TB3-08831

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 : TB3-08831 Private Proceeding / Huis clos Redetermination of the Appeal 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 October 5, 2015 Date de la décision Panel L. Favreau 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 China, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the RPD's decision and substitute the determination that the Appellant is a Convention refugee or a person in need of protection, or, alternatively, refer the matter back to the RPD with a differently constituted panel. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that he fears persecution in China because he helped a friend who was fleeing from authorities due to his participation in Falun Gong. The Appellant alleged that his friend came to his home to hide after his group practice had been discovered by the PSB. The Appellant later allowed his friend to stay at another unoccupied house that he owned. On February 9, 2013, the Appellant traveled to Canada as a tourist. While in Canada, he received information from his wife informing him that the PSB had arrested his friend in the Appellant's other house and that the PSB left a summons for him accusing him of supporting and harbouring a Falun Gong practitioner. [4] The Appellant's refugee claim was heard on October 29, 2013. In a decision of October 31, 2013, the RPD rejected the claim, finding that the Appellant's allegations were not credible. In the alternative, the RPD found that, if the Appellant's allegations were found to be true, the Appellant would only be at risk of prosecution rather than persecution and that the Appellant did not have a well-founded fear of persecution. [5] The Appellant appealed the decision of the RPD to the RAD on the basis of the following issues: (a) The RPD erred by relying heavily on omissions from the Basis of Claim (BoC); (b) The RPD erred by misapprehending the evidence regarding a coercive summons; (c) The RPD erred by misapprehending the treatment of family members of those who assist Falun Gong practitioners; and (d) The RPD failed to see that the treatment by the PSB of those who assist Falun Gong practitioners can amount to cruel and unusual punishment. [6] In a decision on April 2, 2014, the RAD dismissed the appeal and confirmed the decision of the RPD. The Appellant appealed the RAD's decision to the Federal Court. In a decision on June 26, 2015, the Honourable Madam Justice McVeigh of the Federal Court found that the RAD panel member did not conduct its own sufficient independent assessment of the evidence unrelated to matters of credibility. As such, the Court granted the application and returned the matter to the RAD for redetermination. ROLE OF THE RAD [7] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it 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 but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err by relying heavily on omissions from the BoC? [9] The Appellant testified that, after he had completed and submitted his BoC, the PSB had continued to search for him at his home in China and had attended his home on three separate occasions. The RPD drew an adverse credibility finding based on the Appellant's failure to tender an amended BoC prior to his hearing which included these facts concerning the continued pursuit of him by the PSB. [10] The Appellant submits that the RPD erred in drawing a negative inference in this regard, and that the RPD fundamentally misconstrued the nature of the BoC. The Appellant argues that the BoC is designed to provide his narrative as it stands at the time it is completed. The Appellant noted that he indicated in his BoC that he was prepared to respond to questions in his hearing concerning any facts in which the RPD might be interested. He argues that, although he did provide facts in the hearing concerning the additional visits by the PSB, the RPD chose to ignore his testimony without providing a reason for doing so. [11] The RAD is not persuaded by the Appellant's argument in this regard. After its own review and assessment of the evidence, the RAD notes that the only allegation the Appellant stated in his BoC was that the PSB came to look for him once and had left a summons with his wife on February 12, 2013. The Appellant's hearing was held eight months after he signed his BoC. The RAD agrees with the RPD that, in this particular claim, evidence of continuing pursuit of the Appellant by the PSB goes to the heart of the Appellant's claim. The RAD finds it is reasonable to expect that, given the continued and persistent pursuit of the PSB over the eight-month interval between the time the Appellant completed his BoC and the RPD hearing, the Appellant would submit an amendment to his BoC to include this critical information about his ongoing jeopardy in China. [12] The RAD notes that the Appellant was represented by competent counsel who, at the beginning of the hearing, sought to make amendments to a refugee claim form completed when the Appellant had made his claim at a Citizenship and Immigration Canada (CIC) office. The RAD finds that, in doing so, the Appellant and his counsel demonstrated that the Appellant had reviewed the documents relating to his claim