TB4-07855

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 : TB4-07855 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 December 10, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 and Decision [1] XXXX XXXX XXXX (the Appellant), who alleged to be a citizen of China, has appealed a negative determination of the Refugee Protection Division (RPD) issued on August 8, 2014. She has not submitted new evidence in support of her appeal. The Appellant is requesting an oral hearing. In addition, the Appellant asks that the appeal be allowed and the negative decision of the RPD be set aside and the Appellant be accepted as a protected person. DETERMINATION [2] Pursuant to ss. 111(1)(a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleges that she first became aware of Falun Gong while traveling in XXXX 2009 to Australia, Spain and Italy. She saw people practicing in a park and approached them to inquire about what they were practicing. They provided her with contact information about the head of the Falun Gong organization in XXXX XXXX. The Appellant attended her first practice group on XXXX XXXX, 2011. Her group leader telephoned her on XXXX XXXX, 2012 warning her that she needed to evacuate from the city. She attempted to escape, but she was caught by the Public Security Bureau (PSB) outside of her home. She was detained then transferred to a jail in XXXX XXXXwhere she was mistreated and forcibly "brainwashed" in an attempt to show her that Falun Gong was an evil organization. She was forced by the authorities to give up Falun Gong. The Appellant's family paid bail, and she was released on XXXX XXXX, 2012 with condition that she attend "labor education for one year, execute outside of jail." [4] The Appellant alleges that a jail officer went to her home, monitoring and inspecting her daily to track her to see if she still had connections with a Falun Gong organization. She applied for a United States visa but was refused in XXXX 2012. A smuggler told her to travel so that she could obtain a visa. She travelled to Singapore, Malaysia and Thailand from XXXX XXXX, 2012 to XXXX XXXX, 2012. While away, she contacted her family who told her that the PSB could not monitor her and warned her to return home immediately. Upon her return, the PSB attended her home and verbally warned her, asking her to write a guarantee declaring that she would not exit China again. [5] The Appellant, allegedly suffering a horrible life, acquired a Canadian visa through the assistance of a smuggler. She secretly took a bus from XXXXto Beijing airport leaving China and arriving in Canada on XXXX XXXX XXXX2013, claiming for protection on October 9, 2013. The Appellant alleges, should she return to China, she will be jailed because she left the country and because she believes in Falun Gong. Application for an Oral Hearing [6] The Appellant requests that the RAD hold an oral hearing pursuant to Section 110(4) of IRPA. [7] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their 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." [8] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [9] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [10] The Appellant has submitted no new evidence in support of her appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and her application for an oral hearing is denied. [11] The Appellant's application for refugee protection was heard over two sittings on July 18, 2013 and December 9, 2013. In a decision of August 8, 2014, the RPD rejected the claim finding that the Appellant was not a credible witness. [12] The Minister participated in the proceedings by filing a Notice of Intervention and related disclosures on the issue of credibility.1 The Minister did not participate in this appeal. ROLE OF THE RAD [13] The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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.3 [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".4 [14] 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 The RPD's Findings [15] The RPD focused on the issues of identity and credibility. [16] The RPD found the Appellant had not "established her identity on the balance of probabilities with credible and trustworthy evidence". [17] The Appellant had not "established her account for fearing persecution or that she would be subjected personally to a danger, believed on substantial grounds to exist, or torture or to a risk to her life or to a risk of cruel and unusual treatment or punishment, on the balance of probabilities with credible and trustworthy evidence." [18] The RAD has reviewed the pleadings and finds them confusing. Therefore, the RAD will address the pleadings based on the submission of the Appellant that she is challenging the following issues concluded in the RPD's decision to reject her claim: a) credibility issues; b) risk of persecution issues; c) sur place claim issues. [19] The Appellant also submits that the Appellant has provided adequate documentation with respect to her personal identity and her affiliation with Falun Gong, and that her testimony and other evidence were not contradicted or otherwise impugned. It is submitted that, given the Appellant's personal profile, as well as the evidence before the panel with respect to the persecution of Falun Gong followers in China, the Appellant has established both a subjective and well-founded