TB8-10310

RAD File / Dossier de la SAR : TB8-10310 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 2, 2019 Date de la décision Panel T. Andrews Tribunal Counsel for the person who is the subject of the appeal Shelley S Levine 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 (the Appellant), claims to be a citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA)1, the Refugee Appeal Division (RAD) confirms the decision of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleges that he was a smoker, however, over the years he developed bronchitis. Despite giving up his addiction and taking medication as suggested by his doctor, he did not see any improvement to his coughing or his condition. He sought relief from both his medical doctor and from a famous Chinese doctor, but neither were able to cure his ailment. [4] In February 2014, his friend XXXX XXXX introduced the Appellant to the practice of Falun Gong. The Appellant decided to try the practice and began by practicing the exercises with his friend. He subsequently joined the Falun Gong group practice. [5] His bronchitis gradually disappeared and he told a friend about his achievement who also wanted to join the practice. [6] The Appellant spotted a Public Security Bureau (PSB) car parked in front of the practitioner's house where practice was to occur on December 7, 2014 after he was late in arriving. He fled and went into hiding at his aunt's home. [7] On December 9, 2014, the Appellant's wife informed his aunt that the PSB had gone to his house and left a Chuanpio for him accusing him of being involved with illegal Falun Gong activities and of recruiting members. The PSB also returned to the home on December 11, 2014, so the Appellant was compelled to find a smuggler to assist him in departing the country. [8] The Appellant fears persecution and or harm at the hands of the PSB if returned to China due to his practice of Falun Gong. ROLE OF THE RAD [9] The standard of review is correctness as established in Huruglica2, where the Federal Court gives guidance in regard to the role of the RAD. The RAD will defer to findings of the RPD where the RPD has a meaningful advantage in assessing the credibility of oral testimony. ANALYSIS Memorandum of Appeal [10] The determinative issue on appeal is credibility. The Appellant argues that the RPD erred: a. in its assessment of the Appellant's credibility related to his exit from China b. in its assessment of the Appellant's religious identity c. in its assessment of the Appellant's documentary evidence d. in its assessment of the Appellant's sur place claim [11] The Appellant is not relying on any new evidence referred to in subsection 110(4) of the IRPA and he does not request an oral hearing under ss. 110(6) of the IRPA. Uncontested findings [12] The RPD also made a number of further findings that were not challenged by the appellant. The RAD has done its own independent assessment of these uncontested findings and finds no error and comes to the same conclusion as the RPD. They are as follows: 1. inconsistent testimony about the issuance, contents and delivery of the summons and being wanted by PSB when he left China 2. inconsistent testimony regarding the timing of introduction to the practice of Falun Gong Findings related to credibility Summons [13] The RPD found that the information contained in the summons was inconsistent with the testimony provided by the Appellant regarding who issued it, when it was issued, and what he stands accused of. The RPD found that the inconsistencies were not reasonably explained and drew a negative inference regarding the issuance, contents, and delivery of the summons to his wife. [14] The Appellant argues that the RPD erred by discarding the Appellant's summons based on its credibility concerns related to these inconsistencies. The Appellant submits that despite its concerns, the RPD had a duty to conduct an analysis and make a determination about the document itself. Particularly given that, if accepted, it would have corroborated the Appellant's risk of persecution. [15] The RAD agrees with the Appellant that the RPD was incorrect not to make a finding on the summons itself and as such the RAD will conduct its own independent analysis of the document below. [16] A court issued Chuanpiao3 is in evidence and was tendered to show that the Appellant was wanted by the Chinese authorities. When compared to the available samples, the Chinese characters found at the top of the summons on the second line, which identify the summons type, match the sample for the court-issued subpoena (chuanpiao). Thus, the RAD compared the document to the sample. [17] According to the National Documentation Package (NDP) summonses have not varied in format since 2003. Further, the same document indicates that "...such forms are supposed to be used throughout the country and that 'regional variations are not meant to exist'."4 Hence, the summons in evidence should duplicate the sample in terms of its format and structure. [18] When comparing the document to the sample of the chuanpiao, the RAD finds that the subpoena evidence differs from the sample contained within the NDP