TB6-08081

IMMIGRATION AND REFUGEE BOARD - REFUGEE PROTECTION DIVISION - Reasons for the decision in a Hearing under the Immigration and Refugee Protection Act, concerning XXXX XXXX XXXX HELD AT: Toronto, Ontario DATE: August 18, 2016 BEFORE: David Young - Member APPEARANCES: XXXX XXXX XXXX - Claimant Stacey Margaret Duong - Counsel N/A - Minister's Counsel Ming Feng - Interpreter On August 18, 2016, the Refugee Protection Division (RPD) heard the claim of XXXX XXXX XXXX, who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral negative decision and reasons for decision. This is the written version of the oral decision and reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate. DECISION MEMBER: Ms. XXXX, I've considered your testimony and the other evidence in this matter. I'm ready to render my decision orally. A written form of these reasons will be provided to you and your counsel. The written form may be edited for r syntax and grammar and references to applicable documents. XXXX XXXX XXXX is making a claim against China pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act. I find that you've not established there's a serious possibility of persecution on a Convention ground or that, on a balance of probabilities you would personally be subjected to a danger of torture or face a risk of cruel and unusual punishment or treatment upon your return to your country. My reasons are as follows. Your allegation is that you joined an underground church in China in XXXX of 2015. You were active in that church. That in XXXX of 2015 the Public Security Bureau searched the church. You were not present at that time, but the next day they came to your house and arrested you. You alleged that a few days later you became sick and were moved to a hospital, and then you ran away from the hospital. You heard that the Public Security Bureau (PSB) was still looking for you and with your relative's help you found a smuggler. This summary is from your narrative. You've since heard that the other members of the church have been jailed, and you have decided, as a result of this, to make your claim in Canada. The Board was provided with a copy of an identity card provided by the Canada Border Services Agency when you made your claim, and later you provided a marriage certificate and a hukou. The Minister of Public Safety, Canada Border Services Agency sent in a letter regarding the information they had on your travel, and yesterday you presented a letter and baptism certificate from the XXXX XXXX XXXX. You testified at the hearing. At the end of the hearing counsel initially requested that an adjournment to allow time to provide post-hearing evidence, be permitted. The request was to documents on the link between being uneducated and having memory difficulties. At the time the request was made counsel was not specific as to what documents these were. It was the panel's impression that counsel intended to do some research on the issue, and therefore the very existence of any specific documents is speculative. The claimant's allegation is that she is uneducated as an explanation for being unable to answer the panel's questions arose at the start of the first sitting of this claim nine days ago. There's been no explanation given to the panel to why this is the case. Nor has there been any evidence on the issue. Counsel requested to do research. It is not clear why such evidence, if it exists, could not have been provided earlier in the hearing or during the course of the hearing. When the panel returned to the hearing room to give a decision counsel retracted her request to present post-hearing documents, and commented that in her view the matter was self-evident. The first issue I have to address is the matter of identity. The claimant did not present her passport, and the panel has some concerns regarding her credibility arising on her evidence regarding the passport. But the passport was not provided. The resident identity card, hukou and marriage certificate were provided. These appear to be genuine on their face. The panel has no specific information that they're not. So while the concerns about the failure to provide a passport remain and are a matter of credibility, the panel finds that the documents that have been provided are sufficient to establish identity and nationality, as required under Section 106. The primary issue in this claim is credibility. In a refugee claim the onus is on the person making the claim to present evidence that is credible, on a balance of probabilities to support the allegations which form the basis of their claim. While statements made under oath are presumed to be true, that presumption can be rebutted by contradictions or inconsistencies in the evidence. In assessing the evidence, the panel may conclude that the evidence is implausible or improbable. The panel is also entitled in assessing credibility to rely on criteria such as rationality and common sense. In a case where the core element of the claim cannot be objectively verified, and this is something that applies here, because as counsel pointed out in her submissions, even if there are concerns about events that occurred in China, if the panel accepts that the claimant's religious beliefs are genuine and bonafide, then that can be the basis for a positive decision. So in assessing the credibility of the claimant's statements on something that isn't objectively verifiable, the panel can rely instead on the claimant's personal credibility so that negative credibility finding is a matter related to the core of her claim may also affect the credibility of the claimant's evidence on the core elements. The decision on a refugee claim is after an oral hearing. Therefore, the panel's assessment of the credibility of the claimant's evidence includes a consideration on how the claimant testified at the hearing. There were three main areas where the panel had credibility concerns. Regarding the claimant's time in China, the claimant gave fairly brief description as to why she became a Christian. With regard to her activities, it was also brie, simply that she attended church. The panel notes that when asked by her counsel, she said she also distribute pamphlets. I don't see any reference to that in the narrative. But the main thing that causes the panel to doubt the