TB8-00808

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 : TB8-00808 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal 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 December 24, 2018 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are) the subject of the appeal Stephanie K Fung 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 INTRODUCTION [1] XXXX XXXX (the Appellant) is a citizen of China. The Refugee Protection Division (RPD) found that the Appellant does not face a serious possibility of persecution if she were to return to China based on her opposition to the government's family planning policy, nor does she face a risk of torture, cruel and unusual treatment or punishment, or personalized risk to her life. [2] The Appellant respectfully requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and remit the matter back to the RPD for reconsideration and re-determination by different RPD panel. DETERMINATION [3] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD and finds that the Appellant is not a Convention refugee nor a person in need of protection. Memorandum of Appeal [4] The Appellant respectfully submits that the Appeal gives rise to the following issues: A. Did the Member err in her assessment of the Appellant's credibility? B. Did the Member err in finding that the Appellant does not face a forward-looking fear of persecution in China? Background [5] After the birth of her daughter on XXXX XXXX XXXX 2000, the Appellant was required to wear an Intrauterine Device (IUD). Because of issues with the device, the Appellant finally gained permission to remove her IUD in December 2000. The Appellant describes the family circumstances and eventually divorced her husband on December XXXX, 2007. The Appellant retained custody of their daughter. [6] The Appellant began a new relationship and planned to register their marriage with the government in the summer of 2015. When attending a regularly scheduled pregnancy examination at the Family Planning Office (FPO) on December XXXX, 2014, she was found to be pregnant and forced to undergo an abortion immediately. After the abortion, she was informed by the FPO that she would undergo a sterilization procedure on January XXXX, 2015. This procedure was delayed until March XXXX, 2015 in order for her medical condition to improve. [7] Being opposed to sterilization, the Appellant found a snakehead who assisted her in obtaining an American visitor's visa improperly. She attended an interview at the Consulate General of the United States of America (USA) on January XXXX, 2015. Accompanied by the snakehead, the Appellant left China on Fairbury XXXX, 2015, and eventually came to Canada illegally on February XXXX, 2015. The Appellant fears that if she returned to China she will be subjected to forced sterilization and have to pay a large fine due to her violation of the family planning policies. [8] The RPD hearing was held on August 25, 2017, and in a decision of September 14, 2017, the RPD found the Appellant was neither a Convention refugee nor a person in need of protection. Minister's Intervention [9] The Minister intervened on the basis of credibility.1 The Minister outlined the information provided to Canadian officials in 2013, two years prior to her alleged period of persecution. The Minister then compared this to the information provided to Canadian officials on her refugee claim. Quoting Federal jurisprudence and a lack of a passport, the Minister found that her documentation was unreliable. The Minister also stated that in 2015, she obtained the services of a smuggler but was not sought by the Public Security Bureau (PSB). He submits that the Appellant has fabricated the claim in order to circumvent Canada's immigration system. ROLE OF THE RAD [10] The Appellant supported the provisions outlined in the decision of the Federal Court of Appeal (FCA) in Huruglica,2 which provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of the first-level administrative tribunal. [11] The FCA stated that, with respect to findings of fact (and mixed fact and law), which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to paragraph 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD's decision without hearing the evidence presented before the RPD. For questions of fact, mixed fact and law, and law, I have applied the standard of correctness, as per Huruglica. Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. Merits of the Appeal Credibility The Birth Certificate [12] Note: on Monday, December 17, 2018 the RAD sent a copy of National Documentation Package (NDP) documentation, RIR CHN 106035.E, China: Security features of birth certificates, including the meaning of the alphanumeric code (2000-December 2017), 26 January 2018. The Appellant was asked to make submissions on this document and have these submitted to the RAD by December 24, 2018. Appellant's Submissions [13] As of the writing of this decision, no submissions were made by the Appellant. RAD's Findings [14] According to the documentation referenced above: 1. The Medical Certificate of Birth uses a standard region-based number, with the regional units being provinces, autonomous regions and cities directly under the central government. For the province of Fujian, the certificate number starts with the regional number "35". 2. Beginning in 2000, the Resident Identity Card number on the Medical Certificate of Birth increased from 15 digits to 18. 