TB4-12614

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 : TB4-12614 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 March 11, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jeffrey L. Goldman 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 E. Liu Conseil du ministre REASONS FOR DECISION [1] XXXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal. He has, however, made a request for an oral hearing if the Refugee Appeal Division (RAD) does not set aside the determination of the RPD. The Appellant requests that the RAD set aside the determination of the RPD and find that he is a Convention refugee. Alternatively the Appellant requests that the matter be returned to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. Background [3] The Appellant alleged in his Basis of Claim (BOC) narrative that he fears persecution due to his Falun Gong activities. [4] The Appellant further alleged that he became aware of his sister's Falun Gong practice after she had returned to Canada and the Public Security Bureau (PSB) began to pursue her. He indicated in his BOC that he knew his sister well and had had a subconscious feeling that Falun Gong was not an evil cult. He further indicated that knowing his sister got involved in Falun Gong activities, he wanted to understand more about it. [5] The Appellant suffered from chronic pain in his ankle. In early September 2012, a friend recommended Falun Gong. In late September, he started to practice with his friend. The pain was reduced after two months and he joined a practice group. He told his parents, but they were concerned because of his sister's experience and decided to send him to Canada. [6] In the beginning of December 2012, his parents found a snakehead to help him leave China. He had previously been refused a visa to travel to the United States and the snakehead's initial application for a U.S. visa on his behalf was also refused. [7] The snakehead suggested that he travel to Europe in order to show American officials he had a good travel record and then reapply for a U.S. visa. He traveled to Europe for a week in XXX 2013. [8] He returned to China and continued to practice Falun Gong and study Falun Gong theory. [9] In June 2013, his sister married in Canada and withdrew her refugee claim application. [10] On November 18, 2013, he was informed that another Falun Gong group in a different city was discovered and his group leader suspended their group activities. His parents decided that he should leave China and a snakehead made a Canadian visa application for him in XX 2014. The application was refused. Subsequently the snakehead applied for another U.S. visa and it was issued on XXX 2014. [11] On XXX 2014, he left Guangzhou with the snakehead and traveled to Hong Kong and then Seattle. He crossed the border to Canada with the snakehead. They went to Vancouver and then flew to Toronto. He was informed his group practice activities are still suspended. The Issues [12] The panel indicated the determinative issue in this case is credibility. [13] The Appellant submits the determinative issue in this appeal concerns whether the panel's credibility findings are supported by fact or law. The Role of the RAD [14] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [15] The RAD now has the benefit of Federal Court jurisprudence, which speaks to the appellant tribunal's role in relation to that of the RPD. [16] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [17] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [18] The RAD will review all of the evidence in the RPD's record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Application for an Oral Hearing [19] The RAD cites section 110(3) of the IRPA, which indicates that the RAD must 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. [20] According to section 110(6), 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. [21] The RAD notes that the Appellant has not submitted any new evidence and determines that it must proceed without a hearing. The Appellant's application for an oral hearing is dismissed. The Appellant's sister's Falun Gong practice [22] The panel noted the Appellant's case involved the problems allegedly encountered by his sister. The panel found, however, that the Appellant provided no evidence in support of his sister's issues with Chinese authorities. [23] The panel found as well, if, as the Appellant alleged, the PSB sought to arrest his sister, it further undermined the plausibility of his allegation that he began to practice Falun Gong in September 2012 while the PSB were pursuing his sister. The panel drew a negative inference in this regard. [24] The Appellant submits it understands the panel's concerns, but concerns are no reason to make a plausibility finding. The Appellant further submits the panel has provided no analysis for its finding and it is not based on facts. The Appellant submits as well a failure to provide reasons is a denial of natural justice. [25] The RAD notes that while the panel's analysis is brief, it has provided reasons for its decision to draw a negative inference. [26] The Appellant indicated in his Memorandum of Argument that his sister was the person who