TB9-17815

RAD File / Dossier de la SAR : TB9-17815 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision September 23, 2019 Date de la décision Panel Maryanne Kingma Tribunal Counsel for the person who is the subject of the appeal Jacqueline M Lewis Barrister & Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the Appellant) is a citizen of China who is appealing against a decision of the Refugee Protection Division (RPD) that rejected his claim for refugee protection in Canada. DECISION [2] The appeal is dismissed. OVERVIEW [3] The Appellant's claim is for religious persecution in China. He alleges that he left China with a smuggler after authorities discovered his participation in a Christian house/home church. [4] The Appellant signed his refugee claim on November 22, 2017.1 The claim was received by the IRB on December 13, 2017, heard on May 28, 2019 and rejected in a written decision dated June 14, 2019. [5] The RPD Member correctly indicated that, in order to accept the claim, the Appellant needed to establish that he meets the definition for a Convention refugee or a person in need of protection. [6] The RPD Member rejected the claim because of concerns about the Appellant's identity and credibility. [7] The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and make a positive decision on the claim, or remit the matter back to the RPD for a new hearing and redetermination. [8] I agree with the Appellant that the RPD Member erred in adjudicating the claim but find, based on my own analysis of the evidence, that the Appellant is not a Convention refugee or person in need of protection. THE ROLE OF THE RAD and NEW EVIDENCE [9] The role of the RAD is to conduct a substantive appeal on the merits and decide if the RPD decided a claim for refugee protection correctly. The RAD has authority to confirm the RPD determination, set it aside and substitute its own determination, or refer the matter back to the RPD for redetermination. [10] I have considered the applicable law and reviewed the documentary evidence that was before the RPD, have listened to the RPD hearing recording and considered the written submissions to the RPD that followed the hearing,2 as well as the arguments and the new evidence presented to the RAD, in arriving at this decision. [11] The Appellant did not initially submit new evidence for this appeal or request an oral hearing but supplemented his Appeal Record with an application to submit new evidence. That evidence is a translator's affidavit that identifies a translation error during the hearing: the interpreter incorrectly translated 'The New Testament, Recovery Edition' as 'The New Testament'. The Appellant argues that this is relevant because the RPD Member found the Appellant was not an adherent of the 'Shouter' local church based on the Appellant's lack of basic, foundational knowledge of that faith. In support of the request to admit this evidence pursuant to Rule 29(3)3 and subsection 110(4), the Appellant argues that this evidence was not available during the hearing and not known until after the Appellant's Record was due and filed. [12] The RAD is not bound by legal or technical rules of evidence and may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.4 However, it is generally anticipated that the RAD will make decisions based on the evidence that was presented to the RPD5 and not admit new evidence. Exceptions allowed by subsection 110(4) of IRPA6 are for evidence that arose after, was not reasonably available, or could not reasonably have been expected to have been presented at the time the claim was rejected. In keeping with the exceptional nature of new evidence, the jurisprudence has endorsed additional considerations of credibility, relevance and newness for assessing whether to admit new evidence.7 [13] The translator's affidavit is admissible because, although only marginally relevant, it could not reasonably have been submitted either at the time the claim was rejected or with the Appellant's Appeal Record. It appears to be credible, trustworthy and new. ANALYSIS Background of the claim [14] At the hearing, the RPD Member gave the Appellant opportunity to provide details and clarification about information in his Basis of Claim (BOC) and application documents. The Appellant's allegations and evidence are summarized, as follows:8 * The Appellant was brought up by Christian grandmother and discovered her Christian religion but she told him to keep it a secret. He became a Christian in XXXX 2017 after working on renovations at a XXXX XXXX in XXXX 2016 where he saw corpses, was troubled by nightmares and fear, and suffered exhaustion from lack of sleep. * The Appellant did not seek medical attention but found assistance from his grandmother who encouraged him to pray and introduced him to a house church that he started attending in XXXX 2017. In his BOC, the Appellant said his grandmother had stopped attending the church at age 60 and practiced her religion at home with two other women. At the hearing he said she went somewhere on Sunday afternoons, that he learned of her religion when he was a teenager, and that his grandmother introduced him to the house church leader, Mr. XXXX. There were 11 members of the church that met in two different locations. An elder from Taiwan, Mr. XXXX, attended twice a year and the Appellant met him in XXXX 2017. * In his BOC, the Appellant said that on XXXX XXXX, 2017, he and others were arrested, taken to the police station, interrogated, beaten and fined 3000 RMB, and released after one day on the condition of no further involvement in illegal religious activities. The church services were suspended and the Appellant continued to pray at home. A fellow church member, Ms. XXXX, and her friend were arrested in XXXX 2017 while preaching the gospel to friends and the Appellant was called to the police station where he denied involvement with those members or the house