TB4-00229

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 : TB4-00229 Private Proceeding / Huis clos Redetermination of the Appeal 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 16, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine 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 China, appeals a decision of the Refugee Protection Division (RPD) denying her claim for protection. On May 27, 2015, the Federal Court set aside the RAD decision and her appeal was remitted back to the RAD for reconsideration. She has not submitted new evidence in support of her appeal and she has not requested an oral hearing. The appellant requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute that decision with its own determination that the appellant is a Convention refugee or a person in need of protection. Alternatively, the appellant requests that the RAD remit this matter back to a differently-constituted panel of the RPD. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The appellant alleged she injured her knee and both Chinese and Western medical treatments were unsuccessful. In January 2013, her uncle introduced her to Falun Gong; she began to practice, and her knee began to feel better after three months. In May 2013, she introduced a friend to her practice group. On July 27, 2013, the appellant's practice group was raided but she was able to escape. She went into hiding and was informed the following day her friend and another practitioner had been arrested and the Public Security Bureau (PSB) had come to her home and left a summons. With the help of a snakehead she left China and came to Canada via the United States. [4] The appellant's application for refugee protection was heard on November 14 and 25, 2013. In a decision on December 12, 2013, the RPD rejected the claim finding that the appellant was neither a Convention refugee nor a person in need of protection. The appellant appealed her negative decision to the RAD and in a decision dated April 16, 2014, the RAD confirmed the decision of the RPD. The appellant appealed the RAD decision to the Federal Court. On May 25, 2015, the Federal Court set aside the RAD decision and her appeal was remitted back to the RAD for reconsideration. [5] The appellant submits that the RPD's determination is based on erroneous findings and, as such, is unsustainable. The appellant argues that the RPD erred in its credibility findings on the following issues: a) Erred in misconstruing the basis of the appellant's claim. b) Erred in its analysis of the appellant's introduction to Falun Gong. c) Erred in its analysis of the appellant's parents' actions. d) Erred in its analysis of the appellant's exit from China. e) Engaged in unreasonable analysis of the appellant's subjective fear. f) Erred in its analysis of the appellant's sur place claim. ROLE OF THE RAD [6] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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". [7] 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. The RAD can recognize and respect the credibility findings of the RPD. ANALYSIS OF THE MERITS OF THE APPEAL The basis of the claim [8] The RPD in its Reasons listed the "Allegations". At paragraph [7], the RPD stated "the claimant's underground church was raided". The appellant submits that the RPD error calls into question the balance of the decision as it is unclear whether the RPD actually comprehended the nature of the claim before it. The appellant further submits that perhaps the RPD was using a boilerplate decision and failed to copy and paste a particular section properly. The RAD is not persuaded by the argument of the appellant. [9] The RAD has reviewed the record as well as the audio recording of the hearing. The RAD notes the RPD indicated earlier in the same list of "Allegations" that the appellant had been introduced to Falun Gong by her uncle and that the appellant had introduced a friend to her group. The RAD notes as well that the words 'underground church' were not included as part of an analysis which might be described as boilerplate. The RAD also notes that in an eighteen-page decision and reasons, the only mention of 'underground church' was in this initial list of allegations. Further to this, in the audio recording of the hearing it is clear that the RPD understood and directed its inquiry to the appellant's participation in the practice of Falun Gong. [10] The RAD finds that the RPD failed to properly review and proofread its reasons. The RAD further finds the error is of a clerical nature and it does not reflect a fundamental misconstruing of the evidence, and it does not call into question the balance of the RPD's decision. It is clear from a review of both the RPD's reasons and the audio recording of the hearing that the RPD was aware of the central issue concerning the appellant's Falun Gong identity throughout the hearing and its subsequent Reasons. The RAD finds the appellant's argument must fail. The uncle's identity as a Falun Gong practitioner [11] The RPD found the appellant's uncle was not a genuine Falun Gong practitioner. The appellant submits the RPD erred in its analysis of her uncle's Falun Gong identity. The RAD is not persuaded by the argument of the appellant. [12] The RAD reviewed the audio recording of the hearing. The RPD questioned the appellant regarding what she learned about Falun Gong from her uncle. The appellant responded she learned the five exercises. She further testified her uncle did not teach her anything about Falun Gong philosophy and he told her it was difficult to have the Zhuan Falun book in China and she would access