TB5-05581

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 : TB5-05581 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 21, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine 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, a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant did not submit new documents to be considered as new evidence in support of her appeal before the Refugee Appeal Division (RAD), pursuant to ss. 110(4) of the Immigration and Refugee Protection Act (the Act or IRPA). The Appellant, however, requests an oral hearing under section 110(6). [3] Since no new evidence has been forwarded or accepted, the RAD cannot hold a hearing pursuant to s. 110(6) of the Act. [4] The Appellant requests that the RAD set aside the decision of the RPD and substitute its determination that the Appellant is a Convention refugee or person in need of protection, in accordance with its jurisdiction under Section 111 (b) of the Act. In the alternative, the Appellant requests the RAD to remit the matter back to the RPD for redetermination by a differently constituted panel. DETERMINATION [5] Pursuant to ss. 111(1) (a) of the Act, the RAD confirms the determination of the RPD. This appeal is dismissed. BACKGROUND [6] The Appellant alleged before the RPD that she began practising Falun Gong (FG) in XXXX 2013 due to a XXXX XXXX XXXX that was diagnosed in XXXX 2013. Medication, herbs, and acupuncture did not help. Accepting a friend's suggestion, she started FG at her friend's group, which was considered safe and had safety precautions. On XXXX XXXX, 2014, this group was raided by the Public Security Bureau (PSB) when the Appellant was not in attendance. Her friend called and informed her about the raid and the arrests of three members. The Appellant went to her aunt's home to hide, and while in hiding, she learned that agents of the PSB came to her home to arrest her on XXXX XXXX, 2014. The Appellant declared in her narrative that "...the PSB went to my house repeatedly."1 With the help of a smuggler, she left China, travelled to the United States (US), and entered Canada through a park near Vancouver. She continues to practice and study Falun Gong in Canada. [7] Her claim was heard by two sittings on February 24, 2015 and March 31, 2015. On May 1, 2015, the RPD, by a written decision, rejected the claim finding that the Appellant was not credible. [8] The Appellant's issues are: Should the RAD set aside the RPD's determination and substitute that the Appellant is a refugee or person in need of protection, or alternatively, grant an order referring this matter back to the RPD for re-determination? [9] I will rephrase the issue as follows: Is the Appellant a Convention refugee or a person in need of protection? ROLE OF THE RAD [10] The Appellant did not make submissions on the appropriate standard of review or the role of the RAD. [11] The jurisprudence on the role of the RAD is still evolving, however, a Federal Court decision, Huruglica,2 appears to be the most followed. It provides the RAD with guidance in paragraphs 54 and 55: [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". [12] Guided by Huruglica, I will conduct my own assessment of the evidence and decide whether the Appellant is a Convention refugee or a person in need of protection, while recognizing and respecting the credibility findings of the RPD where the RPD has a particular advantage. ANALYSIS OF THE MERITS OF THE APPEAL [13] The genesis of the claim is that the Appellant allegedly joined an underground FG group due to pain in her shoulders and back.3 The authorities raided the place when the Appellant was not present and now they want to arrest her. The story is rather straight forward and one would expect straight forward evidence without omissions or inconsistencies, particularly regarding the documents submitted by the Appellant to corroborate her own story. Unfortunately, that is not the case here. [14] The Appellant provided conflicting information concerning the core elements of the claim regarding her identity as a FG practitioner, how she obtained the documentary evidence, what documents she brought with her and what were sent to her by her husband, and the work she did. [15] The RPD rejected the claim based on material omissions, inconsistencies, and failure to claim. The RPD considered the Appellant's explanations and was not satisfied that the explanations were reasonable. The Appellant submits that the RPD relied on peripheral issues and conducted a microscopic examination. I will consider whether the Appellant is a FG practitioner, followed by credibility; both issues are intertwined. [16] Her claim was heard within months of the alleged incident and it would be reasonable for the tribunal to expect to hear a consistent story about the surrounding events; unfortunately, that was not the case here. The RPD found that the PSB is not interested in the Appellant, and the RAD finds that this is supportable based on the totality of the evidence. [17] The RPD questioned the Appellant regarding her knowledge of FG principles and practices, and noted in its reasons4 at paragraph 14: The panel acknowledges that she had some knowledge of Falun Gong, but given the determination that no raid occurred, that the summons is fraudulent, and the lack of subjective fear, the panel determines on a balance of probabilities that she was not a Falun Gong practitioner in China, and finds that any knowledge she has gained has been gained in Canada for the purpose of bolstering her refugee claim [18] I note that the Appellant's answers to her own counsel's questions shows her ignorance of the core beliefs of FG as taught by master Li