TB5-05695

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 : TB5-05695 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 19, 2015 Date de la décision Panel David Lowe 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 his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that the Appellant is a Convention refugee. In the alternative, he asks for an oral hearing before the RAD or that the matter be sent back to the RPD for re-determination. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleged before the RPD that he sprained his waist while working and in spite of treatment, his symptoms kept returning. One day in XXXX of 2013, the Appellant's friend, XXXX XXXX recommended the Appellant try Falun Gong as it had helped Mr. XXXX with his incontinence. The Appellant learned from Mr. XXXX that Falun Gong was not an evil cult; he learned what "karma" is and how Falun Gong can help people to cultivate the mind and body. After three days of talking with Mr. XXXX about Falun Gong, the Appellant began practicing Falun Gong, at home, with Mr. XXXX, around the end of XXXX, 2013. Mr. XXXX also explained the theory of Falun Gong to the Appellant. In XXXX of 2013, Mr. XXXX invited the Appellant to practice Falun Gong with the underground group. On XXXX XXXX, 2013, the Appellant attended his first group session. The Appellant did not miss any group practices up to XXXX XXXX, 2014 and he practiced every day at home. The group was raided on XXXX XXXX, 2014, by the Public Security Bureau (PSB). The instructor and two practitioners were arrested. The Appellant escaped out the back door and went into hiding at a friend's home. [4] On XXXX XXXX, 2014, the PSB attended the Appellant's home looking for him. The Appellant's parents disavowed the Appellant to the PSB who advised his parents that the PSB will arrest the Appellant. The PSB returned to the Appellant's house on XXXX XXXX, 2014, this time threatening the Appellant's family. [5] The Appellant's friend contacted a smuggler for the Appellant. The smuggler planned the Appellant's trip out of China, to Canada. The smuggler also obtained a Canadian visa for the Appellant and came with the Appellant to Canada. [6] Since the first visit by the PSB, they have returned to the Appellant's home a total of four more times, five visits in total. [7] The Appellant entered Canada on XXXX XXXX, 2014, using a valid Chinese passport which he failed to provide to either Citizenship and Immigration Canada officials when filing his claim, or to the RPD. [8] The Appellant's application for refugee protection was heard on March 17 and April 10, 2015. The RPD rendered its decision in writing on May 15, 2015, finding that the Appellant is not a genuine practitioner of Falun Gong and consequently was not a Convention refugee or a person in need of protection. More details on this decision may be found in the RPD's Reasons and Decision document.1 ANALYSIS Role of the RAD [9] 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 a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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. [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." [10] 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. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [11] The Appellant submits that the Immigration and Refugee Board (Board) erred by engaging in a microscopic examination of the evidence and thereby finding discrepancies in the Appellant's testimony where there were none. [12] The Appellant submits that the Board erred by misconstruing the corroborative value of the medical evidence. [13] The Appellant submits that the Board erred by rejecting the Appellant's testimony for want of understanding, concerning the explanation of how or why Falun Gong practice improved his health without citing and reasons or authority as to what understanding the Appellant should have. [14] The Appellant submits that the Board erred by failing to properly consider and assess the evidence and case law in finding that the Appellant would not be able to leave China on his own passport with the assistance of a smuggler. [15] The Appellant submits that the Board erred by failing to properly assess the sur place aspect of the claim. The RAD Findings [16] The Appellant argues that the Board erred by engaging in a microscopic examination of the evidence and thereby finding discrepancies in the Appellant's testimony where there were none. The Appellant here is referring specifically to the Board's examination of the Appellant in regards to the teachings of the Falun Gong instructor, in China.3 [17] The RAD has looked at the documents on file at the Board and finds one4 in particular of great value on this question regards the teachings of the instructor. In this document, the Research Directorate of the Board had approached the Falun Dafa Association of Canada (FDAC) which is the body that, represents the voice of the Falun Gong community on a national level whereas each individual [FDA] in each city represents the Falun Gong community on local matters, including local refugee issues (FDAC 11 May 2011). In addition, the representative emphasized that FDAs are "the only official organizations representing Falun Gong practitioners in Canada. There is no other splinter group of Falun Gong that exists" (ibid.). Furthermore, FDAs in Canada are registered non-profit organizations within the country and are "independent from [FDAs] in other countries," though there is a level of "coordination and communication" between them "when necessary" (ibid.). [18] The FDAC in the same document also says: In 19 May 2011 correspondence with the Research Directorate, the FDAC representative included a document entitled "Notification for Practitioners of Falun Dafa," which outlines the basic requirements for practicing Falun Gong as follows: 1. Falun Dafa is a cultivation way of the Buddhist system. No one is allowed to propagate any religions under the guise of practicing Falun Dafa. 2. All Falun Dafa cultivators must strictly observe the laws of their countries of residence. Any conduct that violates a country's policies or regulations would directly oppose the merits and virtues of Falun Dafa. The individual concerned is responsible for the violation and all of its consequences. 