TB6-02714

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 : TB6-02714 TB6-02715 TB6-02716 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXA.K.A. XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 11, 2016 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M Lewis Barrister and Solicitor 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 and principal Appellant), XXXX XXXX, (the male Appellant), and XXXX XXXX, (the minor female Appellant), are citizens of China. The female Appellant was the designated representative for her minor child. The Appellants' appeal the Refugee Protection Division (RPD) decision of February 10, 2016, that found that the Appellants were not Convention Refugees. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) upholds the RPD's decision that the Appellants are not Convention refugees nor persons in need of protection. Memorandum of Appeal [3] The Appellants submit that the RPD committed serious reviewable errors. [4] Did the member err in failing to consider relevant, probative, reliable documentary evidence before him? [5] Did the RPD member err in finding that the notice for an intrauterine device (IUD), Pregnancy Check, and Notice for sterilization are fraudulent? [6] Did the RPD member err in imputing the female Appellant's credibility because she misstated the date her IUD was inserted? [7] Did the RPD member err in his assessment of the Appellants residual profiles as person facing risks of persecution? [8] The Appellants submit that the RAD set aside the decision of the RPD and find that they are Convention refugees, based on the documentation contained, and the credibility of their claim. In the alternative, the Appellants respectfully request that the RAD refer the matter back to the RPD for redetermination. Background [9] The female Appellant and male Appellant married on XXXX XXXX, 2001 and the female Appellant gave birth to their daughter on XXXX XXXX, 2002. Two months later, the female Appellant was required to wear an IUD for birth control purposes. The female Appellant was required to wear a different model of the IUD in 2010, and this device caused significant physical problems. In spite of showing authorities the medical recommendations, the request to remove the new IUD was denied unless she accepted sterilization. In order to solve this issue, the female Appellant and male Appellant went through a "charade" divorce on XXXX XXXX, 2011, and the female Appellant was then granted permission to remove the IUD. [10] The Family Planning Officials (FPO) responded to a report that the adult Appellants were still living together, and had divorced only for the purpose of having the female Appellant remove her IUD. As a consequence the IUD was reinserted, and the female Appellant again began having health problems. When the problems worsened, the female Appellant sought permission from the FPO to remove the IUD without accepting sterilization. [11] In spite of finding a doctor who agreed to remove her IUD, the female and male Appellants agreed to leave China for the sake of her health. The Appellants could not make arrangements to leave China before an IUD examinations scheduled for XXXX XXXX, 2015. [12] When failing to attend her XXXX XXXX, 2015 examination, the FPO went looking for the female Appellant and could not find her. They left a notice directing the female Appellant to present herself for examination within three days, and when she failed to attend, they left a note of sterilization for either her or her husband. [13] The female Appellant and the minor Appellant left China, accompanied by the smuggler, on XXXX XXXX, 2015, and her husband left on XXXX XXXX, 2015 accompanied by the same smuggler. Since arrival in Canada, the Appellants learned that the FPO have taken some belongings from their house. [14] The Appellants will not accept sterilization as an option and want to have more children. They fear if they return to China they would be sterilized or alternatively the female Appellant will be forced to wear an IUD. The adult Appellants also fear the FPO would target her for punishment owing to their continued resistance. [15] The Appellants refugee hearing was held on November 6, 2015 and November 23rd, 2015, and in a decision of February 10, 2016, the RPD rejected their claim. The RPD concluded that the Appellants are not Convention refugees pursuant to section 96 of IRPA, as they do not face a serious possibility of persecution in China. The RPD also found that as there is no further evidence that the Appellants would satisfy the risks delineated pursuant to subsection 97(1) of IRPA, and they are not persons in need of protection. Admissibility of Evidence Submitted on Appeal [16] Section 110(4) of IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [17] It is for the Appellants to make full and detailed submissions in their Memorandum of Appeal about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellants.2 Application of section 110(4) [18] Section 110(4) establishes a disjunctive test.3 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [19] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.4 [20] As the RAD understands it, section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [21] Section 110(4) does not provide an opportunity for Appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.5 [22] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.6 