TB5-11286

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 : TB5-11286 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 1, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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 his claim for refugee protection. He has not submitted new evidence in support of his claim and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and remit the matter to the RPD for reconsideration by a differently-constituted panel. 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. The appeal is dismissed. Background [3] The Appellant alleged he is at risk of persecution by the Public Security Bureau (PSB) in China because of his religious identity as a Shouter. He travelled to the United States in 2000 and made a claim for protection based on China's family planning policy. His claim was denied two years later and he remained in the United States illegally until he returned to China in 2011. Subsequently, when his friend died he joined his wife's underground "local church". The church was raided by the PSB and he escaped and went into hiding. The PSB pursued him and left a summons with his mother. He left China and arrived in Canada on XXXX XXXX, 2015. The issues [4] The panel indicated the determinative issue in this claim is credibility. [5] The Appellant submits the issues in this appeal are: what is the applicable standard of review; and whether the RPD made unsustainable credibility findings. The role of the RAD [6] 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. [7] 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. [8] 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. [9] 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 "palpable and overriding error". [10] 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. [11] The RAD notes the Appellant has provided a brief analysis concerning the appropriate standard of review for consideration of this appeal. The RAD notes it has indicated its view as to the RAD's role in this appeal. Credibility [12] The panel found the Appellant not credible with respect to his material allegations that he is a Christian, or that he is a Shouter, and that he is wanted by the PSB for his religious activities. [13] The Appellant submits the RPD made unsustainable credibility findings. Fingerprints [14] The panel noted that the United States Department of Homeland Security confirmed a fingerprint match for the Appellant.2 The biometric report indicates that the Appellant was fingerprinted on "2013XXXX XXXX XXXX XXXX- Location unknown-ICE enrolment of enforcement fingerprints previously not digital." [15] The Appellant confirmed he provided his fingerprints in Canada in 2015. He further confirmed his name was the same as the one in the biometric report, but his date of birth was incorrect, and he stated he had not been in the United States on 2013XXXX XXXX XXXX XXXX. The Appellant stated the biographical match must be an error. [16] The panel rejected the explanation as unreasonable. The panel noted the Appellant did not disclose any primary identity documents. Neither did he disclose his asylum claim documents from the United States, nor did he make an effort to retrieve them. The panel gave more weight to the biometric report than the Appellant's testimony, and drew a negative inference concerning the Appellant's allegations that he was never fingerprinted in 2013. The panel indicated that given the Appellant was fingerprinted by U.S. authorities in 2013, there is a doubt as to his whereabouts in 2013 or whether he made a U.S. visa application in 2013 that he has not disclosed. [17] The RAD notes the Appellant makes no submissions concerning the panel's findings noted above. Conflicting dates concerning the Appellant's religious identity [18] The panel questioned the Appellant about when he began to follow Christianity and the Appellant replied "XXXX XXXX, 2013". The Appellant further testified that this was the first time he followed Christianity. The panel noted the Appellant stated in his Basis of Claim Form (BOC) that he first turned to Christianity in 1998. The Appellant explained that his mother is a Christian but at that time he did not attend much and attended only later. The Appellant further testified he attended a government church in 1998-2000. The Appellant explained that he thought the panel was asking him when he became a Shouter. [19] The panel rejected this explanation and noted the inconsistency is significant and material. The panel further noted the question was clear and general in nature and he was not asked when he became a Shouter. The panel drew a negative inference in regard to this discrepancy. In addition, the panel found the Appellant not to be credible as to his allegation that he attended a government church from 1998 to 2000. [20] The RAD notes the Appellant makes no submissions regarding the panel's findings noted above. Church attendance [21] The panel asked the Appellant why he did not continue attending church after 1998-2000. The Appellant explained that he went with his wife and then left