TB5-09181

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 : TB5-09181 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 November 2, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) is a citizen of China. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant requests an oral hearing under section 110(6), but has not submitted new evidence in support of her appeal. As a result, an oral hearing will not be held by the Refugee Appeal Division (RAD). [2] The Appellant respectfully request that the RAD set aside the decision of the RPD and substitute that decision with its own determination that the Appellant is a Convention refugee or person in need of protection in accordance with its jurisdiction under section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA). Alternatively, the Appellant respectfully request that the RPD remit the matter back to a differently constituted panel of the Immigration and Refugee Protection Board under section 111(1)(c) of the IRPA. DETERMINATION [3] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. Memorandum of Appeal [4] The Appellant submits that: a. the Panel engaged in a microscopic analysis of the [Appellant's] testimony; b. the Panel's analysis of the [Appellant's] Falun Gong knowledge was unreasonable; c. the Panel's unreasonable analysis of the [Appellant's] subjective fear of persecution; and d. the Panel's unreasonable analysis of the [Appellant's] documentary evidence.1 BACKGROUND [5] The Appellant began the practice of Falun Gong because of insomnia and headaches. After a friend informed her of the benefits of practicing Falun Gong in May 2014, the Appellant began practicing in early June 2014. After practicing at home with the assistance of her friend, she joined an underground practice group on August 9, 2014. The Appellant introduced Falun Gong to her husband, and he joined the Appellant's Falun Gong practice group on February 8, 2015. After coming to Canada for the second time as a tourist on April 26, 2015, she learned from her daughter that her underground Falun Gong group was raided by the Public Security Bureau (PSB) on May 10, 2015. Two people were arrested in the raid, but her husband escaped and went to a friend's home to hide. The PSB visited the Appellant's home on the May 14, 2015, and were informed by her daughter that the Appellant had gone abroad. The PSB threatened her daughter, and told her that she must report the Appellant's plans and return date, and must not conceal the Appellant's husband's (her father's) whereabouts. The PSB visited the Appellant's home on two more occasions, and the Appellant learned that one of the practitioners was still in detention and would be sentenced soon. The Appellant feels her life is threatened; she seeks the protection from the Government of Canada. ROLE OF THE RAD [6] The Appellant made no submissions on the standard of review. The RAD finds that the Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the [Appellant] is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Merits of the Appeal Knowledge of Falun Gong [8] The RPD found that the Appellant provided no evidence in her responses that she made any effort to understand the concept of attachments. After repeated questioning, the Appellant testified that her friend taught her that Falun Gong improved her "mind nature" and "level" and to conduct herself based on "truth, compassion, and forbearance." When asked what concepts she had learned from his Zhuan Falun, the Appellant said nine talks and 60 subtitles. When asked to provide details, the Appellant testified attachments and karma. When asked to explain attachments, the Appellant said to get rid of them, try to help other people, live a life based on truth, compassion, and forbearance. When asked to give an example of an attachment and where she would find it in Zhuan Falun, she testified the first talk. The Appellant then testified that the attachment discussed is, "improving my nature and it talks about attachments." When the question was repeated, she said, "to improve my nature." In continuing the same question, the Appellant said, "cultivation for mind and body talks about attachments." When asked the same question by counsel, she testified, "If you do not treat people well," and repeated that Falun Gong eliminates attachments. The RPD then stated that there are numerous examples of attachments in Zhuan Falun, including the subtitles that the Appellant said she had learned. The RPD stated: the second talk "Wanting to get things", the sixth talk, "Showing Off", the seventh talk, "Jealousy", the eight talk, "Eating Meat". The RPD stated that the Appellant wasn't able to say anything more than generalize about cultivation, improving her nature, karma, practicing truth, compassion, forbearance and getting rid of attachments. Even with the additional three months of practice in Canada, there is no evidence that she made any effort to understand the concept of attachments. [9] The Appellant testified that she introduced her husband to Falun Gong and that she taught him the exercises. When asked to demonstrate the "Singular Up-and-Down Arm Movement" in the third set of exercises,3 the RPD found that she did not demonstrate the movement correctly. The RPD noted that she raised her right arm repeatedly in a 45 degree angle, and did not lower her