TB5-03297

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 : TB5-03297 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 XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 15, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Leonard H. Borenstein 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) is a citizen of China. The Appellant 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 appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find her to be a Convention refugee, or in the alternative, refer her claim back to the RPD for redetermination. 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. Memorandum of Appeal [3] The Appellant submits that the determinative issue in this claim is the Appellant's credibility, and that the RPD erred in its assessment. Background [4] The Appellant alleges that she had an unhappy marriage and gave a description of the events. About January 2014, a friend introduced her to Falun Gong as a means of getting rid of her unhappiness and suffering. After being instructed by her friend on the procedure for doing the five exercises, she joined a Falun Gong practice group at the end of January 2014. On XXXX XXXX, 2014, the Appellant's practice group was raided by the Public Security Bureau (PSB) and the Appellant escaped and went into hiding at an aunt's house. The Appellant's husband informed her the next day that two members of her practice group had been arrested, and as a result, the Appellant left China on November 20, 2014. The Appellant used her own Chinese passport and a Canadian visa that she had obtained in order to travel to Canada on September 16, 2014. After her arrival in Canada, her aunt told her that the PSB had come looking for her at her house on November 20, 2014 and left a Chuanpiao (subpoena) with her husband accusing her of being involved in illegal Falun Gong sabotaging the social order of the country. [5] The Appellant's application for refugee protection was heard on February23, 2015, and in a decision dated March 4, 2015, the RPD rejected her claim finding that the Appellant did not have a well-founded fear of persecution and therefore was neither a Convention refugee nor a person in need of protection, within the meaning of section 96 or 97 of the IRPA. Minister of Citizenship and Immigration Canada ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [6] The following evidence was submitted by the Minister: 1. Five Country Conference (FCC) Tier 3 (T3) report regarding client XXXX, United States Department of Homeland Security, 10 March 2015. 2. Attachments to FCC T3 report, US visa applications of XXXX XXXX XXXX XXXX dated: August 2012, January 2013, and September 2013. 3. Frequently Asked Questions pertaining to the DS-160 United States visa application, found on the website of the US Department of State, Bureau of Consular Affairs: [http://travel. state.gov/content/visas/English/forms/ds-160-- online-non-immigrant-visa-application/frequently-asked-questions.html] (accessed 23 March 2015). 4. China's Passenger information gathered by airlines for international flights to and from China (2014-2015). CHN105153.E. Response to Information Request, Immigration and Refugee Board of Canada, 31 March 2015. [7] Section 110(3) of IRPA allows the RAD to accept documentary evidence from the Appellant. Section 110(4) provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] While the IRPA contains restrictions on the nature of the evidence submitted to the RAD by a person who is the subject of an appeal,1 such restrictions do not apply to the Minister (the Intervener here),2 nor do they apply to any evidence submitted by the Appellant in response to the Minister.3 [9] Section 171(a.3) of the IRPA provides that the RAD may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. [10] The Minister submits that, pursuant to paragraph 110(3) of the IRPA, he wishes to rely on new evidence not contained in the record of proceedings of the RPD. The Minister asks that the negative determination of the RPD be upheld; reject the appeal made by the Appellant; and conclude that the Appellant is not a Convention refugee or a person in need of protection. [11] The Minister submits that the Appellant's omissions of the three prior United States of America (USA) visa applications are relevant in the decision. The Minister submits that as part of the visa application process, Ms. XXXX would have had to go in person to the visa interviews with US officials and convince them that she was telling the truth. All her US visa applications were denied because the Americans believed she was intending to immigrate, even though she had applied for tourist visas. The Minister comments on the electronic signature certifying that the Appellant would have read and understood the questions in the application, and that the answers were true and correct. The Minister also notes that prior to the collections of fingerprints at a US embassy or consulate, an applicant would be directed to read the following statement: "By submitting my fingerprint, I am certifying under penalty of perjury that I have read and understood the questions in my visa application and that all statements that appear in my visa application have been made by me and are true and complete to the best of my knowledge and belief. Furthermore, I certify under penalty of perjury that I will tell the truth during my interview and that all statements made by me during my interview will be complete to the best of my ability.4 The remainder of the Minister's submissions will be addressed in the body of the RAD decision. [12] The RAD has no reason to doubt that the documents provided with the Minister's intervention are credible or trustworthy. They originate with the Citizenship and Immigration Canada. [13] The Appellant did not provide a response to this intervention by the Minister. The RAD, admits into evidence the documents provided with the intervention. SUBMISSIONS [13] The Minister further submits that this new evidence was not available at the time of the hearing and is central to the determination of this claim. The evidence submitted directly contradicts the evidence presented by the Appellant. The Minister argues that the Appellant had no reasonable explanation for lying to the United States government on three occasions, particularly since the applications were all filed before she was introduced to Falun Gong. [14] The Minister submits that the Appellant is now trying to deceive Canadian authorities, just as she tried on three occasions to circumvent US immigration laws. [15] The Minister noted IRB documentation outlining the implausibility of a Chinese citizen being able to leave China using their own personal documentation, when they are wanted by the authorities. [16] The Minister is not requesting a hearing under section 110 (6) of IRPA. ROLE OF THE RAD [17] The Appellant submitted case law but made no submissions on the standard of review. [18] The RAD finds that the Federal Court decision, in Huruglica,5 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. 