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [23] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [24] In Singh,7 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza8 to the assessment of new evidence. While Raza predates the introduction of IRPA section 110(4), it is based on the nearly-identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.9 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).10 [25] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [26] Relevance is a basic condition for the admissibility of any piece of evidence.11 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [27] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.12 [28] For these reasons, the RAD will apply the following factors to consider the Appellants' proposed new evidence. It will first consider whether the evidence that passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. [29] The Appellant submitted an article from the Voice of America entitled "Millions in China Still Dealing With Aftermath of One-child Policy"13 dated March 1, 2016. The article meets the requirement of section 110(4). The Appellants submitted that although the article does not deal with the specific issue concerning the Appellants, it does speak to the issue of the retroactive effect of the adult Appellant's contravention of existing family policies prior to the passage of the new law.14 The Appellants submit that although this article refers to the retroactive payment of imposed fines, there is reason to believe that it will also apply retroactively to such penalties as sterilization. [30] The RAD accepts this document as new evidence and considers it within the body of the RAD decision. The Appellants submitted that they did not want a hearing under section 110(6) of IRPA, and the RAD concurs, and does not find it necessary to hold a hearing in order to deal with this article. New Evidence from the RAD [31] The RAD submitted two pieces of evidence to the Appellants, and requested a response to these two articles within seven days. The first article was a Library of Congress bulletin dealing with the passing, by the Standing Committee of China's National People's Congress (NPC), of a law with regard to Population and Family Planning. This law became effective on January 1, 2016.15 [32] The second article submitted was a Globe and Mail article dated April 3, 2016, dealing with the effect of the end of China's one child policy.16 [33] The Appellant responded to the new disclosure submitted by the RAD. The contents of the response will be dealt with in the body of the decision. ROLE OF THE RAD [34] The Appellants are supportive of the RAD's role as described in Huruglica.17 The decision of the Federal Court of Appeal in Huruglica 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. [35] The Court 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 s. 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 decision without hearing the evidence presented before the RPD. This recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because those cases require an assessment of credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [36] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. Merits of the appeal Relevant, Probative, Reliable documentary evidence The IUD booklet and Medical Documentation [37] The Appellant testified that she first began wearing an IUD in XXXX 2012. She then testified that she began having difficulty with the IUD in XXXX 2012 a month after the IUD was first inserted. When the RPD asked if she had used any form of birth control between XXXX XXXX, 2002 and XXXX 2012, the female Appellant stated that family planning officials required her to wear an IUD in XXXX 2002. When asked to explain this inconsistency between initial testimony and her subsequent testimony and the Basis of Claim (BOC),18 the female Appellant stated words to the effect that, she, "didn't know that." The RPD did not accept this as a reasonable explanation, and as a result found the IUD record 19submitted in documentation not genuine. To support this finding, the RPD also referred to previous documentation cited regarding the availability of fraudulent documents in XXXX province.20 [38] The Appellants submit that the RPD made credibility findings without any discussion of the documents submitted. These documents were: records of the IUD checkups, Outpatient medical record, notice for an IUD and pregnancy check, notice for sterilization, list of items confiscated, and the divorce certificate. The Appellants submit that the documentation showed that they went as far as divorcing in order to have the female Appellant's IUD removed. [39] The Appellant submitted Federal jurisprudence21 to support the submission that failure to mention relevant, probative, reliable evidence constitutes a reviewable error. The Appellants' submit that the decision should be overturned in compliance with relevant case law. [40] The RAD does not agree with the submission made by the Appellants. Some of the documentation was addressed on its face, and some were not. The RAD will deal with each of these documents in the course of its decision. [41] The RAD finds that the RPD's finding that the IUD booklet is not genuine based on female Appellant's testimony regarding the date of insertion of an IUD, is in error. The female Appellant's testimony that the IUD was inserted in 2012 instead of 2002 is a microscopic examination, and cannot be