TB4-01732

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 : TB4-01732 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX 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 July 14, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Petar Lulic Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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(a.k.a. XXXX XXXX) (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence, however she has requested an oral hearing. The Appellant requests the Refugee Appeal Division (RAD) to overturn the decision or to send it back to the RPD for re-determination by another panel member. The Minister intervened in the RPD hearing. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), 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 ACCORDING TO THE APPELLANT'S BOC AND TESTIMONY [3] The Appellant was sent to Canada to pursue university studies in XXXX 2004. [4] While living in Canada, she sent her father Falun Gong literature from time to time. [5] The Appellant returned to China twice to visit her parents. The first visit in 2005 was without incident. During the second visit in 2007, however, the Public Security Bureau (PSB) came to her parents' home looking for her and asking about her Falun Gong practice. The Appellant went into hiding and then returned to Canada. [6] The Appellant renewed her Chinese passport in Canada. [7] In early 2011, the Appellant's father was beaten by Public Security Bureau (PSB) officers. She has been without news of her parents in 2011. [8] On XXXX XXXX, 2011, the Appellant's student visa expired and she has been without status in Canada since that time. [9] The Appellant was arrested by the Montreal police on XXXX XXXX, 2013, while engaged in selling mobile telephones. She was subsequently referred to CBSA for a detention review hearing. [10] The Appellant moved to Toronto to be with her guarantor and she made a refugee claim in Toronto on November 14, 2013. THE ISSUES [11] The issues identified by the Appellant are the following: What is the standard of review? Whether the RPD's determinations on credibility and Falun Gong were reasonable and correct? [12] The RPD found the Appellant's testimony not to be credible in regard to material aspects of the claim. ANALYSIS Standard of Review [13] The Appellant submitted the appropriate standard of review for questions of mixed fact and law is reasonableness and the appropriate standard of review for questions of law is correctness. The RAD agrees. The RAD finds that this claim raises questions of fact, and, on the basis of the case law cited below, that the appropriate standard of review is reasonableness. [14] The Federal Court in Iyamuremye1 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law as per Dunsmuir.2 THE MINISTER'S INTERVENTION IN THE RPD HEARING [15] The Minister of Public Safety and Emergency Preparedness (Minister) filed a notice to intervene in the claim on XXXX XXXX, 2013. It was the Minister's opinion that the Appellant's claim showed lack of credibility, by not claiming for Canada before being arrested by the police. APPLICATION FOR AN ORAL HEARING [16] The Appellant asks that an oral hearing be held pursuant to subsection 110(6) of IRPA. Section 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), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 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. Although the Appellant indicated that new evidence would be provided, none was submitted. Therefore the request for an oral hearing is denied. CREDIBILITY Delay in Claiming [17] The RPD noted the Appellant testified she fled China in 2007 because the PSB were looking for her. [18] The RPD further noted that the Appellant testified she was aware of the type of punishment reserved for Falun Gong practitioners and that she was aware of the 610 offices in China which deals with Falun Gong practitioners. [19] The Appellant was asked why she did not seek protection when she returned to Canada in 2007, and the Appellant responded that, at the time, her parents' persecution was not as severe at the time or maybe she was just stupid and thought she was safe at the time. [20] The Appellant was further asked what she believed might happen to her if it was discovered she was no longer in status in Canada. [21] The Appellant responded that she had consulted some legal professionals with experience in regard to visa issues, told them about her fear of persecution because of her Falun Gong beliefs, and she was told she could either marry in Canada or keep a low profile. [22] The RPD found the Appellant's testimony, that she made an effort to regularize her status in Canada by consulting three legal professionals; that she told them about her fear of persecution; and that she was not informed about the possibility of seeking protection in Canada, not to be credible. [23] The RPD noted in this regard that the Appellant was well educated, her testimony regarding the three professionals was vague, and she was unable to say whether they were lawyers or immigration consultants. [24] The RPD found the Appellant's failure to