TB8-20254

RAD File / Dossier de la SAR : TB8-20254 TB8-20255 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 29, 2020 Date de la décision Panel Madeleine Schwarz Tribunal Counsel for the persons who are the subject of the appeal Jacqueline M. Lewis Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (Principal Appellant) and his spouse, XXXX XXXX (Female Appellant) are citizens of China. They appeal a decision of the Refugee Protection Division (RPD), dated July 26, 2018, rejecting their claims. The RPD determined the Appellants were not credible. [2] The Appellants fear political persecution from the Chinese government because they challenged the government's expropriation of land they purchased in 2006 to build a XXXX XXXX. In 2017, the Appellants were advised that the government planned to expropriate their land in exchange for insufficient monetary compensation. [3] On XXXX XXXX, 2017, the Appellants and other contractors in XXXX XXXX XXXX were allegedly arrested and detained during a confrontation with government officials and Public Security Bureau (PSB) officers over the demolition of the XXXX. The Appellants claim they were detained until XXXX XXXX, 2017. [4] In XXXX 2017, another confrontation occurred between the Appellants and contractors with PSB officers at the Xian City train station. The Appellants were able to escape and went into hiding at a friend's home. A PSB summons was left at their home. The Appellants remained at the friend's house, and fled China a few months later. [5] The Appellants argue that the RPD erred in its credibility assessment and failed to consider pertinent documents. [6] The Refugee Appeal Division (RAD) confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection and dismisses the appeal. THE ROLE OF RAD [7] The RAD will conduct its own analysis of the RPD and Appellants' Records to determine whether the RPD erred.1 The RAD reviews the RPD's decision applying a standard of correctness. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment of the evidence which, in particular cases, may require that I defer to the RPD's finding.2 I find the RPD enjoyed no meaningful advantage. [8] The Female Appellant was the main witness at the hearing. I have considered and applied the Gender Guidelines3, as appropriate, in my determination. ANALYSIS [9] The RPD found that the Appellants were not credible witnesses. The panel found the Female Appellant vague, hesitant and evasive in her testimony. The panel concluded that there were serious discrepancies in the evidence and documentation relating to PSB's actions against the Appellants, as well as credibility concerns with the Appellants ownership of the XXXX XXXX. The panel found that supporting documentation was insufficient to establish the Appellants claim, on a balance of probabilities.4 [10] I find the RPD was correct in finding the Appellants not credible. There were serious discrepancies and significant omissions in the Female Appellant's evidence, and credibility concerns regarding the supporting documentation. I have considered the cumulative effect of the credibility concerns. I find there is insufficient credible and trustworthy evidence to demonstrate a serious possibility of persecution, or on a balance of probabilities, a risk to life, or to cruel and unusual treatment or punishment, or to torture, if the Appellants are returned to China. (i) Date of confrontation with the PSB at the Xian City train station [11] The RPD found inconsistent the Appellants' evidence regarding the confrontation with PSB officials at the Xian City train station. The Appellants' Basis of Claim (BOC) narrative indicates that this confrontation occurred on XXXX XXXX, 2017, and a summons was issued against the Appellants on that same day.5 At the start of the hearing, counsel sought to amend the date of the train station confrontation to XXXX XXXX, 2017. [12] A PSB summons from XXXX County, Xian City was submitted to corroborate the confrontation with the PSB officials.6 The summons is dated XXXX XXXX, 2017 - one week before the date originally provided by the Appellants in their narrative. [13] The RPD questioned the Female Appellant on the change in date from XXXX XXXX to XXXX XXXX. She explained that she did not write XXXX XXXX in her BOC, she only wrote XXXX. She testified that this was a translation error. [14] The confrontation at the train station is one of the critical events in the Appellants' claim. I do not accept the Female Appellant's explanation that the inclusion of XXXX XXXX in her BOC was a translation error. The Appellants were assisted by counsel in drafting the BOC narrative, and an interpreter has certified that the forms and BOC were read back to them. This would have included reading back the date of XXXX XXXX, 2017, which if incorrect, ought to have been corrected at the time. [15] Were this the only discrepancy in the Female Appellant's testimony, I could be inclined to consider this a minor discrepancy, as the Appellants' submit. However, it is not the only discrepancy in the Appellants' evidence. [16] I also reject the Appellants' claim that this discrepancy in the date of the confrontation is a minor discrepancy regarding a date. I disagree. I find XXXX XXXX, 2017, to be a significant date for the Appellants, as it is the date of the event that forced the Appellants into hiding at a friend's house. It is also the date they discovered that the PSB had a summons out for them. In essence, it is the events of this date that ultimately led them to flee China. [17] I agree with the RPD that the