with his counsel and was aware that amendments should be made where the evidence departed from what was included in the BoC. The RAD finds it reasonable under these circumstances that the Appellant would amend his BoC to reflect his ongoing risk in China. [13] The RAD also finds that contrary to the argument of the Appellant, the RPD did not ignore the testimony in this regard. Rather, the RPD found the Appellant's explanation for not providing this information before the hearing not to be reasonable. The RAD further notes the RPD did provide an explanation that the information regarding the alleged three visits by the PSB was central to the Appellant's claim of continuing pursuit by the PSB, that the Appellant had the support of both interpreter and counsel, and that eight months had elapsed from the time the Appellant made his claim to the time of the hearing. The RAD agrees with the RPD's decision to reject the Appellant's explanation in this regard. [14] The RPD drew a further adverse inference from the Appellant's failure to make any mention in this BoC of ongoing PSB interest in his wife, including their continuing pursuit of her at her work place and her resulting dismissal from work because of their pursuit. [15] The Appellant argues that, with regard to his testimony concerning the PSB's interest in his wife, the RPD engaged in an error similar to that it made with regard to his failure to mention the continued visits by the PSB to his home. The Appellant further argues that he could not anticipate the type of details that a specific panel member may deem important. [16] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the BoC narrative instructions make it quite clear that a claimant is to include everything that is important for his or her claim and that specific harm, mistreatment or threats to the claimant or their family should be explained in detail. The RAD finds it reasonable that, in light of the allegations of the Appellant, the details of the persistent pursuit of the Appellant's wife by the PSB at her workplace, which resulted in her dismissal from work, would have been included in his BoC. The RAD finds these allegations are significant in that they demonstrate the lengths that the PSB were willing to go in their efforts to apprehend him and is central to the risk he faces should he return to China. The RAD notes, however, that the Appellant failed to mention in his BoC that the PSB had any interest in his wife, and that he only mentioned his wife feared that the PSB would implicate her. [17] Although the Appellant argues there was no reason to doubt his testimony concerning the PSB's interest in his wife, the RAD notes that the RPD found that the Appellant provided evolving testimony concerning the PSB's interest in his wife. He initially testified that the PSB had gone to his wife's workplace when she was at her home. He subsequently testified that, while his wife was in hiding, she called her workplace and was informed that the PSB had been there. In addition, the Appellant initially testified that his wife was dismissed from work and that there was a dismissal letter. When asked its whereabouts, he changed his testimony and stated that there was no letter but that she learned of the dismissal from colleagues. [18] The RPD also noted that there was no corroborating evidence of any allegation that the PSB were pursuing the Appellant's wife, such as documentation regarding her dismissal from her job or even a letter from his wife documenting the events. The RPD noted that, according to the Appellant's testimony, his wife had sent all of his personal documents hidden in a box of clothes to Canada. As such, it was reasonable for the Appellant to have tendered such a document. [19] After its own review and assessment of the evidence, the RAD agrees with the RPD and finds there is ample reason to doubt the truthfulness of the Appellant's testimony in this regard. The RAD further finds that the RPD's findings with regard to the omission in the BoC is highly relevant and must be taken in context with the RPD's other findings. The RAD finds that the RPD did not err in drawing these findings, and, as such, the Appellant's argument must fail. The RPD Erred by Misapprehending the Evidence Regarding a Coercive Summons [20] The Appellant tendered before the RPD a chuanpiao, what he characterized as a summons, which he alleged was left at his residence for him by the PSB. The RPD noted that, contrary to the translation of this document provided by the Appellant, it became evident in the hearing that the document was a subpoena. The RPD cited documentary evidence that indicated that subpoenas are served by the people's courts to require parties to a criminal proceeding to appear in court. It was noted, however, that other sources indicated that witnesses frequently do not appear and do this without consequences. The RPD also noted that the Appellant did not respond to the subpoena or to the alleged subsequent PSB visits, and there were no coercive measures taken by the PSB, such as a coercive summons resulting from the Appellant's non-appearance. The RPD drew a negative inference from the lack of coercive measures taken against the Appellant by the PSB in light