the book in a group. The appellant further explained her uncle had only a primary education and that was why his teacher would not teach him and indicated each person had to learn it themselves. [13] The RAD finds the appellant's explanation makes little sense and rejects her statement that her uncle's teacher would not teach him the philosophy associated with Falun Gong. The RAD notes no evidence was adduced to indicate the practice of Falun Gong is limited to those who are highly educated and literate. Practitioners consist of all ages and abilities. Master Li in the text Zhuan Falun Master Li notes2 - "Why do I tell you to study, read and memorize Zhuan Falun? To guide your cultivation! Those who only do the exercises but don't study are not disciples of Dafa (Falun Gong) whatsoever". [14] The RAD finds in its review of the evidence that, on a balance of probabilities, the appellant's uncle was not a genuine Falun Gong practitioner. The RAD agrees with the finding of the RPD in this issue and the argument of the appellant must fail. The appellant's parents go into hiding [15] The RPD found that the appellant's parents did not go into hiding as alleged. The appellant submits that the RPD's finding in this matter is speculative. The RAD is not persuaded by the argument of the appellant. [16] The RAD notes the appellant testified that her parents were fearful following the XXXX XXXX, 2013, visit by the PSB. She stated the PSB broke the door down at that time. The appellant further testified that this event caused her parents to seek shelter at her grandmother's house on November 1, 2013. The appellant was questioned about why her parents waited a month to go into hiding. She testified that they had to wait for her uncle to give her parents permission. [17] The appellant further argues that the RPD based its finding on its own standard of behaviour concerning the likely actions of people who fear the PSB. The appellant submits there was no evidence her parents could have found a safe haven sooner. The RAD in considering the level of fear of her parents finds that the explanation provided for them not going into hiding immediately makes little sense. The RAD finds it reasonable to believe that if her parents were truly fearful they would have made alternate arrangements for shelter. [18] The RPD further examined the Appellant's envelope3 submitted in evidence, which had transported the appellant's documents from China. The RPD noted that the appellant's parents sent the appellant's original documents from their home address on October 20, 2013. [19] The RAD has considered the alleged level of fear of the appellant's parents following the XXXX XXXX, 2013 visit by the PSB. The RAD notes the documentary evidence4 states: authorities monitored telephone conversations, fax transmissions, e-mail, text messaging, and Internet communications and also opened and censored domestic and international mail. Security services routinely monitored and entered residences and offices to gain access to computers, telephones, and fax machines. The RAD finds if the PSB were truly seeking the claimant and wanted to locate the parents, the documentary evidence is clear that they have the ability. [20] The appellant argues that if her parents were to use the address that they had used for hiding they would risk that location being discovered by the PSB. The RAD notes that these documents were mailed just prior to the parents going into hiding and the argument of the appellant makes little sense. The RAD does find that if the appellant's parents were truly fearful of the PSB, it would seem reasonable to believe they would utilize a different address to avoid discovery. [21] The RAD finds the actions of the appellant's parents detract from the appellant's allegations of pursuit by the PSB. The RAD additionally finds their actions detract from the credibility of their allegations of fear. It is simply not credible that they would risk exposing themselves and risk repercussions from the PSB if their fear was such that they felt the need to go into hiding. The RAD finds there is no credible evidence that the appellant's parents went into hiding to avoid the PSB. The RAD supports the finding of the RPD and the appellant's argument must fail. The Policing Standards in China [22] The RAD notes the RPD made an uncontested negative inference in respect of the appellant's failure to obtain information about the arrest of the friend she had introduced to Falun Gong. The RAD finds corroboration of this arrest is central to the appellant's allegations of pursuit by the authorities. [23] The RPD assigned a negative inference from the failure of the PSB to leave a subsequent summons or warrant at the appellant's parents' home because the appellant did not appear as requested for the initial summons. The appellant submits the RPD misapprehended the evidence regarding inconsistency in policing standards. The RAD is not persuaded by the argument of the appellant. The summons [24] The appellant submits the RPD engaged in microscopic analysis of the appellant's pursuit by the PSB, but it did not assess the summons, a key piece of supporting evidence in its reasons. The RAD acknowledges the argument of the appellant and as supported in Huruglica,5 reviewed the record and documentary evidence in respect of the summons and conducted an independent assessment. [25] The RAD notes the appellant's testimony confirmed the summons was left with her parents on July 30, 2013. The RAD further notes she confirmed that the document compelled her to appear in court the next day. The appellant points to the objective evidence