TB4-01884

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 : TB4-01884 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 May 28, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant) is a citizen of China. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal but does not request an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and refer the matter back to the RPD to a differently-constituted panel. 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. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she was introduced to the practice of Falun Gong by her aunt. In XXXX 2013, the Appellant and her aunt were at their regular Falun Gong meeting with fellow practitioners when the meeting was raided by members of the Public Security Bureau (PSB). The Appellant and several practitioners, including the Appellant's aunt, were arrested and detained. The Appellant was released from custody after five days and forced to sign a form renouncing her involvement with Falun Gong and was placed on monthly reporting conditions. [4] Fearing her schooling and employment prospects would be negatively impacted by her arrest, the Appellant made arrangements to travel to the US. The Appellant arrived in the US in XXXX 2014 and then illegally crossed into Canada the following day. In XXXX 2013, the Appellant filed her refugee claim. [5] The Appellant's application for refugee protection was heard on December 12, 2013. In a decision of January 22, 2014, the RPD rejected the Appellant's claim. The RPD found that the Appellant is not a genuine Falun Gong practitioner in either China or Canada and that she is not being pursued by the PSB as she has alleged. [6] The Appellant submits that the RPD made serious reviewable errors in arriving at its determination. In particular, the Appellant alleges the RPD: a) misapprehended the evidence regarding the Appellant's ability to leave China undetected using her own passport; b) engaged in speculation with respect to criminal procedure in China and detention notices; c) erred in its analysis of the Appellant and her family's interactions with the PSB with respect to: i. the Appellant's mother not sending additional documents; ii. the PSB issuing an arrest warrant; and iii. the PSB's treatment of the Appellant's family members. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that the person who is subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] The Appellant has tendered the following proposed new evidence in support of her appeal: 1) A faxed letter from the Appellant's mother, dated XXXX, 2014; and 2) A faxed copy of the Appellant's aunt criminal sentence verdict, dated XXXX XXXX, 2014. [9] The RAD finds that the documents tendered are dated after the rejection of the Appellant's claim and are relative to events which occurred after the rejection. Although the documents appear to meet the test in 110(4), the RAD finds that further analysis of the documents is required before the RAD can accept these documents as new evidence. In this regard, the RAD has turned to the four factors in Raza.1 While the RAD finds that, while Raza provides guidance on the application of the analysis that should be carried out, the analysis as set out in Raza is not entirely appropriate for the purpose of assessing evidence submitted to the RAD. Accordingly, the RAD has adapted the analysis in Raza to the assessment of evidence submitted to the RAD. [10] Express statutory provisions: The RAD's analysis of the new evidence must begin with the test set out in Section 110(4). [11] First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim.2 [12] The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.3 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [13] It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [14] If the evidence, as in this case, is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.4 [15] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,5 or that it proves a fact that was unknown to him/her at the time of the hearing?6 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [16] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered.7 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [17] The Appellant argues that the documents meet the statutory requirements of section 110(4) of IRPA, as they both deal with events which occurred after the rejection by the RPD and that they had no access to these documents at the time of the hearing. The RAD concurs with the Appellant and finds that the documents do meet the statutory requirements of section 110(4) of IRPA. [18] As such, the RAD will proceed to assess the credibility, relevance, and materiality of the document.8 The factors set out below need not be considered in any particular order; however, the evidence must logically meet all of the factors, in addition to having met one of the statutory criteria, to be admissible.9 [19] Credibility: Section 171(a.3) of IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. Evidence that passes the test in Section 110(4) must therefore be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. If not, the evidence need not be considered.10 [20] Relevance: The RAD must consider whether the evidence is relevant to the appeal, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection. If not, the evidence need not be considered.11 [21] Materiality: Is the new evidence capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal? If not, the evidence need not be considered. [22] The Appellant argues that the documents are credible because the letter is signed by the Appellant's mother and the verdict is stamped by the PSB. The Appellant further argues that the documents are relevant to her claim because the verdict demonstrates that her aunt, who introduced her to the practice of Falun Gong, has been sentenced