TB9-08837

RAD File / Dossier de la SAR : TB9-08837 TB9-08838 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 January 31, 2020 Date de la décision Panel K. Wallace Tribunal Counsel for the persons who are the subject of the appeal Chloe Turner Bloom 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 (the 'Appellant') and XXXX XXXX (Associate Appellant) are citizens of China. They are appealing the decision of the Refugee Protection Division (RPD), dated March 11, 2019, which rejected their claims for refugee protection. [2] The RPD rejected the claims because they found that the Appellants are not credible. [3] No new evidence has been submitted in this appeal. An oral hearing has not been requested. [4] The determinative issue in this appeal is whether the RPD erred in its credibility findings. DETERMINATION [5] The appeal is dismissed. Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the decision of the RPD that the Appellants are not Convention refugees nor persons in need of protection. BACKGROUND [6] The Appellants are husband and wife. [7] The Appellant alleges that he is a Christian. He began attending an underground "house church" in China in XXXX 2017 after his friend introduced him to Christianity. The Appellant's wife never attended the house church. [8] The Appellant alleges that he became involved in Christianity after family planning authorities forced his wife to have an abortion in XXXX 2017. She became depressed and they began having marital difficulties. He turned to Christianity to cope with the difficulties. [9] In XXXX 2017, the Appellant was allegedly arrested by the Public Security Bureau (PSB) during a raid of the church and he was detained for twelve hours. In XXXX 2017, he was arrested again by the PSB because religious leaflets were found near his home. He was detained for three hours and released. [10] The Appellant and his wife came to Canada on a visitor's visa in XXXX 2017. They used the services of a smuggler to obtain their visas and come to Canada. [11] The Appellant and his wife applied for refugee protection in January 2018. ANALYSIS [12] In considering this appeal, I have applied a standard of correctness to the RPD's findings as per the Federal Court of Appeal decision in Huruglica1. I have conducted my own independent analysis of the evidence. This included listening to the recording of the RPD hearing and reviewing all of the documents submitted. The RPD Decision [13] The RPD rejected the claims for refugee protection because they determined that the Appellants are not credible. In particular, the RPD did not believe that the Appellants are Christians or that the PSB are interested in them. [14] The RPD determined that the Appellants are not credible due to the following: * The Appellants sought out the services of a smuggler prior to any of the alleged precipitating events; * The Appellants provided inconsistent information regarding the allegation that they hid from family planning authorities; * There is a lack of documentation to support the involvement of the family planning authorities; and * The Appellants' testimony was evasive, vague and non-responsive. The Appellants' Position [15] The Appellants argue that the RPD erred in its credibility findings. In particular, they argue that the RPD erred by focusing on peripheral issues in assessing credibility. [16] The Appellants also argue that the RPD failed to assess the Appellants' forward-facing risk given the objective evidence of the country conditions in China for Christians as well as the sur place claim based on the Appellants' religious activities in Canada. The Appellants are Not Credible [17] I agree with and share the RPD's credibility concerns. The hearing recording reveals that both Appellants were frequently evasive, inconsistent and vague in their testimony. The presumption that the Appellants' sworn testimony is true has been rebutted due to the credibility concerns that are set out below. [18] The Appellants argue that the RPD failed to make findings on central aspects of the claim such as the male Appellant's involvement in the house church and his detention by the PSB. I agreed that the RPD did not specifically address these facts in their decision. However, they made an overall finding that the Appellants are not genuine Christians and that the facts set out in their written narrative never occurred. For the reasons that follow, I agree with that finding. The Use of a Smuggler to Leave China [19] The Appellants sought out the services of a smuggler and/or his middle man in 2015 long before the events occurred that they allege led them to become Christians and leave China. [20] The Appellant's old passport was issued in 2013 and was in effect for 10 years until 2023.2 His wife's passport was issued in 2012 and was in effect until 2022.3 [21] The Appellants traveled to Canada on new passports that were issued in 2015.4 [22] The Appellants were asked at the hearing why they did not use their old passports to travel to Canada since they were still valid. The Appellant first stated that the new passports were not issued in 2015.5 However, the 2015 date on the passports is clear and this was pointed out to him. Both Appellants then stated that the smuggler told them they could not old use their old passports to travel and had to get new ones.6 They claim they do not know the reason the