about arrest warrants and summons which indicates that there is wide administrative discretion throughout China and that there are discrepancies between legislation and its implementation. Further, China is far from complying with rule-of-law standards, some areas of China follow practices which do not conform to national laws and regulations, and local public security officials routinely fail to follow established laws and regulations.6 [26] However, by virtue of the issuance of a summons for the appellant it would seem that in the case of the appellant, the PSB were not hesitant to follow the rule-of-law standard. The RAD also has concerns with the type of summons tendered. The summons tendered by the appellant states it is a criminal summons (criminal chu) in that it orders the appellant to appear in criminal court. The RAD notes there is documentary evidence in the record7 which would lead the RAD to question why the appellant was issued a criminal summons to appear in court rather than a coercive summons or an arrest warrant. [27] The RAD notes the documentary evidence states the following about coercive summons: "[c]oercive summonses" (juchuan) are served by the people's courts, people's procuracies, public security or state security organs to those who do not comply with criminal summonses8 [28] The same documentation states: Criminal summonses (xingshi chuanhuan) are served by the people's courts, people's procuracies, public security or state security organs to criminal suspects or defendants who need not be placed under pretrial detention, and have to appear before courts or undergo interrogation by the procuracy, the police or state security organs. (ibid.) The Visiting Scholar added that Criminal summonses cannot last more than twelve hours, and cannot be used more than once on the same person. While a suspect or a defendant is being summoned for questioning, it is possible to issue a coercive summons if it is found out that there is the need to limit his personal freedom.9 [29] The RAD finds that given the information in the documentation it is reasonable to expect that the appellant would have been served with a criminal summons prior to the issuance of the coercive summons to appear in court. However, the appellant testified that she was only issued one document. [30] The appellant in her testimony stated that the PSB were seeking to arrest her. The RAD notes that the document demands that she appear in court and states, "without proper reasons the person summonsed cannot be absent", yet the appellant testified that no further action being taken by the PSB or the courts when she did not appear as requested, beyond continuing visits to her parents' home to inquire as to her whereabouts. [31] The RAD further notes that her summons states it is a criminal document, "criminal chu", yet the instructions accompanying the summons it states the case can be resolved as a "civic matter". The RAD finds the document is internally inconsistent. As well the RAD notes that the summons indicates that "The court can render the verdict on the bases (sic) of the evidence at hand" and further states that the person concerned can obtain a copy of the judgement rendered. The RAD has previously discussed that the appellant confirmed there was no further action taken by the PSB or the court. The RAD finds it reasonable to expect that if the PSB had to go to the extent of gathering evidence, approaching the courts to charge the appellant and initiating a trial, that they would take the time to complete the process. The RAD has cause to question the actions of the PSB, as well as the genuineness of this document. [32] The RAD notes that documentary evidence notes that a professor of law at George Washington University Law School, who specializes in the Chinese legal system, stated that "just about any document can be forged in China, and many are." A 2007 briefing paper published by the Economist Intelligence Unit (EIU) indicates that a United States (US) consular official based in southern China reported that fake passports in China are rare, while the ability to screen other documents is inhibited by "widespread fraud" (Sept. 2007, 18). According to the official, "'you can't trust any [personal] documents in China',"10 The official further indicated that documents are assumed to be fraudulent unless proven otherwise.11 ... A 2009 Vancouver Sun article reports that it is possible to "buy any kind of document you want" in China (19 Mar. 2009).12 [33] The RAD notes that the appellant through her oral testimony and statements in her BoC form has indicated she is not adverse to obtaining and utilizing fraudulent documents to exit China. The RAD is led to conclude the appellant has the means and ability to secure duplicitous documentation to assist in her quest for refugee protection in Canada. [34] The RAD has further considered that the appellant submits there is a lack of consistency in policing standards. The RAD has reviewed the documentation13 and notes that the document addresses problems at rural village and township levels. The RAD notes the appellant is from Guangzhou City, Guangdong province, with a population of over eight million people, the third largest city in China. It is reasonable to assume that the police force of a large and populous area such as this would be well versed with regard to the effective service associated with the issuance of summonses and court related documents. [35] The Federal Court of Appeal held in Orelien14 that "[O]ne cannot be satisfied that the evidence is credible or trustworthy, unless satisfied that it is probably so, not just