TB4-02010

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 : TB4-02010 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 June 18, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine Barrister & 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 (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no 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 substitute a positive decision. Alternatively, she requests that the RAD remit the matter to the RPD for re-determination by a differently-constituted panel of the RPD. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA or the Act), the RAD confirms the decision 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's father died of XXXX XXXX in 2009. In XXXX 2011, she suffered from a stomach problem. She sought medical care but her health did not improve. [4] In XXXX 2012, a friend suggested Falun Gong and, after further visits and a delay, the Appellant began to practice with her friend, and two weeks later with a group. [5] On XXXX XXXX, 2012, the Appellant's practice group was raided by the Public Security Bureau (PSB). She fled and went into hiding. [6] The PSB went to her mother's house on XXXX XXXX, and returned on XXXX XXXX and left a summons. The PSB returned to her mother's house three to four times between XXXX and XXXX 2013; and they came again two to three times in the period XXXX to XXXX 2013. THE ISSUES [7] The major issues identified by the Appellant in this appeal are: * whether the RPD made unreasonable and unwarranted credibility findings * whether the RPD drew improper inferences from the Appellant's summons * whether the RPD's analysis of the Appellant's identity is flawed [8] The RPD based its decision on the Appellant's credibility and her identity. ANALYSIS Standard of Review [9] The Appellant makes no submission regarding the standard of review. The Appellant argues the RPD made erroneous credibility findings. These are issues of fact and the RAD finds, for the reasons stated below, that the standard of review is reasonableness. [10] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [11] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [12] In Newton,3 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:4 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and, (g) other factors that are relevant in the particular context. [13] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [14] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [15] The nature of the question in issue: In this appeal, the questions in issue are ones of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [16] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [17] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [18] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [19] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [20] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [21] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,12 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [22] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [23] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [24] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.15 [25] The appropriate standard of review in this appeal is one of reasonableness as the alleged errors concern findings of fact. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.16 Identity [26] The RPD questioned the Appellant regarding the authenticity of her identity documents and found the Appellant had "failed to provide sufficient credible or trustworthy evidence to establish her personal identity and nationality as a citizen of China. " [27] The RPD indicated it could not accept the passport as evidence of her identity because it was obtained by a snakehead on her behalf. In this regard the RPD noted the passport was issued on XXXX XXXX, 2013, after the PSB had issued a summons to the Appellant. [28] The RPD cited Chinese passport law and an article from the Chinese Government's office web portal which indicate a citizen must apply in person and provide identity documents and photos, as well as finger prints and a signature. [29] The Appellant stated in the RPD hearing that she relied on the smuggler to obtain the passport. [30] The RPD granted no weight to the passport and indicated its analysis and finding regarding the passport called into question the other documents disclosed by the Appellant. [31] In regard to the Appellant's resident identity card (RIC), the RPD noted it was issued in XXXX 2013, "just before her departure". Due to the date of issue and in light of the RPD's credibility concerns, and also the easy access to fraudulent documents in China, the RPD granted no weight to this document. [32] The RPD also found the Appellant's hukou to be suspect and gave it no weight in the context of the "ease with which a fraudulent passport was issued. In addition, the RPD cited articles regarding the easy availability of fraudulent hukous. [33] The RPD found the Appellant had not established her identity as a citizen of the People's Republic of China (China), as she had failed to provide satisfactory documents. [34] The RPD stated, however, that even if it were satisfied as to the Appellant's identity, it found that there were credibility concerns that led it to find the Appellant was not a credible witness. [35] The Appellant submits the RPD erred in concluding she had failed to establish her identity. [36] The Appellant further submits the RPD's adverse finding in regard to the passport was not based on any analysis of the document but rather on the fact the