TB5-05019

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 No. / N° de dossier de la SAR : TB5-05019 TB5-05020 TB5-05021 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 19, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jeffrey L Goldman Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (Appellant), XXXX XXXX (Second Appellant) and XXXX XXXX (Minor Appellant), are citizens of China. They appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have submitted no new evidence in support of their appeal. The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellants are Convention refugees or a person in need of protection. In the alternative, the Appellants request that the RAD refer the matter back to the RPD with a differently constituted panel. In the alternative, they request that they be granted an oral hearing before the RAD. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that the claimants are a family of three from China. The female Appellant has been identified as Appellant in these reasons, as her allegations founded the refugee claims for her family members. All three individuals fear persecution in China due to the family planning policies in that country. The minor Appellant was born in XXXX of 2000. XXXX months later, the Appellant was forced to wear an intrauterine device (IUD) and was told she was not permitted to have any more children. The IUD caused pain and discomfort to the Appellant. [4] On XXXX XXXX, 2010, it was discovered the Appellant was pregnant during an IUD check. She was taken to the hospital and forced to have an abortion. The doctor told her she had become pregnant because the IUD had dislodged. The Appellant had another IUD inserted in XXXX of 2011. This IUD caused problems for the Appellant and in beginning in XXXX of 2013 she went to the Family Planning Office (FPO) on three occasions and asked to have the IUD removed. All requests were denied. [5] In the beginning of XXXX 2014, the Appellant's cousin told her to go to a private doctor to have the IUD removed. In XXXX XXXX XXXX, after her IUD checkup appointment, the Appellant had it removed. She felt better and she and her son went on a trip to Europe for XXXX days with her cousin at the end of XXXX 2014. When the Appellant returned to China and before her next IUD checkup, she had the IUD re-inserted. [6] On XXXX XXXX, 2014, the Appellant was told at her checkup that her round-shaped IUD had dropped from its position and would be replaced with a T-shaped IUD. The FPO made a new appointment for her to have an IUD inserted on XXXX XXXX, 2014. The Appellant did not want this new IUD as she had heard the t-shape IUD was even more problematic. They decided to flee to Canada, but had to hire a smuggler to get them to Canada. The smuggler arranged for United States (US) visas but was not able to get them before the IUD checkup on XXXX XXXX, 2014, so the Appellant went into hiding. [7] On XXXX XXXX, 2014, the FPO went to the Appellant's home looking for her, as she had not appeared for her appointment. The officer told the Appellant's father-in-law that she must attend within XXXX days to have the IUD inserted. They appeared again and left a notice for the appointment. [8] On XXXX XXXX XXXX 2014, the Appellants were told that their US visas had been granted. On XXXX XXXX, 2014, they discovered they had both been dismissed from their jobs and their son had been suspended from school. [9] On XXXX XXXX, 2014, the Appellants left China to the US with the smuggler. They entered Canada through a park in XXXX and came to Toronto the next day. The smuggler accompanied them on this trip and took their passports. The Appellants made their inland claim on December 1, 2014. [10] The Appellant's application for refugee protection was heard on January 22, 2015 and March 16, 2015. In a decision on April 28, 2015, the RPD rejected the claims of the Appellants, finding that the Appellant was not a credible witness and she was not a Convention refugee or person in need of protection. [11] The Appellant submits that the RPD's determination is based on erroneous findings and, as such, is unsustainable. The Appellant argues that the RPD erred in its credibility findings on the following issues: a) The Appellant's failure to seek refugee protection in Europe and her reavailment to China. b) The Appellant's failure to submit their passport as evidence of their travel. c) The medical records do not identify problems with the IUD. d) The date the IUD was removed. e) The Appellant's failure to claim in the United States (US). f) The delay in removing the IUD following arrival in Canada. ROLE OF THE RAD [12] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the most recent Federal Court decision in Huruglica1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [13] Accordingly, the RAD will conduct its own assessment of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL Failure to claim in Europe and Re-availment to China [14] The RPD drew a negative inference from the Appellant's