TC2-38703

RAD File / Dossier de la SAR : TC2-38703 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne en cause Date of decision June 1, 2023 Date de la décision Panel Andrea Poole Tribunal Counsel for the person who is the subject of the appeal Gavin James Maclean 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 OVERVIEW [1] I dismiss this appeal. XXXX XXXX XXXX (Appellant), a citizen of Viet Nam, appeals a decision of the Refugee Protection Division (RPD), dated November 17, 2022, rejecting his claim for refugee protection under either section 96 or 97 of the Immigration and Refugee Protection Act (IRPA). DECISION [2] I find that the RPD did not err in its decision that the Appellant is neither a Convention refugee nor a person in need of protection. I further find that the determinative factor regarding the application of both section 96 and subsection 97(1) of the IRPA is credibility. I, therefore, dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.1 OVERVIEW [3] The Appellant alleges fear of persecution at the hands of the Vietnamese authorities because of his religion as a Roman Catholic who has protested against the government's treatment of his priest, Father Tran Dinh Long (Father Long). [4] The Appellant was born in 1971 and raised in Tien Gang province, Viet Nam. He moved to Ho Chi Minh City in 1990, met his wife, XXXX, A practicing Roman Catholic, and alleges he converted to his wife's faith. Starting in 2010, he began to attend a new church - XXXX XXXX Church - led by Father Long. The Appellant alleges that in 2012 Father Long became the object of surveillance by the Vietnamese government, which had become apprehensive at the numbers of followers attracted to his Church by his teachings. That same year, Father Long left Vietnam and went to the United States of America (USA), although he returned to Viet Nam in 2018 and began to preach at the XXXX XXXX XXXX XXXX Church in Ho Chi Minh city. The Appellant began to attend that church. The Appellant alleged that while visiting his daughter (studying in Toronto), he learned that Father Long was no longer preaching at that church, and when he returned to Viet Nam, in XXXX 2019, he learned that Father Long had been pressured by the local government to cease preaching at the church. In XXXX 2019, the Appellant and a certain number of fellow parishioners organized a protest, which was broken up by the police. The Appellant was interrogated and compelled to sign a document admitting to wrongdoing in protesting. Since his release, he has continued to meet with fellow parishioners in an attempt to determine a way for Father Long to resume preaching. The Appellant alleges that on XXXX XXXX XXXX 2020, he was beaten by three young men, whom the Appellant believes to have been "government thugs" because he has no enemies in Vietnam. He returned to Canada in XXXX 2020. The Appellant alleged that although he had initially planned on being sponsored to Canada by his daughter once she acquired her permanent resident status, upon determining that his daughter's own status was not certain, he first extended his visitor's visa and then, in XXXX 2021, claimed protection in Canada. [5] A hearing was held in two sittings, on September 1, 2022, and October 13, 2022. The Appellant was represented by counsel. On November 17, 2022, the RPD refused the Appellant's claim and made the following findings: the Appellant a) Was not credible on the whole with regard to: a) his subjective fear and his profile as a Roman Catholic, b) his practice in Vietnam and his knowledge of the religion and demonstrated total lack of knowledge of religion he purportedly had practised regularly since 1993; b) Could not adequately explain why government would use thugs to assault him anonymously rather than arrest; c) Failed to establish that he faces an actual risk of persecution in Viet Nam on the basis of his religion or that he is wanted by the authorities for violating the laws, and failed to establish the profile of a passionate Roman Catholic willing to defy the authorities for his religious beliefs. [6] On appeal, the Appellant argues that the RPD erred in making the following findings: a) In assessing the Appellant's involvement in a protest against the ban against Father Long; b) In failing to assess the totality of his alleged experiences with the Vietnamese police; c) In making a negative implausibility finding regarding the attack by thugs based on suspicion not evidence; d) In its assessment of his religious knowledge; e) By not properly assessing the evidence disclosed to support his claim. [7] The Appellant is not disclosing any new evidence, nor is he requesting an oral hearing. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [8] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing oral testimony. Unless specifically stated below, I have applied a correctness standard.2 ANALYSIS Credibility Religious Identity [9] I find the Appellant has failed to establish that he is a practitioner or and possesses a genuine Roman Catholic faith. The RPD found that the Appellant demonstrated a total lack of knowledge about his alleged faith and, in an element which the RPD found more materially substantive, was not able to provide responses indicating how the religion had personally helped or was significant to him and that he had therefore failed to establish that he was a genuine practitioner of the Roman Catholic faith. Moreover, he had failed to establish the profile of a passionate and fervent Roman Catholic, willing to go against the authorities for his religious beliefs. On appeal, the Appellant argues that the RPD erred in finding that the Appellant was not a genuine, practicing Roman Catholic on the basis of the "trivia" test questions posed by the RPD, which courts have found improper in assessing the genuineness of a claimant's religious faith.3 [10] I have independently reviewed the record before me. Over the course of the two days of the hearing, the RPD, and the Appellant's own counsel, asked the Appellant numerous questions about his understanding of the Roman Catholic faith, which he had alleged he had practiced, in multiple churches, since he became a Roman Catholic in the early 1990's.4 Although the Appellant testified that Christmas was celebrated on December 24th and that he has celebrated Ash Wednesday (every year since he became a Catholic), invariably on February 22nd , I accept the Appellant's argument that -- as Christmas midnight mass is celebrated on December 24th, and his description of the purpose of Ash Wednesday comports with commonly understood practice - these errors in recollection do not materially differ from the norm, and I find that these elements of the Appellant's testimony to not be fatal to his claims. However, that said, the Appellant demonstrated in his testimony a singular lack of knowledge of basic Christian beliefs, notwithstanding that he had previously testified that he had read the Bible every night since becoming a Catholic thirty years ago. The Appellant did not recognize the name Moses or Judas. Regarding his knowledge of any part of the Bible, he testified that he defers to his wife because she had been raised in the faith. Regarding his own personal experience within the faith, he could not describe what took place at a regular Sunday church service he was unfamiliar with the practice of taking communion. At no point in either of the two days of the hearing was the Appellant able to set out, either to the RPD or to his own counsel, what his faith meant to him personally, or how being a Roman Catholic had affected him personally. For all these reasons, I find that the Appellant's testimony does not support his alleged profile as a genuine Roman Catholic. Documentary evidence [11] I find the documentary evidence disclosed by the Appellant, while supporting his testimony regarding his wife and his children's faith, do not corroborate his testimony regarding his own faith practice. The RPD found that the documentary evidence disclosed by the Appellant to corroborate his testimony that he is a practicing Roman Catholic (letter from Appellant's wife, marriage certificate, baptismal certificate of Appellant's wife, catholic family book, photos of Appellant's church wedding, photos of the baptism of Appellant's children, photos of children taking communion) was of little weight in establishing the Appellant's own faith. On appeal, the Appellant argues that the documents do, in fact, corroborate the Appellant's testimony as to his own faith. The Appellant specifically points to the elements of the wife's letter discussing the religious journey of her husband from their first discussions of her faith to the point of his own baptism), the photos of his church wedding and the baptism of their children as well as the catholic family book and baptismal certificate of the Appellant's - all elements that would not have been a part of a non-Catholic family and which all support the Appellant's allegation that he is a practicing Roman Catholic. [12] I have independently reviewed the record before me. In submissions at the hearing, the Appellant's counsel submitted that the Appellant had disclosed his own baptismal certificate within the same disclosure of evidence that contained the baptismal certificate of his wife, catholic family book and photographs of the baptisms of their children and of the children receiving communion. A review of the Appellant's evidence before the RPD indicates, however, that although the wife's certificate of baptism (1972) and confirmation (1981) was disclosed, no baptismal certificate for the Appellant himself was disclosed, although the marriage certificate states that the Appellant was baptized and confirmed in 1992. The letter from the Appellant's wife states that her husband converted to Catholicism in 1992. The Appellant testified that he was baptized in 1994.5 His Basis of Claim (BOC) states that he became a Catholic in 1993. I find that the Appellant has established that his wife is a practising Roman Catholic, baptized and confirmed and married within the church and, further, that their children have been baptized and confirmed within the Church. I also find that -- notwithstanding the fact that the Appellant has not, in fact, disclosed his own baptismal certificate and is not clear on the year of his baptism - the Appellant, on the balance of probabilities, was baptized and confirmed in 1992 as it so states on his marriage certificate. Although I accept that the Appellant was baptized and confirmed thirty years ago, those rituals do not, on their own, establish that the Appellant is a sincere adherent