for engaging in organizing Falun Gong activities, and the letter confirms that the PSB continues to seek her out. Finally, the Appellant argues that the documents are material, as the Appellant's claim would have succeeded had she had these two pieces of evidence for her hearing. The Appellant argues that the RPD made an adverse finding regarding the Appellant's testimony from her failure to tender any documents to corroborate her and her aunt's arrest and that, had this evidence been before the RPD, the RPD may have come to a different conclusion. [23] After review, the RAD finds that the Appellant's proposed new evidence is not admissible in this appeal. Although the Appellant alleges that the letter from her mother provides evidence that the PSB were seeking her in XXXX 2013, the RAD notes that the letter makes no such assertion. The letter merely states that the police had come to her house in China looking for her; however, the letter does not state when the police attended her home or for what purpose. [24] More importantly, the RAD notes that the documents in question are merely faxed copies of original copies said to be in the possession of the Appellant's mother in China. The Appellant argues that the documents were faxed in the interest of time to submit the Appellant's Record. While the RAD finds that timelines for the submission of the Appellant's Record may have required the faxing of these documents in the first instance, the RAD notes that the Appellant has not made any submission of what efforts have been made following the submission of the Appellant's Record to obtain the originals. Rule 29 of the RAD Rules provides that the Appellant can make application to tender documents after the submission of the Appellant's Record; however, the Appellant has made no such submission. Further, the Appellant has not made any submissions to explain why she is unable to acquire the original documents. Nor has there been any submissions made to delay this appeal pending the receipt of the originals. [25] The RAD finds that, with the absence of the original document and the lack of explanation of why the original was not tendered in accordance with Rule 29, the RAD finds that the faxed copies cannot be relied upon. The RAD finds that these documents do not provide reliable evidence of the arrest of the Appellant's aunt or the pursuit of the Appellant by the PSB. It is the view of the RAD that materiality is the measure of the estimated effect that the presence or absence of an item of information may have on the accuracy or validity of a statement. That evidence has to have a certain threshold effect to be material, namely, that the evidence is capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal. The RAD finds that these documents are not material in that they are incapable of showing that the decision or reasons of the RPD are in error and, as such rejects them as new evidence, as they are not reliable. [26] The Appellant has not requested an oral hearing under s. 110(6) of IRPA. As no new evidence was admitted, the RAD need not consider an oral hearing. STANDARD OF REVIEW [27] 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. The Appellants submit that the standard of review is one of reasonableness. The RAD agrees, in part, with counsel's submission in this regard. [28] In Dunsmuir,12 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. In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,13 which take into account the list of factors in Dunsmuir.14 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [29] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and given the relationship between the RPD as a tribunal of the first instance and the RAD as an appellant administrative tribunal, the Newton factors are highly relevant. [30] These factors are: 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. [31] In considering the factors in Newton, the RAD has considered which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [32] Both the RPD and the RAD derive their jurisdiction from the same statute: IRPA. The Act gives each Division similar powers, although their roles are not the same. It is the primary role of the RPD as a tribunal of first instance to hear testimony, review evidence and determine a claim on its merits; while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [33] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.15 The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.16 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD, in most cases, must conduct a hearing17 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [34] In contrast to the RPD's authority to assess a claim for protection, IRPA places some limitations on the RAD's ability to consider evidence. For instance, persons who are the subject of the appeal are limited in their ability to present evidence to the RAD. The RAD is not a tribunal of first instance but exists primarily to review the decision made by the RPD and, in the cases where new evidence is considered, to review those decisions in the context of that new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.18 The RAD's authority to consider new evidence is also limited by the conditions set out in IRPA. Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.19 [35] It is the RAD's view that, given the limitations imposed on the role of the RAD by IRPA, the presence of a right of appeal in and of itself does not warrant a correctness standard on all issues. Rather, given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD will be, in most cases, in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".20 [36] The Appellant raises issues with the RPD's findings of fact. The RAD finds that the errors alleged are allegations of errors of fact. The appropriate standard of review in this appeal is one of reasonableness. 