TB9-21717

RAD File / Dossier de la SAR : TB9-21717 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 October 29, 2019 Date de la décision Panel M. Lee Tribunal Counsel for the person who is the subject of the appeal Jacqueline M. Lewis 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] XXXX XXXX XXXX (Appellant), citizen of China, appealed a decision of the Refugee Protection Division (RPD), dated July 19, 2019, rejecting his claim for refugee protection. DETERMINATION [2] In accordance with paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) dismisses the appeal. BACKGROUND [3] The Appellant alleges to fear persecution in China because of his profile as a Falun Gong practitioner. The Appellant left China for Canada on XXXX XXXX, 2018. He made his refugee claim in Canada XXXX weeks later. [4] The RPD heard the Appellant's refugee claim on July 10, 2019. The RPD rejected the claim on the determinative issue of credibility. The Appellant alleges that the RPD erred in its credibility assessment. The RAD carefully considered the merits of the appeal in its decision below. Role of the RAD [5] According to the Federal Court of Appeal's ruling in Huruglica,2 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. [6] The RAD will defer to certain findings of the RPD where the RPD enjoys a meaningful advantage in assessing the oral evidence at the hearing. ANALYSIS No new evidence and no request for oral hearing [7] The Appellant is not making an application to submit new evidence under subsection 110(4) of the IRPA.3 The Appellant is also not making an application for an oral hearing under subsection 110(6) of the IRPA.4 RPD erred in part by failing to assess evidence regarding events in China [8] The RAD finds that the RPD erred in part by failing to assess the Appellant's evidence regarding events in China. While the RPD questioned on both events in China and Canada at the hearing, the RPD focused its decision based on the Appellant's inadequate knowledge of Falun Gong. After conducting its own independent assessment, the RAD finds that the Appellant's evidence regarding China is not credible on a balance of probabilities, and so it does not impact the final outcome of the decision. [9] The Appellant submits that if the RPD found what happened to the Appellant in China to be credible, then these findings would have impacted the significance that it placed on the Appellant's religious knowledge.5 [10] The RAD agrees in part. The RAD finds that the RPD failed to include some analysis on the credibility of the Appellant's alleged Falun Gong activities in China. The events that allegedly occurred in China led the Appellant to seek refuge in Canada, and so this evidence could have some significance and must be assessed. However, after listening to the entire RPD hearing recording, the RAD finds that the Appellant's testimony on the events in China are not credible, on a balance of probabilities. [11] The Appellant explained that he threw away his medical documents which could have corroborated the health conditions that he allegedly experienced before turning to Falun Gong practice.6 Therefore, given that the medical documents are not available, the Appellant's oral testimony regarding what he learned about Falun Gong in China becomes all the more important. [12] At the hearing, the Appellant explained that his friend in China first taught him the Falun Gong exercises. However, the Appellant provided convoluted testimony regarding whether he learned the verses associated with the exercises in China or in Canada. Initially, the Appellant explained that he learned the verses from a friend in Canada and the exercises from his friend in China.7 When questioned further, the Appellant explained that he learned the verses in China but he did not remember them until he came to Canada.8 Later in oral testimony, the Appellant explained that he could not recite the verses entirely while he was in China, because he had very low education and his memory was not good.9 [13] The RAD does not find the Appellant's explanation to be satisfactory. The RAD accepts that the Appellant is limited in his education and literacy. The RAD also accepts that it is plausible that a Falun Gong practitioner with literacy limitations may rely more on oral teachings rather than written materials to learn Falun Gong. However, it is unclear how a limited education would hinder a person's memory. According to the documentary evidence, the verses are meant to accompany the exercises.10 The verses have meaning and symbolism for Falun Gong practitioners; otherwise the exercises would merely be a fitness routine. The verses are an essential component of the Falun Gong exercises. The RAD notes that the Appellant did not have any problems remembering what he learned about changing karma to virtue.11 According to the Appellant's Basis of Claim (BOC), he also allegedly learned this concept from this friend in China.12 [14] In comparison, the Appellant testified that he practiced the Falun Gong exercises daily in China for nearly a year, and received personalized instruction from his friend. The RAD finds it unclear how the Appellant's minimal education would prevent him from remembering the one basic component of Falun Gong which he allegedly practiced daily, while he was still capable of remembering other concepts. The RAD finds that the Appellant's vague testimony negatively impacts the Appellant's overall credibility. Therefore, even after an assessment of the Appellant's testimony regarding