TB4-06310

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 : TB4-06310 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 January 7, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Matthew Oh Barrister & 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) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal and he has requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that the Appellant is a Convention refugee. Alternatively, the Appellant requests that this matter be returned to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged in his Basis of Claim (BOC) narrative that he is a Falun Gong practitioner. [4] He suffered from shoulder pain and consulted doctors but the relief was temporary. His cousin suggested Falun Gong in early August 2012. At first he was concerned because of the ban but subsequently he decided to give it a try. He began practicing in late August 2012 to learn the movements and in late September 2012 he joined a practice group. He had learned the exercises and also Falun Gong theory. He also distributed flyers on two occasions. [5] He applied for a passport which was issued on October 31, 2013, in order to work in Korea, but before he went for the interview his Falun Gong activities were discovered. [6] On November 2, 2013, the Appellant's friend, XXXX, and three others were discovered distributing flyers by the PSB. Wei managed to escape and warn the Appellant but he saw two others were caught by the Public Security Bureau (PSB). The Appellant went into hiding. [7] On November 3, 2013, the PSB came to his home and told his family he was wanted for participating in illegal Falun Gong activities, and that those they had already arrested had revealed the Appellant's name. They demanded he surrender immediately. [8] The Appellant left China on XXXX XXXX, 2014, with the help of an agent. He traveled on his own Chinese passport. [9] The PSB visited his home and his relatives' homes approximately 5-6 times while he was in hiding. The Issues [10] The panel indicated the determinative issue in regard to this claim is credibility. [11] The Appellant submits the issues in regard to this appeal are the following: 1. What is the applicable standard of review? 2. Did the RPD Member err in her assessment of the Appellant's credibility? 3. Did the RPD Member fail to apply the correct test for a refugee sur place? The Role of the RAD [12] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [13] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellant tribunal's role in relation to that of the RPD. [14] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [15] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [16] The RAD will review all of the evidence in the RPD's record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Application for an Oral Hearing [17] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 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. [18] The Appellant has submitted as new evidence a Response to Information Request (RIR) concerning corrupt officials in China. The document is dated 14 June 2007. The RAD notes that the 14 March 2014 National Documentation Package disclosed in the RPD record for the case at bar includes current documents (7.1-7.4) concerning official corruption in China and that the document submitted by the Appellant is dated. The RAD further notes the document was available to the Appellant before the RPD decision and therefore fails to meet the statutory requirement in this regard. The RAD finds the evidence is not new and therefore it is not admitted as new evidence. [19] Even if the document were admitted as new evidence, the RAD finds it does not raise a serious issue with respect to the credibility of the Appellant that would justify allowing or rejecting the refugee protection claim. The application for an oral hearing is therefore dismissed. The Panel's Findings [20] The panel found the Appellant not to be credible with respect to the material allegations of his claim. Omissions [21] The panel questioned the Appellant as to what happened when the PSB came to his home on XXXX XXXX, 2013. The Appellant testified the PSB told his wife they knew he was a Falun Gong practitioner, they were looking for him, and if she harboured him the impact would be serious. The panel asked if the PSB said anything else and he repeated his statement about her jeopardy if she concealed information. The panel asked a third time if the PSB said anything else and the Appellant testified that this was all that was said. [22] The panel noted that the Appellant had stated in his BOC that the PSB told his wife that he was wanted for Falun Gong activities, that they had arrested two members of his group, and that those arrested had revealed his name as a practitioner. [23] The panel asked why he did not provide this information in his testimony and the Appellant stated he was a little bit nervous. The panel rejected this explanation and noted this information was material to his claim and not a peripheral detail. The panel drew a negative inference in regard to