TB5-01545

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 : TB5-01545 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 May 26, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dushahi Sribavan 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 (Appellant) is a citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently-constituted panel. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that his university professor introduced him to Falun Gong. He was introduced to Master XXXX XXXX and his wife who were well known Falun Gong figures in Shanghai as they had trained with Master XXXX, the founder of Falun Gong. On XXXX XXXX, 2014, the Appellant went to the United States (US) and Canada on a sightseeing tour and to buy a wedding ring for his fiancée. While he was in Canada he learned that the Public Security Bureau (PSB) arrested Master XXXX. He decided to leave the tour group and remain in Toronto until things settled down and he could return to China. On XXXX XXXX, 2014, the Appellant's mother told him the PSB left a summons at his home in China. The Appellant then began to look for ways to remain in Canada. [4] He made a claim for refugee protection on October 20, 2014. The Appellant had a refugee determination hearing on December 15, 2014. In a decision of January 14, 2015, his claim was rejected by the RPD. The RPD found that on the basis of the totality of the evidence disclosed, the Appellant was not a genuine Falun Gong practitioner in China or in Canada. [5] The Appellant submits that the RPD's determination is flawed. The Appellant has submitted additional evidence in his RAD appeal as described in S. 110(4) of IRPA. ROLE OF THE RAD [6] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [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".2 [7] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL New Evidence Presented on Appeal [8] As provided for in s.110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and the Appellant. S.110(4) of IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] The Appellant has tendered the following proposed new evidence in support of his appeal: 1) A letter from the Appellant's ex-fiancée dated February 16, 2015 2) News articles concerning the arrest of Master XXXX, dated April 15, 2014, May 9, 2014, June 17, 2014, July 15, 2014 and July 12, 2014. 3) Email Correspondence from Falun Dafa Association of Canada (FDAC) dated XXXX XXXX, 2015 4) Affidavit from a friend and fellow practitioner dated February 22, 2015. [10] The Appellant submits that the proposed new evidence meets the test of s.110(4) IRPA because the evidence is new, credible, material and relevant and was not reasonably available to him. The Appellant argues that the evidence not only post-dates the hearing into his refugee claim, but establishes the nature of his ongoing risk in China. [11] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s.110(4). In assessing whether the proposed new evidence meets the statutory provisions of s.110(4), the RAD considered the following: (1) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim. (2) The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove. For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old [and the RPD may have considered similar evidence from another source], and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (3) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (4) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, and materiality of the document. (5) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s.110(4): If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to him at the time of the hearing? If so, the RAD will proceed to assess the credibility, relevance and materiality of the document. (6) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s.110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility and materiality of the evidence. The Ex-Fiancée's Letter [12] The Appellant submits that the letter from his fiancée dated February 16, 2015 should be admitted into evidence. He states that the letter supports his testimony in respect to his travel to North America and the reason for the break-up. The Appellant's decision in his claim for refugee protection was issued on January 14, 2015. [13] The RAD finds there is a requirement on the Appellant to provide an explanation about why the proposed new evidence meets the statutory requirement. The Court has held that if an applicant believes that the evidence meets the requirements of paragraph 113(a), it is up to the applicant to provide explanations as to why it conforms to the statutory requirement.3 For example, if the evidence pre-dates the RPD's decision, it is the duty of the person submitting the new evidence to provide why it had not been placed in front of the RPD under the express statutory requirements under paragraph 113(a).4 [14] The RAD has reviewed and considered the letter submitted by the Appellant. The RAD notes the Appellant states in his application that the letter states the reason why the Appellant's ex-fiancée did not provide a letter of support prior to this date. The RAD finds the letter does not clearly indicate why the ex-fiancée did not provide a letter earlier. The RAD finds the Appellant in his application and the content of the letter confirm he had occasional and ongoing contact with his ex-girlfriend. The RAD finds the letter alludes to a prohibition of contact by his ex-fiancée's parents but the evidence indicates it is clear that this did not exist. The Appellant