in significant ways. The structure and format at the top of the documents does not match. The sample has three lines of Chinese characters at the top of the document that appear prior to the table consisting of columns and rows. The top two lines are centered on the page and the third line is justified to the right-hand side of the page. That third line begins with a bracket, (where relevant information can be added by the office in question) and then there are four Chinese characters that follow. However, the subpoena proffered by the Appellant has only two lines of Chinese characters that precede the table. The third line of Chinese characters is missing completely. [19] In addition, the lines within the table do not match. One can see from the sample that portions of the summons including the column on the left are prefilled. This column does not match in terms of what should be standard text in the subpoena. The Chinese characters, and therefore the wording differs in the third, fourth, and seventh rows. The third row of the subpoena in evidence contains four Chinese characters, which are different than the five Chinese characters found in the same row on the sample. The fourth row also differs in terms of the number of Chinese characters and the characters themselves (four in the subpoena in evidence versus eight in the sample) and there is also some variance in the seventh row as the third Chinese character does not match. [20] Furthermore, the numbered "points for attention" in the subpoena that follow the table list only two items, whereas the sample contains three numbered lines of text in the same place. And finally, the bottom lines of the document do not match as the sample contains four lines of Chinese characters; two of which are centred on the page, followed by one line containing three Chinese characters that is slightly to the right and directly below that, the last line at the bottom of the page contains two Chinese characters in brackets. However, the subpoena only has two further lines of text to the bottom right of the page. [21] The RAD finds on a balance of probabilities that the summons submitted by the Appellant is fraudulent, and the RAD finds that his submission of a fraudulent document in support of his case damages his credibility further, in addition to the uncontested findings of the RPD regarding his inconsistent evidence about when this document was issued, by whom and what he is accused of. [22] This summons was expressly proffered to illustrate that the Appellant is wanted by the Chinese authorities for his illegal Falun Gong activities. Given that the summons is fraudulent, the RAD finds, on a balance of probabilities, that the Appellant was not wanted nor is he being investigated by the PSB or authorities in China for being a Falun Gong practitioner as alleged. As there is no credible documentation provided to support that he is wanted by authorities, the RAD finds on a balance of probabilities, the Appellant is not a credible witness and finds the determinative basis of his claim, i.e. being wanted by the authorities in China for his alleged involvement in the practice of Falun Gong is not credible. Falun Gong identity [23] The RAD finds that the RPD was correct in its conclusion that the Appellant lacked knowledge of the key principles of Falun Gong. [24] The RPD found that the Appellant is not a genuine Falun Gong practitioner based on inconsistent information that he provided about his own knowledge of Master Li's books, in addition to the fact that he gave abbreviated responses to some questions and knew nothing about many of the basic tenants of Falun Gong. The RPD found that despite the claimant's nine years of education, the Appellant's knowledge of fundamental principles, theory, and practices of Falun Gong were not commensurate with his years of alleged practice of Falun Gong both in China and then in Canada. The RPD noted also that the Appellant struggled to provide answers and there was a lot of hesitation and delays prior to responding to questions. [25] The Appellant argues that the RPD erred because it did not engage in a fair and balanced analysis. He submits that the RPD was selective in the evidence and findings it chose to rely on in determining that the Appellant was not a Falun Gong practitioner. He submits that correct answers related to questions about his Falun Gong knowledge were ignored and simply referred to as superficial. [26] The RAD finds that although the RPD did not write on everything that the Appellant testified about, the Member's conclusion was correct as the main reasons why the Appellant's knowledge was disbelieved were highlighted. However, the RAD will conduct its own independent analysis below. [27] The RAD is aware of jurisprudence5 which cautions against determining religious identity on the basis of a refugee Appellant's religious knowledge, or lack thereof. However, the RAD must also consider the nature of the religion or practice. Some religious groups and belief systems place little value on knowledge, but Falun Gong is not one of those groups. The RAD notes that knowledge is actually considered an essential component