TB5-05692

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 : TB5-05692 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 March 15, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lacqueline M. Lewis 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, a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and find him a Convention refugee. In the alternative, the Appellant asks the RAD to refer the matter back to the RPD for re-determination. [3] The Appellant is not relying on any evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA), and is not requesting that a hearing be held at the RAD under subsection 110(6) of the IRPA. The Minister of Citizenship and Immigration Canada (the Minister) is not intervening in this Appeal. DETERMINATION [4] Pursuant to subsection 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for redetermination. The appeal is allowed. BACKGROUND/ALLEGATIONS [5] The Appellant alleged before the RPD that he was diagnosed with XXXX XXXX. He sought medical help from western and traditional Chinese doctors, tried massage and acupuncture and moxibustion, but nothing helped him. On XXXX XXXX, 2014, the Appellant's friend XXXX XXXX came to visit him. He used to have very serious XXXX XXXX. XXXX XXXX looked very energetic and healthy; through their conversation, the Appellant found out that Falun Gong practice improved her health condition. XXXX XXXX told the Appellant to keep their conversation secret. XXXX XXXX told the Appellant that she had been practicing Falun Gong for months, and that he should try Falun Gong. XXXX XXXX suggested that the Appellant could try Falun Gong at home. XXXX XXXX taught the Appellant some Falun Gong exercises, and explained the principles of "Truthfulness, Compassion and Forbearance". [6] The Appellant started to practice Falun Gong at home. After practicing for about three months, he felt that his pain had improved. The Appellant told XXXX XXXX about the improvement in his pain, and XXXX XXXX suggested the Appellant join the group practice as he would gain more positive energy and thus his condition would improve faster. In XXXX 2014, the Appellant attended the Falun Gong group practice, and felt further improvement in his condition. [7] On XXXX XXXX, 2014, the Appellant received a call from his friend XXXX XXXX; she told him that their practice group was raided by the Public Service Bureau (PSB). XXXX XXXX told the Appellant to go into hiding. The Appellant did not attend the practice that day because he had taken his father to the hospital. The Appellant told his wife about the incident who told him to hide immediately. The Appellant took a taxi to his aunt's house. He told his aunt about his situation, she agreed to let the Appellant stay at her place. [8] Next day, on XXXX XXXX, 2014, the Appellant got a message from his wife that the PSB had gone to their house and accused the Appellant of being involved in illegal Falun Gong activity. They searched their home and confiscated the Appellant's notes. The PSB also threatened the family not to hide the Appellant and to let them know if they were to receive any messages from the Appellant. The Appellant alleged that on XXXX XXXX XXXX 2014, the PSB went to their house again and left a summons for the Appellant with his wife. [9] Out of fear of arrest and detention by the Chinese authorities, the Appellant arranged for a smuggler who assisted him to come to Canada. On XXXX XXXX XXXX 2014, the Appellant entered Canada from the U.S., travelling through a park near Vancouver. The Appellant filed his claim for Refugee protection at an inland office of the Citizenship and Immigration Canada (CIC). The Appellant continues to practice Falun Gong in Canada. [10] The Appellant's application for refugee protection was heard on March 24, 2015 and March 30, 2015. In a decision on May 19, 2015, the RPD rejected the claim finding that the Appellant was not a credible witness, and determined that he was not a genuine Falun Gong practitioner. [11] The Appellant submits that the RPD erred in its credibility findings, and in its assessment of the Appellant's summons, and in its finding of a lack of subjective fear due to the Appellant's failure to file an asylum claim in the U.S. ROLE OF THE RAD [12] The Canadian jurisprudence 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 the RPD, a first-level administrative tribunal. [13] In the Federal Court decision in Huruglica,2 Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per subsection 111(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusions; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [14] Accordingly, the RAD will conduct its own assessment of the RPD 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. ANALYSIS OF THE MERITS OF THE APPEAL RPD's findings [15] Due to material inconsistencies and contradictions in the Appellant's written documentation and his testimony, the RPD found that the Appellant was not a genuine Falun Gong practitioner in China, he was not being pursued by the PSB, he is not a genuine Falun