3. Starting in 2000, an English letter, chosen in alphabetical order, began to be added in front of the number of the Medical Certificate of Birth. For example, in the starting year of 2000, and "A" was placed in front of the number, while in 2001 a "B" was placed in front of the number, and so on. [15] In reviewing the documentation submitted by the Appellant, specifically the Birth Certificate,3 the RAD notes that the number F appears in front of the Birth Certificate number. The date of birth of her alleged child, XXXX XXXX, was XXXX XXXX, 2000. The date of issuance of this document was August XXXX, 2000. According to the documentation, the number that should have appeared before the Birth Certificate number was the English letter A. The RAD finds that the Birth Certificate submitted is fraudulent and is not a probative document in supporting the allegations of the Appellant that she had a daughter born in the year 2000. [16] The Hukou4 presented indicates on page 444 lists the Appellant's daughter XXXX, XXXX. There are no security features on the Hukou to verify its authenticity. The RAD references NDP documentation that states the widespread availability of fraudulent documents in China;5 the Hukou being mentioned as one of the documents. The RAD finds, on a balance of probabilities, that the alleged daughter's name on the Hukou does not overcome the findings regarding the government issued fraudulent Birth Certificate. [17] The Appellant submitted a Family Planning Services Certificate.6 The certificate gives a record of the Appellant from June 26, 2012 until December 22, 2014. The certificate does not provide information regarding the birth of her alleged child. In referring to NDP documentation7 under the heading of "Measures Governing the Management of the Family Planning Services Certificates of the Province of Guangdong" Article 5, the RAD finds that the Services Certificate must bear the special seal of the issuing agency. It further states that if the certificate lacks the seal of the issuing agency it shall be invalid. There is no seal evident on the document submitted by the Appellant. The RAD finds that the document submitted is fraudulent and is not probative in supporting any of the Appellant's allegations. [18] The Appellant submitted a Civil Judgment allegedly issued by the Peoples Court XXXX District Guangzhou City.8 The document, dated December XXXX, 2008 outlines the conditions of the divorce registered on December XXXX, 2007. The judgment of the court indicates that the father of the alleged child will pay the mother of the alleged child 800 RMB of child support until she reaches the age of 18 years. Although the RAD is not an expert in the documentation issued in Civil Judgments, the RAD finds that there is no contact information for the court or the lawyer who allegedly acted for the Appellant. The RAD finds this is an unusual circumstance given it is allegedly an official court document from a Registered Court in China. The document also refers to a court where an appeal can be made but no information is given. The RAD finds, on a balance of probabilities, that this document is fraudulent and has been produced to support the Appellant's allegations of bearing a child. The RAD also finds, on a balance of probabilities, that this document does not overcome the negative findings made above about the Appellant's allegations of having borne a child in the year 2000. [19] The Appellant submitted a notice of expulsion for her alleged child.9 In observing the document submitted, the RAD notes that there is no contact information given for the school in question. It would be reasonable to expect on a formal notice of this nature that the phone number, fax number, or email address would appear so that the school could be contacted. The RAD finds, on a balance of probabilities, that this letter of expulsion is fraudulent and does not overcome the findings above concerning the allegations that the Appellant bore a child in the year 2000. [20] The RAD finds that the above findings are determinative in assessing this claim. Having found that the Appellant has not been credible about the birth of her daughter in the year 2000, the RAD will address the other issues in the claim. Other Issues of Credibility Inconsistencies of Information Given [21] Referring to the Minister's Information, referenced above, the RPD found that the Appellant's marital status was in question. In her Canadian visa application, dated January 23, 2013, she stated that she was married to the same husband that she allegedly had divorced in 2007. When asked to explain, the Appellant stated that the application was filled out by a casual friend because her English was not very good. Noting that the Appellant did not have a close relationship with this casual friend, the RPD did not accept this explanation. The RPD pointed out several other inconsistencies between information on her Canadian visa and her refugee claim. The Appellant stated she was unclear why that inconsistency was there. The Appellant also testified that she did not remember why inconsistencies were there regarding her education and work experience. [22] The RPD stated that the Canadian visa application was made in 2013 when she was not fearing persecution according to her testimony and documentation. The RPD reasoned that it was highly unlikely that the Appellant's casual friend would provide entirely inconsistent and detailed information about her work, education history, and marital status without providing information to the Appellant and the Appellant voicing concern. The RPD found, on a balance of probabilities, that