TB6-01628

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 : TB6-01628 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 April 25, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Stacey Margaret Duong 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. The Appellant has not submitted new evidence in support of her claim and she has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that the Appellant is a Convention refugee or a person in need of protection. Alternatively, the Appellant requests that the matter be remitted to the RPD for reconsideration by a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and remits the matter to the RPD for reconsideration by a differently constituted panel. BACKGROUND [3] The Appellant alleged in her Basis of Claim (BOC) form that she began practising Falun Gong in China in XXXX 2014, after a classmate introduced her. She was suffering from menstrual cramps, and Western and Chinese medicine did not help. The Appellant attended four group sessions in China before being visited by a local committee official in XXXX 2015. She was warned to stop practising or the matter would be brought to the attention of the Public Security Bureau (PSB). [4] The Appellant fled to a cousin's house and remained there until she left China for Canada on XXXX XXXX, 2015. She travelled to the United States with the help of a smuggler and crossed illegally into Canada. She arrived in Toronto on August 23, 2015. In Toronto, she reads Falun Gong literature and practices in XXXX XXXX. The Issues [5] The panel indicated that the determinative issue in this claim is credibility. [6] The Appellant submits that the issues in this appeal are the following: (a) whether the panel failed to notify the Appellant of the case to be met; (b) whether the panel erred in dismissing the Appellant's evidence concerning the disposal of her first medical booklet; (c) whether the panel erred in relying on the absence of evidence to draw a negative inference; (d) whether the panel erred in engaging in what the Courts have described as Catch-22 reasoning; (e) whether the panel erred by misrepresenting its own questions concerning the principle of compassion; (f) Whether the panel erred in finding the Appellant failed to apply the three principles of Falun Gong; and (g) whether the panel erred by drawing a negative inference from the fact that the Appellant had been denied a study visa in 2010, without any information as to the application. THE ROLE OF THE RAD [7] 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. [8] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [9] In this regard, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [10] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is a "palpable and overriding error". [11] A recent decision of the Federal Court of Appeal2 has confirmed the central elements of Huruglica. The Court held that the RAD should use the correctness standard with respect to questions of fact, law and mixed fact and law. The RAD is to intervene when the RPD is wrong in fact, law and mixed fact and law. The Court further stated that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact and mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. The Court stated as well that an appeal to the RAD is not a true de novo proceeding. It does not start anew, and the original decision is not ignored in all respects. [12] The RAD will review all of the evidence in the RPD's record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Motivation for practising Falun Gong and the medical booklets [13] The panel noted that the Appellant stated she suffered from menstrual cramps, and medical attention did not help. The panel noted that the first entry in her medical booklet is dated XXXX XXXX, 2013, which relates to a cough and fever. The panel further noted that there is no mention of menstrual pain until XXXX XXXX XXXX 2014, despite the fact that the Appellant gave evidence that the pain started in XXXX 2012. The panel noted that the booklet records eight visits regarding menstrual pain through XXXX 2014, when the Appellant stated she began Falun Gong practice. The Appellant was asked if she had an earlier medical booklet, and she testified that she threw it out because humidity made it unusable and she obtained another one. [14] The panel found this evidence unbelievable as the Appellant's evidence was inconsistent with her documentary evidence. The panel further found the Appellant's explanation for not providing the documentary evidence which would have corroborated the chronology indicated in her testimony was unreasonable. The panel noted in this regard that the Appellant's documentary evidence as to her pain which resulted in her engaging in Falun Gong practice was inconsistent with her testimony that the pain began in XXXX 2012. The panel noted that the medical booklet that was disclosed does not mention this pain until XXXX 2014. The panel found that the Appellant's explanation was insufficiently forthright or fulsome. The panel noted that the booklet was an important document that should have been retained over one's lifetime, even if damaged, and it was not believable that it was just thrown out. The panel drew a negative inference with respect to the Appellant's motivation for practising Falun Gong. In this regard, the panel noted that the medical booklet that was disclosed does not mention menstrual pain until more than one year after the Appellant had testified she began suffering pain. [15] The Appellant submits she began suffering from painful menstrual cramps in late XXXX 2012, and she sought medical treatment in XXXX 2013. The Appellant notes she provided a medical booklet in which the first entry is dated XXXX 2013, and the first entry related to her menstrual pain is dated XXXX 2014. The Appellant further notes the panel drew a negative inference with respect to her motive for joining Falun Gong because her documentary evidence only corroborated her health condition from XXXX 2014 although she developed this problem in XXXX 2012. The panel rejected her evidence that she had thrown out an earlier medical booklet. [16] The Appellant noted as well that the panel rejected