normalize her status or seek protection for six years, and, especially in the two years after her student visa expired, demonstrated a marked lack of subjective fear of persecution. In addition, the RPD drew a negative inference regarding her claim of persecution as a Falun Gong practitioner. [25] The Appellant cites the Federal Court in Juan3 in which the Court held that the Board must clearly state the linkage between the Appellant's credibility and the delay in claiming issue. The Court further stated that an Applicant may not be aware of refugee status in Canada until they find out from a third party. [26] The RAD finds that it was available to the RPD to find that the Appellant's description of her consultation with "three professionals" regarding her status in Canada to lack credibility. As noted by the RPD, the Appellant is an educated person and she has been a resident in Canada since 2004. In addition, her description of these professionals was vague and she lacked any precise knowledge of their expertise. The RAD finds the RPD's finding in this regard to be credible. [27] The RAD further finds that it was available to the RPD to find that the Appellant's six- year delay in making a refugee claim in Canada, including two years without status, demonstrated a marked lack of subjective fear of persecution in China. The RAD notes, in this regard, that, since 2007, the Appellant was aware of an alleged attack on her father and his further persecution; her alleged PSB pursuit; and the severe punishment in China for Falun Gong practitioners. [28] The RAD further notes that no evidence was disclosed that indicated the Appellant would have made a refugee claim if she had not been arrested, and, as a person without status, at risk of deportation. [29] The RAD finds as well that the RPD's decision in this regard falls within a range of possible, acceptable outcomes which are defensible in respect to the facts and the law, and therefore is reasonable. EVIDENCE PROVIDED BY THE APPELLANT IN TESTMONY AND TO CBSA OFFICIALS [30] The RPD asked the Appellant if she was truthful throughout the CBSA interview and she responded 'yes'. [31] The RPD cited the CBSA officer's interview notes which indicated that the Appellant told the officer that the passport and student ID she carried belonged to her sister. In addition the Appellant claimed to have been born on XXXX XXXX, 2005. [32] The RPD further noted that the Appellant explained that around XXXX 2013 she feared the possibility of being returned to China and she purchased a document from Kijiji, the internet website that identified her as a Canadian resident but did not have her name or picture. The Appellant presented this document to Canadian authorities. When this document was rejected, the Appellant disclosed her genuine passport. [33] The RPD asked the Appellant why she initially testified she had not misrepresented herself to CBSA officials and she was unable to provide an explanation. [34] The RPD drew a negative inference in regard to the fact that she lied to Canadian officials about her identity and compounded the lie by misrepresenting herself in the hearing. [35] The Appellant submits the RPD should not have considered the Minister's representation except where it directly relates to the refugee claim. The Appellant further submits the credibility issue, as it related to the CBSA interview, was not rationally connected to the central issue of the claim. [36] Alternatively, the Appellant submits that if she provided a false identity to CBSA (which she disputes) the issue is minor and peripheral to the main issue. [37] The Appellant submits as well that the RPD erred in using a negative credibility finding on this issue to 'taint' the remainder of the testimony and evidence, and the RPD must assess the remaining evidence apart from the CBSA issue if it supports the refugee claim. [38] The RAD finds it was open to the RPD to consider the evidence of false testimony disclosed by the Minister and draw a negative inference. The RAD notes that credibility is always an issue in a refugee hearing. The RAD further finds the RPD's finding in this regard has not 'tainted' the remainder of the Appellant's testimony as each of the issues, delay in claim and Falun Gong knowledge, has been dealt with on its own terms. The RAD finds as well that the RPD's finding in this regard is reasonable. THE APPELLANT'S FALUN GONG IDENTITY [39] The RPD noted the Appellant testified her personal practice of Falun Gong began when she returned to Canada in 2007, and she began to practice because of XXXX that did not XXXX XXXX XXXX. [40] The RPD further noted the Appellant testified she learned the exercises from a couple in XXXX and also XXXX XXXX. The Appellant further testified she had studied several of Master Li's books and knew the core tenants of Falun Gong. [41] The Appellant was able to identify some significant dates in the history of Falun Gong. [42] The RPD asked the Appellant if she was familiar with the Falun Dafa Association of Canada (FDAC) and she replied she was not. The RPD noted that the FDAC represented the Falun Dafa