TB4-05900

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 : TB4-05900 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX (a.k.a) XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 31, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 (a.k.a. XXXX XXXX XXXX) (the Appellant) 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. He has however requested an oral hearing. The Appellant requests that the Refugee Appeal Division set aside the determination of the RPD and find that he is a Convention refugee. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination 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 in his Basis of Claim (BOC) narrative that he is a Falun Gong practitioner and he is being pursued by the Public Security Bureau (PSB). [4] His practice group was raided on XXXX XXXX, 2013, and he escaped and went into hiding. On XXXX XXXX, 2013, his wife informed him that the PSB came to their home. He was accused of being a member of an evil cult and his wife was told they had already arrested five of his co-practitioners. On XXXX XXXX, 2013, the PSB returned and issued an arrest summons. [5] A smuggler made arrangements for him to flee China. The Issues [6] The panel indicated the determinative issue in the case at bar is credibility. [7] The Appellant submits the issues in this appeal are the following: 1. The RPD erred in law in ignoring and/or misrepresenting the evidence before it when it determined that the Appellant was not a Falun Gong practitioner and did not have a credible basis for his claim. 2. The RPD erred in law in ignoring and/or misrepresenting the evidence before it when it determined that the Appellant did not have a well-founded fear of persecution if he was a Falun Gong practitioner. 3. The RPD erred in refusing to consider country conditions evidence relevant to the Appellant's fear of persecution. The RPD erred in law in misrepresenting the Convention refugee definition. 4. The RPD erred in law in applying section 96 and section 97 of IRPA and in finding the Appellant had no credible basis for his claim. The Role of the RAD [8] 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. [9] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellant tribunal's role in relation to that of the RPD. [10] 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. [11] 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." [12] 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. Application for an Oral Hearing [13] The Appellant has requested an oral hearing. Subsection 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence. As no new evidence has been disclosed, the RAD dismisses the Appellant's application for an oral hearing. The Panel's Findings Exit from China [14] The panel noted the Appellant testified that he was being pursued by Chinese authorities and he used his own passport when he flew from the Beijing airport to Toronto. [15] The Appellant further testified he was helped by a snakehead whom he left in the Beijing airport and then traveled to Canada by himself. [16] The Appellant further testified that five co-practitioners were arrested and the PSB issued a summons for his arrest which he disclosed for the hearing. [17] The panel found the Appellant's ability to exit China in these circumstances, using his own identification, called into question his allegation that he was wanted for arrest by Chinese authorities. [18] The Appellant testified that the snakehead bribed an official and this official turned pages in his passport and stamped it. [19] The panel cited country document evidence concerning the Golden Shield Project and found that the Appellant's name would have been entered into this on-line program when he was wanted for arrest in XXXX 2013, and he would therefore have been discovered by authorities in the Beijing airport when he left China in XXXX 2013 using his own passport. [20] The panel provided extensive citations to country document evidence concerning the Golden Shield Project and security at Chinese international airports, as well as its own analysis, and found it preferred this evidence to the Appellant's testimony. The panel further found on the basis of this evidence that the Appellant was not wanted by the PSB. [21] The panel found as well that the Appellant's ability to leave China using his own identity documents confirmed that the authorities were not pursuing him and therefore his allegation that he was a Falun Gong practitioner being pursued by the PSB was undermined. [22] Counsel questioned the Appellant as to whether the snakehead told him he was bribing officials, and the Appellant responded that he did not know, and he assumed that the snakehead might have used bribes. [23] The panel noted that the Appellant testified at the first sitting of the hearing that the snakehead had bribed officials at the airport, and asked him to explain the inconsistency. The Appellant responded he assumed bribes were used. The panel drew a negative inference from the Appellant's inconsistent testimony in this regard. [24] The panel further found that Appellant did not use a snakehead in the Beijing airport and he traveled on his own using his own passport and Canadian visa. The passport [25] The panel questioned the Appellant in regard to earlier travel and he responded he had traveled to Japan, Australia and New Zealand, and he had not traveled anywhere else except to Canada. [26] The panel asked if he had ever traveled to Holland and the Appellant responded he had forgotten that. The panel noted the Appellant had listed trips to Japan and New Zealand in his Canadian visa application, as is a trip to Holland in XXXX 2010. The panel noted it had credibility concerns with the Appellant's