TB5-07472

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 : TB5-07472 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 13, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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, 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 appeal and he does not request an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that he is a Convention refugee or a person in need of protection, or refer the matter back to the RPD for re-determination. 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 is a 27-year old Chinese national who turned to Falun Gong in late XXXX 2014 as he had suffered an injury to XXXX XXXX while working for a delivery company in XXXX. The Appellant was injured in XXXX 2013 and tried medical treatments, acupuncture and massage to treat the problem, all to no avail. A friend told him about Falun Gong in spring of 2014 and the Appellant began practicing with his friend at his home. By XXXX of 2014, the Appellant's XXXX XXXX was improving and his friend told him he would receive an even bigger benefit from practicing in a larger group. The Appellant then joined the group and his back pain continued to improve. However, on XXXX XXXX, 2015, the group's practice was raided by the Public Security Bureau (PSB). The Appellant made his escape and immediately went into hiding. On XXXX XXXX, 2015, the Appellant was told by his sister that the PSB had come to the house looking for him. On XXXX XXXX, 2015, the PSB returned to the Appellant's home and left a summons for him. The Appellant found an agent to assist him in leaving the country, which he did on XXXX XXXX, 2015, fleeing to the United States of America (U.S.), first to Hawaii, and then to Seattle. The Appellant then walked across a park to enter into Canada. He made an inland asylum claim on April 9, 2015. [4] The Appellant's application for refugee protection was heard on June 3, 2015. In a decision on June 26, 2015, the RPD rejected the claim finding that the Appellant was not a credible witness and was neither a Convention refugee nor a person in need of protection. [5] The Appellant submits that the RPD's determination is based on erroneous findings and, as such, is unsustainable. The Appellant argues that the RPD erred in its credibility findings on the following issues: a) The Appellant's exit from China. b) The Appellant's failure to make a refugee claim in Europe or the U.S. c) Rejecting credible corroborative evidence. d) Unfairly rejecting the Appellant's sur place claim. e) Unsupportable findings in respect of the Appellant's passport. ROLE OF THE RAD [6] The RAD finds that the recent Federal Court decision in Huruglica1 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". [7] 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. ANALYSIS OF THE MERITS OF THE APPEAL Exit from China [8] The RPD found that the Appellant would not be able to leave China on his own passport if he was wanted by the PSB. The Appellant submits that the RPD finding is speculative and is contrary to well accepted case law. The Appellant further submits that Federal Court case law has resolved this issue of the plausibility of one's ability to leave China on his own passport. The RAD is not persuaded by the Appellant's submission. [9] The Appellant refers to the Federal Court decision in Sun2 and Zhang3 to support his argument. The RAD notes that the circumstances in this appeal can be distinguished from the facts in Sun.4 The RAD notes that in the Sun matter, the RPD's decision was based on the documentary evidence that existed at that time in respect of the existence and expansion of the national Chinese policing database used by the PSB at ports of entry and exit of the country. The RAD notes that updated references to the Golden Shield Project now exist in the National Documentation Package,5 which was relied upon by the RPD in this case. [10] The RAD is aware that corruption in China exists and that there are well established smuggling networks. The RAD, notes the more recent documentary evidence confirms that the Chinese government has a national computer network known as the Golden Shield Project,6 and the PSB has access to a national policing database, which includes information about criminal fugitives and information on passports and exit and entry. The RAD's review and assessment of the evidence makes it clear that the police do have a national database that is used to screen passengers at airports and that there are a number of checks and balances in place to ensure persons who are wanted by the police are prevented from traveling abroad. [11] The RAD finds that in light of the Appellant's allegation that the PSB have continued to show interest in pursuing him and that they have issued a formal document indicating their interest in him, it is reasonable to expect that the local authorities would have entered the information into the database to further their efforts to apprehend him. [12] The RAD's own assessment of the evidence reveals additional documentary evidence, which indicates that the capabilities and scope of the Golden Shield are vast. An undated article on the website of the Ministry of Public Security, entitled "Deepening the Implementation of the 'Golden Shield' Project" states: that all police units nationwide have access to eight public security databases, including the "National Basic Population Information Database" (China n.d.). Also accessible through the databases is information on household registration [hukou], border exit and entry, road traffic, and criminal investigations (ibid.)