used, in its own right, to discount the IUD booklet given in documentation. This document has to be examined on its face and findings made in that examination. This inconsistency in testimony could be considered with other credibility issues in finding the Appellant is not credible, but cannot be used in isolation to find documentation not credible. The RAD makes this finding, giving recognition to the documentation quoted by the RPD regarding fraudulent documentation in China. [42] The documentation submitted regarding the date of insertion of the IUD, the BOC and IUD booklet, supports the female Appellant's revised testimony. This particular error does not merit a negative finding of the documentation. In addition, medical documentation22 to support the female Appellant's difficulty with the IUD, was not addressed by the RPD. This also is in error. [43] The RAD finds that the IUD booklet,23 and medical documentation24 of difficulties with the IUD are genuine, and support that the female Appellant had an IUD inserted in 2002, and had medical difficulties in 2014. The RAD also finds that these are not the determinative issues in this claim. The determinative issues will be addressed later in the decision. Notices from the Family Planning Office [44] The RPD drew a negative inference as to the authenticity of the FPO violation notices.25 The two notices of violation, XXXX XXXX, 2015 and XXXX XXXX, 2015, both indicated that the female Appellant would be was subjected to a forced abortion and that either the female Appellant for male Appellant must undergo mandatory sterilization. In support of this finding, the RPD noted the following: the female Appellant did not allege that she was pregnant at the time of the notices; therefore, the inclusion of the demand for mandatory abortion is not consistent with her circumstances. [45] The RPD noted that the penalties set out in the violation notices are at significant variance with the permissible penalties, and also describe intended measures that are illegal under Chinese law. The RPD quoted the National Documentation Package (NDP) to support that failure to take a pregnancy test is a fine of less than 200 RMB, which appears only to be triggered after failure to comply with a warning.26 The RPD noted that the initial notice indicated a fine of 500 RMB, not the maximum 200 RMB prescribed by law. The RPD also stated that the violation notices are simplistic black and red ink documents that are easily produced by any color printer. [46] The RPD quoted NDP documentation regarding fraudulent documentation to support this finding.27 The RPD also quoted NDP documentation stating that mandatory abortions in sterilizations, at least officially at the national level, are illegal in China and that officials have been disciplined for forced pregnancy determination in at least some cases. The RPD found that such illegal intentions would not be stated in an official notice due to the obvious risks for the official issuing the notice. [47] The Appellants submit that the discrepancy in the amount of the fine is very small. The Appellants also submit that the RPD acknowledged that, "there were instances where family planning authorities do not respect the law and their enforcement practices." Referring to NDP documentation,28 the Appellants referred to a range of coercive measures that have been used to enforce family planning policies, including mandatory abortions. [48] The Appellants also submit that fines for exceeding the prescribed 200 RMB have been imposed upon people who breach the family planning policies. The Appellants submit that there are greater known and accepted examples of far greater discrepancies. [49] The Appellants submit that the RPD erred in finding that the notices prescribed an illegal penalty on the male and female Appellants, and referred to documentation already referenced. The Appellants referred to Federal jurisprudence to indicate that the RPD conducted an overzealous and microscopic examination of the notices.29 The Appellants also submit that there was nothing implausible about the wording contained in the Notices;30 they were clearly conditional. They state that she must undergo an abortion if and only if her pregnancy is confirmed. [50] The Appellants submit that the RPD's observation that the violation notices are simplistic black and red ink, easily duplicated on any color printer, is speculative and is not supported by any NDP documentation. In addition, the RPD member did not declare specialized knowledge when addressing this issue. [51] The Appellant submitted that there is a presumption of authenticity afforded to foreign documents and quoted Federal jurisprudence to support this submission.31 As a result, the Appellants submit that the RPD's use of NDP documentation, regarding the ease of acquiring fraudulent documentation in China, to find the documentation fraudulent is not a valid ground to dismiss documentation submitted. The Appellants quote Federal jurisprudence to support this submission.32 It is therefore submitted that the RPD erred in all three of his reasons were imputing the two notices that were submitted into the evidence. [52] The Appellants submit that the RPD selectively cited item 5.15 in its reasons regarding illegal forced abortion. They submit that the documentation states that only terminating late-term pregnancies is illegal. They also submit that documentation indicates that