church. He was released and decided to leave the country for fear of further police detention or beatings. At the hearing, he stated that he obtained a copy of the Punishment document and receipt for the fine payment from his mother, first by scanned copy and later she sent the documents by mail. He had the originals at home but did not bring them to the hearing. * The Appellant found a smuggler through a cousin's friend. The smuggler provided a false Hong Kong passport and made arrangements for the Appellant's departure. They left China on XXXX XXXX, 2017, to Hong Kong and Cuba, and then travelled to an unknown island. From there they took a boat to Miami, USA, flew to Seattle and entered Canada on foot. From Vancouver, the Appellant flew to Toronto on October 7, 20179 using his own passport but he testified that the smuggler took this passport and he does not have it. He testified that he applied for and obtained that passport several years before the events with the church and the smuggler, did not keep a copy, and tried but was unable to get it back from the smuggler. * The Appellant entered Canada on October 7, 2017. He said that, after he arrived in Canada, he went to "many, many churches" trying to find one similar to his Church in China and was told about the church in Toronto that he has been attending. According to a May 16, 2019 letter from a church elder,10 the Appellant has been attending church regularly in Canada since October 29, 2017, completed a Gospel Truth Course, and was ready and eligible for baptism with a date to be determined after XXXX XXXX, 2019. At the hearing, the Appellant testified of a plan to be baptized when that was arranged by the church. He was asked about the Gospel Truth course and said he went to 2 to 3 sessions. He volunteers specific information about the church meetings, with a Bible class from 2 to 3pm, 'shouting out to God' from 3 to 4 pm and listening to organizers and others share stories and knowledge from 4 to 5 pm. * In his BOC, the Appellant indicated that he learned that Ms. XXXX and her friend are still detained and the house church has not resumed its services. The Law [15] A claimant seeking refugee protection in Canada needs to establish that they have a well-founded fear of persecution because of their race, religion, nationality, particular social group or political opinion (Convention refugee, Section 96),11 or that they are a person in need of protection because of a specific risk to life or risk of cruel and unusual treatment or punishment (subsection 97(1))12 in the country or countries of citizenship or of former habitual residence. [16] In this case, it was necessary for the Appellant to show that he personally faces a serious possibility or reasonable chance of persecution or that his life is at risk in China because he is a Christian. [17] It is not sufficient to merely point out country condition information that confirms a general possibility of religious persecution. There must be reliable evidence showing a well-founded basis for fearing that, because of his Christian faith, Chinese authorities are interested in and will persecute or harm the Appellant if he returns to China. Adjudicative framework [18] The RPD Member concluded that identity and credibility were the determinative issues in this claim. Describing credibility as an issue to be decided and determinative of a claim, as occurred in this case, is inaccurate and led to errors in adjudication. Claim adjudication involves weighing evidence, whether documentary or oral, based on its probative value (i.e. relevance to the issues) and its reliability (i.e. trustworthiness and credibility). The issues to be decided are identity, country of citizenship, possible exclusions, and those elements that define a Convention refugee or person in need of protection. Credibility is best understood as a component of weighing evidence, not an independent issue that will determine a claim.13 All of the evidence available to the adjudicator, including a claimant's testimony, documentary evidence and country information, must be evaluated to determine if it is sufficient to prove the elements that define a Convention refugee or person in need of protection. This Appellant's evidence is not presumed to be true [19] A claimant's evidence is presumed to be true unless there is a valid reason to doubt it. In this case, there are reasons to doubt the Appellant's evidence because it was at times illogical or vague, internally inconsistent, and because there are inconsistencies between information in his BOC, his visa application, and what he testified at the RPD hearing. Specific examples are included in the analysis that follows. Identity and country of citizenship are established [20] The Appellant's identity is established on a balance of probabilities. The RPD Member blended findings about the Appellant's religious profile with those of identity and thus incorrectly assessed evidence that reasonably established the Appellant's identity on a balance of probabilities. I agree that there are significant concerns about the credibility of some of the Appellant's documents and evidence related to a religious profile in China. However, there is sufficient reliable and trustworthy identity evidence to establish, on a balance of probabilities, that the Appellant is Chinese national XXXX XXXX born in Changle City on XXXX XXXX 1989. [21] The Appellant's birthdate and name are consistent on the Hukou and Registered Identity Card. Originals were available for examination at the hearing but the RPD Member questioned the documents because of country information indicating that these are susceptible to fraud and manipulation. The RPD Member incorrectly relied on that general fact to conclude that those documents could have little weight in corroborating the Appellant's residency in China at the material time. There are two errors in that finding: first, it mingles