initiated his interest in Falun Gong. The Appellant further indicated that the police learned of his sister's involvement in Falun Gong after her visit to China from XXX 2010 to XXX 2011, and they came to the family home to arrest her. [27] The RAD notes that the panel indicated this was not a hearing to deal with the sister's refugee claim, but the panel considered her situation because the Appellant's case involved the problems his sister encountered. [28] The RAD notes the Appellant indicated in his BOC that the PSB continued to attend at the Appellant's family home "to bother and harass my parents and me because of my sister." [29] The RAD finds it was open to the panel to expect that the Appellant would provide some documentation concerning his sister's alleged Falun Gong practice and her pursuit by the PSB. [30] The RAD notes that Federal Court case law indicates that multiple visits by the PSB would likely result in the issuance of a summons,2 and a failure to respond to a summons would result in the issuance of a coercive summons or arrest warrant.3 The RAD further notes that the Appellant did not disclose any documentation concerning his sister's Falun Gong activities in China or Canada, her alleged pursuit by the PSB or her alleged refugee claim in Canada. [31] The RAD finds it was reasonable to expect some documentation as the Appellant indicated in his BOC that his sister's Falun Gong practice influenced his decision to learn about Falun Gong and eventually to become a practitioner. The RAD concurs with the panel's finding concerning the lack of documentation in regard to this central aspect of this claim. [32] The RAD finds as well it was open to the panel to find the Appellant's testimony that he began to practice Falun Gong while the PSB were still visiting his home in pursuit of his sister, even though he was aware of his potential jeopardy as a Falun Gong practitioner, to lack plausibility. [33] The RAD cites the Federal Court of Appeal decision in Alizadeh,4 as did the panel, in which the Court held that the RPD is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole. Lack of evidence that the Appellant is being pursued by the PSB [34] The panel found that there is no evidence to support the Appellant's allegation that the PSB is seeking his arrest, and notes the Appellant indicated in his BOC that his practice group was never discovered by the PSB and he was not personally threatened by the PSB. There is as well no evidence that the PSB is pursuing the Appellant. [35] The panel further noted that after the Appellant was informed that another group had been raided by the PSB and some practitioners had been arrested, his practice group was suspended. The panel noted as well that as a result of this incident, the Appellant and his family began to arrange for him to leave China. [36] The Appellant notes that he is not alleging that he is being sought for arrest by the PSB. The Appellant submits the panel is "blatantly manufacturing issues that do not exist to create out of thin air a credibility problem." The Appellant further submits the "idea of facts existence [sic] when they do not, to the detriment of the claimant is the definition of bias." The Appellant submits as well "the panel has misconstrued the facts suggesting allegations [that] the PSB are after the Appellant, and so a summons should be provided, and as a result provided a biased decision." [37] The RAD agrees with the Appellant that he did not allege that he was being pursued by the PSB, and finds the panel's finding in this regard is not supported by the evidence. The RAD further finds the panel's analysis is confusing as it notes that the Appellant indicated in his BOC that he was not personally threatened by the PSB. [38] The RAD notes however that the Appellant indicated in his BOC that after learning about the raid of another practice group "my parents and I were very fearful for my safety. Therefore, we felt there was no choice but for me to leave China to be safe." [39] The RAD finds that the Appellant alleged he fled China because he feared his safety was in jeopardy, although there was no evidence that he was being sought at that time by the PSB. [40] The RAD notes that while the panel's reference to the Appellant's allegation he was being pursued by the PSB lacked an evidentiary basis, the panel's further reference to the Appellant's BOC statement that he was not being pursued by the PSB reflects a confusing analysis that fails to differentiate between fear of PSB pursuit and his actual pursuit. The RAD finds no evidence of bias on the part of the panel. Failure to claim in other countries [41] The panel found that the Appellant's credibility regarding his alleged fear of persecution is further undermined by his travel to Europe in XXX 2013 where he visited France, Germany, Switzerland and Holland. The panel noted the Appellant made no effort to seek refugee protection in any of these countries. [42] The Appellant was questioned in this regard and he responded that the plan was to go to Canada. The panel found it reasonable to assume that if the Appellant had a well-founded fear of persecution or harm, he would have made a claim for protection