TB9-16942

RAD File / Dossier de la SAR : TB9-16942 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 18, 2020 Date de la décision Panel Christopher Marcinkiewicz Tribunal Counsel for the person who is the subject of the appeal Mark Rosenblatt 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] The Appellant, XXXX XXXX XXXX, is a citizen of China and appeals the decision of the Refugee Protection Division (RPD), dated June 6, 2019, rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) substitute a finding that he is a Convention refugee or a person in need of protection, or refer the matter back to the RPD for redetermination.1 DETERMINATION [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA),2 I am setting aside the decision of the RPD and substituting it with my own. Specifically, on the evidence before me, I find that the Appellant is a Convention refugee, as he faces a serious possibility of persecution in China due to his Falun Gong practices and beliefs. BACKGROUND [3] The Appellant fears persecution in China from the authorities as Falun Gong is banned and considered an evil cult. The Appellant suffered from XXXX and was introduced to Falun Gong by his friend XXXX XXXX in XXXX 2017. From his friend he learned basic exercises and philosophy and within a couple months was introduced to group practice. He felt his health had improved from the practice and spoke about Falun Gong to three of his friends. However, in XXXX 2017, he received a phone call from the neighbourhood committee informing him that someone had reported him for discussing Falun Gong. He was cautioned to stop speaking about Falun Gong or he would end up arrested. The Appellant complied and stopped his group practice and began searching for a way out of China so that he could practice Falun Gong freely. Through the assistance of a smuggler who obtained a false visa, the Appellant arrived in Canada in XXXX 2018, but claims he was confined by the smuggler in a residence until mid-XXXX 2018 when his wife was able to pay the outstanding debt owed to the smuggler. He does not believe he can practice Falun Gong, which he considers his religion,3 freely and without risk of persecution in China. ROLE OF RAD [4] My role is to look at all of the evidence and decide if the RPD made the correct decision.4 Where I determine that the RPD had a meaningful advantage in assessing the credibility of the Appellant's evidence, I may defer to the RPD's findings. Having listened to the audio recordings and having read the transcripts of the RPD hearing, along with reviewing the evidence, I find that the RPD did not benefit from any meaningful advantage in assessing the Appellant's evidence in this case. While the RPD did have an opportunity to observe the Appellant perform various Falun Gong movements, no negative findings were made in relation to this evidence. REQUEST FOR AN ORAL HEARING [5] The Appellant has not submitted any new evidence for the purposes of this appeal, nor does he request an oral hearing.5 As a result, I must proceed without a hearing. ANALYSIS [6] The determinative issue for the RPD was credibility. The RPD found that the cumulative effect of the numerous negative credibility findings resulted in the Appellant failing to establish that he was a genuine Falun Gong practitioner. While the RPD acknowledged the Appellant has knowledge of and practices Falun Gong regularly in Canada, the RPD doubted the evidence proffered as it did not speak to the Appellant's motivation for engaging in the practice. More specifically, the RPD found: a) That there was a delay in the Appellant claiming refugee protection in Canada and that his explanation that he was confined by the smuggler was implausible; b) That the group practitioners in China did not have any precautions or security measures, beyond moving amongst three different residences, or discuss such precautions, something the RPD did not find to be credible; c) The RPD did not find the Appellant's evidence of trying to convince others of the benefits of Falun Gong to be plausible given his limited knowledge of Falun Gong at the time and knowing it is illegal and considered an evil cult; d) The RPD found the Appellant acquired little knowledge of Falun Gong while in China and was vague regarding what knowledge the organizer had, something the RPD found would be natural for the organizer to share with the group. As a result, the RPD found that most of what the Appellant learned about Falun Gong was acquired in Canada; and e) The Appellant's Falun Gong activities in Canada, and the evidence provided in support of his practice, do not inform the motivation of the Appellant for participating, nor was there any evidence that his activities in Canada have come to the attention of Chinese authorities. [7] The Appellant argues generally that the RPD was overzealous and made several significant errors in its credibility assessments which centred on implausibility findings. In particular, he alleges: a) Being under the smuggler's control until his family paid the outstanding debt is within the range of plausibility and regardless, this is a peripheral matter as it has no impact on whether he is a true Falun Gong practitioner and the delay was not significant; b) There was nothing inherently implausible about the evidence of