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.21 ANALYSIS OF THE MERITS OF THE APPEAL The RPD Misapprehended the Evidence Regarding the Applicant's Ability to Leave China Undetected Using Her Own Passport [37] The RPD drew an adverse credibility findings based on the Appellant's ability to leave China using her own passport. The RPD reasoned that, as a person who was under the watch of the PSB due to her involvement in Falun Gong, the Appellant would have been prevented from leaving China. The RPD's reasoning was based on the existence of the Golden Shield database which contains information on persons who have come to the attention of the police in China. [38] The Appellant submits that the evidence before the RPD makes it clear that there is no certainty with respect to whether the database exists. The Appellant relies on the China national documentation package item 10.3 in citing that: "it was not until February 11, 2009 that the Chinese Ministry of Public Security even selected a technology company - China Information Security Technology - to deliver the system." [39] Although the Appellant alleges the RPD misapprehended the evidence, the RAD finds that it is the Appellant who has misapprehended the evidence she relies on. A careful reading of the document relied upon reveals that the document does not state that the PSB selected the technology company on February 11, 2009. Rather, the document refers to an article dated February 11, 2009 in which it is stated that a technology company was selected, but it does not provide a date of when that selection was made. An 11 February 2009 Datamonitor article indicates that the Ministry of Public Security chose China Information Security Technology (CIST) to deliver police-use geographic information systems (PGIS) nationally. PGIS is said to offer increased coordination and monitoring amongst the mobile police workforce, allowing the command centre to see and communicate with ground-level police (Datamonitor 11 Feb. 2009).22 [40] The Appellant also quotes the same document as stating that the "a number of provincial level cities and municipalities would have standardized and integrated elements of this technology system in three years, after which these systems will be implemented nationwide."23 [41] The RAD finds that the Appellant has taken this statement out of context. The Appellant fails to acknowledge that the paragraph quoted is referring to the second phase of the implementation of the system. The Appellant also fails to acknowledge that the article providing this information was dated in 2009; however, there is no indication in the article when the system was implemented. [42] The article states that: ...this national PGIS initiative is part of phase two of the Golden Shield project and aims to "establish an integrated platform connecting all variations of PGIS systems throughout the country" in order to share information across various public service departments and police divisions (ibid.). It is estimated that 100 provincial-level cities and municipalities will have standardized and integrated PGIS systems in three years, after which these systems will be implemented nationwide (ibid.).24 [43] In fact, the same document relied upon by the Appellant provides evidence that the Golden Shield was operational as early as 2003. [44] The Appellant also refers to Wei25 to support to her argument. In that case, the reviewing court took exception to the panel's reliance on the documentary evidence related to the Golden Shield. In particular, the court stated: The information does not confirm that a centralised information sharing system was in place; rather it discusses the intention to put such a network in place. [45] However, the RAD notes that the decision in Wei was based on the documentary evidence that existed in 2010. In the case at hand, the RPD relies on the documentary evidence in the record today. [46] Again, the RAD notes that the same National Documentation Package relied upon by the Appellant also states with certainty that the Golden Shield is operational. A researcher, who has conducted research and published on the Chinese policing system for fifteen years and who was previously a professor of Chinese and East Asian Politics at Western Michigan University, stated the following in correspondence with the Research Directorate: China's Public Security Departments absolutely do have nationwide computer information sharing networks, and have been working hard to develop and expand those for at least a decade.... [A] fair amount is published about them in Chinese language police journals. One does read complaints about provincial police departments not being willing to share information with each other, however. For Chinese readers, a good deal of information about nationwide arrest warrants is openly available on the webpage of the Ministry of Public Security (www.mps.gov.cn) and on the webpages of the various provincial public security departments. There has really been an explosion of this online police information in the past 6-7 years. (11 May 2009) [47] The RAD also notes that the United Kingdom Operational Guidance Note, 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.26 [48] Based on the foregoing, it is clear that such a system is in place. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.27 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.28 In this case, there is an evidential foundation for the RPD's findings. The RAD finds that the RPD's credibility finding on this issue was reasonable. The Panel Erred by Speculating that the PSB would have issued a Detention Notice [49] The Appellant alleged that she was arrested and detained for five days when she was discovered at a Falun Gong gathering. The RPD drew an adverse credibility finding from the Appellant's failure to tender a notice of detention. The RPD cited the documentary evidence which states that authorities are obliged to provide detention notices to family members when a person is detained. [50] The Appellant submits that the RPD has misapprehended the evidence with regard to the PSB procedure. The Appellant argues that objective evidence provides numerous examples that indicate that the PSB does not comply with Chinese criminal procedure and that policing standards are highly inconsistent. The Appellant argues that, given the inconsistent application of the rule of law by the PSB, it was unreasonable for the RPD to expect that a detention notice would be issued to the Appellant's family. [51] The RAD is not persuaded by the Appellant's argument in this regard for a number of reasons. The Appellant relies, in part, on extracts from the documentary evidence. In her pleadings, the Appellant quotes extracts from Response to Information Request CHN103401E. Official Chinese media have, in recent years, ... identified police compliance with the law as a serious issue that needs to be addressed" (2007, 98). Author Kam C. Wong, who has published extensively on policing in China (Berkeley Electronic Press n.d.), indicates that interpreting Chinese police as a "monolithic entity," or judging police activities as uniform, is a misconception, arguing that "national policy and priorities are not equally shared locally" (Wong 2009, 7). Public security officials in the local area routinely fail to follow established laws and regulations.29 [52] However, the RAD finds that these extracts when read out of context with the entire item, fails to provide the true overall perspective. The RAD notes the item referred to by the Appellant is based upon a dated assessment made in 2007. The Appellant has not provided any recent evidence that police compliance has failed to improve since 2007. The complete item reads: Moreover, the 2007 edition of Criminal Procedure: A Worldwide Study indicates that "Official Chinese media have, in recent years, ... identified police compliance with the law as a serious issue that needs to be addressed" (2007, 98). Author Kam C. Wong, who has published extensively on policing in China (Berkeley Electronic Press n.d.), indicates that interpreting Chinese police as a "monolithic entity," or judging police activities as uniform, is a misconception, arguing that "national policy and priorities are not equally shared locally" (Wong 2009, 7). [53] Wong adds that: In terms of actual practice, however, arrest procedures differ from locale to locale, having to conform to local customs reflecting indigenous circumstances. There are a number of reasons accounting for such local disparities: First, public security leaders, particularly those at the rural, village and township level, are ignorant of the legal responsibility and authority of the police. They have overemphasized the necessity to coordinate local police work with central Party policy directives at the expense of enforcing national laws uniformly and implementing administrative regulations dutifully, that is, allowing Party policy to trump the rule of law. Second, public security officials in the local areas routinely fail to follow established laws and regulations. They are consistently unable to resist illegal orders from local Party leaders who control their appointment, employment, and promotion. They are also afraid of spoiling the "good" or "established" relationship with the local village and township leaders, thereby making their work difficult, if not impossible. Third, there is a lack of checks and balances guarding against abuses of police authority. Fourth, local public security has inadequate funding to carry out national law and The MPS directives. (ibid., 18-19) Corroborating information on the reasons for the lack of uniformity in the application of arrest procedures could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request. [54] The Appellant seems to suggest that the PSB never follows the rule of law in complying with criminal procedure. However, the RAD finds that the documentary evidence does not go that far. Rather, the documentary evidence acknowledges that police compliance on policing standards can vary from place to place. The RAD finds that, while procedures may differ throughout the country due to local variances, this does not mean that the PSB in some areas do not follow the rule of law. [55] Furthermore, the RPD's finding with regard to the detention notice was in conjunction with its broader findings that the Appellant failed to tender any persuasive documents to corroborate her detention or the PSB's interest in her. The RPD noted that the Appellant was not only arrested and detained for five days, but she was also required to sign a promissory document denouncing Falun Gong and was required to report to police on a monthly basis. The RPD noted that the Appellant did not tender any of these documents as well. [56] The RPD also found that the Appellant had not tendered any corroboration of any of the PSB's visits to her home. The RPD noted that the Appellant had not tendered a copy of the search warrant or any summons or arrest warrant arising from her failure to report to the PSB as required. The RPD cited the documentary evidence which indicates that it is very common for police authorities to leave copies of summonses and warrants with family members. The RPD acknowledged the variances in police practices from region to region but noted that the Appellant alleged that the PSB showed a search warrant to her family when they first searched her home. The RPD found that, in the case of the Appellant, the PSB appear to follow the rule of law, and, accordingly, it was reasonable to expect that she would be able