TB5-05539

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 : TB5-05539 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 26, 2015 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mark Rosenblatt 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, a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] 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 a person in need of protection. In the alternative, the Appellant asks that the RAD refer her claim back to the RPD for re-determination. [3] The Appellant is not relying on any evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA),1 and is not requesting that a hearing be held at the RAD under subsection 110(6) of the IRPA. The Minister of Citizenship and Immigration Canada (the Minister) is not intervening in this Appeal. DETERMINATION [4] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD. The appeal is dismissed. BACKGROUND/ALLEGATIONS [5] The Appellant alleged before the RPD that she began practicing Falun Gong in December, 2013 because she had no energy and was always in a bad mood due to a bad breakup with her long-time boyfriend. In January 2014, the Appellant joined her friend's Falun Gong group. They practiced on weekends at three different practitioners' homes. On XXXX XXXX, 2014, their practice session was interrupted by the Chinese authorities; the practitioners ran out through the rear door of the house. The Appellant went to her distant cousin's house to hide. While hiding, the Appellant learned that officials from the Public Security Bureau (PSB) had gone to her house two days later, and accused the Appellant of being involved in illegal Falun Gong activities. The PSB told the Appellant's parents that they had already arrested several of the Appellant's fellow practitioners. On XXXX XXXX, 2014, the PSB issued an arrest summons; the Appellant's father signed for the receipt of the summons. [6] The Appellant was afraid of being detained, and therefore, remained in hiding. The Appellant decided to flee China; her family supported her decision. With the help of a smuggler, the Appellant fled China, and arrived in Canada. Since arriving in Canada, the Appellant has learned that the PSB are still making inquiries about her whereabouts. [7] The Appellant continues to practice Falun Gong in Canada. [8] The Appellant's application for refugee protection was heard on March 19, 2015. In a decision on May 15, 2015, the RPD rejected the claim finding that the Appellant was not a credible witness, and determined that she was not a genuine Falun Gong practitioner. [9] The Appellant submits that the RPD's determination is based on erroneous findings. The Appellant argues that the RPD erred in its credibility findings on the following issues: * Did the Member err in law in finding that the Appellant was not wanted in China for practising Falun Gong? * Did the Member err in law in its assessment of the Appellant's Falun Gong identity?2 ROLE OF THE RAD [10] Counsel has made submissions in regard to the role that the RAD plays in the review of a RPD decision.3 [11] The Canadian jurisprudence 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 the RPD, a first-level administrative tribunal. [12] In the Federal Court decision in Huruglica,4 Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusions; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts only where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [13] Accordingly, the RAD will conduct its own assessment of the RPD 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 Falun Gong Identity Falun Gong Knowledge [14] The RPD found that the Appellant was not a genuine Falun Gong practitioner. The RPD found that the Appellant did not know some of the basic concepts of Falun Gong. The RAD notes that the Appellant had been practising Falun Gong in China for several months prior to leaving China, and has been studying the Zhuan Falun since arriving in Canada. [15] The Appellant submits that the RPD's assessment of the Appellant's Falun Gong identity was flawed.5 Referring to several Federal Court cases,6 the Appellant submits that the RPD's high expectations and criticisms of the Appellant's Falun Gong knowledge were unfair and unreasonable.7 [16] The Appellant states: As recognized by other Members of the Refugee Protection Division as well as the Federal Court, the concepts of Falun Gong are "pretty esoteric" and "difficult to understand for people with extremely high intelligence and a great deal of formal education."8 [17] The Appellant submits that the Appellant only had access to Falun Gong books after she arrived in Canada and that the books are difficult to understand even for people with high education. The Appellant adds that her knowledge of Falun Gong was more than adequate.9 [18] The RPD found that the Appellant did not know two of the most basic concepts in Falun Gong, i.e., meridians (pathways) and qi (energy).10 The RPD acknowledges that the philosophy behind Falun Gong is very esoteric; and adds that it can be obtained by reading texts by Master Li and does not have to be acquired through genuine practice of Falun Gong.11 The Appellant testified that she had started to study the Zhuan Falun after she arrived in Canada and that she had joined a study group. In consideration of the facts that the Appellant was a Falun Gong practitioner in China, and has continued the practice after coming to Canada, and has joined a study group to study Zhuan Falun. The RAD finds the Appellant's inadequate understanding of two of the most basic concepts of Falun Gong undermines her credibility relating to her identity as a genuine Falun Gong practitioner. In reviewing the recording of the RPD proceedings, the RAD finds the Appellant's answers to the RPD's questions were not forthcoming, and finds the Appellant lacked adequate knowledge about the basic concepts of Falun Gong. Based on the totality of the evidence submitted/adduced in this case, the RAD finds the Appellant was able to name some concepts, and provide concurrence when prompted by the RPD; however, the Appellant was not forthcoming in providing answers to exhibit an understanding of those concepts. In