community both at the local and national level in Canada and that there was a branch in Montreal. The RPD did not find it reasonable that someone claiming a persecution risk as a Falun Gong practitioner, and who had been an active practitioner since 2007, would have no knowledge of the FDAC. The RPD drew a negative inference in this regard. [43] The RPD noted that the Appellant did not provide any corroboration concerning her alleged group practice in XXXX. The RPD gave the Appellant's uncorroborated evidence regarding her group practice little evidentiary weight as this evidence post-dated her problems with Canadian Immigration officials. [44] The Appellant testified she had read Zhuan Falun regularly since she began practicing Falun Gong in 2007. The RPD asked her what Master Li had to say on the topic of 'true insanity' or 'Qigong psychosis'. The Appellant responded that she knew about it and indicated it was discussed in talk three or four. The RPD noted it was discussed in the sixth talk. [45] The Appellant provided a description of Master Li's teaching on 'true insanity', but the RPD noted that her description did not correspond to Master's Li's discussion in Zhuan Falun, and the RPD drew a negative inference in this regard. [46] The RPD questioned the Appellant about how ''karma' was most commonly manifested and the Appellant answered incorrectly. The RPD noted the basic nature of the question and drew a negative inference in this regard. [47] The Appellant was able to identify the purpose of the first and third exercises, but she required prompting to deal with the fourth exercise. The RPD again noted the basic nature of the question and drew a further negative inference. [48] The RPD found the Appellant's response to a question concerning the motivation for Falun Gong practice to be vague and limited. [49] The RPD noted that the evidence provided by the Appellant was not consistent with someone claiming to have been an active Falun Gong practitioner for the past six years. After a consideration of all the evidence, the RPD found there was not a serious possibility that she would be persecuted or be subject to cruel and unusual treatment or punishment if she were to return to China. [50] The Appellant cited case law concerning the use by the RPD of an "unrealistically high standard of knowledge" or an "overly stringent and microscopic examination" of religious knowledge.4 [51] The Appellant submitted that the RPD raises issues concerning 'true insanity' and 'karma', which may be concepts subject to misunderstanding and may not be major themes in Falun Gong teachings. The Appellant further submits the RPD chose lesser known and difficult concepts to question the Appellant. The Appellant also submits she is fairly new to full-time practice. [52] The RAD notes that 'karma' is one of the most basic concepts in Falun Gong, and information regarding the different purposes of each of the five exercises is also basic to Falun Gong practice. [53] The RAD finds that the RPD did not choose lesser known and difficult concepts in order to test the Appellant's Falun Gong knowledge. The RAD further finds that six years of regular practice cannot reasonably be described as "fairly new". [54] The RAD finds as well that it was open to the RPD to find that the Appellant's evidence was not consistent with someone who had allegedly been practicing Falun Gong regularly for six years. [55] The RPD noted it reached its conclusion on the basis of all the evidence, including the Appellant's false responses in her POE interview and her delay in making a claim, in addition to her lack of knowledge regarding basic Falun Gong teachings. The RAD cites in this regard the Federal Court decision in Jiang,5 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. The RAD further cites the Federal Court in Li,6 which held that it is completely reasonable for the RPD to require a much higher degree of sincerity regarding an applicant's beliefs in support of a sur place claim. [56] The RAD finds, in the context of the totality of evidence available to the RPD, its conclusion that the Appellant is not a genuine Falun Gong practitioner and would not be in jeopardy of persecution or cruel and unusual treatment or punishment if she were to return to China falls within a range of possible, acceptable outcomes defensible in respect to the facts and the law, and therefore is reasonable. DISPOSITION [57] Pursuant to section 111(1)(a) of IRPA, 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. (signed) 'Milton Israel' Milton Israel July 14, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Dunsmuir v. New Brunswick, 2008, SCC 9, [2008] 1 SCR 190 at para. 47 3 Juan v. MCI, 2006, FC 809 4 Dong, Yi Sheng v. M.C.I. (F.C., no. IMM-3499-09), Kelen, January 20, 2010, 2010 FC 55 at para 20; Lin, Lien v. M.C.I. (F.C., no. IMM-4836-11), Russell, March 5, 2012, 2012 FC 288, at para 61 5 Jiang, Sumei v. MCI (F.C., no. IMM-13-12), Zinn, September 10, 2012; 2012 FC 1067 6 Li, Shi Jie v. MCI (F.C., no. IMM-8521-11), Gleason, August 15, 2012; 2012 FC 998 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-01732