TB4-04263

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 : TB4-04263 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 September 10, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Roberto Lonardi Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, a citizen of the Republic of China, is appealing her decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Minister has intervened with new evidence and submissions. The Appellant has not provided a response to the Minister and has not submitted any new evidence. The Appellant is requesting that the Refugee Appeal Division (RAD) find her to be a Convention refugee or, in the alternative, that the matter be referred back to the RPD to be re-determined by a differently-constituted panel. DETERMINATION [2] This appeal is dismissed. Pursuant to Subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background: [3] The Appellant is from XXXX XXXX, the province of XXXX in China. Her refugee claim is based on her alleged Falun Gong activities. [4] According to the Appellant, she turned to the practice of Falun Gong following two failed marriages in 1997 and 2010. She began to seek medical help and was prescribed medication to assist with her depression. [5] On or about XXXX 2012, the Appellant's good friend, XXXX XXXX, introduced her to Falun Gong. As a result, she went to her friend's house to begin the practice in the middle of XXXX 2013. Her friend taught her the five exercises slowly, following which she joined her friend's practice group, which included 11 individuals. [6] Due to her radical change in health, the Appellant reconciled with her second husband. She also decided to travel to the United States (U.S.) and obtained a US visa in XXXX 2013. However, on XXXX XXXX, 2013, the Appellant was late for her Falun Gong practice but, as she was approaching, she observed several practitioners running out of the house. One of them informed the Appellant that the Public Security Bureau (PSB) had raided the house. The Appellant immediately turned back and went to her maternal aunt's house in XXXX XXXX, XXXX province. However, the Appellant alleges that the PSB went to her house looking for her and left a Chuanpiao (summons) with her husband accusing her of being engaged in illegal activities. Her husband also informed her that her two friends, XXXX XXXX XXXX XXXX XXXX XXXX XXXX had been arrested. Furthermore, he told her that the PSB came repeatedly to the house looking for her. Eventually, a smuggler was found and the Appellant left China using her Chinese passport and US visa. She was told by the smuggler not to make a refugee claim in the U.S., but rather to go to Canada. Since the Appellant had not paid the smuggler in full, he took away her Chinese passport. Ministerial Intervention at the Appeal1 [7] Pursuant to RAD Rule 4(1), the Minister intervened before the RAD and relies on new evidence tendered under the provisions of 110(3) IRPA. The Intervenor makes submissions with regard to the credibility of the Appellant's testimony at the RPD hearing and further submissions with regard to the credibility of the documents tendered by the Appellant at his RPD hearing, which undermine his allegations of persecution. [8] The Minister has intervened by way of submissions,2 which relate to US visa applications and the Appellant's fingerprints. Counsel for the Appellant was provided the opportunity to respond but failed to do so. Admissibility of Evidence Presented on Appeal [9] While IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,3 such restrictions do not apply to the Minister, the Intervenor here.4 [10] Section 171(a.3) of IRPA provides that the RAD may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. [11] The RAD has no reason to conclude that any of these documents are not credible or trustworthy, nor does the Appellant contest the admissibility of the documents. These documents are therefore admitted as evidence before the RAD. [12] The Appellant applied for a US visa in XXXX 2012 and was refused. She was granted a US visa in XXXX 2013 and flew to XXXX XXXX on XXXX XXXX, 2014 and entered Canada illegally by foot on XXXX XXXX XXXX 2014. The Appellant declared that her education was comprised of six years of elementary school and three years of secondary school. The claimant did not list any other educational history in her refugee intake forms. (Question 7 of the IMM 5669 Schedule A Background/Declaration). [13] The Minister received a report from the US Department of Homeland Security dated XXXX XXXX XXXX 2014,5 which yielded an exact fingerprint match of the Appellant. The U.S. authorities noted that the Appellant was fingerprinted in XXXX, China on XXXX XXXX, 2013 and on XXXX XXXX, 2013 for the purposes of submitting non-immigrant visa applications.6 The US authorities also