of his allegations of their persistent pursuit of both him and his wife. [21] The Appellant submits that the RPD noted a new law that would compel those with a witness subpoena to appear had not yet been fully passed. The Appellant further noted that the RPD had failed to cite any sources it relied on in its finding that a coercive summons would have been issued. The Appellant cites country document evidence indicating there are significant issues in China concerning both the rule of law and procedural implementation. The Appellant further cites evidence that security officials in local areas often fail to follow established laws and regulations. [22] The Appellant also relies on the Federal Court decision in Chen2 in which the Court states that the Board's reasoning that an arrest summons would have been issued because of the applicant's testimony that the PSB were intent on arresting him and had come to his home many times is speculative, and documentary evidence indicates policing standards are highly inconsistent. The Appellant argues that the RPD's analysis of the Appellant's subpoena document partially led to the RPD's conclusion that the PSB had not continued to seek out the Appellant or his wife, and led to the RPD's ultimate conclusion that the Appellant was not at risk of persecution or of cruel and unusual treatment or punishment should he return to China. The Appellant submits the RPD's error concerning this evidence is fatal to its ultimate conclusion. [23] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the RPD made its finding, in part, on the basis of the failure of the PSB to make a coercive response to the Appellant's failure to respond to a subpoena. Although it is unfortunate that the RPD failed to cite specific documentary evidence in this regard, the RAD finds that the jurisprudence requires the RAD to conduct its own assessment of the evidence. In this regard, the RAD finds that the RPD's finding is consistent with the documentary evidence3 on record, which indicates that failure to comply with a summons or subpoena results in the suspect being coerced into compliance. After its own review and assessment of the evidence, the RAD finds that, in the circumstances alleged by the Appellant, it would be reasonable to expect that the PSB would have issued a coercive summons to the Appellant after he failed to appear for a scheduled court date. The RAD finds this is particularly the case in the context of the previous issuance of a summons indicating that the PSB documented its pursuit of persons of interest in this jurisdiction, and the multiple PSB visits alleged by the Appellant. The RAD agrees with the RPD's finding in this regard. [24] The RAD acknowledges that there is evidence in the record which indicates that officials in local areas often fail to follow established laws and regulations. However, the RAD notes that the Appellant has alleged that the PSB have issued a subpoena for him. The RAD finds that, in a issuing a subpoena for the Appellant, the PSB have indicated a willingness to follow the rule of law in the case of the Appellant. The RAD also notes that the Appellant's residence in China is located in Tianjin City, a large metropolitan area. The RAD finds it is reasonable to assume that it is more likely that laws and regulations would be followed in such urban jurisdictions. [25] Although relied upon by the Appellant, the RAD finds that the Federal Court decision in Chen,4 is not application to the present case. The decision in Chen concerns the nature of the initial summons which the RPD found should have been a coercive summons rather than the less coercive summons. The Court found the RPD unreasonably dismissed the applicant's summons document, and further found the RPD's finding that the document was not authentic but was speculative. The RAD finds that in the present case the RPD found that it was reasonable to assume that a coercive summons would have been issued in the context of the issuance of an initial subpoena and the Appellant's failure to respond to that subpoena. As well, the RAD notes that there is documentary evidence in the record which underpins that finding. The RAD finds that, in light of the documentary evidence, the Appellant's failure to respond to the subpoena and the multiple visits alleged by the Appellant to both his home and his wife's workplace that a coercive summons would have been issued by the PSB. [26] The RAD also agrees with the RAD and finds that, in light of the omissions from the Appellant's BoC regarding subsequent visits by the PSB, the omission of police visits to the workplace of the Appellant's wife, lack of supporting documentation, the fact that a subpoena was issued for the claimant to appear as a witness rather than a summons, and the absence of any coercive measures by the police in light of the allegations, the RAD finds on a balance of probabilities that no further PSB action was taken against the Appellant, his wife or any other member of his family after a subpoena was left for him with his wife on February 12, 2013. The RAD further agrees with the RPD and finds that the PSB has not continued to seek out the Appellant or his wife and that there is not a serious possibility that