TB4-09380

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 : TB4-09380 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 9, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A Kaminker 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 ministre REASONS FOR DECISION [1] XXXXXXX, (the Appellant) is a citizen of China. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has not submitted any new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find her to be Convention refugee, or in the alternative, refer her claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant fears a return to China because her involvement in Falun Gong was revealed to the Public Security Bureau (PSB). As a result of a lumbar muscle strain that was not remediated by medical intervention, the Appellant accepted the ministrations of a friend in late April 2013 regarding Falun Gong. She initially refused the pleadings of her friend, but on July 15, 2013, her medical problem resurfaced. She began the practice of Falun Gong in August 2013. As a result of the improvement in her health, she joined a Falun Gong group, who had security arrangements, on September 27, 2013. She later introduced the practice to some friends. [4] On XX, 2014, the Appellant came to Canada as a tourist. On March 3, 2014, while still in Canada, she learned from her husband that the PSB had gone to their home and questioned him regarding her involvement in Falun Gong. She also learned that two fellow members had been arrested on March 1, 2014 while distributing Falun Gong leaflets. On XX, 2014, the PSB went to the Appellant's home a second time, questioned her husband, and told him not to withhold any information or he would be punished too. On March 10, 2014, the Appellant was dismissed from her workplace due to her involvement in the Falun Gong group. The Appellant has learned that the PSB continue to look for her and therefore, she seeks the protection of the Canadian government. [5] The Appellant's application for refugee protection was heard on the following dates: May 13, 2014; June 3, 2014; and August 27, 2014. In a decision of August 28, 2014, the RPD rejected her claim finding that there was insufficient evidence to support that she has been persecuted or that she would be in the future. In the Appellant's Memorandum of Appeal, she respectfully requests that the RAD set aside the decision and find that she is a Convention refugee. In the alternative, the Appellant requests that RAD refer the matter back to the RPD for redetermination. In that no new evidence was submitted, an oral hearing will not be held. Memorandum of Appeal [6] In the Memorandum of Appeal, the Appellant argued that other than two letters from her employer in China, the Appellant's evidence was consistent with both her written evidence as well as the documentary evidence. The Appellant notes that the RPD stated in its decision that the Appellant testified consistently with the allegations made in her Basis of Claim Form (BOC). [7] The Appellant argues that she testified consistently about the contents of her medical records, an issue that caused her to be motivated to practice Falun Gong. [8] The Appellant argues that the RPD acknowledged that the Appellant gave correct information about some of the tenets of Falun Gong. [9] The Appellant argues that the RPD should obtain a copy of the Temporary Resident Visa (TRV) application so as to shed further light on the Appellant's employment. [10] The Appellant argues that the RPD drew an erroneous negative inference from the fact that the Appellant had her personal documents mailed to her in Canada. [11] The Appellant argues that the RPD made an erroneous adverse inference of credibility because the Appellant's husband did not come to Canada once the fact that the Appellant's practice of Falun Gong was discovered by the Chinese government. [12] The Appellant argues that the Appellant's husband did not fall into a class of individuals who would be persecuted and harassed by the PSB as a result of a family member's practice of Falun Gong. ROLE OF THE RAD [13] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [14] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. CREDIBILITY [15] The Appellant testified that she was employed from August 2008 to February 2014 as an accountant at XXX school. This testimony was supported by documentation both from the Appellant's BOC, 2 and notes from the Canada Border Services Agency (CBSA) and Citizenship and Immigration Canada (CIC). The Appellant submitted two letters from her employer: one dated January 15, 2014, giving her leave for vacation; and the other dated March 10, 2014, dismissing her from employment because of her involvement in Falun Gong. The address on the letters referred to above was XXXX, Shenyang, China. The RPD produced two pieces of documentation on March 13, 2014, and on June 2, 2014, that indicated that the XXX Hotel was located on that site, and no such school, as noted above, existed at that location. [16] The RPD found, after extensive questioning of the Appellant, that the Appellant's alleged employment by this school during the dates submitted was not credible. The Appellant testified that the address was there because the business license still shows the same address and so any formal letters must use this address. The Appellant gave testimony that she had stopped working there in June 2009, but was on leave, and still had to make an application for vacation and the letter of termination was written because she was still considered an employee. Even after being confronted with the documentation, the Appellant argued that the school was still located at the address on the letterhead. The Appellant's testimony regarding the school during the third hearing made no sense. As a result of the Appellant's testimony that was both inconsistent and not credible, the RPD found that the letters submitted were fraudulent, and gave no probative value to these letters as an indicator of the