VC0-02475

RAD File / Dossier de la SAR : VC0-02475 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 29, 2021 Date de la décision Panel K. Qureshi Tribunal Counsel for the person who is the subject of the appeal Xiao Xiu (CANDY) Zou Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Jennifer Mensink Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (Respondent) is a citizen of China. The Respondent alleges he is at risk of harm in China as a result of his failure to repay money he owes to loan sharks. He states that starting in 2013, he and his wife began to borrow money from various lenders in order to operate a XXXX business. The business closed and the Respondent was unable to repay the lenders. He states on XXXX XXXX XXXX 2016 he was assaulted on behalf of one of the lenders but police did not assist him. He applied for a Canadian visa which was granted in XXXX 2018. The Respondent came to Canada in XXXX 2018. He says his wife and family have also been threatened, but that the collectors do not harm women. [2] On June 10, 2019, the Respondent was detained by Canadian Border Service Agency (CBSA) officers after the vehicle he was travelling in was stopped. He claimed refugee protection and signed his Basis of Claim form (BOC) on June 18, 2019. A second BOC was signed with the assistance of a legal representative on February 20, 2020. [3] The claim was heard and accepted on March 6, 2020 on the basis of him being found to be a person in need of protection under s. 97. The RPD also found that no state protection or Internal Flight Alternative (IFA) was available to the Respondent. The Minister of Immigration, Refugees and Citizenship and Minister of Public Safety (Ministers) appeal the RPD's decision. DECISION [4] I allow the appeal. The RPD was incorrect in finding that the Respondent is a person in need of protection. NEW EVIDENCE [5] The Appellant's written statement indicates it is relying on new evidence.1 However, a review of the Appellant's Record, including the Table of Contents, does not disclose that any new evidence has been provided. ANALYSIS [6] My role is to look at all the evidence and decide if the RPD made the correct decision.2 [7] The Appellant submits the RPD erred in finding the Respondent has no state protection or an IFA available to him. RPD erred in finding there was no state protection [8] The Appellant submits the RPD failed to provide a sufficient or correct analysis to permit an understanding of its determination that the Respondent had rebutted the presumption of state protection.3 The Respondent replies that he and the RPD did address all the concerns in the claim.4 Based on my independent assessment, I agree with the Appellant that the RPD erred in finding the Respondent does not have state protection, for the following reasons. Respondent did not contact police a second time [9] The Respondent submitted that during an incident on XXXX XXXX XXXX 2016, when he was assaulted on behalf of one of the lenders, the police came to his home but declined to intervene, stating it was a personal matter.5 At the hearing, the Respondent testified that he subsequently followed-up with the police by calling them, and again they declined to assist him.6 The Appellant submits the Respondent's testimony on the issue of following up with the police was "vague and punctuated by pauses," and that the follow-up call was absent from both BOC's.7 The Appellant further notes that the RPD itself asked the Respondent whether the follow-up to the police actually occurred. Based on my independent assessment, I find the Respondent did not follow-up with the police, for the following reasons. [10] First, as noted by the Appellant, neither of the Respondent's BOCs state he approached police aside from once on XXXX XXXX XXXX 2016. I have also reviewed a transcript of the hearing which indicates the RPD asked the Respondent "Now did you consider going back to the police and trying to go to their supervisors and say this is crazy, I got beaten up and your officer said I have to take it. I have to be beaten up because I owe a loan."8 At this point the Respondent simply replied "Yes. That's what they said." Notably, despite an extensive exchange regarding the police's intervention up to this point in the hearing, not once did the Respondent mention he had followed-up with the police. The RPD then repeated its question and the Respondent repeated his answer, "The supervisor also said the same thing. It's out of their jurisdiction." The exchange continued with further references to the Respondent having spoken with a supervisor, until later in the hearing when the RPD specifically asked the Respondent "And it was a supervisor." At this point the Respondent states "I have no idea. It was someone on duty that day." After more questioning, the RPD asked "Did it really happen sir?" to which the Respondent replied in the affirmative. Regarding the Respondent's failure to include the follow-up call in either of his BOCs, when asked for an explanation for the omission, he simply testified that he did not know the subsequent phone call to the police counted as a follow up. [11] Based on my independent assessment, I find the Respondent did not follow up with the police. First, regarding the omission in the BOC, I do not accept his explanation that he did not know the subsequent phone call to the police counted as a follow-up, is adequate. The BOC instructs claimants to be detailed and there is a specific section in the form in which claimants are asked to outline what efforts they made to obtain police protection. The Respondent also had the benefit of a legal representative when he completed his second BOC form. The omission is also material as attempts to obtain assistance from police is directly relevant to the issue of the availability of state protection. Regarding the Respondent's testimony over whether or not he spoke with a supervisor, I find his inconsistent testimony indicates he was simply adopting the RPD's suggestion to him regarding what follow-up