TB6-15097

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 : TB6-15097 TB6-15098 TB6-15099 Private Proceeding / Huis clos Redetermination of the Appeal - Nouvelle décision relative à l'appel Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 30, 2018 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M. Lewis 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 (the "female Appellant"), XXXX XXXX (the "male Appellant") and XXXX XXXX (the "minor Appellant"), who are all nationals of China, appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own decision that they are Convention refugees or persons in need of protection, or, in the alternative, refer their claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to paragraph 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 Appellants alleged before the RPD that they face persecution in China because the family has repeatedly violated state family planning policies.1 [4] The Appellants' hearing for refugee protection was held on August 11, 2016. In a decision on September 30, 2016, the RPD rejected the Appellants' claim finding that the Appellants were not credible. The Appellants submit that the RPD erred in drawing its credibility findings and in its treatment of the documentary evidence. ROLE OF THE RAD [5] For questions of fact, mixed fact and law, and law, the RAD has applied the standard of correctness as per Huruglica. In assessing issues involving credibility of oral testimony, the RAD may apply the RAD modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD Err in its Assessment of the Appellants' Credibility Findings? [6] The Appellants submit that the RPD erred in drawing an adverse credibility finding in relation to: * The finding that the Birth Certificates were not genuine because the text alignment and the font on their certificates did not accord with that of the minor Appellant's Birth Certificate. * The RPD failed to assess the authenticity of the Appellants' documents submitted in support of their claim, in relation to the document itself. * The finding that the absence of the names of the adult Appellants' two daughters in their Temporary Resident Visa (TRV) application form and other Immigration, Refugees and Citizenship Canada (IRCC) documentation impugned their credibility with respect to their family profile. * The finding that there are no photographs showing all five members of the family together. * The finding that the Appellants were not being sought by the Public Security Bureau (PSB) and hence, they did not require a smuggler to exit China. * The implausibility of their payment to the smuggler, and the Appellants' delay in leaving China. Procedural Matters [7] The RAD notes that the Immigration and Refugee Board (IRB) has recently released country documentary evidence that addresses the information and content contained in Chinese birth certificates.2 The RAD requested that the Case Management Officer (CMO) disclose the document to Counsel for the Appellants as well as the representative of the Minister of Citizenship and Immigration. The RAD requested that they review it and return submissions in reference to the Birth Certificates disclosed for the adult Appellants' two children in China. This disclosure was sent to the respective parties on June 7, 2018, requesting a response by June 15, 2018. Following the deadline for submissions, the CMO subsequently contacted Counsel for the Appellant by telephone to remind them about the request for submissions. Neither party responded to the RAD's request for submissions. The Family Composition Birth Certificates [8] The RPD assigned no weight to the Birth Certificates3 naming the family's alleged daughters given the absence of these children at the hearing, and their absences on their family members' visa applications and IRCC intake forms. The Appellants submit that the RPD erred in finding that the font and alignment of the documents were fatal to their authenticity. They further argue that the RPD has cited no authority when stating that only one typeface appears on Chinese birth certificates. With respect to the alignment, they submit that, upon examining the birth certificates, it appears that they are templates, and that the specific information of each newborn is typewritten onto the certificate. As such, it is submitted that there is nothing unusual about the variation in alignment. The RAD is not persuaded by the argument of the Appellants. [9] The RAD notes in its review of the record that the RPD finding in this situation is based on a series of findings surrounding the existence of the Appellants' two daughters/sisters in China. The RAD finds the RPD could have related its findings in a clearer manner. However, even where the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to independently assess the Appellants' documents. The RAD finds that it is provided with jurisprudence in Huruglica4 that would allow it to independently assess the documents. Birth Certificate of the Child Born XXXX XXXX XXXX XXXX XXXX [10] The RAD has reviewed this document and compared it with the documentary evidence.5 The documentary evidence sets out descriptions and changes in the composition of birth certificates issued by the Peoples Republic of China and notes: Version Two: Introduced in 1999. Security feature added: A colourless, fluorescent anti-counterfeiting "five-point star" symbol that shows under ultraviolet light was added on the upper right of the round "Chinese Mother and Child Health" symbol. A few words in the first version of the Medical Certificate of Birth were also revised: The English translation of the Chinese for "Birth Certificate No." at the bottom of