the precautions taken in China by the group; c) There was nothing implausible about the Appellant's testimony that he talked to his three friends about Falun Gong and the RPD was overzealous in trying to impugn his credibility; d) The Appellant not knowing how the Falun Gong organizer obtained her or his Falun Gong knowledge is not implausible; e) Any one error in the cumulative implausibility findings undermines the overall credibility finding that the Appellant was not a Falun Gong practitioner in China; f) The RPD erred in respect to the Appellant's Falun Gong identity and practice in Canada, dismissing the knowledge gained, exercises performed, and activities the Appellant participated in, which was evidence of the RPD having a "suspicious mind". Delay in Claiming Protection in Canada [8] The RPD found it incredible that the Appellant was confined by the smuggler in Canada for one month and was unable to identify with more detail where he stayed and how he spent his time during that period. The RPD did not find it reasonable that the smuggler would choose not to get paid in full and then have to confine someone for a month to wait for his money and risk his operation being discovered. Further, the RPD found that waiting another month in China to get the money would not have made much of a difference given the Appellant was not practicing Falun Gong after receiving the warning from the neighbourhood committee. [9] The Appellant argues that the RPD erred by finding the circumstances the Appellant testified to as implausible. It is argued there is nothing implausible about the Appellant being under the control of the smuggler until he was paid the full amount. Further, the Appellant maintains that this factor is irrelevant to whether he is a genuine Falun Gong practitioner and any delay in claiming was short and insufficient to impugn the Appellant's credibility. [10] Having independently considered the record, I find the RPD erred in part. To be clear, while the RPD did not use the term implausibility in respect to this finding, in essence this was the type of credibility finding being made when the RPD did not accept that the Appellant could be confined by the smuggler and the smuggler would not wait to be paid in full before departing China. Canadian Courts have cautioned decision makers in respect to making implausibility findings which are only to be made in the "clearest of cases...if the facts as presented are outside the realm of what could reasonably be expected...".6 [11] I agree with the RPD that it is implausible the smuggler would have personally stayed with the Appellant during a XXXX XXXXlong confinement. Given the nature of his business, I agree with the RPD that confining the Appellant to a home for XXXX XXXX could have resulted in them being discovered by law enforcement, thereby jeopardizing the smuggler's enterprise. However, in my view, what makes this scenario implausible is that the smuggler would take XXXX XXXX out of his smuggling business to sit and wait to be paid the rest of the funds owed. In my view, this seems like an inordinate amount of time to spend on personally collecting outstanding dues from one client and preventing him from continuing with his business of smuggling other people to Canada or elsewhere. For these reasons, what the Appellant described is implausible. [12] However, I find the RPD erred by seemingly drawing an adverse inference from the one-month delay in claiming refugee protection. While I appreciate that a delay in claiming protection in Canada is an important factor in assessing the Appellant's subjective fear and therefore credibility, this factor is typically not determinative.7 In this case, in my respectful view, the delay in claiming is short and minimal, with the claim being made within XXXX months of the Appellant's arrival,8 and I do not see the delay as egregious in order to undermine his credibility and subjective fear. As a result, I do not draw any negative inference in respect to his credibility. Precautions for Group Practice in China [13] The RPD found it incredible that there were no other precautions in respect to group practice beyond changing locations between three residences. Specifically, the RPD noted that it did not accept that the "group would not have discussed the full spectrum of precautions and that the claimant would not be aware of them, since FG is banned in China and vigorously persecuted by state authorities".9 Finally, the RPD found the Appellant was not credible regarding the group practice as he was unable to explain what made the three locations safe. [14] The Appellant argues that there was nothing inherently implausible about the Appellant's evidence of the precautions taken by the group and the RPD was simply overzealous in its assessment of this evidence. [15] Having independently reviewed the evidence, I find the RPD erred. To begin, it is not as if the group took no precautions as they clearly did by relocating their group practice on a weekly basis amongst three residences. This alone indicates to me that there was at least one significant precaution taken to prevent or limit the groups' discovery. If there had been no precautions, then I would agree with the RPD and find it to be unreasonable, and perhaps even implausible, under the circumstances