TB6-10238

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 : TB6-10238 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision 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 November 9, 2016 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Diane B. Coulthard 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Appellant"), a citizen of the People's Republic of China ("China"), appeals a decision of the Refugee Protection Division ("RPD") rejecting his claim for refugee protection. The Appellant is not submitting new evidence, and he is not requesting an oral hearing. He requests that the decision of the RPD be set aside and the Refugee Appeal Division ("RAD") find the Appellant to be a Convention refugee or a person in need of protection. Alternatively, he requests that the appeal be allowed and the matter returned to the RPD for redetermination. DETERMINATION OF THE APPEAL [2] The appeal is dismissed. Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant states that he had problems with his father that made him depressed and unhappy. This affected his work and his relationship with colleagues. A friend introduced him to Christianity, and he joined his house church in XXXX 2013. There were 12 people in the church, including him. He was baptized on XXXX XXXX, 2014. He participated in distributing leaflets about Christianity. [4] He says that, on XXXX XXXX, 2014, six or seven policemen came to his house and accused him of sabotaging the social order. He managed to escape and went into hiding. He later learned from his family that Public Security Bureau ("PSB") officers had returned to the house looking for him. They left a chuanpiao (summons), with his parents, accusing him of being involved in illegal religious activities, distributing leaflets and polluting people's minds. His family helped him find a smuggler, and he left China. ROLE OF THE RAD [5] The decision of the Federal Court of Appeal in Huruglica1 provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of the first-level administrative tribunal. [6] The Court stated that, with respect to findings of fact (and mixed fact and law) which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to s. 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD's decision without hearing the evidence presented before the RPD. This recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because those cases require an assessment of credibility or weight to be given to the oral evidence it hears. It further indicates that, although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [7] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. ANALYSIS OF THE MERITS OF THE APPEAL [8] The RPD determined that the Appellant is not a Convention refugee or a person in need of protection for the following reasons: (a) It is not credible that the Appellant was a genuine Christian in China; (b) It is not credible that the Appellant is wanted by the PSB for being involved in illegal religious activities and for disturbing the social order; and (c) It is not credible that the Appellant is a genuine Christian in Canada. Submissions [9] The Appellant submits that the RPD erred in finding it implausible that he did not remember the name of the English-speaking country he allegedly transited through on his journey to Canada. The RPD must have assumed that the "English-speaking country" had signage in Chinese characters and the language spoken on the plane was Mandarin, since that was the only language he spoke and understood. [10] He further submits that the RPD erred in stating that it was implausible that he did not recall the name on the Hong Kong passport he was using, since he was fraudulently travelling on a passport that did not belong to him. He testified that he travelled to Canada on this fraudulent passport in mid-2014. He said that the passport was taken away by the smuggler after he entered Canada, and he had not been in possession of it since then. This was two years before the RPD hearing. It was an unreasonable expectation for him to recall the name after that period of time. [11] He also argues that the RPD erred in failing to analyze his religious practice in Canada separate and apart from its findings with respect to his religious activities in China. He states that the RPD was biased by its findings regarding his religious activities in China, which it found not to be credible. The RPD failed to provide any other reasons why it found his religious knowledge and activities in Canada failed to meet the standard of a sur place claim. [12] The Appellant states that, at his hearing, he was clearly able to answer numerous questions regarding his knowledge of his Christian faith and the activities he attends because of this faith here in Canada. In addition, he presented a letter from his pastor here in Canada attesting to his bona fides as a Christian as well as his religious practice here in Canada, including attending services, volunteering and making donations. It is submitted that the RPD erred in its assessment of the pastor's letter and in giving little weight to the letter. Given the pastor's position in the church, coupled with his firsthand knowledge of and experience with the Appellant and his religious practice, the RPD has microscopically reviewed the matter in order to find against the Appellant. [13] It is argued that the RPD further erred as it failed to separate its findings