the "Medical Certificate of Birth" was changed from "Birth No." to "Birth certificate No.", and the small "c" in "china" in the English explanation on the right side of the Medical Certificate of Birth was changed to a capital "C". [emphasis added] [11] The RAD additionally notes that resident identity cards (RICs) for Chinese citizens in 1998 contained fifteen digits.6 [12] The RAD notes that the Birth Certificate submitted in evidence was issued in 1998. The RAD notes the following inconsistencies associated with this document: * The Appellants' RIC numbers entered on the birth certificate display eighteen digits. The documentary evidence notes: Beginning in 2000, the Resident's Identity Card number on the Medical Certificate of Birth increased from 15 digits to 18.7 * The Birth Number on this document contains a letter "L" in front of the number. The RAD notes the documentary evidence confirms: 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, an "A" was placed in front of the number, while in 2001 a "B" was placed in front of the number, and so on.8 The RAD finds the documentary evidence confirms that the Chinese government did not place letter designations in front of the Birth Number on birth certificates issued in 1998. * As noted above, the English translation of "Birth Certificate No." in Chinese at the bottom of the "Medical Certificate of Birth" was changed from "Birth No." to "Birth certificate No.", and the small "c" in "china" in the English explanation on the right side of the Medical Certificate of Birth was changed to a capital "C" in 1999. The RAD notes that the 1998 birth certificate in evidence contains information that was placed on birth certificates beginning in 1999. [13] The RAD finds when it considers the inconsistencies on the face of this document with the statements in the documentary evidence, that there is sufficient persuasive evidence to assign the Birth Certificate no evidentiary weight. The RAD further finds, on a balance of probabilities, that the Appellants have submitted a fraudulent document in their quest for refugee protection. The RAD notes that where there is sufficient evidence to cast doubt on a document's authenticity, whether because of an irregularity on its face or the questionable circumstances in which it was obtained or provided, a document may be assigned little (or no) weight, without expert verification or where such verification is inconclusive.9 The RAD also notes that submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the Appellants, especially when they are interrelated,10 and on the overall credibility of the Appellants.11 Birth Certificate of the Child Born XXXX XXXX XXXX XXXX XXXX [14] The RAD has reviewed this document and compared it with the documentary evidence. The RAD notes that the Birth Certificate submitted in evidence was issued in 2013. The RAD notes the following inconsistencies associated with this document: * The RAD notes that the document for the third child begins with the letter "H." The RAD finds that in accordance with the documentary evidence, the Birth Certificate for the adult Appellants' alleged third child, born XXXX XXXX XXXX XXXX XXXX, should appear with the letter "N" placed in front of the Birth Number. [15] The RAD finds the Birth Certificate for the adult Appellants' second child is not consistent with the information set out in the documentary evidence. The RAD finds that when it considers the inconsistency on the face of the document, in concert with the findings in relation to the Birth Certificate of the Appellants' alleged first child, there is sufficient evidence to assign the Birth Certificate of the Appellants' alleged third child no evidentiary weight. The RAD further finds, on a balance of probabilities, that the Birth Certificate of the child born XXXX XXXX XXXX XXXX XXXX is not a genuine document. The Hukou [16] The RPD found that while the hukou12 submitted in evidence did contain an entry for the adult Appellants' oldest daughter, it was not sufficient to overcome: * the credibility concerns in the claim, * the fact that hukou documents contain very limited security features, * the fact that fraudulently obtained hukous are readily available, and * that the document was only capable of confirming the existence of a second child. The current two-child policy in China would not place the Appellants in jeopardy with the family planning authorities. [17] The Appellants submit the hukou supports the existence of the Appellants' oldest daughter in China. They further argue that they provided a reasonable explanation as to why their youngest daughter is not registered in the hukou, and that the RPD erred when it did not consider that finding. The RAD is not persuaded by the argument of the Appellants. [18] The RAD has reviewed the hukou document and finds that as much as the adult Appellants' oldest daughter is recorded in the document, the documentary evidence confirms that obtaining hukous by fraudulent means, as well as registering fraudulent information in a hukou, is easily done in China.13 The RAD further notes that the documentary evidence confirms that entering an individual's data into the hukou is a relatively simple task. 7.2.5 Documents required for hukou registration According to Fei-Ling Wang, in order to acquire hukou registration, one must produce birth papers; however, to acquire a duplicate or a replacement hukou booklet, a personal identity card, some other identification papers or even local officials' approval, are usually sufficient.14 [citation omitted] [19] The RAD notes that the Appellants' family hukou was issued in 2014, hence, it is very likely a subsequent or re-issued