of Falun Gong beliefs that allows practitioners to develop in their practice: The foundation of Falun Dafa consists of a body of fundamental knowledge essential for the task of undertaking proper cultivation towards higher stages of attainment. It comprises Master Li's teachings collected in a number of books, the most important of which being Zhuan Falun (Revolving the Law Wheel); and China Falun Gong is a good summary of principle and exercise recommended for the beginners. Much of the teachings are highly classified knowledge that are hitherto imparted exclusively from master to trusted disciples since antiquity in China.6 [28] Given that the foundation of Falun Gong is a body of fundamental knowledge, essential for the task of undertaking proper cultivation, it is a reasonable expectation that a supposed Falun Gong practitioner would possess some of this fundamental knowledge. The RAD has considered the above when reviewing the audio recording of the hearing. The RAD has also considered the Appellant's own narrative in which he wrote: We followed the coach to do the exercises and studied Zhuan Falun, the most important part to cultivate our mind. Without the study of the philosophy in the book we could not achieve the best result. I borrowed the book from the coach sometimes to gain the philosophy. [29] And finally, the RAD notes that the Appellant alleges he practiced Falun Gong in China for approximately nine months, and three years in Canada. Particularly, with respect to his practice in Canada, where it is a more open environment, he alleges that when he first arrived, he used to go to Milliken park almost every morning and now he goes to group practice two or three times per week. He testified that he read both Falun Dafa and Zhuan Falun many times, while he did not have a copy or access to the former in China, he did have access to Zhuan Falun. [30] The RPD found that the Appellant was unable to expand upon what the practice of Falun Gong is beyond stating that it is not medically related and is good for the body and mind, which demonstrated that he did not have a good grasp or commitment to the practice. [31] The RAD reviewed the Appellant's testimony at the hearing, when asked if Falun Gong was just another exercise or medical treatment or whether there was more to the practice, the Appellant replied that it is not medically related. When asked again if it was just about doing the exercises and getting healthy or if it was more, the Appellant indicated that Falun Gong is good for the body and mind. [32] The RAD finds that the Appellant's response while not wrong, was incomplete in that Falun Gong differs from other practices as "it's goal is to guide people to higher dimensions,"7 and it refines one's mind and character in addition to strengthening the body according to Master Li. The RAD finds that the Appellant should be able to articulate what he is studying and why. The fact that he cannot explain his practice undermines his credibility. [33] The RPD also found that while the Appellant was able to name the three core principles of Falun Gong, truth, compassion and forbearance. The RPD found that the Appellant's abbreviated testimony on the meaning of truthfulness was not in line with the teachings of Master Li and a negative inference was drawn. [34] At the hearing the Appellant correctly named the three core guiding principles of Falun Gong; truth, compassion and forbearance, but when asked to expand upon what it meant to be truthful he testified it was doing true things and telling the truth, and that was all. The RAD finds once again that this is an incomplete response given that Zhuan Falun specifies that in the cultivation of Zhen or truth one should not only tell the truth and do things truthfully, but also become a truthful person, return to the original, true self, and in the end, become a true person through cultivation. [35] The objective documents further state that: At the core of Falun Gong are the values of truth, compassion, and forbearance (or in Chinese, Zhen, Shan, Ren). The practice teaches that these are the most fundamental qualities of the universe itself, and it is these, as elaborated in the book Zhuan Falun, that serve as a guide for daily life and practice. Many study the book regularly in order to better understand and embody its teachings. Through consistent and dedicated practice, the student of Falun Gong aspires to achieve a state of selflessness, greater insight and awareness, inner purity, and balance - the inner workings of what might be called true health.8 [36] The RAD finds that given that truth is a principal by which Falun Gong adherents live, the Appellant should be able to articulate a more detailed reply. His inability to describe truthfulness in this context undermines his credibility. [37] The RPD further found that the Appellant provided a vague and unclear explanation of the meaning of attachments, which is a core concept of Master Li's teachings and the practice of Falun Gong. The Appellant was also unable to provide any examples of attachments and the RPD drew a negative inference as to the Appellant's credibility given his failure to