the Appellant filled out the application herself. [23] The Appellant submits that she did not understand English and as a result was not in a position to voice concerns about any of the contents of her Canadian visa application. She submits that the RPD finding is out of hand. She further submits that the issues addressed in the RPD's finding are not material in her claim for refugee protection. [24] The Appellant further submits that she had submitted relevance and probative evidence of her divorce, namely a divorce certificate10 and civil judgment. She submits that the RPD erred in finding these documents fraudulent because of the lack of security features. The Appellant outlined the features on the divorce certificate and submitted that it was a genuine document. [25] The Appellant submits that the RPD accepted the Hukou as evidence of her national identity. The Hukou states that she is a divorced woman. She submits that in accepting this document, she reached in a new reasonable conclusion that the appellant was not divorced from her ex-husband, as alleged. [26] The RAD has reviewed the Minister's documentation and the RPD's findings about the discrepancies between the Appellant's Canadian visa and information given to support her refugee claim. The RAD finds, on a balance of probabilities, that the information given is inconsistent and therefore not reliable. The Appellant submitted information on her Canadian visa in 2013, well before she was allegedly the victim of persecution by Chinese authorities. The Minister quoted Federal jurisprudence and the RAD concurs. In reviewing the testimony at the RPD hearing, the RAD finds that no reasonable explanation was given for such major inconsistencies between the two documents. [27] The RAD reviewed the divorce certificate submitted and on its face can find no obvious reason to doubt its authenticity. The Appellant outlined the features that should reasonably appear on such a document and they were present. The RAD finds, on a balance of probabilities, that the divorce certificate is valid. However, this does not validate the other misinformation given between the two documents, the Canadian visa and the refugee claim information. The RAD also finds that this issue of whether she was divorced or not is not determinative in this claim. The RAD made a finding above in this decision on the civil judgment, referenced above. Restating, the RAD finds, on a balance of probabilities, that the document is fraudulent. [28] In regards to the Hukou submitted, the RAD found above that the document was fraudulent, on a balance of probabilities. As a result, the RAD finds that information provided on the document is not probative. Relationship with Boyfriend [29] The RPD found, because of a lack of probative documentation, that the documentation provided had no probative value in establishing the alleged relationship with her boyfriend. [30] The Appellant submitted that the RPD unreasonably denied the existence of her boyfriend given the documentation provided.11 She further submits that her relationship is validated because she had this personal documentation on him. The Appellant further submitted that the RPD, in doubting the Appellant's relationship with XXXX, failed to observe a presumption of truthfulness that is given to refugee claimants. [31] The RAD finds that the Appellant's relationship with XXXX, whether genuine or not, is not a determinative issue in this claim. What is relevant is the Appellant's allegations that she became pregnant from him and had an abortion because she had violated the FPO laws in China regarding one child. This issue will be addressed below. Abortion and Sterilization Notice [32] The RPD stated that the Appellant provided a sterilization notice12 that indicated she was found pregnant with her boyfriend's child and this was aborted. The RPD found that the sterilization notice had no security features other than a single red stamp and as a result of the other existing credibility concerns, the RPD found that it was not reliable evidence and gave little weight to the document in supporting her claim. [33] The Appellant submitted that the RPD's findings that the Sterilization Notices lacked security features was in error. According Federal jurisprudence, Zheng, she states that official stamps or seals constitute valid security features. Both Sterilization Notices bear the official seal. [34] The Appellant also submits that the RPD failed to consider the contents of the notices themselves. It states that she has violated the family planning policy on December 22, 2014 due to the discovery of her out-of-plan pregnancy. She further submits that the notices are consistent with her story and bolsters her credibility. [35] The Appellant submits that the RPD erred by overlooking the Family Planning Surgery Certificate.13 She further submits that the RPD committed a reviewable error by failing to consider documents such as the Penalty decision, the Notice of expulsion, the Family Planning Surgery Certificate, and the documents pertaining to XXXX. [36] The RAD notes that the Appellant has not provided her medical booklet, which would have confirmed that she had an abortion. According to the documentary evidence this booklet should have included her abortion procedure. The documentary evidence notes that medical clinics and hospitals issue booklets to patients to record the nature of their illness and the recommended treatment. Most patients undergoing abortions, sterilizations, and/or the implantation of an IUD go to the