...7 [13] In addition, the representative of the Laogai Research Foundation provided the following information: The Golden Shield incorporates extensive tracking and control mechanisms such as real-name online registration requirements, GPS monitoring, and facial recognition surveillance technology in a multi-pronged approach to identify potentially disruptive individuals. Policenet, a component of the Golden Shield, stores a wealth of information on Chinese citizens and connects the various agencies and levels of command within the public security apparatus. This integrated system enables Chinese public security forces to effectively target and neutralize political dissidents. (26 Feb. 2014)8 [14] A July 2012 article published by the state-run Xinhua News Agency stated that police departments have established a database for criminals around the country, while the procuratorates have also started the inquiry system for bribery records.9 [15] The RAD further notes that the Appellant has submitted that the Zhang decision found that it would not be implausible that a person who is wanted would be able to travel on his own passport. The Appellant does not cite specific documentary evidence, but the RAD has reviewed the current documentary evidence on the record, specifically the UK Home Office, Country of Origin Information Report, sections 33.06 and 33.07,10 which confirms the involvement of corrupt Chinese officials in the smuggling of persons being sought by the Chinese authorities. A review of the documentary evidence provides evidence that corrupt officials are involved in the smuggling of people through border controls. The RAD notes that section 33.06 reveals that there have been some dated cases of corrupt officials involved in the production of genuine and false identity documents for money or to smuggle members of their own family abroad. However, the evidence does not speak to the pervasiveness of the practice nor does it provide any indication that the same circumstances exist today. [16] As reported by the Canadian Immigration and Refugee Board (IRB) on 8 September 2005, a professor of criminal justice at Rutgers University, who has written on Chinese human smuggling, told the Research Directorate that, in his opinion, "it is pretty easy to obtain all kinds of fake documents in China, including identity documents, birth certificates, university diplomas and hospital documents." Furthermore, citing a 2002 report by the Australian Institute of Criminology, the IRB reported that corrupt Chinese officials provide "both genuine and fraudulent documents in exchange for money, or... for the migrant smuggler's promise to smuggle a member of the corrupt official's family abroad." [17] The RAD also finds that section 33:07 does not offer persuasive evidence that corrupt officials are involved in the smuggling of people being sought by the Chinese authorities. Rather, the documentary evidence cited by the Appellant is based upon the speculation of one observer rather than substantiated facts. [18] A representative of the New York-based Human Rights in China (HRIC) states that: [i]t is completely conceivable that corrupt officials could be involved in the illegal production and sale of fraudulent [identity] documents. Reports to this effect circulate regularly, sometimes involving passports as well... The fake documents would be most useful to people with active arrest warrants trying to evade police notice, or for obtaining employment or housing... [19] The RAD additionally notes that the circumstances in this appeal can be distinguished from the facts in Zhang.11 The RAD notes that in the Zhang matter, the RPD engaged in the speculation that hundreds of officials would have to be bribed. In the case at hand, the RPD did not engage in such speculation. The RAD finds it implausible when one considers the documentary evidence described herein in respect of the electronic surveillance system in place in China that the Appellant's smuggler could have bribed all of the officials needed in order to circumvent detection at the XXXX airport in order to facilitate his safe exit from China. [20] Furthermore, the decision in Zhang was based on the documentary evidence that existed in 2008 and made no reference to the Golden Shield Project, which was relied upon by the RPD in this case. In the Zhang matter, the reviewing court made reference to a 2001 Response to Information Report (RIR), which addressed security and exit control procedures at Chinese airports. The documentary evidence before the RPD on issues of security and exit control is contained in RIR CHN102869.E dated July 2008. The RIR states in part: In March 2008, the General Administration of Civil Aviation of China (CAAC), China's aviation regulator, reportedly introduced new security regulations (Airport International 17 Mar. 2008; Xinhua 27 Mar. 2008). The regulations instruct airport security to conduct a more thorough examination of hand luggage, to ban liquids on flights (ibid.; Airport International 17 Mar. 2008), and to have passengers