in China and how the state treats Falun Gong practitioners. Furthermore, the fact that the Appellant could not explain why these three residences were chosen and deemed safe or discuss any other potential precautions in my view needs to examined in context. The Appellant was new to the group, having at best by the RPD's own estimate only attended 10 group sessions, so in my view it is plausible he did what he was told and not questioned the group's actions. Further, the Appellant testified that his friend Lin Peng, the same person who introduced him to Falun Gong and taught him the basics, was informed by the organizer of the weekly location and he would take the Appellant there with him.10 [16] For these reasons, I do not find the Appellant's evidence implausible in respect to the precautions taken and draw no negative inference in respect to his credibility. Discussing Falun Gong with Three Friends and Aftermath of being Discovered [17] The RPD found the Appellant's evidence of discussions with his three friends about the benefits of Falun Gong to lack credibility. In particular, the RPD found it implausible he would openly discuss Falun Gong as it is prohibited in China and considered an evil cult, he had very little knowledge about its philosophy and practice, and his wife wished he kept the practice secret and instead he was informing others of his practice. Furthermore, the RPD took issue with the Appellant speculating that it was his neighbour who reported him to the neighbourhood committee yet he only told the three friends. Finally, the RPD found the Appellant's evidence of not informing the group that someone had reported him, and therefore endangering the group, was not a credible account of what transpired. [18] The Appellant argues the RPD erred as the Appellant's evidence regarding speaking to his three friends about Falun Gong is not inherently implausible. It is argued that the RPD was overzealous in its assessment of the Appellant's evidence to undermine his claim. [19] Having independently reviewed the evidence, I find the RPD erred in part. First, I do not find it implausible that the Appellant would reveal to his three friends that he practiced Falun Gong and try to convince them to try it for themselves. The Appellant testified that the reasons he talked to his friends about Falun Gong was because after practicing, he started to feel better, having more energy and better sleep, and tried to "introduce" the practice to them.11 I find nothing unreasonable or implausible about the Appellant's evidence as feeling better, with more energy and better sleep, could reasonably lead one to share that experience with friends that he presumably trusted. It would be another matter if these were strangers, but they were his friends and as such I find it perfectly plausible he would share with them his excitement and experience with Falun Gong, even if he knew very little about the practice or philosophy as the main point is that in his mind, it had helped him. [20] Secondly, I place no weight on the Appellant's evidence that it could be his neighbour who reported him to the neighbourhood committee. To be clear, when asked how he thinks the committee found out he was discussing Falun Gong, he replied "If my neighbours found out I practice Falun Gong they will go report, so I will suffer the persecution by China government".12 When asked further if his friends reported him to the committee, the Appellant was clear and stated "...I don't know who reported me".13 As a result, I find that the Appellant was not speculating as to who reported him to the committee as he did not know and when asked about the neighbours, he said if they found out they would report him. Therefore, I make no negative credibility finding in respect to this evidence. [21] Now, I do agree with the RPD that it is implausible the Appellant did not inform his group about being contacted by the committee who warned him to stop discussing Falun Gong. However, I would add that what makes this in my view implausible is that apparently the group and Lin Peng specifically had no contact with the Appellant either. It is as if the Appellant lost total contact with his friend and the group and neither side reached out to the other. I find it implausible, given the dangers with practicing Falun Gong in China, that neither the Appellant nor the group members, after not hearing from the Appellant for weeks and months, would not make contact with each other to inquire or explain why he stopped attending. As a result, I draw a negative inference in respect to the Appellant's credibility related to interactions with other group members after receiving the warning from the neighbourhood committee. Organizer's Source of Falun Gong Knowledge [22] The RPD found the Appellant was vague regarding the knowledge the group organizer shared and the Appellant did not know how the organizer acquired Falun Gong knowledge, noting it would be "natural" for the organizer to share such details. [23] The Appellant argues that the RPD finding is one of implausibility and it erred by faulting him for not knowing how the organizer obtained their knowledge. It is argued there is nothing implausible about the Appellant not knowing such details. [24] I find the RPD erred in the treatment of this