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 Appellant 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." [19] 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Merits of the Appeal Material Omissions [20] During testimony, the Appellant testified that she had made three prior United States of America (USA) visa applications, and all were denied. The RPD noted that none of these applications were mentioned in her completed Schedule 12. The RPD did not accept the appellant's explanation of misunderstanding the question, in that Schedule 12 says, "Have you ever been refused refugee status, an immigrant or permanent resident visa or application or visitor or temporary resident visa to Canada or any other country?" The RPD noted that the Appellant's explanation, in testimony, was that she thought it was asking whether she had ever been to the USA before but the question does not make a reference to the USA. [21] Counsel for the Appellant submitted that it was a simple omission and that the Appellant gained no advantage in failing to mention this information. The RPD found that the Appellant's action of failing to mention the three prior USA visa applications in her documentation, demonstrated a willingness to mislead Canadian authorities, or be an attempt on her part to hide a pattern of a long-term effort in seeking a way to exit China. The RPD noted that biometric information, normally available at the hearing, was not present but arrived after the hearing. [22] The Appellant submitted that the Board erred in finding that the Appellant failed to disclose three prior USA visa applications, referring to the RPD's decision regarding the normal submission of biometric information in such cases. The Appellant submits that by revealing these visa applications during the hearing, the RPD finding of an omission is not a determinative finding. The Appellant submits that had she wished to hide this fact, she would have remained silent during the hearing, especially when the biometric report was not in evidence. The appellant submits that she did not attempt to mislead Canadian authorities because she volunteered this information at the hearing. [23] The RAD concurs with the RPD's finding on this issue, and draws a negative inference regarding the Appellant's credibility. The RAD finds that the Appellant's failure to disclose this personal information when completing Schedule 12 is a material omission in this decision, and causes the RAD to question the Appellant's overall credibility regarding her documentation and testimony at the hearing. The RAD, referring to the information provided by the Minister, notes that the Appellant stated that she was a retiree who had been employed by the XXXX XXXX XXXX XXXX., as a labor union XXXX. The Appellant also stated on these US visa applications that she had previously worked as a Section XXXX XXXX XXXX XXXX XXXX XXXX XXXX Bureau from XXXX 1996-XXXX 2000. The statements, sworn to be truthful, as noted above, are in direct opposition to the information provided to Citizenship and Immigration Canada /Canada Border Services Agency, where she stated that she is a doctor. The RAD finds, on a balance of probabilities, that the Appellant deliberately misled Canadian authorities in order to gain admission into Canada, and submit a fraudulent refugee claim. Exit from China [24] The RPD found that the Appellant would not have been able to exit China on her own documentation if she was wanted by the PSB. The RPD did not accept the Appellant's reasoning as follows: the PSB came to her house looking for her on November 20, 2014, the day after she fled the country. The RPD found this reasoning implausible in that according to testimony and documentation, three friends had been arrested on November 16, 2014, and that it was unlikely, on a balance of probabilities, that the PSB would have taken 3 to 5 days to attempt to arrest the claimant. The RPD's reason that if the Appellant's story was true, the PSB would have moved more quickly to locate the claimant given the seriousness with which they view genuine Falun Gong practitioners. As a result of this reasoning, the RPD believes that the Appellant was fabricating her claim. [25] The Appellant made no submissions on this issue. It was an issue also addressed by the Minister in his intervention. [26] The RAD concurs with the RPD's assessment of the situation, and draws a negative inference concerning the Appellant's credibility. In listening to the recording, the RAD agrees with the RPD's findings that the Appellant's reasoning for her ability to exit China on her own documentation was not credible. The RAD finds given the seriousness of the alleged story, that the PSB would have acted immediately in trying to locate and/or detain the Appellant. The Minister addresses this issue in his intervention. Quoting documentation, submitted with the intervention, CHN 105153.E, the Minister outlined the extensive amount of information that is gathered on passengers before they go through the exit immigration inspection procedures. The Minister found it implausible that the Appellant would be able to leave under the conditions described. The RAD, in reviewing the IRB documentation, concurs and finds, on a balance of probabilities, that the Appellant's claim of being wanted by the authorities for the practice of Falun Gong, not credible. [27] An additional piece of documentation, submitted by the Appellant, was examined by the RAD and is found to be fraudulent. The government produced and issued Chuanpiao Summons submitted by the Appellant was compared to IRB documentation CHN104458.E. The summons submitted in documentation, does not match the Government issued summons in the IRB documentation. The documentation outlines the credible sources used to acquire these samples of subpoenas and summons issued by the authorities in China. The RAD finds, on a balance of probabilities, the summons submitted is fraudulent. As a result, the RAD finds that the Appellant was not wanted by the