regarding his religious practice in China from his religious practice in Canada. Analysis [14] The RPD found a number of discrepancies, inconsistencies and omissions in the evidence of the Appellant. The RPD concluded that the Appellant was not wanted by the PSB for being involved in illegal religious activities and for disturbing the social order. The RAD has reviewed the documentary evidence and the recording of the RPD hearing and agrees with the findings of the RPD. [15] The RPD noted that the Appellant stated that, on XXXX XXXX, 2014, six or seven policemen came to his home and attempted to arrest him. He maintains that he managed to resist arrest and run away while approximately five or six neighbours and his mother were distracting the PSB officers. He testified that he was chased by a couple of the PSB officers, and he kept running until, eventually, he noticed that he was no longer being chased. [16] The RPD asked him why his testimony was not consistent with his Basis of Claim ("BOC") narrative in which there was no information that five or six neighbours came to his home. The testimony was also inconsistent with his BOC because he did not state that he was chased by police officers but said that he "sneaked" out of the house when they did not pay attention to him. The RPD did not accept his explanation that he wrote these things but they were not translated and included in the BOC because he only provided an explanation for the omission but not for the inconsistency. In addition, he had confirmed at the beginning of the hearing that his BOC was complete, true and correct. The RPD drew a negative inference as to the Appellant's credibility concerning this incident and found that the PSB did not come to his home on XXXX XXXX, 2014 to arrest him. [17] The RPD also noted that he testified that the PSB returned to his home about three times after this incident. The RPD asked him why his BOC only made reference to one visit from the PSB after XXXX XXXX, 2014. The Appellant responded that he did not know why these visits were not mentioned. The RPD did not accept this explanation, as subsequent visits by the PSB would have shown a continued interest by the agents of persecution. The RPD drew a negative inference in regard to the Appellant's credibility and found his allegation that he is wanted by the PSB was not credible. [18] The RPD also found that there were inconsistencies in the addresses given by the Appellant. This was material because he stated that the PSB came to his home to arrest him and left a summons for him at that address. The Appellant gave convoluted explanations as to how the PSB knew the address where he was living in order to attempt to arrest him as well as deliver a summons. The address on the summons did not match the address on his hukou or the addresses that he listed in his documentary evidence. The RPD concluded that, as a result of these inconsistencies, his allegation that the PSB came to his parents' home to arrest him was not credible. [19] The Appellant tried to explain the address on the summons being different from the other addresses he had given by stating that maybe this was because the intersection where he was distributing pamphlets is close to the address on the summons and someone took a photograph of him. The address on the summons was apparently the address of his parents' home. The RPD found it unlikely that the PSB would be able to locate the Appellant at his parents' home because none of this government-issued identification listed his address. The RPD drew a negative inference as to his credibility and found that the PSB did not come to his parents' home to look for him or to leave a summons. [20] The RPD also reviewed the summons ("chuanpiao")2 that was entered into evidence. The RPD noted that documentary evidence states that if a person summoned does not respond to a summons, a coercive summons or an arrest warrant will be issued by the PSB. There is no evidence to indicate that such a document was received by the Appellant's family when the PSB visited their home on two subsequent dates after the date that the claimant was summoned to the People's Court of XXXX City, Fujian Province. The RPD noted that XXXX City is a major urban center where the PSB would likely carry out the requirements of the law. [21] The RAD has also reviewed the document and compared it to samples of the document in the documentary evidence. The documentation states: In correspondence with the Research Directorate, the Associate Director of the Centre for Rights and Justice at the Chinese University of Hong Kong (CUHK), who is also a research assistant professor at CUHK's Faculty of Law, provided court manuals as well as samples of summonses and a subpoena taken from police (Associate Director 22 June 2013). The samples were taken from manuals owned by the Associate Director as well as obtained from CUHK's library (ibid. 18 June 2013). According to the Associate Director, there has been no variation in the format of the summonses and subpoenas since 2003 (ibid. 22 June 2013). In subsequent correspondence, the Associate Director stated that such forms are supposed to be used throughout the country and that "regional variations are not meant to exist".3 [22] In reviewing the summons submitted by the Appellant and comparing it to the samples in the NDP documentation,4 the RAD finds that the summons submitted is not consistent