Appellant obtained her passport without applying in person. [37] The Appellant argues that even if the RPD's assessment of the passport can be considered reasonable, the RPD could not reject the remainder of the Appellant's documents on the basis of its conclusion regarding the passport alone. [38] The Appellant further argues the RPD was obligated to assess each document independently to determine if it assisted in establishing the Appellant's identity. [39] The Appellant cites the Federal Court's decision in Liu,17 which states the "RPD had an obligation to assess the other documentation independently." [40] The RAD finds the RPD's assessment of the Appellant's passport is reasonable in the context of the requirements cited by the RPD that a Chinese citizen must apply in person and provide recent photographs, fingerprints, and a signature, and as well in the context of the Appellant's testimony that a smuggler obtained the passport for her. [41] In regard to its concerns about the Appellant's RIC, the RAD notes the RPD mentioned the proximity of the date of issue, XXXX 2013, to the Appellant's exit from China. The RAD further notes, however, the Appellant testified the PSB visited her home on XXXX XXXX, 2013, and no evidence was disclosed that raised a question regarding her ability to obtain a RIC in XXXX. [42] In regard to both the RIC and the hukou, the RPD based its 'no weight' finding on its previous finding concerning the passport and as well on the easy availability of fraudulent documents in China. [43] The RAD agrees with the Appellant that a finding that one document is fraudulent is not alone a basis for finding all other documents disclosed by the Appellant are also fraudulent. The RAD notes as well that the easy availability of fraudulent documents in China is not in itself a basis for finding that all documents disclosed by the Appellant are fraudulent. [44] The RAD finds that despite the questionable passport, the Appellant's disclosure of her RIC and hukou, and her testimony that they are authentic documents, and the lack of evidence to challenge their authenticity, the Appellant has established her identity as a citizen of China. The RAD further finds the RPD's finding in regard to the Appellant's identity is unreasonable. Credibility [45] The RPD noted that counsel submitted in the RPD hearing that the Appellant was not a sophisticated witness and the RPD should not make negative inferences in regard to her ability to travel on a document issued in her name, her limited understanding of Falun Gong, and her failure to claim in the United States. [46] The RPD indicated it had considered the Appellant's level of education, but found that credibility issues central to the claim resulted in the RPD's not accepting the Appellant's allegations as to what occurred in China that led to her flight to Canada. The experience of the Appellant's family after her flight from the PSB [47] The RPD noted the Appellant had testified that the PSB had come to her home five to seven times but that her family had not been harassed because of her Falun Gong activities. The RPD noted in the hearing that documentary evidence indicated family members of those affiliated with Falun Gong practitioners often are harassed and persecuted. The RPD further noted that the Appellant's family had not turned her in despite repeated PSB attempts to locate her. The RPD found it implausible that the family would not have suffered any negative consequences, and it undermined the Appellant's allegations that she was a genuine Falun Gong practitioner. [48] The Appellant submits that the RPD misstated the documentary evidence. The Appellant further submits the evidence that the RPD relied on merely refers to a 2008 report wherein some Falun Gong practitioners who were interviewed provided information that their family members experienced persecution. The Appellant argues there is no indication that this is the experience of most or even a large number of family members of practitioners. [49] The Appellant submits that the RPD's adverse inference in this regard was unreasonable because it was based on a misstatement of the evidence. [50] The RAD has reviewed country document evidence cited by the RPD. It notes this evidence does not merely refer to a 2008 report based on some interviews with practitioners. Rather, it indicates there has been no change in the treatment of both practitioners and their families. The document notes that the authorities continue to make efforts to identify family members, who "may be detained and questioned....'. There is further evidence of mistreatment in 2011, 2012, and 2013 Amnesty International, Falun Dafa Association, and the US Congressional-Executive Commission on China documents. The RAD finds, on the basis of this corroborative documentation, that the RPD's finding in this regard is reasonable. Falun Gong practice in China [51] The RPD found that the Appellant did not practice Falun Gong in China. [52] The RPD questioned the Appellant in regard to the benefits from doing the exercises with a group. The RPD noted the Appellant could not respond and the question had to be repeated several times until she said the instructor told her it was better to practice in a large group. [53] The RPD found it not credible that the Appellant would risk getting caught doing group practice without the benefits being explained to her. The RPD noted that the Appellant had testified she felt better when doing the exercises with her friend. The RPD found it to be not credible that the Appellant would risk her safety and