TB5-03101

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 : TB5-03101 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX a.k.a. XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 29, 2015 Date de la décision Panel Edward Bosveld 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 XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either find her to be a protected person or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she turned to the practice of Falun Gong in 2013 to help her cope with depression. In September of 2014, her group practice was raided by the Chinese authorities, and she went into hiding. Some days later, she traveled to Canada on her own passport and Canadian visa. On September 26, 2014, she learned that a summons had been issued for her and that she was accused of illegal Falun Gong activities. She then made a refugee claim in Canada. [4] The Appellant's application for refugee protection was heard on December 29, 2014 and January 16, 2015. By a decision dated February 27, 2015, the RPD rejected the claim. The panel cited credibility concerns with respect to the Appellant's ability to leave China on her own passport, with her evidence about her employment, medical condition, and with the summons. The RPD concluded that the Appellant is not a genuine Falun Gong practitioner and is not sought by the Chinese authorities. [5] The Appellant submits that the RPD erred by misapprehending the evidence with respect to her ability to leave China on her own passport, by engaging in a deficient analysis of her documents, by conducting an unreasonable assessment of her sur place claim, and by failing to make a finding with respect to the alleged raid on her Falun Gong group. Completeness of the RPD's Record [6] After reviewing the RPD's record, the RAD observed that the Basis of Claim (BoC) narrative therein appeared to end abruptly. The panel was concerned that a page of the narrative was missing, and instructed a RAD officer to inquire about this with the RPD. The RPD confirmed that the record, as provided to the RAD, was complete. [7] The RPD also, however, asked counsel for the Appellant to re-send the Basis of Claim document. This was sent to the RAD, and the RAD found that it did indeed contain a third page of narrative, while the RPD's record only contained two pages of that narrative. [8] The RAD then provided counsel for the Appellant an opportunity to provide "submissions with respect to the significance, if any, of the omission of this page from the RPD's record."1 Counsel for the Appellant responded that, "We have reviewed the file and confirm that the Panel had the complete narrative at the time of the hearing."2 [9] The RAD also reviewed the audio recording of the proceeding. The recording confirms that the RPD member accepted the BoC into evidence, and there is no indication in the recording that any of that document was missing or omitted.3 [10] The RAD is satisfied that the omission of the third page of the BoC narrative occurred when the RPD's record was sent to the RAD. The RAD accepts counsel's confirmation that the entire narrative was before the RPD member. ANALYSIS What is the Role of the RAD? [11] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [12] While the Appellant makes no specific submissions on the standard to be applied here, she argues that the RPD's decision was unreasonable.4 [13] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.5 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [14] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [15] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [16] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.6 [17] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [18] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [19] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [20] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [21] The Appellant argues that the RPD made various errors in rejecting her claim. [22] Departure from China: The RPD noted the Appellant's evidence that she left China via a major airport, using her own passport. The panel considered objective evidence about China's police database and exit controls, and concluded that it was unreasonable for the claimant, fearing the authorities, to attempt to leave the country using her true documents. The RPD also found that, had she been truly wanted by the authorities, she would have been stopped by officials at the airport. [23] The Appellant argues on appeal that the RPD acknowledged, but then disregarded, evidence of a lack of policing efficiency in China. She also points out that she left China on September 25, 2014, while the summons was presented on September 26, 2014, suggesting she would not yet have been in the police database at the time she exited the country, as the database is only used to track criminal suspects. [24] The RAD notes that the Appellant's own Basis of Claim (BoC) narrative states that, on September 21, when she and others were practicing Falun Gong in her friend's house, "the PSB came to arrest us."7 It was therefore not an error for the RPD to conclude that the Appellant was wanted by the authorities prior to her September 25, 2014 departure; the RAD reaches the same conclusion on the basis of the Appellant's own evidence. [25] The RPD's conclusions with respect to the Appellant's ability to leave on her own passport are findings of implausibility, which attract no deference from the RAD. [26] The RAD agrees, however, that it was odd that the Appellant left the country using her own passport. Some