TB4-08671

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 : TB4-08671 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX 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 December 17, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M Lewis 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.k.a. XXXX XXXX) (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), denying her claim for protection. She has not submitted new evidence in support of her claim and she has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and make a finding that the Appellant is a Convention refugee. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its decision that the Appellant is a Convention refugee. Background [3] The Appellant alleges that she is an underground member of the "Almighty God" church, also known as Eastern Lightening. She joined the church on XXXX XXXX, 2012. Her church services stopped for some time in XXXX XXXX XXXX because of a Chinese government crackdown, but the services resumed in XXXX 2013. [4] A XXXX XXXX killed her cousin, and many others soon after the Appellant left and she viewed this as God's protection and the XXXX as a sign of the dooming of the world. As a result she became committed to the religion. [5] The Appellant came to Canada on XXXX XXXX, 2014, and continued attending church. On XXXX XXXX, 2014, she was informed by her husband that the Public Security Bureau (PSB) had come to their house and she was accused of involvement in illegal religious activity. The PSB told her husband that three co-religionists had been arrested and that they had evidence against the Appellant and indicated she must return to China and submit herself to them. She subsequently learned that her husband had been dismissed from his work. She also learned that the PSB continue to enquire about her. The Issues [6] The panel indicated the determinative issue in regard to this claim was credibility. [7] The Appellant submits the issues in regard to this appeal are the following: 1. Did the Board err in law by making a decision that is patently unreasonable? 2. Did the Board err in law by ignoring relevant evidence, misinterpreting evidence, making erroneous findings of fact, and placing reliance on irrelevant evidence? 3. In the alternative, do the cumulative effect of the above errors amount to an error in law? 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. The Panel's Findings Credibility [13] The panel indicated it did not believe the Appellant was a genuine Almighty God practitioner based on her limited knowledge of the religion. [14] The panel noted the Appellant was highly educated and that she had been employed as an engineer at a management level position, and on that basis the panel found it reasonable that she would be able to provide detailed and consistent evidence to support her knowledge of the faith. [15] The panel noted the Appellant testified that there was no specific date for doomsday but documentary evidence indicated members predicted that December 21, 2012 was to mark the end of the world. The Appellant responded this was the Mayan prediction, that some God Almighty churches predict this, but her group did not. [16] The panel noted the documentary evidence disclosed by the Appellant indicated this church had a very cohesive organization with clear beliefs including the December 21, 2012 date for the end of the world. The panel drew a negative inference in this regard. The panel further found that it did not find it credible on the basis of her inability to recall this date, that she was a member of the Almighty God church. [17] The panel asked the Appellant if she believed the Bible was the word of God. The panel found the Appellant's response to be unclear and confusing but determined she did not believe the Bible was the word of God. [18] The panel acknowledged Almighty God members did not necessarily believe the Bible was the word of God, and asked the Appellant whether she had ever read the Bible, and she stated she did not. She further stated that members of the Almighty God church did not read the Bible. [19] The panel noted that evidence submitted by the Appellant indicated her church was a Christian sect and they claimed that God produced a third testament to the Bible and that it has been reported that the church's name came from a passage in Matthew. Based on this evidence, the panel found that the Almighty God church "reads and refers to the Bible." The panel found the Appellant's testimony inconsistent with the evidence and an indication she is not a true member of the Almighty God church. [20] The panel asked the Appellant if she believed that she should share her religion with non-believers. The panel noted the Appellant was evasive. The panel noted it was not until her attention was drawn to a picture of her handing out pamphlets that she stated she does proselytize in Canada. The panel found the Appellant's inability to respond spontaneously to its question regarding proselytizing to be evidence that she was not a true follower of this church. [21] The panel noted the Appellant correctly identified a woman named Deng who lived in Henan province as the "flesh God." The panel asked the Appellant why she believed this woman was the "flesh God" and noted she was not able to provide a direct and understandable response. The panel noted that this was a central tenet of the religion and found it unreasonable that the Appellant was not able to provide a clear and convincing answer. The panel drew a negative inference in this regard. [22] The panel found that an adherent to this religion would understand and accept the central concept of the "flesh God" before joining the church; and that she would have a better understanding of the religion before joining an illegal group and knowingly risking her life and the lives of her family. Documents submitted [23] The panel found documents submitted by the Appellant were "questionable." In this regard the panel noted that her friend's notice of arrest by the PSB, dated XXXX XXXX, 2014, cited Article 62 in the regulations of Criminal Procedure Law (CPL) as the basis for the arrest. The panel further noted that article 62 of the most recent CPL, dated March 14, 2012, relates to evidence and deals specifically with matters related to witness protection, and not to the arrest of individuals. [24] The panel questioned the Appellant about this inconsistency and she responded she did not know. Counsel suggested that the article might have been recently amended and cited an Article 62 from a website she obtained on her cell phone which indicated the article was related to arrest. The panel indicated it would address the matter post-hearing and asked counsel to submit