remove their shoes for security checks (Xinhua 27 Mar. 2008). The regulations additionally prohibit "easy boarding" services, which had previously allowed passengers to obtain faster security checks and priority boarding (ibid.; Airport International 17 Mar. 2008). According to a 27 March 2008 article by the Chinese Xinhua News Service, the CAAC has also requested that all international airlines provide "accurate," "complete" and "timely" information on passengers and airline staff to the Chinese border authorities (Xinhua 27 Mar. 2008). The requested information reportedly includes name, nationality, gender, date of birth and passport number and expiration date (ibid.).12 [21] Based on the foregoing, it is clear that security practices have become increasingly stringent in China in recent years and that there are systems now in place to identify persons leaving the country. [22] The RAD has considered that the Appellant used a smuggler to exit China. However, the RAD finds that the objective evidence concerning the Golden Shield and other border controls in place at China is compelling and convincing. While it might be possible for a smuggler to bypass some of the security controls, the RAD finds that based on the evidence in the record it is highly unlikely that the Appellant could have bypassed all of the security controls in place; particularly in light of the Appellant's allegations that there was a summons issued for his arrest. [23] The Appellant's submission is that the smuggler bribed an officer at the airport and it would only take one individual to remove the Appellant's name from the "system", if it were even there. The RAD has considered this possibility. The RAD acknowledges that the documentation states, in part, that in some instances, there have been reports of police not sharing information. Given the alleged relentless pursuit of the claimant by the PSB and their alleged willingness to follow internal procedure vis a vis the alleged summons for the Appellant, it is reasonable to expect that the Appellant's name would have been entered in the database as a person wanted by the PSB. The Appellant's statements in his Basis of Claim (BoC) form narrative13 indicate the PSB are still pursuing him. The RAD finds it reasonable to believe the Appellant's allegations of ongoing pursuit by the PSB would serve to confirm he has not been removed from the "Golden Shield or Police Net". As such given the alleged PSB interest in the Appellant, the RAD finds, on a balance of probabilities, it is unlikely that the Appellant would have been able to leave China without being detected. [24] The RAD and the RPD are entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.14 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.15 In this case, there is an evidential foundation for the RPD's finding that the Appellant would not be able to leave China on his own passport if he was wanted by the PSB. After its own review and assessment of the evidence the RAD agrees with the RPD's findings in this regard. As such the Appellant's argument fails. In addition the RAD finds the Appellant's ability to leave China on a genuine passport indicates he is not being sought by the authorities in China and undermines the credibility of the basis of his claim. Failure to Claim Elsewhere Europe [25] The RPD made a negative inference against the Appellant because he failed to make a refugee claim in any of the six European countries he travelled through in XXXX 2014. The Appellant submits at the time of his trip he was not known to or wanted by the PSB. The RAD is not persuaded by the argument of the Appellant. [26] The RAD has reviewed the record as well as the audio recording of the hearing. The RAD has considered the Appellant's testimony where he confirmed he knew that Falun Gong practitioners were persecuted in China. He testified that if he was arrested and imprisoned that he was aware that organ harvesting was performed on Falun Gong practitioners. In addition the Appellant's BoC form narrative indicates he was aware of the risks to himself and his family members of being a Falun Gong practitioner. The RAD further notes the Appellant when asked to explain why he did not make a claim for refugee protection in Europe testified that he felt safe practicing in China. The RAD has considered this aspect of the Appellant's testimony and finds when weighed against his testimony about the persecution of Falun Gong practitioners in China, his testimony appears internally inconsistent. [27] The Appellant testified that he practiced Falun Gong in hotels throughout his trip to Europe. The RAD further notes the Appellant has made a sur place claim in association with his Canadian claim for refugee protection. The Appellant submits in this component of his claim that regardless of whether he is a genuine Falun Gong practitioner, the Chinese government monitors suspected Falun Gong practitioners in Canada and he is at risk should he return to China. The RAD finds that this submission by the Appellant confirms he believes there is a risk of harm to Falun Gong practitioners both inside and outside of China. [28] The RAD in considering the Appellant's actions while on vacation in Europe, finds that they could be interpreted in two ways; one that his testimony in respect to his activities in Europe