that of her family and not know the benefits of group practice. [54] The Appellant submits that the RPD's negative inference in this regard is in reality a plausibility finding and it is improper. [55] The Appellant cites case law indicating that plausibility findings should be made only in the clearest of cases, and the Appellant argues that her evidence did not fall within that category and, therefore, it was not a basis for concluding her group practice was a fabrication. [56] The RAD finds it was open to the RPD to draw a negative inference from the Appellant's inability to respond to questions concerning the reason to practice in a group even though the risk of PSB action increased. [57] The RAD notes the Appellant delayed becoming a practitioner since she was aware it was illegal, and it is reasonable to assume that she was aware of the risk. The RAD finds that the RPD's finding in this regard is reasonable. The Appellant's understanding of Master Li's teachings in Zhuan Falun [58] The RPD noted the Appellant testified she was introduced to Falun Gong in XXXX 2012 and continued weekly practice until her group was raided by the PSB in XXXX 2012. The RPD further noted that the Appellant would have been exposed to some of Master Li's teachings in Zhuan Falun and have knowledge of the principles of Falun Gong. [59] The RPD noted as well that the Appellant was asked how Falun Gong exercises were supposed to help her health, and the Appellant responded the exercises were to cultivate the mind and make her healthy. She was further asked how the exercises cultivated the mind and the Appellant responded she was told not to think negative thoughts. The RPD noted she was not able to say how the exercises cultivated her mind. [60] The RPD asked how the exercises benefitted her health and the Appellant reiterated her statement of cultivating the mind. When the question was specifically asked again, the Appellant did not respond. The RPD pressed the question and the Appellant responded that she was told by the instructor not to embrace any desires and this would improve her health. [61] The RPD found the Appellant could not explain in the simplest way how the exercises benefitted her health. The RPD cited documentary evidence which indicated that knowledge of Falun Gong teachings was essential to the task of understanding proper cultivation. [62] The RPD noted the Appellant testified the primary reason she decided to become a Falun Gong practitioner was to improve her XXXX ailments. The RPD found that if the Appellant was motivated to become a practitioner to cure her XXXX ailment then it was reasonable to expect that her most basic knowledge of the practice would be to understand how Falun Gong would improve her health. [63] The RPD found the Appellant's limited knowledge and understanding in this regard led it find that the Appellant was not a genuine Falun Gong practitioner. [64] The Appellant submits the RPD relied on her limited understanding of Zhuan Falun to find that she was not a genuine Falun Gong practitioner. [65] The Appellant submits that she offered to demonstrate the exercises but the RPD declined the offer, reasoning that completing the exercises alone does not make one a genuine practitioner. [66] The Appellant argues that by this logic, knowledge or lack of knowledge of Falun Gong text could similarly not make a genuine Falun Gong practitioner. [67] The Appellant further submits that her lack of knowledge of Zhuan Falun was reasonably explained by the fact that this text is illegal in China. [68] The RAD finds the Appellant did provide answers to questions concerning cultivation and the link between Falun Gong practice and her health concerns. The RAD further finds that while the Appellant's responses to these questions were considered to be inadequate by the RPD, no analysis was provided as to why the understanding that she showed was less than could be expected of someone of her background and alleged history of practice. [69] The RAD finds insufficient evidence was available to the RPD to support a finding that the Appellant was not a Falun Gong practitioner, and therefore the RPD's finding in this regard is unreasonable.. The Summons [70] The RPD noted the Appellant testified in the hearing that the PSB left a summons with her mother on XXXX XXXX, 2013. The Appellant further testified her mother signed another document and not the summons and the PSB did not leave a copy of that document. [71] The RPD further noted the summons did not provide a date and time for the Appellant to report. The RPD found that it was not credible that the Appellant was not at home, a summons was left, and no information was provided regarding when to report. [72] The RPD did not give any weight to the summons in light of the documentary evidence cited by the RPD that provides that a summons must be signed by the person receiving it. [73] The Appellant submits the RPD's reasoning in regard to the summons document is not borne out by the evidence. [74] The Appellant further submits there is nothing in the evidence cited by the RPD to suggest that a summons contains a date and time for a person to report as opposed to simply compelling the person to report to the police on receipt of the summons. The Appellant submits the RPD's expectation in this regard was entirely speculative. [75] The Appellant further submits the RPD's reliance on the absence of a signature on the summons is also speculative. The Appellant notes the documentary evidence in this regard is unclear. The Appellant further notes the document cited by the