claimant's allegations with regard to what happen to her in China is the matter of how she escaped. The claimant simply says, in her narrative, that she ran away from the hospital. So the panel asked the claimant how she did that, and she said there were no police officers, just security guards and they were playing poker, and she escaped. The panel then asked her to tell me about the escape. Her answer: not a big building, just ran away, no one watched. The panel then asked her to tell me more about how you escaped. Her answer: I ran to a relative. The panel then asked: Where were you in the hospital? The claimant's answer: I was sick, they kept me in the hospital. The panel then asked, I'm assuming you're in a bed. How did you know how to escape, how did you know when to escape? The claimant's answer was that I was afraid they would put me in jail. The panel then pursued the matter further and said, how did you know the guards were not watching, and the claimant answered I was in bed and noticed no guard, and I was afraid they'd put me in jail. The panel then stated, I've asked several times about how you escaped. You mostly tell me why, and the claimant's answer was that's how I escaped. So even though given multiple opportunities to provide information as to how she escaped the claimant declined to give any details. It is, in the panel's view, unlikely that a person who is being held in a hospital because they are in the custody of the Public Security Bureau, can simply walk out of the hospital. So therefore some explanation as to how that's done would be expected. The claimant's inability to give any explanation or any detail is, in the panel's view, an indication that this is an invented story, that the allegation is of something that never actually happened. Further, with regard to escape from China is the matter of how she arranged to leave the country. The claimant said that she went to stay at the relative. The relative arranged for a snakehead. The claimant was interviewed at the airport when she first made her claim. At that time, she said her pastor in China arranged for the smuggler. Next comes to the matter of the passport that she used or the passport that she had. The claimant had her own passport, but alleges she traveled with a fake passport. So the claimant was then asked, what she did with her passport. She said it was taken by the smuggler. The claimant was asked when did she give it to the smuggler. She said initially that when she was at a relative's he asked for her passport, and she had to give it to him in exchange for the fake passport she was to travel on. It was put to the claimant that she had initially tried to come to Canada some months before she actually did, and was stopped because her passport wasn't in order. And at that time, according to the notes from CBSA, she returned to China on her own passport. So therefore at that time she had both the false passport and a genuine passport. The claimant was asked about this, and her answer was that yes, she did have her passport then, but the smuggler took the passport from her when she landed in China. The panel then asked what she meant when she said she gave it to the snakehead in exchange for her fake passport. Her answer then changed to, she gave it to him. In exchange for her fake passport when she finally traveled to Canada later on. The story just kept changing every time a question was asked, and while the claimant's answer or explanation for much of this was that she has very little schooling, the panel wasn't asking the claimant to explain complicated matters which a person may require education to understand. She is simply being asked to recount things that happen to her recently. With regard to the passport, the simple matter of when she gave up her passport. Considering the importance of a passport the panel does not accept that she has no recollection of when she gave up her passport. The fact that she changed her story multiple times on that issue further leads to panel to the conclusion that this was a deliberate effort to mislead the panel on a very important question. The panel notes that a passport is more than simply an identity document. It's vital to have if you're traveling outside your country, and therefore it's not reasonable a person would simply give it up and not be aware that they'd done it. It confirms your identity and confirms your nationality. But also if the passport were available it would tell the panel where the claimant has traveled, what country she's traveled through, and as the Federal Court has said in the Elazi decision, it's too easy for a claimant to simply states that the facilitator or smuggler has taken it. The panel notes that it's even easier to give inconsistent statements as to what happened to the passport and when. The panel finds that the explanations given by the claimant are not reasonable, and that the claimant is deliberately withholding her passport from the Immigration authorities in Canada. And the third matter is the matter of the claimant's religious activities in Canada. The claimant testified last day that approximately four weeks after arriving in Canada she did start attending a church. At that point she had no documents regarding her attendance at the church, but she did offer to present a pamphlet in Chinese, which as was untranslated, telling the panel that it contained the name of a church, XXXX XXXX XXXX. Because of the time of day the panel adjourned shortly thereafter. Yesterdays scheduled sitting we did not proceed because the interpreter was not the right interpreter for this dialect. But at that time counsel gave the panel a letter, a certificate of baptism, and some photographs which the panel reviewed while we were waiting for scheduling. At that time the panel put the counsel and claimant on notice that, having reviewed the documents, the panel would like to hear from the person who wrote the letter and signed the baptism certificate, a certain Reverend XXXX XXXX(ph). The panel notes that Reverend XXXX did not appear today. Regarding activities in Canada, aside from the matter of the letter, the claimant was asked by her counsel what her religious activities were in Canada, and in answer to her counsel's question she said she attended church weekly. Counsel asked a couple of more times