XXXX tolerates, "unspecified remedial measures" in order to manage "unauthorized pregnancies."33 [53] In observing the documentation quoted above, and referring to the documentation quoted by the RPD and the Appellants, the RAD makes the following findings. [54] There is no indication in the documentation or testimony that the female Appellant is pregnant. For the notices referenced above to include a statement regarding once your pregnancy is confirmed, is not credible. In addition, the documentation indicates that the fine for failure to arrive for your IUD and pregnancy check is only triggered after initial notice has been ignored. The fine of 500 RMB was indicated on the initial notice of XXXX XXXX, 2015. The fine is 200 RMB according to the NDP documentation, referenced above, not 500 RMB. [55] The second notice from the family planning office, dated XXXX XXXX, 2015, is headed "Notice for Sterilization." Using the same reasoning as above, the RAD finds it not credible that this notice would be issued when there is no indication that the female Appellant was pregnant. Also, to submit a notice, in written form, that is clearly in contravention of the law is not credible. With respect to the Appellant's submission, the RAD finds that the submission that persecutory fines are enacted for breaching the family planning law of China are not relevant when discussing the prescriptive fines for missing the alleged IUD and pregnancy check by FPO. The RAD disagrees with the Appellant's reasoning regarding that she must undergo an abortion if and only if her pregnancy is confirmed. The RAD believes, on a balance of probabilities, that the intent of these alleged notices of violation are clear in stating that she will undergo an abortion after her pregnancy is confirmed. The RAD finds, on a balance probabilities, that the alleged notices referenced above, are fraudulent. [56] With respect to the Appellant's submission regarding the reasoning of the RPD concerning the issue that the notices of violation are simplistic, written in black and red ink, capable of being copied by any colour printer, the RAD must give deference to the RPD. The original documents were not available for scrutiny at the RAD appeal. In listening to the recording of the hearing, the RPD did not declare specialized knowledge on this issue. Although in error, the RAD finds that this is not the determinative issue in this refugee claim, or the principal finding in determining that the documents were fraudulent. Statements were made on these documents that are not credible. The RAD believes, on a balance of probabilities, that no foreign authority issued these documents. [57] The documentation referred to by the Appellants, and also by the NDP in its decision, indicates that coercive measures have been used to enforce family planning policies. The documentation does not describe how these practices have occurred, or the process used. The RAD finds that this does not rebut the findings made above regarding the alleged notices that were allegedly issued by the FPO. The RAD finds that the documentation submitted regarding notices from the FPO are fraudulent, on a balance of probabilities, and also finds that the adult Appellants were not wanted by the FPO or authorities in China. The RAD draws a negative inference about the Appellant's credibility given that they have willingly submitted fraudulent documentation to support their claim. [58] In regards to the documentation quoted by both the Appellants and RPD regarding the illegality of forced abortions, the RAD finds that the document is worded in such a way that supports the Appellant's claim that the termination of long-term pregnancies is illegal. The RPD's finding on this issue is not supported by the RAD. However, this does not negate the RAD's findings regarding the fraudulent nature of the documentation submitted. No documentation or testimony submitted to indicate that the female Appellant was pregnant, either short-term or long-term. As stated above, the RPD found that the wording of the alleged two violation notices, as well as the issuance and amount of fine being imposed is not supported by NDP documentation. Seized items [59] The RPD noted that no location was indicated on the List of Items Confiscated document.34 [emphasis added] No finding was made by the RPD. [60] The Appellants did not make specific submissions on this issue, only to indicate that it failed to address this document, and cited case law noted earlier in this decision [61] The RAD observed the document quoted above, and makes the following finding. The RAD finds it not credible that the names of the alleged owners were listed as well as a serial number for the document, but no indication of the location of where this equipment was allegedly seized. The RAD also notes that no reason for the seizure of the documents was given. The RAD finds, on a balance of probabilities, that this document is not genuine, and draws a negative credibility finding regarding the Appellants credibility. Divorce Certificate [62] The RPD made no finding on this document. The Appellants did not address this document in any meaningful way, other than to state it was one of the documents not addressed by the RPD. [63] Although the RAD does not have benefit of observing the original documents, it finds no reason, on the surface, to doubt the veracity or genuineness of the documentation.35 The RAD finds