3. All Falun Dafa cultivators should actively uphold the unity of the cultivation community, doing their share for the development of humankind's traditional culture. 4. Students, as well as assistants and disciples, of Falun Dafa are forbidden to treat people's health problems without approval from the founder and shifu of Falun Dafa, or without obtaining permission from appropriate authorities. Furthermore, no one can just decide to accept money or gifts for treating people. 5. Students of Falun Dafa should take cultivation of character as the essence of our practice. They are absolutely not allowed to intervene in a country's political affairs, and moreover, they are prohibited from getting involved in any kind of political disputes or activities. Those who violate this rule are no longer Falun Dafa disciples. The individual concerned should be responsible for all consequences. A cultivator's fundamental aspiration is to progress with diligence in real cultivation and to reach Perfection as soon as possible. [19] According to another document5 there is much more to Falun Gong than the exercises the Appellant spoke of and this goes to the heart of the Appellant's first argument. Falun Dafa is an advanced system of cultivation and practice introduced by Master Li Hongzhi. Since its introduction in 1992, Falun Dafa has attracted more than 100 million people over the world. In addition to being a powerful mechanism for healing, stress relief and health improvements, Falun Dafa is different from other qigong techniques in having a higher objective of cultivation and practice towards enlightenment. It is complete with its own system of principles and empirical techniques. [emphasis added] 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. [emphasis added] Falun Dafa has a set of five exercises specially designed to complement one's cultivation. Three of the exercises involve physical movements and maneuvers while the other two exercises require remaining still for extended periods of time. The exercises are exceptionally powerful and effective even though they are simple and easy to learn (n.d.). Falun Dafa practitioners refer to Falun Dafa as a cultivation practice, denying that it is a religion or a cult (Falun Dafa, n.d.; Newsroom 30 Apr. 1999). Central to the practice are the cultivation of the Xinxing ("mind nature") and the values of Zhen (truthfulness), Shan (benevolence) and Ren (forebearance) (CESNUR n.d.; Falun Dafa n.d.; CRS 10 Sept. 1999, 1). [emphasis added] [20] The italics above are the RADs, emphasis was added to highlight the issue of learning in the practice of Falun Gong (Dafa). It has been said by the Appellant that the Board's examination of the Appellant in regards to what the instructor did or did not teach in China was microscopic however, as is shown above, Falun Gong is much more than five exercises of the "qi gong" style. Falun Gong entails a very in-depth philosophy and a deep learning of the philosophy and teachings of Master Li, the founder of Falun Gong. Anyone can quickly learn the rudiments of the five exercises but it would take a true practitioner to know and to understand the teachings of the Master. That is what the Board was trying to determine, that is, did this Appellant know any of the philosophy of Master Li and if so, how much. That is not microscopic and is very central to the claim. This questioning was directed at discovering whether or not the Appellant practices qi gong or is a true practitioner of Falun Gong. The Appellant argues that he was able to state the basic principles of truth, compassion and forbearance. The Appellant further argues that it was not "inconsistency in his testimony" but a simple failure to recall all that the instructor had said, claiming the Appellant's lack of education as a reason for his failure to understand all that was said by the instructor. The Appellant reminds the RAD that he attended only 15 group sessions in China over a period of only three to four months. However, the Appellant testified that he had practiced Falun Gong every day in the privacy of his home. The RAD finds that the Board was correct in examining the Appellant to determine the level of the Appellant's knowledge of Falun Gong and finds that the Board did not err in its examination of this issue. However, The RAD notes that the Board did in fact make a finding6 that the Appellant did have some knowledge of some of the principles and teaching of Falun Gong and that the Appellant was able to accurately name and describe the five sets of exercises. The Appellant also answered questions put to him regarding dates of significance to practitioners of Falun Gong. [21] The Appellant submits that the Board erred by misconstruing the corroborative value of the medical evidence. In this argument, the Appellant refers to the Board's credibility issue with the fact that the Appellant was unable to explain to the panel how Falun Gong helped the Appellant's medical issue because the Appellant offered new medical evidence dated between XXXX 2013, just before the Appellant began his practice of Falun Gong and XXXX 2014 when the Appellant left China. The Appellant had testified that he did not visit a doctor during that time because previous visits never resolved his problems. The Board found this was not a credible response and inferred a negative credibility because of it. The Appellant clearly stated in testimony7 that through the practice of Falun Gong, his medical issue was not so severe any more, he did not hurt as much and had more energy. The RAD finds that the Appellant's reason was logical and has no issue believing it. If the Appellant did not improve