events in China, the RAD finds that the RPD's negative credibility assessment remains correct. RPD was correct in drawing negative inference for Appellant's inability to explain righteous thoughts [15] The RAD finds that the RPD was correct to draw a negative inference to the Appellant's credibility for failing to explain the concept of righteous thoughts. The RPD found the Appellant's description of righteous thoughts was inconsistent with the documentary evidence. The RPD found this unreasonable given that the Appellant had been practicing Falun Gong for two years.13 [16] The Appellant submits that the RPD misconstrued his evidence and mischaracterized his testimony.14 The Appellant further submits that the RPD placed too high a threshold upon the Appellant to demonstrate knowledge.15 The Appellant submits that he was nervous and had limited education, and repeatedly indicated that he did not understand most Chinese characters in the Falun Gong books.16 [17] The RAD disagrees with the Appellant. At the hearing, when asked to describe righteous thoughts, the Appellant responded that he would not involve himself with other cults like qi gong and needs to focus on Falun Gong and not to think about other things.17 According to the documentary evidence, Falun Gong practitioners send righteous thoughts in order to reduce the evil beings' persecution of Dafa, Dafa disciples, and the people of the world.18 Master Li requires Falun Gong practitioners to take sending righteous thoughts seriously in order to purge the evil and their own problems, so they will not be taken advantage of by the evil.19 The documentary evidence also outlines a detailed four-step process by which practitioners engage in sending forth righteous thoughts.20 [18] The RAD finds that the Appellant's explanation is entirely inconsistent with the objective definition and purpose of sending righteous thoughts. Once again, the RAD is mindful that the Appellant may not be able to read and understand these concepts on his own. However, the Appellant did not allege that he developed his practice of Falun Gong in isolation. The Appellant explained that he regularly attends practice groups in Canada and relies on other people to teach him the concepts. The RAD does not expect the Appellant to be able to describe concepts with perfect eloquence. However, from the Appellant's response, he does not have any remote idea of the definition or purpose of righteous thoughts, despite the centrality of this concept to Falun Gong practitioners. [19] According to the documentary evidence, the foundation of Falun Gong is based on a body of fundamental knowledge, essential for the task of undertaking proper cultivation.21 The RAD finds that Falun Gong is distinguished from other religions, since it is in fact a knowledge-based faith. Hence, based on Master Li's teaching, efforts to grow in knowledge is an indication of sincerity of belief for Falun Gong practitioners. Therefore, there is an expectation that a genuine practitioner would make efforts to grow in their understanding of this faith system from the time they begin their practice of Falun Gong. [20] The Appellant alleges that he received oral instruction on the teachings of Falun Gong from his friend in China and from his friend in Canada, who both happen to be the leaders of the practice groups in their respective countries. The Appellant has allegedly been learning and practicing Falun Gong for over two years. Also, the RAD notes that the Appellant's support letter from this alleged leader of his Falun Gong group in Canada indicates that the Appellant studies Dafa in Canada regularly. However, the Appellant's lack of knowledge of righteous thoughts does not reflect the profile of a practitioner who has been regularly studying in Canada; either by way of reading or by oral teachings from other practitioners. [21] Also, in spite of the Appellant's literacy and education limitations, the Appellant allegedly felt so convicted by Falun Gong principles, that he joined an illegal practice group in China, and paid thousands of dollars to an illegal smuggler to take him to Canada for the very purpose of learning and practicing Falun Gong openly. The Appellant alleged that he joined a practice group in Canada, and now has every opportunity to continue cultivating his knowledge of Falun Gong. The RAD also finds that the Appellant's lack of knowledge of righteous thoughts does not reflect ongoing efforts to learn about Falun Gong. [22] Given the length of time that the Appellant alleges to have practiced, and that the Appellant alleges to have been taught directly from alleged leaders, the RAD finds that the RPD was correct to find that the Appellant should be familiar with the concept of righteous thoughts, and to draw a negative inference to his credibility. RPD was correct to draw negative inference to Appellant's credibility for vague and non-responsiveness regarding favourite chapter in Zhuan Falun [23] The RAD finds that the RPD was correct to find the Appellant to be non-responsive and his description of his alleged favourite talk in Zhuan Falun to be vague. The RPD found that the Appellant was unable to explain why chapter 3 of Zhuan Falun was meaningful to him despite indicating that it was his favourite chapter.22 [24] The Appellant submits that his inability to answer the question as directly as the RPD would have liked does not render his response "non responsive".23 The Appellant gave an explanation for why this was his favourite chapter and answered