RPD indicates signing or sealing documents such as a summons. However, the Appellant also notes there is a reference to "the service acknowledgement" which suggests the document one is expected to sign is a separate document. [76] The Appellant argues in light of the central importance of the summons, the RPD's error in assessing the document renders its decision in this case unreasonable. [77] The RAD notes that country document evidence indicates that while a suspect is being summoned for questioning, it is possible to issue a coercive summons, if it is found that there is a need to limit his personal freedom.18 This evidence further indicates that if the person of interest does not respond to the summons, a coercive summons will be issued. [78] The RAD finds, in this regard, that it is reasonable to assume that a summons will contain information regarding the date and time the person summoned should appear at the PSB office as a basis for a further decision that a coercive summons must be issued because the Appellant did not respond to the summons. [79] The RAD notes the RPD did not address the issue of a coercive summons in its finding regarding the summons document disclosed by the Appellant. The RAD finds, however, it was available to the RPD to address this matter which has an evidentiary base in the country document evidence.19 [80] The RAD notes that no evidence was disclosed that a coercive summons was issued as a result of the Appellant's failure to respond to the initial summons.. The RAD finds, in the context of the multiple visits by the PSB, that it is reasonable to assume a coercive summons would have been issued in the circumstances, and that the lack of a coercive summons undermines the integrity of the summons document disclosed by the Appellant. [81] In addition, the RAD notes that no address was noted in the summons for the PSB branch office that issued the summons. The RAD further finds it is reasonable to assume that an address would be provided since a person would not necessarily know the address. [82] The RAD notes that the RPD cited country document evidence20 which indicates that the person of interest or a recipient on his behalf is required to sign and affix his seal on such documents as a summons. The RAD further notes this evidence indicates that if the person of interest or a recipient on his behalf refuses to sign or seal such documents, neighbours may be asked to witness the scene, the documents are left at the addressee's residence, and the person serving the documents will record on the "service certificate" the particulars of the refusal. The RAD finds there is no evidence that signing and sealing the summons is the same as signing the 'service certificate', and it is clear the service certificate is used when there is a refusal to sign the summons. The RAD notes as indicated above that the Appellant's mother allegedly signed another document and not the summons document. [83] The RAD finds the RPD's rejection of the Appellant's testimony that her mother signed a separate document, the lack of a date and time on the summons document, and the lack of a coercive summons supports the RPD determination to give the summons document no weight. The RAD further finds the RPD's decision in this regard is supported by the evidence on the record and is reasonable. The Appellant's exit from China using a passport in her own name [84] The RPD found it implausible that a snakehead could obtain an improperly issued passport in the Appellant's own name when he was aware that the PSB were pursuing the Appellant. The RPD asked the question why a smuggler would risk obtaining a document in the name of a person who was already being sought by the PSB. [85] The RPD cited evidence concerning the Golden Shield Project, an on-line policing network available in Chinese airports that monitors persons of interest to the PSB. The RPD found, given PSB interest in the Appellant, that it was unlikely that the Appellant would have been able to leave China without detection. [86] The RPD noted that the Appellant paid a smuggler to help her, which included bribery of officials. The RPD further noted, however, that it was reasonable to assume the Appellant's name would have been entered in the database as a person wanted by the PSB and as such she would not have been able to exit under her own identity. The RPD drew a negative inference in this regard. [87] The RPD further found it not credible that the Appellant, according to her testimony, was given no instructions by the snakehead in regard to her passage through the airport considering the number of possible control points that she would have to traverse. [88] The Appellant submits that the documentary evidence on which the RPD relied does not confirm that the Golden Shield project has actually been established and implemented nationwide. [89] The Appellant further submits that, at best in 2009, there were plans to implement the Golden Shield project nationwide within the next three years, and that the RPD misapprehended the evidence concerning the ability of Chinese authorities to monitor the Appellant's exit from a Chinese airport. [90] The Appellant cites in this regard the 2010 Federal Court decision in Wei21 in which the Court stated "the information does not confirm that a centralized information sharing system was in place...." [91] The Appellant submits, in the context of submissions above, that the RPD's negative inference regarding the Appellant's exit from China is unreasonable. [92] The RAD notes that the decision in Wei was based on the