failure to make a claim while she was on holiday in Europe in XXXX 2014. The Appellant submits this finding is made in error because the Appellant had not experienced the incident that led her to decide to leave China. The RAD is not persuaded by the argument of the Appellant. [15] The RAD has reviewed the audio recording of the hearing as well as the record. The RAD notes the Appellant's explanation when confronted about her failure to claim while in Europe in XXXX 2014, just a few XXXX prior to her decision to travel to Canada to make a claim for refugee protection was that she was in Europe simply for tourism. The RAD further notes that the Appellant travelled through three countries that were all signatories to the UN Convention on refugees. [16] She subsequently testified that she went there to relax and improve her health. Counsel for the Appellant submits the Appellant had "devised a system, whereby she would have the IUD removed after her examinations and have it reinserted for examinations." The RAD has reviewed the Appellant's testimony and finds her testimony was very clear, stating she was in Europe for a holiday. [17] The RAD notes the Appellant when prompted by the RPD confirmed that after having a private doctor remove the IUD prior to departing for Europe, she recognized she would have to attend the private doctor to re-insert an IUD when she returned to China. [18] The Appellant has testified that she is basing her claim for refugee protection on the fears of having an IUD inserted because she has experienced chronic debilitating health problems associated with its use and wishes to have more children. The Appellant's submissions that she has devised a "system" for dealing with her IUD checkups lacks credibility when one considers her previous testimony. The RAD finds her testimony that she has no issue in re-availing to the country she fears because they have persecuted her and then takes personal action to re-insert an object in her body that she is basing her fear of persecution on makes little sense. The RAD finds her testimony is simply not credible. [19] The RAD finds the Appellant's submission that her problems began in XXXX 2014, when she returned to China is not supported by her allegations of harm in her previous testimony and her Basis of Claim (BoC) document narrative.2 She describes, beginning in XXXX 2000, "I was forced to wear an IUD". She further describes the magnitude of the pain and discomfort she experienced. She states in her BoC document that she decided to remove the IUD in XXXX 2014, for "the sake of my health", following consultation with her husband and cousin. The RAD in its review of the record does not question the Appellant's statement that she had an IUD inserted in China in XXXX 2014. The RAD does not find her testimony that her problems began at that time is credible. [20] The Appellant has suggested in her testimony that she fears a "T-type IUD". The RAD has reviewed the Appellant's "IUD examination Booklet"3 as well as a "Doctor's Note",4 confirming the removal of the Appellant's IUD following her arrival in Canada. The RAD notes there is no confirmation in the IUD booklet that she requires replacement of her IUD on the XXXX 2014 examination date, let alone a replacement with a specific IUD device. The RAD further notes there is no description in the Canadian doctor's note as to the type of IUD she had removed. The RAD has further cause to question if, as the Appellant has implied in her submissions to the RAD that she did not fear the IUD she had re-inserted in China despite her statements that she had experienced continuous discomfort from her IUD since the year 2000, why did she choose to have it removed upon arrival in Canada. The RAD in reviewing the record and the Appellant's testimony in this issue, finds on a balance of probabilities, that the Appellant's testimony is inconsistent and lacking in credibility. The RAD finds it was proffered in an effort to offset her re-availment to China and create a nexus to persecution that did not exist. [21] The RAD finds the Appellant's failure to seek refugee protection during her travel through three European countries in XXXX 2014, detracts from her subjective fear and undermines the basis of her claim for refugee protection. The RAD supports the finding of the RPD in this issue and the Appellant's argument must fail. Failure to Claim in the United States [22] The RPD found the Appellant's failure to make an asylum claim in the US further undermines her credibility and her subjective fear. The Appellant submits it was the smuggler who chose Canada as a destination and the Appellant has a limited education. The RAD is not persuaded by the argument of the Appellant. [23] The Appellant has submitted she has a limited education, but she has provided no additional explanation as to how this applies to her failure to make an asylum claim in the US. The RAD notes in its review of the record that the Appellant had experience with travel, having recently returned