in Zhuan Falun. For Example, the Appellant's response to her counsel's question regarding the most important beliefs or philosophies of FG was to get rid of Karma and stress5. FG is for the practitioners to rise to a higher level of spirituality and physicality by practicing compassion, forbearance and truth, and by getting rid of attachments. The Appellant's counsel also asked "tell me anything about Zhuan Falun" and she responded6 "yes, several points in Zhuan Falun". The book Zhuan Falun by Master Li is almost like a bible for the followers of Falun Gong. In my opinion, her answers to questions by her counsel persuade me to find that she is not a genuine follower of FG. [19] Knowledge of FG in itself is not sufficient to establish that a person is a genuine practitioner and that there is a serious possibility of persecution due to FG activities. In Liu,7 the Federal Court recognized this principle and in dismissing the application, the court stated: [7] The Board took the second approach in this case when it said at paragraph 11 of its decision: [11] The claimant was asked a number of questions regarding Falun Gong theory and practice. He answered most of them correctly but his responses to questions regarding the nature of cultivation and attachments, were vague and only partial. Merely being able to answer a few basic questions regarding Falun Gong theory and practice is not in itself a satisfying basis for judging the genuineness of his Falun Gong identity. [8] I have concluded that the Board was obliged to question the applicant about Falun Gong's practice and the simple fact that such questions were asked - without more - cannot be the basis for a finding that the Member prejudged the question of whether the applicant's practice in Canada was genuine. As well I do not accept the applicant's submissions that the claim would necessarily be dismissed. In my view, it was open to the Board to conclude that the applicant displayed such an in-depth knowledge of Falun Gong and a commitment to the practice that, even though he had not practiced it in China he had become a genuine practitioner in Canada. [Emphasis Added] [20] While I recognize and respect the RPD's credibility findings, based on my own analysis of the Record, I am able to find that the RPD's determination is supportable. The RPD stated in its Reasons that the Appellant "...was not a Falun Gong practitioner in China; she is not being pursued by the PSB in China for any reason; she is not a genuine Falun Gong practitioner in Canada; and she would not be a Falun Gong practitioner or perceived to be a Falun Gong practitioner upon return to China." [21] To start with, she provided conflicting evidence regarding whether she knew it was illegal to join FG. However, she knew that the family members of the FG practitioner are persecuted by the authorities8 and that she heard it on the radio, a long time ago.9 She testified that she knew it was illegal to join FG, but contradicted herself by her testimony that she did not know any risks in becoming a FG practitioner. [22] The Appellant testified that the practice was raided approximately two weeks after her return from XXXX; however, her testimony is contradicted by her own documentary evidence. Her passport shows that she returned to China on XXXX XXXX, 2014, just two days prior to the alleged raid. The RPD did not find her explanation reasonable. After hearing the audio recording of the hearing, I agree with the RPD. The Appellant had testified10 that after her return from XXXX she had attended two weekly practice sessions11 - over two weeks prior to the raid. Given the evidence, it is impossible that she could have attended two weekly sessions in two days. Either the raid did not take place, or she did not attend. The Appellant's counsel submits that the Appellant forgot the dates. It is not the issue of dates; the Appellant was clear about attending two weekly sessions after her trip from XXXX and before the raid. Therefore, I am not persuaded by the argument. [23] I also note that the RPD asked her about her profession in China, which she declared as a seamstress in her narrative and in testimony. She also testified that her Hukou (household register) is complete, true and correct. The RPD pointed out to the Appellant that her Hukou shows her XXXX XXXX XXXX XXXX;12 at that she responded "I have always been a XXXX". When asked why her husband's register shows that she is a XXXX, the Appellant responded that in China they would not put your occupation as what you do.13 I note that the RPD chose not to include this inconsistency in its Reasons; however, I consider that even if it is peripheral, it goes to the overall negative credibility findings. Omission [24] The Appellant did not disclose her trip to XXXX. In explanation, she testified "perhaps I neglected". The RPD used this omission in its credibility analysis. Counsel argues that the RPD erred "as there is no requirement on the Schedule 12, to list all countries in which the Applicant has travelled for tourism."14 I am not persuaded; the Appellant signed the Basis of Claim (BoC), and several other required forms, declaring that the information provided is complete, true and correct. The burden is on the Appellant to make the case and provide all information requested without material omissions. If this omission was the only problem with this appeal, it could perhaps be forgiven, but this is not the only issue. [25] The Appellant testified that she did not attend FG the day of raid because she took her son to a doctor. In response to the RPD's inquiry regarding absence of corroborative evidence of her son's visit to the doctor (even though she testified