basis for her claim to status as a Convention refugee and/or a person in need of protection. CREDIBILITY ISSUES The Appellant's Identity Canadian Visa [20] The Appellant included paragraphs 10 to 12 of the RPD's reasons for decision in her pleadings; however, she does not argue the RPD's findings contained therein regarding her visa application in relation to her passport. The Appellant simply submits that she provided adequate documentation with respect to her personal identity. [21] The RAD considered the evidence before the RPD with regard to the Appellant's identity. The RPD found inconsistencies between the Appellant's visa application and identity documents, namely, the photocopy of a photocopy of the biographical page of her passport in her claimed identity,5 her Resident Identity Card (RIC),6 and Hukou.7 The RPD found inconsistencies between her divorce certificate, RIC, Hukou and visa application and determined that she had provided false information in her address, marital status, surname of her husband and son and her husband's birth date, compared to the information included in her RIC and Hukou and Basis of Claim form. The RPD appreciated that persons who genuinely fear persecution may resort to filing false information in support of a visa application to ensure that the visa is issued. However, the RPD found the purportedly false information also relates to matters relating materially to the Appellant's identity. [22] However, the RAD is not persuaded that the Appellant's identity had not been established. The RPD notes that, despite not "matching" the visa application, both the Appellant's RIC and Hukou show an identical address. The RPD did not point to any problems on the face of the RIC and Hukou. The RPD's reasons do not show that the panel considered and applied the documentary evidence8 in its analysis of the Appellant's personal identity documents. There is no evidence that the RPD considered the documentary evidence indicating "an official at the Canadian embassy in Beijing wrote that there are "consistent reports" of document fraud in China and that fraudulent identity documents (IDs) are easily obtained in the country (Canada 17 Sept. 2013).9 [23] Given the absence of any analysis concerning the genuineness of the Appellant's RIC and Hukou, recognized as profound identity documents for any Chinese citizen, the RAD cannot give deference to the RPD's finding that the Appellant has not established her identity on a balance of probabilities with credible and trustworthy evidence. The RAD finds there is no reason to discount the Appellant's RIC and Hukou and finds that providing these documents goes in her favour in establishing her identity as a citizen of China. Therefore, based on the evidence, the RAD finds, on a balance of probabilities, the Appellant is a citizen of China. [24] Regardless of the issue of her identity, the RAD finds it is irrelevant to an assessment of her credibility in relation to her claim for refugee protection, that she is a genuine Falun Gong practitioner being pursued by the authorities in China. Ability to Obtain a Passport [25] The Appellant's account of having had an original valid Chinese passport was that the smuggler took the original of her valid passport on the day of her entry into Canada in order to arrange accommodations for her. He gave her a photocopy of the passport when he took it and never returned the original passport to her. The panel rejected the Appellant's explanation because although the Appellant's hearing was held over two sittings, the Appellant made no efforts to report the missing passport to the authorities in Canada. [26] The RPD also found that her account of how she obtained such a passport is not in harmony with her account of fearing persecution. The Appellant "alleged to have made an in-person application to the PSB border and immigration section in support of which she also provided her identity documents. She also alleged to have picked up her passport in person from the same office. The photocopy presented by the Appellant of her purported genuine passport indicates a date of issuance of XXXX XXXX, 2012. On the claimant's account of her fearing persecution, the date of issuance of the passport falls after the dates of her purported detention and release." [27] The RPD did not find it credible that the Appellant "would have been issued a passport by the PSB were it true that the PSB had identified her as being a Falun Gong practitioner and detained her. Documentary evidence10 relating to this matter supports this finding. Article 14 of the Passport Law of the People's Republic of China (2008-09-27) states that the passport issuing authority shall refuse to issue the passport for a period ranging from six months to three years from the date the criminal punishment against an individual has been executed. [28] Further documentary evidence11 show that those the government deemed as potential threats, including political dissidents, reported routinely being refused passports or otherwise prevented from traveling overseas. The Appellant includes in her pleadings that her claim should partly be considered on her political opinion. [29] The RAD finds, based on the documentary evidence, that the RPD provided sound justification for drawing its conclusions in this regard and agrees with its findings that it was not credible that she