the RPD's question.24 [25] At the hearing, the Appellant explained that he has only read chapter 3 of the Falun Gong text, Zhuan Falun due to his literacy limitations. The RPD asked the Appellant to describe the chapter. The RAD finds that the Appellant's explanation was brief and non-descript. He explained that this is his favourite chapter, because "Master Li talks about the chapter very well".25 The Appellant then indicated that Master Li said to "use his heart to practice" and "not to think about other things".26 [26] When the RPD asked the Appellant what the chapter meant to him personally, the Appellant did not provide a response, and simply recited parts of chapter 3. He testified that Master Li does not want people to practice "other kinds of exercise and other kinds of kung fu", and to "focus his heart on Falun Gong", and "his health can be improved".27 [27] According to the documentary evidence, chapter 3 of Zhuan Falun is entitled "I Regard All Who Learn as My Students".28 The chapter includes topics such as "Buddhist Energy Practices and Religious Buddhism", "Staying True to One Practice", and "Supernormal Powers and Spiritual Power".29 At the hearing, the Appellant admitted that he had trouble reading the entirety of this chapter because he did not understand all the Chinese characters. Even if the Appellant had only read parts of the chapter, the Appellant was given an opportunity to explain in his own words why these teachings were important to him. However, a vague recitation of excerpts from chapter 3 is not a personal explanation about why or how the chapter is meaningful. Therefore, the RAD finds that the RPD was correct to draw a negative inference for the Appellant's vague response. RPD erred in making negative inference for XXXX week delay [28] The RAD does find that the RPD erred by drawing a negative inference to the Appellant's XXXX week delay in claiming refugee protection. The RPD found that the Appellant happened by chance to meet a person from his hometown on the street who advised him of the possibility of making a refugee claim, XXXX weeks after his arrival.30 The RPD found that the Appellant was living in a Chinese-speaking part of the city and could have made his claim earlier.31 [29] The Appellant submits that the delay is negligible and ought not to be used against him as the refugee process takes time.32 Also, the Appellant was in Canada on a valid visitor's visa at the time, and did not face a threat of removal.33 [30] The RAD finds that the XXXX week delay is minimal in the circumstances. The Appellant continually testified that his literacy in Chinese is limited. The RAD finds that even though he was living in a Chinese-speaking area of Toronto, he would have some challenges in navigating the refugee process. The RAD also takes into account that the Appellant was living in Canada on a visitor's visa, and so he was not out of status. Therefore, the RAD finds that the RPD erred by drawing a negative inference, given the above assessment. However, the RAD finds that this error does not overcome the other credibility concerns upheld above. RPD was correct in finding that there is no sur place claim [31] The RAD finds that the RPD was correct in finding that there is no sur place claim for the Appellant. The RPD found that there was no evidence that the Appellant's Falun Gong activities had come to the attention of the authorities in China.34 [32] The Appellant submits that there is more than a mere possibility that the Appellant would be persecuted if he returned to China.35 The Appellant cites documentary evidence indicating that Falun Gong practitioners outside of China are monitored by Chinese authorities.36 Since the RPD did not dispute evidence that the Appellant engaged in public practice and demonstrations, the RPD erred by dismissing the sur place aspect of the claim.37 [33] The RAD considered the documentary evidence as well as the evidence regarding the Appellant's participation in Falun Gong activities in Canada. At the hearing, the Appellant presented three photographs of himself practicing Falun Gong in front of Toronto government buildings, and one photograph of himself handing out flyers.38 The Appellant also provided one photograph of himself sitting in a large crowd, participating in a demonstration by candlelight.39 The Appellant explained that it was raining that day, so many of the participants in the photograph wore thick jackets and hats. The location of this demonstration is unclear from the photograph itself. However, the Appellant explained that this took place in front of the Chinese embassy. The Appellant also explained that he simply followed a crowd of Falun Gong practitioners to the embassy on one occasion. [34] The documentary evidence indicates that some practitioners believe that the Chinese government plants people in Falun Gong groups to report on them and to create internal division.40 The same article also indicates that Chinese authorities have been known to photograph practitioners who protest outside the embassy or consulates.41 [35] After careful consideration of the evidence, the RAD does not find that there is more than a mere possibility that the Appellant would face persecution as a perceived Falun Gong practitioner in China based on his activities in Canada. The RAD finds that the Appellant's involvement in Falun Gong activities in Canada is very limited. The Appellant participated in one protest. In the photograph, he is sitting amongst a very large crowd of people in the