he would be persecuted or that he would be personally subject to a risk to his life, or a risk of cruel or unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture should he return to China. The Panel Erred by Misapprehending the Evidence Regarding the Treatment of Family Members of those who assist Falun Gong Practitioners [27] The RPD found as part of its assessment regarding the Appellant's testimony that the PSB were vigorously pursuing his wife that, although country documentation contains a reference which states that there have been reports that persons who assist Falun Gong practitioners could face fines, threats and harassment, even though they themselves are not practitioners,5 there is no documentary evidence in the record which establishes that family members of individuals who assist Falun Gong practitioners are harmed by the PSB in any manner. [28] The Appellant submits that the RPD misapprehended the evidence in the National Documentation Package (NDP) in this regard. The Appellant argues that Response to Information Request CHN102560.E specifically states that the Chinese government torments family members of Falun Gong practitioners to pressure them to renounce the practice. The Appellant further argues that the same document states that a non-practitioner was arrested for being in possession of Falun Gong materials and that this is evidence of harsh treatment of people who assist Falun Gong practitioners. [29] The Appellant further argues that, in light of the harsh crackdown on people related to or assisting Falun Gong practitioners, it is reasonable to assume that the PSB's actions against family members of those who assist Falun Gong practitioners are harmful as well. The Appellant also argues that, in misconstruing the evidence on the treatment of family members, the panel's adverse credibility findings were affected. In this regard, the Appellant relies on the Federal Court decision in Rodriquez Diaz6 to support its argument. [30] The RPD acknowledged that those such as the claimant, who support the activities of a Falun Gong practitioner through provision of shelter, are at risk of PSB sanctions. The RPD noted in this regard reports cited by representatives of the Falun Dafa Association that persons who assisted Falun Gong practitioners could face fines, threats and harassment even though they themselves are not practitioners.7 [31] The RAD is not persuaded by the Appellant's argument. The RAD finds after its own review and assessment of the evidence that the RPD did not misapprehend the evidence in this regard. As noted by the RPD, the RAD finds there is no evidence in the documentary evidence which suggests that the PSB's treatment of the family members of Falun Gong practitioners extends to the family members of individuals who assist Falun Gong practitioners. The RAD finds it reasonable to expect that, if that were the case, there would be some evidence of it in the NDP. The RAD finds that the absence of evidence in the NDP undermines the Appellant's argument. The RAD also notes that the reference to the PSB's treatment of family members is relative to their efforts to have the adherents of Falun Gong abandon their practice of Falun Gong. The Appellant is not a practitioner and never has been. As such, the motivation for the PSB's treatment of family members as documented in the NDP does not exist in the case of the Appellant. The RAD concurs with the RPD's finding in this regard. [32] The RAD further finds that the decision in Rodriquez Diaz8 does not support the Appellant's argument. The RAD notes that, while it was raised by the Appellant in the Rodriquez Diaz matter that the RPD's credibility findings were baseless and made without providing reasons, the Court did not deal with that issue in its findings. [33] Accordingly, the RAD finds that the Appellant's argument fails. The panel failed to see that the treatment by the PSB of those who assist Falun Gong practitioners can amount to cruel and unusual treatment [34] The RPD found that if the Appellant is being pursued by authorities in China, it is because he violated Chinese law and not because he holds a particular belief or that he was in opposition to government policies. The RPD further found that the sanctions that could be imposed upon the Appellant amount to fines, threats and harassment, and that the Appellant has failed to satisfy his burden of establishing a serious possibility that he would be persecuted or would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment, or a risk of torture by any authority in the People's Republic of China. [35] The RPD noted its determination in this regard is supported by the Federal Court, in Gong,9 in which the Court stated that the evidence did not support that those who sympathize with or associated with Falun Gong practitioners are arrested and subjected to cruel and unusual punishment. The Court further stated that the treatment of those who harbour or assist Falun Gong practitioners may receive is, on the whole, more consistent with harassment and discrimination, and falls short of the conduct that is contemplated by sections 96 and subsection 97(1) of the IRPA. [36] The Appellant argues that the RPD's analysis in this regard is only