that the visit was recorded in the medical book), she responded "I did not think"; she made no attempt to get it either, even though numerous other documents were presented, allegedly sent by her husband. [26] The Appellant also provided conflicting information about the summons she presented to the RPD. She testified that she brought the summons with her, and contradicted herself by testifying that these were sent to her by courier DHL from her home in XXXX, by her husband. The RPD had two concerns about the summons. First the risk to her husband, as the documents are monitored by the authorities, and second, the contradictory statement about how they arrived in Canada. The Appellant argues in paragraph 24 of the Memorandum that "...the Panel's conclusions were unreasonably based on speculation. The Panel effectively based its conclusion on its own expected standard of behaviour concerning the likely actions of a person who fears the security of mailing documents from China. The Panel's conclusion in this regard is not based on any evidence before it nor is it supported by logic."15 It may be so, but it does address the issue of conflicting testimony about whether she brought the summons or it was shipped via DHL. [27] The RPD also had concerns about the Appellant's failure to claim protection in the US. The Appellant argues that the smuggler informed her that if her claim fails in the US, she would be detained. I am not persuaded by this argument, as it is based on speculation about her claim failing in the US. Persons fearing persecution are expected to claim protection at the first opportunity. [28] The RPD considered her education and her limited knowledge of the FG practices and arrived at a determination that she is not a genuine practitioner and is unlikely to have come to the attention of the authorities, and is unlikely to continue with the practice should she return to China. I also note that her answers about Karma are not consistent with the documentary evidence. She testified that Karma is a black substance that turns white. Master Li wrote that Karma is something bad which is intertwined with all the different attachments people have, and that there is a process that can transform the white matter and black matter into each other.16 Family members of FG Practitioners Persecuted [29] The Appellant knew that family members of FG practitioners are persecuted; however, there is no evidence of the Appellant's husband or other family members being arrested or harassed by the authorities. Documentary evidence17 shows that "Family members of activists, dissidents, Falun Gong practitioners, journalists, unregistered religious figures, and former political prisoners were targeted for arbitrary arrest, detention, and harassment". If the Appellant was indeed wanted by the authorities, I would expect some evidence of her husband and other family members being harassed or persecuted. Not only is her husband not arrested or persecuted, he is often in contact with the Appellant by phone,18 able to gather documentary evidence in support of her claim, and is able to send it by a courier. The story does not have a ring of truth. I note that the Appellant testified that the PSB is interested in her and have visited her house several times. If the Appellant is indeed wanted by the PSB, I would expect some evidence that her family members, including her husband, are persecuted by the PSB for their failure to produce the Appellant as required by the authorities. The documentary evidence19 indicates that the PSB detains and questions family members of Falun Gong practitioners and states: A 2008 report by the Falun Dafa Information Centre (FDIC), the official press office of the Falun Gong movement (FDIC n.d.), states that '[s]pouses, parents, children, and siblings of those who practice Falun Gong have suffered various degrees of persecution, ranging from loss of employment to torture' (FDIC 17 May 2008). In a telephone interview with the Research Directorate, a spokesperson for the Falun Dafa Association of Canada stated that some family members of practitioners have suffered the 'same mistreatments as practitioners' themselves, including detention and torture (Falun Dafa 17 Sept. 2013). The 2008 report states that this allegedly includes pressuring spouses to divorce, threatening to end the careers of relatives, expelling the children of active Falun Gong members from school, and leaving some children orphaned or alone due to the detention or execution of one or both of their parents (FDIC 17 May 2008). The report adds that [b]ecause they internalized the Party's propaganda portraying Falun Gong as a 'dangerous organization,' because they feared repercussions, or because of naiveté about the regime's inten[t]ions, family members have taken part in persecuting their relatives who practice Falun Gong. (ibid.)20 [30] Documentary evidence shows that the persecution of FG practitioners is led by an extrajudicial body called the 610 Office.21 The RAD acknowledges that the family members of the Falun Gong practitioners are often mistreated; it does not state "always mistreated".22 [31] In this case, the Appellant alleged that the PSB have visited her home twice. Despite these alleged visits, and the failure of the Appellant's family to hand her over or provide information about her, the PSB have not sought to increase the pressure on her family members through punitive measures. The RAD finds that the documentary evidence, regarding the treatment of family members of those accused of being FG practitioners, did not conform to the Appellant's testimony, as her family has not suffered retribution despite the continued