possibly so." Therefore, findings of fact, as well as the determination as to whether the claimant's evidence is credible, are made on a balance of probabilities. [36] The Federal Court further notes: A witness' testimony does not have to be accepted simply because it was not contradicted at the hearing. The Refugee Protection Division is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.15 [37] The RAD has considered the appellant's testimony, the inconsistency in the summons and submissions of the appellant, as well as the ease with which one can get fraudulent documents in China. The RAD finds, on a balance of probabilities, the summons submitted in this claim is not a genuine document and places no weight on the summons submitted as support for this appeal. The actions of the PSB [38] The appellant submits the RPD misapprehended the evidence regarding inconsistency in policing standards. [39] The appellant cites the Federal Court decision in Chen16 in which the Court states that the Board's reasoning that an arrest summons would have been issued because of the applicant's testimony that the PSB were intent on arresting him and had come to his home many times is speculative and documentary evidence indicates policing standards are highly inconsistent. The appellant submits the RPD ignored the documentary evidence before it as well as the guidance provided by the Federal Court on this subject and that this is clearly a reviewable error. [40] The RAD notes that the RPD made its finding on the basis of the failure of the PSB to make a coercive response to the appellant's failure to respond to a summons. The RAD has reviewed the record and further notes that the RPD did cite specific documentary evidence in this regard. The RAD's review has found this was consistent with the documentary evidence17 on record, and that it was open to the RPD to find that it would be reasonable to expect that the PSB would have issued a coercive summons or arrest warrant to the appellant after she failed to appear for a scheduled court date. The RAD finds this is particularly the case in the context of the previous issuance of a summons indicating that the PSB documented its pursuit of persons of interest in this jurisdiction, as well as the appellant's confirmation in her testimony of the return of the PSB to her home on two occasions, and the alleged arrest and detention of two co-practitioners. [41] In regard to the Chen decision cited by the appellant,18 the RAD finds that the appellant has misconstrued its application to this case. The RPD found that it was reasonable to assume that a coercive summons or arrest warrant would have been issued in the context of the issuance of an initial summons and the appellant's failure to respond. As well, the RPD noted that it was reasonable to assume that a coercive summons would have been issued in the context of the multiple PSB visits alleged by the appellant. The Chen decision, however, concerns the nature of the initial summons which the RPD in that case found should have been a coercive summons rather than the non-coercive summons. The Court found the RPD unreasonably dismissed the applicant's summons document, and further found the RPD's finding that the document was not authentic was speculative. The RAD notes that country documentary evidence indicates that while an arrest warrant is not often issued, the circumstances in which the procuratorate will issue a summons are those that apply in this case. The RAD finds that the Chen decision does not apply to the case at bar. The RAD after a full review of the evidence finds, on a balance of probabilities, there is no persuasive evidence that the appellant is being sought by the authorities in China. The RAD concurs with the RPD's finding and the appellant's argument must fail. The exit from China [42] The RPD found that given that the authorities were seeking to arrest the appellant that she would be unable to leave China using her own passport. The appellant submits the RPD's reasoning is erroneous and it ignored the prevalence of corruption in China. The RAD is not persuaded by the argument of the appellant. [43] The appellant submits that the Federal Court decision in Wei,19 where the Court found that the information does not confirm that the Golden Shield database was in place. In this context the appellant argues that the RPD's reliance on the Golden Shield database in making a finding that the appellant would have not been able to exit the country is speculative and a misapprehension of the evidence. [44] Again, the RAD notes that the same National Documentation Package relied upon by the appellant also states with certainty that the Golden Shield is operational. A researcher, who has conducted research and published on the Chinese policing system for fifteen years and who was previously a professor of Chinese and correspondence with the Research Directorate:East Asian Politics at Western Michigan University, stated the following in China's Public Security Departments absolutely do have nationwide computer information sharing networks, and have been working hard to develop and expand those for at least a decade.... [A] fair amount is published about them in Chinese language police journals. One does read complaints about provincial police departments not being willing to share information with each other, however. For Chinese readers, a good deal of information about nationwide arrest warrants is openly available on the webpage of the Ministry of Public Security (www.mps.gov.cn) and on the webpages of the various provincial public security departments. There has really been an