confirmed that the Appellant was fingerprinted again when entering the U.S. on XXXX XXXX XXXX 2014.7 A scanned copy of the two U.S. visa applications was received on XXXX XXXX, 2014.8 In both of her U.S. visa applications, the Appellant indicates that she attended a vocational school to XXXX XXXX XXXX XXXX XXXX from XXXX 1992 until XXXX 1995.9 STANDARD APPLICABLE TO RAD: [14] Counsel has made submissions in this regard, however a recent Federal Court decision in Huruglica10 has provided 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 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". COUNSEL'S SUBMISSIONS [15] Did the RPD err in its assessment of credibility? DETERMINATIVE ISSUE [16] The determinative issue is credibility. ANALYSIS Basic Of Claim Form (BOC) omissions paragraphs 8-10 of RPD Reasons [17] The RPD found that the omission in the BOC of details of how she was introduced to Falun Gong undermined her credibility. This included the number of meetings with the Appellant's friend and the observations of her fellow practitioners performing exercise, before she decided to join. The RPD further found that there were inconsistencies between the Appellant's testimony and her BOC as to what she was taught during her first session of practicing Falun Gong, who was present and what she did at that first session. The RPD found that the omission of the Appellant's Wednesday Falun Gong meetings from her BOC was significant given the frequency of the meetings as well as the inconsistency between her testimony and her BOC surrounding her first Falun Gong practice. [18] Counsel submits that these omissions from the BOC must not be considered fatal to the Appellant's claim as opposed to a direction contradiction.11 [19] The RAD finds that there were issues that were sufficiently significant in totality, to cast doubt as to the veracity of the Appellant's Falun Gong activity, given the inconsistencies of how and when she practiced Falun gong in China. Failure to take into account Grade 9 education: [20] Counsel submits that the RPD failed to take proper account of the Appellant's relatively low level of education. (IMM 0008, "Generic Application Form for Canada," page 2, #7) [21] The Minister has made submissions in this regard.12 In these two US visa applications, the Appellant has indicated that she studied tourism and hotel management from September 1992 until July 1995, which contradicts the information provided to Canadian officials. Moreover, the RAD finds that this refutes Counsel's submissions in that the Appellant has, in fact, 12 years of education, not to mention the fact that the information provided was untruthful and therefore goes to the overall credibility of the Appellant.. "Chuanpiao" (Summons) [22] The RPD accorded "little evidentiary weight" to the above document. It found that the summons did not conform to a standard format of a criminal summons13 and found inconsistencies between the Appellant's summons and that of a standard criminal summons. [23] Counsel submits that practices vary in China and, if the summons was deemed to be fraudulent, it should have been discarded completely. The Appellant further submits that the RPD was microscopic in its findings in this regard, and should not have made this finding in conjunction with the evidence that there is readily available fraudulent documentation in China. [24] The RAD finds that the RPD had evidence before it to question the validity of the summons. Since it has the expertise that the RAD does not have, the RAD gives deference to the RPD in this regard. Outpatient Record: [25] The RPD found that, while the Outpatient Record14 notes that the Appellant may have indeed suffered from insomnia and depression, "little evidentiary weight" is accorded to this document with respect to identifying the Appellant as a genuine Falun Gong practitioner. [26] Counsel submits that the RPD's failure to accord probative value to this document was unreasonable and the RPD's summary dismissal of same was capricious and essentially unsubstantiated. [27] The RAD finds that the Appellant's submission misrepresents the findings of the RPD. The RPD made the finding, with respect to identification as a Falun Gong practitioner only and the RAD concurs with this finding. The Appellant's knowledge of Falun Gong (FG): [28] It is submitted by the Appellant that the RPD set an unduly onerous standard of Falun Gong knowledge, given her low education, and the fact that she had only been introduced to the practice on or about XXXX, 2013. In totality, Counsel submits that the RPD's finding that the Appellant was not a credible witness in this regard was unreasonable. (Paragraphs 12, 15, 19, 21 of Reasons) [29] Paragraph 15 deals with the cumulative credibility concerns, which included the authenticity of the