submitted no other statements to support the admission of this document. The RAD finds that the Appellant's statement that the letter states the reason why he was unable to supply this information earlier is insufficient and requires a more fulsome explanation to demonstrate how the proposed new evidence meets the statutory requirements. [15] In its further review, the RAD considered whether the evidence arose after the rejection of the Appellant's refugee claim? In its assessment, the RAD notes that the incidents discussed in the letter address issues that all occurred prior to the decision in the Appellant's claim. It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. In this circumstance it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. The RAD has also considered whether the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to him at the time of the hearing? [16] The RAD in its review of the record notes that the letter from his ex-fiancée addresses items that were discussed in the Appellant's BoC narrative as well as the hearing, yet there was no application during the RPD hearing or following by the Appellant or his counsel to provide additional supporting documents such as this letter. [17] The RAD notes the Appellant was assisted by experienced counsel from the outset of his claim for refugee protection and submitted a number of supporting documents with his claim. The RAD finds that the Appellant recognized the need for additional supporting documentation and it is reasonable to expect that the Appellant would address in his application why he did not attempt to provide this information in the form of a post-hearing submission. The RAD finds that the evidence did not arise after the rejection of the claim, despite the date of the document. [18] The RAD finds that this evidence was reasonably available to the Appellant prior to the rejection of his claim and that the Appellant has provided insufficient persuasive explanation of why he could not have reasonably tendered that evidence prior to the rejection of his claim. Accordingly, the proposed new evidence is not admitted as evidence in this appeal. News Articles [19] The Appellant submitted a series of news articles concerning the arrest of Master XXXX, dated April 15, 2014, May 9, 2014, June 17, 2014, July 15, 2014 and July 12, 2014. The Appellant submits that this issue was not raised at the time of the hearing. The RAD in reviewing the audio recording of the hearing finds the RPD concern around the Appellant's awareness of the timing of the arrest of Master XXXX was canvased at the hearing. The Appellant submits that he did extensive research to find the earliest article informing the public of Master XXXX arrest. [20] The RAD finds in reviewing the record that the RPD did not take issue with the fact that Master XXXX was arrested or the date of the arrest. The central issue in the Appellant's claim is the arrest of Master XXXX and his linkage to the Appellant. In addition, the RAD notes these articles are all published prior to the issuing of the Appellant's RPD decision. The RAD finds it reasonable to expect that the Appellant would provide comprehensive documentation of issues that are key elements at or prior to the hearing of his claim. The RAD finds the proposed new evidence cannot be admitted as evidence in this appeal. Falun Dafa Association of Canada (FDAC) Correspondence [21] The Appellant submitted email correspondence from the FDAC dated XXXX XXXX, 2015. The Appellant submits that this email corroborates that the FDAC can only confirm genuine practice after observing the individual for an extended period of time. The RAD finds this information is available in the IRB National Documentation Package for China at item 12.30. The RAD finds the email correspondence does not constitute new evidence under the statutory provisions of s. 110(4) of IRPA and it is not admitted as new evidence in this appeal. The Affidavit from a Friend [22] The Appellant submitted an affidavit from a friend and fellow practitioner dated February 22, 2015. The Appellant submits that this individual can attest to having a relationship with him as a Falun Gong practitioner and describe their weekly routine as practitioners in Canada. The RAD has reviewed and considered the letter submitted by the Appellant. [23] The RAD finds there is a requirement on the Appellant to provide an explanation about why the proposed new evidence meets the statutory requirement. The RAD finds the Appellant has not fully explained other than the date of the affidavit, how this document meets the statutory requirement. [24] In its further review, the RAD has considered; did the evidence arise after the rejection of the Appellant's refugee claim? In its assessment the RAD notes that the information discussed in the affidavit all occurred prior to the decision in the Appellant's claim. The oral decision in the affiant's claim was issued on December 18, 2014. The Appellant's decision was issued on January 14, 2015. The RAD notes the affidavit describes a friendship and a minimum of twice weekly meetings with the Appellant. As previously addressed s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. In this circumstance it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [25] As stated previously the Appellant was assisted by experienced counsel from the outset of his claim for refugee protection and submitted a number of supporting documents with his claim. The RAD finds that if the Appellant recognized the need for additional