TB7-24923

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 / Dossier de la SAR : TB7-24923 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 30, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are) the subject of the appeal John Gravel Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (a.k.a. XXXX XXXX), the Appellant, a citizen of China, is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has not submitted new evidence and is not requesting an oral hearing. The Appellant submits that the RPD erred when it ignored relevant evidence and incorrectly assessed the Appellant's credibility. After a fulsome and independent analysis of the evidence adduced, I find that this Appellant has failed to convince me of any substantive errors on the part of the RPD. BACKGROUND [2] The Appellant (Ms. XXXX) alleges she has been practicing her Christian faith since April, 2016, at a local Church which was raided by the Public Security Bureau (PSB) on August 21, 2016. Although the Appellant escaped the raid by the PSB, the PSB attended at her home the following day. The PSB left MsXXXX XXXX with an order to appear at the office of the PSB the following day (XXXX XXXX XXXX XXXX). Having been in hiding since the raid, Ms. XXXX fled China. [3] The Appellant also fears forced sterilization because she has three children and the policy in China allows only two children per couple and a third child with permission of the state. RPD Decision [4] The RPD found that the Appellant would not have been able to leave China if she was wanted by the PSB because of the Chinese security program known as the Golden Shield. ANALYSIS Determinative Issue [5] The determinative issue in this appeal is credibility. Standard of Review [6] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.1 Arguments - Exit from China [7] Counsel argues that the RPD ignored relevant evidence although counsel fails to adequately explain what that evidence is and how or why counsel believes it was ignored. Counsel does refer at one point to a part in a Response to Information Request (RIR)2 quoted by the RPD which counsel states demonstrates that Western researchers know very little about China's surveillance and tracking systems. [8] Counsel argues that this RIR is four years old and therefore unreliable. However, counsel then goes on to cite articles from 20133 and contained within that RIR which counsel is alleging is out of date. This RIR does in fact state that it is very difficult to obtain accurate information on the Golden Shield due to the security issues involved. [9] The Immigration and Refugee Board has heard a similar case to this one and has designated it as a jurisprudential guideline (JG) requiring RAD members to adhere to the guideline where a very similar case is being heard, or explain why the RAD member did not do so. [10] The JG4 is clear in its reasoning and its decision which basically states that the Chinese Golden Shield is a very strong program which works well, making it almost impossible for someone who is wanted by the PSB to depart the country using his or her own valid passport. The possible exceptions to this situation occur in Hong Kong and Macau. The Appellant left from Beijing. [11] Counsel cited the National Documentation Package (NDP)5 regarding the incompetence and corruption of Chinese airport employees however, counsel failed to include in his citation the caveat at the end of the section which tells about a travel agent who was quoted, a woman who used another's identity to apply for a passport and of a 2010 incident. The caveat stated clearly "Corroborating information for these incidents could not be found among the sources consulted by the Research Directorate within the time constraints of this Response".6 Contrary to counsel's argument, the above citation is insufficient evidence to allow me to ignore the JG cited above. [12] Further, counsel argues that the panel erred by contradicting herself regarding the corruption and corruptibility of airport staff. Counsel argues that the panel contradicted herself on this issue when the panel found "systemic corruption" and found that airport officials can be bribed7 but then goes on to state that authorities in China do not always apply regulations evenly. [13] Counsel argues that the above is a contradiction because counsel defines "systemic" as meaning "planned, regular, standardized and methodical" whereas the Merriam Webster Dictionary, a world renowned publication, which I prefer over counsel's definition, defines "systemic" as "of, relating to, or common to a system". Being systemic does not imply anything other than being common to the system. In this particular case, what the panel found was that corruption is common in the Chinese system. That finding is not contrary or contradictory to the finding that the regulations are not always applied evenly. [14] I am obligated to adhere to this guideline unless I can show good and valid reasons for not doing so. I cannot show such reasons, consequently, I must find that the Appellant must not have been wanted by the PSB at the time that she left China. This finding leads me to infer negative credibility in regards to the Appellant's allegation of being wanted by the PSB. I also must find that the panel made no error in her findings in this regard. Objective Fear - Shouters [15] Counsel argues that the panel erred