inconsistency in the date undermines the Appellants' credibility. (ii) Discrepancy on the PSB Summons is significant [18] The PSB Summons states that the Appellants are to surrender themselves before XXXX XXXX, 2017 at 09:00 am to the PSB of XXXX County in Xian City for questioning.7 The Female Appellant testified that they encountered the PSB officials at the train at around 9:00 am and they were scheduled to depart at 11:00 am. When questioned on how it could be that the summons required the Appellants to surrender themselves by 09:00 am at the police station, which is the same time they were confronted by the PSB at the train station, the Female Appellant was unable to explain. [19] Caselaw indicates that discrepancies in dates or times can, at times, be minor and peripheral. I find this discrepancy to be significant as it leads to contradictions in the Appellants' overall allegation. I have a few options to consider. Either I accept that the summons required the Appellants to be at the station at 09:00 am, which indicates that it was issued before the confrontation at the train station. This does not make sense as it is the confrontation that led to the issuance of the summons. Alternatively, I could speculate that the PSB made an error on the time. Or, I consider that the summons is a fraudulent document. [20] The Appellants bear the burden of establishing the veracity of their claims and their evidence. [21] I agree with the RPD that it is unlikely that an official PSB summons would contain an obvious error on the time they needed to surrender themselves. I take note of objective documentation8 and caselaw that has confirmed significant issues with the credibility of official documents, including PSB documents. I note as well that the prevalence of fraudulent documents in China does not mean that every single document from China is necessarily false. However, given my previous finding that the discrepancy in the date undermines the Female Appellant's credibility, I approach the PSB summons with caution. I find, on a balance of probabilities, that it is a fraudulent document and I give it no weight. (iii) Omission of PSB's second visit to the Appellants' family was a material omission [22] The Female Appellant testified that the PSB went to their home, looking for the Appellants on two occasions, before they departed China. The first visit was on XXXX XXXX, 2017 when they delivered the summons. The second visit to the family home took place about ten days later. This second visit was not mentioned in the BOC narrative. The Female Appellant explained that she did not think this visit was important, as the PSB only went to look for the Appellants. As the PSB did not leave anything, she did not describe it in her narrative. [23] I disagree with the Appellants' submission that the RPD engaged in a microscopic examination of the evidence and that this is a minor omission about something peripheral to their claim. The Appellants claim that the PSB has pursued, and will continue to pursue, the Appellants in China. It is reasonable to expect that the Appellants would include any information that confirms the PSB has pursued them, as this factor is material to their claim. [24] I agree with the RPD that this omission undermines the credibility of the Appellants' claim that the PSB looked for them in China. (iv) Inconsistent testimony regarding the XXXX XXXX, 2017 arrests [25] The RPD found the Female Appellant's testimony on the XXXX XXXX, 2017 arrests inconsistent regarding the number of villagers arrested during the confrontation with PSB officers and village committee members at the XXXX XXXX. In her BOC narrative, the Female Appellant said she and her husband were arrested with five villagers or contractors. She testified that she, her husband and three other contractors were arrested, but then appears to correct herself and indicates that fifteen contractors were arrested. After further questioning, the Female Appellant stated that it was not that many people arrested, but that it was only her, her husband and five contractors. [26] The panel confronted the Female Appellant on her changing testimony. She explained that she was nervous and stated that she said something wrong.9 [27] I have listened to the audio recording and find the RPD was clear in its questioning. The panel indicated to the Female Appellant that it was concerned about her changing testimony. I agree with the RPD that throughout the hearing the Female Appellant had difficulty providing detailed answers to a number of questions. However, in this instance, I accept that the Female Appellant may have mixed up the number of contractors who were present on XXXX XXXX, 2017 - i.e. fifteen - with the number of contractors arrested - i.e. allegedly five. I do not make a negative credibility finding. However, given other concerns I have regarding the XXXX XXXX, 2017 arrest, as detailed below, I give the Female Appellant's testimony on the event little weight. (v) Discrepancy in detention warrant issued on XXXX XXXX, 2017 [28] In her narrative, the Female Appellant indicated that they were arrested on XXXX XXXX, 2017 and they would only be released from detention if they signed a guarantee letter, which they signed on XXXX XXXX, 2017. The detention warrant submitted by the Appellants was issued on XXXX XXXX, 2017. It indicates that the Appellants were detained from XXXX XXXX, 2017 to XXXX XXXX XXXX 2017.10 [29] The Female Appellant was asked how the detention warrant, dated XXXX XXXX, 2017, would be able to indicate that they were