to provide as least some documents from her interactions with the PSB. [57] The RAD finds that, under the circumstances, given the allegations of the Appellant, it was open to the RPD to draw adverse credibility findings from the lack of persuasive documents corroborating the allegations of the Appellant. The RPD erred in its Analysis of the Appellant and her Family's Interactions with the PSB [58] The Appellant submits that the RPD drew an adverse credibility finding because the Appellant's mother has not sent documents relating to the PSB's arrest of the claimant and arrest of her aunt or search warrant. The Appellant argues that the RPD's finding was speculative and based on its own expected standard of behaviour. The Appellant also argues that there was no evidence before the RPD to suggest that the Appellant's mother would have been able to undertake the efforts required to obtain and send documents of this nature, and, further, such efforts may have placed her at risk. [59] The RAD is not persuaded by the Appellant's argument in this regard. The RPD's finding with regard to the failure of the Appellant's mother to send corroborating documents was not an independent credibility findings but rather was part of the overall findings with regard to the Appellant's failure to tender persuasive documents to corroborate her allegations. The RPD's reasons dealing with the Appellant's mother's efforts to send documents was relative to her access to these documents and the reasonableness of the Appellant's ability to tender them. The RPD noted that the Appellant's mother had found a way to provide other documents to the Appellant through the use of a third party, and given the RPD's finding that it was reasonable to expect that at least some documents would have been issued to the Appellant or her family, the RPD reasonably found that these documents could have been tendered at the RPD hearing. The RAD finds that the RPD's findings in this regard are reasonable. Treatment of the Family Members [60] The RPD drew an adverse credibility finding based the treatment of the Appellant's family in China. The RPD relied upon the documentary evidence which state that family members face the same treatment as members [of Falun Gong] themselves ranging from loss of employment to torture. The RPD found that, in light of the Appellant's allegations of the PSB's interest in her, it would be reasonable to expect that family members would face some kind of pressure from authorities in their efforts to locate the Appellant. [61] The Appellant submits that the RPD's finding was speculative. The Appellant argues that, even if it is true that in some instances the police will pursue family members in their efforts to locate suspects, it does not imply they will do so in every case. [62] The RAD is not persuaded by the Appellant's argument in this regard. Country condition documents reveal that family members of Falun Gong practitioners are targeted. A spokesperson for the Falun Dafa Association of Canada stated that some family members of practitioners have suffered the "same mistreatments as practitioners" themselves, including detention and torture (Falun Dafa 17 Sept. 2013). The 2008 report states that this allegedly includes pressuring spouses to divorce, threatening to end the careers of relatives, expelling the children of active Falun Gong members from school, and leaving some children orphaned or alone due to the detention or execution of one or both of their parents (FDIC 17 May 2008). The report adds that [b]ecause they internalized the Party's propaganda portraying Falun Gong as a "dangerous organization," because they feared repercussions, or because of naiveté about the regime's inten[t]ions, family members have taken part in persecuting their relatives who practice Falun Gong. (ibid.) In correspondence with the Research Directorate, the Executive Director of Friends of Falun Gong USA (FOFG) , a non-profit organisation founded in 2000 with a "mission is to support the freedom of belief of persons who practice Falun Gong". (FOFG n.d.), indicated that the 2008 report still accurately describes the treatment of family members and relatives of Falun Gong practitioners by the Communist Party of China, except "that the Public Security database has improved, allowing them to be more precise in who they target and in carrying out the persecution" (FOFG 22 Sept. 2013). [63] Furthermore, the 2012 International Religious Freedom Report states: Authorities reportedly instructed some neighborhood communities to report Falun Gong members to officials and offered monetary rewards to citizens who informed on Falun Gong practitioners.30 [64] The RAD finds that the documentary evidence reveals an organized campaign against practitioners of Falun Gong which places family members at risk. Given the documentary evidence, and given the fact that the Appellant has absconded for several months, and the PSB's alleged interest in the Appellant, the RAD finds that it was open to the RPD to draw an adverse credibility finding from the lack of evidence of mistreatment of the Appellant's family members. The RPD erred in its Analysis of the Appellant's Continued Practice of Falun Gong after Her Arrest [65] The RPD drew an adverse credibility findings based on the Appellant's continued practice of Falun Gong following her own arrest and detention and the arrest and continued detention of her aunt. [66] The Appellant submits that the RPD's finding in this regard is speculative and not supported by the evidence. The RAD finds the Appellant's argument in this regard compelling. The RPD seems to apply its own standard of behaviour in assessing what the Appellant ought to have done under the circumstances and does not support its findings based on the evidence in the record. While it might seem very