this regard, the RAD concurs with the RPD's findings. [19] Regarding her identity as a genuine Falun Gong practitioner, the Appellant provided pictures of herself engaged in Falun Gong movements.12 The Appellant also provided a letter from a fellow practitioner which states that the Appellant is "a real Falun Gong practitioner".13 The RPD gave these documents little weight. The RAD reviewed these documents and finds they do not provide sufficient reliable and satisfactory probative evidence in establishing that the Appellant is a genuine Falun Gong practitioner; therefore, in this respect, the RAD concurs with the RPD and gives these documents little weight in considering whether the Appellant is a genuine Falun Gong practitioner. [20] The RAD finds the RPD's assessment of the Appellant's knowledge did not focus on microscopic analysis or only one particular area; therefore, the Appellant's arguments that the RPD's high expectations and criticisms of the Appellant's Falun Gong knowledge were unfair and unreasonable must fail. [21] In reviewing the totality of the evidence in this case, the RAD notes the Appellant's testimony shows that she has learned a number of key responses or facts associated with Falun Gong philosophy. But when the RPD asked about particular concepts, she was not forthcoming, and exhibited limited knowledge. [22] Based on the totality of the evidence in this case, and the foregoing reasons, the RAD agrees with the findings of the RPD and finds the Appellant has failed to establish that she is a genuine Falun Gong practitioner. Summons [23] The Appellant provided a Ju Chuan Zheng at the RPD;14 a summons certificate. This document states that the summons for the Appellant was issued on July 15, 2014 by an official of the PSB. [24] The RPD found the summons to be fraudulent because the summons did not provide any direction as to what the Appellant were to do in response to being summoned by the PSB.15 The Appellant submits that there was no information in the National Documentation Package (NDP) that contradicted the information in the summons. The Appellant submits that there is a wide variation in enforcement procedures and documents in China. The Appellant submits that the RPD speculated about what should be on a summons document in China in arriving at its findings.16 [25] The RAD reviewed the documentary evidence17 on record and finds it reasonable to expect the summons to include information relating to where the Appellant were to report, i.e., which PSB station and its location if there were to be multiple stations in the city. The RAD finds a city as large Guang Zhou would have, on a balance of probabilities, multiple PSB offices; thus the RAD concludes it is reasonable to expect that a specific PSB office would have been indicated on the summons in this case. [26] The Appellant testified that the summons was given to her family, and that her father signed for the receipt of the summons. The RAD reviewed the summons and finds there is no signature showing that the summons was received and signed by the Appellant's father as alleged. Therefore, the RAD finds the Appellant not credible regarding her story that a summons has been issued in her name in China and that the summons were received by her father while she was in hiding. The RAD finds this further undermines the Appellant's credibility regarding her being a Falun Gong practitioner in China, and thus fearing the PSB upon return because she has been accused by the PSB for being involved in illegal Falun Gong activities. [27] The RAD concurs with the RPD in that the summons document appears to be fraudulent. [28] Furthermore, based on the documentary evidence,18 the RAD finds the subject in the summons is to appear at the PSB within specified time-frame of being served summons; failing to do this, the authorities would issue an arrest warrant for the accused. The RAD finds the Appellant submitted no arrest warrant. The RAD finds the Appellant provided insufficient reliable and satisfactory probative evidence to establish that she is accused and pursued by the PSB for being involved in illegal Falun Gong activities. Leaving China with genuine Chinese documents [29] The Appellant fled China because she was in fear of being apprehended by the authorities for being a Falun Gong practitioner. She testified that she was wanted by the PSB in China; and that PSB had issued summons for her on XXXX XXXX, 2014. The Appellant testified that she remained in hiding until she fled China. The Appellant left China on November 12, 2014. The Appellant testified that she fled China with the help of a smuggler. [30] The RAD finds the documentary evidence shows that the PSB monitors citizens' exits from China, and that an individual wanted by the PSB would be noted in a government computer database. The documentary evidence shows that the airport authorities in China are connected to Policenet, a PSB database of persons wanted by the PSB.19 The RAD is aware that authorities in China do not always apply regulations evenly, and that there is systemic corruption in China. Nonetheless, the documentary evidence shows that authorities at airports and at borders conduct thorough screening of passengers. Based on the preponderance of the documentary evidence indicating that airport officials have access to computer systems allowing them to see if the person travelling is wanted by the Chinese authorities, the RAD finds that it is more likely than not that the Appellant would have been stopped from exiting China if she truly was wanted by the PSB for being involved in illegal Falun Gong activities. [31] Moreover, the Appellant exited China using her own genuine identity documents. The RAD finds the Appellant actions and behaviour in this regard show that the authorities in China were not pursuing her. This finding further undermines her credibility. [32] Based on all of the above, the RAD finds the Appellant has not established her identity as a Falun Gong practitioner in China, and thus the RAD finds she is not wanted by the PSB. Sur place [33] The Appellant's counsel in his written submissions argued that the Appellant's Falun Gong