TB5-07515

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 : TB5-07515 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 October 6, 2015 Date de la décision Panel Robert S. Garner 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 (the Appellant) is a citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal. [2] The Appellant respectfully requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute the decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. Alternatively, the Appellant respectfully requests that the RAD remit this matter back to a differently constituted Panel of the Immigration and Refugee Board under section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA). In the Appellant's Memorandum of Argument, he requests an oral hearing under section 110(6). DETERMINATION [3] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. In that no new evidence was submitted for the appeal, an oral hearing will not be held under section 110(6). Memorandum of Appeal [4] The Appellant submits that: 1. The RPD engaged in a microscopic analysis of the Appellant's testimony regarding his illness; 2. The RPD engaged in speculation regarding the Appellant's decision to join Falun Gong; and 3. The RPD made an unreasonable analysis of the Appellant's subjective fear of persecution Background [5] The Appellant was born in Weihai city, Shandong on XXXX XXXX, 1990, and was forced to leave China because of his practice of Falun Gong. In about 2012, the Appellant started to have XXXX, and when it became serious, he had to see a doctor in about XXXX 2013. Because of the side effects of the prescribed medications, the Appellant discontinued the painkillers. Still suffering from pain, he changed to a Chinese doctor in about XXXX 2013, but his condition did not improve. [6] A friend talked to the Appellant in XXXX 2013 about the benefits of Falun Gong. Before joining his friend's practice group, he talked to his parents about his friend's recommendation for Falun Gong as a way of getting rid of his illness. He described the precautions that the group had taken. His parents finally agreed with his decision, and their support made him determined to go with his friend. [7] The Public Security Bureau (PSB) raided the practice group on XXXX XXXX, 2014, and the Appellant managed to escape. While hiding at an aunt's house, his parents called his aunt and informed her that the PSB had gone to his house on XXXX XXXX, 2014 looking for the Appellant. The PSB left a Chuanpiao Summons. Two members of his practice group were arrested. After finding a smuggler, he was assisted in leaving China. After arriving in Canada, he learned that the PSB continuously went to his house looking for him and that the two practitioners were still detained. [8] The Appellant's application for refugee protection was heard on June 22, 2015. In a decision of July 9, 2015, the RPD rejected his claim, finding that the Appellant was not credible and fabricated a refugee claim where none exists. The RPD found there was not a serious possibility of persecution and that the Appellant would not be subjected personally, on a balance of probabilities, to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should he return to China. ROLE OF THE RAD [9] Counsel has made no submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant 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 [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 conclusion. MERITS OF THE APPEAL Findings by the RPD that were not challenged by the Appellant The Subpoena [11] The Appellant submitted a subpoena3 as proof that he was wanted by the PSB. The RPD noted that there was no reference in the document submitted to either the section of the Chinese law related to the issue of the summons, nor did it mention the section of the Criminal Procedure Law of the People's Republic of China, which was being invoked in order to issue the summons. The RPD also noted it did not have the exact address to which the Appellant was to report. The RPD, in outlining the discrepancies between documentation submitted and National Documentation Package (NDP) documentation,4 found that a genuine subpoena would not be missing these critical elements. As a result, the RPD gave this documentation no weight in corroborating the allegations of the Appellant. The RPD stated that the submission of this fraudulent document further tarnished his already sullied credibility. The RPD made reference to NDP documentation regarding the availability of fraudulent documents in China. [12] In observing the documentation submitted by the Appellant, as well as the NDP documentation referenced by the RPD, the RAD concurs with the RPD's findings. The structure and content of the Chuanpiao Summons submitted does not match the sample summons in the NDP documentation.5 In addition to the documentation quoted, the RAD refers to NDP documentation6 that states that "...there has been no variation in the format of summonses and subpoenas since 2003 (ibid. 18 June 2013)." The RAD finds, on a balance of probabilities, that there was no raid as alleged by the Appellant, and along with other findings in this decision, finds that the Appellant was not wanted by the PSB in China for the practice of Falun Gong. The RAD also finds, on a balance of probabilities, that because of this and other credibility concerns, that the Appellant was not a Falun Gong practitioner in China. Exit from China [13] The Appellant alleged that he was able to leave China with the support of the "snakehead". The Appellant stated that the snakehead had paid off the three officers that he had seen in the Beijing airport. The RPD quoted NDP documentation7 to explain how the Appellant's allegations were not credible. The RPD outlined the structures of the Golden Shield and its effectiveness in preventing people who are wanted by the government from leaving the country. [14] The RAD finds, on a balance of probabilities, that if the Appellant was wanted by the authorities in China, he would not have been able to have left the country as he alleged. The