authorities in China for the practice of Falun Gong, and draws a negative inference. The Appellant has not been credible regarding critical issues of this claim. The RAD finds, given the Appellant's lack of credibility, and, on a balance of probabilities, that she did not practice Falun Gong in China and her story regarding the central issue of this claim is not credible. Lack of Subjective Fear [28] The RPD found the central element of the Appellant's claim to be nonsensical. The RPD stated that a well-educated professional, an alleged obstetrician, would seek other remedial measures to deal with her unhappiness, rather than begin the practice of Falun Gong. The RPD's reasoning was that there was serious risk to her personally as well as her family, by being involved in such an activity. The RPD questioned the Appellant about more reasonable measures being undertaken, such as seeing a psychiatrist, taking antidepressants, doing more exercise, or getting a divorce. The Appellant's explanation that she was unhappy, not ill, was not accepted by the RPD in that the Appellant was allegedly a doctor, and would be aware that depression is considered an illness. The RPD found that the Appellant turning to Falun Gong was not reasonable, and that her lack of subjective fear in doing so impugned her credibility. As a result, the RPD found that the Appellant simply fabricated her story of being a Falun Gong adherent. [29] The Appellant submits that the RPD ignored the evidence before the Board, and referred to the Appellant's Basis of Claim (BOC) narrative where she outlines her reasons for joining an illegal activity. The appellant submits that she did not begin the practice of Falun Gong immediately, rather waited until she had been assured of the security measures that were in place. The appellant submits that this reluctance to join the practice of Falun Gong supports her story of joining Falun Gong. The appellant further submits that the RPD's decision is speculative and not based on the evidence before the Board. [30] In listening to the recording, and reviewing the documentation submitted, the RAD concurs with the RPD's reasoning on this issue. It would be reasonable that if the Appellant was a doctor, as alleged, that knowledge about depression would cause her to seek alternative measures before joining an activity declared illegal by the Chinese government. Although the RAD agrees with the Appellant regarding the speculative quality of the RPD's reasoning, the RAD finds that it would be reasonable for the Appellant to seek alternative measures, given her alleged profession. To put her family at risk by joining an activity determined illegal by the Chinese authorities is not credible. This finding by the RPD is not, by itself, the determinative issue in this claim. Reavailment [31] The RPD drew a negative inference from the claimant re-availing herself to China after a visit to British Columbia, Canada, in September 2014. The RPD did not accept the Appellant's explanation that because she was not wanted by the PSB at that time, she saw no need to make a claim. The RPD reasoned that if her allegations of being a true Falun Gong adherent since January 2014 were true, and her testimony of being acutely aware of the serious risks she took in practicing Falun Gong in China were also true, then she would not have reavailed at that time. [32] The Appellant submits that without evidence being adduced that she was even aware that she could make a refugee claim in September 2014 causes the RPD's negative inference regarding credibility on this issue, to be an error. The Appellant also states that there was no evidence before the RPD as to Falun Gong being central to the Appellants very being, and therefore, the RPD's decision on this issue is a mischaracterization. [33] The RAD concurs with the Appellant's reasoning and submissions on this issue. In listening to the recording, the RAD finds that the Appellant's explanation was reasonable. There was no evidence before the RPD that the Appellant was wanted by the Authorities at that time, or that the practice of Falun Gong was central to her very being at that time. The RAD finds that the issue of reavailment is not determinative to this refugee claim, and will not overturn the decision of the RPD on this issue, as the RAD finds this not to be a determinative issue in this claim. Other Material Omissions [34] The RPD questioned the claimant at length about her BOC omission regarding the circumstances of hiding at her aunt's house, after the alleged raid by the PSB. The RPD commented on and questioned the Appellant about the prearrangement with her aunt regarding hiding at her place because of her Falun Gong practice. The RPD made no finding on this issue. [35] The Appellant submitted that the omission from her BOC narrative regarding the circumstances of her aunt cannot be considered a material omission. [36] The RAD finds that the omission in the Appellant's BoC narrative of the circumstances regarding her aunt is not a determinative issue in this claim. Although this information was not in the Appellant's BoC narrative, the issue surrounding her aunt and the arrangements made are not central to the Appellant's refugee claim. [37] The RPD found that the Appellant was aware of the Falun Gong verses and exercises. The RAD finds, given the lack of credible documentation, addressed above, that the Appellant, on a balance of probabilities, was not wanted by the authorities for the practice of Falun Gong in China. The RAD also finds, on a balance of probabilities that the Appellant was not a Falun Gong practitioner in China. Although the Appellant demonstrated some knowledge of Falun Gong, the RAD finds, on a balance of probabilities, that the Appellant began the practice of Falun Gong in Canada for the purpose of submitting a fraudulent refugee claim. No evidence was adduced at the hearing that the Appellant has come to the attention of the Chinese authorities. The RAD finds, that the Appellant could return to China without fear of persecution or risk to life. Disposition [38] The RAD has found that the RPD's decision can stand. CONCLUSION [39] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Robert S. Garner" Robert S. Garner June 15, 2015 Date 1 Immigration and Refugee Protection Act (IRPA), Section 110(4). 2 IRPA, Section 171(a.5). 3 IRPA, Section 110(5). 4 Exhibit P-2, Appellant's Record, U.S. Department of Homeland Security (Received April 30, 2015), at pp. 26-27. 5 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03297