evidence. While I appreciate that in a free and open society, discussing how one obtained knowledge of a particular lawful practice would be reasonable and go to the heart of the credibility of the organizer or presenter, giving them "authority" so to speak, on the subject. However, in context of China and the illegality of Falun Gong, I do not find it implausible that the organizer would not share such details, if for no other reason than it could potentially put others who taught the organizer the practice at risk. In an authoritarian country that criminalizes Falun Gong practice, I do not find it implausible that the organizer would not share with a relatively new group member like the Appellant how they learned about Falun Gong. As a result, I draw no negative inference from this evidence. [25] In summary, while I find the RPD was correct in some of its analysis and findings related to the confinement of the Appellant upon his arrival by the smuggler and the apparent lack of any contact between the Appellant and the group after he was warned by the neighbourhood committee, I find the RPD erred in respect to the impact of the delay in making a refugee claim, the precautions being inadequate, the discussions he had with his friends about Falun Gong, and finally how the organizer acquired knowledge. [26] Based on the above, I find on balance that the Appellant was introduced to Falun Gong in China by his friend, learned some basics, shared his experiences with his three friends, and did some limited group practices. I would characterise his experiences in China as being an introduction to Falun Gong. However, for the reasons that follow, I find that his actions since arriving in Canada sufficiently and credibly establish, on a balance of probabilities, that he is a genuine Falun Gong practitioner. Appellant's Documentary Evidence of Practice in Canada and Knowledge of Falun Gong [27] The RPD found the Appellant has knowledge of basic Falun Gong philosophy. The RPD considered photographic evidence of his Falun Gong practice in Canada, but noted this evidence places him at those events but does not speak to his motivation for attending. The RPD also noted evidence of the Appellant's demonstrations in front of the Chinese Consulate, but found there is no evidence that he is on Chinese officials' radar. Further, the RPD noted the affidavit from an alleged Falun Gong practitioner in Canada, however, little weight was ascribed to the letter as it is unable to confirm the reason or motivation for his practice. Finally, noting the previous findings relating to his practice in China, the RPD found the documentary evidence of his practice in Canada does not outweigh the concerns, ultimately concluding that there was no "conversion type of experience" and the Appellant is engaging in the various activities "only to advance his fraudulent refugee claim".14 [28] The Appellant argues the RPD erred by ignoring or dismissing almost entirely the documentary evidence, as well as, the Appellant's knowledge and exercises exhibited in front of the RPD. It is argued that there is a presumption of truthfulness and there are no valid reasons to doubt the Appellant's testimony, especially as he explained that he has had an opportunity to practice and obtain knowledge of Falun Gong in Canada longer than in China. Additionally, the Appellant argues that the RPD approached the Appellant's evidence with a suspicious mind. [29] Having independently reviewed the evidence, I find that the RPD did indeed err as alleged. Although the RPD focused on the motivation underlying the Appellant's Falun Gong activities in Canada, there is no evidentiary basis to conclude that his motivation was anything other than genuine. His testimony was clear that he found Falun Gong generally improved his health, energy, and mood, and made him a better person overall. He was able to recite various verses related to Falun Gong practice, named the five exercises, and even performed the exercises in front of the RPD. There is no mention in the RPD hearing or in the decision that any of these were done incorrectly or were in any way problematic. Furthermore, the Appellant testified about his understanding of various important Falun Gong concepts as taught by Master Li, including but not limited to, attachments, karma, virtue, law wheel, and about various important dates for Falun Gong practitioners.15 [30] Now, while the RPD is correct to say that the pictures and affidavits do not speak to his motivation, the Appellant explained his motivation for engaging in the various activities, including to bring attention to the persecution of Falun Gong practitioners by the Chinese government and also helping to spread the word about Falun Gong by distributing pamphlets at various places. Additionally, the affidavit from a fellow practitioner speaks to the Appellant's commitment to practice Falun Gong, noting they practiced together twice per week since XXXX 2018. In my view, the RPD dismisses the affidavit for what it does not say about the Appellant's motivation and fails to give it appropriate consideration for what it does say about his commitment to practice. [31] Based on the above, when considered in its totality, I find the Appellant has established with credible evidence that, on a balance of probabilities, he