Gong practitioner in Canada, and that he would not be a Falun Gong practitioner or perceived to be a Falun Gong practitioner by the authorities upon return to China.3 [16] The RAD considered the totality of the evidence in this case to arrive at its determination. The RAD considered the Appellant's arguments, and the case law that he referred to in and submitted with the appeal.4 [17] The RAD's analysis follows. The Appellant's introduction to Falun Gong practice in China [18] Based on inconsistencies between the Appellant's narrative and testimony relating to when he was introduced and who introduced him to Falun Gong in China, the RPD found that, on a balance of probabilities, the Appellant was not introduced to Falun Gong in China.5 [19] In reviewing the evidence in this case, including the Appellant's testimony at the RPD, and RAD concurs with the RPD in that the Appellant provided evidence at the hearing that was inconsistent with the content in his Basis of Claim (BoC) form narrative in reference to the months mentioned. The RAD, however, finds the Appellant wrote in his narrative that he was introduced to Falun Gong by his friend during the Chinese Spring Festival. The RAD finds the Chinese New Year starts the Chinese Spring Festival which lasts for about two weeks. In 2014 the Chinese New Year fell on January 31, and the Spring Festival Week started from February 1 onwards. In consideration of the above in the context of the totality of the evidence submitted/adduced at the RPD, the RAD finds the Appellant did not provide inconsistent evidence in this regard. In this respect, the RAD does not concur with the RPD. [20] The RPD also found that the Appellant provided inconsistent evidence relating to gender of the person who introduced him to Falun Gong in China. The RAD finds the Appellant testified at the hearing that a male introduced him to Falun Gong in China; however, the testimony also shows that he corrected himself and stated that he was too nervous and thus he made a mistake. He maintained that he was introduced to Falun Gong in China by a female. The RPD did not accept the Appellant's explanation for the inconsistency, stating that It is reasonable to expect the claimant's testimony to be consistent with his BOC and to know the gender of the person who introduced him to Falun Gong.6 [21] The RAD agrees with the RPD's above-mentioned general statement per se. The RAD, however, does not concur with the RPD in making a negative credibility finding in this regard without giving clear explanation as to why the RPD did not find the Appellant's explanation for this inconsistency acceptable. [22] Relating to when the Appellant was introduced to Falun Gong and by whom, the RPD made the following finding: Based on the difference in the date and the gender of the person who introduced him to Falun Gong, the panel concludes on a balance of probabilities that the claimant was never introduced to Falun Gong.7 [23] Based on the reasons provided above, the RAD does not concur with the RPD's negative credibility findings relating to when the Appellant was introduced to Falun Gong in China and by whom. The RAD finds the RPD's analysis to be microscopic in nature. The RAD finds the RPD did not assess the inconsistencies in the context of the totality of the evidence submitted/adduced at the RPD. Moreover, the RAD finds the RPD did not provide clear explanation as to why it did not find the Appellant's explanation, for the inconsistency relating to the gender of the person who introduced him to Falun Gong, acceptable. Time in hiding [24] The RPD found the Appellant provided inconsistent evidence relating to where he was hiding prior to coming to Canada, and how long he had been in hiding in China. Therefore, the RPD determined on a balance of probabilities that the Appellant was not in hiding.8 [25] Regarding where the Appellant was hiding, the RAD finds the Appellant reported in his Schedule A (IMM 5669)9 form that he was hiding in XXXX XXXX XXXX Village South; he, however, provided name of a different village during his testimony. The RPD asked him to explain the discrepancy in his evidence. The Appellant testified that both villages come under the same administration, and that at the time he completed his 'Schedule A' form he was not aware of this fact. The RPD did not find his explanation satisfactory. The RAD is aware that the Appellant provided no corroborative document showing that both villages were under one and the same administration; nonetheless, the RAD finds the RPD did not provided clear reasons as to why the Appellant's explanation was not satisfactory. Therefore, in the absence of evidence to the contrary, the RAD does not concur with the RPD. [26] The RPD also asked the Appellant to explain another discrepancy in his evidence; i.e., on the Schedule A form (IMM 5669),10 the Appellant listed that he lived at home until XXXX 2014, thus showing that he was in hiding for only about two months, not for four months as alleged. The Appellant also stated in his Schedule A form (IMM 