2015. Once he arrived in Toronto, he was advised by the smuggler that he no longer needed his own valid passport and gave it to the smuggler. However, the Appellant made a photocopy of the first page of his passport which he submitted to the Immigration and Refugee Board (Board).1 ROLE OF THE RAD [5] The RAD finds that the recent Federal Court decision in Huruglica2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [6] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi3 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [7] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [8] The RPD found that the determinative issue in this claim is credibility. The RPD found that the Appellant was not a credible witness and that the Appellant's testimony was not credible. [9] The Appellant submits that the RPD erred in its credibility findings and misconstrued the facts and the law in this case. He argues that his testimony was straightforward, consistent and unequivocal. Credibility The November 2014 PSB raid [10] The Appellant testified that his Falun Gong group was raided by the PSB in November of 2014. He stated that lookouts warned the group that strangers were coming. If the Appellant's testimony with respect to the raid would have stopped at this point, there would not have been any credibility issues. However, the Appellant proceeded to provide particulars of the raid and stated that the lookout warned them that there were two cars at the entrance of the road and that six or seven people were approaching their place. The RPD member asked the Appellant how he had become aware of such particulars. At first the Appellant was unable to explain how he had come to know of such particulars. Only after repeated questioning by the RPD member did the Appellant state that the organizer had informed him later on. [11] The issue for the RAD is not whether the lookout actually informed the group of the number of cars and people approaching but of how the Appellant became aware of these facts. The RPD did not accept this story because "...the claimant maintained that 'the organizer told us later' at no time after the alleged raid, did the claimant communicate with the organizer or any of his co-practitioners."4 Counsel submits that in order for the RPD to make this finding it must cite evidence.5 [12] The RAD disagrees with counsel's submission on this point. Once the Appellant provided additional information in his oral testimony with respect to the raid, information which had not been provided in his Basis of Claim (BOC) form, it was reasonable for the RPD member to ask the Appellant how he had become aware of these particulars and it was also reasonable for the RPD to draw a negative conclusion with respect to the explanation provided by the Appellant. There would not have been any issue of credibility had the Appellant stated that he had the information from the individual who was the lookout. But that is not what the Appellant stated. He said that he had found out about these particulars from the organizer at a later date. The fact is that, neither in his oral or written testimony, does the Appellant mention that he had any contact with the leader of the group or any other member of the group. In fact, the Appellant alleges in his testimony that he only found out that the PSB had been looking for him through communication with his wife. The RAD agrees with the RPD in this regard and draws a negative inference from the Appellant's story. The Canadian visa [13] The Appellant stated that in July of 2014 he applied for a Canadian visa. The RPD asked the Appellant why he had applied for a visa at that time and he replied that he knew that he was in danger. However, the facts as provided by the Appellant do not corroborate his answer. The Appellant alleges that he decided to become a Falun Gong practitioner at the end of May 2014. He practiced Falun Gong in the quiet and security of his home until August of 2014 when he decided to join XXXX group. It is reasonable to conclude that in July of 2014, when the Appellant applied for a Canadian visa, that he was not in any danger for his practice of Falun Gong was carried out in the secrecy and security of his home. [14] The Appellant argues that the RPD conducted a microscopic examination of the evidence and that there was no real difference between the oral and written testimony. The RPD rejects the Appellant's allegations on this point. Based on the testimony of the Appellant, the facts surrounding the September 2013 raid would have a direct impact on the events of the May 2014 raid and the decision by the Appellant to leave China. It was important that the RPD conduct an analysis of the discrepancy between the Appellant's oral and written testimony with respect to the events of the September 2013 raid. [15] If the discrepancy was a result of a miscommunication between the Appellant and the individual who assisted him with the BOC form, it is reasonable to expect that the Appellant would have noticed that the information was incorrect when the narrative was read back to him. The Appellant declared that the BOC form, including his narrative, was read back to him before he had signed the document. If there had been a misunderstanding between himself and the person who assisted him in completing the BOC form, he should have noticed the misinformation at the time that the document was read back to him. Furthermore, at the beginning of the hearing, the Appellant confirmed that the information in his BOC form, including his narrative, was true and correct. If there was information in his BOC form that was not correct, the Appellant should have notified the Board of this fact before confirming that all of the information in his BOC form was correct. This Appellant did not do so, and it undermines the Appellant's credibility. The RAD concurs with the credibility finding of the RPD on this point. The facts surrounding the raid of the other Falun Gong group in May of 2014 [16] In his oral testimony the Appellant alleges that on May 10, 2014, his group leader had learned that members of another Falun Gong group had been arrested. He testified that his group leader told the Appellant that he had practiced with this other group and that there was the possibility that some of those arrested could reveal the group leader's name to the PSB. Since the PSB had the name of the Appellant on a list with the name of the group leader