at the first available opportunity. [43] The Appellant submits he explained that he did not make a claim in Europe because it was only a one week stay and he had a plan to come to Canada where his sister lived. [44] The Appellant further submits the panel did not explain why it ignored the Appellant's explanation. The Appellant further submits the panel's finding is devoid of analysis. [45] The Appellant submits as well, his group had not been discovered and he was not being pursued by the PSB. His practice group had been shut down and he could not practice Falun Gong in China. [46] The Appellant also submits the panel erred in mischaracterizing the facts and its finding was based on an incorrect assessment of the situation. [47] The RAD notes the Appellant indicated in his BOC that his parents wanted to send him to Canada to be safe. He further indicated he began thinking about the benefits of going abroad where he could practice Falun Gong without concern. [48] The RAD finds the fact that the Appellant was not at the time being pursued by the PSB is not the issue. The RAD notes the Appellant was aware of his jeopardy as a Falun Gong practitioner as he alleged the PSB were pursuing his sister and they had come to his home multiple times. [49] The RAD notes as well that the Appellant had twice been refused a U.S. visa and there was no guarantee that his trip to Europe and return to China would facilitate a successful U.S or Canadian visa application in the future. [50] The RAD finds it was open to the panel to find that if the Appellant was fleeing China because of his fear that his Falun Gong activities might be discovered and he could not practice safely in China, he should have made a claim at the first available opportunity. The RAD notes that all of the European countries visited by the Appellant are signatories to the United Nations Convention. [51] The RAD is guided in this regard by the Federal Court decision in Assadi,5 in which the Court held that failure to immediately seek protection can impugn a claimant's credibility including testimony about events in the claimant's country of origin. The RAD is guided as well by the Federal Court's decision in Ilie,6 in which the Court held that the tribunal was entitled to consider an applicant's failure to claim protection in other countries and consider how the applicant's evidence was to be weighed in light of that failure. Specialized knowledge and entry to Canada [52] The panel noted the Appellant testified he arrived in the United States and walked across the border to Canada without incident. The panel noted that Peace Arch Park is located on the border of British Columbia and Washington State. Based on its specialized knowledge, the panel stated it was aware that the crossing between Blaine in Washington State and Surrey in British Columbia is the third busiest crossing between Canada and the United States. The park is patrolled by the RCMP and United States Customs and Border Control officials. [53] The panel found it reasonable to expect that an individual like the Appellant would not be able to cross the border without being detected. The panel noted it is aware that the Park is patrolled by cameras, sensors and border patrol agents. The panel found that given the current situation regarding terror alerts, the security at such an international border crossing would be increased. [54] The Appellant submits that before using information that is within its specialized knowledge, the panel is required to notify the Appellant and give him the opportunity to make representations on the reliability and use of this information and provide evidence in support of his representations. [55] The Appellant further submits the panel failed to give notice and provided no information regarding the basis for its specialized knowledge. The Appellant submits as well the panel's failure to give notice in the hearing is a breach of natural justice. [56] The RAD has reviewed the recording of the hearing and finds that the panel failed to give notice that it intended to use specialized knowledge in its reasons. The RAD further finds the panel's specialized knowledge cannot be used as a basis for its negative credibility finding concerning the Appellant's entry into Canada without first giving notice, and therefore, the panel's finding in this regard lacks an adequate evidentiary basis. Falun Gong identity [57] The panel noted the Appellant testified he practiced Falun Gong in China and continued to practice in Canada. The panel acknowledged the difficulty in assessing the genuineness of an Appellant's belief and indicated it is necessary to consider the totality of the evidence. [58] The panel acknowledged the Appellant has some Falun Gong knowledge but noted that merely having some knowledge regarding basic Falun Gong teachings does not necessarily reflect genuine practice. [59] The panel noted the Appellant disclosed a testimonial letter from someone who claimed he is a genuine practitioner. The Appellant also disclosed a photograph showing him practicing Falun Gong. [60] The panel noted the author of the letter is an individual unknown to it and the panel was not given an opportunity to