a paper copy of the website information. An enquiry was sent to the Board's research directorate and it was determined the version submitted by counsel was obtained in 2006 and prior to the 2012 amendments. Counsel was provided with an opportunity to make further submissions on the matter. Counsel responded with the suggestion that it was not implausible that an old version of the form could have been used by the PSB through administrative error. The panel found counsel's suggestion to be speculative as there was no evidence to suggest that the PSB erred in this regard. The panel found, in the context of credibility concerns noted above, that the arrest notice was suspect and that it further undermined the credibility of the Appellant's allegations. The Appellant's Submissions [25] The Appellant noted the panel indicated it gave consideration to the Appellant's education and sophistication, but it left blank the number of years of her formal education and the number of years of her work experience. The Appellant submits that although the panel relied on this information, by specifically leaving this information blank, it did not consider it and on the face of the record the Appellant has not received proper reasons. [26] In regard to the Appellant's response in the RPD hearing that there was no specific date when the world would end, even though documentary evidence indicated the church believed the world would end on December 21, 2012; the Appellant notes that on the day of the hearing, December 21, 2012 had come and gone and her answer is correct. [27] The Appellant further noted she joined the church in XXXX 2012, meetings were disrupted in that month, and they were resumed in XXXX XXXX 2013. The Appellant submits she would have learned next to nothing in one or two meetings, and after XXXX no mention would be made of XXXX 2012. Therefore there is no reason she would learn of doctrine relating to a failed doomsday date. [28] The Appellant submits that a document in her disclosures that first appeared 20 years ago indicated that members of her church had recently adopted the Mayan doomsday prophesy which indicated the sun will not shine and electricity will not work for three days beginning on December 21. The Appellant further submits this evidence proves that the December 21 end of the world date was not part of the religion, and it was merely something some members recently adopted. In addition, the prediction was not the end of the world but merely the loss of electricity and sunshine for three days. [29] In regard to whether a member of God Almighty church reads the Bible, the Appellant submits the source of the panel's evidence is the Chinese government controlled media. The Appellant further submits the use of such material is a violation of her right to a fair hearing. [30] The Appellant submits that if the panel believes everything it reads in such documentation then it should have noted the material indicates the religion kidnaps and tortures Christians and this evidence makes clear they only have contempt for the Bible. The Appellant further submits the panel failed to consider this documentary evidence when making its finding that as the name of the cult is based on a passage in the Bible, members must therefore read the Bible. [31] The Appellant submits that the panel's finding that as an offshoot of Christianity her church must read the Bible is pure speculation and it is false [32] The Appellant cites a range of Federal Court case law concerning plausibility findings, the need to justify credibility findings with clear reference to evidence, and the need to make clear that evidence contradicting the panel's findings has been considered. In this regard the Appellant submits that all the credibility findings made by the panel are based on mere conjecture or speculation. Proselytize [33] The Appellant noted that the panel made a negative credibility finding regarding her inability to testify her Church believed in proselytizing. The Appellant further noted, however, that the panel did not make any findings regarding evidence of her proselytizing. "Flesh God" [34] The Appellant noted the panel drew a negative inference in regard to her inability to provide a clear and convincing answer as to why she believed in Deng, the "flesh God." [35] The Appellant submits the panel's legal test to provide it with a clear and convincing answer as to a matter of religion and faith is a denial of the right to a fair hearing. The Appellant further submits that all religions rely on faith and no one can provide a clear and convincing answer as to why one believes to an unbeliever. The arrest notice [36] The Appellant submits that the panel's finding that counsel's suggestion that the PSB made an error was speculative, as there was no evidence to suggest the error was made by the PSB. The Appellant notes that the panel did not find the document to be fraudulent. Therefore the error must be made by the PSB. [37] The Appellant concludes that all the panel's credibility findings are tainted, and that they either have no evidentiary foundation, are based on nonsense provided by the Chinese government, or are manufactured by the biases of the panel in the belief that an offshoot of Christianity must have familiarity with the Bible. Analysis and Decision [38] The RAD has reviewed all of the evidence in the RPD record, including the audio recording of the hearing. [39] The panel reviewed the Appellant's information regarding her schooling and work experience. The RAD notes the Appellant indicated in her Generic Application Form that her highest level of education was "secondary or less" and her current occupation was "XXXX XXXX XXXX XXXX XXXX XXXX The RAD notes the Appellant's evidence suggests that she is an engineer but this evidence appears to be in conflict with her indication she has had only secondary or less in formal education. The panel's finding that the Appellant is "highly educated" appears to reflect the suggestion that she is XXXX XXXX. The RAD finds in any case that the Appellant's alleged work experience, however long, is likely sufficient to be able to respond to the panel's questions concerning her religion. [40] The RAD notes that there is a lack of clarity in the documentary evidence concerning the adherent of the Almighty God Church to a belief in the coming of the apocalypse on December 21, 2012. Evidence in the March 11, 2013 National Documentation Package indicates that "members of the church" announced the December 21, 2012 date and that they appeared to use the Mayan doomsday prophesy, and that they appeared to use this prophecy for recruitment purposes. [41] The RAD finds there is no evidence in the RPD record that all members and