testimony about the 2012 passport being his first one. [27] The panel noted the Appellant had testified that the passport he used to travel to Canada in XXXX 2012 was his first passport. When this was pointed out in the hearing, the Appellant responded that he had lost the previous passport. The panel noted the question that was asked: "Was this your first passport?" was clear and concise and it did not find the Appellant's explanation reasonable. The panel further found the Appellant created the explanation when confronted with his contradiction and drew a negative inference in this regard. The summons [28] The panel assessed the original summons document disclosed by the Appellant and doubted its veracity. The panel noted in this regard that the summons did not indicate why the Appellant was the subject of a summons. In addition, the summons did not provide a date or designated a place he was to appear. [29] The panel cited country document evidence that indicates the person summoned must be at a designated place within 12 hours after it is received. The panel noted that if the concerns with the summons document noted above were examined separately, none of them alone would lead to a conclusion that the document was fraudulent. The panel found however, that the cumulative effect was sufficient for it to find that the summons was not a genuine document. [30] The panel cited country document evidence concerning the ease with which fraudulent documents can be obtained in China, and that fraud of this kind is a major problem in China. [31] The panel found on the basis of the analysis and findings above, that the Appellant was not wanted by Chinese authorities owing to his Falun Gong activities. Falun Gong theory and practice [32] The panel noted the Appellant was able to answer correctly a number of questions concerning Falun Gong theory and practice. The panel acknowledged however, the difficulty in determining the genuineness of a claimant's commitment to Falun Gong. The panel noted in this regard that it relied on an assessment of the Appellant's credibility and the consistency of his testimony and supporting documentation. [33] The panel noted the Appellant disclosed pictures of him apparently practicing Falun Gong moves and also a letter from one fellow practitioner stating that the Appellant is a "real Falun Gong practitioner." [34] The panel found the photographs had limited probative value as they were undated and without context and indicated only the Appellant was in an urban area with other people performing gestures together. [35] The panel gave weight to the letter as evidence the Appellant had been practicing Falun Gong in Canada, but gave it no probative weight concerning events in China. [36] The panel provided extensive analysis concerning the role of the Falun Dafa Association of Canada (FDA) in the lives of practitioners. The panel questioned the Appellant as to whether he had contacted the FDA. The Appellant said no, because members were at "higher levels" and he had only been here for a short time. [37] The panel found that a genuine practitioner would have approached the FDA and the Appellant's failure to do so undermined his credibility as a Falun Gong practitioner. Sur place claim [38] The panel noted the photographs indicating the Appellant appeared to be doing Falun Gong exercises on a street in Canada and also handing out some kind of pamphlets in a city that could be Toronto was insufficient evidence to find that his participation in these practices was brought to the attention of Chinese authorities. [39] The panel cited country document evidence indicating that monitoring by Chinese authorities in Canada does take place, in particular through the use of photographs at public Falun Gong events. [40] The panel concluded that the Appellant had not established his claim on the basis of credible and trustworthy evidence, and had not established the central element of the claim, that he is a Falun Gong practitioner wanted by Chinese authorities. The Appellant's Submissions [41] The Appellant submits the RPD's determination that he is not a Convention refugee is based primarily on its negative credibility assessment. The Appellant argues that the RPD misinterpreted the evidence and drew unfounded inferences not supported by the evidence. As well, the RPD's fixation on detail caused it to ignore the substance of the facts on which the Appellant's claim is based. [42] The Appellant submits he answered the questions concerning Falun Gong principles and practice. [43] The Appellant further submits he provided pictures of himself practicing Falun Gong and a letter from a co-practitioner. [44] The Appellant submits that the RPD did not have sufficient reasons to set aside the presumption of truthfulness in this case. [45] The Appellant submits the RPD's finding that he is not a genuine Falun Gong practitioner is not supported by the evidence, and that adverse credibility finding must have a proper evidentiary foundation. [46] The Appellant cites Master Li's "Third Talk" as to what a Falun Gong practitioner is. [47] The Appellant submits that the RPD erred in refusing to consider country conditions evidence relevant to the human rights situation in China, and in misinterpreting the Convention refugee definition. [48] The Appellant submits that it is known that China is the agent of persecution of Falun Gong practitioners, and he does not have to show that he had been persecuted in the past or would be persecuted in the future. [49] The Appellant submits that his fear is the result of reprehensible acts committed or likely to be committed against members of a group to which he belongs. [50] The Appellant submits the panel erred in law in