is not credible and he is not a genuine Falun Gong practitioner. The second interpretation being that if he is a genuine practitioner, both his testimony as well as his actions in Europe leads the RAD to conclude he should have initiated a claim for refugee protection at that time. In either circumstance the RAD finds the credibility of the Appellant's allegations is severely undermined. [29] The RAD has considered the words of Mr. Justice Rouleau in Kabengele where he stated: It is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to a country where he feared persecution makes the existence of such a fear unlikely.16 [30] The RAD has considered the Appellant's testimony that he was not wanted by the Chinese authorities at the time of his travel to Europe and weighed it against the Appellant's testimony and allegations of risk to any individual practicing Falun Gong in China and his allegations that he would also be at risk by practicing Falun Gong outside of China. The RAD finds the Appellant's actions demonstrate a lack of subjective fear of persecution. The RAD having reviewed the evidence agrees with the finding of the RPD in this instance and the Appellant's argument must fail. United States of America (U.S.) [31] The RPD found the Appellant's actions of failing to make a claim for refugee protection while in the U.S. to be unreasonable and that action suggests both that the Appellant is not genuinely afraid of being returned to China, and further, that he is blatantly asylum shopping. The Appellant submits the RPD approached his explanation with the presumption that he was not being truthful. The RAD is not persuaded by the argument of the Appellant. [32] The RAD has reviewed the audio recording of the hearing and notes the Appellant was confronted as to why he chose not to make a request for refugee protection in the U.S. He responded by stating that he had a friend in Canada and that he would like to settle in a place where he knew somebody. The RAD notes the Appellant provided no additional testimony on the subject. The RAD further notes that the Federal Court has stated that delay or failing to initiate a claim for protection points to a lack of subjective fear, the rationale being that someone who was truly fearful would claim refugee status at the first opportunity: [16] It is trite law, as the Board recognized, that in assessing a applicant's subjective fear of persecution, the Board can take into consideration the applicant's behaviour. The Federal Court of Appeal in Heer v. M.E.I. (13 April 1988) Doc. No. A-474-87 (F.C.A.) recognized that an applicant's delay in claiming refugee status "is an important factor which the Board is entitled to consider in weighing a claim for refugee status". As the Board states, delay points to a lack of subjective fear of persecution, the reasoning being that someone who was truly fearful would claim refugee status at the first opportunity.17 [33] The Appellant was in the U.S., a democratic country with a similar asylum system to that in Canada. The Appellant as much as he did not disclose his passport indicated in his testimony that he possessed some form of legal status in the U.S. Further to this, the Appellant made a choice to risk crossing the U.S./Canada border illegally. The RAD notes that had the Appellant been apprehended on the U.S. side of the border crossing he would risk deportation from the U.S., commensurate with his allegations of fear. [34] The RAD finds while the Appellant has provided an explanation, his testimony displays a lack of subjective fear of persecution. The Appellant could have been arrested and deported back to China at a number of immigration control points while entering the U.S. or while attempting to enter Canada illegally. [35] The RAD notes that failure to seek and applying for refugee protection in a country that is a signatory to the UNHCR is not an automatic bar to claim for protection, however the Federal Court18 has held that it can be an important factor which the Board is entitled to consider in weighing a claim for refugee status. The RAD notes the Appellant is not an unsophisticated individual. He has travelled on a number of occasions to other countries and the RAD finds it reasonable to believe the Appellant would be familiar with the process of obtaining visas and seeking information from immigration authorities. The RAD finds that the Appellant's action is inconsistent with a person living in fear of persecution in their country. It is expected that genuine Convention refugees would seek protection as soon as it is practical. The RAD finds the absence of a satisfactory response to the RPD's questions about not making a refugee claim in a safe location further undermines the Appellant's credibility and indicates a lack of subjective fear. [36] Further to this the RAD notes the words of the Federal Court in Ibnmogdad v. Canada: Finally, it was reasonable for the tribunal to draw a negative inference from the fact that the applicant had travelled through Germany, Portugal and Ireland, yet waited to claim refugee status in Canada. The recent decision of Remedios v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 617 (Q.L.), reaffirms the principle that it is not unreasonable to conclude that the failure of an applicant to claim refugee status in countries that