TB4-01156

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 : TB4-01156 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 16, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dominic Suen 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] XXXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. The Appellant has not submitted new evidence in support of her appeal. She has, however, requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) reconsider her case and grant her protection. 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 [3] The Appellant alleges that on July XXX, 2008, a friend came to her home with two students to teach her how to practice Falun Gong. Subsequently, she joined her friend's practice group. [4] On January XXX, 2012, her group was warned that they were all going to be arrested. The following day, she left the city by train. On the train she saw two members of her practice group. Before she could say hello, five to six police officers arrested them and took them away. She was hiding but they found her. A few minutes later, eight other Falun Gong students, including her, were sent to a detention house, and subsequently to a labour camp. [5] On April XXX, 2012, the Appellant was released after her family raised bail. After her release, she was monitored everyday. [6] At the end of March 2013, she was introduced to a smuggler by her friend and she left China and flew to Canada on XXX, 2013. The Public Security Bureau (PSB) still look for her at her parents' home everyday. THE MINISTER'S INTERVENTION IN THE RPD HEARING [7] The Minister of Citizenship and Immigration (Minister) filed a Notice of Intent to Intervene on September 23, 2013. [8] The Minister is of the opinion that the Appellant's actions do not support a subjective fear of persecution and that she has not shown herself to be credible. THE ISSUES [9] The RPD indicated the issue in this case was the Appellant's credibility. [10] The Appellant submits the issues in regard to this appeal concern freedom of religion, errors in the translation of a document, and holding a hearing without counsel. ANALYSIS Application for an oral hearing [11] 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's 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. [12] The Appellant has not submitted new evidence in support of her appeal. As such, the RAD must proceed without a hearing in her appeal and her application for an oral hearing is denied. Standard of Review [13] The Appellant makes no submissions regarding standard of appeal. The RAD finds the issues concern facts and mixed fact and law and, on the basis of case law noted below, the RAD finds the 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 First Practice Session [15] The RPD asked the Appellant how many people came to her home the first time she learned the exercises and she responded five. The RPD noted that, in her Basis of Claim form (BOC), she indicated her friend came with two students. When the Appellant was asked for an explanation, she changed her testimony and said at first that there were two and then others came later to practice. The RPD noted the Appellant had stated in her BOC that she practiced together with her friend and the two students and there was no mention of others joining them. The RPD found the Appellant's explanation was an embellishment to reconcile the inconsistent evidence, and drew a negative inference regarding the credibility of the Appellant's allegation as to how she was introduced to Falun Gong. [16] The RAD notes the Appellant makes no submission regarding the RPD's finding in this regard. The RAD finds the RPD's finding is reasonable in light of the evidence cited in the Appellant's BOC. The Arrest [17] The RPD noted that the Appellant stated in testimony that she was alone in the train car with the police and that 'your two friends had gone with other police in another car before you'. The RPD further noted that in her BOC the Appellant stated that when she was taken, eight other Falun Gong students went with her to the station. [18] The RPD noted that the Appellant did not provide a satisfactory answer. The RPD further noted that after some hesitation and a second prompt and a rephrased question, the Appellant responded that she only knew two of the students and that the others were taken away but she did not know them. The Appellant was told that the RPD's question regarding the Appellant's inconsistent testimony remained unanswered. The RPD drew a negative inference regarding the credibility of her allegation of arrest. [19] The RAD notes the Appellant makes no submission in regard to the RPD's finding in this regard. The RAD finds that the RPD's finding is reasonable in that it is founded on an evidentiary base in the Appellant's BOC. Certificate of Detention [20] The RPD noted the Appellant disclosed a certificate of detention on November XXX, 2013. The RPD further noted the Appellant disclosed a document in the hearing that purported to be the original of the certificate of detention. The RPD noted as well the interpreter translated the document disclosed in the hearing and there were several material differences. [21] The RPD stated that the differences clearly could not be attributed to