he did with the police, and that he was creating his testimony on the spot. Overall, I find the foregoing undermines the credibility of the Respondent's evidence that he did contact police a second time. I find his failure to take steps to seek state protection beyond the incident of XXXX XXXX XXXX 2016 undermines the RPD's finding that state protection is not available to the Respondent. Other evidence does not establish that state protection is not available [12] The Appellant also submits the RPD erred by concluding it was not necessary for the Respondent to exhaust all possible courses of action due to China's autocratic nature.9 Also, that the RPD erred in its references to items in the National Documentation Package (NDP).10 Based on my independent assessment, I find the RPD erred in its analysis of the country condition evidence for the following reasons. [13] I have researched and reviewed the jurisprudence and I find the following cases are instructive. First, in the Federal Court case of Cao, the Court did not interfere with the finding from a Pre-Removal Risk Assessment (PRRA) that the Applicant had not rebutted the presumption of state protection against loan sharks in China.11 Furthermore, in the case of Tang the Federal Court upheld the RPD's finding that the Applicant did not establish state protection was not available to her in China from loan sharks given that the police did attend at her home each time she complained.12 I find the foregoing undermines the RPD's finding that state protection is not available to the Respondent due to China's autocratic nature. [14] Second, regarding the RPD's references to the NDP, the Appellant submits the member speculated when referencing police corruption and concluding "perhaps this is why the police on two occasions did not help you." The Appellant also submits that references to corruption, extortion, and assaults by police in the NDP are not as firmly stated as the RPD suggests, and that the RPD failed to explain why corruption in the police would indicate the Respondent was unable to obtain state protection given that there is an absence of evidence to suggest the police were complicit in the threats against the Respondent. [15] Based on my independent assessment, I find the RPD erred by suggesting or speculating that police corruption or complicity prevented the Respondent from obtaining state protection. That is, while the Respondent says the collectors have links with local police,13 this assertion is speculative and is based on the Respondent's personal belief and with whom there are credibility concerns. I therefore find the RPD's finding was not supported by any evidence that could have permitted it to extrapolate that corruption or complicity was the reason why the police did not assist the Respondent. Rather, I note that articles provided by the Respondent indicate that the police do get involved in issues like his. For example, one of the Respondent's articles indicates that in 2018, after a complaint to the police regarding a loan, more than 400 police officers were organized and broke up a gang and major network of loan fraud.14 In a second article provided by the Appellant, there is a photo of police displaying weapons seized from debt collectors.15 These articles belie the Respondent's suggestion that state protection is not available to him or that police do not get involved in personal loan matters. Finally, according to the UK Home Office, generally, in cases such as the Respondent's where the agents of harm are non-state actors, "Whilst the police force is highly susceptible to political interference and corruption in general a person is likely to be able to obtain state protection against persecution or serious harm from non-state actors."16 [emphasis added] Conclusion on state protection [16] Overall, the evidence indicates that police do get involved in complaints regarding personal loans. Furthermore, the police did arrive when they were summoned on XXXX XXXX, 2016 and, according to the initial BOC,17 they did take statements and even mitigated the situation a bit. Finally, the evidence indicates the Respondent only made one attempt to seek police protection, on XXXX XXXX XXXX 2016. I therefore find the Respondent has failed to rebut the presumption of state protection and that the RPD erred in finding otherwise. Internal Flight Alternative (IFA) [17] At the hearing, the RPD proposed an IFA in Guangzhou.18 The RPD concluded the Respondent does not have an IFA on the basis of his testimony that he tried to flee several times but was found each time, and that he cannot change his phone number as it goes against his religious principles of being honest and available. The Appellant submits the RPD erred in finding the Respondent does not have an IFA.19 Specifically, that it is not unreasonable to expect the Respondent to change his phone SIM card in order to seek refuge in his own country, and the lack of objectively identifiable evidence that changing a SIM card goes against any Christian tenets. [18] Based on my independent assessment, while I am unable to find the Respondent has an IFA due to the lack of questioning by the RPD in this regard, and specifically with respect to the absence of any questioning at all with respect to the second prong of the IFA analysis, I nevertheless find the RPD's conclusion that there is no IFA is problematic. [19] First, the RPD's decision states "the claimant did flee several times but each time he was found." According to a review of the transcript, this statement appears to only be based on the Respondent's testimony that he had been called on his phone by a collector when he went to Fujao.20 There was little further probing by the RPD with respect to the Respondent "fleeing" "several times" and neither of his BOC's mention that he went to other locations in China to avoid the collectors. I therefore find the RPD's blanket statement that the Appellant fled several times and was found, lacks sufficient foundation. [20] Second, the