activities in Canada would put her at risk of persecution in China if she tried to do the same things in China. Counsel further added that she is a genuine Falun Gong practitioner and that she would not be able to practice Falun Gong freely and openly if returned to China due to the ban on Falun Gong and the ongoing persecution of Falun Gong practitioners. [34] The RAD has considered that even if the Appellant was not a genuine practitioner of Falun Gong, she could still be at risk if her Falun Gong activities in Canada came to the attention of the Chinese authorities upon return to China. [35] The RAD in its review of the record finds that there was no persuasive evidence submitted/adduced at the RPD hearing or in her Basis of Claim (BOC) form that the Appellant's practice of Falun Gong in Canada has come to the attention of Chinese authorities or that she would be perceived to be a genuine Falun Gong practitioner upon return to China. In this respect, the RAD is guided by the Federal Court Trial Division decision in Wang,20 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. [36] The RAD notes the Appellant has alleged that her desire to initiate the practice of Falun Gong took place as a result of circumstances, which occurred in China. She alleges her continued practice of her alleged belief system in Canada is based on her adherence to her practice in China. Having found that she was not a genuine Falun Gong practitioner in China, and having insufficient reliable and satisfactory probative evidence of conversion in Canada, the RAD finds, on a balance of probabilities, the Appellant was not a Falun Gong practitioner in China, and that she is not a Falun Gong practitioner in Canada. In the context of the findings noted above, the RAD further finds that the Appellant joined a Falun Gong group in Canada only for the purpose of supporting a fraudulent refugee claim. [37] In the context as noted above and on the basis of the totality of evidence, the RAD finds that the Appellant is not a genuine adherent of Falun Gong, nor would she be perceived to be a Falun Gong practitioner in China. As the RAD has found that the Appellant is not a Falun Gong practitioner, the argument by counsel that the Appellant's human rights would be violated for practicing Falun Gong upon return to China has no foundation and no merit. Delay in Claiming [38] The RPD made a negative credibility finding in respect to the Appellant's short delay in making a claim for refugee protection in Canada. The Appellant submits that the RPD erred in attributing delay in claiming to the Appellant. [39] The RAD notes that someone who is truly fearful can reasonably be expected to claim refugee status at the first opportunity;21 delay points to a lack of subjective fear of persecution.22 While delay is not a decisive factor in itself, it is a relevant element to be taken into account.23 Justice Pelletier in Stoica stated, "The assumption that an individual with a genuine fear of persecution would take the first opportunity to claim refugee status does not depend on the validity or source of the fear."24 [40] The RAD having reviewed the totality of the evidence submitted/adduced in this case, finds the delay in making the claim in this case is not significant. The RAD finds the RPD's finding in this regard to be not meritorious. [41] The RAD does not support the RPD finding in respect of the delay in claiming and finds the Appellant's argument in this regard must stand. Summary [42] The RAD having conducted a comprehensive review of the totality of the evidence finds, the Appellant is not a genuine Falun Gong Practitioner based on: * Insufficient Falun Gong Knowledge, * Failure to provide persuasive evidence that she was a Falun Gong practitioner in China, and * Her participation in Falun Gong activities in Canada were undertaken for the purpose of furthering a fraudulent refugee claim. Disposition [43] The RAD finds, based on its analysis of all the evidence in the record, there is sufficient evidence to support the RPD's determination. [44] The RAD finds, 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 she would be persecuted on a Convention ground, or that she would be personally subjected to a risk to her life or to a risk of cruel and unusual treatment or punishment, or to a danger of torture by the authorities in China. [45] Accordingly, this appeal is dismissed. (signed) "S.S. Kular" S.S. Kular November 26, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 2-3, p. 42. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 4-7, pp. 43-44. 4 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014, 2014 FC 799. 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 40, p. 49. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 44-46, pp. 50-53. 7 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 43, p. 50. 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 47, pp. 53-54. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 50, p. 54. 10 Exhibit P-2, Appellant's Record, Decision and Reasons, at paras. 20-21, p. 8. 11 Exhibit P-2, Appellant's Record, Decision and Reasons, at para. 22, pp. 8-9. 12 Exhibit RPD-1, RPD's Record, at pp. 197-198. 13 Exhibit RPD-1, RPD's Record, at pp. 195-196. 14 Exhibit RPD-1, RPD's Record, at pp. 193-194.The certificate states that the Appellant was summoned on July 15, 2014. 15 Exhibit P-2, Appellant's Record, Decision and Reasons, at para.7, p. 4. 16 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 17-24, pp. 46-47. 17 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (October 31, 2014). 18 Ibid. 19 Exhibit RPD-1, RPD's Record, NDP for China (October 31, 2014), items 10.4, Responses to Information Requests (RIR) CHN104762.E and 14.3 RIR CHN104761.E. 20 Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001, 2001 FCT 1237. 21 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003, 2003 FC 1324. 22 Castillejos, Joaquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994. 23 Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 24 Stoica, Valentin v. M.C.I. (F.C.T.D., no. IMM-1388-99), Pelletier, September 12, 2000. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05539