the country and she stopped attending church. The panel asked the Appellant if his leaving China was the only reason he stopped going to church, and the Appellant said yes and that he went to the United States. The panel noted the Appellant indicated in his BOC that the reason he stopped attending church was because it was "...too dominated by the ideology of the Chinese Communist Party."3 The Appellant responded that that is also the reason. The panel asked the Appellant why he did not say that earlier, and the Appellant stated that it is a government sponsored church and he had to follow the rules, but the panel did not ask him that. [22] The panel rejected this explanation and noted the Appellant was asked a number of times why he stopped attending church in 1998-2000. The panel drew a negative inference as to the Appellant's credibility concerning his allegation that he attended church in China in 1998-2000. [23] The RAD notes the Appellant makes no submission regarding the panel's findings noted above. Christian religious knowledge [24] The panel questioned the Appellant about his church participation since arriving in Canada. The Appellant testified he started attending a church on XXXX XXXX, 2015, and has attended on Sundays. He further testified he was baptized on XXXX XXXX, 2015, and he studies the Bible at home almost every night. [25] The panel asked the Appellant what was talked about in the service and what hymns were sung. The Appellant responded that the service was mostly based on the Bible, such as the story of Jesus' resurrection and sometimes there is hymn singing. The panel asked the Appellant to provide details about Bible stories. The Appellant explained he did not know what to say because they just listen to the pastor talking about something different every week. He further testified there were handouts but he has to refer to them and he does not remember. [26] The panel noted the Appellant's Christian knowledge lacked substance and he was unable to indicate what Bible stories the pastor spoke about, apart from the resurrection. The panel drew a negative credibility inference as to the Appellant's alleged profile as a Christian. The panel noted the Appellant testified he attended church weekly and reads the Bible almost every night, and found it is not reasonable that the Appellant could not speak beyond generalities about his Christian knowledge. Knowledge of Shouter religion [27] The panel asked the Appellant to speak about the history and beliefs of the Shouter religion. The Appellant testified the religion was started by Tuo Sheng Yi in 1922 and he explained they "...shout it out, feel the spirit free, feel good afterwards." The panel asked if the Appellant could say anything else about the religion. The Appellant explained "so you shout it out and feel good and you are in communication with God if you have anything. Calling out God's name after communicate with God feels very good." [28] The panel noted in the hearing that the objective evidence concerning the Shouter religion indicates that "Shouter's are an offshoot of Watchman Nee's little flock..."4 and asked the Appellant why that was different from what he stated. The Appellant stated yes and he is a disciple. The panel noted the Appellant did not mention this disciple in earlier testimony, even though he was asked to talk about Shouter history. The Appellant responded he did say it. The panel rejected this explanation as the Appellant did not talk about the disciple when he was asked about the origins of the Shouter religion. [29] The panel asked the Appellant to talk about the teachings of Witness Lee and the Appellant stated he teaches according to the Bible. The panel asked the Appellant if there was anything specific that differentiates the Shouter religion. The Appellant responded "different singing or praying we shout it all...shout...." The Appellant was asked if he had anything else to add and he responded no, and they just go according to the Bible. [30] The panel noted the objective evidence states that "Witness Lee taught that the Shouters were the only true church, teaching or preaching from the Bible is unnecessary, the gift of tongues can be taught, and that the Shouters can save people by making them say 'O Lord' three times."5 The panel further stated in the hearing that this was different from other types of Christianity and asked the Appellant why he did not mention this when he was asked to talk about the Shouter religion. The Appellant responded that he mentioned the need to shout it out. [31] The panel drew a negative inference as to the Appellant's credibility concerning his inability to provide evidence concerning the origins and beliefs of the Shouter religion and in what way it is different from other types of Christianity. The panel found the Appellant's allegation that he was an adherent to the Shouter religion not to be credible. [32] The panel noted the Appellant has been attending Church services since his arrival in Canada and that he has been baptized, and his knowledge of the Shouter religion should be