the Appellant's credibility and found that he was not wanted by the PSB for participating in Falun Gong activities. Exit from China [24] The Appellant testified a snakehead improperly obtained a Canadian work visa for him and purchased his air ticket online. The snakehead accompanied him to Canada and took his passport away on arrival in Canada. The passport was returned to his wife after full payment was made and his wife mailed it to the Appellant in Canada. [25] The panel questioned the Appellant as to how he was able to leave China when he was wanted by the PSB. The Appellant explained the snakehead took care of everything and his passport was not scanned but only stamped by an official in the airport. The passport was stamped on XXXX XXXX, 2014. [26] The panel indicated it was not satisfied that the snakehead facilitated his exit from China. The panel questioned whether it was reasonable that the smuggler returned the passport to the Appellant, and he explained that his wife refused to pay until the smuggler gave her the passport. The panel rejected this explanation and found it not reasonable that the smuggler would return the passport as he would not want his "arrangements" to be traced back or made known. The panel drew a negative inference in this regard and found that the Appellant did not use the assistance of a smuggler to exit China. E-Ticket [27] The panel noted that an e-ticket is an electronic document purchased online and therefore the snakehead would have had to provide his email address and/or other contact information online. The panel did not find it reasonable that a snakehead would have wanted a paper trail linking his email or other contact information. The panel drew a negative inference to the Appellant's credibility in this regard. In addition, the panel found the Appellant purchased his own airline ticket online and did not use the services of a smuggler to facilitate his exit from China. Delay in leaving China [28] The panel noted the Appellant was in possession of a valid passport that was issued to him on October 31, 1013, and a Canadian visa that was issued to him on XXXX XXXX, 2013. The panel acknowledged that the Appellant's delay in leaving China until XXXX XXXX, 2014, was not lengthy, but it noted the delay was over a month and that this suggested he was not as fearful as he alleged, and he would not have delayed leaving China if he truly was afraid. Travel on own passport [29] The panel found that the Appellant's ability to exit China using his own passport called into question his allegation that he was wanted for arrest by authorities. [30] The panel cited documentary evidence concerning the efficiency of Chinese authorities in this regard reflected in the Golden Shied Project. The panel found that if the Appellant was discovered to be a Falun Gong practitioner on XXXX XXXX, 2013, he would have been wanted for arrest on that day. The panel further found the Appellant would have been discovered by authorities in Beijing airport when he left on XXXX XXXX, 2114, using his own passport. [31] The panel noted that criminal fugitives are flagged in China's national computer network, and that the PSB monitors citizens' exit. [32] The panel acknowledged that documentary evidence indicates that authorities in China do not always apply regulations evenly. It found however that the preponderance of documentary evidence states that authorities at airports conduct thorough screening of passengers. [33] The panel found that the Appellant left China using his own passport, thus confirming that the authorities were not concerned with him and therefore undermining his credibility as to his being a Falun Gong practitioner wanted by the PSB. Other documentary evidence [34] The panel noted the Appellant disclosed medical documentation. The panel gave no weight to this documentation in establishing that he was a Falun Gong practitioner, or his allegation that he was wanted by the PSB. [35] The panel further noted the Appellant submitted a letter from a co-practitioner and also a letter from the father of one of the arrested members of his practice group in China. The panel gave little probative weight to these documents given their general natures, and the Appellant's overall credibility as noted above. The panel further notes in this regard these documents are not affidavits and there is no photograph identification attached to them, and therefore it is difficult to establish their veracity. Knowledge of Falun Gong [36] The Appellant correctly recited the verse for the first exercise but when asked to recite the verse to the third exercise he recited the verse for the second exercise. When this was noted the Appellant explained he was nervous. [37] The panel rejected this explanation as the Appellant had stated he began practicing on his own in August 2012 and joined a practice group in September 2012, and that he knew all five exercises at that time. In addition the Appellant stated he practiced at home and with a group on Saturdays and Sundays. The panel found it unreasonable that the Appellant would not