to the Roman Catholic faith. I find, therefore, that none of these documents to which the Appellant has referred support his alleged profile as a genuine, sincere, practising Roman Catholic. [13] I find, therefore, for all the above reasons, that the Appellant has failed to establish that he, himself, possesses a fervent, sincere Roman Catholic faith which impels him to defy the authorities, and I find the RPD did not err in also reaching the same finding. Pursuit of the Appellant stemming from his 2019 protest Arrest in XXXX 2019 [14] I find the Appellant has failed to establish that the Vietnamese authorities would pursue him were he to return to Viet Nam. The RPD found that the Appellant had not established that the authorities in Viet Nam had targeted him or that they would arrest him were he to return to Viet Nam and, further, that the Appellant had failed to provide credible evidence - beyond his own subjective belief - that he has been (or will be) pursued by the authorities in Viet Nam were he to return. The Appellant argues that the RPD erred in making this finding as it failed to assess the totality of the Appellant's experiences with the Vietnamese police. The Appellant also argues that the RPD did not make any negative findings regarding the Appellant's uncontradicted testimony regarding his having been arrested in XXXX 2019 -- an arrest which he argues was corroborated by the letter of the Appellant's co-parishioner XXXX XXXX XXXX (XXXX). The Appellant further argues that the RPD incorrectly analyzed this letter, giving it little weight as regards the Appellant's participation in the XXXX 2019 protest and arrest and erroneously finding it only underpins the author, XXXX's participation. [15] I have independently reviewed the record before me. The Appellant testified that he was arrested in XXXX 2019 along with the other members of his church who were protesting the restriction on their priest, Father Long and was compelled to sign a document admitting that he had broken the law by protesting. The letter from his friend and co-parishioner, XXXX, disclosed by the Appellant in support of his allegation of arrest, stated that they had attended mass together at the XXXX XXXX church every Sunday since 2010 and that they had volunteered at the gospel mission church with Father Long. The letter specifically stated that on XXXX XXXX XXXX 2019, "there was a protest where a group was arrested by the government and taken to the police station. Some people were beaten for not cooperating with the police. After one night, we were released. We members were forced to sign the minutes to be released."6 Although the Appellant argues that the "we" referenced in the letter must refer to the author and the Appellant as having both been arrested together, I see no such automatic connection in the language used by XXXX. He states that he and the Appellant attended mass together for many years. XXXX also states in his letter that a protest took place on XXXX XXXX, 2019. He does not state that the Appellant was part of the protest, and neither does XXXX state that he and the Appellant were arrested together. I find the letter does not corroborate the Appellant's allegation that he was arrested as part of the XXXX XXXX, 2019, protest. I find the RPD did not err in its assessment of XXXX's letter nor in its evaluation of the extent to which it fails to corroborate the Appellant's allegations. The 2020 attack on the Appellant [16] I find the Appellant has failed to establish that the alleged attack, which he claims took place in XXXX 2020, was orchestrated and conducted by plainclothes policemen. The RPD found that the Appellant's inability to explain why he was of the opinion that his three XXXX 2020 attackers were plainclothes policemen led the RPD to conclude that the Appellant had not sufficiently established - or provided any evidence beyond his own subjective belief -- that the authorities pursued him in 2020 or that they would arrest him were he to return to Viet Nam. The Appellant argues that the RPD erred in not considering his testimony cumulatively and that his inference -- that the attack of XXXX 2020 was carried out by plainclothes policemen - was not only plausible and reasonable but was actually the most likely scenario because: a) fellow XXXX XXXX protesters had been targeted, b) he had been arrested by police only a month previous, and c) he had no enemies in Viet Nam who might have wished to attack him. The Appellant further argues that he cannot be expected to know why the government would elect to use thugs to assault him rather than arrest him again and that the RPD erred in making this finding as it has no actual evidentiary basis for its negative implausibility finding, but is engaging is mere speculation as to the motivation and tactics of the Vietnamese police. The Appellant further argues that the objective evidence in the NDP (Item 12.4) indicates that the Vietnamese authorities do, indeed, use plainclothes officers and hire thugs to beat religious dissidents, citing Item 12.4, paragraph 66 and that, therefore, the RPD erred in its analysis of the ramifications of the Appellant's XXXX 2019 protest. [17] I have independently reviewed the record before me. The Appellant testified that he believed that his attackers must be plainclothes police