valid when comparing democratic countries, and that the RPD failed to undertake any equivalency analysis between Chinese and Canadian law. The Appellant further argues that the RPD made no analysis as to whether the application of the law amounts to persecution and whether there was a connection in this regard to a Convention ground. The Appellant also argues that the RPD had a duty to consider whether an imputed political opinion could be a nexus to a Convention ground, and that the Appellant's actions could constitute his expression of the political opinion that he supports Falun Gong. The Appellant notes in this regard that the RPD failed to analyze whether the Appellant's actions constituted an expression of political opinion. [37] The Appellant further submits in this regard that the RPD misapprehended the Federal Court's decision in Chan,10 which noted that determination of whether actions will be perceived as a challenge to a persecutor's authority is contextual. As well, the Appellant argues the RPD failed to perform any analysis with respect to whether the Appellant fits within the definition of a particular group, and also where Falun Gong is largely political in nature, and whether the Appellant's support of his friend may lead to a finding of an imputed political opinion. The Appellant submits that the RPD's analysis as to why the Appellant's claim has no nexus to a Convention ground is fatal to its overall determination. [38] The Appellant also submits that the RPD misapprehended evidence regarding the risk to family members of people who assist Falun Gong practitioners and cites evidence of a member of the China Democratic Party, a dissident political group, who was arrested in 2006 for being in possession of Falun Gong materials. It was noted that information of charges being brought against this man could not be found. The Appellant submits there is a risk to family members of Falun Gong practitioners and cites evidence in this regard. The Appellant submits that all critical findings must be supported by a clear evidentiary base. As well, the Appellant submits that Chinese authorities monitor Falun Gong practitioners in Canada. The Appellant submits there is arbitrary arrest and imprisonment in China. [39] The RAD finds that the Appellant's submissions on this issue parallel other submissions made by the Appellant. The Appellant has provided a number of submissions, some specifically concerned with the RPD's determinations in this case and others that are more general in nature. The RAD further notes that the Appellant cites documentary evidence concerning the situation of Falun Gong practitioners rather than those individuals who assist Falun Gong practitioners. In some instances, the case law does not have application to the present case. In some instances the RAD has elsewhere in these reasons responded to the submissions raised earlier by the Appellant and repeated on this issue. [40] After its own review and assessment of the evidence in this regard, the RAD finds that there was insufficient evidence disclosed to suggest the Appellant's actions constituted an expression of his political opinion that he supports Falun Gong, and therefore there is a possible nexus to a Convention ground. The RAD notes the Appellant testified that he had no interest in Falun Gong, and he was only helping a friend. The RAD finds it reasonable to expect that, if the Appellant was motivated by political ideology, he would have stated so in his testimony or in his BoC. His fear in this case is not linked to race, religion, nationality, political opinion or membership in a particular social group. Therefore, the RAD finds the Appellant's fear is based on fear of punishment, having committed a crime in China, which has no link to a Convention ground; as a result, the claim must fail under section 96 of the IRPA. [41] The RAD also finds that the documentary evidence in the record indicates a differential response to those who are perceived by Chinese authorities to be someone who assists a Falun Gong practitioner and those who are actual practitioners. The RAD notes the Federal Court, in Gong,11 in which it was stated that those who assist practitioners are at risk of actions that fall short of the conduct contemplated in s. 96 and s. 97. [42] The RAD finds that notwithstanding the fact that China is not a democratic country, the RPD was required to analyze Chinese law and police practice on the basis of documentary evidence tendered. The RAD is supported in this finding by the Federal Court's decision in Drozdov.12 The RAD agrees with the RPD's finding in this regard. [43] The RAD finds that it is unfortunate that the RPD did not provide an analysis as to whether the Appellant was a member of a particular social group. The RAD finds, however, that the jurisprudence allows it to make its own assessment on this issue. The RAD notes that the legislation gives the RAD the power to confirm or substitute the determination of the RPD under paragraphs 111(1)(a) and 111(1)(b) of the IRPA, respectively, or send the matter back under paragraph 111(1)(c) if the conditions in subsection 111(1)(2) are met. In confirming a determination, just as in substituting, the RAD is not bound by the