be able to correctly recite the verse for exercise three, despite being nervous. [38] The panel noted the Appellant correctly named the three principles of Falun Gong, explained the concept of karma, and also knew what he should picture in his mind when doing the third exercise. [39] The panel acknowledged the Appellant had some knowledge of Falun Gong but indicated that merely having some information about basic teachings did not necessarily mean he was a genuine practitioner. The panel noted that the Appellant had testified he had been reading Zhuan Falun and practicing Falun Gong since arriving in Canada. The panel found that the knowledge he possesses could easily have been acquired in Canada and it gave no weight to his ability to answer questions about Falun Gong. [40] The panel found the Appellant's testimony that he had been practicing Falun Gong in Canada since February 2104, and the several photographs he disclosed in this regard were insufficient to overcome the credibility concerns noted above and establish his profile as a Falun gong practitioner who is wanted by the PSB. [41] The panel noted the Appellant may well have attended Falun Gong practice sessions as depicted in the photographs, but it found the photographs are of no probative value concerning events in China. The panel further noted the photographs were undated and they were taken by unknown persons. [42] The panel concluded that the Appellant was not a Falun Gong practitioner in China and he is not being pursued by the PSB. [43] In the context of its credibility findings above and in particular it's finding that the Appellant was not a Falun Gong practitioner in China, the panel gave little weight to the Appellant's allegations that he is a genuine practitioner in Canada. The panel found it more likely than not that the Appellant began practicing with a group in Canada in order to support his refugee claim. The panel noted there was no evidence that the Appellant had come to the attention of Chinese authorities while engaging in Falun Gong practice in Canada. The Appellant's Submissions and the RAD's Analysis Standard of Review [44] The Appellant submits that this appeal constitutes a de novo proceeding and that the RAD owes no deference to the RPD's credibility findings or treatment of the evidence in this case. [45] The RAD does not agree with the Appellant that this appeal constitutes a de novo proceeding and that the RAD owes no deference to the RPD's credibility findings or treatment of the evidence. The RAD cites in this regard the Federal Court's decision in Huruglica and the RAD's view of its role on the basis of that decision. The RAD has described its role in paragraphs 12-16 above. Application of correct legal test [46] The Appellant submits the RAD should apply the standard of correctness with respect to the panel's failure to apply the correct legal test for a refugee sur place. The panel's error in assessing the Appellant's Credibility [47] The Appellant notes the panel negatively assessed his credibility based on two findings: the omission of information in testimony that was mentioned in his BOC; and the implausibility of the Appellant's safe exit from China. The Appellant submits that based on these findings the panel found him generally lacking in credibility and extended these findings to the entirety of the evidence. [48] The Appellant further submits that these findings were without valid basis, were microscopic in nature, or else relied upon unreasonable speculation. Omission in testimony [49] The Appellant submits his failure to include in his testimony that the PSB told his wife two co-practitioners had been arrested and that they had revealed his name as a Falun Gong practitioner were minor omissions in the context of the testimony given. [50] The Appellant further submits the omissions were fairly obvious, were already mentioned in his BOC, and he testified he was only giving a "basic" account of what his wife had told him. The Appellant argues the panel's examination was microscopic in nature, and the panel drew a negative inference from his failure to relate all information in an encyclopedic manner. [51] The Appellant noted the RPD seized on this omission and concluded that he was not wanted by the PSB for participating in Falun Gong activities. The Appellant submits the panel's findings are capricious and perverse. The Appellant further submits on the basis of what the PSB said to his wife that they were looking for him, and to assert that he lacked credibility from the omission of a detail that was materially obvious is unreasonable. The Appellant notes he testified that it was "basically" what his wife told him, and he had not purported to give an exhaustive account of what happened. [52] The RAD has reviewed the RPD record including the recording of the hearing. The RAD notes that the Appellant testified that the person who contacted him regarding the arrests informed him that the group leader said his name had already been given to the PSB by the practitioners who had been arrested. The Appellant was asked how the