other arm at all. She did not alternate her arms and she did not keep her palms at a distance of 4 inches from her body, as provided by the instructions. The RPD considered counsel's submissions that the hearing room is an artificial environment to practice Falun Gong, but finds that the ability to demonstrate a simple movement, allegedly performed daily for over a year, should be second nature to the Appellant. [10] After naming the first three exercises correctly, the Appellant was asked the purpose of the first set of exercises. She stated to unlock the areas where the energy is blocked, and to absorb energy into the body. The RPD noted that the first exercise enables the energy to circulate freely and smoothly, mobilizes the energy within the body and under the skin, and circulates it vigorously; it enables the practitioner to experience a strong energy field.4 When asked to explain where the energy comes from, the Appellant incorrectly stated it came from "Master Li's law body." When informed that Master Li states that it comes from the universe, she said she must have heard it wrong. [11] When the Appellant was asked to explain the purpose of the second set of exercises, the RPD found that she appeared to confuse the second and third set. She testified that you hold onto a big wheel and think about two barrels absorbing energy from the universe. When the question was repeated, the Appellant said you completely open up the top and bottom. The RPD explained that according to Master Li, in the second set of exercises "opens the entire body completely and enhances Gong strength; it is 'a comprehensive means of cultivation that increases wisdom, raises a person's level, and strengthens supernatural powers.'"5 The RPD informed the Appellant that the two barrels referred to, were part of the third exercise. [12] The Appellant was asked the purpose of the third exercise, she repeated her earlier answer about the two barrels, testifying "penetrating so that the energy can be mixed from the universe and expelled." The RPD stated that although the Appellant appeared to know that black Qi is expelled out of the body, she did not know that this process enables the body to be purified and to reach the state of a "Pure-White Body." The RPD noted that the Appellant did not know that the energy was also expelled directly out of the top of the head, in addition to the feet. She testified that energy leaves the body through the arms when they are stretched out the side of the body. The RPD noted that, according to Master Li, the arms should be moving up and down in the third set of exercises, and not to the side of the body. [13] The RPD found that the Appellant failed to demonstrate even a basic understanding of Falun Gong. She also found it reasonable that the Appellant would have had knowledge of some of the basic principles that it would be reasonable to expect from a genuine Falun Gong practitioner. [14] The Appellant submits that the RPD's conclusion that she is not a genuine Falun Gong practitioner is unreasonable because the RPD held the Appellant to an unreasonably high standard of Falun Gong knowledge. The Appellant submits that the RPD drew a negative inference on her Falun Gong identity as a result of extensive trivia-like questioning. [15] The Appellant submits that the RPD was engaged in trivia because the panel was expecting the Appellant to remember the names of purposes of exercises, demonstrate exercises, and have knowledge about attachments. When the Appellant answered correctly, the RPD prodded for more detail until an error occurred and the testimony could be discounted. The Appellant submits that she had a certain degree of understanding by naming correctly the five sets of exercises, and she had knowledge of karma and virtue. [16] The Appellant submits that if the RPD overlooked the Appellant's error regarding the purpose of the second and third exercise, she answered the questions correctly. It is also submitted that the RPD's analysis of the Appellant's Falun Gong knowledge is tainted by selectively omitting answers that demonstrated a degree of knowledge. [17] The Appellant quoted case law to support the above submissions.6 The Appellant submits that a reading of the RPD's reasons demonstrate that it expected the Appellant to demonstrate a level of Falun Gong knowledge equivalent to its own specialized knowledge thereof. According to the case law this is a reviewable error and asks that the RAD intervene on the finding of non-credibility. [18] The case law quoted above by the Appellant is related to religion; the RAD has taken into account the conceptual basis of these decisions in making a decision in this appeal. In listening to the recording of the hearing, the RAD makes the following findings. [19] The Appellant's understanding of attachments is nonexistent. She quoted general overarching principles of Falun Gong, and was not specific about naming attachments or where the discussions of attachments could be found in Zhuan Falun. One of the most important topics throughout Master Li's nine talks in Zhuan Falun, is cultivation, and how by practicing cultivation one can remove attachments. In chapter 4, he talks at great length about giving up attachments like showing off, jealousy, competitiveness, being overjoyed, and losing most attachments and different