RPD asked the Respondent if he changed his cellphone number or SIM, would the collectors be able to find him.21 The Respondent only replied that because he is a Christian and wants to keep his word, he must answer the collectors phone calls. That is, the Respondent did not indicate that he would not be safe even if he changed his SIM card, even though he had the opportunity to say so if this was the case. Furthermore, as raised by the Appellant, it is not unreasonable to expect the Respondent to change his phone SIM card in order to seek refuge in his own country. I also agree with the Appellant that there is a lack of objectively identifiable evidence that changing a SIM card goes against any Christian tenets. Rather, it was initially the Respondent's testimony that he was not going to repay the collectors.22 It defies logic that his religious principles of honesty would prevent him from changing his SIM card yet nevertheless permit him to flee the country to avoid repaying a debt. I acknowledge later in the hearing he testified he did intend on repaying the collectors.23 However, this inconsistent testimony only arose once the RPD specifically confronted the Respondent with how his religious beliefs could prevent him from changing his SIM card when he earlier testified he was not going to repay the collectors. The Respondent did not provide an explanation for this inconsistency and simply repeated that he intended on repaying the collectors. I therefore find the Respondent's later inconsistent testimony that he intends on repaying the collectors is not credible and undermines the credibility of his assertion that he is unwilling to change his SIM card due to his religious principles. Nevertheless, even if I were to accept the Respondent's assertion that he intends on repaying the collectors, he has not put forth any evidence to explain how he plans on achieving this and there is no evidence of any repayments to date despite the debts existing since 2013 and having grown massively since. Overall, I find the RPD erred by accepting the Respondent's explanation that his religious beliefs prevent him from changing his SIM card when concluding he does not have an IFA. [21] I also find the RPD failed to consider the country condition evidence when concluding there was no IFA available to the Respondent. Based on my independent assessment, regarding the Respondent's assertion that he would be found in an IFA as a result of the household registration system, a review of the NDP indicates "Whilst hukou registration may cause difficulties when relocating to a larger city, it does not stop a person from relocating to smaller mid-sized towns which have fewer restrictions in regard to the issue of a hukou or indeed from relocating to a rural area."24 In any event, there is no evidence that the collectors are in league with or colluding with the authorities such that the collectors would even have access to the Respondent's residential information. [22] Overall, while I am unable to conclude the Respondent has an IFA due to the absence of any questioning by the RPD with respect to the second prong of the IFA analysis, I nevertheless find the RPD's conclusion that the Respondent does not have an IFA to lack foundation and to be incorrect. Respondent's claim falls under s. 97. [23] The Appellant raises that the RPD decision is unclear with respect to whether the acceptance of the claim was based on s. 96 or s. 97. A review of the decision indicates that in its conclusion the RPD mentioned s. 96. I find this was in error given the simultaneous reference to the words "person in need of protection." As well, in the body of the decision the RPD expressly denied that the Respondent was a Convention refugee due to the lack of a nexus to a Convention ground. I agree with the RPD that the Respondent's claim is properly assessed under s. 97. CONCLUSION [24] The appeal is allowed. I substitute my own decision that the Respondent is not a person in need of protection. (signed) K. Qureshi K. Qureshi March 29, 2021 Date 1 Exhibit M-2, Appellant's Record, at p. 6. 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 3 Exhibit M-2, Appellant's Record, Appellant's Memorandum at paras. 5-14. 4 Exhibit P-2, Respondent's Record, Respondent's Memorandum at paras. 1-4. 5 Exhibit RPD-1, RPD Record, Exhibit 2, BOC, at p. 24 and p.20 line 51-53. 6 Transcript of hearing, March 6, 2020, at p. 15. 7 Exhibit M-2, Appellant's Record, Appellant's Memorandum at paras. 7-9. 8 Transcript of hearing, March 6, 2020, at p. 15. 9 Exhibit M-2, Appellant's Record, Appellant's Memorandum at para. 11. 10 Exhibit M-2 Appellant's Record, Appellant's Memorandum at para. 12-13. 11 Cao v. MCI, 2020 FC 500, at para. 14. 12 Tang v. MCI, 2019 FC 1478, at para. 26. 13 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 23. 14 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 125. 15 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 132. 16 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for China, (20 December 2019), Item 1.13: ?Country Policy and Information Note. China: Background information, including actors of protection and internal relocation. Version 2.0. United Kingdom. Home Office. March 2018, at 2.2.7. 17 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 8. 18 Audio recording of hearing, March 6, 2020, at 00:17:00. 19 Exhibit M-2, Appellant's Record, Appellant's Memorandum at para. 15-16. 20 Transcript of hearing, March 6, 2020,at p. 17. 21 Transcript of hearing, March 6, 2020,at p. 17-18. 22 Transcript of hearing, March 6, 2020, at p. 7, line 40. 23 Transcript of hearing, March 6, 2020, at p. 18. 24 Exhibit RPD-1 - RPD Record, Exhibit 3, NDP for China, (20 December 2019), Item 1.13: ?Country Policy and Information Note. China: Background information, including actors of protection and internal relocation. Version 2.0. United Kingdom. Home Office. March 2018, at 2.3.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-02475 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français