explosion of this online police information in the past 6-7 years. (11 May 2009)20 [45] The RAD also notes that the United Kingdom Operational Guidance Note, dated 29 August 2012, states the following: The Chinese police have access to a National Computer Database, known as Golden Shield Project. Its aim is to improve policing, and there are strict regulations on the use of the database. It holds information on population information, criminal records information, information on criminal fugitives, information on stolen vehicles, information on passports and exit/entry data, information on registered cars and drivers, information on police officers and information on key fire-prevention units. All police departments at county level and above (i.e. police departments at provincial, city and county levels) and most grass-roots units (police units below county level) can now connect to this system. There are some small police departments in remote areas that cannot yet connect to Golden Shield.21 [46] Like the RPD, the RAD has considered that the appellant used a smuggler to exit China. However, the RAD finds that the objective evidence concerning the Golden Shield and other border controls in place at China is compelling and convincing. While it might be possible for a smuggler to bypass some of the security controls, the RAD finds that based on the evidence in the record it is highly unlikely that the appellant could have bypassed all of the security controls in place; particularly in light of the appellant's allegations that there was a summons issued for her and that the PSB wanted to arrest her because of her Falun Gong activities. [47] Based on the foregoing, it is clear that such a system is in place. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.22 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.23 In this case, there is an evidential foundation for the RPD's findings. The RAD concurs with the RPD's credibility finding on this issue and finds, on a balance of probabilities, that the appellant would not have been able to exit China on her own passport due to the Golden Shield. The sur place claim The letters [48] The RPD found that the appellant's submission of two letters24 from Falun Gong practitioners to corroborate her Falun Gong practice in Canada was insufficient to overcome cumulative credibility concerns. The appellant submits the RPD's conclusion is erroneous and dismisses the documents without cogent reasons. The RAD is not persuaded by the argument of the appellant. [49] The RPD found that the confirmation letters appeared to be written by the appellant. The appellant further submits that she notes that the telephone numbers of the two alleged letter writers were provided. [50] The RAD notes in its review of the record that, although the RPD indicated the letters were in the appellant's handwriting, it did not simply dismiss the letters. Rather, the RPD found the letters might corroborate the appellant's attendance and involvement but they did not attest to the appellant's motivation in participating in Falun Gong activities in Canada. The RAD in assessing the documents notes it is not possible to ascertain whether the letters were indeed authored by the appellant. The RAD notes the first letter is dated October 26, 2013 and states that the author met the appellant on September 21, 2013, indicating that the author of the document has known the appellant for a little over a month. Further to this the RAD finds the document indicates as the appellant confirmed in testimony that she practices the exercises associated with Falun Gong with others. [51] The appellant's second letter was dated October 27, 2014 and made similar statements to those of the first letter as well as confirming the individual had been acquainted with the appellant a little over one month. The RAD notes that the letters may confirm the appellant has learned the exercises associated with the practice of Falun Gong. The performance of these exercises is simply the enactment of a group of exercises and they alone do not define that individual as a genuine Falun Gong practitioner nor do they attest to the appellant's motivation for partaking in the exercises. The RAD finds there was no additional persuasive information in these documents to support the appellant's identity as a Falun Gong practitioner. The RAD places little evidentiary weight on these documents as support for the appellant's identity as a genuine Falun Gong practitioner. The Falun Dafa association (FDA) [52] The RPD found that the appellant's failure to contact the Falun Dafa association in Toronto undermines the credibility of her allegations and her identity as a Falun Gong practitioner. The appellant submits that she provided a reasonable explanations and the RPD had no reason to doubt her testimony. The RAD is not persuaded by the argument of the appellant. [53] The RAD in its review of the record as well as the audio recording of the hearing notes the appellant was questioned about why she chose not to approach the FDA in Toronto to obtain support for her refugee claim. The appellant in her testimony stated, her group leader told her she does not have to join anything, just come to Miliken Park whenever she wants. The RAD acknowledges there may be a limited structural organization of Falun Gong in China, but the documentary evidence indicates there are a number of supports and activities available to practitioners in Canada. [54] The RAD finds the appellant's testimony confirms her attendance at Miliken Park to participate in Falun Gong exercises. The RAD has previously stated that Master Li, the founder