appreciate, understand, or grasp this basic concept of "attachments" which is an essential and important requirement for the cultivation of one's character, according to Master Li. [38] The RAD reviewed the Appellant's testimony regarding attachments, which is another major tenet of Master Li. At the hearing the Appellant was asked to explain what Master Li means when he talks about attachments. After a lengthy pause and no response, the member confirmed that the Appellant understood the question. When the question was repeated, he testified "whatever you do, you're not focused on doing one thing, like your mind is occupied with doing other stuff." He was asked for examples of an attachment, but was unable to provide any and explained that although he read the book, he didn't really understand it and he does not have a high level of education. [39] Falun Dafa indicates the following about attachments: "Having attachments" refers to the relentless, excessive pursuit of a particular object or goal by those practitioners who aren't able to liberate themselves or are too stubborn to heed any advice... Attachments stem from human desires... An everyday person has many attachments. He might use any means necessary in order to pursue something and get it. A cultivator's attachments manifest differently, such as in his pursuing a particular ability, his indulging a certain vision, his obsessing over a certain phenomenon, and so on. No matter what you, a practitioner, pursue, it is not right-pursuit has to be abandoned.9 [40] The concept is found in both of Master Li's books, and references to letting go of attachments are found throughout both books because the concept is linked to all other parts of the practice. Practitioners should desire nothing in order to advance in their practice, and once attachments are gone this contributes to improved character. As such, The RAD finds, on a balance of probabilities, and given the Appellant's alleged extensive practice and study, that he should be able to explain what attachments are in greater detail and to name some attachments. The RAD finds that his lack of understanding of this major concept of Master Li's teachings is indicative of a lack of credibility. [41] The RPD drew a further negative inference from the Appellant's complete lack of knowledge about a fundamental concept and principal concerning the Third Eye in Master's Li's book, Falun Dafa. [42] The RAD has also reviewed the Appellant's testimony with respect to the third eye. He testified that he had not studied something so in-depth yet, so he did not know. The RAD finds once again that this is a major component found in both of Master Li's books Zhuan Falun and Falun Dafa. In the first chapter of Falun Dafa it talks about the third eye's location in the middle of the forehead and the reasons why the average person's third eye is closed. [43] Through cultivation or practice ones Third Eye opens so they can see the truth/see into other dimensions.10 As this is a basic concept of Falun Gong which the Appellant lacked any knowledge of, the RAD finds that this undermines his credibility further. [44] The RPD drew another negative inference from his lack of knowledge of the mechanics, and significance of the "law wheel" in the practice of Falun Gong, which undermined his credibility further. [45] The RAD has also reviewed the Appellant's testimony with respect to the law wheel. When asked about it, he responded that "Falun is made up of the five sets of exercise." He was asked again as he had not answered the question and he replied "Falun is truth, compassion and forbearance." [46] Master Li specifies that The Law Wheel is an intelligent being consisting of high-energy matter, one that automatically transforms Gong. It doesn't exist in our dimension. He goes on to specify that he gives his practitioners one law wheel; the root law wheel in their lower abdomen and one can develop further law wheels through exercises and cultivation.11 [47] The RAD finds that his lack of knowledge of the law wheel, which is another basic concept of Falun Gong undermines his credibility. [48] Additionally, a negative inference was drawn from the Appellant's inability to answer questions about the meaning and importance of "sending forth righteous thoughts" in Falun Gong given its importance, as well as the Appellant's four years of practice and his testimony that he has read both of Master Li's books, Zhuan Falun and Falun Dafa many times. [49] In reviewing the RPD hearing, the RAD finds when asked about sending out righteous thoughts, he was unable to explain and he indicated, "I don't have very good knowledge of Falun Gong, like all this I'm not able to express." Thus, he demonstrated no understanding of its purpose. Master Li Hongzhi considers this a major tenet of Falun Gong practice. Righteous thoughts are taken very seriously and are to be sent out on a daily basis in order to reduce the evil beings' persecution of Dafa.12 His lack of knowledge about this tenet undermines his allegations that he is a genuine Falun Gong practitioner. [50] Finally, the Appellant was unable to explain the meaning of "cultivating one's