TB5-01032

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-01032 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 21, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M Lewis Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. She has not submitted new evidence in support of her claim and she has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that she is a Convention refugee. Alternatively, she requests that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged her Church of Almighty God service was raided by the Public Security Bureau (PSB). She went into hiding and the PSB came to her home and left a summons. In addition the PSB came to her home four times and to a relative's home three times. An agent assisted her in obtaining a United States (U.S.) visa and accompanied her to the U.S. and across the border to Vancouver. She fears that if she returns to China she would be arrested and imprisoned because of her religious beliefs and activities. She also fears abuse by Chinese authorities should she be imprisoned. The Issues [4] The RPD indicates the determinative issues in this case are credibility and her religious identity. [5] The Appellant submits the issues are the following: Did the RPD Member improperly base her credibility findings on stereotypical generalizations about all members of the Church of Almighty God? Did the RPD Member err in her treatment of the Appellant's summons document?1 The Role of the RAD [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [8] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.2 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [9] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [10] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Credibility and Religious Knowledge [11] The panel asked the Appellant a number of questions to test her religious knowledge. She did not know where the term Eastern Lighting came from and the panel drew a negative inference in this regard. [12] The panel asked questions about Jesus. The Appellant stated Jesus was not alive today and she did not know where Jesus lived in the second era. The panel noted that adherents of her Church believe Jesus returned as a woman living in Henan Province, China, and her name is Deng. The panel noted the Appellant's testimony contradicted her Church's teaching, and found that she is likely not a member of this Church. [13] The Appellant testified her group did not study the Bible. The panel noted this Church is defined as a heterodox, quasi-Christian religion which has created a Third Testament to the Christian Bible. The panel cited a source indicating adherents are familiar with the Bible. The panel found it to be likely the Appellant is not a practising member of this Church and drew a further negative inference. [14] The Appellant testified that prior to joining the church she was not told the Church used violence in recruiting members and she had not read or heard anything about the Church. The panel noted allegations about the Church's use of violence were widely reported in Chinese media. The panel found it implausible the Appellant would not have heard or read something in this regard. [15] The Appellant testified she did not attempt to recruit her family members and the panel found this was inconsistent with documentary evidence. In the context of her lack of knowledge regarding the Church's recruiting methods and her failure to recruit family members, the panel found it unlikely that the Appellant was a member of this Church. [16] The panel noted documentary evidence indicates this Church urges members to cut off ties with non-believing family members and friends. The panel asked if she had done so, and the Appellant responded "Because I didn't know how to recruit new members." The panel found the Appellant to be unresponsive and found her failure to cut off relations with her family suggests she is not a true member of this Church. [17] The panel asked the Appellant why she gave her contact information to her church group. She responded that her cousin knew who she was. The panel found this to be inconsistent with documentary evidence which indicates church members often only know each other by aliases so they could not incriminate each other if detained. The panel drew a negative inference and found the Appellant was not a member of this Church. [18] The Appellant submits the panel's credibility assessment rests on stereotypes about the Church of Almighty God and these are not reasonable findings. The Appellant further submits that personal actions may not reflect the dictates of their religion. The Appellant cites Federal Court case law indicating it is improper for the RPD to base its credibility findings on religious trivia. [19] The Appellant notes in particular the biblical source of the term Eastern Lightning, and submits the panel's finding is based on suppositions about what members of this Church would know. The Appellant further submits the panel's question is vague. The Appellant was asked whether she knew why the church was called Eastern Lightning and she responded that it referred to Lightning Deng. The Appellant submits the question does not immediately ask about a biblical reference and it is sufficiently vague so that her response cannot be reasonably said to be incorrect. [20] In regard to the panel's question concerning where Jesus lived, the Appellant notes she has been a member of the Church for a little more than a year and given that Lightning Deng rather than Jesus in the second era is the focus of her religion, it is not unreasonable that she would have little knowledge about Jesus. [21] In regard to knowledge of the Bible, the Appellant submits that while some members of her Church may be familiar with the Bible, her lack of knowledge of the Bible is unremarkable. The Appellant submits the panel is relying on stereotypical assumptions. [22] In regard to her lack of knowledge of the Church's recruiting methods, the Appellant submits her failure to follow Chinese news has no bearing on her credibility. The Appellant further submits her failure to aggressively recruit family members is not a proper basis for a negative inference as it is based on stereotypical generalization about all the Church's followers. The