desires that ordinary people have. Master Li goes on to explain how these bad things are called karma and are intertwined with all the different attachments that people have. Master Li then equates these attachments to all sorts of character flaws. None of these issues were described by the Appellant in the RPD's hearing. The RAD disagrees with the Appellant's submissions that the RPD asked about trivia. This issue is one of the basic concepts of Master LiHongzi's teachings. [20] The RAD finds, on a balance of probabilities, that the Appellant has not informed herself of this very important issue in Master LiHongzi's teachings, even though she testified that she had read Zhuan Falun completely. [21] In observing the documentation quoted by the RPD, the RAD gives deference to the RPD's observations, and finds that the Appellant did not demonstrate the exercise properly. Given that the Appellant indicated in her BOC narrative that she began the practice of Falun Gong in June 2014 and practiced regularly in her home as well as with an underground Falun Gong practice group, it is not credible that the Appellant did not demonstrate accurately the arm movements in exercise three. In considering counsel's submissions at the RPD's hearing, the RAD finds that these exercises should be demonstrated flawlessly whatever the circumstance. In addition to Master Li's edict that reading Zhuan Falun was imperative to be considered a genuine Falun Gong practitioner, he also states that the exercises must be performed smoothly, fluently, and without error.7 [22] The Appellant correctly named the five exercises. When asked to explain the purpose of exercise one, she testified to unblock the areas where energy is congested in the body. In listening to the recording, the Appellant stated that the energy came from Master LiHongzi, an incorrect response. By way of explanation, the Appellant said she must have heard it wrong. The RAD finds, on a balance of probabilities, that the Appellant did not understand the purpose of exercise one. The purpose of all of Master Li's exercises, according to the documentation,8 is the flow of energy between the participant and the universe. It is not credible that the Appellant did not understand this most basic of principles concerning Master Li's five exercises. [23] In listening to the recording, the Appellant referred to exercise two as being barrels absorbing energy from the universe, and continued with, "complete opening top and bottom." After the RPD explained that the issue described was in the third talk, the Appellant said she must have heard it wrong. The RAD also notes that according to Master Li, the two barrels were standing upright between heaven and earth, gigantic and incomparably tall; this information was not given by the Appellant. The RAD finds that in spite of having performed these exercises for over a year before the RPD's hearing, the Appellant does not have an understanding of some of the basic principles of the exercises. The RAD draws a negative inference. [24] In describing exercise three, the Appellant stated that the energy is expelled when you glide or stretch your arms straight up, an incorrect response. The energy is expelled from the bottom of the feet to the top of the head, according to Master Li. The Appellant demonstrated some knowledge of exercise three, but did not have an understanding of the process. The RAD disagrees with the Appellant's submissions that the above questions are trivia. As stated above, the five exercises are a supportive mechanism for Master Li's primary teachings of the removal of attachments through cultivation. [25] The Appellant stated that Falun Gong cured her. She then stated that karma was the cause of disease and to get rid of attachments like karma. She also stated that karma was a black substance that you have because of doing bad things in your past life. In response to the RPD's questions regarding the purpose of exercise three, she said it was elimination of karma, an incorrect response. As stated above, exercise three is about the handling of the cosmos' energy and mixing it with the energy inside one's body. This exercise is meant to purify one's body. The Appellant has some basic knowledge of karma, but did not demonstrate in her testimony that she understands the concepts of karma and how they are related to many of the philosophies of Master Li. Master LiHongzi talks at length about karma throughout the entire nine talks. It is a major concept. [26] The RAD finds, on a balance of probabilities, that the Appellant is not genuine Falun Gong practitioner. It is not credible after a year of practice and study, that the Appellant would not have a more comprehensive knowledge of some of the basics of Falun Gong. The Appellant did not understand the principles of the exercises, and was unable to perform the requested exercise competently. As stated above, the RAD is aware of the case law regarding the expectation of a high level of competence from practitioners, but finds the Appellant does not have a basic understanding of the practice of Falun Gong. As a result of this finding, plus the finding below in this decision, the RAD finds that the alleged raid never occurred, and that the Appellant is not wanted by the authorities or PSB in China for her alleged practice of Falun Gong. Subjective