character." The RPD drew a further negative inference from his lack of knowledge of this concept, which is at the heart of the practice of Falun Gong. [51] When asked to talk about Master Li's concept of cultivating character, he testified that he was unable to answer such questions as he has studied Falun Gong, but not very deeply. The RAD finds that cultivation is at the very heart of the practice. The cultivation of one's character is again something that is found throughout the written materials. According to Master Li in his book Falun Dafa: All cultivators of Falun Gong must make cultivation of character their top priority and regard character as the key to developing Gong. This is the principle for cultivating at high levels. Strictly speaking, the Gong potency that determines your level isn't developed through doing exercises but through character cultivation. Improving character is easier said than done. Cultivators must be able to put forth great effort, improve their awakening capacity, bear hardships upon hardships, and endure almost unendurable things, to name a few.13 [52] This is yet another major tenant of Falun Gong practice which the Appellant knew nothing about. His lack of knowledge on the concept undermines his credibility. [53] There were some aspects of the testimony on Falun Gong knowledge that the RPD did not write about. The RAD reviewed the rest of the hearing and finds that the Appellant was also asked about karma and he responded that by practicing Falun Gong you can transform karma into virtue, which is accurate. However, when asked about black matter he indicated he could not recall what it was. He correctly identified that white matter is the opposite of black matter, but when asked to expand upon his earlier answer about transforming karma into virtue and what it means, he testified in reply "help, good for the body and mind". [54] The RAD finds that this demonstrates in the most concrete terms that the Appellant does not truly understand the practice. He had just finished indicating that karma could be transformed into virtue, but then could not identify that black matter is karma. Falun Gong recalibrates the body on an energetic level while dredging out blockages and impurities that might compromise health and well-being. On deeper levels, the practice, in its own unique ways, deals with the more fundamental origins of illness and physical suffering (i.e., a nefarious material called karma).14 [55] Karma is the black matter that a practitioner transforms into white matter or virtue through cultivation in Falun Gong and that white matter in turn transforms into Gong.15 The Appellant's inability to connect or explain these basic concepts illustrates that he does not actually know or understand the practice. [56] He was then asked about the five exercises. He correctly identified the names of the first, third and fifth exercises and was able to recite the verses that go along with exercise one and three and the purpose of exercise three. However, he did not know the purpose of the first exercise and he could not recall how many times you repeat the third exercise. He correctly identified the number of talks contained in Zhuan Falun and stated he was most familiar with the 7th talk, but could only articulate that the 7th talk discussed the topics of not killing and jealousy. He also correctly identified that it does not matter where you do the exercises or in what direction you face to do them. [57] The RAD finds that even though the Appellant generally had more knowledge regarding the exercises, however, the things he did not know about them were still telling. He allegedly practiced the exercises with the group at first in China for nine months and then in Canada two or three times per week for the last three years. Given the frequency with which he was doing these exercises, the RAD would expect the Appellant to know how many times the third exercise is repeated during practice or why he is doing all of these exercises, not just some of them. The RAD finds that this further undermines his credibility. [58] The RAD has considered the totality of the evidence, and although the Appellant does possess some basic knowledge of the terms of Falun Gong, the RAD finds that his allegations of being a genuine Falun Gong practitioner are not credible. The RAD finds that the Appellant was asked quite a few questions related to his knowledge of the practice. He even answered some correctly; that Falun Gong is led by the principles of truth, compassion and forbearance; that by practicing Falun Gong you can transform karma into virtue; and that white matter is the opposite of black matter. However, his correct answers to questions were relatively few and when it came to the fundamental things in the practice, the Appellant knew very little, which illustrates that he does not have an appreciation for what he is doing or why, which does not accord with the study of Falun Gong. [59] The RAD acknowledges that the Appellant is not a highly educated individual. However, in the RADs view, while the Appellant does answer some questions correctly, his responses where he provided them were extremely