days earlier, according to her BoC narrative, the Public Security Bureau had come to arrest her, and she went into hiding until she left the country. In this context, her evidence that she even attempted to leave through a major airport on her true documents is not only implausible, but it also raises questions about her subjective fear. In short, her evidence is not consistent with that which could be expected from someone who was fleeing from the authorities. [27] The Appellant points out that policing standards are highly inconsistent in China, and public security officials in local areas routinely fail to follow established laws and regulations. [28] In the RAD's view, it is important to consider the areas in which the Appellant lived and where she exited the country. She resided in Jilin city, a major urban area with over a million inhabitants.8 This is not a situation where the Appellant was sought by officials in a small rural village.9 Further, she exited the country through an international airport in Beijing, where security can reasonably be expected to be thorough. [29] Objective evidence cited by the RPD indicates that the Golden Shield program has extensive tracking and control mechanisms, integrating various public security agencies and enabling them to "effectively target and neutralize political dissidents."10 Airport security officials have access to the PSB's database, which contains information about individuals sought by the authorities. One source reports that the database has been helping security organs to "ferret out political dissidents and Falun Gong practitioners for years." An activist reported that, when her passport was scanned at an airport, the scanner machine emitted an audible warning alerting airport officials that she was wanted by police.11 Evidence also indicates that both customs officials and public security officials are involved in the monitoring of departing citizens and that security is heavy.12 [30] While implausibility findings should be made only in the clearest of cases, the RAD finds that this is one such case.13 The Appellant claims that the PSB in a major city sought to arrest her several days before she left the country via a major international airport. Her departure airport was in Beijing, and there is no evidence that security at that port is less tight than at any other location. [31] While the Appellant submits that she would not have been in the database prior to the issue of the summons, this argument is not supported by objective evidence. That evidence indicates that the PoliceNet database, part of the larger Golden Shield, contains extensive information on citizens, including political leanings and various activities.14 There is no requirement that a summons be issued in order for the Appellant's information to be in the database, and no reason to think that, as a suspected participant in an illegal activity, she would have been allowed to exit the country without incident. [32] Not only is it implausible that the Appellant, allegedly fleeing from the authorities, decided to travel on her own passport, but it is also implausible that she was not detected and stopped by China's broad and sophisticated security system. [33] Supporting documents: The RPD found that the summons or subpoena provided by the Appellant was false, because it did not contain an address to which the recipient was to report, because of the Appellant's contradictory evidence about where the summons was served, and because of the Appellant's other credibility difficulties. [34] The Appellant argues on appeal that this reasoning is questionable. The summons clearly tells the recipient where to report, and further, objective evidence indicates that Chinese officials do not always comply with law and procedure. As there was no evidence before the panel to indicate that an address should be on the document, the Appellant argues that the RPD speculated and made a finding without a clear evidentiary basis. [35] The RPD noted the Appellant's inconsistent testimony about the serving of the document. In her Basis of Claim form, she wrote that the PSB went to her house and left the summons with her husband. However, the document has a different address-that of her mother-in-law-on it, an address that the Appellant left in 2011. When confronted with this apparent contradiction, the Appellant was unable to provide a reasonable explanation. Having reviewed the evidence, the RAD agrees that the inconsistency with respect to the serving of the summons does damage the Appellant's credibility. [36] There is nothing in the objective evidence to indicate that a summons or subpoena must contain a reporting address. However, in the RAD's view, this is a matter of common sense. The document purports to be a summons for the recipient to attend at the criminal court at 9:00 a.m. on September 27, 2014, the day after issue. Despite this, there is simply no information about the address to which the individual should report. The field for "Place of Report" is completed with only "2nd Criminal Division of this court".15 Not only is the address lacking from the place of report, but the court's address is not shown anywhere on the document. The RAD finds it simply implausible that the court would require the accused to attend at court, on short notice, and would provide a very specific time and day but not place an address anywhere on the document. [37] It is not just this apparent deficiency that causes the RAD to doubt the authenticity of this document, but also the Appellant's contradictory