interest of the PSB in locating her. The lack of moves against the Appellant's family members undermines her claim that she is wanted by the PSB as a result of a raid on her FG practice group. This also undermines the credibility of the Appellant's allegations that she was a genuine FG practitioner. Visits by the PSB [32] The Appellant was asked how often the PSB visited her house and she replied twice - once in XXXX 2014 and again in XXXX 2015. This contradicts her narrative that states that PSB visited repeatedly. If the PSB had indeed arrested a few members from her group of eight, it would be reasonable to expect the PSB to be more diligent in pursuing the remaining members, considering that those arrested are still in detention and that the Appellant is allegedly already on their radar. I do not find this story credible, that the PSB is interested in her and yet they visited her house only twice, and that they did not bother other members of the family as the documents suggest. Exit from China [33] The Appellant also was able to leave China using her own passport, albeit with the help of an agent. She testified that she went to three different check points before boarding. She also testified that her passport was stamped; she used her proper documents to leave China. Documentary evidence shows that if someone is wanted by the authorities, it is highly unlikely that that person will be able to leave China using genuine documents, due to strict exit control measures and the Golden Shield project in place. Documentary evidence shows that the Golden Shield project of China, developed with the help of Cisco, a large American multinational company, gives the Chinese authorities instant access to unprecedented information about citizens and firms. Current documentary evidence shows that the Golden Shield project was 99.9 percent implemented, and that China now has extensive exit controls that are effective, and that the project Golden Shield is "a vast network of surveillance infrastructure"23 which is effective and all authorities are instantly alerted if a wanted person attempts to make an unauthorized exit from China. The RPD also considered evidence that officials can be bribed. [34] In addition to the points highlighted by the RPD in its Reasons, I also note the following in documentary evidence24 regarding the Golden Shield: * [It is an] enormous telecommunication control and monitoring system * overarching monitoring network spun by the state; '...Cisco had developed Policenet, an administration system' for the Ministry of Public Security [also known as the Public Security Bureau, PSB] * [w]ith Policenet, public security officials can search out any Chinese citizen's photograph, work history, family background, political leanings, internet history, and at least 60 days of emails. Carrying it around is also convenient: police just scan an individual's identification card and query the database on the spot, obtaining all the information about the individual they need. * 'a system of cutting-edge databases' that allow public security officials to 'instantaneously obtain an array of personal information,' including political behaviour, family relationships * [T]he Golden Shield incorporates extensive tracking and control mechanisms such as real-name online registration requirements, GPS monitoring, and facial recognition surveillance technology in a multipronged approach to identify potentially disruptive individuals. Policenet, a component of the Golden Shield, stores a wealth of information on Chinese citizens and connects the various agencies and levels of command within the public security apparatus. This integrated system enables Chinese public security forces to effectively target and neutralize political dissidents. * Cisco's Policenet has been helping the [Chinese Communist Party]'s public security organs to ferret out political dissidents and Falun Gong practitioners * 'Deepening the Implementation of the 'Golden Shield' Project,' indicates that all police units nationwide have access to eight public security databases, including the 'National Basic Population Information Database' (China n.d.). Also accessible through the databases is information on household registration [hukou], border exit and entry, road traffic, and criminal investigations * [T]he public security information network infrastructure in its various forms is essentially now entirely in place. At the present time, the public security information network covers 32 provincial ministries, 478 city bureaus, 3,361 county bureaus and more than 70,000 local-level police stations. The rate of network coverage for local police stations stands at 99%. [35] There are just too many controls in place. Documentary evidence25 also states that: Chinese government checks the passports of citizens attempting to leave the country in order to ensure that they are suitable for foreign travel. Customs officials stamp the passports of citizens approved for foreign travel. Public security officials often confiscate passports held by individuals deemed unsuitable for foreign travel. [t]he government exercised exit control for departing passengers at airports and other border crossings and utilized this exit control to deny foreign travel to dissidents and persons employed in sensitive government posts. Throughout the year lawyers, artists, authors, and other activists were at times prevented from freely exiting the country. Border officials and police cited threats to "national security" as the reason for refusing permission to leave the country. Authorities stopped most persons at the airport at the time of the attempted travel. [36] Based on the foregoing, and