brief and not as detailed as the RAD would anticipate. Particularly, given that by the time of his hearing, he had been allegedly studying Zhuan Falun, Falun Dafa and the exercises for close to 3 years in Canada; a place where he had unrestricted access to the required books, materials and more knowledgeable practitioners without restriction. In order to be considered a genuine Falun Gong practitioner, this practice should have involved the study and knowledge of the philosophies of Master Li Hongzhi, which the Appellant himself acknowledged in his narrative. "While the physical dimension of Falun Gong is important, it is the emphasis on the mind and one's moral self that set this practice apart"16 In other words, Falun Gong requires both the study and pursuit of knowledge in tandem with the practice of the five exercises. The RAD finds that the Appellant did not demonstrate the knowledge that one could reasonably expect from a practitioner of his experience. Based on the totality of the evidence in this case, and the foregoing reasons, the RAD finds that the Appellant has failed to establish that he is a genuine Falun Gong practitioner and the limited knowledge acquired was for the purpose of advancing a refugee claim in Canada. Findings related to the Appellant's documentary evidence [60] The RPD found that the photographs showing the Appellant practicing and participating in Falun Gong activities in Canada and the letter from a co-practitioner did not overcome the credibility concerns, and do not establish that the Appellant is a genuine Falun Gong practitioner. [61] The Appellant argues that the panel disregarded his evidence with respect to his regular group practice in Canada at Milliken Park; photographs from his Falun Gong activities, and a letter from a fellow practitioner. These items were dismissed because they did not overcome the RPD's credibility concerns, however the findings regarding the documents were based on erroneous analysis of his testimony and the RPD had a duty to consider the documents that were provided irrespective of its previous conclusion. [62] As indicated above, the RAD has found that the RPD was correct in its findings regarding the Appellant's Falun Gong identity and there was no erroneous analysis of the testimony provided. However, the RAD agrees in part that the remaining documents were not assessed separately and will conduct its own assessment below [63] The Appellant provided a letter from a person named XXXX XXXX, attesting to the fact that the Appellant has been practicing Falun Gong in Toronto and they met at XXXX XXXX in May 2015 during a group practice. The hand-written letter is not certified, notarized or a sworn statement. It has no official letterhead to show that it or the writer is affiliated with any formal Falun Gong organization or entity. Nor is there any identification attached regarding the writer. While the letter may validate that he associated with and practiced with these people at XXXX XXXX, it does not establish that his practice was indicative of a genuine commitment to Falun Gong. The RAD places little evidentiary weight on this document as support for the Appellant's identity as a genuine Falun Gong practitioner. [64] The RAD finds that the Household Registrar, and the medical documents, while they establish that the Appellant lived in and was treated in China for certain ailments, they are of low probative value as they do not support the Appellant's identity as a genuine Falun Gong practitioner. And finally, there are a number of photographs17 in evidence. The RAD finds that although it does not have the originals to examine, these photos are not determinative as they also do not attest to his motivation. The majority depict his involvement in various activities including engaged in exercises with others, studying a book with others and one shows the Appellant distributing something to another person. At best, these photographs only show that he participated in Falun Gong activities, which are open to all, but not that he is a genuine Falun Gong practitioner. Sur place [65] The RPD found the Appellant is not a sincere and genuine Falun Gong practitioner. [66] The Appellant argues that the RPD did not adequately analyze the sur place claim as he has been practising Falun Gong in public. He offered supporting evidence regarding his practice in Canada; namely the letter from a co-practitioner and photographs. Given that the objective evidence indicates that China monitors citizens who practice Falun Gong outside of China, the Appellant submits that he may face severe punishment upon return to China. [67] The RAD finds that the RPD was silent on the sur place issue and agrees with the Appellant in this regard. As such, the RAD has considered the issue below as part of its independent assessment in acknowledgement that even if the Appellant was not a genuine practitioner of Falun Gong, he could still be at risk if his Falun Gong activities in Canada came to the attention of the Chinese authorities upon return to China. [68] The RAD, in its review of the record finds that there was no persuasive evidence submitted/adduced at the RPD