reasoning in the RPD's decision. This is evident from the use of the word "determination" in paragraphs 111(1)(a) and (b). Further, the restrictions on remittal in subsection 111(2) suggest that Parliament's intent was to have the RAD finalize refugee protection claims where it can do so fairly, including by confirming a determination on alternative grounds. This analysis is consistent with the recent Federal Court decision in Huruglica.13 [44] The RAD finds that, given the facts in this appeal, an individual who has identified himself as merely someone who helped a friend in trouble with the authorities, and who has no relationship with the activity for which the friend is being pursued, is not a member of a particular social group as enunciated in the UN Convention. The RAD finds that Falun Gong does not identify itself as a political group nor is it considered to be a political group by Chinese authorities. Rather, the RAD finds the documentary evidence states that Falun Gong is considered a cult by Chinese authorities, and it is considered a quasi-religious practice related to Buddhism by its adherents. [45] The RAD finds the example provided by the Appellant concerning the jeopardy of a family member of someone who provided assistance to a Falun Gong practitioner unconvincing. The RAD notes the incident took place in 2006; the individual was also a member of a dissident political group, and no information is available regarding any charges. The RAD finds that the jeopardy of such family members may be similar to that of the person who helped a practitioner. However, as noted above, the RAD finds the jeopardy does not rise to the level of persecution. [46] The RAD finds, following its own assessment of the evidence, that the Appellant is being prosecuted for committing a crime in his country of origin or contravening a law of general application, and not persecution. This term refers to a law, which on its face applies to a country's entire population, without differentiation. In Zolfagharkhani, the Court rejected the proposition that, so long as the action taken by a government against a claimant is the enforcement of "an ordinary law of general application", the government is necessarily engaging in prosecution and not persecution.14 In a dictatorial or totalitarian state, any ordinary law of general application may well be an act of political oppression.15 [47] Further to that, the Court of Appeal in Zolfagharkhani16 set forth "some general propositions relating to the status of an ordinary law of general application in determining the question of persecution": (1) The statutory definition of Convention refugee makes the intent (or any principal effect)17 of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.18 (2) But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.19 (3) In such consideration, an ordinary law of general application, even in non-democratic societies, should ... be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.20 (4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground. [48] In the case at hand, the Appellant has clearly stated in his BoC and confirmed in his testimony why the PSB were allegedly looking for him. The Appellant has indicated no affiliation with any Convention ground for persecution. In Chan, Mr. Justice Heald ruled that punishment for breach of a government policy is not punishment for political opinion if the breach will be perceived by the authorities not as a challenge to their authority but only as a breach of a law.21 [49] The Appellant has stated he fears arrest and imprisonment by the PSB. The RAD finds that, in this case, the Appellant's charge is not political. The RAD has reviewed the documentary evidence and notes it indicates that persons who assist Falun Gong practitioners could face fines, threats and harassment even though they themselves are not practitioners. [50] While the RAD does not have sufficient credible evidence to find that the Appellant is being sought by the PSB, or if arrested by the authorities that his punishment would rise to the level of persecution, the RAD has also considered what might occur should the Appellant be convicted at trial. [51] The RAD finds that, if the Appellant returns to China and is convicted at trial for harbouring his friend, it is inherent or incidental to the lawful sanctions in China. Notwithstanding the foregoing, the RAD does acknowledge that lawful sanctions cannot be imposed in disregard for accepted international standards. [52] The RAD has considered section 3(3)(f) of the Act, which directs that the Act be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. The test that is used is whether the punishment that the Appellant may reasonably face in China would shock the conscience of Canadians. [53] The Appellant indicated she would be convicted and incarcerated. The panel notes that the evidence of human rights abuses in general in a country is not in itself sufficient to show that the Appellant is personally at risk of harm. Chinese laws may be harsher than Canadian laws or the prisons may not be the same standard as Canadian prisons; however, this is not sufficient ground to grant a claim under section 97(1). [54] Assuming that the Appellant would be