group leader obtained this information and he responded he was not clear. [53] In response to a further question the Appellant changed his testimony and indicated he was told there was a possibility his name was revealed. When the inconsistency was noted the Appellant responded he did not quite understand the question. [54] The panel noted the Appellant had not mentioned in his narrative that he was informed by phone that his name had been revealed to the PSB or that it possibly had been revealed. The Appellant responded he had just given a rough idea in his narrative. [55] The RAD finds, as noted by the panel in the hearing, that the Appellant's testimony was inconsistent regarding this matter. The RAD further finds the matter of the arrest of two co-practitioners and their revealing his name to the PSB is significant information that goes to the heart of the claim and the panel's examination in this regard was not microscopic and it was open to the panel to draw a negative inference. [56] The RAD finds as well, however, that the Appellant's inconsistent testimony and the omissions are insufficient evidence to base a finding that the Appellant was not being pursued by the PSB because he was a Falun Gong practitioner. Exit from China [57] The Appellant finds the panel's credibility analysis in this regard was also capricious and perverse as the panel relied on speculative implausibility findings not based on evidence but on pure conjecture about the risks smugglers would take to assist their clients. [58] The Appellant notes that the panel found it was implausible that the smuggler returned the appellant's passport and purchased a flight electronically, and therefore concluded that no smuggler had been used. [59] The Appellant further notes that based on the panel's finding that no smuggler had been used the panel concluded the Appellant delayed his departure from China since the delay was not due to his reliance on a smuggler. [60] The Appellant notes as well that the panel found that his exit from China without detection by authorities would have been implausible without the use of a smuggler because had he in fact been wanted by authorities, an exit control officer's examination of his passport would have resulted in his records being matched with information in the Golden Shield network. [61] The Appellant submits plausibility findings such as those made by the panel regarding the return of his passport and the purchase of an e-ticket by the smuggler must be made with the utmost caution. The Appellant cites case law stating that implausibility findings must be made in the clearest of cases and supported by evidence. The Appellant submits that one must look carefully to the reasons to determine whether the panel is supported by a reliable and verifiable evidentiary base. Use of a smuggler [62] The Appellant submits his use of a smuggler greatly assisted his exit from China as smugglers hold key relationships with government officials. The Appellant cites in this regard the Federal Court's decision in Zhang in which the Court stated it would only take a single bribe to a customs official with access to a computer in order to allow a wanted person to exit China undetected. [63] The Appellant argues the panel's finding that no smuggler was used is central to the assessment of the Appellant's likelihood of exiting China undetected. [64] The RAD notes the Appellant has misapprehended the panel's finding regarding the plausibility of his safe exit from China without the use of a smuggler. The panel found in this regard that no smuggler was used based on the smuggler's purchase of an e-ticket which would leave an on-line record, and the smuggler's return of the Appellant's passport after it had been stamped by a customs officer when he exited China. The panel did not state that it was implausible that the Appellant would not have been able to leave China using his own passport without the help of a smuggler. [65] Rather the panel found that the Appellant's ability to leave China using his own passport called into question his allegation that he was being pursued by Chinese authorities. The RAD further notes the panel cited country document evidence concerning the Golden Shield Project and further found that the Appellant's ability to leave China without trouble confirmed that authorities were not interested in him and undermined his credibility as to his being a Falun Gong practitioner wanted by the PSB. [66] The RAD notes the panel's findings as to the Appellant's ability to leave China on his own passport although he was wanted by the PSB is not dependent on the panel's findings as to the use of a smuggler. [67] The RAD further notes that the panel's finding as to his exit from China is supported in country document evidence concerning the Golden Shield Project, an on-line system that monitors the movements and activities of Chinese citizens and contains information regarding people being pursued by the PSB. [68] The RAD notes the Appellant indicated in his BOC that the PSB came to his home on XXXX XXXX, 2013, accused him of