the fact that the authorities consider FG practitioners to be a serious form of political dissident, and FG be a "dangerous organization", and the significant improvements in the systems and stronger exit controls, I find, on a balance of probabilities, that the Appellant would not have been able to exit China, even if she retained a smuggler who managed to bribe "an official." [37] Based on the foregoing, the RAD finds, on a balance of probabilities, that since the Appellant exited China on her own identity documents, the authorities were not interested in her. Documents Presented to the RPD [38] The RPD discussed at length, and cogently, her changing testimony about what documents she brought and how she obtained these in its Reasons. I do not intend to repeat these. However, I note that the Appellant testified that the snakehead kept her passport after her entry into Canada, and gave it to her husband in China, who sent it to her by a courier. I find that this statement lacks a ring of truth. [39] The RPD's finding on this issue, that the Appellant is not a genuine practitioner, is supportable for the following reasons. The Appellant's story is that the PSB is interested in her because of her alleged practice of FG. The RAD and the RPD found that the authorities in China are not interested in her because of the alleged participation in a FG group. I agree with this finding, after considering the evidence on record. [40] The RPD's decision has to be read in totality rather than one paragraph at a time, in isolation. In the RPD's Reasons, one cannot look at each point in isolation but must consider the Reasons in totality. In Imaniraguha26 the Honourable Justice Simon Noël stated the following: And as my colleague Justice de Montigny observed in Jarada v Canada (Minister of Citizenship and Immigration), 2005 CF 409 (CanLII), 2005 CF 409 at para 22, [2005] FCJ No 506, given that the RPD credibility finding with respect to the Applicant relied on a number of elements and implausibilities, 'the reasons of an administrative tribunal must be taken as a whole in determining whether its decision was reasonable, and analysis does not involve determining whether each point in its reasoning meets the reasonableness test [...].' [41] The RAD also notes that the RPD's credibility finding was not entirely based on one issue, but was made in the context of its broader finding about the Appellant's testimony of the PSB's visits to her home, her ability to leave China, and documentary evidence. Considering Maldonado,27 the Appellant's allegations are presumed to be truthful. In this case, that presumption has been rebutted. [42] In light of the foregoing, and the RPD's other credibility findings, the RAD finds that it was open to the RPD to find, on a balance of probabilities, that the PSB has not come looking for the Appellant at her home or anywhere in China, and that she is not wanted by the PSB for the reasons stated in her BoC and during the hearing. The RAD agrees with the RPD's findings in this regard. [43] Having considered all the evidence, the RAD agrees with the RPD, on a balance of probabilities, that the Appellant is not wanted by the PSB or other authorities in China because she is, or is perceived to be, a Falun Gong practitioner. CONCLUSION [44] The RAD finds that there is not a serious possibility that the Appellant would be persecuted should she return to China, or that she would be personally subjected to a risk to her life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in the People's Republic of China [45] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Atam Uppal" Atam Uppal September 21, 2015 Date 1 Exhibit RPD-1, RPD's Record, Basis of Claim Narrative, p. 24, para. 12. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Audio Recording, Second sitting, starting at 18:17. 4 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 9, para. 14. 5 Audio Recording, Second sitting, at 38:15 mark. 6 Audio Recording, Second sitting, at 43:42 thru 44:31. 7 Liu, Yingzhi v. M.C.I. (F.C., no. IMM-10227-12), Simpson, October 10, 2013, 2013 FC 1028. 8 Audio Recording, First sitting, starting at 28:17. 9 Audio Recording, First sitting, starting at 29:59 thru 31:19. 10 Audio Recording. First sitting, starting at 43:29. 11 Audio Recording, First sitting, starting at 1:38:02 thru 1:41:45. 12 Audio Recording, Second sitting, at 11:20 mark. 13 Audio Recording, Second sitting, at 11:35 mark. 14 Exhibit P-2, Appellant's Record, Memorandum, p.16, para. 18. 15 Exhibit P-2, Appellant's Record, Memorandum, p. 17, para. 24. 16 Master Li Hongzi, Zhuan Falun (1992), Talk Four, p. 73. 17 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (31 October 2014), item 2.1, United States. Department of State, China. Country Reports on Human Rights Practices for 2013. 18 Audio Recording, Second sitting, at 36:48 minute mark. 19 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2014), Item 12.27, Response to Information Request (RIR) CHN104580.E. 20 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2014), item 12.27, RIR CHN104580.E. 21 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2013), item 12.28, RIR CHN103769.E, 30 June 2011. 22 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2013), item 12.29, RIR CHN102867.E, 26 June 2008. 23 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2014), CHN 104762E. 24 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2014), CHN 104762E. 25 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2014), item 14.3, CHN104761.E. 26 Imaniraguha, Robert v. M.C.I. (F.C., no. IMM-4416-13), Noël, April 10, 2014; 2014 FC 349. 27 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05581