5669) that he worked as a chef in a restaurant until XXXX 2014 in XXXX XXXX City, which is in contradiction with his evidence that he never left his hiding place up until he travelled to the U.S. embassy to obtain his visa. In reviewing the testimony, the RAD finds the Appellant was unable to provide explanation for these discrepancies. The discrepancy in his evidence remained unresolved. Therefore, the RPD concluded: The panel determines on a balance of probabilities that the claimant was not hiding.11 [27] In this respect, the RAD affords deference to the RPD, and finds that the inconsistencies relating to how long the Appellant was in hiding distract from his credibility. Engaging the smuggler to flee China and in order to come to Canada [28] The Appellant alleged that he arranged for a smuggler who would assist him to flee China and come to Canada. The RPD found discrepancy in his evidence regarding exactly when the smuggler was engaged. The Appellant wrote in his narrative that the smuggler was arranged after the raid, sometime in XXXX 2014. At the hearing, the RAD finds he provided inconsistent and somewhat confusing evidence because it is noted that at the hearing the Appellant provided a timeframe prior to the PSB raid. The RAD finds it is unclear whether this was just a mix-up or a genuine inconsistency because the Appellant wrapped up by saying that after the second visit he had to leave China. [29] Regardless, in respect to the above, the RAD agrees with the RPD in drawing a negative inference because of a clear, on a balance of probabilities, inconsistency in the evidence that the Appellant was unable to address adequately. The inconsistency remained unresolved. [30] The RPD also identified yet another discrepancy; the Appellant testified at the first sitting that the smuggler took his passport and told him that since he had brought him to Canada, the passport was of no use to him any longer. At the second sitting, the Appellant testified that he owed the smuggler money and that was why the smuggler did not return his passport to him. In reviewing the testimony at the RPD, the RAD is unclear as to whether these were two reasons that the smuggler gave the Appellant for not returning his passport or whether it was an inconsistency in the Appellant's evidence as the RPD professed. Due to the confusion in this regard, the RAD is unable to find the RPD in error. The RAD is of the opinion that this needs to be clarified by asking the Appellant further questions. [31] Due to the cumulative nature of the RPD's findings, some elements of which are untenable, the RAD does not concur with the RPD regarding the following finding: Based on the determinations that the claimant was not introduced to Falun Gong in China and that he was not in hiding, and given the inconsistencies with respect to the chronology of the events and regarding the passport, the panel finds on a balance of probabilities that the claimant never obtained the services of a smuggler to help him leave China.12 Summons [32] The Appellant provided a summons, issued by the PSB, dated XXXX XXXX, 2014. The summons was delivered to the Appellant's home. The RPD gave the summons no evidentiary weight. [33] The RPD's reasons were: In the context of the totality of the evidence available to the panel, as well as in the context of the cumulative findings and negative inferences noted above, together with the documentary evidence which highlights that fraudulent documentation from China is easily obtainable, the panel is not persuaded that the summons is a genuine document and gives it no evidentiary weight. The panel further finds that submitting a false document may have an impact on the weight assigned to other documents provided by the claimant and on the overall credibility of a claimant.13 [citation omitted] [34] In respect to this, the Appellant referred to several Court cases, and argues the following: It is submitted that, where supporting documentary evidence is submitted, which appears to be genuine on its face, it cannot be discounted solely because it contradicts the RPD's previous findings about the Appellant's credibility. Such reasoning is inherently circular. It concluded that it has already found the Appellant to be lacking in credibility, and that no amount of corroborating documentation is sufficient because they do not conform to the RPD's ultimate disposition on credibility. This sort of reasoning displays an arbitrary and closed mind to the Appellant's evidence, and it cannot be said that the RPD has truly considered the entirety of the evidence before it.14 [35] In this respect, the RAD agrees with the Appellant. It was incumbent on the RPD to provide meaningful analysis and clear reasons as to why it preferred the documentary evidence in dismissing the summons document submitted. The summons is core to the Appellant's claim. The RAD finds the RPD erred by not appropriately assessing the summons. [36] Moreover, due to the progressively cumulative nature of the RPD's findings, some elements of which are untenable