are signatories to the Geneva Convention amounts to country shopping.19 [37] The RAD has considered the Appellant's testimony and the sole reason he provided for choosing not to make a claim for refugee protection in the U.S. The RAD finds the Appellant did utilize a form of asylum shopping in his choice to choose Canada as a location to make his claim for refugee protection. [38] When considered in isolation, each of the Appellant's actions in failing to initiate a claim elsewhere might not be sufficient to raise significant credibility concerns. However, when considered together, the RAD finds the Appellant has not provided a sound explanation for failing to make a refugee claim on two other occasions prior to his arrival in Canada. The RAD finds the Appellant's delay further undermines his subjective fear and the credibility of his allegations of harm. The RAD finds in its review of the evidence there is an evidentiary basis for the RPD findings and the Appellant's argument must fail. Rejection of Corroborating Evidence The summons [39] The RPD found the summons submitted as support for the Appellant's claim was not genuine. The Appellant submits the RPD had no justifiable basis for rejecting the summons. The RAD is not persuaded by the argument of the Appellant. [40] The RAD has reviewed the document submitted in evidence and considered the arguments of the Appellant. The RAD notes the document contains the basic information present on a public security summons as described in the documentary evidence.20 The RAD further notes that the documentary evidence21 describes the format of a public security summons: "[p]ublic security summonses should be printed in two copies. The first copy is to be included to the case file, while the second copy is served to the suspect or defendant." Additional evidence showing a sample describes that the summons should have a left and right component, "The section on the left is the counterfoil while the section on the right is to be given to the person being summoned."22 The RAD finds the summons submitted in evidence appears to be a single document with no evidence of having been attached to a "counterfoil" section as illustrated in the sample contained in the documentary evidence. The RAD therefore has cause to question the authenticity of the summons. [41] The RAD has considered the Appellant's argument in respect of the information to be contained on the face of the summons. The RAD has reviewed the documentary evidence and case law cited by the Appellant. The RAD finds that documentary evidence referenced by the Appellant addresses variations in actions and procedures of the PSB in China, not the standardization of documents.23 The RAD notes that the documentary evidence states "the format and appearance of summonses should not differ according to the territorial jurisdiction of courts, procuracies and public security organs".24 The RAD has considered the Appellant's submissions in respect to the RPD findings about address information that should appear on the summons in question. The RAD has discussed that the documentary evidence indicates the format and appearance of a summons should be uniform throughout China. As much as these findings may seem sensible in a city of over 13 million people, they are not supported by the documentary evidence. While not all of the RPD's reasons for rejecting the summons are valid, the RAD finds there are sufficient reasons to doubt the genuineness of the summons. [42] Further to this, the Appellant submits the Federal Court in Jiang25 has addressed the issue surrounding the rejection of documents from China based on the grounds that fraudulent documents are readily available in China. The RAD finds in its review of the record it is clear that the RPD did examine and weigh the summons and it did not arbitrarily discount the summons solely on the basis of the prevalence of fraudulent documents coming out of China. The RPD has examined the original document and is open to draw conclusions about it. In addition to the irregularities noted on the face of the summons, the RAD notes that the RPD also found that the Appellant is not wanted by the PSB which was based on its assessment of his ability to leave China utilizing his genuine passport. [43] The Appellant in his BoC form narrative indicates that the PSB still continue to seek to arrest him in China. The RAD notes a summons is the documentary basis for the subsequent issuance of an arrest warrant if the person in whom they are interested does not respond to the summons. The RAD notes that no additional PSB documents were disclosed in evidence. Although this policy is not always implemented, given that the authorities have allegedly continued to inquire about the Appellant, it is reasonable to expect, given the documentary evidence,26 that an arrest warrant or coercive summons would have been left with the Appellant's sister. The Appellant's statements indicate that the PSB had far more than a casual interest in him. The RAD finds that the Appellant's testimony further detracts from the credibility of the document submitted in evidence. [44] The RAD in assessing the evidence surrounding the summons finds there is sufficient evidence to assign the document little evidentiary weight in this appeal. The Notice of Termination [45] The RPD assigned