the evidence of identity with unsupported questions about residency in China at the material time. Secondly, it overlooks or fails to evaluate and properly weigh the totality of the evidence about this Appellant's identity. [22] The Appellant testified that he left China on XXXX XXXX, 2017 and arrived in Canada on October 7, 2017 after traveling through Hong Kong, Cuba, and the USA. The RPD Member's analysis of identity blended concerns about the Appellant's account of his travel with indirect speculation that the Appellant may have another nationality or place of residence. For example, the RPD Member accepted that the Appellant is ethnically Chinese and speaks the Fuzhou dialect but pointed out that this does not preclude him from having another nationality.14 The RPD Member implicitly supported that suggestion by referring to the unexplained fact that the Resident Identity Card (RIC) was mailed in an envelope from Taiwan from a person named XXXX XXXX, and not directly from the Appellant's mother as the Appellant testified. The Appellant could not explain the envelope or Taiwan origins and I agree that this raises doubt about whether the RIC came from the Appellant's mother as the Appellant testified. There is evidence that the Appellant used a smuggler to leave China and his testimony was that he lacked knowledge of what, in particular, the smuggler did to facilitate the exit from China and what documents were used or generated by the smuggler. That lack of specific knowledge is logical to an extent because the point of using a smuggler is the smuggler's specialized knowledge and ability to manipulate processes to facilitate exit from China. However, the originals of the Hukou and the RIC were available at the hearing for evaluation by the RPD Member but not examined for indications of inauthenticity. [23] The RPD Member also questioned the appellant's identity and residence upon finding that the Appellant's explanation for not having his own passport was not reasonable. I agree that there are credibility concerns in the Appellant's evidence about why he did not provide a passport but find that the totality of the available evidence indicates, on a balance of probabilities, that the Appellant is the person named in all of his documents. It is speculative to find that his failure to present an original passport means he is not the person indicated in all of the available documents including a Hukou and RIC. [24] The RPD Member also suspected, vaguely, that the Appellant might have residence in a country other than China. As indicated, there is an envelope that has a return address from Taiwan and the Appellant's evidence that he travelled out of Hong Kong and to Cuba using a false passport. The Appellant then traveled through the United States of America (USA) before arriving in Canada on foot. From the available evidence, including the relatively brief time frame to complete the travel between China and Canada, and a lack of other evidence to suggest the Appellant has resided elsewhere, it is speculative to suggest that he may have resided in a country other than China or has an identity other than what is on all of the documents before me. The Appellant does not have a religious profile of concern to authorities in China [25] The evidence fails to establish on a balance of probabilities that the Appellant has a religious profile of interest to the authorities in China. [26] The RPD Member analyzed the evidence about the Appellant's travel history in detail and concluded that it caused serious concerns in relation to the Appellant's identity, which was discussed above, and to his overall credibility. The RPD Member's credibility analysis contains material errors, for reasons reflected and subsumed in my independent analysis of the claim. [27] The Appellant has failed to show that the elements defining Convention refugee or a person in need of protection were established in this case. In particular, he did not establish that, on a balance of probabilities, there is a well-founded basis for fearing that because of his Christian faith the Chinese authorities are interested in and will persecute or harm the Appellant if he returns to China. A Christian profile in China is at the heart of the Appellant's claim and I find that such a profile is not established on a balance of probabilities taking into consideration all of the evidence before me. [28] Evidence about how one is introduced to Christianity, the logical progression of faith formation and development, participation in religious activities including church, and consequences of religion in the person's life, are relevant considerations when assessing if an alleged religious profile is genuine. [29] By his own testimony, the Appellant's conversion to Christianity and participation in a home church in China were pivotal life-altering events that relieved psychological distress he suffered from working at the XXXX XXXX. He alleges that his involvement in the home church led to detention and beating by PSB authorities, which in turn motivated him to pay a substantial sum to a smuggler to help him flee the country and claim asylum in Canada. [30] The Appellant suggested in his BOC that his grandmother had some influence in his conversion to Christianity and, in particular, that she taught him to pray and introduced him to a home church. Even allowing for the vagaries of memory, his evidence about his grandmother's Christianity as a factor in developing his own faith lacked credibility. [31] When asked for details, he was unclear about the timing of her influence and how he became connected to the house church through her. The Appellant gave inconsistent details and chronology of how or when his grandmother aided his conversion, including contradicting himself about whether she taught him to pray when he was younger, his knowledge of her own religious practice, and her involvement in referring him to