from a vacation to Europe. The RAD finds her testimony confirms that she undertook her travel to the US with the specific purpose of making a refugee claim. Her explanation that she was not well educated is not an acceptable explanation for failing to make a claim for refugee protection in the United States. [24] The RAD further notes the Appellant indicated she had a valid US visa for entry to the US, but she confirmed in her testimony that she and her family had to enter Canada illegally. When she was confronted by the RPD about why she had not made a claim for refugee protection in the US, the Appellant responded, "Our destination was Canada". The Appellant was questioned about what might have happened if she was detained while entering Canada illegally. She initially stated, "the snakehead would bribe customs" and when asked for further information she confirmed that the smuggler had provided no information about problems they might face entering Canada. The RAD finds the Appellant's initial response to the question was inconsistent and when confronted by the RPD, her testimony evolved in an effort to offset the inconsistency. The RAD further finds this detracts from her overall credibility. [25] The RAD has reviewed the record as well as the Appellant's testimony. The RAD has further considered the discussion of the Appellant's action in reference to her failure to make an asylum claim while in Europe. The RAD finds the Appellant in choosing not to make an asylum claim in the US, has continued to demonstrate a lack of subjective fear of being returned to China. The panel notes the words of the Federal Court in Ibnmogdad v. Canada: Finally, it was reasonable for the tribunal to draw a negative inference from the fact that the applicant had travelled through Germany, Portugal and Ireland, yet waited to claim refugee status in Canada. The recent decision of Remedios v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 617 (Q.L.), reaffirms the principle that it is not unreasonable to conclude that the failure of an applicant to claim refugee status in countries that are signatories to the Geneva Convention amounts to country shopping.5 [26] The RAD finds the Appellant has demonstrated behavior that likens her to an "asylum shopper". The RAD has additionally considered that there is no provision in the Convention that obliges refugee claimants to seek asylum in the first country they reach. However, the Federal Court has stated that there is a presumption that persons fleeing persecution will seek protection at the first opportunity, which would normally be in the first country they reach.6 [27] The RAD finds the Appellant's actions in choosing not to consider an asylum claim in the US detracts from the credibility of her allegations and demonstrates a lack of subjective fear. The RAD supports the finding of the RPD in this circumstance. When was the IUD Removed? [28] The RPD found the Appellant's testimony in respect of when she had her IUD removed in 2014 was not credible. The Appellant submits there is no evidence to corroborate the IUD was removed and the expectation that the Appellant provide documentation is unreasonable. The RAD finds the Appellant has taken the finding of the RPD out of context. [29] The RAD notes the audio recording of the hearing confirms the Appellant when testifying about the removal of her IUD was inconsistent in reporting the date her IUD was removed. She was adamant that it was removed in XXXX 2014. When confronted by the RPD, she was unable to explain why her BoC narrative stated it was removed in XXXX 2014. The RAD notes during the second sitting of the claim, the Appellant changed her testimony and stated that her IUD was removed in XXXX 2014. The RAD finds the Appellant's testimony in respect of this issue is inconsistent and detracts from her ability to act as a credible witness. The RAD notes the Appellant does not question this aspect, which forms the central component of the RPD finding. [30] The Appellant submits that the additional statement by the RPD in its Reasons, "Furthermore, there is no evidence submitted by the claimant to corroborate that her IUD was removed by the private doctor", is unreasonable. The Appellant argues it is not reasonable to expect that a private doctor would provide such evidence. The RAD has considered the submission of the Appellant and finds this statement amounts to speculation. It is provided with the intent of offsetting the fact that the Appellant did not consider contacting the doctor and requesting documentary confirmation. The RAD finds the Appellant when provided an opportunity, did not offer a persuasive explanation for her inconsistent testimony. The RAD supports the finding of the RPD in this finding. The Medical Records [31] The RPD found that the Appellant's medical documents do not confirm her testimony about having severe problems associated with wearing an IUD and her testimony surrounding this issue detracts from her credibility. The Appellant submits the RPD