the Appellant's Notice of Termination letter27 little evidentiary weight in corroborating the Appellant's allegations. The Appellant submits the RPD rejected the document on the basis that fraudulent documents are readily available in China. The RAD is not persuaded by the argument of the Appellant. [46] The RAD in its review of the record finds that the RPD assessed the document against prior testimony concerning the Appellant's employment and other credibility concerns surrounding his practice of Falun Gong in China. As discussed previously the RAD finds that the RPD did not utilize the single parameter concerning availability of fraudulent documents to arrive at its finding. The RAD has reviewed the document and agrees with the findings and assessment of the RPD. [47] The RAD finds on its review of the Notice of Termination there is sufficient evidence to assign little evidentiary weight to this document. The Medical Record [48] The RPD assigned no evidentiary weight to the Appellant's Medical Record28 because it simply corroborated that the Appellant injured his back, but did not provide evidence to support his identity as a Falun Gong practitioner. The Appellant submits this finding is nonsensical. The RAD is not persuaded by the argument of the Appellant. [49] The RAD finds the Appellant has taken the comment from the RPD Reasons out of context. The RAD upon its review of the record notes that the RPD has stated that the document does confirm the Appellant injured his back. Further to this, the RAD finds the RPD has not implied that the document should state that the Appellant turned to Falun Gong for help, but that it does not provide any salient information that would assist in supporting the Appellant's identity as a Falun Gong practitioner. The RAD in its review of the evidence it concurs with the finding of the RPD in this issue and the Appellant's argument must fail. [50] In summary the RAD finds in its review of the Appellant's corroborative evidence that there is sufficient evidence to warrant the assignment of little evidentiary weight to the summons, the termination letter and the medical record. Transit to Canada [51] The RPD found the Appellant's inability to describe landmarks at the border crossing where he allegedly entered Canada detracted from his credibility. The Appellant submits he entered Canada at an unknown location and that RPD finding is entirely speculative. The RAD is not persuaded by the argument of the Appellant. [52] The RAD has reviewed the audio recording of the hearing. The RAD notes the Appellant's testimony indicated he crossed at the U.S.-Canada border crossing between Seattle and Vancouver. He testified that he saw a building where cars were checked as he walked through the park. The RAD finds it is reasonable to accept that the border entry point described by the Appellant was the Peace Arch Park. [53] The RAD does not find the Appellant's submission that he did not enter Canada at an official border crossing, but at an unknown location is credible. The RAD finds the Appellant's testimony in respect to his illegal crossing of the border by walking through the park was vague and lacked specific detail. The RAD further notes the Appellant was prompted by the RPD as to what types of responses it was seeking in respect to landmarks. The RAD finds the Appellant's testimony was lacking in credibility and it concurs with the finding of the RPD in this issue and the Appellant's argument must fail. Work History [54] The RPD found the Appellant's testimony in respect of his employment history and job description was inconsistent and detracted from his credibility. The Appellant submits the RPD focused on minutiae and lost sight of the big picture. The RAD is not persuaded by the argument of the Appellant. [55] The RAD has reviewed the audio recording of the hearing and notes the Appellant's testimony in respect of his occupation was vague and at times contradictory. The RAD finds that in isolation the Appellant's testimonial failing such as forgetting when he began working at his job or the inconsistency between his occupation as a labourer in his port-of-entry IMM form and his testimony that he worked as a courier are minor issues. When one considers that the Appellant has alleged that he had a work related injury that led him to take up Falun Gong, these inconsistencies become more meaningful. [56] The RAD notes the Appellant has a high school education and is not unsophisticated. The RAD finds it is reasonable to believe that an individual, who has worked at the same occupation for ten years, would be able to provide free flowing testimony in respect of his employment. The RAD concurs with the finding of the RPD in this instance and the Appellant's argument fails. The passport [57] The RPD made a negative inference through the Appellant's failure to disclose his Chinese passport in support of his claim for refugee protection. The Appellant submits the RPD provided no explanation for its statement that it did not accept that he hired a snakehead to assist him in leaving China. The RAD is not persuaded by the argument of the Appellant. [58] The Appellant testified that the smuggler retained his passport because it did not contain genuine information and it would be subject to investigation. The RAD notes the Appellant's