after medical treatments but did improve after Falun Gong, it is logical that he would continue doing what worked and cease doing what did not work for him. The RAD finds that the Board did err in its assessment of the so called medical evidence. [22] The Appellant submits that the Board erred by rejecting the Appellant's testimony for want of understanding concerning the explanation of how or why Falun Gong practice improved his health without citing and reasons or authority as to what understanding the Appellant should have. The RAD finds that this argument is basically the same as the argument above in which case the RAD found for the Appellant. The RAD sees no reason to further discuss this issue. [23] The Appellant submits that the Board erred by failing to properly consider and assess the evidence and case law in finding that the Appellant would not be able to leave China on his own passport with the assistance of a smuggler. The RAD must now look at the very recent case law on this very issue. The Appellant cites Sun8 wherein the Court held that the Board was not entitled to conclude the Applicant's story was implausible. In that case, like this one, the applicant left China, with the aid of a smuggler using his own legal passport. The Board, referring to recent documents, spoke about the "Golden Shield" program while at the same time, the Board acknowledged the corruption in China as well as the lack of total implementation and following of the program by all involved. In making that determination that there was bribery of government officials occurring, the Board has opened the door for a plausibility finding. As the Golden Shield program is at 99% coverage,9 that does leave a 1% chance of the coverage of the Golden Shield not being effective at a particular time or place and when combined with the possibility of bribing an official with access to a computer and the "police net" database, it is no longer implausible for escape with one's own passport to occur. It is well established law "that implausibility findings may only be made in the "clearest of cases," where "the facts presented are either so far outside the realm of what could reasonably be expected that the trier of fact can reasonably find that it could not possibly have happened."10 [footnotes omitted]. The RAD finds that the Board erred in making this finding. [24] The Appellant submits that the Board erred by failing to properly assess the sur place aspect of the claim. The Appellant speaks directly to the letter from a fellow practitioner from XXXX Park. The Appellant argues that the Board did not give proper consideration to the letter and to accompanying photographs of the Appellant exercising in the park. The Appellant is wrong in this instance. The Board did consider this evidence and made note of it in the Reasons and Decision document.11 The Board writes that the author of the letter provided no information on the author's qualifications to attest to the authenticity of the Appellant's practice. The Board mentions that the letter is undated, hand written and not "sworn." The RAD notes that the Appellant did not request nor did he call this author as a witness where he could have been examined by the Board. The RAD can give very little weight to such a document as this and finds that the Board did not err in its assessment of this document. Similarly, the photograph12 disclosed is of little evidentiary value as it does nothing more than show the Appellant doing some sort of exercise outdoors, somewhere. There is no way for the RAD to determine the actual nature of the exercise or where or when the photograph was taken. The RAD finds that the Board did not err in its assessment of this evidence. [25] However; the RAD must look at the evidence in its totality. When some of the major credibility issues are removed (such as the departure from China with his own passport) and the testimony is listened to in conjunction with reading of the Reasons and Decision, the RAD must find that the Appellant is, albeit relatively new, a true practitioner of Falun Gong, now. The Reasons and Decision tells the RAD that the Appellant answered the questions put to him about Falun Gong and was able to describe all of the exercises. Even if there is insufficient proof that the Appellant was a true practitioner while in China, it is evident that he has not become one. According to documents13 at the Board, the Chinese government is monitoring practitioners of Falun Gong, in Canada. This presents an issue for the Appellant. If he has been photographed and identified by the Chinese authorities as a practitioner of Falun Gong, then he would surely face persecution should he return to China. The RAD finds that the Appellant is a true practitioner of Falun Gong. Disposition [26] The RAD has found that the RPD decision cannot stand. CONCLUSION [27] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe August 19, 2015 Date 1 Exhibit P-2, Appellant's Record, at pp. 1-14. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record, Memorandum of Appeal, at paras 10-20. 4 Exhibit RPD-1, RPD's Record, National Documentation Package for China, October 31, 2014, item 12.30, Responses to Information Requests (RIR), ZZZ103741.E. 5 Exhibit RPD-1, RPD's Record, NDP for China, October 31, 2014, item 12.32, RIR, CHN33180.EX 6 Exhibit P-2, Appellant's Record, at p. 10, para 32. 7 Exhibit P-2, Appellant's Record, Affidavit of XXXX XXXX, at pp. 16-17, Exhibit B, audio recording transcript around : 45:00 min, at pp. 36-39. 8 Sun, Hongxin v. M.C.I. (F.C., no. IMM-8088-13), de Montigny, March 27, 2015, 2015 FC 387. 9 Exhibit RPD-1, RPD's Record, NDP for China, October 31, 2014, item 10.4, RIR, CHN10762.E, item 4. 10 Ibid. 11 Exhibit P-2, Appellant's Record, at p. 11, para 34. 12 Exhibit P-2, Appellant's Record, at p. 44. 13 Exhibit RPD-1, RPD's Record, NDP for China, October 31, 2014, item 12.31, RIR, CHN104187.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05695