would have been issued a passport by the PSB were it true that the PSB had identified her as being a Falun Gong practitioner and detained her. Exit from China [30] The RAD has considered the Appellant's ability to exit China when she was being monitored and pursued by the PSB as she alleges, especially given her evidence that she was ordered by the authorities to sign a guarantee declaring that she would not leave the country. The RAD also considered her evidence that she used the services of a smuggler to exit China and that the smuggler paid a bribe so that she could exit undetected through security at the airport in Beijing. This matter was not considered by the RPD in its analysis, nor is it argued in the pleadings. [31] The RPD considered the documentary evidence12 that speaks of the Golden Shield national computer network used by the PSB, which includes information on passports and exit and entry as well as information on criminal fugitives. [32] A review of the documentary evidence provides persuasive evidence that corrupt officials are involved in the smuggling persons through border controls. The RAD notes that section 33.06 reveals that there have been some dated cases of corrupt officials involved in the production of genuine and false identity documents for money or to smuggle members of their own family abroad. However, the evidence does not speak to the pervasiveness of the practice nor does it provide any indication that the same circumstances exist today. 33.06 As reported by the Canadian IRB on 8 September 2005, "A professor of criminal justice at Rutgers University, who has written on Chinese human smuggling, told the Research Directorate that, in his opinion, "it is pretty easy to obtain all kinds of fake documents in China, including identity documents, birth certificates, university diplomas and hospital documents." Citing a 2002 report by the Australian Institute of Criminology the IRB reported that '... corrupt officials provide "both genuine and fraudulent documents in exchange for money, or... for the migrant smuggler's promise to smuggle a member of the corrupt official's family abroad".'13 [33] The RAD also finds that section 33.07 also does not offer persuasive evidence that corrupt officials are involved in the smuggling of persons being sought by the Chinese authorities. Rather, the documentary evidence cited by the Appellant is based upon the speculation of one observer rather than substantiated facts. 33.07 On 14 June 2007 the Canadian IRB reported: 'a representative of the New York-based Human Rights in China (HRIC) states that "[i]t is completely conceivable that corrupt officials could be involved in the illegal production and sale of fraudulent [identity] documents. Reports to this effect circulate regularly, sometimes involving passports as well... The fake documents would be most useful to people with active arrest warrants trying to evade police notice, or for obtaining employment or housing"... In an effort to reduce fraud and to correct Resident Identity Card mistakes, the general public in China reportedly now has access to the country's Public Security Bureau (PSB) database, which contains information on 1.3 billion citizens... according to the PSB, about 90 percent of criminals make use of fraudulent identity cards.'14 [34] Country documents15 state that the PSB have established a national policing database, which includes "criminal fugitive information" and "information on passports and exit and entry." In 17 June 2009, correspondence with the Research Directorate, a counsellor at the Embassy of the People's Republic of China in Ottawa provided the following information on Public Security Bureau (PSB) information sharing: 1. The national computer network of policing is called the Golden Shield Project. 2. The Project has eight databases: (1). Population information, mainly the information on the citizen ID; (2). Criminal record information; (3). Criminal fugitive information; (4). Information on stolen and robbed cars; (5). Information on passports and exit and entry; (6). Information on registered cars and drivers; (7). Information on police officers; (8). Information on key fire-prevention units. 3. Now all police departments at county level and above (namely police departments at provincial, city and county levels) and most police stations and other grass-roots units (namely police under the county level) can connect to the system. Some small police stations and grass-roots units in remote areas cannot connect to the system. 4. Chinese police are in charge of exit and entry administration. Just like CBSA [Canada Border Services Agency], in all ports of entry including international airports there are police units in charge of examination and they can connect to the system. ... A researcher... stated the following in correspondence with the Research Directorate: 'China's Public Security Departments absolutely do have nationwide computer information sharing networks, and have been working hard to develop and expand those for at least a decade'... It also includes monitoring phone conversations with advanced speech recognition technology, and monitoring citizens' movement through a vast network of surveillance cameras, equipped with face recognition technology... [35] The Appellant has alleged that she was identified as a practitioner of Falun Gong and that she was