summons, when and how often the Appellant practiced Falun Gong, the lack of detail in describing how study sessions were conducted and taken in its totality, and lead to the RPD's conclusion that the Appellant was not a credible witness with respect to her identity as a genuine Falun Gong practitioner in China. The RAD finds, after reviewing the entire record, that the RPD based its credibility findings on evidence/inconsistencies and the RAD accords the RPD deference in this regard. [30] Paragraph 19 deals with the Appellant's activities in Canada and her knowledge of Falun Gong. The RPD found that the Appellant's knowledge, for example, the main principles, was limited, given the number of meetings she has allegedly attended both in China and in Canada. Moreover, the RAD notes that the RPD provided the Appellant repeated opportunities to state and explain the Falun Gong principles, however she was unable to do so. [31] The RAD finds that the RPD thoroughly examined all aspects of the evidence, beginning with the reason for allegedly beginning the practice of Falun Gong, her alleged activities in China, the arrest of her fellow practitioners, her alleged pursuit by the PSB, her activities in Canada, and her knowledge of the principles of Falun Gong, and, based on all the evidence, came to its conclusion. [32] In fact, the RPD states (paragraph 23 of its Reasons) that none of the evidence was considered in isolation, but rather, when taken cumulatively, there was insufficient persuasive evidence to accept the Appellant's allegations. The RAD is satisfied, after listening to the audio recording of the proceeding, that the RPD considered all of the evidence before coming to its conclusion. Falun Gong Practice in Canada: [33] The RPD accorded "little evidentiary weight" to the letter in support from a fellow FG practitioner in Canada. The Appellant submits that this was a capricious finding and, moreover, if the RPD was of the view that the letter was unreliable, it ought to have discarded it completely. The Appellant further submits that the RPD's negative assessment of the photographs tendered was unsubstantiated and capricious. (paragraphs 17, 18, 20) [34] With respect to the letter, the RAD finds that, in the absence of knowledge of the author of the letter, how long the author has been practicing Falun Gong, how much time has been spent with the Appellant, and if the individual is qualified to assess and determine if the Appellant is a genuine Falun Gong practitioner, the RPD properly assessed the weight to be assigned to this letter. [35] The RAD finds that, given the fact that the Appellant was unable to identify the location or date of the photographs, this lead the RPD to accord little weight. The RAD finds that the RPD properly considered that this corroborative evidence did not confirm the identity of the Appellant as a genuine Falun Gong practitioner. SUBMISSIONS BY THE MINISTER: [36] The alleged incidents, which led to her fleeing China, had not yet occurred at the time of either of the US visa applications. [37] In both US visa applications, the Appellant listed her spouse as XXXX XXXX, and that he was residing at the same address as her.15 She has misrepresented herself, in that she has told Canadian authorities that this relationship was an abusive one that ended in divorce, causing her to seek medical help and ultimately Falun Gong practice. [38] The Appellant has misrepresented herself with respect to her educational history/ RAD'S CONCLUSION [39] The RAD finds that the evidence of the Appellant's US visa applications, submitted b the Minister, further supports the RAD's assessment of the evidence that the Appellant did not establish that she was a Falun gong practitioner and, more importantly, that the events described, which allegedly lead to her departure, had not even occurred when she applied for both of her US visas. [40] The RAD defers to the credibility assessments of the RPD which are supported by the evidence. [41] Therefore, this appeal is dismissed. Pursuant to Subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara September 10, 2014 Date 1 Exhibits M-1, 2, 3, 4 2 Exhibits M-1-M-4 3 IRPA, Section 110(4). 4 IRPA, Section 171(a.5). 5 Exhibit M-1 6 Exhibit M-1, page 2 7 Exhibit M-1, page 2 8 Exhibits M-2 and M-3 9 Exhibit M-2, page 9 and M-3, page 13 10 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 11 Li, Guo Lin v. M.C.I. (F.C., no. IMM-5806-05), Beaudry, July 11, 2006, 2006 FC 868;.and Schopova v. Canada (M.C.I.), 2003 FC 904; Attakora v. Canada (MEI), (F.C.A.), (1989), 99 N.R. 168 (1989) F.C.J. No. 3444 12 Exhibit M-2, page 9 and M-3, page 18 13 RPD-1, National Documentation Package, China, item 9.8 14 Exhibit 6 15 Exhibit M-2, pages 11 and 12 and M-3, page 20 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04263