that this is not a determinative issue in this claim. Well-founded Fear of Persecution Note [64] Both the RPD and the Appellant's counsel made extensive findings in submissions on female Appellants' risk of a forced IUD, and/or sterilization should she return to China. There were also findings and submissions made on the potential risk of the Male Appellant being sterilized because of the same policy. [65] A Library of Congress article, dated January 25, 2016, and referenced above in this decision, was submitted to the Appellants on April 18, 2016. This article outlines the passing of a new law; China: To Child Policy and Law on December 27, 2015, and in effect as of January 1, 2016. This new law ends China's one child policy. The new article 18 in this law provides that the state advocates that every married couple have two children and that more children may be allowed when the requirements specified by laws and regulations are met. The new article 25 provides that all couples who bear children in compliance with laws and regulations may be granted extended leave or other benefits. It further states that couples who bear no more than two children will no longer be required to obtain birth permits from government authorities. [66] The reasoning behind the RPD's decision regarding the Appellant and the one child policy of China, specifically in XXXX, is moot. The new law has changed the framework of the birth regulations in China. [67] The RAD finds, that many of the submissions made by the Appellants regarding this issue have also become moot with the passing of this new law/legislation. One of the issues that still merits some decision by the RAD will be discussed below under the heading of retroactivity. Retroactivity [68] The Appellants submit that the RPD erred in his reasons by basing them on the anticipated liberalization of China's family planning policy as they relate to the Appellants. It is submitted that the RPD's decision should be based on the conditions as existed at the hearing on November 23, 2015, and not as they may exist in the future. As stated above this argument becomes moot with the passing of the legislation. [69] In order to support their submission that there still may be persecution, they submitted a news article, referenced and noted above in this decision, from Voice of America dated April 17, 2016. The article submitted outlines a story of a couple who were fined a persecutory amount of money as a result of their breach of the one child policy of China. The article indicates that, in this instance, the imposition of a fine would remain in spite of the change in the law in China. The Appellant submits that although this article refers to fines enacted prior to the changing of the law, there is an inference or possibility that this will extend to other decisions made prior to the enactment of the legislation. [70] The Appellants submit that the new evidence before the Immigration and Refugee Board (Board) suggests that the two child policy will not cure past violations and any assigned penalties. Hence the female and male Appellants now have the requisite number of children in violation of the previous policy, and will still face for sterilization or, at the very least, the female Appellant will face the forcible insertion of an IUD. [71] As noted and referenced above, the RAD submitted two articles to the Appellants, and requested submissions within seven days. The first article, from the Library of Congress was addressed above. The second article from the Globe and Mail, noted and referenced above in this decision, deals with the "ghost children" of China. The article notes that the authorities in Beijing quietly began to strip away one of the last vestiges of a decade's long policy responsible for untold hardship in China-allowing Ms. Kuang and others like her to give their children legal status without first paying punishing fines. The article went on to describe how the children were entered into the Hukou book. It notes that on social media she and other parents swapped tales indicating that some districts are registering children and others were not; creating a very frustrating situation. The article also notes that for several months several areas of China have already registered second and third born children. [72] The Appellants submitted that the documents submitted by the RAD did not show a reduced risk of persecution suffered by the Appellants on the ground of their breach of China's family planning policies. The Appellants further submit that the Board has not provided any new evidence as to how governments at the local level, especially in XXXX province, plan to implement the two child policy, and how far they will relax the requirement to wear an IUD and/or mandatory sterilized or abortion once the maximum number of allowed children is reached. [73] The Appellant submits that given the family profile, they are vulnerable. The male Appellant already has three children in total, and the notice of sterilization has been issued against them. [74] The RAD found the Notice of sterilization referred to by the Appellant was fraudulent, and gives it no weight. In addition, no documentation, as stated earlier in this decision, was given to support that the male Appellant has suffered any persecution, or had received any documentation, regarding his alleged two children from a previous marriage. [75] The Appellants submit that the