has ignored the fact that low-grade cumulative pain will take its toll on anyone. The Appellant further submits it was not this IUD that caused the Appellant to flee China. The RAD is not persuaded by the argument of the Appellant. [32] The RAD has reviewed the audio recording of the hearing as well as the Appellant's medical document.7 The RAD notes the Appellant's testimony confirmed that she had experienced problems with the IUD since it was inserted in XXXX 2000. The RAD notes the Appellant's BoC narrative states, "With the IUD in my body I felt a lot of pain and discomfort". She testified to experiencing stomach problems and stated that she saw a doctor once per week because of the discomfort. Upon further questioning, the Appellant changed her testimony and explained that she sometimes went to the doctor once per week, but the doctor gave her medication and she did not have to go that often. The RPD pointed out to the Appellant that her medical document did not support her testimony of having attended the doctor because of ongoing problems with her IUD. [33] The RAD notes the Appellant further amended her testimony to state that she was able to obtain the medication over the counter at the drug store. The RAD finds the Appellant initially attempted to embellish her testimony. When she was confronted with inconsistencies she subsequently attempted to modify her testimony to offset her inconsistent testimony and deflect further inquiry. The RAD finds the Appellant in her submissions confirms there is no additional information in her medical record in respect of problems over a ten-year period with her IUD. The RAD finds the Appellant's testimony in respect of her medical documents and her problems with the IUD is lacking in credibility. [34] The Appellant in her submission attempts to explain and minimize the impact of the inconsistency addressed by the RPD, but does not address the actual credibility finding made in the Reasons. The RAD's review of the testimony supports the credibility finding of the RPD in this instance and the Appellant's argument must fail. The Abortion Certificate [35] The RPD found the absence of any record from the hospital or medical records that the Appellant had the abortion procedure performed detracted from the credibility of the Surgery Certificate8 submitted in evidence. The Appellant submits that she was forced to be a patient and therefore she was not provided with any record. The RAD is not persuaded by the argument of the Appellant. [36] The RAD notes the Appellant has also submitted her IUD Examination Booklet9 in evidence. The RAD notes the Appellant has submitted that the Family Planning officers took her to the hospital and this is why she would have no record of the procedure in her medical document from the hospital. The RAD has considered the documentary evidence in respect to medical records in China10 and finds it reasonable to believe a hospital record of the procedure does exist. Further to this the RAD finds it reasonable to expect if this procedure was performed as a result of a positive finding on an IUD check up, that the procedure would be noted in IUD Examination booklet in the appropriate location. The RAD notes the booklet contains an area titled, "Method of operation for birth control", but there is no entry describing the abortion procedure. [37] The RAD in reviewing the RPD decision finds it does not provide a fulsome explanation of whether it utilized other findings in the assessment of the "Surgery Certificate" submitted by the Appellant. The RAD finds that there is sufficient evidence in the record to place little weight on the Surgery Certificate. The RAD notes the even if one were to conclude the reasons given are not adequate to support the decision, the RAD must first seek to independently assess the evidence and arrive at its own decision. In this instance, while the RPD's reasons are not clearly expressed in its assessment of the Surgery Certificate, there are, nevertheless, reasons the RAD offers to find that the document is deserving of little evidentiary weight. [38] The RAD in assessing the genuineness of the document notes it is produced on plain paper and appears to be printed in a format that could be reproduced with any basic word processing program. In addition this document is not produced with known security features (beyond a "red stamp or seal" from the issuing organization). The RAD notes Justice Tremblay-Lamer of the Federal Court comments on "stamps" as a security instrument: "these official stamps may not be as secure as other authenticity features". (emphasis added) [39] In addition the RAD notes no samples of these documents are available in the IRB country documents for comparison to valid original documents. [40] The RAD further notes the Appellant through her oral testimony and actions in utilizing fraudulently obtained visas, has demonstrated she is not adverse to obtaining and utilizing fraudulent documents. Further to this the RAD notes the documentary evidence11 