smuggler thought this. [23] When the Appellants were asked why they were consulting with a smuggler in 2015, the Appellant stated that he did not consult with a smuggler. It was his middleman because the real smuggler did not want to reveal his identity.7 It is irrelevant whether the discussions took place with the actual smuggler or his middleman. The effect is the same. [24] The replacement passports and the testimony of both Appellants about a smuggler/middleman establish, on a balance of probabilities, that the Appellants had plans to leave China long before the events that led them to leave. That in itself is not problematic. However, it is problematic that they attempted to conceal this fact from the RPD. [25] When the Appellant was asked why he was planning to leave China in 2015, he stated he had no plans to leave China at that time but most people he knew had a passport so he decided he should get one too.8 This explanation makes no sense. The Appellants already had valid ten year passports that were issued in 2012/13. There was no need to get another passport in 2015 if they had no plans to leave China at that time. [26] Furthermore, there was no reason to get new passports at all unless there was something in the old passports that would make it difficult for them to travel and obtain visas. The Appellants were told by smugglers that they could not travel on their old passports. [27] The fact that they were in contact with a smuggler or middleman and replaced valid passports in 2015 establishes they had plans to leave China long before the alleged conversion to Christianity. The fact that they misled the RPD about this affects their overall credibility and the genuineness of their claim for protection. Family Planning Involvement [28] The Appellants have two children. The first daughter was born in 2005. The second daughter was born in 2013. They allege that the female Appellant became pregnant with their third child in 2016 and went into hiding. However, the family planning authorities found her and forced her to have an abortion in XXXX 2017. [29] The forced abortion caused the female Appellant to become depressed and led to marital difficulties. This is the alleged reason the male Appellant became involved in Christianity. [30] The Appellants argue that inconsistencies in their testimony regarding the family planning involvement is peripheral to the claim. I disagree. The forced abortion is the reason the Appellant claims he became involved in Christianity. If the incident did not occur, it calls into question the genuineness of the entire claim. [31] The Basis of Claim form9 states that the Appellant and his wife went into hiding when she became pregnant to avoid discovery by the family planning authorities. Yet, the female Appellant testified that her husband remained at home and only she went into hiding. When she was questioned about this inconsistency she became very evasive. She was asked multiple times if her husband was in hiding with her. She was told it was a simple yes or no question. She would not provide an answer.10 She also initially could not remember when she went into hiding.11 She paused for a very long time and then said she can not remember. [32] The Appellant stated that he and his wife were both in hiding but they went to different places.12 When he was asked why the refugee application lists the same address for him and his wife for the period of time they were allegedly in hiding he was evasive and simply said he did not tell his wife the details of where he went into hiding because she was pregnant. [33] The Appellants were also inconsistent about whether or not the Appellant was working during the time he was in hiding. [34] The female Appellant said he was working.13 The refugee application states he was unemployed.14 The male Appellant said he was in hiding at the place where he worked. [35] The RPD then pointed out that the refugee application states he stopped working for his employer in 2014 and became self employed. Yet, the Appellant had testified that same employer tried to arrange a U.S. visa for him in XXXX 2017.15 [36] The answers of the Appellant and his wife regarding when they went into hiding, where they were, if they were together and whether the husband was working or not were so confusing and evasive it is not possible to determine what occurred. The evasive answers lead to a negatively credibility finding. They were unable to clearly or consistently answer very basic questions about going into hiding. This leads me to conclude that the event did not happen. [37] The Appellants argue that the RPD erred by failing to take the limited education of the Appellant's wife into account in assessing her answers. I disagree. Limited education does not account for her answers. Even someone with limited education can answer a basic question such as "were you and your husband together when you went into hiding? Especially when it was asked multiple times and in multiple ways. [38] The fact that the Appellants did not go into hiding leads me to conclude that there was no pregnancy to conceal. As the RPD pointed out, there are no records of the pregnancy, the abortion or of any family planning involvement at all. Only an outpatient hospital record for a check up after the fact was provided.16 [39] An outpatient record for the female Appellant states that she attended