hospital as outpatients. Outpatient medical records are listed in a small booklet called the "Outpatient and Emergency Medical Record for Hospitals and Clinics," which contains a written listing of the patient's symptoms by a doctor. The booklet is distributed on a mandatory basis and is kept by the patient, not the hospital.The booklet can be used for multiple visits and is kept by the patient. Each patient is supposed to keep a booklet themselves, which they present upon each visit to a doctor. The booklet may look different in different cities.14 [37] The abortion procedure, according to the information on the documentation, was done in a Chinese Medicine Hospital in Baiyun. The RAD finds that the Appellant should have produced information in the medical booklet described above. In addition, the RAD found that the Appellant had not borne a child previously. The Appellant, even in the one-child policy of China that was in existence at that point, was not in violation of the FPO laws. The RAD finds, on a balance of probabilities, that that the Abortion Certificates and both Sterilization Notices are fraudulent and finds that this further supports the RAD's findings that the Appellant has not been credible about her allegations and circumstances in China. Penalty Decision [38] The Appellant referenced documentation submitted to indicate that she was fined for being in violation of the Family Planning Regulation.15 She submits that this document bolsters her credibility and that the RPD erred by not considering this document before finding her not to be credible. [39] The RAD has reviewed the Penalty Notice and finds that it is not probative and fraudulent. Finding that the alleged abortion was not credible and that the sterilization notices are fraudulent, there would be no reason to issue such a document given that she had not violated the Family Planning Laws of China. Forward-Looking Fear of Persecution in China [40] The RPD quoted documentation to support that the two-child policy became law and applies nationwide in China. The RPD further examined her residual profile to see if it would put her at a risk of persecution. The risk of potential abortion is a moot point in that very likely she will give birth of her 2nd child in Canada by the time the decision is issued. [41] Finding that the Appellant is not a credible witness, the RPD made several findings regarding her marital status. Referring to Article 53 of the 2008 Population and Family Planning Regulations of Guangdong province, she states that a social compensation fee would be imposed when a child is born out of wedlock.16 The RPD also found, given that she has misrepresented her level of sophistication and income, that she earns more money than she alleges and therefore has a greater capacity to pay the social compensation fee associated with having a child outside of the family planning policy. [42] The Appellant submits that the RPD erred by finding that the Appellant's contravention of the One-Child Policy would somehow be expunged due to the onset of the Two-Child Policy. She further submitted that the RPD's conclusion that she would not face for sterilization was based on an erroneous conclusion about the authenticity of the sterilization notices. [43] The Appellant submits that the RPD made a highly speculative finding regarding her ability to pay a compensation fee. No evidence was given to support this finding and the RPD relied on this peripheral issue to find that she does not face the risk of persecutory harm in China. [44] The RAD finds that the Appellant submissions on this issue are not probative. The Appellant's submission about the expunging of the two-child policy is not probative. No documentation was submitted to support such a statement. In addition, the Appellant has not provided probative documentation that she is the mother of one child born in China. Documentation was submitted that she bore a child in Canada. This would mean that the Appellant is the mother of one child, a fact that is well within the Chinese Two-Child Policy. Even if the Appellant were the mother of a second child, she would still be within the regulations in existence in China. DISPOSITION [45] The RAD confirms the decision of the RPD, and dismisses the appeal according to paragraph 111(1)(a) of the IRPA. The RAD finds that the Appellant is not a Convention refugee nor a person in need of protection. (signed) "Robert S. Garner" Robert S. Garner December 24, 2018 Date 1 Exhibit, RPD-1, RPD's Record, at pp.418-421, pp. 485-487 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit, RPD-1, RPD's Record, at pp. 453-454. 4 Ibid. at pp. 440-445 5 Exhibit, RPD-1, RPD's Record, NDP for China (20 July 2017), Response to Information Request (RIR), Immigration and Refugee Board of Canada, item 3.22 CHN 104579.E. 6 Ibid. at pp. 455-459. 7 Exhibit, RPD-1, RPD's Record, NDP, CHN 105281 point E. 24 September 2015 8 Exhibit, RPD-1, RPD's Record, at pp. 449-452 9 Ibid., at pp. 466-468. 10 Exhibit, RPD-1, RPD's Record, at 446-448. 11 Ibid., at pp. 475-483 12 ibid., at pp. 460-461. 13 Ibid., at pp. 468-471. 14 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (20 July 2017), Response to Information Request (RIR), Immigration and Refugee Board of Canada, item 3.2 CHN105281.E. 15 Ibid., at pp. 464. 16 Exhibit, RPD-1, RPD's Record, NDP, RIR, IRB, item 5.5, CHN 104963.E --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-00808 RAD.25.02 (September 18, 2018) Disponible en français 12 RAD.25.02 (September 18, 2018) Disponible en français