finding he had no credible basis for his claim, and that such findings based on implausibility must be based on reasonably drawn inferences. [51] The Appellant argues in this regard that the RPD did not point to any evidence in support of the inference that the Appellant is not a Falun Gong practitioner. [52] The Appellant submits the panel did not make a finding with regard to his association with Falun Gong, notwithstanding its finding that the events in his BOC did not actually take place. The Appellant pointed out the RPD failed to mention the pictures of the Appellant with a Falun Gong group in Toronto, and the panel's finding of implausibility is based on conjecture. [53] The Appellant cited case law in arguing that: [W]hether the applicant is a sincere practitioner or not, a relevant consideration under subsection 97(1) was the potential risk to life or risk of cruel and unusual treatment or punishment, in view of her perceived involvement in Falun Gong through her activities in Canada. [54] The Appellant argues that what is determinative of the issue of whether a claimant is at risk of persecution is the perception that the alleged agent of persecution would have of the applicant. [55] The Appellant submits it is necessary to consider the credible evidence of his activities while in Canada independently from his motives for conversion, and that a presumption of truth applies to his allegations. [56] The Appellant further submits the RPD failed to consider his culture and norms in making its assessment of his evidence and credibility. [57] The Appellant submits that the RPD erred by making erroneous findings of plausibility based on evidentiary inferences, and that it conducted a microscopic analysis with regard to his claim. [58] The Appellant further submits he attends Falun Going activities in Canada and if he were to return to China and express a preference to practice Falun Gong, he would be at risk of persecution. [59] The Appellant submits that his testimony was credible in all material respects; that any apparent contradictions or inconsistencies have been clarified; and that there was no implausibility in his testimony. Analysis and Decision [60] The RAD notes that the Appellant's submissions generally fail to specify the particular aspects of the panel's findings which are argued to be in error. In addition, the Appellant cites numerous Federal Court decisions but in most instances fails to apply this case law to specific findings made by the panel. The Appellant submits the panel erred in law in ignoring and/or misrepresenting the evidence concerning its finding that he was not as Faun Gong practitioner, and that he did not have a well-founded fear of persecution if he was a practitioner. However, the Appellant fails to mention what evidence was misrepresented or ignored. The Appellant further submits the panel refused to consider country conditions and misrepresented the Convention refugee definition, but he generally fails to provide specific arguments as to the nature of the errors in this regard. [61] The RAD has reviewed all of the evidence in the RPD record. In addition the RAD has assessed the panel's findings and analysis in the context of the Appellant's submissions. [62] The RAD notes the presumption of truthfulness can be rebutted if there are good reasons to disbelieve the Appellant's allegations. The RAD further notes the Appellant has not specifically challenged the panel's findings in regard to the summons allegedly issued by the PSB and the Appellant's ability to exit China even though he was allegedly being pursued by the PSB. [63] The RAD concurs with the panel's findings concerning both the summons and the Appellant's exit, and concurs as well with the panel's further finding that the Appellant is not being pursued by Chinese authorities owing to his alleged Falun Gong activities. [64] The RAD notes that the Appellant testified a snakehead bribed an official at the Beijing airport, who only turned pages in his passport and then stamped it. The RAD further notes the Appellant subsequently changed his testimony and indicated he only assumed the snakehead had bribed an official but he did not know this. The RAD finds it was open to the panel to draw a negative inference in regard to this inconsistency. [65] The RAD notes that the panel found that the Appellant did not use a snakehead, and he traveled on his own using his own passport. The RAD further notes in this regard that the Appellant testified that the snakehead did not travel with him to Canada but only arranged his passage through the Beijing airport by bribing an official. [66] The RAD finds, in the context of the Appellant's inconsistent evidence regarding the bribing of an official, that the snakehead would not have been able to accompany the Appellant through a security check point if he was not traveling as well. The RAD further finds it was open to the panel to find that the Appellant did not use the services of a snakehead in the Beijing airport when he exited China and traveled to Canada. [67] The RAD finds there is a sound evidentiary foundation supporting the findings noted above and that they are sufficient to rebut the presumption of truth in regard to the Appellant's allegations concerning events in China. [68] The RAD notes the panel considered the evidence regarding the Appellant's sur place claim. The RAD further notes the panel assessed this evidence separately from those concerning alleged in-China events. The panel noted, in particular, pictures disclosed by the Appellant apparently engaged in a Falun Gong exercise and one letter from a co-practitioner. [69] The panel found the photographs had limited probative value as they were undated and indicated