of Falun Gong clearly states that the study of the philosophy of Falun Gong is essential to its practice and application.25 The RAD finds the appellant has not provided persuasive evidence that she participates in the study of the principles and philosophy associated with Falun Gong. The RAD finds the appellant's testimony detracts from her identity as a Falun Gong practitioner. [55] The RAD notes that the documentary evidence26 states the FDA is mandated to support refugee claimants in Canada and supports those claimants known to be high risk and they take serious steps to determine the validity of each claim. The RAD in its review notes the RPD acknowledges that membership in the Falun Dafa association is not a requirement. The RAD notes that the appellant has alleged that she is at risk of persecution if she were to return to China. The RAD finds that considering the appellant's allegations of harm if she were forced to return to China and her belief that she is a genuine practitioner, it would be logical for her to seek out support organizations whose mandate is to assist genuine practitioners. [56] The RAD has considered the RPD evidence in the record, as well as her testimony in respect of having limited information about Falun Gong in Canada. The RAD finds the appellant's testimony indicates that she travelled randomly to a park to practice Falun Gong exercises when she was aware that other organizations exist to support genuine practitioners. The RAD finds this action detracts from the authenticity of her practice and her identity as a Falun Gong practitioner. [57] The RAD having assessed all of the evidence concurs with the finding of the RPD that the appellant has not provided sufficient credible evidence to establish her identity as a genuine Falun Gong practitioner in this instance and finds the appellant's argument must fail. Failure to claim elsewhere [58] The RPD made a negative inference to the appellant's subjective fear due to the fact that she entered the United States of America (U.S.) with a valid visa, but failed to make a claim for refugee protection. The appellant submits that she was being guided by the smuggler and did what he suggested. The RAD is not persuaded by the argument of the appellant. [59] The RAD further notes the appellant argues that the RPD made a negative inference about her failure to claim in Thailand and her delay in departing China and that this negative inference is erroneous. The RAD has reviewed the record and audio recording of the hearing. The RAD notes the RPD addresses the fact that the appellant was an experienced traveller, having applied for visas and travelling to these locations, but this did not cause the RPD to make a negative inference. [60] The appellant further submits the RPD erred in respect of the appellant's failure to leave China upon receipt of her U.S. visa in July 2013. The RAD notes the RPD assessed a series of credibility issues in arriving at a conclusion about the appellant's failure to claim in the U.S. The RAD notes that a negative credibility inference drawn from this action on an isolated basis may be inappropriate, but the RAD finds consideration of this fact with the total issue is acceptable. [61] The RAD notes the appellant did testify that she had previously applied for an U.S. visa with the intention of travelling to the U.S. prior to her alleged problems with the authorities. The appellant when questioned about why she did not make a claim for refugee protection in the U.S. responded that the smuggler had told her that Toronto was the final destination. The RAD does not accept the appellant's explanation. The RAD notes the appellant is a well-educated and sophisticated individual who was familiar with travel as well as how to navigate the immigration process for various countries. The RAD finds the fact that the appellant had an U.S. visa valid for one year that allowed her temporary status in that country, yet she chose to enter Canada illegally without any status and this detracts from the credibility of her subjective fear. [62] The RAD further notes that as the appellant submits, the assessment of her subjective fear goes to the heart of her claim. The RAD notes someone who is truly fearful can reasonably be expected to claim refugee status at the first opportunity;27 delay points to a lack of subjective fear of persecution.28 While delay is not a decisive factor in itself, it is a relevant element to be taken into account.29 The RAD having considered the appellant's testimony and the evidence in the record finds that the Appellant's failure to make a refugee claim in the U.S. detracts from her subjective fear. The RAD agrees with the finding of the RPD in this matter and the appellant's argument must fail. Sur place findings [63] The appellant submits that the RPD's sur place analysis is erroneous because there is evidence before the RPD that people who practice Falun Gong in Canada are subject to persecution when they return to China. The RAD is not persuaded by the argument of the appellant. [64] The appellant argues that, even if she was not a genuine practitioner of Falun Gong, she could still be at risk if her Falun Gong activities in Canada came to the attention of Chinese authorities. The appellant argues that the RPD failed to consider whether there is a reasonable chance or serious possibility of persecution of the appellant given her public practice of Falun Gong and the documented monitoring that takes place. [65] The RAD has assessed whether the claimant may become a refugee sur place based on her actions in Canada by participating in Falun Gong exercises in