is a genuine Falun Gong practitioner. Evidence of Treatment of Falun Gong Practitioners in China [32] I have considered the objective evidence regarding the treatment of Falun Gong practitioners in China. I find that the evidence clearly depicts that Falun Gong practitioners in China are persecuted, at times severely, by the Chinese state and its various authorities. [33] Specifically, according to a United Kingdom Home Office report, since the banning of the practice in 1999, the Chinese government has "pursued a campaign of extensive, systematic, and, in some cases, violent efforts to pressure practitioners to renounce their belief in and practice of Falun Gong. There are reports of some Falun Gong practitioners being detained and sentenced to long prison terms often in high security psychiatric hospitals. Detained practitioners are reportedly subjected to various methods of physical and psychological coercion in attempts to force them to renounce their beliefs and practice."16 [34] Furthermore, it appears that even those that are associated with Falun Gong practitioners, such as family members who are not actual practitioners themselves, may be detained and imprisoned.17 The US Department of State, indicates that Falun Gong practitioners may be subjected to detention, including "legal education centers for political activists and religious adherents, particularly Falun Gong practitioners".18 The same source states that "[p]ractitioners of the banned Falun Gong spiritual movement and members of the Church of Almighty God also reported systematic torture in custody",19 and "[s]ome activists and organizations continue to accuse the government of involuntarily harvesting organs from prisoners of conscience, especially members of Falun Gong".20 [35] I find that the Appellant's testimony is consistent with the objective evidence as he was warned to stop discussing Falun Gong or risk being arrested and detained. According to the same Home Office report cited above, "the risk of ill-treatment also increases when a person ignores a warning against continuing Falun Gong activity which came with having previously come to the adverse attention of the authorities and detention/re-education".21 While the Appellant has not been detained, he has come to the attention of his neighbourhood committee who informed him that he must stop his activities. This is also consistent with the Appellant's evidence that he knew that in order to practice Falun Gong freely and safely, he needed to leave China. [36] In summary, having found that the Appellant is a genuine Falun Gong practitioner, I find based on the objective evidence that if he were to return to China, he faces a serious possibility of persecution based on his Falun Gong practice. Moreover, given the banning of Falun Gong by the Chinese state for over two decades and the treatment of Falun Gong practitioners, I find that if he were to practice Falun Gong in China, he would not be able to do so freely or safely and his actions could be viewed as being political and opposing the state and its institutions. Additionally, given that the Appellant identifies Falun Gong as his religious practice and noting that it contains spiritual elements in its practice and theory, he has a religious nexus to a Convention ground as well. CONCLUSION [37] The RAD, pursuant to paragraph 111(1)(b) of the IRPA, sets aside the decision of the RPD and substitutes a decision that the Appellant is a Convention refugee. (signed) "Christopher Marcinkiewicz" Christopher Marcinkiewicz September 18, 2020 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 74, paras. 45-46. 2 Paragraph 111(1)(b) of the IRPA, SC 2001, c 27, as amended. 3 Exhibit RPD-1, RPD Record, Exhibit 2, p. 14, Question 1(f). 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 5 Exhibit P-2, Appellant's Record, Written Statement, at p. 11, paras. 1-2. 6 Valtech v. Canada (Minister of Citizenship and Immigration), 2005 FC 783, paras. 10 and 11, citing Waldman, L. Immigration Law and Practice (1992). 7 Huerta v. Canada (Minister of Employment and Immigration ) (1993), 157 N.R. 225 (F.C.A.) 8 Exhibit RPD-1, RPD Record, Exhibit 2, p. 22; also, see Exhibit 1, p. 44. 9 Exhibit RPD-1, RPD Record, Reasons and Decision, para. 25. 10 Transcript of RPD Hearing, February 22, 2019, p. 33. 11 Transcript of RPD Hearing, February 22, 2019, p. 32. 12 Transcript of RPD Hearing, February 22, 2019, p. 34. 13 Ibid., p. 34. 14 Exhibit RPD-1, RPD Record, Reasons and Decision, para. 41. 15 Transcript of RPD Hearing, April 16, 2019, see pp. 22-36. 16 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, 29 March 2019, Item 1.7. Country Policy and Information Note. China: Falun Gong. Version 1.0. United Kingdom, Home Office, November 2016, p. 5 17 Ibid., p. 5. 18 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, 29 March 2019, Item 2.1. China. Country Reports on Human Rights Practices for 2018. United States. Department of State. P. 10. 19 Ibid., p. 4. 20 Ibid., p. 5. 21 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, 29 March 2019, Item 1.7. Country Policy and Information Note. China: Falun Gong. Version 1.0. United Kingdom, Home Office, November 2016, p. 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-08157 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