TB5-03017

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 : TB5-03017 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 August 10, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mark Rosenblatt 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), a citizen of the People's Republic China, is appealing the decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. The Appellant is not submitting any new evidence in support of her appeal, nor is she requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. She is, however, requesting that the RAD find her to be a Convention Refugee, or in the alternative, that the matter be remitted to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. [3] This appeal is dismissed. Background [4] The Appellant's claim is based on her illegal Falun Gong practices in China. The Appellant was suffering from shoulder problems and sought both Western and Chinese treatment, however this did not relieve the shoulder pain. [5] A friend, Wang Hong introduced the Appellant to Falun Gong in XXXX 2013. Initially, the Appellant learned the exercises from her friend at her home, and gradually her shoulder improved. In XXXX 2013, the Appellant's friend invited her to join her practice group, which included XXXX individuals including the Appellant. [6] In XXXX 2014, the Appellant's parents, although initially agreeing to the practice, but cautioning the Appellant, learned that the Chinese government was harvesting the organs of Falun Gong practitioners, and with this in mind, asked that the Appellant give up the practice. The Appellant did not want to ignore her parents' demands, who found an agent to bring her to Canada. Her mother accompanied the Appellant; they obtained Canadian visas and arrived in Canada on XXXX XXXX, 2014. Her mother returned to China after two weeks. [7] The Appellant alleges that she is enjoying the freedom of practicing Falun Gong here in Canada in XXXX XXXX ROLE OF THE RAD [8] Counsel cites the Federal court in Njeukam1 in support of his submissions as well as the reasoning in Huruglica.2 The Federal Court has provided the RAD with guidance with respect to its role. In Huruglica,3 Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision. 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [9] The RAD has applied the reasoning as set out in Huruglica.4 COUNSEL'S SUBMISSIONS: * Did the RPD err in law in finding that the Appellant was not a Falun Gong practitioner in China? * Did the RPD err in law in its assessment of the sur place ground of the claim? The Appellant's Falun Gong practice in China [10] The Appellant testified that her knowledge of Falun Gong was limited in China as it was only learned from fellow-practitioners and was not comprehensive, although she had been practicing for more than one year prior to her arrival in Canada. Upon her arrival in Canada, she had however, purchased a copy of Zhuan Falun and Master Li's book, and she had attended a nine-day session for Falun Gong practitioners who were new to Canada "to give them some basic information and training". [11] The Appellant testified that her practice of Falun Gong in Canada differs, as in Canada she can keep the doors open during group practice sessions and exercises can be performed in public. However, the Appellant was asked by the RPD to explain the difference the Zhuan Falun book had made to her practice of Falun Gong and found her response to be vague. When the question was repeated, the Appellant indicated that she had learned by reading Zhuan Falun that "you can reach a higher level, the attachments go away". She stated that she learned this in China, however the RPD drew a negative inference as she had previously stated that she had no access to the Zhuan Falun book in China. Moreover, she acknowledged that none of her co-practitioners in China had talked about an example of their own attachments. [12] The Appellant was asked why she had not provided any corroboration whatsoever of her Falun Gong practice in China. For example, she had not asked her friend who had introduced her to Falun Gong to provide a letter, nor had she requested that her mother obtain any proof of her Falun Gong activities in China. Her response was that she was fearful of her telephone being tapped, however, the RPD found that this was not a reasonable explanation for the lack of corroborative evidence of how the Appellant was introduced to Falun Gong. In the absence of the Appellant's friend or her group coming to the attention of the authorities in China, the RPD found that it was not credible that the Appellant would reasonably fear that the Chinese authorities would monitor all the overseas telephone calls of the over one billion residents of China, just in case they happen to be discussing the practice of Falun Gong. [13] In light of the foregoing, the RPD drew several negative inferences with respect to the foregoing and found, on a balance of probabilities, that the Appellant did not become a Falun Gong practitioner in China. [14] The Appellant submits that the RPD conducted an overzealous and microscopic assessment to find that the Appellant was not a Falun Gong practitioner in China. Moreover, it is argued that it was unreasonable for the RPD to draw a negative inference from the absence of a letter from the Appellant's friend, as the risk to both the Appellant and her friend outweighs any probative value. [15] The Appellant submits that the most recent U.S. Human Rights Report indicated increased efforts to monitor internet use, control content, restrict information, block