confirms that fraudulent documents are readily available to refugee claimants from China. [41] A 2005 Jane's Intelligence Review report suggests that Chinese and South Asian groups are "key players" in human smuggling and that providing forged documents is a "basic requirement" in this market. [42] The RAD is led to conclude the claimant has the means and ability to secure duplicitous documentation to assist in her quest for refugee protection in Canada. [43] The RAD has considering the claimant's actions in respect of the utilization of fraudulently obtained documents and the findings in respect of the Appellant's overall credibility. In addition, the fact that there was no entry in respect of the procedure in her IUD booklet, where it is reasonable to expect the procedure would be noted. The RAD assigns little weight to the "Surgery Certificate" as support for her allegations of forced abortion in China. [44] The RAD further finds it is reasonable to expect that there would be additional corroborative evidence in her IUD booklet or in the Appellant's hospital records to corroborate that the Appellant had an abortion procedure performed in China. The RAD supports the finding of the RPD in this instance and the Appellant's argument must fail. Failure to disclose Chinese passports [45] The RPD made a negative inference to the credibility of the Appellants for failing to disclose their genuine Chinese passports as evidence of their exit and travel from China. The Appellant submits they were not questioned about why they had not disclosed their passports and this is a denial of natural justice. The RAD is not persuaded by the argument of the Appellant. [46] The RAD notes that the Appellant's BoC narrative12 and documents associated with their initial claim for refugee protection filed with Citizenship and Immigration Canada13 were quite clear in stating the passports were not disclosed, but were taken by the smuggler. The RAD notes these documents were signed and acknowledged by the Appellants. The RAD finds the Appellant's statement that they were not questioned about why they did not disclose their passports makes little sense. [47] The RAD notes the Appellant was represented by experienced counsel who would be aware that the Appellant's identity and other central components of the claim would be an issue at the Appellant's hearing. As well counsel for the Appellant would be mindful of the obligation of s.11 of the Refugee Protection Division Rules, SOR/2002-228 (the Rules): 11. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. [48] The RAD finds the Appellants are in violation of Rule 11. [49] The RAD notes in its review of the audio recording of the hearing, the Appellant was questioned extensively about her exit from China and her travel with the smuggler. The RAD finds the Appellant's testimony in this area was hesitant and lacking in detail. The RAD in reviewing the record finds there were a number of issues that arose during the RPD hearing that were unable to be addressed through the absence of the Appellants' passports. These include, but are not limited to: a) Documentation of the Appellants' presence in China at the time they allege persecution. b) Documentation of the Appellants' exit from China. c) Documentation of the Appellants' travel route to Canada. d) Documentation of the Appellants' US visa. e) Documentation of the Appellants' previous travel. (i.e. Europe in July 2014). [50] The RAD notes that the decision of Mr. Justice Nadon, where he stated: I take this opportunity to add that it is entirely reasonable for the Refugee Division to attach great importance to a claimant's passport and his air ticket. ...it is to easy for a claimant to simply state that he has lost these documents or the facilitator has taken them.14 [51] The RAD finds on a balance of probabilities that the Appellants' statements that the smuggler took their passports are not credible. [52] The RAD does recognize that corroborating evidence is not always required to substantiate a credible claim to refugee protection. However, considering the credibility issues addressed in this claim, as well as the central role the Appellant's passport occupies in the Appellant's allegations of harm, corroborating evidence would have been helpful to support the notion that the Appellants' lives would be at risk in China. [53] The RAD does recognize that corroborating evidence is not always required to substantiate a credible claim to refugee protection. However, considering the credibility issues addressed in this claim, as well as the central role the passports occupies in documenting the issues as outlined above the passports or some other corroborating evidence would have been helpful to support the notion that the Appellants' lives would be at risk in China. [54] On the issue of corroborating evidence, the RAD wishes to note the Federal Court case in Bhagat,15 which states: Corroborating evidence is not always necessary to establish the applicant's subjective fear. The