in her assessment of the objective basis of the Appellant's fears. The Appellant claims she is afraid of the authorities because of her involvement in the Christian "Shouters", a group claimed by Chinese authorities to be an evil cult. [16] The panel found that there was insufficient credible evidence to conclude that the Appellant was a "Shouter" in China. The Appellant presented a copy of a "summons" for her due to her participation in an illegal cult (Shouters). The panel dismissed the summons basically because of the prevalence of fraudulent documents in China. This was an error. However, I have compared the document presented as a summons to the samples provided in the NDP8 of the only three types of summonses used in China and this document does not resemble any of those three samples. These three samples are supposed to be the only types of summonses used, with no regional differences existing. Based on that information which comes from a trustworthy source (NDP), I find that, more likely than not, the document presented by the Appellant as a summons is fraudulent. [17] Counsel seems to find it contradictory that the panel found other personal documents of the Appellant to be genuine while finding the summons not to be. There is no contradiction here. Every piece of evidence must be assessed on its own merits. The Appellant's personal documents were assessed to be genuine. The summons document was assessed, even for the wrong reasons, to be fraudulent. The outcome was correct but the reasoning was not. The panel should have made a comparison between the submitted summons and the samples in the NDP. She would have arrived at the same conclusion but would have done so correctly. Although the panel did err in her reasoning, the error is not fatal as the outcome would have been the same had she assessed the document in the proper manner. [18] Although the Appellant alleges that she belongs to a group of Christians known as "Shouters" she has adduced no credible evidence of this. Having found the summons to be fraudulent makes me question the sincerity of the allegation that Ms. XXXX is a "Shouter". [19] Ms. XXXX attends a Church in Canada which has adduced a letter clearly stating that it has no relationship to the Shouters in China. Ms. XXXX has been baptized in that Church. It only stands to reason that, should the Appellant return to China, she would practice her religion in a Church affiliated with the Church in which she was baptized. As I have found the summons to be fraudulent and have found that the Appellant's exit from China strongly suggests that she is not a "wanted person", I see nothing to prevent her from safely returning to China where she could practice her Christianity in a sanctioned Church or even in a small house Church, with less than a mere possibility of being persecuted for doing so. [20] Counsel argues that the panel erred by contradicting herself on this issue. Counsel draws my attention to paragraph 17 of the Reasons and Decision in which the panel wrote: The panel acknowledges the claimant's testimony that the smuggler assured her that she was not on the wanted list and that he bribed officials. The panel finds however that the claimant alleges that PSB went to seek her arrest on many occasions, demonstrating an active interest in her arrest. The panel therefore finds on balance that she was wanted for arrest and that authorities who bothered to pursue her to such a degree would enter her information into the Golden Shield/Policenet program.9 [21] Counsel argues that the panel, in the above paragraph, clearly wrote that the Appellant was wanted for arrest, whereas in paragraph 34 of the Reasons and Decision, the panel found that the Appellant was not wanted. [22] In reading the entirely of the paragraph 17, it is obvious to me that the panel made a typographical error by forgetting to include the word "not" before "wanted for arrest". It is clear that the preceding sentence in that paragraph was working toward the conclusion of the Appellant not being wanted for arrest. I find that the error is strictly a typographical error and not fatal to the decision. [23] Counsel argues that the panel failed to make a clear finding as to whether the Appellant is a Shouter. Counsel is correct. [24] In listening to testimony and reading the evidence, I am not convinced that the Appellant was a "shouter" but what I am certain of is that now, the Appellant is a member of a Church which is not affiliated in any way with Shouters and would therefore have no reason to be involved with Shouters when she returns to China. Even if I concede that the Appellant did attend a Shouter Church before coming to Canada (which I do not concede) that alone does not make her a person of interest to the PSB. As there is no credible evidence that the Appellant was a Shouter and her use of a fraudulent document undermines her personal credibility, I find that on a balance of probabilities, she was not a Shouter. Objective Fear - Family Planning [25] The Appellant has three children, all of whom are registered in the family Hukou and in school. Although the pregnancies of the last two children were considered illegal by the Chinese Family Planning authorities and both the Appellant and her husband were ordered to be sterilized back in 2010, that never occurred and instead they paid a fine. However, counsel argues