being pursued by the PSB in China. The RAD notes that the Appellant has not provided any evidence to suggest that the smuggler had the ability to circumvent the extensive security at the airport which would allow her to exit China without being detected. [36] Given the Appellant's allegation that the PSB were in pursuit of her, it would appear unlikely that she would have been able to leave China without being detected. [37] Further, the documentary evidence before the RPD on issues of security and exit control is contained in Request for Information (RIR) CHN102869.E dated July 2008. The RIR states in part: In March 2008, the General Administration of Civil Aviation of China (CAAC), China's aviation regulator, reportedly introduced new security regulations (Airport International 17 Mar. 2008; Xinhua 27 Mar. 2008). The regulations instruct airport security to conduct a more thorough examination of hand luggage, to ban liquids on flights (ibid.; Airport International 17 Mar. 2008), and to have passengers remove their shoes for security checks (Xinhua 27 Mar. 2008). The regulations additionally prohibit "easy boarding" services, which had previously allowed passengers to obtain faster security checks and priority boarding (ibid.; Airport International 17 Mar. 2008). According to a 27 March 2008 article by the Chinese Xinhua News Service, the CAAC has also requested that all international airlines provide "accurate," "complete" and "timely" information on passengers and airline staff to the Chinese border authorities (Xinhua 27 Mar. 2008). The requested information reportedly includes name, nationality, gender, date of birth and passport number and expiration date (ibid.). [38] Based on the foregoing, it is clear from the objective evidence that security practices have become increasingly stringent in recent years in China and that there are systems now in place to identify persons leaving the country. Where it is found a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.16 The RAD finds, in this case, there is an evidential foundation to find that the Appellant's allegation that she is being pursued by the Chinese authorities because she is a Falun Gong practitioner is not credible. [39] The RAD notes that the United Kingdom Operation Border Report, dated 29 August 2012, states the following: The Chinese police have access to a National Computer Database, known as Golden Shield Project. Its aim is to improve policing, and there are strict regulations on the use of the database. It holds information on population information, criminal records information, information on criminal fugitives, information on stolen vehicles, information on passports and exit/entry data, information on registered cars and drivers, information on police officers and information on key fire-prevention units. All police departments at county level and above (i.e. police departments at provincial, city and county levels) and most grass-roots units (police units below county level) can now connect to this system. There are some small police departments in remote areas that cannot yet connect to Golden Shield.17 [40] The RAD notes the Appellant is from XXXX XXXX, not a remote area. According to a 13 April 2006 article from the New York-based Epoch Times, an official from the Ministry of Public Security indicated that the objective of the Golden Shield project is to "facilitate the transmission and sharing of data among police so as to enhance the capability of the police to solve cases." The article also describes the Golden Shield as a "digital system for information management within the Public Security Ministry," with 640,000 network computers that are "grouped into 23 operating systems," which contain population, crime, vehicle registration and border control information (The Epoch Times 13 Apr. 2006).18 [41] A researcher, who has conducted research and published on the Chinese policing system for fifteen years and who was previously a professor of Chinese and East Asian politics at Western Michigan University, stated the following in correspondence with the Research Directorate: China's Public Security Departments absolutely do have nationwide computer information sharing networks, and have been working hard to develop and expand those for at least a decade.... [A] fair amount is published about them in Chinese language police journals. One does read complaints about provincial police departments not being willing to share information with each other, however. For Chinese readers, a good deal of information about nationwide arrest warrants is openly available on the webpage of the Ministry of Public Security (www.mps.gov.cn) and on the webpages of the various provincial public security departments. There has really been an explosion of this online police information in the past 6-7 years. (11 May 2009)19 [42] The RAD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.20 The RAD finds that based on the objective evidence in the record of the measures in place at Chinese borders, her ability to exit China on her own documents undermined her allegations that she is wanted by the PSB as she has alleged. Identity as a Falun Gong practitioner [43] The RPD drew an adverse credibility finding concerning the Appellant's identity as a practitioner of Falun Gong. [44] The Appellant argues that the RPD's findings were ignoring and/or misinterpreting