question the author regarding the letter's content. In addition, the panel noted the photographs are undated and they cannot authenticate the Appellant's membership in the group or that they were taken while the Appellant engaged in Falun Gong practice. The panel gave these documents no evidentiary weight. [61] The Appellant argues the panel is desperate to concoct negative reasons. The Appellant submits there is no reason provided to give documents no weight. "It could have less weight, but no weight?" [62] The Appellant further submits that even with no weight, this does not impact his testimony he is a Falun Gong practitioner. The Appellant notes the panel acknowledged he possessed some Falun Gong knowledge, and he testified he continues to practice Falun Gong in Canada. [63] The Appellant submits the panel has not stated it did not believe the Appellant in his entirety and therefore his sworn testimony is presumed true. The Appellant further submits nothing the panel has said has any impact on the sworn testimony. The Appellant submits as well the panel has ignored his sworn testimony as though by giving no weight to photographs or testimonials; this eliminates the sworn testimony. The Appellant submits this is a blatant error of law on the face of the record. [64] The RAD has reviewed and assessed the totality of evidence in the RPD record and notes the panel failed to make a clear finding as to the Appellant's Falun Gong identity. [65] The RAD further notes that the panel acknowledged that the Appellant has some Falun Gong knowledge but that merely having such knowledge does not necessarily mean the Appellant is a genuine practitioner. The panel noted as well it considered the totality of the available evidence in making its judgment concerning the Appellant's testimony that he is a Falun Gong practitioner. [66] The RAD notes the panel assessed the Appellant's documentary evidence concerning his practice in Canada and finds it was open to the panel to give the letter and the photographs no evidentiary weight as to the genuineness of the Appellant's Falun Gong identity. The photographs may reflect the Appellant's attendance at a Falun Going practice session, but they do not in themselves confirm the genuineness of the Appellant's practice. The RAD finds the panel's analysis regarding these documents was sufficient support for its findings. [67] The RAD is guided in this regard by the Federal Court's decision in Su,7 in which the Court held "There is nothing unreasonable in finding that a few letters and pictures do not establish that a claimant is a genuine adherent to a religion," especially when there are serious credibility concerns. [68] The RAD finds it was open to the panel to take into consideration the totality of the evidence in making its judgment concerning the sur place aspect of this claim. [69] The RAD is guided in this regard by the Federal Court's decision in Jiang8in which the Court held that the Board was entitled to import its credibility findings into its assessment of the sur place claim. [70] The RAD has reviewed and assessed the Appellant's evidence and the panel's findings concerning alleged events in China. The RAD finds, in the context of findings above concerning his decision to practice Falun Gong and his failure to claim elsewhere, there is insufficient credible evidence to support the Appellant's allegation that he was a Falun Gong practitioner in China, and he left China because he feared PSB pursuit and he was unable to practice Falun Gong freely. [71] The RAD further finds, in the context of the finding above concerning alleged events in China, that there is insufficient evidence to support a finding that the Appellant is now a genuine Falun Gong practitioner and as such, in jeopardy of persecution if he were to return to China. [72] The RAD is guided in this regard by the Federal Court's decision in Tingting Sun9 in which the Court noted the Board found there was simply insufficient evidence to support the Appellant's claim. The Court stated that in its view, this overall conclusion was reasonably open to the Board on the evidence (or, more accurately, the lack of evidence) before it. Disposition [73] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination 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 March 11, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799 2 Sun, Tingting v. M.C.I., (F.C., no. IMM-1862-08), Snider, November 12, 2008; 2008 FC 1255; Zhang, Xi Shun v. M.C.I., (F.C., no. IMM-6200-10), Kelen, June 8, 2011; 2011 FC 654; Lan Cao, Feng v. M.C.I., (F.C., no. IMM-2326-12), Near, November 29, 2012; 2012 FC 1398. 3 RPD-1, RPD's Record, National Documentation Package for China, 14 March 2014, item 9.8. 4 Alizadeh, Satar v. M.E.I. (F.C.A., no. A-26-90), Stone, Desjardins, Décary, January 11, 1993. 5 Assadi, Nasser-Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. 6 Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994. 7 Su, Hao Wen v. M.C.I. (F.C., no. IMM-7356-12), Gleason, May 17, 2013, 2013 FC 518. 8 Jiang, Sumei v. M.C.I., (F.C., no. IMM-13-12), Zinn, September 11, 2012; 2012 FC 1067. 9 Sun, Tingting --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12614