that the only reason the Appellant did not receive the forced sterilization was because she was suffering from anemia at that time. [26] The issue here is not the past pregnancies but possible future pregnancy. The appellant fears that should she get pregnant again, she will be forced to have an abortion and then will be forcibly sterilized. [27] The panel noted that forced abortions were illegal in China10 however counsel argues that the same NDP item goes on to say that in 22 provincial-level jurisdictions dated from 2013, family planning regulations "explicitly instruct officials to implement abortions". [28] The Appellant is a XXXX year old mother of three. Her health was negatively impacted when she was forced to use an intrauterine device (IUD) for birth control. After many attempts, the Appellant convinced the Family Planning officials to allow her to remove the device, for health reasons. In 2016, the authorities forced the Appellant to re-insert an IUD as her health had improved. It was this issue which caused the Appellant mental anguish and when she was offered the opportunity to attend a Christian Church, she accepted it. [29] Counsel argues that the fact of having a third child would result in the Family Planning Office forcing Ms. XXXX to do either of three things: reinsertion of the IUD; forced sterilization; or abortion if she became pregnant. Counsel refers to the NDP11 which states that in spite of lifting the "one child policy", the Chinese authorities still denied women the right to decide the number of their children and in some cases resulted in forced abortions (sometimes at advanced stages of pregnancy). As in prior years, population control policy continued to rely on social pressure, education, propaganda, and economic penalties as well as on measures such as mandatory pregnancy examinations and coercive abortions and sterilizations. [30] Counsel argues that given the above noted evidence, it is clear that the Appellant has more than a mere possibility of facing sanctions should she return to China. [31] By "sanctions" I believe counsel means persecution. Those sanctions would be forced IUD or sterilization and forced abortion should the Appellant get pregnant again. [32] Given that the Appellant already has three children, none of whom is at risk in China, should she return to China she would be forced to follow Family Planning rules or be subject to a gross violation of her basic human rights. That is, she may face forced abortion or sterilization both procedures violating the sanctity of one's own body, by the state. [33] Refugee protection is a forward looking process. Although past behaviour including the presentation of fraudulent documents, telling falsehoods and generally presenting an incredible claim/appeal are certainly considerations, the RAD must look at the totality of the case and consider that, regardless of past lies, is this Appellant at risk for a Convention ground or is she in need of protection should she now return to China? [34] I am not satisfied that the Appellant has been truthful throughout her proceeding. I am satisfied that she had presented fraudulent documentation to the Board (summons). I am not satisfied that she was or is a member of the "evil cult" as she alleges the Chinese government believes she is. But I am satisfied that, as the mother of three children and a person who has health issues while wearing an IUD, she will be subject to either forced abortion or forced sterilization should she once again become pregnant. Without some sort of birth control, it is entirely possible for that to happen at the Appellant's age. [35] For these reasons, I find that the Appellant is a member of a particular social group, specifically Chinese women who have more than two children, illegally. I further find that there is more than a mere possibility that, should she return to China, she will face persecution for that reason. CONCLUSION [36] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe November 30, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China (20 July 2017), at item 10.4, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) CHN104762.E, 7 March 2014. 3 The New York Times. 28 June 2013. Didi Kirsten Tatlow. "U.S. Prism, Meet China's Golden Shield." Accessed 22 January 2014. <rendezvous.blogs.nytimes.com/2013/06/28/u-s-prism-meet-chinas-golden-shield/> quoted in NDP for China (20 July 2017), at item 10.4, IRB, RIR CHN104762.3, 7 March 2014. 4 Jurisprudential Guides, Decision TB6-11632, <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/jurisprudential-guides.aspx> 5 Exhibit RPD-1, RPD Record, NDP for China (20 July 2017), at item 3.24, IRB, RIR CHN105049.E, 22 September 2015. 6 Ibid., at p. 3. 7 Exhibit RPD-1, RPD Record, p. 8, RPD Reasons and Decision, at para 19. 8 Exhibit RPD-1, RPD Record, NDP for China (20 July 2017), at item 9.10 IRB, RIR CHN104458.E, 18 October 2013. 9 Exhibit RPD-1, RPD Record, p. 7, RPD Reasons and Decision, at para 17. 10 Ibid., at item 5.15, IRB, RIR CHN105051.E, 4 March 2015. 11 Ibid., at item 2.1, United States. Department of State., China (Includes Tibet, Hong Kong, and Macau). Country Reports on Human Rights Practices for 2016., 3 March 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-24923 RAD.25.02 (September 18, 2018) Disponible en français 10 RAD.25.02 (September 18, 2018) Disponible en français