Appellant makes the same argument concerning the need to cut ties with non-believer family members. [23] The RAD has reviewed and assessed all of the evidence in the RPD record, including the hearing recording. The RAD notes the following issues of concern regarding the Appellant's decision to join the Church of Almighty God and her knowledge of that Church's teachings. [24] The panel questioned the Appellant why she did not seek medical/psychiatric attention for her XXXX and apparent XXXX concerning the sick people she worked with. The panel noted in this regard that the Appellant worked in the XXXX XXXX. The panel further noted that the Appellant had testified she was aware of the risk in joining this Church. The Appellant responded that her cousin told her about this Church and although she was worried her cousin told her that God would protect her. The RAD finds that an educated person who worked in the XXXX XXXX would first address her XXXX and XXXX, a condition that is medically treated, through legal means before resorting to a practice that would subject her to arrest and imprisonment, and draws a negative inference. The RAD is guided in this regard by the decision of the Federal Court in Jiang.3 [25] In regard to the Appellant giving her name and contact information to the leader of her group, the RAD notes the panel cited documentary evidence that emphasized the secrecy of this Church regarding the identity of its members, and noting that members often use aliases. The RAD finds the issue of secrecy in regard to the identity of members is not a stereotype and it is not trivia. The RAD finds it is a practice of this Church and the panel's questioning and finding in this regard is open to it. [26] In regard to the source of the term Eastern Lightning, the RAD agrees with the Appellant that her answer cannot be said to be incorrect. [27] In regard to the Appellant's response to the panel's questions about Jesus, the panel noted that adherents of her Church believe that Jesus returned as a woman named Deng who lives in Henan province. The RAD finds that a person who allegedly practised this religion for more than a year would be aware of this basic teaching of her Church. The RAD notes the Appellant's response to a question concerning the Third Testament of the Bible, another basic teaching of her Church, was vague. [28] The RAD finds that the panel's negative inference concerning the Appellant's lack of knowledge of the Bible is founded on an insufficient evidentiary basis. [29] The RAD finds that the Appellant's response to the panel's question concerning the Church's recruiting methods, recruiting her family members and cutting off ties with non-believing family members appeared to reflect lack of knowledge regarding these Church practices. The RAD finds that while the Appellant might not have recruited or cut off ties with her family, her apparent lack of knowledge that she was supposed to do so does strain credulity regarding her membership in this Church. [30] The RAD notes that the Appellant has some knowledge of the teachings of the Church of Almighty God. However, merely having such knowledge is not, in itself, a sufficient basis for finding that she is a genuine practitioner of this religion, in the context of a refugee protection hearing. It is necessary to consider the totality of evidence in the RPD record. Documentary evidence [31] The panel asked the Appellant how her employer could have been informed of her involvement with this Church, made the decision to terminate her and issued a termination letter on XXXX XXXX, 2014, when the PSB raid allegedly took place on the evening of XXXX XXXX. The Appellant responded that because the letter says that her contract was terminated on XXXX XXXX it did not mean it was issued on that date. The panel noted the date stamp on the letter is XXXX XXXX, 2014. The Appellant responded the letter was not written by her and how was she supposed to know? [32] The panel further noted in the recording of the hearing that when she touched the employer's letter disclosed by the Appellant on the day of the hearing, the ink on the seal smudged. The Appellant was asked how the ink could remain as fresh as the letter was alleged to have been written in XXXX 2014. The Appellant responded she did not know. [33] The panel found it implausible that the letter could have been issued on XXXX XXXX, and found this document not to be genuine and gave it little weight. The panel drew a negative inference. The RAD concurs with this finding and notes the Appellant made no submissions in this regard. [34] In the context of the panel's credibility findings it further found that other supporting documents do not allay its concerns regarding the credibility of the Appellant's allegations, given the prevalence of fraudulent documentation available in China. [35] The Appellant submits the panel failed to address an official summons issued in her name, and the reason appeared to be the panel's credibility findings and the reliability of material aspects of her evidence. The Appellant further submits that other credibility findings do not relieve the panel of her obligation to assess all of the evidence, particularly an official summons accusing her of illegal religious activities. [36] The Appellant cites Federal Court jurisprudence indicating it is a reviewable error to rely upon the fact that fraudulent documents are easily available in China to determine a document is not genuine. [37] The RAD agrees with the Appellant that the panel should have assessed this document in her Reasons. However, since the issue was considered in the hearing the RAD can do so. [38] The RAD has reviewed the hearing recording concerning the panel's examination of the summons. The RAD notes the panel's concern that the original summons was not disclosed and that the copy was disclosed just two weeks before the hearing although other documents were sent from China much earlier. [39] The RAD further notes the summons document is a print of a photograph of the original summons. The RAD notes as well that the Appellant disclosed a clearer copy of the summons before the second sitting of the hearing, but the document remains a copy of a photograph and there is no credible explanation for why the