Fear [27] The RPD found that the Appellant demonstrated a lack of subjective fear. This finding was based on the fact that the Appellant did not make a claim in November 2014, or when she returned to Canada in XXXX 2015. The Appellant stated she knew the risks involved in practicing Falun Gong to both herself and family members. The Appellant joined a Falun Gong practice group in Canada, at Milliken Park, 10 days before the alleged raid on her Falun Gong practice group on May 10, 2015, and after learning about the alleged raid, did not check up on any of her fellow Falun Gong practitioners. [28] The Appellant submits that to be included as a Convention refugee or a person in need of protection, the Appellant has to show that there is a serious possibility that she would be subjected to persecution, or that she would be subjected, on a balance of probabilities, to a danger of torture, a risk to life, or risk of cruel punishment, in China. The Appellant submits that there had been no raid on her Falun Gong practice group until May 10, 2015, and therefore there was no need to make a refugee claim. The Appellant submits that it is unreasonable for the RPD to expect her to make a claim on the basis of a mere "want" without any impetus, or circumstance to warrant refugee status, regardless of country. [29] The RAD concurs with the Appellant's submission on this issue. There was no immediate need to claim refugee status in that the alleged raid had not occurred until after she had been in Canada for some time. Although this is not a strong finding, the RAD finds that it is not the determinative issue, and will not overturn the RPD's decision on this issue. A major determinative issue, discussed above, is the finding that the Appellant is not a genuine Falun Gong practitioner. Documentary Evidence [30] The RPD found that because the Appellant was not found to be a genuine Falun Gong practitioner, she did not introduce her husband to Falun Gong, and that the authorities are not looking for him. Given this finding, the RPD gave no evidentiary weight to the verification letters from the Appellant's husband and his friend.9 [31] The RPD stated that the Appellant's medical booklet does not confirm that the Appellant was a Falun Gong practitioner in China and that it does not overcome the RPD's negative credibility findings noted above. The RPD gave the medical booklet no evidentiary weight. [32] The Appellant submits that the RPD failed to undertake an independent analysis of the letters, and relied upon previous findings, which the Appellant submits were erroneous. The Appellant submits that this finding is in error and warrants the RAD's intervention. [33] The Appellant submits that the RPD's expectation that the medical booklet should say that the Appellant is a Falun Gong practitioner is unsupported by evidence and defies logic. The Appellant submits that the medical book corroborates the Appellant's medical condition that prompted the Appellant to turn towards Falun Gong as a remedy. [34] Having found that the Appellant is not a genuine Falun Gong practitioner, the RAD also finds that the Appellant's BOC narrative and testimony regarding introducing her husband to the practice of Falun Gong, is not credible. The RAD concurs with the RPD's findings on this issue. If the Appellant was found not to be a genuine Falun Gong practitioner, any subsequent documentation and information about the husband's Falun Gong practice, fleeing from the PSB, and being hidden by a friend, are not credible. Below in this decision, the RAD will describe credibility findings regarding the alleged raid, findings that were not challenged by the Appellant on appeal. [35] The RAD concurs with the Appellant on the RPD's finding on this issue. The medical booklet is meant to describe the medical condition, and would never indicate the practice of Falun Gong in its report, unless it was a critical issue. The RAD finds that this is not a determinative issue in this claim, and will not overturn the RPD's decision due to this issue. However, in finding that the Appellant is not a genuine Falun Gong practitioner, the RAD finds that the Appellant's allegations of joining Falun Gong because of her medical condition are not credible. Credibility Issues [36] The RPD found the Appellant is not credible because of inconsistencies between her testimony and her Canadian visa application. The Appellant testified that she had applied for and been refused an American visa seven times between 2010 at 2015. On her Canadian visa application,10 she stated that she had never been refused a visa for permit, or denied entry, in order to leave Canada or any other country. The RPD did not accept the Appellant's explanation that she did not understand the question. The RPD went on to explain that even if she had found the Appellant's explanation reasonable, the Appellant required an American visa to enter the United States; therefore, the refusal of the visa is also a refusal of entry into that country. The RPD addressed counsel's submission that the Appellant had some assistance in completing the application, by stating that the Appellant was expected to ensure that proper information was being provided to Canadian officials. [37] The RPD drew a negative inference from the Appellant's failure to indicate the precaution of having