supporting documentation, it is reasonable to expect that the Appellant would address in his application why he did not attempt to provide this information in the form of a post-hearing submission. The RAD finds that the evidence did not arise after the rejection of the claim, despite the date of the document. [26] The RAD in its review of the document as well as the record has considered whether the affidavit proves a fact that was unknown to him at the time of the hearing or brings new evidence that is relevant to the Appellant's claim. The RAD notes that affidavit describes information, which is similar to affidavits from Falun Gong practitioners previously submitted in this claim.5 The RAD finds the fact that the affiant was a successful refugee claimant in December 2014 does not add to his credibility nor does it speak to his ability to evaluate the proficiency or sincerity of the practice of other Falun Gong practitioners and hence the affidavit provides no information that that was unknown to the Appellant at the time of the hearing. [27] The RAD finds that this evidence was reasonably available to the Appellant prior to the rejection of his claim and that the Appellant has provided an insufficient explanation of why he could not have reasonably tendered that evidence prior to the rejection of his claim. Accordingly, the RAD finds that the proposed new evidence does not meet the test of new evidence as set out in s. 110(4) and as such will not be accepted as new evidence in this appeal. Application for an oral hearing [28] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [29] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [30] The Appellant has submitted no admissible new evidence in support of his appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and his application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Uncontested credibility findings [31] The RAD notes that the RPD made adverse credibility findings in relation to the Appellant's testimony concerning his knowledge of Falun Gong6 and in relation to the Appellant's knowledge of the practice of Falun Gong in China,7 as well as his delay in making a claim for protection upon his arrival in Canada, which were not contested by the Appellant. The RAD has conducted its own assessment of the record and finds that there is no perceptible reason why these findings should not be afforded deference. The RAD further finds that the findings serve to undermine the credibility of the Appellant's allegations that he is a Falun Gong practitioner and that he is being pursued by the PSB for that reason. Issues 1) The RPD erred in making negative credibility findings based on an absence of corroborating personal documentary evidence 2) The RPD made perverse and capricious findings without evidence and in disregard to the evidence. 3) The RPD erred in its treatment of personal documents. 4) The RPD erred in finding the Appellant was not a Falun Gong practitioner and not applying the legal test under section 97 of the IRPA. 5) The RPD erred in in its findings in respect to the Appellant's Falun Gong practice in Canada. Absence of Corroborating Personal Documentary Evidence [32] The Appellant submits the RPD made incorrect negative credibility findings at paragraph 22 -23 of the Reasons. The RPD made the finding based on a lack of corroborating evidence in reference to whether the Appellant had contacted the Falun Dafa Association of Canada (FDAC) in respect of assistance with his claim. The RAD is not persuaded by the Appellant's argument in this regard. [33] The RAD finds in its review of the record that the Appellant has based his claim on his association with a high profile Falun Gong practitioner in China who was arrested around the time the Appellant left China for Canada. The RPD concluded that considering the claimant's alleged linkage to this practitioner who was taught by Master XXXX (the XXXX of Falun Gong) that it would be reasonable for him to have contacted the FDAC for support with his claim. [34] The RAD in reviewing the record and the audio recording of the hearing finds the RPD put this concern to the Appellant. The RAD notes the Appellant testified, "his coach told him he needed to practice more and become more proficient". The RAD finds the Appellant's response did not address the question put to him. The RAD further finds the Appellant's testimony is inconsistent. If as the Appellant has set out in his BoC narrative8 he has studied and trained for two years with those taught by one of the foremost Falun Gong leaders in China, the RAD finds it makes little sense that the Appellant would testify that his skills were not proficient enough to approach the FDAC for support. [35] Additionally the RAD in reviewing the documentary evidence in respect of the role of the FDAC9 notes it states; The FDAC also adds that its credibility is very important because it can save "the lives of genuine practitioners" who risk persecution if returned to China (ibid.). They therefore only provide support only to practitioners who are "known" to them, taking "serious steps to determine the validity of each individual claim" before agreeing to support them (ibid.). The document further notes; In his 19 May 2011 correspondence, the FDAC representative noted that the FDAC has the advantage of having sources in China that help to verify some claimants.... [36] The RAD finds that the documentary evidence confirms that the mandate of the FDAC is to support practitioners in situations similar to the Appellant. The