document. The RAD further notes that the Appellants have submitted a fraudulent Birth Certificate in their refugee claim and the RAD finds it reasonable to believe the same document may have been utilized to register the oldest daughter's information in the hukou. The RAD finds that when it considers the documentary evidence in respect of hukou fraud, as well as the Appellants' use of fraudulent documents in support of their claim, there is an evidentiary basis to assign little weight to the hukou document presented in evidence as support for the existence of the adult Appellants' oldest daughter in China. [20] The RAD agrees with the finding of the RPD in this issue and the Appellants' argument must fail. The Sterilization Notice [21] The RPD found the Sterilization Notice15 submitted by the Appellants was not a genuine document. The Appellants submit that the RPD failed to consider their supporting documentary evidence. They argue that the RPD partially based its decision to give little weight to their documents on its finding that there is a prevalence of fraudulent documents in China. They further argue that the RPD has failed to demonstrate that the notice was fraudulent. The RAD is not persuaded by the argument of the Appellants. [22] While the RAD finds that the RPD's treatment of the Sterilization Notice is not fulsome, the RAD finds that the jurisprudence requires the RAD to conduct its own assessment of the evidence in the record. [23] The RAD notes that forced abortions and sterilizations are banned in China.16 The RAD finds it reasonable to believe that if the family planning authorities were subjecting one of the Appellants to the demand of sterilization, that on a balance of probabilities, this would not be in the form of a written notice. The RAD also finds it unlikely that such a document would be issued in light of the Appellants' allegations that the female Appellant was forcibly taken for an abortion. The RAD finds that the tone of the notice submitted by the Appellants, which requests them to appear for sterilization, seems highly inconsistent with their allegations that they were forcibly taken, detained, and that the female Appellant was forced to undergo an abortion. The RAD has reviewed the record and notes that the Appellants have not tendered a similar notice which required that they submit to an abortion. [24] The RAD acknowledges that various sources in the country reports indicate that in some instances, local officials coerce women to have abortions or undergo sterilization in the context of enforcing family planning policies. However, the same reports indicate that forced abortion and forced sterilization became illegal in China in 2012. [25] While it is true that the documentary evidence does indicate that notwithstanding the law prohibiting the use of forced sterilization and abortion as a means of family planning, there have been several reports of women who have been subjected to forced sterilization and/or abortions in various parts of China. The RAD finds that these incidents tend to occur in rural areas where local officials coerce women to have abortions or undergo sterilization in the context of enforcing family planning policies. The RAD notes that the documentary evidence reveals that the application of family planning regulations remains highly localized in nature. There are variations from one province or area to the next, since central government regulations specify that provincial and local governments can adapt and implement the national guidelines to the area.17 [26] In addition, the RAD has reviewed the documentation on violations and enforcement of the directive. The RAD notes that while there are some documented incidents where officials were not sanctioned for violations of the law, there are documented cases in which officials were punished for non-compliance with the law banning forced pregnancy termination.18 The RAD finds this indicates there is a willingness by the authorities to change past practices. [27] The RAD further notes that the October 2015 United Kingdom Home Office Report on family planning states that while there have been reports in the past of unlawful crackdowns by local officials in a small number of provinces and areas resulting in women, and sometimes men, being forcibly sterilised, the last such crackdown took place in spring 2010. The UK Home Office Report also states that, in general, for female returnees, there is no real risk of forcible sterilisation or forcible termination in China.19 [28] The RAD has reviewed the documentary evidence and notes that there is insufficient persuasive evidence that forced sterilization has occurred in the Appellants' home province of Shandong. The RAD notes that many of the documents in the record refer to reports of language promoting first-trimester, mid-term, and late-term abortions as a "remedial measure," and the use of coerced abortion as a form of family planning enforcement. The RAD acknowledges these statements in the documents, but notes that there is no persuasive evidence before it to indicate that the female Appellant is pregnant and faces this particular risk if she returns to China at this time. In Summary [29] The RAD notes: * Forced abortions and sterilizations are banned in China.20 * In light of the above noted ban, if family planning authorities were subjecting one of the Appellants to the demand of sterilization, this would not be so blatant as to be in the form of a written notice. * The tone of the notice seems highly inconsistent with the Appellants' allegations that they were forcibly taken, detained, and that the Principal Appellant was forced to undergo an abortion. * A review