explanation is a generalized, non-specific statement. The RAD finds in reviewing the record finds that one must read the decision or at least this portion of the decision as a whole. The RAD notes the RPD identified that it found the Appellant was not a credible witness and this finding was a central component in its findings associated with the passport. [59] The RAD notes in its review of the audio recording of the hearing the Appellant was questioned extensively about his exit from China and travel with the smuggler. The RAD finds the Appellant's testimony in this area was often lacking in detail. The RAD in reviewing the record finds there were a number of issues that arose during the RPD hearing that were unable to be addressed through the absence of the Appellant's passport. These include, but are not limited to: i. Documentation of the Appellant's presence in China at the time he alleges persecution. ii. Documentation of the Appellant's exit from China. iii. Documentation of the Appellant's travel route to Canada. iv. Documentation of the Appellant's U.S. visa and status in the U.S. v. Documentation of the Appellant's previous travel. (i.e. Singapore and Malaysia in 2012, Europe in XXXX 2014). [60] The RAD finds that the Appellant's testimony in respect to many of these issues would have been supported by the presence of the Appellant's passport. A key example of this during the hearing occurred when the Appellant testified that he had recently been in Europe travelling through many countries following which he re-availed to China. The RAD notes this information had not been previously disclosed by the Appellant. The RAD has cause to question what additional information would have arisen if the Appellant did disclose his passport. [61] The RAD notes the words of Justice Harrington where he cites the decision of Mr. Justice Nadon, as he then was, in Elazi v. Canada (Minister of Citizenship and Immigration), 191 FTR 205, [2000] FCJ No 212 (QL) where he said at paragraphs 17 and 18: [17] I take this opportunity to add that it is entirely reasonable for the Refugee Division to attach great importance to a claimant's passport and his air ticket. In my opinion, these documents are essential to establish the claimant's identity and his journey to come to Canada. Unless it can be assumed that a refugee status claimant is actually a refugee, it seems unreasonable to me to ignore the loss of these documents without a valid explanation. In my view, it is to easy for a claimant to simply state that he has lost these documents or the facilitator has taken them. If the Refugee Division insists on these documents being produced, the facilitators may have to change their methods. [18] Minimizing the importance of the passport and air ticket as documents to be produced or ignoring their non-submission for all sorts of reasons in my opinion only serves to encourage all those whose only purpose is to take advantage of a system which is intended solely to enable genuine refugees to come to Canada.29 [62] The RAD finds in considering the cumulative credibility concerns identified in this claim that the failure by the Appellant to disclose his passport further detracts from the credibility of his allegations. The RAD finds in its review of the evidence that the RPD did provide sufficient reasons to support its conclusion. The RAD finds the Appellant's argument must fail. The Appellant's actions when injured [63] The RPD found the Appellant's actions of failing to take time off work when injuring his back detract from his credibility. The Appellant submits the RPD's findings were speculative. The RAD finds the Appellant's argument has merit. [64] The RAD finds in reviewing this aspect of the audio recording of the hearing as well as the record that the RPD has made an implausibility finding that is not supportable. The RAD finds the Appellant's testimony that he had to return to work to make a living and further to that that he could not take an extended leave from work because he might lose his job is a reasonable response. The RAD finds the RPD has attempted to impose its own values and beliefs in arriving at its finding. [65] The RAD notes that although the RPD's finding in this instance is speculative, it is not sufficient to overcome the other credibility findings in this appeal. The sur place claim [66] The RPD found there was no persuasive evidence to suggest that the Chinese authorities are aware or would become aware that the Appellant had attended a Falun Gong group or Falun Dafa celebration in Canada. The Appellant submits the RPD did not address this issue in its decision. The RAD is not persuaded by the argument of the Appellant. [67] The RAD has reviewed the record as well as the audio recording of the hearing. The RAD finds the RPD clearly assessed this aspect of the Appellant's claim during the hearing and addresses its findings in paragraph 25 of its Reasons: "there is nothing before me to suggest that the Chinese authorities are aware or would become aware that the claimant had attended a Falun Gong group or Falun Dafa celebration here in Canada."30 [68] In this respect, the RAD is guided by the Federal Court Trial Division decision in Wang,31 which held that a sur place claim could not be maintained in the absence of evidence that the making of the refugee claim