about any other activities. Do you do anything else to practice your religion other than attend church? The panel referred to her activities in China, which were not consistent with her narrative, as referred to previously. Then counsel asked, do you not pray, to which the claimant replied yes. The panel notes that was a leading question, information which the claimant apparently could not recall herself. The claimant was asked several questions regarding the nature of her prayers and her prayer practice. The claimant's answers were at best very vague and superficial, and they're not taken by the panel as an indication that she actually has any understanding of her practice of prayer. But the letter itself and the relating baptism certificate, it the matter that concerns the panel most regarding the credibility of the claimant's allegation of her involvement with religion here in Canada. On its face there are two obvious flaws with the letter. The letter itself says it was written April 19th, 2009, which clearly it couldn't have been, and the baptismal certificate says that she was baptized two days from now. The claimant's testimony about how this letter came to be in this baptism, did not lend much credibility to the letter. The contents of the letter, which didn't lend any credibility to the credibility of the letter. The panel asked the claimant when she first met the writer of the letter, the Reverent XXXX XXXX. The claimant answered that she met him last Sunday. I asked about any discussions they'd had, since the letter refers to discussions. The claimant replied that she had asked a member of the congregation that she could meet him. She did meet him on Sunday, and she told him that she was a Christian now, and asked for a verification letter. The panel asked if there was anything discussed. The claimant answered, I attended the church. He needed to help me. The panel again asked, if anything else was discussed. The claimant answered that the pastor, he said that he needed to get her to, the claimant said ocean, but I think to clarify she meant the lake, to get baptized, and he told her to go to services on Sundays and Fridays. Again the panel asked: anything else. Again, she answered: that's all we talked about. There was, according to the claimant, no discussion of baptism as to what it meant or why she should be doing it, and there were no questions about Christianity. The claimant recounted, in answer to questions from her counsel, that immediately after the meeting the Reverend XXXX and his driver and the claimant got in a car and drove down to the lake where Reverent XXXX baptized her, and some passerby's took the photographs. Compare this with the statements in the letter from Reverend XXXX XXXX. He states that "I trusted Ms. XXXX has good personality, is dependable, compassionate and helpful. Besides she participates in our volunteer program. We have her donation records too". It goes on to say, "when she first came to me I had asked her some Christianity questions. She could answer them correctly. So I trust that she is a real Christian". He then says that, she joined our water baptism on XXXX XXXX, 2016. It's clear that XXXX XXXX letter and the claimant's testimony are contradictory or at least inconsistent, and even aside from the obvious inconsistencies about what they talked about and what he's basing his opinion on, the fact is that they just met moments before he presented this letter to her. Absolutely no weight should be given to this letter. Considering the circumstances around her baptism, absolutely no weight should be given to the fact that she was baptized or the certificate presented as evidence of that. The panel notes that the claimant's testimony she clearly demonstrates she has virtually no knowledge of Christianity, even though she alleges she's been involved with the Christian church for well over a year, here and in China. There was one thing which the panel thought was somewhat telling. The claimant, when asked about her activities in Canada, at one point said that she attends church weekly in the afternoon, and then when it's not too dark she'll attend the Friday evening service. The panel asked, when the Friday evening service was held, and the claimant answered that it starts at six o'clock. The claimant to Canada just over two months ago, I believe, and is alleging that she'd been attending this church for just over a month. Considering that that would bring us to the beginning of summer, the panel noted asked the claimant when, during the time she's been in Canada, has it ever been dark at six o'clock. The claimant then changed her testimony to say that the pastor, when she met him on Sunday, told her she should go to church on Friday evenings. This is a further indication to the panel that the claimant is trying to exaggerate, embellish and mislead the panel as to what her actual involvement with Christianity is. The panel finds, considering the evidence and the contradictions, the embellishments, etcetera, that any involvement that Ms XXXX may have had with any Christian church in Canada was solely for the purposes of this refugee hearing, and is in no way a reflection of any genuine interest in Christianity. The panel finds that the core of this claim is unsupported by the evidence. The panel finds evidence that events alleged to have happened in China did not happen, and that the documents presented in support of her church activities in Canada are, in some ways, fraudulent. Considering the totality of the evidence, including the fact of the credibility findings on the allegations as are set out above, the panel finds the claimant is not a Convention refugee pursuant to Section 96 of IRPA. This assessment also applies to any claim, to be a person in need of protection under Section 97(1) of IRPA. Also the panel has found that the core allegation in this claim is fabricated and was supported by documents which are likely fabricated for the purpose of the claim, containing statements that the writer of these documents, I'm referring to Pastor XXXX documents, had no basis on which to make those statements. In accordance with Section 107.1 of IRPA., the panel therefore finds that this is a manifested unfounded claim. The hearing is concluded. ---------- REASONS CONCLUDED ---------- - 7 - TB6-08081