being a Falun Gong practitioner, and sought to arrest him. The panel found that the Appellant's name would have been entered into the on-line system at that time. [69] The RAD notes that the Appellant left China on XXXX, 2014, using his own passport and finds it is unlikely that he would have been able to pass through the multiple security checks in the airport without being stopped if his name had been entered into the Golden Shield project. [70] The RAD finds that a snakehead might have been able to bribe one official but not all of those engaged in monitoring passengers. The RAD cites in this regard additional country document evidence2 which indicates there are separate barriers at airports that are designated for Chinese citizens, foreign travelers, and diplomatic staff and airline personnel. The Frontier Defense Inspection Bureau (FDIB) examines the passport and immigration and departures cards of Chinese travelers and verifies the identity of the person through a computerized records system. The same documentation indicates that Chinese citizens traveling overseas are required to show a valid passport, visa, and boarding pass and exit registration card. This documentation also indicates that all international airlines have to provide (accurate), (complete), and (timely), information on passengers including name, nationality, gender, date of birth, and passport number and expiration date. [71] The RAD finds the Appellant's documents and identity would have been noted when he checked in and received his boarding pass, and then further reviewed by the FDIB, and also reviewed by the security official checking identity information received from the airline. [72] The RAD acknowledges that documentary evidence indicates that there is corruption in China reflected in this case in the bribery of officials. The RAD further finds however, that while a smuggler might be able to bribe one official and guide the Appellant to a particular checkpoint, it is unlikely that the smuggler would have contacts with all the officials, with access to the Golden Shield Project, at the various checkpoints in a major Chinese international airport. [73] The RAD is not persuaded that the case in the Zhang decision is comparable to the case at bar. The RAD notes the decision in Zhang was based on documentary evidence that existed in 2008 and made no reference to the Golden Shield Project. In the Zhang matter, the reviewing Court made reference to a 2001 Response to Information (RIR), which addressed security and exit control procedures at Chinese airports. The documentary evidence cited above reflects the current fully implemented Golden Shield Project. [74] The RAD notes that the evidence in Zhang indicated that the claimant testified that she was told by the smuggler that her name was not put through the system. In the case at bar no such evidence was disclosed. Rather the Appellant testified his passport was stamped by a security official but not scanned. [75] In addition, the RAD notes the Court in Zhang was responding to the RPD's conclusion "that possibly hundreds of officials had to be bribed" and found the Board had engaged in speculation. In the case at bar the panel makes no such speculative leap. [76] The RAD finds that the panel is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.3 The RAD acknowledges that in such cases there must be a basis in the evidence to support such inferences. In this case, there is an evidential foundation for the panel's finding reflected in the documentary evidence cited by the panel and the RAD. The RAD concurs with the panel's finding that the Appellant was not believable in this regard. Return of the passport [77] The Appellant noted that the panel found it implausible that the smuggler would return his passport because he would not want his arrangements traced back to him, or be made known. [78] The Appellant submits the panel had no way of knowing that the stamp in the Appellant's passport may be traced to any individual official. In addition the evidence does not support the panel's assumption that the passport stamp would be examined at some point by Chinese authorities. [79] The Appellant further submits the smuggler is engaged in a risky business and it is not possible to determine what risks the smuggler would or would not take. The Appellant notes there is no documentary evidence in the record as to common practices of smugglers in this regard. Use of an E-ticket [80] The Appellant submits the panel failed to provide an evidentiary basis for her finding that it would be implausible for a smuggler to purchase an e-ticket. The Appellant further submits that there is no way the panel could determine what risks a smuggler would choose to take. The Appellant submits as well the issue is irrelevant as the smuggler could have used a false name and falsified contact information. The Appellant asserts the panel relied on speculation and its implausibility finding is capricious and perverse. [81] The Appellant concludes on the basis of the above submissions that the panel's credibility assessment was