Appellant's Falun Gong practice in China. The RAD finds the Appellant's inconsistent testimony, when confronted with the documentation, was not credible. After listening to the Appellant's testimony on the audio recording of the RPD hearing and reading the documentation in the RPD Record, the RAD concurs with the RPD's findings regarding the letters not being a probative indicator of the Appellant having been fired by her employer in China. The RAD recognizes and respects the RPD's assessment of the Appellant's lack of credibility with respect to her employment letters. [17] The Appellant's counsel, at the third sitting, requested that the RPD request the TRV application in order to shed more light on the employment issue discussed above. The Appellant's counsel submitted, in the Memorandum of Appeal, a transcript, page 15, from the hearing, where the Appellant's counsel and the RPD member discuss the issue. In reviewing the transcript, and listening to the audio recording of the hearing, the RAD concurs with the RPD's reasoning that the TRV application would not be particularly helpful. The RPD member explained at length, given the Appellant's testimony regarding complete knowledge about the information on the application, that the TRV application would not be probative, and potentially raises other issues of credibility. After listening to the audio recording of the hearing, and reviewing the documentation submitted by the Appellant on page 15 of the Memorandum of Appeal, the RAD concurs with this decision, and finds that the submission of the TRV application would not assist in the decision for the Appellant. The RPD member clearly stated that the Appellant was not aware of what information was given on the TRV application. [18] The Appellant argues that other than these two letters, the Appellant testified consistently with the allegations made in her BOC and uses the RPD's decision to buttress this argument. According to the RPD's decision: "When the Claimant [the Appellant] was asked to recount her allegations she testified consistently with the allegations she made in her Basis of Claim Form. This is a factor in the Claimant's favor."3 [19] The RAD disagrees with the RPD on this line in the RPD decision. In listening to the audio recording of the hearing, the RAD found that the Appellant altered her testimony when given additional information by the RPD. As outlined above, the RPD produced documentation that was at odds with the Appellant's BOC narrative regarding her letter of dismissal from her alleged workplace. In CIC's Schedule A Background/Declaration located on page 45 of the Memorandum of Appeal, the Appellant states that she was employed as an accountant from August 2008 until February 2014 at the XXXX School, a statement that was proved not credible by the submission of additional RPD documentation noted above. [20] The basis of the Appellant's fear is that the PSB had found out that she was a Falun Gong practitioner, visited her house, and questioned and threatened her husband. No documentation was submitted to support this allegation. The bases of this allegation by the Appellant were the Appellant's testimony and two letters, found to be fraudulent by the RPD. The RAD finds that even though the Appellant was able to give some testimony consistent with her BOC, the truthfulness of this testimony is undermined by the use of her fraudulent employment letters. As a result, the RAD finds that the Appellant's story about her practice of Falun Gong and being wanted by the PSB, as outlined in her BOC narrative, is not credible. The RAD bases this finding on the inconsistency between testimony and documentation submitted. As a result of this finding, the RAD finds that the RPD's decision that there was consistency between the BOC claim and her testimony is in error. The Appellant also gave the same fraudulent information, regarding her employment to CBSA/CIC, as well as in her BOC. [21] As a result of the Appellant's lack of credibility, and the use of fraudulent documentation to support her claim of practicing Falun Gong, the RAD finds, on a balance of probabilities, that the Appellant did not practice Falun Gong in China and was not wanted by the PSB for the practice of Falun Gong. [22] The RPD put little weight on the Appellant's Chinese medical records. The basis of the finding was due to the Appellant's non-credible evidence regarding their provenance, the Appellant's lack of credibility and her use of fraudulent documents in the hearing. The Appellant argues that she testified consistently about the contents of her medical records, an issue that caused her to be motivated to practice Falun Gong. In listening to the audio recording of the hearing, and reviewing the medical documentation submitted, the RAD has no reason to disbelieve that the Appellant suffered from the alleged ailments, and received treatment. However, the RAD finds that the Appellant's medical condition is not probative in determining that the Appellant was a Falun Gong practitioner in China. Given the Appellant's demonstrated lack of credibility, outlined above, in other documentation and in testimony, the RAD, finds these documents not probative in establishing the Appellant's alleged Falun Gong practice in China. [23] The RPD acknowledges that the Appellant testified about some of the tenets of Falun Gong, and weighed the evidence in her favor. The Appellant argues, in her Memorandum of Appeal, that the RPD's comments support that the Appellant is a genuine Falun Gong practitioner. In listening to the audio recording of the hearing, the RAD found that these questions regarding her knowledge of Falun Gong were posed by the Appellant's counsel, not by the RPD member. One of the determinative issues in this claim is the Appellant's practice of Falun Gong in both China and Canada. It would be reasonable to expect that the RPD would fully canvas this issue as the genuine practice of Falun Gong is an issue when determining the sur place aspect of