because he had no enemies in Viet Nam and because he had been arrested two months previous. The RPD asked the Appellant if he had any evidence to support his belief; the Appellant suggested that reprisal had been taken against others who had protested, such as being conscripted into the army. MEMBER: What made do you think the people who assaulted you were the police? CLAIMANT: Because before that incident every time we gathered together and on the way home, the members were, you know, experiencing the same incidents on the street or they were even called to join the Army, so this time I thought it was the police who did it. MEMBER: So, am I right to say that you have never had a personal experience with the police to form the opinion that the people who assaulted you were police officers in disguise? CLAIMANT: Because I believed I had no grudges or problems with any people, so the guys who stopped and beat me must have been the police.7 I find the Appellant has not established that -- because he had been arrested in XXXX 2019 -- his assailants in XXXX 2020 must be police. I find that the theory itself has no compelling internal logic of its own, and I also find that the Appellant has failed to provide evidence beyond his own admitted, conjectural conclusion that corroborates or supports this theory. [18] Regarding the objective evidence in the NDP concerning the Vietnamese police use of hired thugs -which the Appellant argues is supported by the objective evidence in the NDP -- I find the Appellant somewhat mischaracterizes Item 12.4 in his argument. Although this Item does state that hired thugs deployed by the Vietnamese police have not hesitated to use excessive force, the cited Item 12.4 speaks to excessive force used by hired thugs in the context of mass arrests, mass protests, and banned, large-scale prayer gatherings -- not surreptitious nighttime street attacks o individuals.8 Hiring thugs as auxiliaries to manage crowds engaged in banned protests and arrests is materially different from three persons anonymously attacking the Appellant on a street late one night, and I find Item 12.4 fails to support the Appellant's theory that his attackers must have been plainclothes police or thugs hired by the police and does not establish any explicit connection between the intimidating attack and the Appellant's protest. Moreover, Item 12.4 pertains to reports concerning violations of freedom of religion or belief and describes curtailment and harassment of different unauthorized Buddhist sects, followers of the Cao Dai religion, Montagnard protestants, Duong Van Minh and Cham religions and Mennonites. Aside from a single Roman Catholic priest imprisoned for pro-democracy protests, the Item does not discuss any suppression of any Roman Catholic communities. Indeed, the objective evidence in the NDP pertaining to religious repression indicates that relations between the Roman Catholic Church and the Vietnamese government have become warmer in recent years, not more hostile.9 [19] I find, therefore, for all the above reasons, that the Appellant has not established, and the evidence and his testimony does not support a finding that he would be pursued by the authorities were he to return to Viet Nam. [20] I, therefore, find that the RPD did not err in its decision that the Appellant is neither a Convention refugee nor a person in need of protection. I also find that the Appellant has failed to establish that he would face a serious possibility of persecution on the grounds of his religion were he to return to Vietnam, nor has he established, on a balance of probabilities, that he faces a personal and forward-facing risk of torture, risk to life or risk of cruel and unusual treatment should he return to Vietnam. CONCLUSION [21] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Andrea Poole Andrea Poole June 1, 2023 Date 1 Immigration and Refugee Protection Act, (IRPA) S.C. 2001, c. 27, as amended, at ss. 111(1)(a). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at para. 103; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 3 Zhang v Canada (Minister of Citizenship and Immigration), 2012 FC 503. 4 Although the Appellant disclosed no baptismal certificate of his own, the letter from the Appellant's wife states that her husband converted to Catholicism in 1992. The Appellant testified that he was baptized in 1994.4 His BOC states that he became a Catholic in 1993. His church marriage certificate indicates that he was baptised and confirmed in 1992. 5 Transcript of September 1, 2022 RPD Hearing, at p. 15, line 37. 6 RPD Record, Exhibit 5, at p. 77. 7 Transcript of September 1, 2022 RPD Hearing, at p. 12, lines 30-45. 8 The Item specifically refers to hired thugs deployed in attacks not on Roman Catholics, but on large-scale Hoa Hao Buddhist prayer protests. 9 National Documentation Package (NDP) for Viet Nam (July 29, 2022), tab 12.11: Treatment of Christians, particularly Roman Catholics, by society and authorities; state protection (2020-June 2022), Immigration and Refugee Board (IRB), Response to Information Request (RIR) VNM201069.E. June 22, 2022. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-38703 RAD.25.02 (August 20, 2021) Disponible en français 2 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 (August 20, 2021) Disponible en français