unreasonable and they taint the entirety of the decision. [82] The RAD finds that the panel's findings as to the use of a smuggler is not central to the issue of the Appellant's ability to exit China using his own passport even though he alleged he was wanted by Chinese authorities because he was a Falun Gong practitioner. The analysis and documentary evidence cited above not only concerns passage through security check points at Chinese airports in general, but also when a snakehead is involved. No summons or warrant [83] The RAD has reviewed the recording of the RPD hearing and notes that the Appellant was questioned by the panel as to the PSB's visit to his home on XXXX XXXX, 2013. The Appellant testified that he was wanted for arrest. He further testified that the PSB had visited his home and also the homes of relatives 5-6 times while he was in hiding, and that they had returned 2-3 times since his arrival in Canada. He testified as well that the PSB had not left a summons or warrant with his wife. [84] The RAD notes that that the panel did not provide any analysis or findings as to the significance of this issue for the credibility of the Appellant's allegation that he was being pursued by the PSB, even though the Appellants provided no evidence that corroborated his testimony in this regard. The RAD will do so. [85] The RAD acknowledges that country document evidence indicates that PSB practice regarding the issuance of a summons varies from one locality to another. The RAD finds, however, that, given that the PSB allegedly returned to the Appellant's home on multiple occasions, and indicated it wanted to arrest the Appellant, as they had allegedly done with two of his co-practitioners, the PSB have demonstrated a significant interest in the Appellant that would have resulted in a summons document being issued and left at his home, and likely a warrant when there was no response to the summons. The RAD notes in this regard that Kaifeng, the Appellant's home town in China is a major metropolitan centre where the PSB would likely document a criminal investigation. [86] The RAD cites in this regard the Federal Court decision in Zhang,4 in which the Court stated that the RPD recognized that the police did not always leave a summons, but, given the number of times the claimant alleged police visits, the documentary evidence indicated that it was reasonable that the police would likely have left something at some time. In addition, the Court in Lin5 noted that no evidence was adduced by the applicants that the PSB does not leave a warrant with family members in their province, and concluded the RPD did not err in its finding concerning the lack of a summons. [87] As well, the Federal Court in Cao6 noted that documentary evidence suggested that the PSB's practice with respect to leaving a summons was not uniform. However it was held by the Court that given the number of times the PSB came to the applicant's home, it was reasonably open to the Board to conclude that a summons would have been left. [88] The RAD finds that lack of a summons or any other documentary evidence concerning the Appellant's Falun Gong practice in China and the raid of his practice group undermines the integrity of his allegation that he is being pursued by the PSB. [89] The RAD concurs with the panel's finding that the Appellant is not a Falun Gong practitioners who is being pursued by Chinese authorities. The correct test for a refugee surplice [90] The Appellant submits that once the panel found him not to be credible, it should have considered whether he might have become a genuine practitioner since his arrival in Canada. [91] The Appellant further submits the panel was required to consider the credibility of the Appellant's Falun Gong identity in Canada separately from what he alleges occurred in China. The Appellant submits as well that the panel did not do so. [92] The Appellant notes that the panel stated that in the context of its findings concerning his Falun Gong identity in China, it gave little weight to his allegations that he is a genuine practitioner in Canada. The Appellant submits this finding was made in spite of the support letters and photographs he disclosed. [93] The Appellant submits the evidence of his Falun Gong activities in Canada should have been assessed independently of his allegations regarding events in China. The Appellant further submits it is an error in law for the panel to rely on his previous credibility concerns in assessing his sur place claim. [94] The RAD has reviewed the recording of the hearing and notes the Appellant was asked a number of questions concerning Falun Gong theory. In addition the panel questioned the Appellant concerning his practice in Canada. [95] The RAD notes the panel asked the Appellant how Falun Gong dealt with illness. While he indicated in his response that Falun Gong does not cure illness, his explanation as to what Falun Gong does do in this regard was vague and general. He made no mention of the transition of karma to virtue as it applied to illness, a central idea in Falun Gong. [96] The