Board, however, determined that in the particular circumstances of this case, corroborating evidence of persecution was expected. An absence of corroborating evidence, then, permitted it to make a negative inference against credibility of the applicant. The respondent relies on Sheik v. Canada (M.E.I.) (C.A.), [1990] 3 F.C. 238, at page 244, for its argument that the Board did not err in law when making that conclusion: The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. [55] The RAD finds that the Appellant's testimony in respect to many of these issues would have been supported by the presence of the Appellants' passports in evidence. The RAD in considering the cumulative credibility concerns identified in this claim, finds the failure by the Appellants to disclose their passports further detracts from the credibility of their allegations. The RAD supports the finding of the RPD in this issue. IUD removed in Canada [56] The RPD found that the Appellant had delayed in the removal of her IUD following her arrival in Canada. The Appellant submits it took her time to wait for a doctor and there is no evidentiary basis on which to find there was a delay. The RAD finds the Appellant's argument has merit. [57] The RAD has previously commented on credibility issues surrounding the removal and re-insertion of the Appellant's IUD in China. The RAD finds the RPD conclusion in this issue is based on the plausibility of the Appellant obtaining health care coverage, securing a physician and attending an appointment for care. The RAD notes the Appellant was allegedly able to find a physician and have her IUD removed in China a few days following her IUD check up with family planning officials. The Appellant spent a little over one month in this process, in Canada. The RAD has no evidence that might allow it to compare to ease of accessing care in China to that in Canada. The RAD finds the Appellant's delay in removing her IUD in Canada does not appear to be unreasonable. The RAD finds the RPD made an unsustainable plausibility finding in this instance. Application for an oral hearing [58] The Appellant requests an oral hearing pursuant to Section 110(6) of the IRPA. Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [59] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [60] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence (Section 110(4)), in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [61] The Appellant has not submitted new evidence in support of her appeal. As such, the RAD must proceed without a hearing in her appeal, and her application for an oral hearing is denied. Summary [62] The Appellant has alleged that the RPD erred in rejecting her claim. Notwithstanding the error made by the RPD in drawing an improper implausibility conclusion in respect of the removal of the Appellant's IUD on arrival in Canada, the RAD finds after its review and assessment of all of the evidence in the record that the cumulative sustained adverse credibility findings and the demonstrative lack of subjective fear identified by the RPD are sufficient to confirm the RPD's overall determination. [63] The RAD finds that on the basis of the totality of the evidence in this appeal, the Appellants have not satisfied their burden of establishing a serious possibility that they would be persecuted or that they would be personally subjected to a risk to their lives or a risk of cruel and unusual treatment or punishment or a danger of torture by any authority in China. [64] Accordingly, this appeal is dismissed. The Secondary and Minor Appellant [65] The RAD has considered the appeal of the Second Appellant and the Minor Appellant. The RAD finds that their risk of harm is based on the Appellant's risk. Having found that the Appellant does not face a serious possibility of persecution, or a risk to life, the RAD finds that the Second Appellant and Minor Appellant are not in need of refugee protection or to be at risk of harm in China either. (signed) "Robert Bebbington" Robert Bebbington August 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). paras 54 and 55. 2 Exhibit RPD-1, RPD Record, pp. 14-25. 3 Ibid., pp. 523-533. 4 Ibid., p. 555. 5 Ibnmogdad v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 327; 2004 FC 321, Canada: Federal Court, 25 February 2004, available at: http://www.refworld.org/docid/4132e0144.html [accessed 11 January 2014]. 6 Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994. 7 Exhibit RPD-1, RPD Record, pp. 536-550. 8 Exhibit RPD-1, RPD Record, pp. 534-535. 9 Ibid., pp. 523-533. 10 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China, 31 October 2014, Item 3.3. 11 Exhibit RPD-1, RPD Record, NDP, item 3.24. 12 Exhibit RPD-1, RPD Record, pp. 14-25. 13 Ibid., p.48, 61. 14 Elazi v. Canada (Minister of Citizenship and Immigration), 191 FTR 205, [2000] FCJ No 212 (QL). 15 Bhagat v. Canada (Citizenship and Immigration) (2009 FC 1088), IMM-826-09, Date: October 29, 2009. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05019 TB5-05020 TB5-05021