reflective of his participation at church. [33] The panel noted that in subsequent testimony, the Appellant was able to answer some Christian knowledge questions posed by counsel. The panel further noted the Appellant was unable to spontaneously answer the panel's questions, in this regard, earlier in the hearing and gave little weight to his subsequent answers. [34] The Appellant submits that the panel's finding that he did not demonstrate sufficient religious knowledge to establish he is a genuine Christian, was based on an overly stringent and microscopic analysis. [35] The Appellant further submits that Federal Court case law sets a very low standard on refugee claimants to demonstrate religious knowledge as a requirement for proving religious identity. The Appellant notes in this regard, that it is the sincerity of a person's beliefs and practices that matters and not whether the beliefs and practices are objectively valid. [36] The Appellant argues that the panel erroneously weighed his testimony on this issue against its own misguided idea of what a person in his circumstances should or would know or understand. The Appellant submits the panel based its finding that he was not credible in claiming to be a Shouter Christian on unreasonable requirements for religious knowledge. [37] The RAD has reviewed all of the evidence in the RPD's record concerning the Appellant's knowledge of Christianity and of Shouter Christianity in particular, and is not persuaded by the Appellant's argument. [38] The RAD acknowledges that Federal Court jurisprudence makes clear that a negative assessment concerning religious knowledge should not be founded on minutiae or by holding the claimant to an unreasonably high standard of religious knowledge. The RAD also notes that Federal Court jurisprudence makes clear that it is appropriate for the RPD to question a claimant as to religious knowledge in an effort to gauge the genuineness of a claimant's beliefs or to consider whether a claimant's religious knowledge is at a level to be expected in the claimant's circumstances.6 [39] The RAD further cites, in this regard, the Federal Court's decision in Shen, in which the Court stated, "In cases of religious persecution, the RPD is required to assess whether the person is actually an adherent of the named religion and in doing so, the member is entitled to ask questions about the basic tenets of that religion."7 [40] The RAD finds, on the basis of its review and assessment of the evidence, that the panel's findings in this regard are based on a sound analysis. The RAD disagrees with the Appellant that the panel's questions were overly stringent and microscopic, and notes that the Appellant was unable to provide substantive evidence as to the differences between the Shouter religion and mainstream Christianity, other than shouting the Lord's name. The RAD finds that the Appellant lacked knowledge of the basic tenets of either the Shouter religion or mainstream Christianity. [41] The RAD agrees with the panel that the Appellant's religious knowledge should be reflective of a person who testified he regularly attended weekly services since XXXX XXXX, 2015, more than two months before the first sitting of the hearing and more than six months before the second sitting. The RAD notes as well, the Appellant alleged he attended a Shouter church in China from XXXX XXXX XXXX 2013 to XXXX XXXX, 2015. The RAD finds the Appellant's religious knowledge is far less than can be reasonably expected for someone in the Appellant's alleged circumstances. [42] The RAD also notes other uncontested findings that relate to the Appellant's religious identity. As noted above, the Appellant makes no submission in regard to the panel's negative credibility finding concerning the inconsistency in his testimony as to when he began practising Christianity. In addition, the Appellant makes no submission regarding the panel's negative credibility finding as to why he did not attend church services in 1998-2000. [43] The RAD acknowledges the difficulty in judging the genuineness of a person's religious practice. However, on the basis of its assessment of all of the evidence and the analysis above, the RAD agrees with the panel that the Appellant has failed to establish that he is a genuine practising Christian or a Shouter. Corroborative documentation [44] The panel noted a number of documents provided by the Appellant, including a notice of arrest for his wife, a summons, and a letter from his church in XXXX.8 The panel did not find that these documents overcame the cumulative credibility findings noted above. The panel also noted the availability of fraudulent documents in China as well as the Appellant's admission he used fraudulent passports on three different occasions. [45] The panel further noted the Appellant provided photographs of himself at his church. The panel found, given its credibility findings noted above, these photographs do not establish the Appellant's religious identity. [46] The panel concluded that the Appellant had failed to establish his religious identity as