the evidence before it, the RPD drew unfounded inference not supported by the evidence. [45] The RPD found material omissions from the BoC form and the narrative. "The claimant's BoC form and narrative omit mention of her allegations that her son told her in a telephone call that the PSB have come to her house in XXXX 2012 to look for her and that her son told the PSB that she is in Canada. She also did not mention that social welfare authorities came looking for her in XXXX 2012. The BoC form is dated September 23, 2013 and the narrative is signed "12/11/13. Her explanation for this omission was that she did not know that she had to put such information in her form. The RPD did not find the explanation credible, "considering how material the allegation is to her claim and considering the instructions throughout the BoC form, to which the narrative is related, to provide detail." [46] The RPD considered that the Appellant "also omitted any mention from her BoC form and from her narrative of being a practitioner of Falun Gong in Canada. When asked to explain, she said that she mentioned only what happened to her in China." In follow-up as to why she had not included her practice in Canada of Falun Gong, which the Appellant had identified as illegal in China, the Appellant replied "that Canada allows the practice." The RPD rejected this explanation, as it does not directly respond to why she did not mention that she practices Falun Gong in Canada. The RPD concluded that "given this omission, the claimant has not credibly established a sur place claim relating to her group practice of Falun Gong in Canada in a park. Instead, she has attempted to bolster her claim through such allegations made orally."21 [47] The RPD also found "that the many unresolved and material credibility issues respecting the claimant's account of her alleged practice of Falun Gong renders her account of her practice in Canada not credible, as she has demonstrated generally that she is not a credible witness,22 which supports that credibility findings relating to the practice of Falun Gong in China are relevant to consider in regard to an assessment of the sur place claim. [48] The RAD notes that the BoC form provides this instruction to the refugee claimant: When you answer the questions in this section, please explain everything in order, starting with the oldest information and ending with the newest. INCLUDE EVEYTHING THAT IS IMPORTANT FOR YOUR CLAIM. INCLUDE DATES, NAMES AND PLACES WHEREVER POSSIBLE. [49] Most of the questions that follow provide a list of sub-questions. One of the last questions is completely open-ended: Give any other details that you think are important for your claim for refugee protection. At the end of the form, the claimant is required to sign a declaration that the information is complete, true, and correct. [50] Having considered these instructions, it is quite difficult for the RAD to understand the Appellant's argument that she did not know that she had to put such information in her form and only mentioned what had happened to her in China. [51] The RAD notes that the narrative dated November 12, 2013 and faxed to the IRB on November 20, 2013 shows amendments made to the original BoC narrative. [52] The RAD notes that the Appellant was represented at the hearing by experience counsel. The Appellant did not submit that counsel did not prepare her for her hearing. Counsel ought to know that an application could be made prior to the hearing to submit further amendments to the narrative, but she did not. Given that she was represented, it would be reasonable for the Appellant to "include everything that is important" to her claim as noted in the instructions provided in the BoC to refugee claimants. The RAD finds the omission of the information that the PSB has been searching for the claimant and that she is practicing Falun Gong in Canada from her BoC is significant and therefore concurs with the RPD's finding that the Appellant "has not credibly established a sur place claim relating to her group practice of Falun Gong in Canada in a park. Instead, she has attempted to bolster her claim through such allegations made orally." The RPD's findings here were based on the Appellant's testimony at the hearing, and the RAD must therefore respect and concur with those findings. However, even if the RAD did not defer to the RPD's conclusion here, it would reach the very same conclusions based on its own review of the evidence. Sur Place Claim [53] The RAD is cognizant that the Board is entitled to take its negative credibility findings into account when assessing the sur place claim of Falun Gong practice, as per Ding23 and Jiang.24 As outlined above, the Appellant's allegations of genuine Falun Gong practice in China and her being wanted by the PSB for her practice were found not to be credible. The RAD is also cognizant that it is reasonable to take into account the fact that the Appellant fabricated the allegations in assessing the genuineness of the Appellant's practice for practicing Falun Gong, as per Su.25 [54] The RAD considered the totality of the evidence on the record regarding the genuineness of the Appellant's Falun Gong practice. [55] The Appellant submits the case of Ejtehadian26 in which it was held that the RPD had erred in law by purporting to consider a sur place claim on the basis of the authenticity