the hospital on XXXX XXXX, 2017 for a check up. It says that the female Appellant had an abortion one week prior and is having an IUD check up. The date on the record would mean the abortion took place a week earlier in XXXX. [40] Yet, the Appellants both testified that the female Appellant was not found by family planning authorities and forced to have an abortion until XXXX XXXX, 2017. The female Appellant stated that her IUD was implanted on XXXX XXXX, 2017 17 but the hospital record says the IUD check up was XXXX XXXX, 2017. [41] The male Appellant testified that his wife's IUD was inserted immediately after her abortion on XXXX XXXX, 2017.18 [42] Their dates are inconsistent with each other and with the outpatient record. This leads me to conclude that the outpatient record is not genuine or was simply based on the female Appellant self reporting an abortion to the hospital. [43] I agree with the RPD that it would be expected that the Appellant would have hospital or family planning documentation of the abortion itself or the IUD insertion and not just a follow up visit the following week. [44] The hospital record contains information such as a prior visit for itchy skin and allergies. Given this, it would be expected that more significant medical events would be recorded. [45] My findings about the inconsistency in the hospital record is not a "new issue" that requires notice and submissions from the Appellants. The Federal Court has determined that the Refugee Appeal Division (RAD) is not required to give an appellant notice of inconsistencies in their own documents. They are reasonably expected to be aware of the contents of the documents that they themselves provided.19 Risk of Persecution for Having Two Children [46] The Appellants argue that the RPD erred by failing to assess the risk of persecution to the Appellants for having two children before the one child policy was changed in 2016 to permit two children. [47] Other than the birth certificates of their two daughters, no evidence was presented about this alleged risk. Counsel did not ask the Appellants any questions at all at the hearing, nor did they refer to this issue in their submissions. The Appellants provided no evidence of any fear of persecution they have as a result of having two children before the one child policy was changed. [48] In fact, in their testimony about the alleged forced abortion they said the family planning authorities had no further interest in them. The RPD questioned them about any further consequences such as fines. They stated that the family planning authorities said a fine would not be necessary since the female Appellant had an abortion.20 [49] The objective evidence in the National Documentation Package for China establishes that a fine can be imposed for having two children prior to the changes to the one child policy. However, a fine is not consistently imposed.21 Even if the Appellants are fined in the future for having a second child before it was permitted, that economic consequence does not amount to persecution or a risk to their lives or of cruel and unusual treatment or punishment. A fine is not a cruel or unusual punishment. The Sur Place Claim [50] The Appellants argue that the RPD erred by failing to undertake a complete sur place assessment based on the Appellants' religious activity in Canada. [51] The Appellant and his wife attend church in Canada. A letter from their church states that they have both been attending church since XXXX 2017 and were baptised in XXXX 2018.22 Their baptism certificates were provided.23 [52] Given this activity, it is necessary to determine the merits of a sur place claim for protection. The RPD determined that the Appellants are not genuine Christians so they are not at risk of persecution now or in the future. [53] The Appellant's wife did not attend church in China and the PSB have shown no interest in her. [54] The Appellants have not established that the Chinese authorities currently have any knowledge of their baptism or activities in Canada or are likely to have that knowledge in the future. [55] The Appellant did provide a copy of a Public Security Bureau Administrative Punishment Decision. It states that the Appellant was suspected of illegal religious group activities on XXXX 20, 2017. It notifies the Appellant that he must come in when he is summoned for further investigation and will be seriously punished if he joins in any further illegal religious group activities. [56] The Punishment Decision contains numerous punctuation and grammatical errors. While I recognize that this could be the result of translation, it is more likely than not that the document is not authentic. The National Documentation Package for China establishes that fraudulent documents are wide spread in China. It is a lucrative business.24 The Appellant testified that all of the documents used to support his visitor's visa are fraudulent.25 This shows that it is not difficult to obtain needed documentation. [57] Furthermore, the complete lack of credibility of both Appellants that was evident in their sworn testimony calls into question the authenticity of all of their evidence. [58] The Appellants argue that the persecution of Christians is increasing in China and the RPD failed to fully assess the forward-facing risk to the Appellants based on this fact. They provided the RPD with news articles26 to establish the increase in persecution. [59] The Appellant displayed a basic and generalized knowledge of Christianity in the questions the RPD asked him. His counsel asked him no questions at all. The Appellant's wife was not questioned about her knowledge. The basic level of knowledge displayed at the hearing does not assist in establishing that the Appellants are Christian or that they are not. It is simply not useful or determinative in any way. [60] The National Documentation Package establishes that Christianity is not illegal in China but it is highly controlled. The Chinese constitution guarantees freedom of religion for "normal religious activities" but this is not defined. The state controls religious activity and restrictions on religious freedom are widespread. 