original was not sent with other documents. Clearly if family members took a photograph of an original summons, the original was available to be sent. [40] The RAD finds, in the context of the analysis above, that the integrity of the copy of the summons in the RPD record is in doubt. The Raid and the PSB visit to the Appellant's home [41] The panel noted the Appellant testified she forgot the date her church meeting was raided. The panel found this to be material and significant, and found it more likely than not that the PSB did not raid her church group. [42] The panel also asked the Appellant when the PSB first went to her home. She responded that she did not know because she was not there. She was further asked when she learned about the visit and she responded she learned the day after the raid when she contacted her mother. She was asked as well if she was told when the PSB came and she responded she forgot. [43] The panel asked the Appellant when the summons was left and she responded she was not there and she did not know. The panel noted the Appellant provided a specific date in her Basis of Claim (BOC) narrative. The Appellant responded she remembered then and she forgot now. [44] The RAD finds that this additional evidence enhances the basis for the panel's finding above with which the RAD concurs. Exit from China [45] The RAD notes the recording of the hearing reveals an extensive exchange between the panel and the Appellant concerning the smuggler she hired and her ability to leave China without trouble even though she was allegedly being pursued by the PSB and she travelled on her own passport. The RAD further notes the panel did not include an analysis of this issue in her Reasons. The RAD shall do so. [46] The RAD notes the Appellant indicated in her BOC that the PSB came to her home four times and to the homes of relatives three times. She further indicated that the PSB continue to pursue her. The RAD finds that this evidence indicates a serious effort on the part of the PSB to pursue the Appellant. [47] The panel asked the Appellant how she was able to exit China if she was wanted by the PSB. The Appellant responded she left from Hong Kong. She further testified she travelled by bus to the border between Hong Kong and the mainland. The RAD notes that her passport would have been checked by Chinese security officials at both the Hong Kong border and again at a number of security locations in Hong Kong airport. [48] The RAD notes country document evidence concerning the Golden Shield project, an online system that monitors the movements and activities of Chinese citizens and contains information regarding people being pursued by the PSB. The RAD finds the Appellant's name would have been entered into this online system in XXXX 2014 when the PSB allegedly came to her home and that the three months she stayed in a relative's home provided more than adequate time for them to do so. The RAD further notes the PSB's multiple visits reflects a determination to find and arrest the Appellant. [49] The RAD notes that the Appellant left China using her own passport and U.S. visa and finds it is unlikely that she would have been able to pass through the multiple security checks in the airport without being stopped if her name had been entered into the Golden Shield project. [50] Although the Appellant provided no evidence as to what the smuggler did for her in the airport, the RAD finds that a smuggler might have been able to bribe one official but not all of those engaged in monitoring passengers. The RAD cites in this regard country document evidence4 which indicates there are separate barriers at airports that are designated for Chinese citizens, foreign travelers, and diplomatic staff and airline personnel. The Frontier Defense Inspection Bureau (FDIB) examines the passport and immigration and departures cards of Chinese travelers and verifies the identity of the person through a computerized records system. The same documentation indicates that Chinese citizens traveling overseas are required to show a valid passport, visa, and boarding pass and exit registration card. This documentation also indicates that all international airlines have to provide (accurate), (complete), and (timely), information on passengers including name, nationality, gender, date of birth, and passport number and expiration date. [51] The RAD finds that the Appellant's documents and identity would have been noted when she crossed into Hong Kong and when she checked in and received her boarding pass in the airport, and then further reviewed by the FDIB, and also reviewed by the security official checking identity information received from the airline. [52] The RAD acknowledges that documentary evidence indicates that there is corruption in China reflected in this case in the bribery of officials. The RAD finds however, that while a smuggler might be able to bribe one official and guide the Appellant to a particular checkpoint, it is unlikely that the smuggler would have contacts with all the officials, with access to the Golden Shield project, at the various checkpoints in a major Chinese international airport. [53] The RAD finds, in the context of the analysis above, and as well in the context of credibility findings concerning the summons and dismissal letter, that the Appellant would not have been able to exit China if she was being pursued by the PSB. [54] The RAD finds it is entitled to make reasonable findings in this regard based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.5 The RAD acknowledges that in such cases there must be a basis in the evidence to support such inferences. In this case, there is an evidential foundation for the RAD's finding reflected in the documentary evidence cited above. Disposition [55] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel April 21, 2015 Date 1 Exhibit P-2, Appellant's Record, p. 70. 2Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3Jiang, Sumei v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012, 2012 FC 1067. 4Exhibit RPD-1, RPD Record, National documentation Package, China, 14 March, 2014, item 14.3, p.72. 5 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012, 2012 FC 1037. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01032