of the documentary evidence reveals that there is no persuasive evidence before it to indicate that sterilization is being utilized as a form of family planning enforcement in Shandong province at this time. * The RPD noted that fraudulent documents were readily available in China. [30] The RAD notes that the prevalence of fraudulent documents does not mean that every single document from China is necessarily false. However, the RAD finds in the context of the concerns noted above, that it must consider this document with caution. The RAD finds there is an evidentiary basis to undermine the credibility of the Sterilization Notice and to assign little evidentiary weight to the document as support for the Appellants' allegations that they are being sought for sterilization by the family planning authorities in Guangdong. The RAD agrees with the finding of the RPD in this issue and the Appellants' argument fails. [31] The RAD finds when it considers these findings in conjunction with the observations of the RPD in respect to the birth certificates, that the actions of the Appellants in submitting fraudulent documents seriously undermines their credibility as well as the central basis of their claim. The RAD notes that the adult Appellants' allegations that they have three children and they are at risk of sterilization from family planning authorities in China are not supported by the Appellants' own evidence. [32] The RAD notes that the current family planning laws in China allow couples to have two children. The RAD finds the evidence confirms the Appellants have one child. They have stated in their oral testimony that they wish to have additional children. The RAD finds the Appellants can return to China, and if they choose to have an additional child, they will not face a risk of persecution from family planning authorities. In Summary [33] When considering in totality the cumulative adverse credibility findings noted above, the RAD finds, on a balance of probabilities, that the Appellants' evidence with regard to central allegations in China are neither credible nor trustworthy. [34] The RAD notes that the Federal Court held in Sheikh21 that: ...even without disbelieving every word [a claimant] has uttered, a ... panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim.... In other words, a general finding of a lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony. [35] The RAD agrees with the RPD and finds that, in light of the cumulative adverse credibility findings, the Appellants are not credible and that overall their allegations lack veracity. When considering the facts and evidence of this case in totality, the RAD finds that there is not a serious possibility of persecution for the Appellants, nor would they be subjected personally, on a balance of probabilities, to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should they return to China. Accordingly, the Appellants are neither Convention refugees nor persons in need of protection. CONCLUSION [36] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Robert Bebbington" Robert Bebbington July 30, 2018 Date 1 Exhibit RPD-1, RPD's Record, Exhibits 2-4, pp. 19-63. 2 Exhibit RAD-1, RAD Disclosure, Member's Directions, Response to Information Request (RIR) CHN106035.E, China: Security features of birth certificates, including the meaning of the alphanumeric code (2000-December 2017), Immigration and Refugee Board of Canada (26 January 2018). 3 Exhibit RPD-1, RPD's Record, Exhibit 8, pp. 408-411. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Exhibit RAD-1, RAD Disclosure, Member's Directions, Response to Information Request (RIR) CHN106035.E, China: Security features of birth certificates, including the meaning of the alphanumeric code (2000-December 2017), Immigration and Refugee Board of Canada (26 January 2018). 6 Exhibit RPD-1, RPD's Record, Exhibit 5, National Documentation Package (NDP) for China (31 May 2016), Item 3.20, RIR CHN43360.E, Immigration and Refugee Board of Canada (24 February 2005). 7 Exhibit RAD-1, RAD Disclosure, Member's Directions, Response to Information Request (RIR) CHN106035.E, China: Security features of birth certificates, including the meaning of the alphanumeric code (2000-December 2017), Immigration and Refugee Board of Canada (26 January 2018). 8 Ibid. 9 Adar, Mohamoud Omar v. M.C.I. (F.C.T.D., no IMM-3623-96), Cullen, May 26, 1997; Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002; Mohanarajan, Sriahilandtharanathan v. M.C.I. (F.C.T.D., no. IMM-5482-00), Simpson, November 6, 2000. 10 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002. 11 Gochez, Julio Cesar v. M.C.I. (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. 12 Exhibit RPD-1, RPD's Record, Exhibit 8, pp. 422-431. 13 Exhibit RPD-1, RPD's Record, Exhibit 5, NDP for China (31 May 2016), Item 3.22, RIR CHN104579.E, Immigration and Refugee Board of Canada (21 October 2013). 14 Ibid, Item 3.25, Immigration and Refugee Board of Canada (February 2005), p. 5. 15 Exhibit RPD-1, RPD's Record, Exhibit 9, pp. 446-447. 16 Exhibit RPD-1, RPD's Record, Exhibit 5, NDP for China (31 October 2016), Item 5.15, RIR CHN105051.E, Immigration and Refugee Board of Canada (4 March 2015), pp. 1-2. 17 Ibid, Item 5.7, Australia. Refugee Review Tribunal (8 September 2013). 18 Ibid, Item 5.15, pp. 1-2, 6-7. 19 Ibid, Item 1.9, United Kingdom. Home Office (July 2015). 20 Ibid, Item 5.15, pp. 1-2. 21 Sheikh, Abdulhakim Ali v. M.E.I. (F.C.A., no. A-521-89), MacGuigan, Iacobucci, Desjardins, July 4, 1990, para 8. Reported: Sheikh v. M.E.I., [1990] 3 F.C. 238 (C.A.); 11 Imm. L.R. (2d) 81 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-15097 TB6-15098 TB6-15099