a home church. He stated in his BOC that she influenced him when he was young, teaching him about the Ten Commandments and prayer. He said he knew that she was a Christian but he gave vague or confusing testimony about her religious practice. For example, in his BOC he states that she quit attending church when she was 60 and met with two other women after that, but at the hearing said that she went out on Sunday afternoons and that she introduced him to a church leader. [32] The Appellant's evidence was, on the whole, vague and somewhat contradictory about what he knew of his grandmother's beliefs, which is notable given the significance of a Christian conversion, her alleged contribution to that conversion, and the opportunity to share one's faith with a trusted family member. For example, the Appellant said his grandmother helped him pray and learn to be a good person based on the Ten Commandments but was contradictory and vague as to whether she prayed with him when he was younger or even after the XXXX XXXX trauma of XXXX 2016, which he alleges is what motivated him to the faith. The Appellant was unclear about whether his grandmother prayed with him in February 2017 or before that. [33] The Appellant's evidence about his connection to a house church in China was also unreasonably vague given the pivotal nature and illegality of that association. He said his grandmother led him to a church but his testimony about how and when she did so was unclear, and his evidence about attending church the first time evolved from going on his own to being accompanied by the leader introduced through his grandmother. On a balance of probabilities, his evolving evidence about attending the church for the first time was manufactured as the RPD Member asked about it. [34] It is relevant and of assistance to assess evidence of religious activities and faith formation by enquiring about an Appellant's knowledge of Christianity, to determine if that knowledge is the result of personal and sincere belief as distinguished from what anyone could learn for any purpose, including to support a refugee claim for religious persecution. The sincerity of a person's belief and practices is objectively valid and probative but this type of enquiry requires a cautious approach because of its personal and subjective nature. Such enquiry is, in my view, susceptible to the slippery and often short slope between exploring a person's sincere beliefs and unreasonably expecting sound articulation of a religious theology. The RPD Member in this case maintained reasonable confines for this enquiry and correctly found that the Appellant's evidence did not establish sufficient knowledge of the basic characteristics of the local church in China or his profile as an adherent of the 'Shouter's' church to show sincere or personal belief. [35] The Appellant indicated some basic understanding of Christian concepts such as believing in God and experiencing comfort from prayer after the emotional distress of seeing corpses in the funeral home. He offered some generic information about God's love and the death and resurrection of God's son. He talked about attending the home church where people shouted to God for comfort and gave the name of the house church leader. However, his evidence about any relationship between his house church and the Canadian church was weak. Most notably, he was uncertain about the significance of 'shouting', which is a term that was used throughout the documents and the hearing in reference to the Appellant's church. Most important and relevant to the issue in this case is that the Appellant was asked about but could not logically explain the difference between a sanctioned church in China and one that was illegal and why he did not or could not attend a state sanctioned Christian church. The new evidence about how his reference to the Bible was translated adds some specificity to the Appellant's evidence but does not overcome the overall deficiencies in describing the attachment to and significance of the 'Shouters' denomination. That is an important feature because of the allegation, including in the receipt document, that the 'shouter' feature underlies the perceived evil cult that motivated authorities to detain and warn him. [36] The Appellant's questionable understanding of religious conviction is also undermined by his evidence about being detained for illegal religious activities in XXXX 2017 and called to report to the PSB in XXXX and again in XXXX. That evidence is not credible on a balance of probabilities. The Appellant did not demonstrate understanding of a distinguishing feature of the 'shouting' reference to his particular church, nor did he reasonably explain how that was different from state sanctioned churches. He was not able to reasonably explain why his personal faith and belief were such as to risk association with that particular but illegal sect of Christianity and the resulting detention. [37] The documents offered in support of the alleged detention entitled Administrative Punishment Decision15 and a receipt for payment of 3000 rmb are, more likely than not, inauthentic and not reflecting real events. The receipt refers to the Appellant being involved in 'illegal evil cut [sic] - shouters organization'16 but that is not supported by credible testimony from the Appellant about being part of a Shouters Church brand or denomination of Christianity. The Appellant was notably sparse in details and gave insufficient evidence to establish his personal association with that specific brand of Christianity. The Church he has been attending in Canada specifically states that it is not part of or associated with the "Shouters Church''' sect of China17 and the Appellant seemed unaware of how this was or was not significant. When asked what church he would attend if he went back to China, he suggested only that his church was illegal and referred to the warnings