dark, holding candles. There is nothing in the photograph that would personally identify the Appellant out of the crowd. [36] He provided one support letter from a Falun Gong practitioner whom he claims is a group leader. The letter-writer does not describe herself as a leader.42 The letter indicates that they study Dafa together,43 but the Appellant's knowledge of basic principles is very limited as described above. The photographs of the Appellant practicing with a Falun Gong group are all undated. Therefore, it is uncertain how frequently the Appellant practiced or studied with this group. The RAD does not find that this letter is reliable or probative evidence, as there is no description of how this letter-writer was able to assess the genuineness of the Appellant's practice and it is given little weight to corroborate the Appellant's practice in Canada. [37] Therefore, based on the above assessment, the RAD finds that the Appellant does not have a sur place claim as a perceived Falun Gong practitioner based on his limited participation in Falun Gong activities in Canada. At the hearing, the Appellant testified that since he left China in XXXX 2018 none of his family members have been approached by the Chinese authorities regarding his alleged Falun Gong activities.44 The Appellant did not submit any further photographs of ongoing participation in protests since his hearing, nor did he provide new evidence regarding his family and friends in China being approached by Chinese authorities based on his Falun Gong activities in Canada. Therefore, there is no evidence of the Appellant having joined any voluntary protests or demonstrations other than the ones pictured in the five photographs. [38] The RAD finds that the Appellant was not previously, nor is he presently, a person of interest to the Chinese authorities, based on his participation in Falun Gong activities in Canada, on a balance of probabilities. The RAD also finds that any knowledge that the Appellant has about Falun Gong was acquired in Canada to bolster his claim. Consequently, the RAD does not find on a balance of probabilities, that he would be a person of interest to the authorities in the future if he returned to China. [39] In summary, the RAD finds that the Appellant is not a genuine Falun Gong practitioner and he will not face a serious possibility of persecution if he returns to China; nor will he face a personalized risk to his life, of torture, or of cruel and unusual treatment or punishment. Therefore, the RAD upholds the RPD's decision. CONCLUSION [40] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "M. Lee" M. Lee October 29, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, at paragraph 78. 3 Exhibit P-2, Appellant Record, Written Statement, at page 1. 4 Ibid. 5 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 10, paragraph 12. 6 RPD Hearing Recording, July 10, 2019, at 1:10:45. 7 RPD Hearing Recording, July 10, 2019, at 1:06:00. 8 RPD Hearing Recording, July 10, 2019, at 1:06:41. 9 RPD Hearing Recording, July 10, 2019, at 1:22:03. 10 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China (28 June 2019), item 12.7, Falun Gong 7th Translation Edition, Falun Dafa, 2016. 11 RPD Hearing Recording, July 10, 2019, at 41:44. 12 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) narrative, at page 12, paragraph 3. 13 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 5, paragraph 6. 14 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 10, paragraph 16. 15 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 11, paragraph 17. 16 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 11, paragraph 19. 17 RPD Hearing Recording, July 10, 2019, at 46:26. 18 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (28 June 2019), item 12.25, Righteous Thoughts, Falun Dafa, 13 October 2002. 19 Ibid. 20 Ibid. 21 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (28 June 2019), item 12.9, Response to Information Request, CHN33180.EX, 26 November 1999. 22 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 5-6, paragraph 7. 23 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 13, paragraphs 25-26. 24 Ibid. 25 RPD Hearing Recording, July 10, 2019, at 57:25. 26 Ibid. 27 RPD Hearing Recording, July 10, 2019, at 59:19. 28 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (28 June 2019), item 12.12, Zhuan Falun. English Version, Falun Dafa, 2018. 29 Ibid. 30 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 7-8, paragraph 10. 31 Ibid. 32 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 22, paragraphs 53-54. 33 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 22, paragraph 57. 34 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 8, paragraph 13. 35 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 18, paragraph 45. 36 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 19, paragraph 46. 37 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 20, paragraph 49. 38 Exhibit RPD-1, RPD Record, Exhibit 7, at pages 214-215. 39 Exhibit RPD-1, RPD Record, Exhibit 7, at page 214. 40 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (28 June 2019), item 12.18, Response to Information Request, CHN105635.E, 19 October 2016. 41 Ibid. 42 Exhibit RPD-1, RPD Record, Exhibit 7, at pages 210-212. 43 Ibid. 44 RPD Hearing Recording, July 10, 2019, at 1:29:50. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-21717 RAD.25.02 (April 04, 2019) Disponible en français 12 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 (April 04, 2019) Disponible en français