her explanation for throwing out the booklet because she failed to acknowledge the importance of the booklet in China. The Appellant submits that the panel erred in dismissing her evidence on the basis of an irrelevant point. The Appellant further submits her failure to acknowledge the importance of the booklet is of no relevance to whether she actually disposed of the booklet. The Appellant submits as well the panel erred in rejecting her evidence on the basis of pure speculation regarding the importance of old medical booklets, and argues the Appellant was under no obligation to retain this document. [17] The Appellant submits that the panel made no finding as to the medical booklet that was tendered in support of her evidence concerning her menstrual pain. Rather, the panel relied on the absence of evidence even though there was supporting documentation and a reasonable explanation for the lack of an earlier medical booklet. [18] The RAD has reviewed all of the evidence in the record, including the CD recording of the hearing. The RAD notes the panel's finding was not only based on the Appellant's inability to disclose her first medical booklet. It was also based on the new medical booklet which indicates that the Appellant has had this booklet at least from XXXX 2013, but there is no reference to a medical visit concerning menstrual pain until XXXX 2014, approximately a year and a half after the Appellant indicated her health problem developed. [19] The RAD finds that the questionable medical documentation raises a doubt concerning the Appellant's motivation for practising Falun Gong and further finds that the panel did not err in its finding in this regard. Motivation for Practising Falun Gong and Western Medicine [20] The panel noted that the Appellant alleged in her BOC that her friend told her to stop taking Western medicine when she began practising Falun Gong. The Appellant testified that she still took Western pain medication at the time she began practising Falun Gong, even though she noted in her BOC that she had not found it helpful. The panel found her testimony in this regard unbelievable. The panel stated that, if the medication did not help her, it would have been believable if she stopped taking it. Alternatively, if the medication did help her, she had no need to practice Falun Gong. The panel found the Appellant's motivation for beginning Falun Gong practise was not credible. [21] The Appellant submits that the panel failed to notify her of the case to be met as to why she failed to explain why she continued to take Western medicine when it was not helpful. The Appellant further submits that a review of the record indicates that the panel failed to put its concerns to the Appellant in the hearing, and, as a result, she was not given the opportunity to respond. [22] The RAD has reviewed the recording of the hearing concerning the exchange between the panel and the Appellant regarding Western medicine. The RAD agrees with the Appellant that the panel failed to make clear its concern about the Appellant's testimony in this regard and provide an opportunity for her to explain her decision to continue to take this medication. The RAD finds there is insufficient evidence to support the panel's finding that taking this medication undermined the Appellant's credibility as to her Falun Gong practice. Length of Time the Appellant has been Practising Falun Gong [23] The panel questioned the Appellant about the group sessions she had attended in China. The Appellant testified that, starting in XXXX 2012, she had attended four group practise sessions. The panel noted that this date was inconsistent with the evidence in the Appellant's BOC and with her earlier testimony. The question was repeated, and the Appellant confirmed her testimony that she began practising in XXXX 2012 and had attended four group sessions in two and a half years. [24] The panel subsequently asked the Appellant again when she first attended a group practise session, and she reiterated that it was on XXXX XXXX, 2012. The panel noted its concern about the inconsistency of the Appellant's testimony with her earlier testimony and her BOC statement that she began group practice in XXXX 2015 after home practice in XXXX 2014. The Appellant then responded that she started to practice in 2014. The panel noted that she had just testified that she began to practice in XXXX 2012. The Appellant explained that she began having menstrual pain in XXXX 2012, and a classmate introduced her to Falun Gong. The panel noted she had alleged in her BOC that she met her classmate and been introduced to Falun Gong in XXXX 2014 not XXXX 2012. The panel noted that the Appellant responded with a "near verbatim version of part of her BOC". Subsequently, the Appellant stated she began practising in XXXX 2014. The panel drew a negative inference as to the Appellant's inconsistent testimony about when she began practising Falun Gong. [25] The Appellant was asked who attended the group sessions, and the panel noted that she, "in rapid-fire succession, rhymed off the names of all the group members..."3 The panel found that, given the Appellant had only attended four sessions, her answer seemed to be "more a recitation of learned names rather than a natural recollection based on lived experience and interaction with group members".4 The panel found, in the context of the relatively few times the Appellant had practised with the group members, that the Appellant's "unnatural answer" undermined her credibility and further found it harder to believe that the Appellant had practised with a Falun Gong group in China. [26] The Appellant submits in regard to her ability to provide the names of all her co-practitioners that the panel erred by engaging in Catch-22 reasoning whereby, if she failed to answer the question, the panel would have drawn a negative inference but when she did answer the question correctly, the panel drew a negative inference. [27] The RAD has reviewed all of the evidence in the record, including the recording of the hearing, concerning when the Appellant began Falun Gong practise. The RAD notes the Appellant makes no submission regarding the panel's finding