access to foreign and domestic websites, etc. It was further submitted that with 250 million monthly connected users, Skype is one of the most popular services for making phone calls and that these can be monitored by the censorship authorities. It is submitted that the RPD's negative finding about the Appellant's Falun Gong practice in China is not consistent with the totality of the evidence. [16] The RAD concurs with the RPD's findings that there was insufficient persuasive credible evidence to support the Appellant's practice of Falun Gong in China. The Appellant did not leave China fearing the PSB. Her group had not come to the attention of the PSB and nothing untoward had occurred prior to her departure and there was no evidence that anything has happened since. [17] The onus is on the Appellant to provide sufficient evidence to establish her claim. The RAD finds that counsel's argument that the absence of corroborative evidence presents a risk to both the Appellant and her friend, is without merit. The Appellant planned her trip to Canada by obtaining a Canadian visa. She never intended to return to China, by her own acknowledgment, although her mother returned after two weeks. Even if we accept that the Appellant would not have thought of having in her possession some corroborative evidence when she departed from China, the RAD concurs with the RPD that, once she engaged the services of counsel, it was incumbent upon her to seek any evidence she could find. There is no evidence whatsoever on the record that the Appellant even attempted to obtain any corroborative evidence. The RAD further concurs with the RPD that since the Appellant was not wanted by the PSB, on a balance of probabilities, any communication between Canada and the Appellant's home would not have likely come to the attention of the authorities. The RAD further notes that the Appellant had, for the purpose of this appeal, the opportunity to provide new evidence to support her claim. She has failed to do so. [18] The RAD further finds that the Appellant's credibility was called into question with respect to her testimony surrounding the reading of the Zhuan Falun book. The RAD finds that this is significant, as the Appellant initially alleged that her only knowledge of Falun Gong had come from her association with fellow practitioners in China and not from any literature. However, later in her testimony she indicated that she had gained knowledge from this book in China. [19] Finally, after listening to the lengthy recording of the proceedings, the RAD finds that the reason for the Appellant leaving China is called into question. The Appellant testified that she learned from her parents that the Chinese Government is taking measures to conduct an organ harvest from the Falun gong practitioners, and that the measures against the Falun Gong have increased recently. According to the Appellant, this information had been gleaned from her parent's friend in the neighbourhood community. [20] The RAD finds that the foregoing information is significant. It finds that if this were in fact, the case, there would be documentary evidence to support this assertion. However, the Appellant was unable to point to any documentary evidence about this increased scrutiny in her home city of XXXX, or province of XXXX. This is purportedly the reason that the Appellant left China to pursue her Falun Gong activities in Canada in an open and free fashion. However, the RAD finds that there is simply no evidence to support this reasoning. [21] In totality, the RAD finds that the Appellant has failed to provide sufficient credible evidence that would lead it to conclude that the Appellant was a genuine Falun Gong practitioner in China. The Appellant's behaviour upon arriving in Canada [22] The Appellant arrived in Canada on a visitor's visa in XXXX 2014 with the intention of not returning to China. According to her testimony, initially she found a Falun Group group and was "told by Falun Gong practitioners" that she could stay in Canada by making a refugee claim. She contacted the Immigration office in September 2014. [23] The RPD further noted that the Appellant had not contacted the local Falun Dafa association (FDA), the only official organization representing Falun Gong practitioners in Canada. In light of the Appellant's delay in claiming, along with the fact that she made no inquiries about joining or seeking the assistance of the Falun Dafa Association, the RPD drew a negative inference. [24] The Appellant submits that the RPD gave little weight to the Appellant's demonstrated knowledge and understanding of the exercises and theory associated with it, in terms of assessing the genuineness of her practice of Falun Gong in China. It is submitted that it is entirely plausible, that an individual would take advantage of the freedoms in Canada to study Falun Gong texts in Canada given that Falun Gong material is banned in China. Furthermore, it is submitted that in spite of the fact that the Appellant studied Falun Gong in Canada prior to making her refugee claim, this does not support a finding that the Falun Gong practice began in Canada instead of China. [25] It is submitted that the RPD's review of the Appellant's testimony was an overzealous and hypercritical assessment of the Appellant's Falun Gong identity in Canada and China. It is further argued that that the fact that the Appellant did not make any inquiries about joining or seeking the assistance of the Falun Dafa Association is an error in law by drawing a negative inference in this