detained until XXXX XXXX, 2017, even though their release was, according to the Female Appellant, conditional on signing a guarantee, which was not done until XXXX XXXX. The Female Appellant did not know. [30] The Appellants speculate on possible explanations for this discrepancy in the detention warrant: perhaps the guarantee letter was not available until XXXX XXXX or perhaps the agents made errors in filling out the form.11 There is no evidence to support that either of these speculations are probably correct, and not just possibly correct. [31] The onus is on the Appellants to provide sufficient evidence that will support their allegations, on a balance of probabilities. This means they must provide evidence that is probably so, rather than possibly so. The possible explanations the Appellants offer to address this discrepancy are speculative, and not derived from any evidence before the RPD. [32] The detention warrant is a key document that could support to the Appellants' claim of detention. The Appellants would have been given this document by the PSB. The Appellants should be in a position to explain the obvious discrepancy in the date. Considering the failure of the Appellants to explain the document, and the prevalence of fraudulent documents in China, I find the panel was not wrong to conclude that it was more probable than not that the detention warrant was fraudulent. (vi) Omissions from the BOC narrative regarding torture [33] During her testimony, the Female Appellant mentioned for the first time that she and her husband had been tortured during their detention by the PSB. [34] The Appellants offer no objective or personal evidence to support their suggestion that such mistreatment may be common place in China. The only evidence provided to explain this omission is the Female Appellant's testimony that she was ashamed to admit it had happened. I reject the Appellants' submission that it is plausible that the Appellants omitted mentioning the torture in the BOC. [35] I find the failure to mention torture in the BOC is a significant omission that undermines the Appellants' credibility. An allegation of torture is serious and a critical element of a refugee claim. This would be a key detail that one would reasonably expect to be included in the BOC, particularly when the Appellants were assisted by counsel. (vii) Discrepancies regarding ownership of XXXX XXXX XXXX [36] The Appellants claim to be the main owners of land on which they built a XXXX XXXX. I accept that the land contract corroborates their ownership of the land and the asset evaluation report provides support for the evaluation of their assets. However, I find the corroboration from these documents is insufficient to overcome my credibility concerns with the Appellants' overall claim. The Appellants were unable to provide details or consistent evidence on the purchase of the land, the contract with the village for the land, and the terms of the business arrangement with partners. The Appellants were also unable to provide details on the building of XXXX XXXX, or the actual business. [37] The Appellants' refugee claim is based on the expropriation of the land where the XXXX XXXX operates. I agree with the RPD that it is reasonable to expect the Appellants to be able to provide more detail regarding their property and a business they had been working on for over 10 years. Their inability to do so undermines their credibility. (viii) Summary [38] The Female Appellant stated that she was nervous a number of times during the hearing. At times she indicated that she did not understand the questions put to her by the RPD. Refugee hearings are stressful proceedings, and many claimants understandably are nervous and perhaps concerned. I find the RPD member was sensitive to the Female Appellant's nervousness and made efforts to clarify questions and encourage the Appellants to provide as much detail as possible, and explain any apparent discrepancies, so as to avoid negative findings. [39] It is possible that on its own, each discrepancy, omission, inconsistency or fraudulent document highlighted above may not be fatal to the Appellants claim. However, when taken together, the cumulative effect raises significant concerns about the credibility of the Appellants' claims. The Appellants have failed to provide sufficient credible evidence to support their claims. CONCLUSION [40] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) Madeleine Schwarz Madeleine Schwarz July 29, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 2 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 3 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996. 4 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 6, paras. 12-13. 5 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 31, para. 11. 6 Ibid., Exhibit 6, at pp. 120-121. 7 Ibid. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (30 April 2018), item 3.22: "Fraudulent documents, including the manufacturing, procurement, distribution and use of passports, hukou, and resident identity cards (RICs), particularly in Guangdong and Fujian; instances of officials issuing fraudulent RICs to citizens and..." Response to Information Request (RIR) CHN104579.E, 21 October 2013. 9 RPD Hearing, Audio Recording, July 20, 2018, at 01:30:00 - 01:30:40. 10 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 118-119. 11 Exhibit P-2, Appellants' Record, at p. 23, paras. 60-62. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-20254 TB8-20255 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français