that the Appellant's evidence concerning when she began to practise Falun Gong was inconsistent. The RAD finds that this inconsistency is significant, as it concerns the Appellant's alleged Falun Gong experience before arriving in Canada. The RAD further finds this inconsistency raises a doubt about whether the Appellant in fact practised Falun Gong in China. [28] In regard to the Appellant's ability to give the names of her alleged co-practitioners even though she only attended four practise sessions, the RAD notes the panel's concern did not involve the question of whether or not she knew the names of the co-practitioners. The panel was concerned with the nature of the presentation of her evidence in this regard. The RAD finds the panel had the advantage of receiving this evidence in the hearing and defers to the panel's finding in this regard. Falun Gong Knowledge [29] The panel noted that the Appellant testified she practised Falun Gong in Toronto and read Zhuan Falun. The panel questioned the Appellant as to the application of Zhuan Falun principles to her own life and observed that in several instances she repeated parts of her BOC near verbatim or gave superficial answers. The panel further noted that the Appellant stated her knowledge about a part of Zhuan Falun rather than stating her own preference with a personal reason. The panel found the Appellant's answers were superficial and "meant to headline information about Zhuan Falun rather than demonstrate a genuine or reflective understanding of Falun Gong principles". 5 [30] The panel noted that it asked the Appellant to give examples of how she applied basic Falun Gong principles to her own life, and she responded by stating the three principles. She was asked again to relate the principles to her own life, and she responded that she shared experiences with friends, told them the truth and donated to beggars. The panel noted it focused a series of questions on the principle of compassion. The Appellant was asked when she last gave money to someone on the street and she replied "last month". She was asked how much she gave, and she replied, "five dollars". She was asked where that person was when she gave the money, and she replied, "near the subway station". The panel found these answers lacking in any deeper reflection or application of Falun Gong principle of compassion. The panel found the Appellant's application of the three basic principles to be superficial and not what would be expected, even for a relatively new practitioner, taking at face value her evidence that she began practising Falun Gong in XXXX 2014 rather than her inconsistent evidence that she began in XXXX 2012. [31] The panel noted that, while the Appellant was able to recite Falun Gong principles and provide Zhuan Falun "headlines", it found the evidence of her motivation for practising Falun Gong and her evidence of practise in China to be deficient, especially in the context of the risks involved in practising in China. [32] The Appellant submits that the panel relied on a misrepresentation of its own questions in drawing a negative inference. The Appellant notes that the panel indicated it asked her a focused "series of questions on the principles of compassion" and that her answers lacked any "deeper reflection" or "application of the Falun Gong principle of compassion. The Appellant further submits that she was asked a number of very specific questions warranting the type of specific answers she provided. [33] The Appellant submits as well that the panel erred in finding she failed to apply the three principles of Falun Gong when her testimony clearly established she did. [34] The RAD has reviewed all of the evidence concerning the Appellant's Falun Gong knowledge. The RAD agrees with the panel that the Appellant's answers to questions testing her Falun Going knowledge were a general listing of elements of Falun Going teachings found in Zhuan Falun. The RAD finds that the Appellant's testimony reflects some knowledge of Falun Gong teachings but notes that this information is easily available in the literature and does not in itself confirm that the Appellant is a genuine practitioner. [35] The RAD agrees, however, with the Appellant that the panel's questioning as to the application of the principle of compassion to her own life was quite specific, and the Appellant cannot be faulted for providing specific answers. The RAD finds the panel failed to ask questions in this regard that might have elicited the kind of responses it apparently sought. Sur Place Evidence [36] The panel noted that the Appellant provided photos and a supporting letter to corroborate her practise in XXXX XXXX and handing out Falun Gong leaflets. She was asked when she first attended group practise in XXXX XXXX, and she testified "XXXX XXXX, 2015". She was asked if she practised during the week or on weekends, and she responded "only weekends". The panel noted that XXXX XXXX was a Tuesday. The Appellant explained that she "forgot which day is that". The panel drew a negative inference as to the Appellant's practise in Canada because of the inconsistencies and insufficient reasonableness of her explanation. [37] The panel found the evidence of the Appellant's Falun Gong practise in Canada to be "showcasing" for the purpose of supporting her claim rather than reflective of meaningful, long-term engagement with Falun Gong. The panel further found the photos and confirmation letter were insufficient to outweigh the Appellant's overall credibility problems. The panel noted as well that the Appellant did not present any evidence that her Falun Gong activities in Canada had come to the attention of Chinese authorities. [38] The panel concluded that the Appellant's Falun Gong practise is not genuine, and it is likely an attempt to bolster her claim for protection. [39] The RAD notes the Appellant makes no submissions concerning the panel's findings as to her evidence of Falun Gong practise in Canada. Whether the Appellant was wanted by the PSB and fears persecution in China [40] The panel noted that the Appellant indicated in section 9 of her BOC that she had been "sought...by authorities." She was asked in the hearing