as discussed in the reasons provided above, the RAD does not concur with the RPD regarding the above finding as well. Falun Gong practice in Canada - Sur place [37] The Appellant alleged that he continues to practice Falun Gong in Canada. He provided a letter of support from a fellow Falun Gong practitioner,15 and submitted several photographs16 that show the Appellant practising Falun Gong exercises in a park with other practitioners. [38] In assessing these documents, the RPD writes: While these disclosures can attest to the claimant's participation in Falun Gong activities, they cannot attest to the claimant's motivation in joining Falun Gong activities in Canada and do not speak to the genuineness of the claimant's convictions, particularly given the panel's credibility concerns identified throughout these reasons. The panel therefore gives these disclosures little evidentiary weight. The panel determines that the claimant is not a genuine Falun Gong practitioner.17 [39] Following the above, the RPD provides another cumulative credibility finding: Having found the claimant's story of persecution by the PSB because of his Falun Gong activities in China not to be credible, the panel has no reason to believe that he is now a genuine Falun Gong practitioner. Having found that the claimant is not a genuine Falun Gong practitioner, the panel further finds that the claimant would not practice Falun Gong upon his return to China.18 [40] As stated earlier, due to the progressively cumulative nature of the RPD's findings, some elements of which are untenable, the RAD does not concur with the RPD regarding the above finding as well. Failure to claim in the U.S. [41] The RPD found that the Appellant's failure to file a claim in the U.S. is indicative of a lack of subjective fear. In this respect the RAD agrees with the Appellant in that he was simply transiting through the U.S. on his way to Canada. The record shows that the Appellant was in the U.S. for a day. Therefore, the RAD does not concur with the RPD's finding that his failure to file a claim in the U.S. is indicative of a lack of subjective fear.Based on all of the foregoing reasons, the RAD determines the RPD erred in its credibility findings and in assessing the totality of the evidence submitted/adduced at the RPD, including the Appellant's personal documents, particularly the summons document which is central to the claim. Based on the totality of the evidence in this case, the RAD finds there is insufficient evidence on the record to support the RPD's credibility findings. The RAD finds the RPD's findings are untenable, and thus the RPD decision cannot stand. [42] The RAD does not confirm the RPD's determination that the Appellant has not satisfied the burden of establishing a serious possibility that he would be persecuted, or, that he would, on a balance of probabilities, be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment or a danger of torture should he return to China. [43] The Appellant asks the RAD to set aside the decision of the RPD and find him a Convention refugee. In the alternative, the Appellant asks the RAD to refer the matter back to the RPD for re-determination. [44] The RAD cannot confirm the RPD's determination. The RAD also cannot substitute its own determination because the RAD will have to hear the whole claim, which the RAD cannot do pursuant to subsections 110(3), (4), and (6) of the IRPA. The Appellant's credibility needs to be assessed in the context of the totality of the evidence submitted/adduced in this case. The RAD refers the matter back to the RPD for redetermination. DISPOSITION [45] Pursuant to subsection 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for redetermination before a differently-constituted panel. [46] Accordingly, this appeal is allowed. (signed) "S.S. Kular" S.S. Kular March 15, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 9, p. 5. 4 Exhibit P-2, Appellant's Record. Item 4, Legal Authorities pp. 77-78; and Item 5, Memorandum of Law and Argument, pp. 80-91. 5 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 10, p. 5. 6 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 10, p. 5. 7 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 10, p. 5. 8 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 11, p. 6. 9 Exhibit RPD-1, RPD's record, RPD Exhibit 1, p. 27. 10 Exhibit RPD-1, RPD's record, RPD Exhibit 1, p. 27. 11 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 11, p. 6. 12 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 14, p. 7 13 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 16, p. 8. 14 Exhibit P-2, Appellant's Record. Item 5, Memorandum of Law and Argument, para. 18, p. 84. 15 Exhibit RPD-1, RPD's Record, RPD Exhibit 5, p. 529-530. 16 Exhibit RPD-1, RPD's Record, RPD Exhibits 5 and 6, pp. 561-569. 17 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 19, pp. 9-10. 18 Exhibit P-2, Appellant's Record. Item 1, Notice of Decision and Written Reasons, at para. 20, pp. 10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05692