documentation available on the preventive measures taken by the Chinese authorities is persuasive. This finding gives further weight to the earlier finding that the Appellant was not wanted by the authorities in China for the alleged practice of Falun Gong. The RAD also finds, as stated above, and on a balance of probabilities, that the Appellant was not a Falun Gong practitioner in China. The RAD draws a negative inference from the Appellant's lack of credibility regarding a determinative issue in this claim; the threat of persecution by the Chinese authorities because of his alleged practice of Falun Gong. Sur Place [15] The RPD referenced a letter of attestation from a co-practitioner, and four photographs of the Appellant practicing Falun Gong here in Canada and attending a Falun Dafa event;8 the RPD noted that there was no photo identification attached to the attestation letter, nor was it in the form of a sworn affidavit. The RPD found that the letter could only attest to the attendance of the Appellant at a Falun Gong gathering in Canada, but it cannot attest to his motivation for doing so. The RPD stated that it had previously found the Appellant not to be a genuine Falun Gong practitioner in China. The RPD also found that the Appellant practiced Falun Gong here in Canada for the purpose of supporting a bogus refugee claim. The RPD quoted Federal Court case law to support this reasoning.9 [16] The RAD concurs with the RPD's reasoning on this issue and its findings. The RAD finds that the documentation provided and referenced above, can only indicate that the Appellant participated in some Falun Gong activities in Canada. The RAD, having found earlier that the Appellant was not wanted in China for the practice of Falun Gong, finds that the lack of probative documentation regarding his alleged practice of Falun Gong in Canada is determinative. The RAD finds that the Appellant is not a Falun Gong practitioner and could return to China without fear of persecution. There was no documentation in the file to indicate that the Appellant had come to the attention of the Chinese authorities for his involvement in Falun Gong activities in Canada. [17] As indicated above, in the title of this section, the Appellant made no submissions on these issues that the RAD finds determinative to his refugee claim. The Panel Engaged in a Microscopic Analysis of the Appellant's Testimony Regarding his Illness [18] The RPD found the Appellant was not a credible witness. When the Appellant was first asked when he developed XXXX, he stated that it was at the end of 2011. After confirmation of the date, the RPD informed the Appellant that his Basis of Claim (BOC) narrative stated, "in about 2012". The Appellant explained that that was when he began seeking medical attention. The RPD found that this inconsistency has a negative impact upon his credibility. [19] When questioned about the date when he first sought medical attention, he stated that he first sought medical attention from a western doctor in 2012. When informed by the RPD that his BOC narrative stated that he saw the doctor in about XXXX 2013, the Appellant testified that he made a mistake and remembered the wrong year. The RPD accepted that nervousness and stress inherent at the Refugee hearing may cause the Appellant to make innocent mistakes about dates. However, the Appellant committed himself to the incorrect date on two different occasions and, as a result, the RPD found that this diminished the Appellant's credibility of the circumstances in China that led him to eventually turn to Falun Gong. [20] The Appellant stated that on his first visit he saw an XXXX. The RPD informed the Appellant that the medical document indicates that he was in the "bone section". The Appellant testified that he had never been in that section; he always went to the XXXX section of the hospital. The RPD informed the Appellant that according to the documentation submitted, he did not go to the XXXX section until his third visit. The RPD found that this inconsistency further undermined his credibility and diminishes the weight that could be assigned to the document as evidence to corroborate his allegations. [21] In further questioning, the Appellant stated that he suffered pain XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The RPD stated that the medical documentation submitted, stated that he was suffering only from "XXXX XXXX XXXXfor two days". The Appellant explained he had complained about the XXXX XXXX and was not sure why the document did not state that he had complained about the pain in XXXX XXXX. The RPD found that this omission in the document was an indicator that it is fraudulent, and further diminishes the weight that could be given to the medical documentation as a source of corroborating the Appellant's story. The RPD found, on a balance of probabilities, that the medical book is fraudulent and has been provided in order to support a bogus refugee claim. [22] The Appellant submits that the RPD unreasonably focused on minor inconsistencies. The Appellant states that "in about 2012" is an approximation, which reasonably could include the end of 2011. The Appellant submits that he apologized for stating the incorrect year when stating the date when he first sought medical attention. [23] The Appellant submits that the RPD's reasoning in finding the medical booklet fraudulent is flawed and as a result, finding that the Appellant did not suffer from XXXX was flawed as well. The Appellant submits Federal Court case law to support this submission.10 The Appellant submits that the RPD's finding was based on minor inconsistencies between testimony and BOC documentation. The Appellant also submits that the whole medical book evidences pain in his XXXX and that the omissions by Chinese doctors are not conclusive proof that the medical book is fraudulent. [24] The Appellant submits that the RPD focused on minor issues of credibility in the Appellant's claim, citing Federal Court case law to support this submission.11 [25] The RAD disagrees with the RPD's reasoning