different meeting sites for the Falun Gong practice sessions. After her initial response to the RPD's question regarding precautions, she was asked if they had different meeting sites, and she replied in the affirmative. [38] The Appellant submits that this inconsistency between testimony and documentation is minor and that it has no relevance to the question of whether she is currently being sought by the PSB for participation in illegal Falun Gong practice. [39] The Appellant submits that the RPD's finding regarding different practice sites is peripheral and not relevant, and cannot be used in the RPD's assessment. In that the RPD used these credibility findings in its assessment, the Appellant submits that the RPD's conclusion cannot stand. [40] In order to support the above submissions, the Appellant quoted case law.11 The Appellant submits that the RPD engaged in exactly the type of analysis cited in these decisions by exaggerating the importance of a few apparent contradictions, hesitations, or vague statements. [41] The RAD concurs with the RPD's findings, and the Appellant's submissions regarding the inconsistency between documentation and testimony regarding the Appellant's refusal of entrance to another country. It is not a major inconsistency in terms of determining whether the Appellant is wanted by the authorities in China for the practice of Falun Gong. However, this inconsistency between documentation and testimony raises the issue of lack of credibility. [42] The RPD's negative inference regarding the Appellant's inability to mention different sites for the practice of the Falun Gong group is valid, but in itself not determinative of the Appellant's allegations of the practice of Falun Gong. In listening to the recording of the hearing, the RAD found that the Appellant was inconsistent and vague regarding other precautions taken. Eventually, in continuing questioning, she did mention the front door, back door, escape plan, and lookouts. The Appellant also stated that you would escape from the closest door to you and run as fast as possible. The RAD finds, in listening to the recording, that the Appellant was not definite about the alleged plans to escape if the PSB raided the site. The RAD agrees, in part, with the Appellant's submissions. However, these were not the only issues where the Appellant was not credible about her alleged practice and experience with Falun Gong. The RAD finds that these minor issues of credibility add to the overall findings of the RPD and the RAD; that the Appellant was not a genuine Falun Gong practitioner in China, nor a genuine Falun Gong practitioner in Canada. Other Issues [43] These issues were not addressed by the Appellant on appeal. [44] The RPD gave no evidentiary weight to the Appellant's supporter practitioner's letter12 and photographs,13 with regard to the Appellant's motivation for joining Falun Gong activities in Canada or the Appellant's convictions. The RPD further stated that the letter was not written under oath or affirmation and the person who wrote the letter did not appear as a witness to give testimony or to be questioned by the panel at the hearing. The RPD also noted that the photographs were taken in publicly accessible forums. These two documents can only attest to the Appellant's participation in Falun Gong activities. Sur Place [45] The RPD noted information that Falun Gong practitioners are monitored by Chinese officials in Canada.14 The RPD noted that there was no specific information before it regarding the monitoring of Falun Gong practices in public parks, nor was there any evidence that she was observed by Chinese authorities. As a result, the RPD found that the Appellant did not come to the attention of Chinese authorities for participating in Falun Gong activities in Canada. [46] The RAD concurs with the RPD's findings on this issue. Disposition [47] The RAD upholds the decision of the RPD, according to section 111(1)(a), and finds that the Appellant is not a Convention refugee nor a person who would be subject to persecution should she return to China. (signed) Robert S. Garner Robert S. Garner November 2, 2015 Date 1 Exhibit P-2, Appellant's Record, at p. 14. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (July 17, 2015), item 12.33, Chapter IV The Falun Gong Practice System, at pp. 12 of 25 and 13 of 25 (53,54). 4 Ibid., at p. 1 of 25(42). 5 Exhibit RPD-1, RPD's Record, Reasons and Decision, p. 8. 6 Wang v. Canada (Minister of Citizenship and Immigration), 2011 FC 1030 at para 13; Dong v. Canada (Minister of Citizenship and Immigration), 2010 CarswellNat 83 (F.C.) at para. 20; Ullah v. Canada (Minister of Citizenship and Immigration), 2000 CarswellNat 2888 (F. C.T.D.), at para. 11. 7 Zhuan Falun, 1st talk. 8 Ibid. 9 Exhibit RPD-1, RPD's Record, at pp. 388-395. 10 Exhibit RPD-1, RPD's Record, at p. 42, Schedule A, question 6(d). 11 Mahathmasseelan v. Canada (Minister of Employment and Immigration), 1991 CarswellNat 78 (F. C.A.) at para. 9; Djama, Idris Mohamed v. M.E.I. (F.C.A., no. A-738-90), Marceau, MacGuigan, Décary, June 5, 1992. 12 Exhibit RPD-1, RPD's Record, at pp. 350-352. 13 Ibid., at p. 333. 14 Exhibit RPD-1, RPD's Record, NDP for China (July 17, 2015), item 12.31, Responses to Information Requests (RIR), CHN104187.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09181