documentary evidence that existed in 2008, and in particular a 2001 document in the National Documentation Package and a 2005 document in a UK Home Office country report. In the case at hand, the RPD relies on that documentary evidence. The RAD finds, however, that it was available to the RPD to rely on the evidence in the record today. The RAD notes that the United Kingdom Operation Border Report, dated 29 August 2012, states the following: The Chinese police have access to a National Computer Database, known as Golden Shield Project. Its aim is to improve policing, and there are strict regulations on the use of the database. It holds information on population information, criminal records information, information on criminal fugitives, information on stolen vehicles, information on passports and exit/entry data, information on registered cars and drivers, information on police officers and information on key fire-prevention units. All police departments at county level and above (i.e. police departments at provincial, city and county levels) and most grass-roots units (police units below county level) can now connect to this system. There are some small police departments in remote areas that cannot yet connect to Golden Shield.22 [93] The RAD further notes the Frontier Defence Inspection Bureau (FDIB) is in charge of inspection barriers in airports and the FDIB examine passport as and immigration departure cards of Chinese travelers. The officers examine the identity of the person through a "computerised record system."23 [94] Based on the foregoing, it is clear that such a system is in place. The RPD is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.24 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.25 In this case, there is an evidential foundation for the RPD's findings, even though the RPD did not cite the most recent evidence. The RAD finds that the RPD's credibility finding on this issue is reasonable. [95] The RAD notes that the Appellant made no submission in regard to the RPD's negative credibility finding concerning the Appellant's alleged ability to move through the airport without any instructions from the smuggler. The RAD finds the RPD's finding in this regard is reasonable since the Appellant would have had to pass through a number of security checks using her own passport. The Appellant's possession and disclosure of her passport [96] The RPD noted the Appellant testified the snakehead returned her passport to her and she disclosed it to Canadian immigration officials. The RPD further noted there was an exit stamp in the passport dated XXXX XXXX, 2013. [97] The RPD acknowledged that smugglers may have connections with customs officials and it was reasonable that a smuggler would do everything to protect their illicit business, which would include protecting their collaborator at the point of exit. The RPD notes that in this context it was reasonable to expect that he would not allow the Appellant to retain her passport with evidence of the issuing office in China, the visa and the custom officer exit stamp which could be traced back to him or his collaborator. The RPD found the Appellant's testimony in this regard not to be credible. [98] The RAD notes the Appellant made no submission regarding this matter. [99] The RAD finds the RPD's analysis in this regard to be convincing and its negative credibility finding to be reasonable. Practice in Canada [100] The RPD considered whether the Appellant was a genuine practitioner in Canada. [101] The RPD noted that in the context of its finding the Appellant was not a Falun Gong practitioner in China; it had to consider her motivation in becoming a practitioner in Canada. [102] The RPD considered the Appellant's testimony regarding her practice in Canada, a letter from a co-practitioner attesting to her practice in XXXX XXXX, and also some pictures of people practicing, including the Appellant. [103] The RPD concluded that the Appellant started to practice in XXXX XXXX only to bolster her claim for protection. The RPD further found, in the context of its consideration of the Appellant's activities in Canada, and as well in the context of the totality of evidence available to it, and also in the context of its findings noted above, that the Appellant was not a genuine Falun Gong practitioner. [104] The RAD notes the Appellant makes no submission regarding her practice in Canada. [105] The RAD finds, in the context of the RPD's cumulative plausibility and credibility findings, that its determination that the Appellant is not a genuine Falun Gong practitioner falls within a range of possible acceptable outcomes which are defensible with respect to the facts and the law, and therefore is reasonable. DISPOSITION [106] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [107] The appeal is dismissed. (signed) 'Milton Israel' Milton Israel June 18, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 Liu, Peng Fei v. M.C.I. (F.C., no. IMM-6239-12), Russell, August 22, 2013, 2013 FC 896, at para. 43 18 Exhibit RPD-1, RPD Record, National Documentary Package for China, 31 October 2013, item 9.8, Response to Information Request CHN104188.E, p 6, para 6, . 19 Ibid. 20 National Documentation Package for China, 31 October 2013, items 9.3 and 9.8 21 Wei, Shoupeng v. M.C.I. (F.C., no. IMM-5987-09), Beaudry, June 25, 2010, 2010 FC 694, at para 6 and 16 22 National Documentation Package for China, 31 October 2013, item 2.4. 23 Ibid, item 14.3 24 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 25 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02010