odd that she would continue to practice Falun Gong having experienced the negative consequences of her involvement with the practice, the RPD cannot speculate that she ought to have given up her belief system because of that risk. In doing so, the RAD finds that the RPD's findings in this regard are unreasonable. The RPD's Analysis of the Appellant's Falun Gong Identity was Erroneous [67] The Appellant submits that the RPD failed to properly adjudicate her identity and practice of Falun Gong in Canada. The Appellant argues that the RPD merely "paid lip service to it [her identity and practice of Falun Gong in Canada]" while already having reached its ultimate conclusion and did not engage in a real analysis. The Appellant argues she provided supporting evidence of her practice in Canada including a letter from a fellow Falun Gong practitioner and a photograph of her performing an exercise with other practitioners and that the RPD had a duty to consider the evidence. [68] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that it was open to the RPD to find on the basis of its findings that the Appellant was not a practitioner in China and that the PSB are not pursuing the Appellant and that her practice in Canada was for the purpose of furthering a fraudulent claim. The RAD notes that the Appellant's evidence is that her desire to initiate the practice of Falun Gong took place as a result of circumstances that occurred in China. She alleges she was introduced to and began the practice in China. She alleges that her continued practice of her alleged belief system in Canada is based on her adherence to the practice in China. [69] The RPD reasonably found that the Appellant was not a Falun Gong practitioner in China and given that there is no evidence of conversion in Canada, the RAD finds, on a balance of probabilities, and in the context of the findings noted above-that the RPD's finding that the Appellant joined a Falun Gong group in Canada only for the purpose of supporting a fraudulent refugee claim-is reasonable. [70] The RAD finds that contrary to the allegations of the Appellant, the RPD did consider the Appellant's supporting documentation. The RAD finds that the RPD reasonably afforded the letter and photograph little weight in establishing the genuineness of her practice of Falun Gong and provided sound reasons for doing so. Nonetheless, the RAD finds that the letter and photograph do not overcome the totality of the adverse credibility findings of the RPD. [71] The Appellant also submits that the RPD's adverse credibility finding based on the Appellant's failure to seek out the support of the Falun Dafa Association (FDA) in Canada is unreasonable. The RAD finds that the Appellant's argument in this regard has some merit. While it was open to the RPD to reject the Appellant's explanation that she did not seek out the assistance of the FDA because she did not know where it was located, the RAD finds that the RPD's finding that she should have sought out the assistance of the FDA in Canada is flawed. The RPD's finding that they could have provided her assistance is speculative and not supported by the documentary evidence relied upon by the RPD. The evidence suggests that the FDA only provides assistance to those practitioners with whom they are familiar. Furthermore, the RAD finds there is no evidence in the record which supports the notion that genuine practitioners need to have an affiliation with the FDA. CONCLUSION [72] On the basis of the totality of the RPD's findings affirmed in these reasons, the RAD finds that, given this evidence, the RPD reasonably concluded that the Appellant is not a genuine practitioner of Falun Gong in China or in Canada. [73] The RPD's finding that the Appellant is not a Convention refugee nor a person in need of protection is justifiable, intelligible, and transparent, and falls within the range of acceptable outcomes which are defensible in respect of the facts and the law. DISPOSITION [74] 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. This appeal is dismissed. (signed) "L. Favreau" L. Favreau May 28, 2014 Date 1 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 2 Raza, para. 13.3(a). 3 Raza, para. 16. 4 Raza, para. 13.5(b) 5 Raza, para. 13.5(a) 6 Raza, para. 13.3(b) 7 Raza, para. 13.5(a) 8 Raza, para. 13.5(b) 9 Raza, paras. 14, 15 10 Raza, para. 13.1 11 Raza, para. 13.2. 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 13 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 14 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 15 IRPA, s. 110 (1). 16 IRPA, s. 107. 17 IRPA, s. 170. 18 IRPA, s. 110(3). 19 RAD Rule 57. 20 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 21 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 22 Exhibit RPD-1, National Documentation Package (NDP) for China (31 October 2013), item 10.3, Response to Information Request (RIR) CHN103133.E, 3 June 2009. 23 Exhibit P-2, Appellant's record, p. 28. 24 Exhibit RPD-1, NDP for China (31 October 2013), item 10.3, RIR CHN103133.E, 3 June 2009. 25 Wei, Shoupeng v. M.C.I. (F.C. no. IMM-5987-09), Beaudry, June 25, 2010; 2010 FC 694. 26 Exhibit RPD-1, NDP for China (31 October 2013), item 1.7, Operational Guidance Note: China, at 2.10. 27 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 28 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 29 Exhibit RPD-1, NDP for China (31 October 2013), item 9.3, RIR CHN103401.E, "Implementation of the Criminal Procedure Law of the People's Republic of China in regard to arrest warrants and summonses, particularly in Guangdong, Fujian and Liaoning", 6 July 2010. 30 Exhibit RPD-1, NDP for China (31 October 2013), item 12.1, US Department of State, International Religious Freedom Report for 2012 for China, 20 May 2013. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01884