if she thought she was wanted by the PSB the day she left China and she said no. She was further asked how she felt when she left China and arrived in Canada, and she responded that she was "nervous and excited". She was asked why she felt nervous and excited, and she responded that she could now practise Falun Gong openly and freely. When the panel asked her to say more about that, the Appellant stated in her BOC that someone had informed on her that she practised Falun Gong, and a local official threatened that the PSB would be informed if it became known that she continued to practise. The panel noted that the Appellant provided no different, spontaneous or detailed information about the interaction with the local committee member. She only recited parts of her BOC. [41] The Appellant was asked why she felt the need to go into hiding, and she explained that her mother was afraid she would be threatened or persecuted. She further testified that her mother asked her to stop practising, and she felt there was no option but to hide. The panel asked the Appellant whether she was scared in hiding and worried about when she could leave. The Appellant responded that she feared arrest; she practised Falun Gong at night, and she did not tell her cousin she practised. [42] The panel found the Appellant's answers lacked spontaneity and information not contained in her BOC. The panel found that either she was never in hiding or she went into hiding for some unknown reason, knowing she was not wanted by the PSB. The panel found that, when she left China, the PSB were not pursuing her, and the Appellant knew this. The panel noted that, at most, there was one other undocumented visit by a local official to the Appellant's mother in China, and the official was told that the Appellant was not practising, and she had left China. The panel found that the Appellant is not wanted by the PSB, and she has not established that she faces persecution in China. [43] The Appellant submits, in regard to the panel's finding, that she failed to provide "different, detailed, spontaneous, or otherwise additional information" concerning the interaction with a village committee official, that the panel erred by engaging in what Court's have described as Catch-22 reasoning. The Appellant cited the Federal Court of Appeal decision, in Mensah,6 which stated: This seems to us, at first blush, to be a classic case from which it is impossible for the applicant to extricate himself: if he gives as few details in his hearing as at his examination under oath, his claim fails for lack of precision; if he gives more, it fails for lack of credibility. [44] The Appellant further submits that the panel erred by failing to notify her of its concerns as to the lack of details in her testimony and thereby give her an opportunity to provide further information. The Appellant submits as well this is a reviewable error that warrants the decision to be set aside. [45] The RAD has reviewed all of the evidence in the record, including the recording of the hearing, concerning the Appellant's interaction with a village committee official. The RAD agrees with the Appellant that the panel failed to make clear its concern about the Appellant's testimony in this regard and to give her an opportunity to respond to further questioning. Past visa Application to come to Canada [46] The Appellant was asked why she was refused a visa when she applied in 2010, and she responded she did not recall. The panel noted that the Appellant's visa application was denied five years before she entered Canada illegally in XXXX 2015 and, according to her BOC, two years before she began suffering health problems which lead her to become a Falun Gong practitioner. The panel noted that the Appellant's evidence that she could not recall why her visa application was denied and her related testimony that she did not fulfil a condition that resulted in the denial was neither credible nor plausible, and it undermined her credibility. The panel noted in this regard that the denial was a life-changing outcome in the sense that she was unable to study in Canada and this altered the course of her life. [47] The Appellant notes that the panel drew a negative inference from the fact that she had been denied a Canadian visa in 2010 without any information as to the application and on the basis of its previous credibility findings. The Appellant submits that the panel erred, as the basis of previous credibility findings were flawed and erroneous. [48] The RAD finds that the issue of the Appellant's visa denial is not relevant to the central issue in the case at bar. [49] The RAD has reviewed and assessed all of the evidence in the record. The RAD notes the Appellant's inconsistent evidence concerning when she became a Falun Gong practitioner in China. The RAD also notes the Appellant's testimony concerning her Falun Gong knowledge appeared to be vague and generalized quotations from Falun Gong literature rather than reflecting personal understanding. The RAD further finds, however, that it agrees with the Appellant that the panel failed to make clear in the hearing the kind of responses it wanted from the Appellant when it examined her Falun Gong knowledge and her exchange with a village council official. The RAD agrees with the Appellant that, in this context, she was not provided with the opportunity to respond to the panel's concerns. As the RAD is unable to hold a hearing, the matter is remitted to the RPD for that purpose. DISPOSITION [50] Pursuant to section 111(1)(c) of the IRPA, the RAD sets aside the determination of the RPD and remits the matter to the RPD for reconsideration by a differently constituted panel. The appeal is allowed. (signed) "Milton Israel" Milton Israel April 25, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-2, Appellant's record, RPD's Reasons, p. 9, para. 19. 4 Exhibit P-2, Appellant's record, RPD's Reasons, p. 9, para. 19. 5 Exhibit P-2, Appellant's record, RPD's Reasons, p. 11, para. 24. 6 Mensah, George Akohene v. M.E.I. (F.C.A., no. A-1173-88), Pratte, Hugessen, Desjardins, November 23, 1989; [1989] F.C.J. no. 1038 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-01628