church communities shared this specific prediction although it is clear that an end of the world prediction is a central aspect of Almighty God belief. [42] The Appellant testified that there was no specific time for the end of the world, but the end was coming. The Appellant further testified in response to the panel's reference to the December 21, 2012 date, that it was a Mayan prediction. The Appellant testified as well that this specific prediction was not believed in her church but that other groups of her church in other provinces distributed flyers in this regard in order to attract people to Almighty God. [43] The panel drew a negative inference based on its reading of the evidence that Almighty God was a "very cohesive organization with clear beliefs including the December 21, 2012 date for the end of the world." The RAD finds the evidence is not clear that all Almighty God believers adopted this date for the end of the world. [44] The panel found it not credible, on the basis of the Appellant's inability to recall this date, that she was a member of the Almighty God Church. [45] The RAD has reviewed the audio recording of the hearing and finds no evidence that the Appellant could not recall this date. She was never asked the date. Rather the Appellant stated there was no specific date and the panel introduced evidence that there was a specific date, December 21, 2012. [46] The RAD finds the panel erred in making a negative credibility finding in this regard. [47] The panel questioned the Appellant as to whether she and members of her church generally read the Bible. The Appellant responded no. The panel found, based on evidence that her church was a Christian sect, that her church claimed God had produced a third testament to the Bible, and that her church's name come from a Bible passage, that her church "reads and refers to the Bible." The panel found the Appellant's testimony to be inconsistent with the evidence and indicated she is not a true member of the Almighty God church. [48] The RAD notes the Appellant testified as to the significance of the Bible but that God's voice was in the words from the Almighty God church and that the "flesh God" says this. The RAD finds the panel disclosed no clear evidence that members of the Almighty God church necessarily read the Bible, although the Bible may be a source for some of their beliefs. [49] The RAD finds the panel erred in finding the Appellant's testimony in this regard to be an indication she is not a true member of the Almighty God church. [50] The panel questioned the Appellant as to whether she believed her church should share her religion with non-believers. The panel noted the Appellant was evasive and it was not until it drew her attention to a picture of her handing out pamphlets that she stated did proselytize in Canada. The panel found the Appellant's inability to respond spontaneously to its question regarding proselytizing to be evidence she was not a true follower of this church. [51] The RAD has reviewed the audio recording of the hearing in this regard. The RAD notes the question had to be asked a number of times and the Appellant's response appeared to be evasive. However the Appellant subsequently did respond that members of the Almighty God Church did spread their religion. The RAD further notes the Appellant provided this response before the panel referred to the picture of her distributing pamphlets. [52] The RAD notes as well that the Appellant indicated in her Basis of Claim (BOC) narrative that she spread the religion to her cousin in China. In addition, she testified that she proselytized in Canada but there was a need to be careful in China. [53] The RAD notes there was no effort on the part of the panel to ascertain whether the Appellant understood the question as the Appellant responded with testimony not relevant to the question. The RAD finds, in the context of the Appellant's subsequent response to the question before the panel introduced the picture, that she should be given the benefit of the doubt and the panel erred in finding her "inability to respond spontaneously" to be evidence she is not a true follower of this church. [54] The panel asked the Appellant why she believed in the "flesh God" and noted the Appellant was unable to provide a direct and understandable response. The panel found this was a central tenant of her religion, found it unreasonable that the Appellant would not be able to provide a clear and convincing answer, and drew a negative inference in this regard. [55] The RAD agrees with the Appellant that the panel applied the wrong legal test when it required the Appellant to provide it with a clear and convincing answer as to a matter of religion and faith. The RAD further agrees "that all religions rely on faith and no one can provide a clear and convincing answer as to why one believes to an unbeliever." The RAD finds the panel erred in drawing a negative inference in this regard. [56] The RAD finds that the panel has failed to rebut the Appellant's testimony that she is a genuine follower of the God Almighty Church. The RAD further finds, on the basis of country document evidence disclosed in the RPD record that the Almighty God Church: has been banned in China; that it has been declared an evil cult, which the Chinese government cracked down on in 2012; and that members are subject to arrest, imprisonment, and "re-education." [57] The RAD notes that the panel found an arrest notice for the Appellant's cousin to be suspect because it referred to an incorrect article in the Regulations of Criminal Procedure Law, and that this further undermined the Appellant's credibility. The Appellant submits the panel did not find the document to be fraudulent and therefore the error must have been made by the PSB. [58] The RAD finds that the incorrect reference to an article in the Regulations of Criminal Procedure Law taints this document. The RAD notes the amendments in the Regulations were made in 2012, and that the PSB, a national police body, would have used the correct reference in regard to a 2014 arrest notice. The RAD finds therefore the document is fraudulent. [59] The RAD finds, however, that although this document indirectly relates to the Appellant's religious identity, it is insufficient to undermine the RAD's finding that the panel has failed to rebut the Appellant's evidence that she is a member of the God Almighty Church, and that she would be at risk of persecution if she were required to return to China and continue to practice her faith. Disposition [60] Pursuant to section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "Milton Israel" Milton Israel December 17, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08671