incarcerated on conviction, the RAD has considered what prison conditions the Appellant would face. The panel has reviewed the documentary evidence on Chinese prison conditions. The panel notes that the conditions in many penal institutions are harsh and degrading; the panel does find that the conditions are generally such that the prisoners' basic needs and rights are accommodated. The UK Home Office Country of Origin document references the Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, published on 10 March 2006, which stated: The Special Rapporteur visited a total of 10 detention facilities... In general, the Special Rapporteur found that although the specific conditions of the facilities varied, in terms of basic conditions, such as food, medicine and hygiene, they were generally satisfactory. However, the Special Rapporteur noticed a palpable level of fear when talking to detainees. He also was struck by the strict level of discipline exerted on detainees in different facilities. Time and again, he entered cells and found all detainees sitting cross legged on a mattress or in similar forced positions reading the CL [criminal law] or prison rules. According to information provided by detainees, such forced re-education, in particular in pretrial detention centres, goes on for most of the day... Even when serving long prison sentences, persons convicted of political offences usually have no right to work and very little time for recreation. They are not allowed to practise their religion (e.g. Buddhism in Tibet, Islam in Xinjiang). 22 [55] The RAD notes that, in this case, the Appellant's charge is not political and will, therefore, not be treated accordingly. Therefore, on the RAD's examination of the gravity of the offence, the legal processes in China, and the proposed method of punishment, the RAD does not find that the punishment faced by the Appellant rises to the level anticipated by subsection 97(1). The RAD also concludes on a balance of probabilities that, if the Appellant is being sought by Chinese authorities, it is because he actively participated in the contravention of a law of general application and is being sought by the PSB on that basis which does not conform to grounds for protection as a Convention refugee or a person in need of protection. DISPOSITION [56] The RAD agrees with the RPD's determination and finds that, on the basis of the totality of the evidence in this appeal, the Appellant has not satisfied the burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in China. The Appellant has alleged that the RPD erred in rejecting his claim. The RAD finds no such errors and, upon review of the evidence, has reached the same conclusion as the RPD. [57] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division. [58] Accordingly, this appeal is dismissed. (signed) "L. Favreau" L. Favreau October 5, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, paras 54 and 55. 2 Chen, Jin Xiang v. M.C.I. (F.C., no. IMM-5888-12), Rennie, March 26, 2013, 2013 FC 311. 3 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (3 May 2013), item 9.8, Response to Information Request (RIR) CHN104188.E, p. 96. 4 Chen, Jin Xiang v. M.C.I. (F.C., no. IMM-5888-12), Rennie, March 26, 2013, 2013 FC 311. 5 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (3 May 2013), item 12.27, RIR CHN102560.E. 6 Rodriguez Diaz, Jose Fernando v. M.C.I. (F.C., no. IMM-4652-07), O'Keefe, November 6, 2008, 2008 FC 1243; [2009] 3 F.C.R 395, para. 16. 8 Rodriguez Diaz, Jose Fernando v. M.C.I. (F.C., no. IMM-4652-07), O'Keefe, November 6, 2008, 2008 FC 1243; [2009] 3 F.C.R 395, para. 16. 9 Gong, Jie Dong v. M.C.I. (F.C., no. IMM-4200-07), Dawson, May 14, 2008, 2008 FC 600. 10 Chan, Kwong Hung v. M.E.I. (F.C.A., no. A-223-92), Heald, Mahoney (dissenting), Desjardins, July 21, 1993. Reported: Chan v. M.E.I., [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (F.C.A.); CanLII 2979. 11 Gong, Jie Dong v. M.C.I. (F.C., no. IMM-4200-07), Dawson, May 14, 2008, 2008 FC 600. 12 Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995, at 5. 13 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 14 Zolfagharkhani, Fereidoon v. M.E.I. (F.C.A., no. A-520-91), Hugessen, MacGuigan, Décary, June 15, 1993. Reported: Zolfagharkhani v. M.E.I. [1993], 3 F.C. 540; (1993), 20 Imm. L.R. (2d) 1 (C.A.). 15 Ibid., Zolfagharkhani. 16 Ibid., Zolfagharkhani. 17 Cheung, Ting Ting v. M.E.I. (F.C.A., no. A-785-91), Mahoney, Stone, Linden, April 1, 1993. Reported: Cheung v. M.E.I., [1993] 2 F.C. 314 (C.A.); (1993) 19 Imm. L.R. (2d) 81 (F.C.A.), at 319. 18 Suleman, Adams v. M.E.I. (F.C.A., no. A-1297-91), Desjardins, Décary, Létourneau, May 5, 1994. 19 Zhu, Yong Liang v. M.E.I. (F.C.A., no. A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994, at 2-3. 20 Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995, at 5. 21 Chan, Kwong Hung v. M.E.I. (F.C.A., no. A-223-92), Heald, Mahoney (dissenting), Desjardins, July 21, 1993. Reported: Chan v. M.E.I., [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (F.C.A.); CanLII 2979. 22 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (May 3, 2013), Item 2.3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD File No. / N° de dossier de la SAR : TB3-08831