RAD finds it was reasonable to expect that considering his allegation that he had an association to a high profile Falun Gong member that he would approach the FDAC for assistance. The RAD further finds the Appellant's testimony when considered in reference to the documentary evidence, detracts from his identity as a Falun Gong practitioner. The RAD supports the finding of the RPD in this situation. Plausibility Findings Travel [37] The RPD made a plausibility finding based on the Appellant's financial ability to travel to Canada on a sightseeing tour. The Appellant submits that these findings are speculative and based on unsupported assumptions about the Appellant's financial means. The RAD finds the Appellant's argument has merit. [38] A review of the record by the RAD finds there is no evidence that would allow the RPD to make this conclusion. The RAD finds the RPD in this situation incorrectly made a negative plausibility finding The Arrest of Master XXXX [39] The RPD in its Reasons at paragraph 17 concluded that the Appellant's discovery of the XXXX XXXX, 2014 arrest of Master XXXX by the PSB in China immediately following his arrival in Canada was too coincidental. The RPD further concluded that the Appellant provided no persuasive documentation to demonstrate he was linked to Master XXXX and this detracts from the credibility of his allegations. The Appellant submits that the findings by the RPD in respect of Master XXXX arrest are speculative. The RAD finds the Appellant's submission has some limited merit, but finds that the statements of the RPD must be viewed in the context of the full finding in this situation. [40] The RAD in reviewing the record finds that the initial RPD statement concluding that the Appellant having alleged he was an associate of Master XXXX, should have known about his disappearance prior to departing China appears to be based in speculation. The RAD notes that the RPD could have structured its findings in a clearer manner. [41] The RAD upon reviewing the record and the audio recording of this hearing finds the RPD's subsequent conclusion that the newspaper articles10 submitted in evidence shows no linkage of the Appellant to Master XXXX, is a statement that is supported in the evidence. The RAD finds when one considers the Appellant has anchored his claim on this association, it is reasonable to expect that the Appellant should be able to provide some evidence of linkage to Master XXXX. [42] The RAD on the issue of corroborating evidence, wishes to note the following Federal Court case in Bhagat,11 which states: Corroborating evidence is not always necessary to establish the applicant's subjective fear. The Board, however, determined that in the particular circumstances of this case, corroborating evidence of persecution was expected. An absence of corroborating evidence, then, permitted it to make a negative inference against credibility of the applicant. The respondent relies on Sheik v. Canada (M.E.I.) (C.A.), [1990] 3 F.C. 238, at page 244, for its argument that the Board did not err in law when making that conclusion: The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. [43] Further review of the audio recording of the hearing reveals that the Appellant testified that he was in regular weekly contact with his Falun Gong group organizer, a direct associate of Master XXXX from the time of his arrival in Canada in XXXX 2014 until XXXX 2014. The RAD finds given that the claimant had repeated contact with his organizer, was fearful, choosing to leave his tour group and remain in Canada, it is reasonable to expect he would be able to gather additional supporting documentation of his association with these individuals in China. [44] The Appellant submits that the documentary evidence12 states that it is not uncommon for the PSB to detain individuals without notifying friends or family members and this would explain why there was no awareness of Master XXXX arrest. The RAD finds the Appellant has selectively interpreted the documentary evidence in that the same document states: The law also includes a provision that requires officials to alert the relatives of a suspect who has been detained within 24 hours of such detention.(emphasis added) [45] The RAD in its assessment of the evidence, finds the Appellant has misapprehended the conclusion of the RPD, in that the arrest of Master Du was a minor component in this issue. The RPD conclusion in this respect dealt with the fact that there was insufficient evidence in the form of testimony and documentation to support the association of the Appellant with these individuals in China. [46] The RAD finds the Appellant has focused on a singular statement within the RPD reasons, which at first reading appears perverse, but one must assess the full record in concert. The RAD further concludes that it supports the RPD finding of placing little weight on the newspaper clipping and that it was reasonable to expect persuasive documentation of association between the Appellant and Master Du. Little Weight to Supporting Documents [47] The RPD assigned little weight to the Summons and Letter from the Appellant's mother.13 The Appellant submits that the IRB gave these documents little weight without fully assessing the documents. The RAD finds the Appellant's argument has some merit. The Summons [48] The RAD finds that the RPD in its Reasons appears to rely on the basis of cumulative credibility concerns and the availability of fraudulent documents in China14 in rejecting the document. If this