with the sample in the NDP documentation. The structure and format of the summons is not consistent with the documentation. The sample shows characters immediately below the character for chuanpiao that do not exist on the summons submitted by the Appellant. Also, Nos. 1 and 2 at the bottom of summons in the sample are immediately adjacent to the characters below the 7 boxes under the heading of the summons, while in the summons submitted by the Appellants (No. 1 and No. 2) are offset one line below the characters. In addition, the characters in No. 1 and No. 2 in the summons submitted are not the same size as in the sample. [23] The RAD also notes that Article 78 of the Criminal Procedure Law of the People's Republic of China (2012 Amendment)5 states: "The arrest of the criminal suspect or defendant must be subject to the approval of people's procuratorate or a decision of the people's court and be executed by the public security authority." There is no indication that there was any such arrest warrant presented when the PSB came to allegedly arrest the Appellant. [24] The RAD finds that this is further evidence that the RPD was correct in giving the chuanpiao little probative value, and the RAD concludes that the document is not genuine. [25] The RPD considered the genuineness of the Appellant's religious practice. It was acknowledged that it is difficult to make a judgment regarding this matter, but in doing so, the RPD considered the totality of the evidence available. The RPD acknowledged that the Appellant was able to relate concepts and principles of Christianity. He spoke of his baptism in China, the significance of communion, one of his favorite passages from the Bible, and he explained why his church is Pentecostal. [26] The RPD stated that it considered the totality of the evidence and although he possessed knowledge of Christianity and he provided a certificate of baptism from the XXXX XXXX XXXX church in Toronto, it did not necessarily mean that he is a genuine Christian. The RPD gave little weight to a letter from Reverend XXXX6 from the XXXX XXXX XXXX in support of whether or not the Appellant is a genuine Christian. The letter states that the Appellant had an interest in studying Bible classes and attends Sunday service regularly. He also volunteers with the church and has made donations. Rev. XXXX stated that, when he first met the Appellant, he asked a few Christian questions, and he could give him the correct answer, so he trusted that he is a real Christian. The RPD points out that Rev. XXXX does not explain what questions were asked of the Appellant and what other methodology, if any, he used to determine whether or not the Appellant is a real Christian. The RPD did not find that correctly answering a few questions about Christianity to be indicative of whether someone is genuine or not in their beliefs. [27] The RAD also notes that the letter states that, on XXXX XXXX, 2014, the police raided the Appellant's house church and six members were caught. This was never mentioned by the Appellant in any of his evidence. He stated that the PSB came to his house and attempted to arrest him, allegedly, for distributing Christian flyers. [28] The RAD agrees with the RPD that, as a result of the inconsistencies and omissions outlined above, the Appellant is not a credible witness, and he was not a genuine Christian in China. He is not being pursued by the PSB for being involved in illegal religious activities and for disturbing the social order. The RPD stated that little weight is to be given to the Appellant's allegations that he is a genuine Christian in Canada and finds it more likely that the Appellant submitted the letter from the XXXX XXXX XXXX Church in an attempt to bolster his refugee claim. [29] The RAD finds that the credibility findings can be imported into its assessment of the Appellant's sur place claim.7 Having found the Appellant's story of persecution by the PSB not to be credible, there is no reason to believe that he is now a genuine Christian follower. The letter from Reverend XXXX does not overcome the other findings. There is no persuasive evidence that he would come to the attention of Chinese authorities due to his activities in Canada. [30] The RAD finds that there is no serious possibility that the Appellant will be persecuted if he returns to China and on the same evidence concludes that, on a balance of probabilities, he would not be at risk to his life, or at risk of cruel and unusual treatment or punishment, or in danger of torture if he returned to China. DISPOSITION [31] The appeal is dismissed. Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Ken Atkinson" Ken Atkinson November 9, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, pp. 580-581, Exhibit 9. 3 Exhibit RPD-1, RPD's Record, Exhibit 7, National Documentation Package (NDP) for China (October 30, 2015), item 9.10, Response to Information Request (RIR) CHN104458.E, Samples of summonses and subpoenas, October 18, 2013. 4 Ibid., NDP for China (October 30, 2015), item 9.10, RIR CHN104458.E. 5 Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for China (October 30, 2015) item 9.5, Criminal Procedure Law of the People's Republic of China (2012 Amendment). 6 Exhibit RPD-1, RPD's Record, p. 585. 7 Jiang, Sumei v. M.C.I., (F.C., no. IMM-13-12), Zinn, September 11, 2012, 2012 FC 1067. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-10238