RAD further notes the Appellant testified that his leader in China lectured his group every week on the teachings in Zhuan Falun, and that he read the book in Canada. However, when the panel asked him where Master Li's teaching on health issues could be found in Zhuan Falun, he responded he had read the book only over a short period and he did not remember where this teaching was located. [97] The RAD finds that it is more likely than not that person who began practicing Falun Gong because of health issues, who had testified that his shoulder and neck pain had been relieved because of his Falun Gong practice, and who had been practicing for more than two years would be aware of Falun Gong theory as to the process of his health improvement and the location in Zhuan Falun of Master Li's teaching in this regard. [98] The RAD notes that the Appellant recited the wrong verse for exercise three and the panel rejected his explanation that he was nervous. The panel noted in this regard that the Appellant had testified that he knew all five exercises when he joined a practice group in China in August 2012. The RAD finds it was open to the panel to find it not to be reasonable that the Appellant would not be able to recite the correct verse for an exercise after more than two years of practice in China and Canada. [99] The RAD notes the panel acknowledged that the Appellant possessed some knowledge of Falun Gong but noted that merely having such knowledge in itself did not necessarily mean that he is a genuine Falun Gong practitioner. [100] The RAD further notes the panel further noted in its reasons that having found the Appellant was not a genuine Falun Gong practitioner in China, it was necessary to consider whether he was a genuine practitioner in Canada. [101] The RAD notes as well in its review of the audio recording of the hearing, indicates the panel questioned the Appellant concerning the photographs and letters he disclosed in support of his claim. The panel noted the photographs were undated and that they were taken by unknown persons. The RAD notes that the Appellant testified that he asked a co-practitioner to take the pictures so that he could submit them as evidence of his practice in Canada. [102] The panel acknowledged that the Appellant may well have attended Falun Gong practice sessions in Canada, but found they were of no probative value concerning the events in China. In the context of previous credibility findings concerning events in China, the panel gave little weight to the Appellant's allegations that he is a genuine practitioner in Canada. [103] The RAD notes the panel considered and assessed the Appellant's Falun Gong knowledge and that it also considered and assessed the Appellant's evidence concerning his Falun Gong practice in Canada, including the documentary evidence disclosed by the Appellant. The RAD finds in this regard that the panel's analysis indicated it considered and assessed this evidence separately and the panel provided supporting analysis for its decision to give little weight to the Appellant's allegation that he is a genuine practitioner in Canada and to find that the photographs were of no probative value. [104] The RAD finds that the documentary evidence disclosed by the Appellant is insufficient on its own terms to support a finding that he is a genuine practitioner in Canada. The RAD further finds that the panel correctly cited its credibility findings concerning alleged events in China in its consideration of the Appellant's sur place claim. The RAD notes as well its credibility finding concerning the lack of a summons or warrant. The RAD is guided in this regard by the Federal Court's decision in Jiang7 in which the Court held that the Board must be entitled to import its credibility findings into its assessment of an applicant's sur place claim. [105] The RAD finds it was open to the panel to find that the Appellant likely joined a practice group in Canada in order to bolster his claim for protection and that he is not a genuine Falun Gong practitioner in Canada. [106] The RAD has reviewed the totality of evidence in the RPD record and concurs with the panel's finding that no evidence was disclosed indicating that the Appellant had come to the attention of Chinese authorities or that the Appellant was at risk of persecution or that he would be subject to a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to China. Disposition [107] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel January 7, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 National documentation Package, China, 14 March 2014, item 14.3. 3 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, para. 19. 4 Zhang, Xi Shun v. M.C.I. (F.C., no. IMM-6200-10), Kelen, June 8, 2011; 2011 FC 654. 5 Lin, Bizhu v. MCI (F.C., no. IMM-9100-11), Scott, October 15, 2012; 2012 FC 1200. 6 Lan Cao, Feng v. M.C.I. (F.C., no. IMM-2326-12), Near, November 29, 2012; 2012 FC 1398. 7 Jiang, Sumei v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012 FC 1067. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06310