Milliken Park following her arrival and whether that supports a well-founded fear of persecution. The RAD notes that if the RAD were to accept the appellant was a genuine Falun Gong practitioner, no evidence was adduced to indicate that her actions in Canada have come to the attention of the authorities in China. [66] In this respect, the RAD is guided by the Federal Court Trial Division decision in Wang,30 which held that a sur place claim could not be maintained in the absence of evidence that the making of the refugee claim had specifically come to the attention of the authorities of the claimant's country of origin. [67] The RAD notes that the appellant has alleged that her desire to participate in Falun Gong took place as a result of circumstances, which occurred in China. She alleges her continued participation in Falun Gong in Canada is based on her membership in China. The RAD finds, on a balance of probabilities, that the record indicates that no persuasive evidence was adduced during her hearing that the Appellant was a genuine Falun Gong practitioner in China or that the authorities in China became aware of her Falun Gong activities in Canada or that the appellant had made a refugee claim in Canada. Having no evidence of conversion in Canada, the RAD finds, on a balance of probabilities, and in the context of the findings noted above, that the appellant practiced Falun Gong in Canada only for the purpose of supporting a fraudulent refugee claim. [68] In the context as noted above and on the basis of the totality of evidence, the RAD finds, on a balance of probabilities, that the appellant is not a genuine Falun Gong practitioner nor would she be perceived to be in China. The appellant begins her practice of Falun Gong [69] The RPD found the appellant's testimony and her Basis of Claim (BoC) document were inconsistent in respect to the dates she began to practice Falun Gong. The appellant submits this is a trivial inconsistency and it does not go to the heart of the claim. The RAD finds the appellant's argument has merit. [70] The RAD has reviewed the audio recording of the hearing and notes the appellant's testimony was inconsistent when compared to her BoC document. The RPD confronted the appellant about the inconsistency and the RAD notes the appellant explained it must have been an interpretation error. The RAD finds this inconsistency is minor in nature and the appellant provided additional testimony that was consistent with her explanation. The RAD further finds, as suggested by the appellant, that this inconsistency does not go to the heart of the claim and it does not affect the outcome. The RAD concurs with the argument of the appellant. CONCLUSION AND DETERMINATION [71] The appellant has alleged that the RPD erred in rejecting her claim. Notwithstanding the error made by the RPD in drawing an incorrect conclusion as to the dates of the Appellant initiating her group practice of Falun Gong, the RAD finds after its review and assessment of all of the evidence in the record that the cumulative sustained adverse credibility findings and uncontested credibility findings of the RPD are sufficient to confirm the RPD's overall determination. [72] For the reasons set out above, the RAD, agrees with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [73] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [74] Accordingly, this appeal is dismissed. (signed) "Robert Bebbington" Robert Bebbington September 16, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China, 31 October, 2013, item 12.35. 3 Exhibit RPD-1, RPD Record, pp.479-480. 4 Exhibit RPD-1, RPD Record, National Documentation Package for China, 31 October, 2013, item 2.1. 5 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799, paras 54 and 55. 6 Exhibit RPD-1, RPD Record, National Documentation Package, China, 31 October 2013, item 9.3. 7 Ibid., item 9.8. 8 Ibid. 9 Ibid . 10 Exhibit RPD-1, RPD Record, National Documentation Package for China, 31 October 2013, item 2.3. 11 Ibid. 12 Ibid. 13 Exhibit RPD-1, RPD Record, National Documentation Package, China, 31 October 2013, item 9.8. 14 Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.), at 605, per Mahoney J.A. 15 Alizadeh, Satar v. M.E.I. (F.C.A., no. A-26-90), Stone, Desjardins, Décary, January 11, 1993; Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); and Shahamati, Hasan v. M.E.I. (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994. 16 Chen v. Canada (M.C.I.), IMM-5888-12, Rennie, 2013 FC 311. 17 Exhibit RPD-1, National Documentation Package, China, 31 October 2013, items 7.3 and 9.8 18 Chen v. Canada (M.C.I.), IMM-5888-12, Rennie, 2013 FC 311. 19 Wei, Shoupeng v. M.C.I. (F.C., no. IMM-5987-09), Beaudry, June 25, 2010, 2010 FC 694. 20 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China (31 October 2013), item 10.3, Response to Information Request (RIR) CHN103133.E, 3 June 2009. 21 Exhibit RPD-1, RPD Record, NDP for China (31 October 2013), item 1.7, Operational Guidance Note: China, at 2.10. 22 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 23 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 24 Exhibit RPD-1, RPD Record, pp.473-476. 25 Falun Dafa - Essentials for Further Advancement, LI HONGZH, April 2001. 26 Exhibit RPD-1, RPD Record, NDP for China, 31 March, 2014, item 12.30. 27 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003. 28 Castillejos, Joaquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994. 29 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 30 Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001; 2001 FCT 1237. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-00229