because of the September 2013 raid, it would be possible for the PSB to find out that the Appellant was also a Falun Gong practitioner. [17] In the narrative which was included in his BOC form, the Appellant provides no explanation as to the connection between the September 2013 raid of his Falun Gong group, his group leader, and the group that was raided in May of 2014. The RPD member asked the Appellant to explain this omission. [18] A review of the record indicates that, in attempting to provide an explanation for this omission, the Appellant gave several different answers. At first he stated that he may not have been clear in his instructions to the person who assisted him with the BOC form; he then added that maybe it might be that the interpreter had failed to record the information properly. [19] Not only is there an omission in the Appellant's oral testimony but he also provided different explanations as to the reason for this omission. The Appellant argues that he is not required to include every detail in the narrative. However, the new information in the Appellant's oral testimony goes to the heart of his claim.6 The very reason why the Appellant fled China was not because he himself had been charged with being a Falun Gong practitioner but because he alleges that another Falun Gong group who was also associated with the leader of his group had been raided. The Appellant's fear of the authorities was not a direct or personal fear but one based on association with another group. It is reasonable that the Appellant would have remembered this fact when he wrote his narrative. [20] The Appellant declared in his BOC form that it had been read back to him. If his narrative, for whatever reason, contained such a fundamental flaw of the facts, he should have noticed it when it had been read back to him and raised the issue with either his lawyer or his interpreter. This the Appellant did not do, and it further undermines his credibility. Copy of the summons [21] The RPD found that the summons was probably a fake document given the fact that false documents are readily available in China. Although documents issued by foreign countries are "...entitled to the presumption of the truth of their contents..."7 the RPD noted several reasons to doubt the credibility of the applicant tied its assessment of the country documentation indicating the availability of fraudulent documents in China to its credibility findings, and reasonably concluded the summons was not genuine.8 As the Federal Court has stated: "The RPD considered the document and concluded that it is fraudulent based on the lack of credibility of the Applicant and on the evidence of the abundance of fraudulent documents in China."9 The RAD upholds the conclusion of the RPD that the summons was most likely a fraudulent document. The Appellant's knowledge of Falun Gong practices [22] With respect to the RPD's conclusion that he lacked knowledge of Falun Gong practices, the Appellant argues that he knew many of the answers put to him and that his lack of knowledge may be a result of factors such as his education and his length of practicing Falun Gong. [23] The RAD is not persuaded by the Appellant's arguments in this regard. The Appellant stated that he had participated at two events on July 20th and 24th here in Canada but could not explain the significance of these dates. It is reasonable to expect that a true practitioner of Falun Gong would explain why he had participated in public activities. [24] Furthermore, when asked to explain the significance of May 13th he replied that it was something like the leader's birthday. It is reasonable to expect that a practitioner of Falun Gong would be able to explain unconditionally that May 13th represents not only the leader's birthday but the day that he began his public teachings. The Appellant stated that fourth talk was his favorite and yet he could not provide one of the main features of the talk: the elderly lady. The Master outlines how many times the first exercise needs to be completed before moving to the other exercises. The Appellant did not know that one had to complete the first exercise three times before proceeding to the next exercise. [25] The RAD finds that the knowledge of the above matters is fundamental to the practice of Falun Gong, and the Appellant's lack of knowledge of them undermines his identity as a genuine Falun Gong practitioner. While it is true that the Appellant did have some knowledge of Falun Gong, the RAD finds that knowledge could easily have been obtained without being a Falun Gong practitioner. [26] While it is difficult to make a judgment regarding the genuineness of the Appellant's beliefs, it is necessary in this case. In doing so, The RAD considered the totality of the evidence on the record regarding the genuineness of the Appellant's knowledge of Falun Gong practices and principles. Although it is true that the Appellant does possess some knowledge of Falun Gong, it does not necessarily mean he is a genuine practitioner. Merely having some information regarding basic teachings and practice does not reflect genuine practice. A review of the recording revealed that the Appellant lacked significant knowledge as to the principles of Falun Gong and agrees with the RPD's conclusion that the Appellant is not a genuine Falun Gong practitioner. CONCLUSION [27] On the basis of the findings noted above and after its own assessment of all the evidence in the record, the transcript of the hearing, the RAD agrees with the RPD's finding that the Appellant has not established that he is a Convention refugee or a person in need of protection. [28] Pursuant to s. 111(1)(a) of IRPA, the RAD confirms the decision of the RPD. The appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino September 15, 2015 Date 1 Exhibit RPD-1, RPD's Record, Exhibit 5, p. 346. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 4 Exhibit P-2, Appellant's Record, p. 5, para. 19. 5 Exhibit P-2, Appellant's Record, Memorandum, p. 184, para. 13. 6 Kroka, Miroslav v. M.C.I. (F.C., no. IMM-6199-11), Boivin, June 11, 2012, 2012 FC 728, para. 17 7 Cao, Ze Tong v. M.C.I. (F.C., no. IMM-8396-11), Mactavish, June 5, 2012, 2012 FC 694, para. 15 8 Ma, Lan v. M.C.I. (F.C., no. IMM-5123-14), Kane, July 9, 2015, 2015 FC 838 9 Cao, Jie v. M.C.I. (F.C., no. IMM-6248-13), Noël, March 12, 2015, 2015 FC 315 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06128