hearing or in his Basis of Claim (BOC) form to suggest that the Appellant's practice of Falun Gong in Canada has come to the attention of Chinese authorities, or that he would be perceived to be a genuine Falun Gong practitioner upon return to China. In this respect, the RAD is guided by the Federal Court Trial Division decision in Wang,18 which held that a sur place claim could not be maintained in the absence of evidence, that the making of the refugee claim had specifically come to the attention of the authorities of the claimant's country of origin. [69] The RAD notes the Appellant has alleged that his desire to commence the practice of Falun Gong took place as a result of circumstances, which occurred in China. He alleges that his practice in Canada is based on his continued adherence to the practice he began in China. Having found that he was not a genuine Falun Gong practitioner in China, the RAD finds that his connection to Falun Gong in Canada is questionable. And, having insufficient reliable and persuasive probative evidence of conversion in Canada, the RAD finds, on a balance of probabilities, the Appellant was not a Falun Gong practitioner in China, nor is he a Falun Gong practitioner in Canada. In the context of the findings noted above, the RAD finds that the Appellant affiliated himself with the practice for the sole purpose of supporting and bolstering his claim and he will on a balance of probabilities, not practice on return. [70] With respect to the issue of whether or not the Appellant would be perceived by authorities as being a Falun Gong practitioner based on his participation in Falun Gong activities, the RAD has reviewed the documentary evidence. The RAD acknowledges that there is some objective evidence which supports that Chinese authorities are engaged in monitoring Falun Gong participants abroad, which they see as a priority. However, the Appellant did not provide any evidence to indicate that he or the group were ever observed, had any persons photographing them, or that he was approached by anyone or faced harassment or intimidation from any persons while engaged in Falun Gong activities as the evidence indicates will occur when monitoring agents are present. Suggesting in the memorandum that he may have been observed is speculative as such evidence did not come from the Appellant himself at the hearing and the RAD places no weight on such speculations. The RAD finds that the Appellant's participation in some Falun Gong activities in Canada would not, on a balance of probabilities, have put him at risk. Exit from China [71] The RPD found that the Appellant's ability to leave China on his own genuine Passport undermined his credibility. [72] The Appellant argues that it was an error to find that his departure was implausible given he had the use of a smuggler to circumvent the security mechanisms which would prevent his exit. He submits that the RPD ignored his explanation regarding his use of a smuggler and drew negative inferences based on questionable reasoning as the documentary evidence states that such an exit is possible and caselaw supports this. [73] The RAD finds it unnecessary to deal with this argument as it will not change the outcome of the appeal given the other findings cited above. CONCLUSION [74] Having found that the Appellant is not a genuine practitioner of Falun Gong, the RAD finds that there is not a serious possibility that he would be persecuted should he return to China, nor would he be subjected personally, on a balance of probabilities, to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should he return to China. [75] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. (signed) "T. Andrews" T. Andrews October 2, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on December 12, 2017. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras 70, 103. 3 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 135-136. 4 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2017), item 9.10, Response to Information Request (RIR), CHN104458.E. 5 Huang v. Canada (Citizenship and Immigration), Mandamin, 2012-08-20, IMM-497-12, 2012 FC 1002. 6 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2017), item 12.32, Response to Information Request (RIR). CHN33180. EX. 7 Ibid. 8 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2017), item 1.17. 9 Li Hongzhi, Falun Dafa (October 13, 2002). 10 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2017), item 12.7. 11 Ibid. 12 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2017), item 12.25. 13 Li Hongzhi, Falun Dafa (13 October 2002). 14 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2017), item 1.17. 15 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2017), item 12.27, Response to Information Request (RIR), CHN104580. 16 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2017), item 1.17. 17 Exhibit RPD-1, RPD Record, Exhibit #5, at pp. 142-144. 18 Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001, 2001 FCT 1237. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-10310 RAD.25.02 (April 04, 2019) Disponible en français 18 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