had specifically come to the attention of the authorities of the claimant's country of origin. The RAD finds that the RPD did consider the risk to the Appellant if the Chinese authorities became aware of his Falun Gong activities in Canada. [69] The RAD further notes that the Appellant makes the statement that the RPD based its rejection of the claim on previous unsustainable credibility findings, but it does not provide arguments contesting the credibility findings in the sur place analysis. The RAD has reviewed the credibility findings in this portion of the RPD hearing and finds they are absent any error. The RAD finds the Appellant's argument is without merit. [70] The RAD has reviewed the credibility findings in this appeal. The RAD further finds that the credibility findings concerning the central components of this claim are significant and compelling, as well as being supported by the evidence in the record. The RAD finds that, based on these credibility findings, it was open to the RPD to find that the Appellant was generally lacking in credibility and that he was not a genuine practitioner of Falun Gong. [71] Having found that the Appellant was not a Falun Gong practitioner in China, the RPD considered whether the Appellant's activities in Canada would place him at risk of persecution. Having previously found the Appellant's testimony with regard to his Falun Gong affiliation in China not credible, the RAD finds that it was open to the RPD to find, on a balance of probabilities, that his claim that he was a Falun Gong practitioner in China was made to further a fraudulent refugee claim. [72] The RAD also finds as noted by the RPD that there is no persuasive evidence that the Appellant's practice of Falun Gong in Canada has come to the attention of Chinese authorities or that he would be perceived to be a genuine practitioner. [73] The RAD notes that the Appellant has alleged that his desire to initiate the practice of Falun Gong took place as a result of circumstances, which occurred in China. He alleges his continued practice of his alleged belief system in Canada is based on his adherence to his practice in China. Having found that he was not a Falun Gong practitioner in China and having no evidence of conversion in Canada, the RAD finds, on a balance of probabilities, and in the context of the findings noted above, that the Appellant joined a Falun Gong group in Canada only for the purpose of supporting a fraudulent refugee claim. [74] In the context as noted above and on the basis of the totality of evidence, the RAD finds, on a balance of probabilities, that the Appellant is not a genuine adherent of Falun Gong, nor would he be perceived to be in China. CONCLUSION AND DETERMINATION [75] The Appellant has alleged that the RPD erred in rejecting his claim. Notwithstanding the error made by the RPD in drawing a speculative conclusion, the RAD finds after its review and assessment of all of the evidence in the record that it concurs with the adverse credibility findings and significant uncontested credibility findings of the RPD. The RAD 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. [76] Accordingly, 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. (signed) "Robert Bebbington" Robert Bebbington October 13, 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 Sun v. Canada (Citizenship and Immigration), F.C., no. IMM-8088-13), Montigney, March 27, 2015: 2015 FC 387. 3 Zhang, Xiu Jie v. M.C.I. (F.C., no. IMM-2703-07), Dawson, April 23, 2008; 2008 FC 533. 4 Sun v. Canada (Citizenship and Immigration), F.C., no. IMM-8088-13), Montigney, March 27, 2015: 2015 FC 387. 5 Exhibit RPD-1, RPD Record, National Documentation Package, China version 31 October 2014, item 10.4. 6 Ibid., items 2.3 and 10.4. 7 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China (31 October 2014), item 10.4. 8 Ibid. 9 Ibid. 10 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China (31 October 2014), item 2.3. 11 12 Exhibit RPD-1, RPD Record, NDP for China (31 October 2013), item 14.3, RIR CHN102869.E. 13 Exhibit RPD-1, RPD Record, pp. 14 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 15 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 16 Kabengele v. MCI (F.C. no., IMM-1422-99), Rouleau, November 16, 2000 at para 41. 17 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324. 18 Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994. 19 Ibnmogdad v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 327; 2004 FC 321, Canada: Federal Court, 25 February 2004, available at: http://www.refworld.org/docid/4132e0144.html [accessed 11 January 2014]. 20 Exhibit RPD-1, RPD Record, National Documentation Package for China, 31 October 2014, item 9.8. 21 Ibid. 22 Ibid., item 9.10. 23 Jiang v. Canada (M.C.I.), 2014 FC180. 24 Exhibit RPD-1, RPD Record, National Documentation Package for China, item 9.8. 25 Supra footnote 23. 26 Exhibit RPD-1, RPD Record, National Documentation Package for China, 31 October 2014, 9.8. 27 Exhibit RPD-1, RPD Record, pp. 28 Exhibit RPD-1, RPD Record, pp. 29 Okafor v. Canada (Citizenship and Immigration), Harrington, 28, January 2012, 2012 FC 99, IMM-2081-11. 30 Exhibit RPD-1, RPD Record pp.3-16. 31 Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001; 2001 FCT 1237. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07472