of a claimant's religious conversion. Mr. Justice Blanchard stated: The IRB's articulation of the test in a sur place claim is incorrect. In a refugee sur place claim, credible evidence of a claimant's activities while in Canada that are likely to substantiate any potential harm upon return must be expressly considered by the IRB even if the motivation behind the activities is non-genuine. [56] The Appellant submits that the RPD's finding that she is not a genuine Falun Gong practitioner is not supported by the evidence. The Appellant further submits that an adverse credibility finding must have a proper evidentiary foundation, or else risk being overturned.27 [57] While the RPD's decision could have been written more clearly, the RAD finds that the RPD drew a negative credibility finding concerning the Appellant's identity as a practitioner of Falun Gong and found the Appellant had not established a sur place claim relating to her practice of Falun Gong in Canada. As noted above, the RPD found the Appellant had demonstrated generally that she is not a credible witness. [58] The Appellant submits that adverse findings of credibility based on implausibility in a claimant's testimony must be based on reasonably drawn inferences. The Appellant argues that the RPD did not point to any evidence in support of the inference that she is not a Falun Gong practitioner. The Appellant further submits that the documentary evidence clearly shows that Falun Gong is a banned practice in China and that its practitioners are dealt with harshly. The Appellant submits that the RPD did not make a finding with regard to the applicant's association with Falun Gong, notwithstanding its finding that the events in her BoC did not actually take place. Such a finding must be made in clear and unmistakable terms.28 Specifically, the Appellant points out that the RPD failed to mention the pictures of the Appellant with Falun Gong groups in Toronto, these photos being evidence of the Appellant's continued practice of Falun Gong. Therefore, the Appellant submits that this finding of implausibility is based on conjecture and is not supported by the evidence. [59] The RAD is not persuaded by the Appellant's argument in this regard. The RPD clearly stated in its reasons "although the claimant produced photographs of her practicing Falun Gong in a part in Canada, they are dated November 2, 15 and 18, whereas she alleged to have been doing so since about XXXX days after her arrival to Canada. The claimant acknowledged that the photographs were taken to support her claim and that she does not have any earlier photographs, as none were taken. The RAD finds the RPD considered the photographs in its overall determination with regards to the credibility of the Appellant's identity as a genuine Falun Gong practitioner. [60] Although not argued by the Appellant, the RAD notes that the RPD also considered the "letter of proof" purporting to be from a fellow practitioner of the Appellant in Canada in assessing her profile as a Falun Gong practitioner. The RPD gave no weight to this letter as supporting a sur place claim. The RPD found the letter to be brief and lacked details about the main allegation of the Appellant's practice of Falun Gong in Canada. The RAD finds that these documents can only attest to the claimant's participation in Falun Gong activities in Canada; they do not attest to her alleged profile as a long-term practitioner in China. While it is true that the letter of support from a fellow practitioner in Canada has suggested that they "study and practice together", there is no evidence that the author of this letter is from a disinterested source that would have no interest in the outcome of the Appellant's claim for refugee protection. As such, the RPD giving no weight to this "letter of proof" is sound. [61] The RAD finds that the RPD's justification for rejecting the genuineness of the Appellant's practice of Falun Gong is not flawed. As mentioned above, although the RPD's reasons could have been written more clearly, what is clear is that there is sufficient evidence in the record to support the RPD's finding in this regard. [62] The RAD notes that the RPD did question the Appellant regarding her knowledge of Falun Gong; however, the questions were not exhaustive. The RAD finds that, although the Appellant was able to demonstrate that she has some knowledge of Falun Gong, it does not necessarily mean she is a genuine practitioner. Merely having some information regarding basic teachings and practice or the lack of such information does not necessarily reflect a genuine or false practice. It is necessary to consider the totality of the evidence in the record. The RAD considered the totality of the evidence on the record regarding the genuineness of the Appellant's Falun Gong practice. The Appellant volunteered to describe talk number four; however, when asked to describe instead talk number two, she had great difficulty in doing so. She explained that it is hard to recite, and she did not have access to books or texts about Falun Gong when she was in China and accessed such materials only in Canada in July. The RPD did not find this explanation credible, since the Appellant was prepared to describe talk number four, "despite the alleged lack of access to written material about Falun Gong. Her vague description of talk number