is indeed the case, the inference created by these two factors alone is weak and cannot sustain the RPD's finding to reject the document. The RAD presumes that the RPD considered the entire record, and thus the Appellant bears a high burden of persuasion that this is not the case. In this instance, while the RPD's reasons are not clearly expressed in its assessment of the Appellant's summons, there are, nevertheless, reasons, which could be offered in support of the RPD's conclusion that the summons tendered is deserving of little evidentiary weight. The RAD finds that there is sufficient evidence in the record to place little weight on the summons. [49] In assessing the document15 submitted by the Appellant to the RPD, the RAD notes that the summons at initial examination appears to conform to the description and sample of a non-coercive Public Security Bureau (PSB) summons described in the documentary evidence.16 [50] In reviewing the audio recording of the hearing, the RAD notes the RPD inquired as to the actions of the Public Security Bureau officers in their pursuit of the Appellant. The Appellant confirmed in his testimony that the PSB had continued to return on multiple occasions to his family home in search of him. By virtue of the issuance of a summons for the Appellant it would seem that in this case the PSB were not hesitant to follow the rule- of-law standard.(emphasis added) The documentary evidence17 states that the action of failing to respond to the issuing of a non-coercive summons results in the "suspect being restrained and coerced into compliance". Furthermore, the documentary evidence18 states the summons is the documentary basis for the subsequent issuance of an arrest warrant if the person in whom they are interested does not respond to the summons. It is reasonable to conclude that the authorities have concluded some investigation, which gave rise to them issuing a summons. Given that the Appellant's testimony states the authorities have continued to inquire about the Appellant, it is reasonable to expect, given the documentary evidence, that a subsequent arrest warrant or summons would have been left with the claimant's family. In his mother's letter,19 the Appellant's mother states that the PSB told her, "If you don't appear, you have to bear the consequences yourself", but she does not indicate that a subsequent document was received or that any further action was taken by the PSB. The RAD finds the lack of a subsequent summons or warrant detracts from the credibility of the summons presented in evidence by the Appellant. [51] The RAD upon further examination of the summons notes it states the Appellant is suspected of illegal Falun Gong activities in accordance with "Regulation 82 of the People's Republic of China Public Security Management Penalty Law". A search of documentary evidence did not reveal the existence of such "Regulations". If one were to assume a possible translation error and extrapolate to the PRC Criminal Procedure Law20, a review of Article 82 of the PRC Criminal Procedure Law states, "Article 82. Under any of the following circumstances, a person may be immediately tackled by any citizen to a public security authority, a people's procuratorate, or a people's court for handling", which describes the condition for a citizen's arrest and does not sufficiently explain the discrepancy. The RAD also notes the summons also does not bear the signature of the claimant's mother despite his testimony that she was the person on whom the summons was served. A review of the audio recording of the hearing finds this discrepancy was put to the Appellant and the RPD found his response did not address the issue. The RAD finds there are sufficient reasons for the RPD to doubt the genuineness of the summons. In reviewing the record and considering the documentary evidence, it is apparent that the RPD did examine and weigh the summons although it did not clearly articulate all of the measures it utilized in its assessment. In performing its own review and weighing of the evidence, the RAD finds that the inconsistencies surrounding the issuing of the summons when considered with the documentary evidence undermines genuineness of the document and as such, the RAD affords little weight to the summons. The Mother's Letter [52] The Appellant in his submission acknowledges the RPD statement in respect of the mother having a vested interest in the outcome of the claim, but submits the RPD cannot assume the letter is a misrepresentation. [53] The RAD having reviewed the letter from the Appellant's mother notes it has previously addressed the actions of the PSB in its pursuit of the Appellant. The RAD notes that the documentary evidence21 indicates that Chinese authorities use the family of absconding practitioners as hostages to force the practitioner to give up the practice. If a practitioner does not co-operate with the authorities, the family is subject to punishment as well, including harassment, arbitrary interrogation, losing a job and losing housing benefits. [54] In the context of this case, where the absconding person is allegedly associated with a high profile Falun Gong organizer and has not responded to the summons and as alleged by the claimant, the PSB are still looking for him, it is reasonable to assume that his mother would have experienced all or some of the punishments noted above. This causes the RAD to question the activities of the PSB. The actions (or lack thereof) indicated by the author of the letter run counter to