regard. It is also submitted that the RPD erred in drawing a negative inference from delay in claiming. The Appellant argues that it was reasonable and understandable for the Appellant to take a few months in order to assimilate into the Falun Gong community in Canada before making her refugee claim. [26] After conducting an independent assessment of the entire record, the RAD concurs with counsel that the Appellant possessed a good knowledge of Falun Gong. That is not the issue. The issue is whether or not the Appellant is a genuine Falun Gong practitioner, given that both the RPD and RAD have found her practice in China to be lacking in credibility. Although not determinative, the RAD concurs with the RPD that given the Appellant's determination in purchasing the Falun Gong literature, attending a nine-day course, participating in group practice in XXXX XXXX, and distributing pamphlets, it would not be unreasonable for her to have contacted the Falun Dafa Association for further information. The RAD, however, finds that the Appellant's delay in claiming, while not lengthy, provided her with the opportunity to learn much of her Falun Gong knowledge, which at the very least calls into question the genuineness of the practice. The RAD notes that the Appellant is an educated intelligent individual who learned that she could practice Falun Gong in Canada freely. According to her testimony, the Appellant stated that she learned this from her fellow practitioners at XXXX XXXX in Toronto, Canada. The RAD finds that this delay does, in fact, undermine the Appellant's credibility with respect to the genuineness of her Falun Gong practice. The Appellant's use of a smuggler [27] The Appellant admitted to having made a misrepresentation to Canadian authorities when she applied for her temporary resident visa abut her marital status as the smuggler told her it could be easier for her to obtain the visa. The Appellant also confirmed that she was not being sought by the Chinese authorities at the time she applied for the Canadian visas. The RPD found that given the fact that the Appellant was not in any immediate risk of harm that the excuse for having provided false information undermined her credibility. [28] The Appellant submits that the negative findings under this heading are of very limited value to the issue of whether or not the Appellant was a Falun Gong practitioner in Canada. [29] The RAD concurs that the foregoing is not a determinative issue as it is not relevant to the central allegations of this claim. Is the Appellant's practice of Falun Gong in Canada sufficient grounds for refugee protection? [30] The RPD considered whether the Appellant would face a serious possibility of harm in China, even if she only began the practice of Falun Gong in Canada, as the Convention refugee definition is forward-looking. [31] The RPD acknowledged that there is evidence that some practitioners of Falun Gong in Canada have come to the attention of Chinese authorities in China. However, it found, in the particular circumstances of this claim, given that the Appellant's friend, fellow practitioners, or no one else known to her has ever been suspected of Falun Gong practice in China, that such would not be the case. Furthermore, the RPD found that there was no objective evidence to support the Appellant's assertion that particular efforts have been made to suppress the practice of Falun Gong in the Appellant's home town or her province. As well, the RPD found that the Appellant's study and practice of Falun Gong would not have come to the attention of the Chinese government, were she to return to China. [32] The Appellant submits that she has a sur place claim as she is now able to practice Falun Gong freely and openly and does so at XXXX XXXX. She studies and reads Zhuan Falun, participates in Falun Gong study sessions in Toronto, distributes Falun Gong flyers and she participates in public Falun Gong demonstrations in Toronto. [33] The RPD, however, concluded that practicing Falun Gong openly is not a right protected under international law, as it found that Falun Gong is not a faith or religion. On this part, the RAD finds that the RPD's comments in this regard are clearly erroneous, as the practice of Falun Gong has been found to fall within one of the Convention refugee grounds, namely, either religion or political opinion. Having said this, the RAD does not find this comment in the RPD Reasons to be fatal to the claim. The question is not which ground of the Convention the allegations fit into, but rather if, in fact, the Appellant is a Falun Gong practitioner. CONCLUSION [34] After conducting an independent assessment of the entire record, the RAD finds that the Appellant has not provided sufficient credible evidence to support her Falun Gong practice in China, nor her reason for leaving China. [35] The RAD acknowledges the Appellant's knowledge of the theory and exercise pertaining to Falun Gong. However, having said this, the RAD concurs with the finding by the RPD that the credibility findings with respect to the Appellant's allegations in China, can be imported into its findings with respect to the Appellant's practice in Canada. [36] Accordingly, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [37] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara August 10, 2015 Date 1 Njeukam, Gaelle Leonelle Nguedo v. M.C.I. (F.C., no. IMM-7280-13), Locke, September 10, 2014, 2014 FC 859. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 3 Ibid. 4 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03017