two, whereas she volunteered that she could describe talk number four, indicates to the panel that her knowledge of Falun Gong has been rehearsed for the hearing." The RPD also considered that the Appellant "provided an example of exercise number three; however, she herself volunteered before doing so that Falun Gong exercises are simple to learn." [63] A review of the audio recording supports the RPD's negative credibility finding regarding her inability to describe talk number two. Therefore, the RAD finds the RPD's finding in this matter is sound. As such, the RAD finds that the knowledge she possesses could easily have been gained in Canada and gives no weight to the Appellant's ability to answer questions about Falun Gong. [64] The Appellant submits that, "even if the panel were to reject some of the claimant's evidence but were to accept that the claimant was a participating member of Falun Dafa who attends Falun Dafa activities in Canada, then the panel must, pursuant to the Djama and Taire decisions, apply the Adjei standard of likelihood of harm to the evidence before it." The RAD reviewed the audio recording of the hearings and the record and found the Appellant had not put forth any evidence that she participated in or attended any Falun Dafa activities and events in Canada; therefore, this argument cannot stand. [65] The RAD also notes that the Appellant has not tendered any persuasive evidence that she is being pursued by the PSB or any other authority in China for any reason. On the basis of the totality of the RPD's findings affirmed in these reasons, the findings of the RAD and the lack of persuasive evidence to the contrary, the RAD finds, on a balance of probabilities, that the Appellant's allegations that she was a Falun Gong practitioner in China and that her Falun Gong group and that she is being pursued by the PSB because of her involvement with Falun Gong is not credible. [66] Having found that the Appellant was not a practicing Falun Gong practitioner in China, the RAD must consider whether the claimant is a genuine Falun Gong practitioner in this country. Having previously found the Appellant's testimony with regard to her Falun Gong affiliation in China not credible, the RAD finds, on a balance of probabilities, and in the context of all of the findings and negative inferences drawn above, that her claim that she was a Falun Gong practitioner in China was not credible. The Appellant has alleged that her desire to initiate the practice of Falun Gong took place as a result of circumstances which occurred in China. She alleges her continued practice of her alleged belief system in Canada is based on her adherence to her practice in China. [67] Having found that she was not a Falun Gong practitioner in China and having insufficient evidence of conversion in Canada, the RAD finds, on a balance of probabilities, and in the context of the findings noted above, that the Appellant joined a Falun Gong group in Canada only for the purpose of supporting a fraudulent refugee claim. The RAD also finds that there is no persuasive evidence that the Appellant's practice of Falun Gong in Canada has come to the attention of Chinese authorities or that she would be perceived to be a genuine practitioner. In the context as noted above and on the basis of the totality of evidence, the RAD finds that the Appellant is not a genuine adherent of Falun Gong, nor would she be perceived to be in China. [68] The RAD is guided in its analysis by a decision of Madam Justice Gleason29 in assisting it in assessing its forward-looking decision. Madam Justice Gleason concludes that a claimant must stratify the RPD that he or she will continue to practice his or her faith in China. Proof of joining a church and knowledge of its precepts, however, does not equate to proof that the individual would be at risk if returned to his or her country of origin. In the context of a country such as China, where persecution is practiced against Christians not for apostasy but for the practice of their religion, the claimant must satisfy the RPD that he or she will continue to practice his or her faith in China.30 [69] Based on the totality of the evidence and considering that the allegations of genuine Falun Gong practice in China were found not to be credible, and given the concerns with the evidence provided in support of her practice, the Appellant has failed to provide sufficient credible and trustworthy evidence to establish a genuine Falun Gong practice in Canada and that she would practice Falun Gong in China. Microscopic Examination [70] The RAD considered the submission by the Appellant that the RPD's errors were compounded by conducting a microscopic analysis with regard to the Appellant's claim. [71] The RAD is not persuaded by the Appellant's argument in this regard. Although the RAD found the RPD's issue of the Appellant's identity was incorrect, the RAD finds that the RPD did not apply an overly vigilant and microscopic examination of the Appellant's other evidence. In addition, the RAD does not find that it was fixed on peripheral or irrelevant issues for the credibility findings in this case. The questions posed by the RPD were intended to assess the credibility of the Appellant's testimony and the credibility of the documents she submitted to support her claim. It was open to the RPD to test the credibility of the Appellant's