27 The practice of Christianity must take place in state approved and monitored churches. Underground "house churches" are prohibited. [61] However, the Appellants must establish that this type of restriction amounts to persecution. Isolated incidents of discrimination or harassment are not likely to be serious enough to amount to persecution. Persecution generally refers to a serious interference with a basic human right.28 [62] There is a large Christian population in China. The number of Protestants in the country is estimated to be 60-80 million. However, this number is likely higher since many Christians do not practice openly in the state-sanctioned churches. Many Christians practice in underground house churches.29 [63] The news articles provided by the Appellants state that there has been a shift in China's approach to religion which has led to an increase in religious persecution in China. Updated Regulations on Religious Affairs from 2017 began being enforced in 2018. This increase in regulation and control has led to oversight of on-line discussions, increased interrogations and fines, restrictions on the establishment of religious schools and the printing of bibles. This increased regulation is understandably concerning to the Appellants. [64] Although Christianity is not illegal in China, I recognize that there are reports of persecution of Christians by the authorities in China. This varies considerably by region or province. I have reviewed the 2018 annual report from the China Aid Association 30 which identifies the Chinese government's level of persecution of Christians in Mainland China. There are reported incidents of persecution of Christians in the Appellants' home province of Hebei in the annual report. Those incidents involved confiscation or destruction of church property, orders to shut down unregistered churches, interrogation and detention of church members, and inspections of printing shops and bookstores to search for Christian related material. [65] Based on my independent assessment of all of the evidence, the Appellants are not genuine Christians. Given this, along with the lack of any evidence that the Chinese authorities are aware of or likely to become aware of their baptism and church attendance in Canada, I am not satisfied that there is anything more than a mere possibility of persecution of the Appellants in China. Therefore, there is an insufficient basis for the sur place claim CONCLUSION [66] The appeal is dismissed. I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "K. Wallace" K. Wallace January 31, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII) 2 Exhibit RPD-1, RPD Record, Exhibit 8 at p. 479. 3 Exhibit RPD-1, RPD Record, Exhibit 8 at p. 480. 4 Exhibit RPD-1, RPD Record, Exhibit 7 at p. 429. 5 RPD Hearing Recording, [February 20, 2019], at approximately [2:12]. 6 RPD Hearing Recording, [February 20, 2019], at approximately [2:13 and 2:17]. 7 RPD Hearing Recording, [February 20, 2019], at approximately [2:30]. 8 RPD Hearing Recording, [February 20, 2019], at approximately [2:23]. 9 Exhibit RPD-1, RPD Record, Exhibit 2 at p. 13. 10 RPD Hearing Recording, [February 20, 2019], at approximately [1:03]. 11 RPD Hearing Recording, [February 20, 2019], at approximately [0:51:40]. 12 RPD Hearing Recording, [February 20, 2019], at approximately [1:08]. 13 RPD Hearing Recording, [February 20, 2019], at approximately [0:52:57]. 14 Exhibit RPD-1, RPD Record, Exhibit 2 at p. 59. 15 RPD Hearing Recording, [February 20, 2019], at approximately [0:35:00]. 16 Exhibit RPD-1, RPD Record, Exhibit 5 at p. 347. 17 RPD Hearing Recording, [February 20, 2019], at approximately [1:27]. 18 RPD Hearing Recording, [February 20, 2019], at approximately [1:23]. 19 Konare v. Canada (Citizenship and Immigration), 2016 FC 985. 20 RPD Hearing Recording, [February 20, 2019], at approximately [1:21]. 21 National Documentation Package (NDP) for China (December 2019), Item 5.4. 22 Exhibit RPD-1, RPD Record, Exhibit 5 at p. 365. 23 Exhibit RPD-1, RPD Record, Exhibit 7 at pp. 366-367. 24 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (March 2019), Item 3.22. 25 RPD Hearing Recording, [February 20, 2019], at approximately [2:36]. 26 Exhibit RPD-1, RPD Record, Exhibit 6 at pp 376 to 428. 27 NDP for China (December 2019), Item 1.8. 28 A. B. v. Canada (Citizenship and Immigration), 2009 FC 640. 29 NDP for China (December 2019), Item 12.1. 30 NDP for China (December 2019), Item 12.3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-08837 TB9-08838 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