interpreter or translation error. The RPD noted the document disclosed in the hearing, the alleged original, mentioned Falun Gong as the reason for the arrest, but the first certificate did not. In addition, the document provided in the hearing did not mention the names of the two arresting officers, but the document provided earlier does mention them. As well, the two documents differed in the naming of the location of detention. [22] The Appellant explained in the hearing that the first document was emailed to her by her sister and the second, (the original), was sent by mail by her sister. The RPD drew an adverse inference in regard to the differences in the documents as set out above as to the credibility of the Appellant's detention for being a Falun Gong practitioner. [23] The Appellant submits that the document was poorly translated by previous translators and do not clearly reflect what was mentioned in the document. [24] The RAD agrees with the RPD that the differences in the two documents cannot be attributed to mere translation error. The RAD notes that material elements are different such as the failure to mention Falun Gong in one document and the failure to mention the names of those responsible for issuing the certificate in the other document. [25] The RAD finds the RPD's negative credibility finding concerning the Appellant's allegation that she was detained by Chinese authorities is reasonable. FALUN GONG KNOWLEDGE [26] The RPD found, for a practitioner who has allegedly been practicing since 2008 and who further alleges she continues to practice today, and for someone who has read Zhuan Falun, that the Appellant's knowledge of Falun Gong was not at a reasonable level. [27] The RPD noted the Appellant was able to explain the main principles but she was unable to answer correctly questions with regard to two basic elements of Falun Gong practice, 'karma' and the 'celestial eye'. [28] In regard to 'karma', the RPD noted the Appellant was unfamiliar with the term and did not know how 'karma' manifests itself. The RPD further noted the Appellant was unaware of the concept of improving 'karma' and that it was something that needed to be transformed. The RPD asked the Appellant if karma was good or bad and she said good. The RPD noted this response was contrary to the teachings of Master Li who considers it something that must be improved. [29] The RPD questioned the Appellant regarding the number of levels of opening of the 'celestial eye'. The Appellant responded there was only one opening. The correct answer is five different levels of opening. [30] The RPD drew an adverse inference concerning the Appellant's Falun Gong knowledge, in the context of the Appellant's alleged approximately five years of practice. [31] The RAD notes the Appellant makes no submission in regard to the RPD's finding concerning her Falun Gong knowledge. The RAD finds that it was available to the RPD to draw a negative inference in respect to the Appellant's inability to answer correctly some basic Falun Gong questions after allegedly practicing for eight years. The RAD further finds the RPD's finding is reasonable. Freedom of Religion [32] The Appellant submits that she has a right to practice Falun Gong freely and she cites case law concerning freedom of religion. [33] The RAD finds that the Appellant has failed to establish before the RPD that she is a genuine Falun Gong practitioner who has experienced persecution in China, and for the previous reasons the RAD has found the RPD's findings in this regard to be reasonable. Therefore, the issue of religious freedom is not material to this appeal. Failure of Counsel to Appear [34] The Appellant submits that she hired counsel to represent her in the hearing but counsel failed to appear. The Appellant further submits that although she was offered an opportunity to waive the right to counsel, she was not given an opportunity to wait for her counsel, and proceeding without counsel was not entirely her wish. The Appellant cites case law that indicates Immigration officers are required to inform persons who are detained of their right to counsel. The RAD notes that this case law involved the issue of detention and the case in hand does not. [35] The RAD has reviewed the CD recording of the hearing and notes the RPD offered the Appellant the opportunity to postpone the hearing in order to allow time for counsel to appear, or alternatively to proceed without counsel. The RAD further notes the Appellant decided to proceed without counsel. [36] The RAD finds the Appellant's submission that she was not given the opportunity to wait for her counsel is inconsistent with her testimony in the hearing. The RAD recognizes that s. 167(1) of IRPA states that a person subject to a proceeding may be represented by counsel, but this is not an absolute right. The RAD further finds the RPD made no error in law, and notes in this regard that the Appellant has made no arguments as to how the lack of counsel adversely affected her claim. DISPOSITION [37] 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 16, 2014 Date 1 Iyamuremye v. MCI, 2014 FC 494, May 26, 2014 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para. 47 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-01156