evidence. Moreover, the Federal Court stated, in Beneclerc31 that the panel member can question the applicant energetically in order to, among other things, clarify the shortcomings in the evidence and to assess their credibility. The RPD relied on the totality of evidence before it in determining the Appellant was not credible. As such, the RAD finds the RPD did not apply an unduly stringent or microscopic analysis. Accordingly, the Appellant's argument in this regard must fail. Section 97 Analysis [72] The Appellant submits that the RPD erred in law in the application of section 97 of IRPA.32 The Appellant points to paragraphs from the RPD's reasons for decision, however, fails to put forth an argument in this matter. Therefore, it is unclear to the RAD, the error allegedly made by the RPD in its analysis. [73] Despite this omission in the pleadings, the RAD considered the following: It is trite law that a negative credibility finding in relation to Section 96 will often obviate the need to consider Section 97. Although in this case the consideration of Section 97 was largely implicit in the reasons, there was nevertheless an analysis. Given the RPD's credibility concerns about credibility, the relatively cursory nature of the Section 97 analysis was reasonable in fact and correct in law, and therefore the Appellant's argument in this regard must fail.33 DISPOSITION [74] The RAD finds that the Appellant had not established, on a balance of probabilities, that she was a Falun Gong practitioner in China or that she is currently a genuine Falun Gong practitioner in Canada. The RAD is guided by the Federal Court by Jiang34 that indicates the RPD is entitled to import its credibility findings into its assessment of an Applicant's sur place claim. The RPD's findings, together with the record, are sufficient to establish that the Appellant has no sur place claim. [75] The RAD also finds that there is sufficient evidence on the record to support the RPD's overall determination. The RAD concurs with the RPD's decision and finds that, on the basis of the totality of the evidence in this appeal, the Appellant has not satisfied her burden of establishing a serious possibility that she would be persecuted or that she would be personally subjected to a risk to her life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in China. [76] Accordingly, this appeal is dismissed. (signed) "C. Forbes" C. Forbes December 10, 2014 Date 1 Exhibit RPD-1, RPD's Record, Exhibit 11, 12 and 17. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Ibid., Huruglica, para 54. 4 Ibid., Huruglica, para 55. 5 Exhibit RPD-1, RPD's record, Exhibit 1. 6 Exhibit RPD-1, RPD's record, Exhibit 1. 7 Exhibit RPD-1, RPD's record, Exhibit 6. 8 Exhibit RPD-1, National Documentation Package (NDP) for China (31 October 2013), Items 3.11 to 3.21. 9 Exhibit RPD-1, NDP for China (31 October 2013), Item 3.22. 10 Exhibit RPD-1, NDP for China (31 October 2013), Item 3.6, Passport Law of the People's Republic of China. 11 Exhibit RPD-1, NDP for China (31 October 2013), Item 2.1, United States, China: Country Reports on Human Rights Practices for 2012, 19 April 2013. 12 Exhibit RPD-1, NDP for China (31 October 2013), Item 10.3. 13 Exhibit RPD-1, NDP for China (31 October 2013), Item 2.3, United Kingdom, Home Office, Country of Origin Information (COI) Report: China, 12 October 2012. 14 Exhibit RPD-1, NDP for China (31 October 2013), Item 2.3, United Kingdom, Home Office, Country of Origin Information (COI) Report: China, 12 October 2012. 15 Exhibit RPD-1, NDP for China (31 October 2013), item 10.3, RIR CHN103133.E, 2 July 2009. 16 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 17 Exhibit RPD-1, NDP for China (31 October 2013), Item 2.3, United Kingdom, Home Office, Country of Origin Information (COI) Report: China, 12 October 2012. 18 Exhibit RPD-1, NDP for China (31 October 2013), Item 10.3. 19 Ibid., item 10.3. 20 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 21 Li, Shi Jie v. M.C.I. (F.C., No. IMM-8521-11), Gleason, August 15, 2012; 2012 FC 998. 22 Jiang, Sumei v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012; 2012 FC 1067. 23 Ding, Lijie v. Canada (Minister of Citizenship and Immigration), IMM-3708-13, Mactavish, August 22, 2014, 2014 FC 820. 24 Jiang v. Canada (Minister of Citizenship and Immigration), 2013 FC 1067 at para 27, [2012] F.C.J. No. 1149. 25 Su, Hao Wen v. Canada (Minister of Citizenship and Immigration), Gleason, Imm-7356-12, May 17, 2013, 2013 FC 518. 26 Ejtehadian, Mostafa v. M.C.I. (F.C., no., IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158. 27 Giron, Luis Fernando Soto v. M.E.I. (F.C.A., no. A-387-89), Mahoney, MacGuigan, Linden, May 28, 1992 ; (1992), 143 N.R. 238 (F.C.A.) 152; 33AC.W.S (3d) 1270 (F.C.A). 28 Armson, Joseph Kaku v. M.E.I. (F.C.A., no. A-313-88), Heald, Mahoney, Desjardins, September 5, 1989; (1989), 9 Imm. L.R. (2d) 150 (F.C.A.); [1989] F.C.J. No. 800, 101 N.R. 372 (F.C.A.). 29 Li, Shi Jie v. M.C.I. (F.C., No. IMM-8521-11), Gleason, August 15, 2012; 2012 FC 998. 30 Ibid. 31 Bénéclerc v. M.C.I. (F.C., no. IMM-2538-06), Martineau, March 6, 2007; 2007 FC 266. 32 Exhibit P-1, Appellant's Record, p. 29 of the pleadings. 33 Ache, Djidda Mahamat v. M.C.I., (F.C., no. IMM-5907-10), Simon Noël, June 9, 2011; 2011 FC 659, paragraph 15 34 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 : TB4-07855