the Appellant was "in an urban area with other people performing gestures together." [70] The panel gave weight to the letter as evidence the Appellant had been practicing Falun Gong in Canada. [71] The RAD finds it was open to the panel to assign limited probative value to the photographs as to the genuineness of the Appellant's Falun Gong identity in Canada. The RAD further finds it was open to the panel to assign limited probative value to the letter. The RAD notes there is no evidence the author was known to the panel or that he appeared at the hearing in order to be questioned. The RAD finds that while the letter may indicate the Appellant practiced Falun Gong in Canada, as found by the panel, it too is of limited probative value as to the genuineness of the Appellant's Falun Gong identity in Canada. [72] The RAD notes that in addition to the documentary evidence, the panel questioned the Appellant regarding his knowledge of Falun Gong theory and noted he was able to answer correctly. The RAD has reviewed the audio recording of the hearing and notes the Appellant also provided correct responses to counsel's questions concerning Falun Gong theory and practice. [73] The panel noted however the difficulty in determining the genuineness of the Appellant's commitment to Falun Gong and indicated it was necessary to consider the totality of evidence including its assessment of the Appellant's credibility, the consistency of his testimony and supporting documentation. The RAD agrees and notes that merely being able to answer correctly some questions concerning Falun Gong, is not in itself a sound basis for finding the Appellant is a genuine practitioner. [74] The RAD notes the Appellant's allegations regarding events in China, including his practice of Falun Gong and his pursuit by the PSB have been found not to be credible. The RAD finds, on the basis of findings concerning alleged in-China events, that the Appellant made a fraudulent claim for protection when he arrived in Canada and that his general credibility is in doubt. The RAD further finds, on the basis of its review of all of the evidence in the RPD record, that no evidence was disclosed supporting an allegation that the Appellant suddenly converted to a genuine Falun Gong practitioner on arrival in Canada. [75] In this regard the RAD cites the Federal Court decision in Jiang2 in which the Court held that the Board must be entitled to import its credibility findings into its assessment of an applicant's sur place claim. [76] The RAD finds, in the context of the findings above concerning alleged events in China, and as well findings concerning documentary evidence corroborating the Appellant's sur place claim, that it was open to the panel to conclude that the Appellant had not established his claim on the basis of credible and trustworthy evidence, and had not established that he had not established that he is a Falun Gong practitioner wanted by Chinese authorities. [77] The RAD notes the Appellant cited case law which held that whether a claimant is a sincere practitioner or not, a relevant consideration under subsection 97(1) was the potential risk if he were perceived to be involved in Falun Gong activities in Canada [78] The RAD further notes the panel cited country document evidence indicating that monitoring by Chinese authorities in Canada does take place, in particular through the use of photographs at public Falun Gong events. [79] The RAD notes as well that the burden of establishing a risk of persecution rests with the Appellant. The RAD finds that the Appellant has provided no evidence that he has been identified by Chinese officials as a Falun Gong practitioner. In addition, the panel has found that the Appellant is neither a credible nor trustworthy witness concerning the central aspects of his claim. In this regard there is no credible evidence that the Appellant actually engaged in Falun Gong practice beyond being photographed doing some exercises and handing out some pamphlets and a letter of support from one alleged co-practitioner. As well, the RAD finds he has not established that he has a sufficient profile that would attract the interest of Chinese officials, or that Chinese officials in China had identified him as a Falun Gong practitioner. [80] The RAD has reviewed the country documentary cited above and notes that the source is only a few representatives of the FDA. In addition, there is emphasis on press events and journalists, and the example provided is an alleged call to the president of New Tang Dynasty television by a Chinese official to demand he stop criticizing the Chinese government. It is further noted that there have been cases of denial of passport renewals. [81] The document also notes that the FDA, clearly an interested party, has indicated that Chinese practitioners who return to China are detained and interrogated, but no evidence is provided in this regard. The only example of an incident that is provided concerns the daughter of a Vancouver practitioner who allegedly was detained and interrogated for two hours on arrival in China. No corroboration is provided. [82] The RAD finds that there is insufficient evidence in this document to indicate that the Appellant's risk of being personally identified by Chinese authorities in Canada as a Falun Gong practitioner, and as a result being at risk of persecution or a risk to his life were he to return to China, is more than a mere possibility. Disposition [83] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel December 31, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Jiang, Sumei v. M.C.I. (F.C., no. IMM-13-12), Zinn, September 11, 2012 FC 1067. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05900