conventional beliefs that the PSB are a ruthless and fearsome police force. The contents of the letter run counter to documentary evidence about the PSB's methods and detract from the credibility of the document. When the RAD further considers the findings concerning the summons as described above it further detracts from the credibility of the letter. [55] In performing its own review and weighing of the evidence, the RAD finds that the inconsistencies in the letter from the Appellant's mother when considered with the issues surrounding the summons, undermines the credibility of the document and as such, the RAD affords little evidentiary weight to the document. Falun Gong Identity in Canada [56] The RPD found that the letters from fellow practitioners and photographs of the Appellant practicing Falun Gong did not prove the genuineness of the Appellant's Falun Gong practice in Canada. The Appellant submits that the RPD gave little weight to the documents that supported his genuine practice in Canada. In addition, the Appellant argues that the RPD in making unreasonable credibility findings in respect of the Appellant's Falun Gong practice in China carried those findings to the Appellant's Falun Gong practice in Canada. The RAD is not persuaded by the Appellant's argument in this regard. [57] The RAD has reviewed the documents concerning the Appellant's practice in Canada. The RAD finds that these documents can only attest to the Appellant's participation in Falun Gong activities in Canada; they do not attest to his motivation, nor do they attest to his alleged profile as a practitioner in China or his association with high profile Falun Gong organizers in China. While it is true that a letter of support from two fellow practitioners who perform the exercises at XXXX XXXX has suggested that they "certify the Appellant is a real Falun Gong practicer (sic)". The RAD finds that the letters may confirm the Appellant has learned the exercises associated with the practice of Falun Gong. The performance of these exercises is simply the enactment of a group of exercises and they alone do not define that individual as a genuine Falun Gong practitioner. The RAD finds there was no evidence adduced in the record to indicate that the author of this letter has the expertise to make such a judgment and as such little weight can be afforded to these letters in assessment of the genuineness of his alleged practice. [58] The RAD notes the Appellant alleges that he has been practicing Falun Gong in Canada since April 2014. The RAD has reviewed the photographs attesting to his practice of Falun Gong and notes they are all taken in the three months preceding his hearing and were acquired after his claim for refugee protection was made. The RAD finds these photographs depict the Appellant performing exercises and sitting in a circle with a book, they do not address the motivation of the Appellant or confirm the genuineness of his practice or duration of his practice in Canada. The RAD finds little weight can be assigned to the photographs in the assessment of the genuineness of the Appellant's Falun Gong identity. [59] The RAD notes that as discussed previously the RPD drew an adverse credibility finding concerning the Appellant's identity as a Falun Gong practitioner on the basis that the Appellant failed to contact or seek the Falun Dafa Association (FDA) in Canada. Specifically, the RPD found that "on a balance of probabilities that a genuine Falun Gong practitioner would have sought out the FDA in Canada and the [Appellant's] failure to do so and also to provide a reasonable explanation as to why he did not contact the FDA undermines his credibility and his identity as a practitioner."22 The RAD conducted its own assessment of the evidence and supported the finding of the RPD in this matter. [60] The RAD finds after its own review and assessment of the evidence that: The RPD did not carry any unreasonable credibility findings in respect of the Appellants Falun Gong practice in China to the Appellant's Falun Gong practice in Canada. There is insufficient persuasive evidence to conclude the Appellant is a genuine Falun Gong practitioner in Canada. [61] The RAD finds the Appellant's argument in this matter must fail. The RPD's analysis of the Appellant's sur place claim was unreasonable [62] The Appellant argues 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 Chinese authorities. The Appellant argues that the RPD failed to consider whether there is a reasonable chance or serious possibility of persecution of the Appellant given his public practice of Falun Gong and the documented monitoring that takes place. [63] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD did consider the risk to the Appellant if the Chinese authorities became aware of his Falun Gong activities in Canada. The RAD notes that the Appellant does not contest the RPD's credibility findings in respect of Falun Gong knowledge. The RAD further finds that the credibility findings are significant and compelling. The RAD finds that, based on its assessment of these credibility findings, it supports the RPD finding that the Appellant has not provided credible and trustworthy evidence to establish his allegations of practicing Falun Gong in China, being wanted for such practice and now being a genuine practitioner of Falun Gong in Canada. [64] Having found that the Appellant was not a Falun Gong practitioner in China, the RPD considered whether the Appellant's activities in Canada would place him at risk of