regarding the medical documentation. The RPD used certain parts of the medical documentation to draw negative inferences and then found that the documents were fraudulent. As the Appellant submitted, using case law, this is not reasonable. [26] The RAD concurs with the RPD's reasoning regarding the Appellant's inability to be consistent regarding the major dates of his illness and in seeking medical support. The RAD finds that such a major incident, an incident that allegedly led him to the practice of Falun Gong, would be clearly remembered. [27] The RPD's finding, that the Appellant did not have XXXX, is suspect. However, the RAD finds that this is not a determinative issue in this claim and will not overturn the RPD's decision on this error. As explained earlier in this decision, the RAD found that the Appellant was not a genuine Falun Gong practitioner in China. As a result, the RAD finds, on a balance of probabilities, that the Appellant's documentation and testimony regarding joining Falun Gong are not credible and draws a negative inference regarding the Appellant's credibility. The Panel Engaged in Speculation Regarding the Appellant's Decision to Join Falun Gong [28] The Appellant submits that the RPD's analysis of what the Appellant ought to have done regarding the treatment of his XXXX is speculative, with no clear evidence to support its conclusion. Quoting case law,12 the Appellant submits that it is plausible, given the Appellant's story, that he could join Falun Gong even though it was outlawed and put him at risk. The Appellant submits, given that his involvement in Falun Gong goes to the heart of the claim, that the RPD's erroneous analysis concerning his motivation for joining Falun Gong is fatal to its ultimate determination and warrants the decision be set aside. [29] The RAD concurs with the Appellant's reasoning regarding the RPD's speculation about the steps the Appellant should have taken in treating his XXXX. As stated earlier in this decision, the RPD's finding that he did not have XXXX, is suspect. It is possible, as the Appellant submitted, that he could have begun the practice of Falun gong even though it was outlawed in China. However, the RAD's finding that the Appellant was not a Falun Gong practitioner in China, causes the RAD to find that the Appellant's allegations regarding the joining of Falun Gong are not credible. The RAD agrees with the Appellant in that his practice of Falun Gong is central to this refugee claim. The Panel's Unreasonable Analysis of the Appellant's Subjective Fear of Persecution [30] The RPD questioned the claimant about the details of his trip to Australia and asked why he did not make a refugee claim when he was in that country. The Appellant testified that there had not yet been a raid on his Falun Gong group in China. The RPD quoted case law13 and found that the Appellant's actions were a strong indicator of a lack of subjective fear and that he did not practice Falun Gong in China, as he asserts. The RPD further stated that this issue further diminishes his already tarnished credibility. [31] The Appellant submits that a Convention refugee or a person in need of protection has to show that there is a serious possibility that he would be subjected to persecution, or that he would be subjected, on a balance of probabilities, to a danger of torture, a risk to life, or risk of cruel and unusual treatment or punishment in China. As a result, the Appellant submits that the RPD's finding was erroneous. It was unreasonable for the RPD to expect the Appellant to make a claim on the basis of a mere "want" without any impetus, or circumstance to warrant refugee status, regardless of country. [32] The RAD concurs with the Appellant's submission. The RAD finds, on a balance of probabilities, that the Appellant did not have a viable reason to make a refugee claim at the time of his visit to Australia. He was aware of the circumstances of practicing Falun Gong, according to his testimony, but he allegedly had been successful in practicing without incident. However, the RPD finds that this is not a determinative issue in this claim and the RAD will not overturn the RPD's decision based on this finding. [33] As stated above in this decision, the RAD has found, on a balance of probabilities, that the Appellant was not a genuine Falun Gong practitioner in China. The RAD also found, on a balance of probabilities, that the Appellant is not a genuine practicing Falun Gong practitioner in Canada. As a result, the RAD finds that there is not a serious possibility that he would be subjected to persecution, or that he would be subjected, on a balance of probabilities, to a danger of torture, a risk to life, or risk of cruel and unusual treatment or punishment in China. Disposition [34] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. The Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Robert S. Garner" Robert S. Garner October 6, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid. 3 Exhibit RPD-1, RPD's Record, pp. 835- 836. 4 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (31 October 2014), items 9.10 and 9.16. 5 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2014), item 9.10, CHN 104458.E 6 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2014), item 9.10, CHN 104458.E. 7 Exhibit RPD-1, RPD's Record, NDP for China (31 October 2014), item 14.3, CHN 104761.E. 8 Exhibit, RPD-1, RPD's Record, pp. 849-850 and pp. 837- 838. 9 Cao, Wo Ji v. M.C.I. (F.C., no. IMM-1303-08), Mosley, October 17, 2008, 2008 FC 1174. 10 Waheed, Babar v. M.C.I. (F.C.T.D., no. IMM-1332-02), Beaudry, March 20, 2003 at para. 18; Dieguez, Heber Luis Ojeda v. M.C.I.(F.C.T.D., no. IMM-1021-98), Tremblay-Lamer, May 18, 1999, at paras. 8 and 10. 11 Mahathmasseelan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29 (F.C.A),at para. 9. 12 Gan, Xuwen v. M.C.I (F.C., no. IMM-3167-14), Zinn, May 29, 2015, 2015 FC 693, at para. 12. 13 Kabengele, Mwana v. MCI (F.C.T.D., no.IMM-1422-99), Rouleau, November 16, 2000, at para. 41. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07515