Globe and Mail article is irrelevant because their children are not "ghost" children. The Appellant also submits that the exemption cited in the article refers to Beijing, and may not apply to the Appellants' home province of XXXX. [76] The RAD notes that the Voice of America article submitted by the Appellants does not apply to them. As stated below, both the Appellants and the RAD's article point to the difficulties of transition with the passing of the new law. There is no government documentation available to the RAD to outline this transition from the one child policy of China to the two child policy. The RAD finds that the documentation available is mixed, but there appears to be some positive resolution and positive solutions occurring. The RAD finds that any finding or submission, on a specific situation used to predict how this transition will take place, is speculative. The Appellant's reference a recent news article from Lifenews36 that deals with continuing abortions in China, and the speculation that they will continue in spite of the new two child policy. [77] Without specifics, the RAD is unable to comment on the veracity or speculative aspect of this submission by the Appellants. [78] The RAD finds, given the basis of the new law, and on a balance of probabilities, that the Appellants in this case would not suffer the persecution alleged in their claim. The issue of the forced IUD becomes moot because the female Appellant would not be restricted from having another child. The Appellants submit that they have met their birth quota. Under the old regulations, the RAD concurs that the female Appellant had met her quota and could not have another child without permission, or paying a fine. The Appellants submit, making reference to the male Appellant having had previous children from a previous marriage, that they have met their birth quota. No documentation was submitted to support this submission. No documentation submitted that male Appellant had suffered any consequences from the two birth children of a previous marriage, or that a restriction had been placed on him in his current circumstance. As a result, the RAD finds, on a balance of probabilities, that the submission has no merit and under the circumstances is purely speculative. Disposition [79] The RAD upholds the RPD decision, and dismisses the appeal pursuant to section 111(1)(a) of the IRPA. The Appellants are not are not Convention refugees nor persons in need of protection. (signed) "Robert S. Garner" Robert S. Garner May 11, 2016 Date 1 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, at para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2014, 2015 FC 895, at para. 19. 4 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, at para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, [Singh]. 5 Singh, supra, footnote 4, para. 54. 6 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., at para. 16 [Raza] 7 Singh, supra, footnote 4, at para. 64. 8 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 9Ibid., at paras. 13-15. 10 Singh, supra, footnote 4, at para. 64. 11 Singh, supra, footnote 4, at para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, looseleaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para. 64. 12 Singh, supra, footnote 4, at para. 48. 13 Exhibit P-2, Appellant's Record, Memorandum of Appeal, at p. 130, Voice of America, dated March 1, 2016 14 Exhibit P-3, Library of Congress, "China" Two Child Policy Becomes Law.", January 8, 2016. 15 Ibid. 16 Exhibit P-4, The Globe and Mail, "End of China's one-child policy is slowly giving 'ghost children' identities, April 3, 2016. 17 M.C.I. v. Huruglica, Bujar (F.C.A.., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 18 Exhibit, RPD-1, RPD's Record, at pp. 17-19. 19 Exhibit RPD-1, RPD's Record, at pp. 373-380. 20 Exhibit, RPD-1, RPD's Record, National Documentation Package (NDP) for China (30 October, 2015), item 3.22, Responses to Information Requests (RIR). CHN104579.E. 21 Yu, Ming Kuang v. M.C.I. (F.C.T.D., no. IMM-3696-97), Teitelbaum, June 15, 1998.,Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No 1425, 157 FTR. 35. 22 Exhibit RPD-1, RPD's Record, at pp. 381-394. 23 Ibid. 24 Exhibit RPD-1, RPD's Record , at pp. 373-380. 25 Exhibit RPD-1, RPD's Record , at pp. 395-398. 26 Exhibit.RPD-1, RPD's Record, National Documentation Package (NDP) for China (30 October, 2015), item 5.14, RIR, CHN104953.E 27 Exhibit.RPD-1, RPD's Record, NDP for China (30 October, 2015), item 3.22, CHN104579.E. 28 Exhibit.RPD-1, RPD's Record, NDP for China (30 October, 2015), , item 5.5, RIR, CHN104953.E. 29 Cao, Ze Tong v. M.C.I. (F.C., no. IMM-8396-11), Mactavish, June 5, 2012, 2012 FC 694. 30 Exhibit, RPD-1, RPD's Record, at pp. 395-398. 31Cai, Bai Hong v. M.C.I. (F.C., no. IMM-5208-13), Fothergill, May 4, 2015, 2015 FC 577., Ramalingham v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No 10. 32 Lin v. Canada (Minister of Citizenship and Immigration), 2012 FC 157. 33 Exhibit P-2, Appellant's Record, at p. 158, Exhibit.RPD-1, RPD's Record, NDP for China (30 October, 2015), item 5.15. 34 Exhibit RPD-1, RPD's Record, at pp. 399-400. 35 Exhibit RPD-1, RPD's Record , at pp. 369-371. 36 Exhibit P-5, Response to evidence from the RAD, Lifenews. "China Aborts 23 Million Unborn Babies Every Year, Forced Abortions Continue Unabated.", April 15, 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-02714 TB6-02715 TB6-02716