persecution. [65] The Appellant submits that the photographs23 of himself practicing Falun Gong exercises and advocating for his faith at XXXX XXXX places him at risk of persecution by the Chinese Authorities. The RAD has examined and discussed the photographs previously in these Reasons. The RAD notes they provide no evidence that the Appellant was advocating for his faith or that he was performing anything more that a series of movements in a group photograph. The RAD further finds as noted by the RPD that there was no persuasive evidence adduced at the hearing or in his BOC form 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 practitioner. In this respect, the RAD is guided by the Federal Court Trial Division decision in Wang,24 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. The Appellant does not submit that the RPD has misconstrued the facts in Wang. [66] The RAD notes that the Appellant has alleged that his desire to initiate the practice of Falun Gong took place as a result of circumstances, which occurred in China. He alleges his continued practice of his alleged belief system in Canada is based on his adherence to his practice in China. Having found that he was not a Falun Gong practitioner in China and having no evidence of conversion in Canada, the RAD finds, on a balance of probabilities, and in the context of the findings noted above, that the Appellant joined a Falun Gong group in Canada only for the purpose of supporting a fraudulent refugee claim. [67] In the context as noted above and on the basis of the totality of evidence, the RAD finds that the Appellant is not a genuine adherent of Falun Gong, nor would he be perceived to be in China. State Protection [68] The Appellant alleges that the objective evidence in the record establishes that the Appellant, as a Falun Gong practitioner, will not be provided state protection in China and that the RPD ought to have come to that conclusion. The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the RPD found the Appellant is not a genuine Falun Gong practitioner and the events alleged by the Appellant did not occur. The RPD further found that the Appellant lacked subjective fear. [69] While it is true the objective evidence establishes that genuine Falun Gong practitioners are not able to avail themselves of state protection, and in that situation they would be at risk, the RPD found that the Appellant failed to provide persuasive evidence that the events he alleged took place actually occurred. The RAD in reviewing and assessing the evidence supports the finding of the RPD, and as such the Appellant's argument must fail. Summary [70] The RAD concurs with the RPD that the Appellant was lacking in knowledge of Falun Gong and that he had delayed making a claim for refugee protection leading to a finding that he lacked subjective fear. [71] The RAD concurs with the RPD that the absence of corroborating personal documentary evidence in respect of the FDAC undermines the credibility of the claim. [72] The RAD concurs with the RPD that it did not err in assigning little weight to the summons and the letter from the Appellant's mother. The RAD concurs with the RPD that the Appellant did not provide persuasive evidence that he was a genuine Falun Gong practitioner in Canada nor would he be perceived to be in China. [73] The RAD concurs with the RPD thatthe Appellant is not a refugee sur place. [74] Notwithstanding the error made by the RPD in drawing a speculative plausibility finding, the RAD finds after its review and assessment of all of the evidence in the record the cumulative credibility concerns as well as the uncontested credibility issues are sufficient to sustain the RPD decision. CONCLUSION AND DETERMINATION [75] The RAD finds that, on the basis of the totality of the evidence in this appeal, the Appellant has not satisfied the burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment or a danger of torture by any authority in China. [76] Accordingly, this appeal is dismissed. (signed) "Robert Bebbington" Robert Bebbington May 26, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid., paras 54 and 55. 3 Bengabo v. M.C.I. (F.C., no. IMM-2750-08), Shore, February 23, 2009; 2009 FC 186, at para. 23. 4 Jessamy v.Canada (Citizenship and Immigration) (F.C., no. IMM-2302-09), Phelan, May 4, 2010; 2010 FC 489 See also: Aleziri v. M.C.I. (F.C., no. IMM-360-08), Lagacé, January 15, 2009; 2009 FC 38 and Haque v. M.C.I. and M.P.S.E.P. (F.C., no. IMM-5356-08, O'Keefe, June 26, 2010; 2010 FC 703. 5 Exhibit RPD-1, RPD Record pp. 15-16, 169-170. 6 Exhibit P-2, Appellant's Record, p. 8. 7 Ibid., pp. 10 and 11. 8 Exhibit RPD-1, RPD Record, pp.24-25. 9 Exhibit RPD-1, National Documentation Package (NDP) for China, October 31, 2014, item 12.30. 10 Exhibit RPD-1, RPD Record, pp. 193-195. 11 Bhagat v. Canada (Citizenship and Immigration) (2009 FC 1088), IMM-826-09, Date: October 29, 2009. 12 Exhibit RPD-1, RPD Record, NDP, item 9.2. 13 Exhibit RPD-1, RPD Record, pp. 172-173,191-192. 14 Exhibit RPD-1, RPD Record, NDP, items 3.22 and 3.24. 15 Exhibit RPD-1, RPD Record, pp.191,192. 16 Exhibit RPD-1, RPD Record, NDP item 9.10. 17 Ibid., Item 9.8. 18 Ibid., Item 9.5. 19 Exhibit RPD-1, RPD Record, pp. 172, 173. 20 Exhibit RPD-1, RPD Record, NDP, item 9.5. 21 Exhibit RPD-1, RPD Record, item 12.27, CHN104580.E. 22 Exhibit RPD-1, RPD Record, p.9. 23 Exhibit RPD-1, RPD Record, pp. 187-190. 24 Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001; 2001 FCT 1237. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01545