not to attend but provided little of substance as to why his faith or belief would require him to seek out an illegal church of the 'Shouter' sect. The RPD Member asked if the Appellant would attend a 'patriotic', i.e. state sanctioned, church and the Appellant expressed vague fear and then said that his mother told him the PSB had looked for him. This evidence was volunteered near the end of the RPD hearing and did not respond to the questions about why he could not attend a state-sanctioned church. The Appellant offered that his mother has had a couple of phone calls from the PSB asking about the Appellant and did not tell them he was out of the country. He could not reasonably explain why that information was not included in his BOC other than to say he did not think of it. On a balance of probabilities that evidence was most likely manufactured in the moment. [38] Another reason to doubt the authenticity of the Administrative Punishment Decision and receipt documents is because the source of those documents is uncertain. The Appellant testified vaguely that they were mailed to him from China and that he had the originals at home but he did not bring them to the hearing. He was asked why not and said he did not know he should bring them but that is inconsistent with knowing to bring originals of his RIC and Houkou documents. He said his mother sent him copies of the Administrative Punishment Decision and receipt documents 'not long ago' and then sent originals but offered nothing as to where or how she obtained them. [39] Overall, the Appellant's evidence failed to meet the onus of being sufficient to demonstrate that he holds a Christian faith or belief that places him at risk. Nor could he reasonably explain why, if he does, his faith is such that he cannot practice it by attending a state-sanctioned church In China. [40] The RPD Member asked about a handwritten reference in the application documents referring to monthly reporting to the PSB that the Appellant could not explain and argued was incorrect, which is possible on a balance of probabilities. 18 That notation is not material to my findings and is, more likely than not, a notation made by the interviewing officer that did not correctly capture the Appellant's information, which is that he had to report when called and did so in XXXX and XXXX. [41] In summary, I find that the appellant has not established that before leaving China he had a religious profile of interest to the authorities in China. Sur place claim [42] The Appellant argued, and I agree, that it was an error for the RPD Member not to consider if the Appellant has a sur place claim. However, I find that the evidence does not establish that the Appellant's religious affiliation and activities in Canada have or will come to the attention of the Chinese authorities and place him at risk if he returns. The Appellant's evidence about practicing Christianity in an illegal church in China was not credible. He has provided some independent documentary evidence of church affiliation in Canada but did not establish that this affiliation and his faith is not consistent with attendance at a state-sanctioned church in China if he should choose to continue with his religious practice there. He was asked why his religion is important to him and said it changed his life because he made a lot of friends and learned a lot. He suggested that in Canada he searched for a similar church but identified the similarities in terms of 'shouting' what is in the heart. He added that it was also being able to spread the gospel, which was the first mention of a motivation to do so. In any event, his description of activities in Canada related to the church was relatively generic and not sufficient to distinguish himself in relation to the Shouters Church sect or show how he will come to the attention of Chinese authorities. CONCLUSION [43] The RAD dismisses the appeal and, for different reasons, confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Maryanne Kingma" Maryanne Kingma September 23, 2019 Date 1 Exhibit RPD-1 RPDR p. 25. 2 Exhibit RPD 1 RPDR pp. 155-163. 3IRPA 29 (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. 4 171 Proceedings - In the case of a proceeding of the Refugee Appeal Division, (a.2) the Division is not bound by any legal or technical rules of evidence; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; ... 5 110(3) Procedure - Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a Panel of three Members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 6 Subsection 110(4) of IRPA. 110(4) Evidence that may be presented - On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 7 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 8 Exhibit RPD 1 RPDR pp. 16-17. 9 Exhibit RPD-1 RPDR pg 151. 10 Exhibit RPD-1 RPDR p. 141. 11 Immigration and Refugee Protection Act (S.C. 2001, c. 27) section 96. 12 Immigration and Refugee Protection Act (S.C. 2001, c. 27) section 97. 13 This understanding of the term 'credibility' is not inconsistent with IRPA subsection 107(2), which creates the issue of whether there is a 'credible basis' for the claim. The focus of that provision is on the assessment of evidence: it requires the adjducator to consider and state in the reasons if 'there was no credible or trustworthy evidence on which it could have made a favourable decision'. Similarly, in Section 107.1, which creates an issue of whether the claim is manifestly unfounded, crediblity is a component of asessing the evidence to reach a finding that 'the claim is clearly fraudulent'. 14 Exhibit RPD-1 RPD p 12 item 58. 15 Exhibit RPD 1 RPDR p. 119. 16 Exhibit RPD-1 RPDR p. 137. 17 Exhibit RPD-1 RPDR p. 121. 18 Exhibit RPD-1 RPDR p. 36. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-17815 RAD.25.02 (April 04, 2019) Disponible en français 15 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.25.02 (April 04, 2019) Disponible en français