the claim. However, as will be outlined later in this decision, the Appellant's demonstration of some knowledge of Falun Gong will be found not to be a determinative issue by the RAD. [24] The RPD questioned the Appellant extensively on the method used to receive her personal documentation in Canada. The RPD found it unreasonable that the Appellant's husband would avoid using the mail, "I dare not mail this letter, so I have to fax it," yet have a neighbor of the Appellant use his real name on the envelope that carried the Appellant's personal documents to Canada. The Appellant, in the hearing, gave nonsensical testimony where she refused to acknowledge that the personal documents in the envelope all bore her name. The RPD drew a negative inference regarding her credibility. The RPD listed a court decision,4 to substantiate this finding. The Appellant argues that the facts of the particular case law referred to by the RPD are different, in that the claimant in that case, had her own name and address on the documents. After listening to the audio recording of the hearing, the RAD concurs with the RPD's decision regarding the Appellant's lack of credibility regarding this issue. The Appellant acknowledged the alleged risk, given the testimony outlined above. The Appellant's testimony on this issue was erratic, and she refused to acknowledge that the documentation with her name, presented at the hearing, was not on the documentation sent from China. In reviewing the documentation, the RAD concurs with the RPD's finding that the authorities in China open international mail. The RAD finds that if the Appellant was wanted by the PSB, as alleged, her family would not have put a neighbor at risk by having that neighbour mail her documentation. The Appellant acknowledged this alleged risk by not having her husband mail the information, then to have a neighbor do so, is not credible. The RAD finds that this further substantiates the finding earlier that the Appellant is not a practitioner of Falun Gong in China, nor was she wanted by the PSB. [25] The RPD found the Appellant not credible when she testified that her husband was not in danger from the PSB in China. The RPD outlined the documentation available to the IRB on the treatment of family members in China. The Appellant argued that the RPD's credibility decision regarding her husband was erroneous, because her husband fell into a class of individuals that would not be persecuted because of his lack of interest and commitment to Falun Gong. The RAD disagrees. In reviewing the documentation available to the IRB, and quoted in the RPD's decision, the RAD finds no documentation to support this argument by the Appellant. As well, no documentation was submitted in the Memorandum of Appeal to substantiate this argument. The RAD finds that the Appellant's husband would likely be harassed, and potentially suffer some of the treatment, quoted in the IRB documentation, of Falun Gong family members. [26] In questioning, the RPD asked why the Appellant's husband, if he was potentially at risk in China, would not come to Canada, given that he had a valid Canadian visa. The Appellant's argument, as outlined above, and refuted by both the RPD and RAD, was that he was in a class of people that would not be bothered by the PSB. The Appellant testified that her husband was too busy to come, indicating that he was continuing to work and be productive in China. The RAD finds that this further substantiates the finding that the Appellant was not a Falun Gong practitioner in China. [27] The RPD found, on a balance of probabilities, that the Appellant was not credible regarding her allegations of the practice of Falun Gong in China. The RPD also found that the Appellant was not wanted by the PSB for the practice of Falun Gong in China. The RAD concurs with both of these findings. The Appellant's lack of credibility regarding the issues of this claim is determinative. [28] The RPD found that the Appellant had fabricated her practice of Falun Gong in China in order to advance a refugee claim, and that the other evidence presented was insufficient to establish a practice in Falun Gong in Canada as genuine. The RPD addressed the photographs of the Appellant practicing in Queens Park, along with photographs of an indoor practice session and Falun Gong rallies. The RPD addressed the letter submitted in support of the Appellant is untested as the author was not present as a witness. The RAD finds that the photographs presented do not establish the genuineness of practice of Falun Gong in Canada. Anyone can attend the sessions, and there is no requisite that the person attending these functions is a genuine Falun Gong practitioner. The RPD found that there was no evidence adduced that the Chinese government has become aware of her practice of Falun Gong in Canada, and quoted documentation supports that Chinese officials in Canada monitor Falun Gong practitioners by photography and questioning. No evidence was adduced that the Appellant has been photographed or questioned by Chinese authorities in Canada, nor did she make any allegations to this effect. The RPD found, and the RAD concurs, that the Appellant began her involvement with Falun Gong in Canada simply to support a fraudulent refugee claim. The RAD finds, on a balance of probabilities, that the Appellant is not a genuine Falun Gong practitioner and would not be identified as such should she return to China. Disposition [29] The RAD will not disturb the RPD decision, and confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. CONCLUSION [30] The Appellant is neither a convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Robert S. Garner" Robert S. Garner January 9, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 RPD's Record, p. 40, question 8. 3 Appellant's Record, RPD Reasons and Decision, para. 6. 4 Ke, Yan Ping v. M.C.I. (F.C., no. IMM-8585-11), Zinn, July 6, 2012; 2012 FC 862. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-09380