evidence about where the summons was delivered. When these concerns are considered together, the RAD agrees with the RPD that this is not a true document. [38] Sur place claim: The RPD noted that the Appellant appeared to have some knowledge of Falun Gong, but nevertheless concluded, on the basis of other credibility concerns, that she is not a genuine practitioner. The panel found that the Appellant engaged in Falun Gong activities in Canada only to bolster her refugee claim, and there was no evidence that these activities had come to the attention of the Chinese authorities. [39] The Appellant submits on appeal that the RPD had a duty to consider her practice in Canada "independently and with a clear mind instead of effectively dismissing it a priori...."16 She also points to objective evidence that the Chinese authorities do monitor Falun Gong practitioners in Canada, and argues that the RPD failed to explain why her group would not have been watched by those authorities. [40] The RPD made its credibility determination based on a number of areas of evidence: the Appellant's exit from China, the summons document, as well as credibility concerns about the Appellant's employment and medical history. Having made these determinations, the RPD concluded that the Appellant was not being truthful when she claimed to be a Falun Gong practitioner. The RAD must show deference to findings which the RPD was in an advantageous position to make. However, even if the RAD showed no deference at all here, it would reach the same conclusion as did the RPD. There were significant credibility concerns with the Appellant's evidence going to key elements of her claim. The RAD concludes, as did the RPD, that the Appellant is not a genuine Falun Gong practitioner. [41] The objective evidence cited by the Appellant indicates that the Chinese authorities do indeed seek to monitor the activities of Falun Gong practitioners in Canada. However, that in itself does not establish that the Appellant has come to the attention of those authorities. Although the objective evidence reports that Chinese officials attempt to observe, take photos of, and intimidate Falun Gong practitioners in Canada,17 the Appellant did not provide evidence that she was the subject of any such activities. [42] It was not an error for the RPD to dismiss the Appellant's sur place claim. [43] The PSB raid: The Appellant argues that the RPD made a fatal error in failing to address a key allegation in her claim: that the PSB raided her Falun Gong group in China. She submits that the RPD was required to make a clear finding with respect to this issue. [44] In fact, the RPD did address this issue. After finding that the Appellant was not a genuine practitioner of Falun Gong, the RPD continued, "The panel further finds that the claimant is not being sought for arrest in China due to her practice of Falun Gong."18 As the Appellant alleged that the PSB raided her group in an attempt to arrest her, it is obvious that the RPD did not believe that allegation. It would have been better if the RPD had made a clear finding with respect to the raid. The RAD finds it puzzling that, given the significant credibility concerns set out by the RPD, there was no finding of an overall lack of credibility. However, it was not an error for the RPD to more specifically discuss the raid, as it did conclude that the Appellant was never a true practitioner of Falun Gong and is not being sought by the authorities. [45] Further credibility findings: Finally, the RAD notes that the RPD made a number of further significant credibility findings with respect to the Appellant's contradictory evidence about her employment and her medical treatment. The Appellant does not challenge these findings upon appeal, and there is therefore no basis for the RAD's appellate intervention with respect to those conclusions.19 CONCLUSION [46] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld June 29, 2015 Date 1 Letter of June 15, 2015, to counsel. 2 Letter of June 15, 2015 from counsel. 3 RPD's Record, Audio Recording, 1:09:07, at 5:05. 4 Appellant's Record, p. 26, Memorandum, para. 58. 5 X (Re), 2015 CanLII 19235 (CA IRB). 6 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014; 2014 FC 1022, para. 55. 7 RPD's Record, p. 23, Basis of Claim Narrative. 8 RPD's Record, p. 34, IMM-5669, Question 12, Addresses; and Exhibit 3, National Documentation Package (NDP) for China (31 October 2014), Item 1.5, Map of China. 9 See RPD's Record, NDP for China (31 October 2014), Item 9.3, Response to Information Request (RIR) CHN103401.E, p. 3, which indicates that officials in smaller centres and rural areas may be less aware of procedural and legal requirements. 10 RPD's Reasons, citing NDP for China (31 October 2014), Item 10.4, RIR CHN104762.E, p. 4, para. 9. 11 RPD's Record, NDP for China (31 October 2014), Item 14.3, RIR CHN104761.E, p. 6. 12 Ibid., Item 14.3, p. 7. 13 See also Cao, Jie v. M.C.I. (F.C., no. IMM-6248-13), Noël, March 12, 2015; 2015 FC 315, para. 19. 14 RPD's Record, NDP for China (31 October 2014), Item 10.4, RIR CHN104762.E, pp. 3-4. 15 RPD's Record, p. 573. 16 Appellant's Record, Memorandum, p. 22, para. 43. 17 RPD's Record, NDP for China (31 October 2014), Item 12.31, RIR CHN104187.E, p. 1. 18 RPD's Record, p.10, Reasons and Decision, p.3, para. 17. 19 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015; 2015 FC 321, paras. 18-20; Siliya, Mohamed Yusuf U v. M.C.I. (F.C., no. IMM-5679-13), Boswell, January 23, 2015; 2015 FC 120, para. 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03101