a Christian or a Shouter. [47] The Appellant submits the panel rejected the documentary evidence he provided without assessing them in their own right to determine if they are authentic. The Appellant further submits the documents were rejected on the basis of previous credibility findings as well as on the fact that fraudulent documents are available in China. [48] The Appellant cites the decision of the Federal Court in Jiang,9 in which the Court stated that the fact that fraudulent documents are available in China does not mean that every document from China is necessarily fraudulent. [49] The Court in Jiang also cited Lin,10 in which the Court stated that the RPD "...must analyze all of the evidence before it and weigh the positive against the negative.... The RPD was obliged to examine and weight the actual documents in front of it, rather than simply rejecting them out of hand." [50] The RAD agrees with the Appellant that the panel should have reviewed and assessed the documentary evidence he provided before rejecting it. The RAD also agrees that the availability of fraudulent documentation in China does not mean that all documents from that country are fraudulent. The RAD further agrees that the panel should have analyzed all of the corroborating evidence provided by the Appellant and should have weighed the positive against the negative. [51] The RAD has reviewed all of the documentation noted by the Appellant: the confirmation of his release from detention in China, a receipt for payment of a fine to the PSB, a notice of arrest for the Appellant's wife, a summons, and a letter from his church in XXXX. [52] The RAD finds that the release from detention document11 and the fine receipt12 concern the Appellant's return to China in 2011 and they are not material to the central issue in this claim. The RAD further finds the notice of the Appellant's wife's arrest13 does not corroborate the Appellant's membership in a Shouter church and is therefore not material to the central issue in this claim. In regard to the church letter14 and the photographs,15 the RAD finds they corroborate the Appellant's attendance at the church but do not confirm the Appellant's motivation for joining the church or the genuineness of his religious commitment. [53] The RAD acknowledges that the summons document disclosed by the Appellant appears to be genuine. The RAD notes, however, that country documentary evidence16 indicates that if a summoned person does not respond to a summons, a coercive summons or arrest warrant will be issued by the PSB. The RAD notes that no evidence was disclosed indicating that such a document was received by the Appellant's mother. The RAD further notes that the Appellant's home is in XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The RAD finds that the PSB in such a centre is likely to carry out the requirements of the law. The RAD notes as well, that the documentary evidence disclosed by the Appellant indicates the PSB in XXXX XXXX does document its actions, and the alleged multiple visits by the PSB indicates their serious interest in finding the Appellant. [54] The RAD further finds, in the context of this analysis and the documentary evidence cited above, that there is a serious doubt as to the authenticity of the summons document. The RAD also finds, on the basis of its review and assessment of the evidence in the RPD's record and its responsibility to weigh the positive and negative aspects of the Appellant's evidence, that the panel's negative credibility findings, with which the RAD concurs, are sufficiently persuasive to raise a further significant doubt as to the authenticity of the summons document. The RAD finds the summons document is likely fraudulent and the Appellant is not being pursued by the PSB for his religious activities. [55] The RAD finds, on the basis of its review of the totality of the evidence concerning the credibility of the Appellant's allegations that he was a member of a Shouter church in China, that he is being pursued by the PSB, and that he is now a genuine practising Christian and Shouter, that the Appellant is not a credible witness in this regard and his allegations are not true. Disposition [56] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Milton Israel" Milton Israel February 1, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Exhibit RPD-1, RPD's Record, pp. 262-264. 3 Exhibit RPD-1, RPD's Record, BOC, p. 14. 4 Exhibit RPD-1. RPD's Record, p. 214. 5 Ibid. 6 Gao, Mengmeng v. M.C.I. (F.C., no. IMM-7310-14), Southcott, October 6, 2015, 2015 FC 1139. 7 Shen, Huilan v. M.C.I. (F.C., no. IMM-7237-14), Annis, July 24, 2015, 2015 FC 903. 8 Exhibit RPD-1, RPD's Record, p. 209. 9 Jiang v. Canada (MCI), 2014 FC 180. 10 Lin, Shou Gui v. M.C.I. (F.C., no. IMM-4437-11), Russell, February 6, 2012, 2012 FC 157, at para. 55. 11 Exhibit P-2, Appellant's Record, p. 82. 12 Ibid., p. 84. 13 Ibid., p. 90. 14 Ibid., p. 99. 15 Ibid., pp. 100-102. 16 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (17 July 2015), item 9.8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :