TB5-07114

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 : TB5-07114 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 September 30, 2015 Date de la décision Panel Ken Atkinson 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 ("Appellant"), a citizen of the People's Republic of China ("China"), appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant is not submitting any new evidence and he is not requesting an oral hearing. He requests that the appeal be allowed and the decision of the RPD be set aside and the Refugee Appeal Division (RAD) find the Appellant to be a Convention refugee or a person in need of protection or alternatively, that the matter be returned to the RPD for re-determination. DETERMINATION OF THE APPEAL [2] The appeal is allowed. Pursuant to ss. 111(1)(b) of the Immigration and Refugee Act (IRPA), the RAD sets aside the determination of the RPD and substitutes a determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant states that he is university educated. In XXXX 2013, he found a position working as an intern XXXX for an XXXX company. His team leader at the company made a mistake for which the Appellant was blamed and as a result, he was asked to leave the company. [4] He was very bitter and decided that in the future he would take any steps necessary to get ahead. He complained to a friend about the way he had been treated, but his friend told him that his focus on money was unhealthy. His friend told him that he was a Falun Gong practitioner. He said that if the Appellant practiced Falun Gong the bad energy in his body would be removed and he would develop a healthy outlook. [5] The Appellant was concerned about practicing Falun Gong but his friend reassured him about his practice group's safety precautions. Based on his friend's assurances, he decided to try to practice Falun Gong to see if it would improve his situation. His friend gave him information as to the movements and theory of Falun Gong beginning in XXXX 2014. In mid-XXXX 2014, after he had learned the movements, his friend introduced him to his group of 13 Falun Gong practitioners. He practiced with the group every week on either Saturday or Sunday and he also practiced by himself at home every day. [6] He says that members of the Public Security Bureau (PSB) raided the group practice session on XXXX XXXX XXXX 2014. He escaped to the home of his father's cousin in a different part of the city. The Appellant learned from his parents that the PSB went to his house to look for him and inquired about his whereabouts on XXXX XXXX, 2014. The PSB said that they had already arrested three members of his group, including the friend that introduced him to Falun Gong. The PSB showed a search warrant and searched the house. The PSB alleged that he had joined an illegal Falun Gong group and they wanted him to report to a local PSB office without delay. The PSB also threatened his parents to disclose his whereabouts. [7] He states that the PSB went to his home looking for him on three other occasions. They also went to his grandparents' homes and his aunts' and uncles' homes. His father's cousin helped him to find a smuggler in order to leave China. The smuggler prepared some false documents and assisted him to apply for a United States of America (USA) visa. The first application was refused in late XXXX 2014. The smuggler assisted him to apply for a USA visa a second time and this time the application was successful. The visa was issued in early XXXX 2015. [8] The Appellant and the smuggler flew from Beijing to Seattle and they arrived on XXXX XXXX, 2015. They stayed in Seattle until XXXX XXXX, 2015, when the smuggler accompanied him to illegally across the border south of Vancouver to enter Canada. After arriving in Canada, he learned that the PSB returned to his home asking for him. He states that his fellow practitioners who were arrested have not yet been released. If he returns to China he fears being arrested. ROLE OF THE RAD [9] The Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 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. 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. ANALYSIS OF THE MERITS OF THE APPEAL [11] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: (a) It is not credible that the Appellant is a Falun Gong practitioner. Admissibility of new evidence presented on appeal [12] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have been presented at the time of the rejection of the claim. [13] The Appellant provided a written statement, as required by the RAD Rules, stating that he did not intend to submit new evidence pursuant to subsection 110(4) of the IRPA, but there is an affidavit sworn by XXXX XXXX on July 28, 2015, including as an exhibit, an internet article entitled Security Checks for Nonimmigrant Visa Processing by a USA law firm of Pang & Weber. The article is undated. The Appellant subsequently presents submissions as to the admissibility of this article. The affidavit has three other exhibits that were in evidence before the RPD. [14] The RAD considers that the Appellant tenders the following as new evidence: (a) An internet article by Peng &Weber (law firm). [15] Section 110(4) establishes a disjunctive test.2 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [16] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.3 [17] As the RAD understands it, Section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [18] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.4 Old evidence remains old evidence, even if it is placed in a new document with a recent date. [19] In this case, there is no date on the article and there are no submissions made by the Appellant as to the date the article was created. There are also no submissions as to whether the article was or was not reasonably available prior to the rejection of the Appellant's claim on June 19, 2015. The Appellant makes submissions as to whether he could reasonably have been expected, in the circumstances, to have presented this evidence to the RPD. It is argued that there was no evidence before the RPD that USA security checks would reveal whether a person is wanted by the Chinese authorities. This is an error in fact-finding and that the Appellant ought to be able to lead new evidence on this point. [20] The RAD finds that it will not admit this article in evidence. There is no persuasive evidence that the article arose after the rejection of the Appellant's claim. There is also no persuasive evidence as to whether or not the article was reasonably available for presentation prior to the rejection of the claim. In addition, there was evidence before the RPD that a USA visa has been granted to the Appellant and questions could have arisen at the RPD hearing concerning the granting of the visa. If the document was reasonably available, the Appellant could reasonably have been expected in the circumstances, to have presented the evidence to the RPD prior to the rejection of the claim. Submissions The Appellant submits that the RPD erred: (a) in finding that the Appellant did not fear the authorities in China PSB because he left his place in hiding on two occasions and went to a USA embassy to attend an interview in order to try and obtain a USA visa. (b) in finding that he would not have been able to obtain a USA visa if he was wanted by the Chinese authorities for Falun Gong activities. (c) in finding that the Appellant, as a person wanted by the authorities as Falun Gong practitioner, would be unable to leave the country using his own passport because of the security checks and technology available to screen Chinese citizens leaving the country. (d) in finding that the claim was not credible because the Appellant failed to make his claim in the USA at the first opportunity for doing so. (e) in applying a microscopic examination of the evidence in relation to the Appellant's travel from Seattle to Vancouver and failing to give the Appellant the benefit of the doubt regarding the distance and travel time between Seattle and the Canadian border. (f) in drawing a negative inference from the fact that the Appellant was not a member of the Falun Dafa Association of Canada (g) in failing to properly assess the Appellant's sur place claim. Analysis [21] The RPD made a number of plausibility findings in determining that the Appellant was not credible in his claim that he was a Falun Gong practitioner who was wanted by the authorities in China for his Falun Gong activities. The Federal Court has stated that the plausibility findings should be made only in the clearest of cases, such as where the facts are so far outside the realm of what could reasonably be expected that it could not happen as described, or where there is documentary evidence or other evidence which demonstrates that events could not have happened as described5 [22] The RPD found that it was implausible that the Appellant would leave his hiding place on two different occasions to attend at a USA embassy in order to have an interview to try and obtain a USA visa. The RPD asked him whether he was afraid of discovery when he went to the embassy. He stated that he was not afraid because the snakehead drove him to the embassy and told him that he would be safe. The RPD found it implausible that someone who so feared the PSB that he stayed hiding away from his family home for several months, would be unafraid to expose himself to Chinese authorities by going to two visa interviews at the American embassy. The RPD referred to surveillance techniques that the PSB uses to monitor and intimidate political dissidents, Tibetans and Uyghurs. The panel concluded that as a result of these actions the Appellant did not fear PSB authorities and therefore had no qualms about being seen entering what any reasonable person would perceive to be a guarded and protected building, an American embassy in China. The documentary evidence does not clearly state that everyone wanted by the PSB in China would be discovered in these circumstances. There is no persuasive evidence that the Appellant would be discovered if he went to the USA embassy on two occasions. [23] The RPD found that it was implausible that the Appellant could have obtained a USA visa because of the security checks that would be done by the USA authorities prior to the issuing of the visa. The RPD refers to documentary evidence stating that all USA visa recipients undergo security checks. However, there is no evidence as to what databases are searched in performing the security checks. In order to determine if the Appellant was being sought by the Chinese authorities for his Falun Gong activities it would be necessary for the USA authorities to have access to information about Chinese citizens presumably on a Chinese database. It could not be reasonably expected that the USA authorities would have access to this information. [24] The RPD found that it was implausible that the Appellant would have been able to exit China from the Beijing airport using his own passport if he was being sought by the Chinese authorities. The RPD describes the Golden Shield technology that is used by the Chinese authorities in screening Chinese citizens who leave the country. The panel acknowledged that there is systemic corruption in China and that airport officials can be bribed and that Chinese officials do not always apply regulations evenly. The RPD determined that the Appellant exited China on his own identity documents, showing that the authorities were not concerned with him and therefore undermining his identity as a Falun Gong practitioner who is wanted by the PSB. The RPD itself, acknowledged the bribery and corruption and therefore, this issue is not determinative of the matter on its own. [25] The RPD found it implausible that the Appellant would be able to walk from Seattle to Vancouver and enter Canada illegally through a park near the border and therefore drew a negative credibility inference from this testimony concerning this travel route to Vancouver. This plausibility finding is not in itself determinative of the main issues in this matter. [26] The RPD drew a negative credibility inference from the failure of the Appellant to make his claim in the USA at the first opportunity afforded to him once left China. The RPD pointed out that he had stayed in the USA for 10 days prior to entering Canada and he failed to make a claim during that period of time. The RPD also noted that he did not make his claim when he arrived in Vancouver after he walked through the park into Canada. He went to Vancouver airport and flew to Toronto because he had a friend there. The RPD noted that the Appellant was in Canada without status after illegally crossing the border and evading border officials. He could have been deported at any time. The RPD found that this behavior undermined his credibility as a person fearing Chinese officials and needing the protection of the safe country. In response to his counsel's question at the RPD hearing why he did not make her claim in the USA, he stated that he had obtained the USA visa with fake documents and he was afraid that this would be discovered if he made a claim and he would be deported back to China. Again, this is a plausibility finding but it is not determinative of the main issues. [27] The RPD also found it implausible that after the Appellant came to Toronto he did not approach the Falun Dafa Association of Canada. The RPD made a determination that a genuine Falun Gong practitioner would have sought out the Falun Dafa Association and that the Appellant's failure to do so undermined his credibility and identity as a Falun Gong practitioner. [28] On the basis of these findings, the RPD found that the Appellant had not established a central element of his claim namely, that he is a Falun Gong practitioner wanted by the authorities in China. [29] The RPD has based its decision entirely on plausibility findings. The RPD acknowledges in its decision that the Appellant was able to answer some basic questions about the exercises, the books written by Master Li and other details of Falun Gong teachings. In reviewing the recording of the hearing, the Appellant was able to correctly give the names of the exercises performed by Falun Gong practitioners. He was able to recite his favorite part of Zhuan Falun in regard to jealousy and he accurately described an example that is present in the seventh talk. He was originally asked if he could recite the verse accompanying the first exercise and he stated that he was nervous. Other questions were asked and then he was asked if he could not recite the first verse which he did accurately. [30] The RPD did not ask any questions in regard to his motivation for practicing Falun Gong. There were no questions as to the raid that took place or the individuals who had been detained by the PSB. There were no questions in regard to the search warrant that the PSB used to search his home. The plausibility findings did not touch on these central elements. The RPD's decision is based on plausibility findings alone and there is no challenge to the Appellant's evidence as to the central elements of his claim. [31] The Maldonado6 case states that "when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true, unless there be reason to doubt their truthfulness." The Appellant's statements as to his practice of Falun Gong, the raid and the interest in him by the PSB are accepted as credible on the basis of the above presumption. [32] The documentary evidence before the RPD clearly shows that individuals who practice Falun Gong in China are subject to sanctions up to and including incarceration and there are even allegations of extreme physical abuse.7 [33] I conclude, based on the Appellant's profile as a Falun Gong practitioner and the documentary evidence cited above, that there is a serious possibility that the Appellant would be persecuted if he returned to China. DISPOSITION [34] The appeal is allowed. Pursuant to ss. 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes a determination, that in its opinion, should have been made, namely, that the Appellant is a Convention refugee. (signed) "Ken Atkinson" Ken Atkinson September 30, 2015 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 See Olowolaiyemo v. Canada (Citizenship and Immigration), 2015 FC 895, para. 19. 3 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, para. 55. 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. 5 Xu,Jinhuan v. M.C.I. (IMM-2318-06, March 9, 2007) Phelan, 2007 FC 274. 6 Maldonado v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 220 (F.C.T.D.). 7 Exhibit 3, National Documentation Package (NDP) for China, October 31, 2014, Item 12.28, RIR CHN103769.E, June 30, 2011. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07114