TC1-03509

RAD File / Dossier de la SAR : TC1-03509 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 1, 2021 Date de la décision Panel G. Cohen Tribunal Counsel for the person who is the subject of the appeal Stacey M. Duong Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX, claims to be a citizen of China and is seeking refugee protection in Canada based on the risk of persecution and/or harm (i.e. a risk of death, a risk of cruel and unusual treatment or punishment, or a danger of torture) that he would face regarding his alleged political opinion and activism in relation to land expropriation in China. [2] The Appellant's claim for refugee protection was rejected at the Refugee Protection Division (the "RPD"). In doing so, the RPD raised credibility concerns with the Appellant's evidence and concluded that when these were considered cumulatively, his actions were inconsistent with his alleged fear and did not reflect an anti-government opinion based on land expropriation, such that he is not of interest to Chinese authorities or any other alleged agent of persecution. [3] The Appellant is appealing the RPD's rejection of his refugee claim on the basis that, among other things, the RPD erred in its decision. DECISION [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "IRPA") the appeal is dismissed.1 The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [5] The RPD heard the Appellant's refugee claim on January 11, 2021 and rejected it in a written decision on March 23, 2021. The RPD found that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS The Role of the Refugee Appeal Division (the "RAD") [6] Jurisprudence provides that the RAD is required to undertake an independent assessment of the evidence and reach its own determination, including as to whether the RPD made the correct decision.2 [7] Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.3 In the current case, given the lack of evidentiary advantage, I see no reason to show deference to the RPD's findings. As such, I have applied a correctness standard and arrived at independent findings and conclusions based upon my assessment of the evidence.4 No New Evidence Submitted or Oral Hearing Requested [8] The Appellant has not submitted new evidence or requested an oral hearing on appeal to the RAD, pursuant to subsections 110(4) and (6) of IRPA.5 Determinative Issues [9] Overall, this appeal examines whether the RPD erred in determining that the Appellant does not face a serious possibility of persecution or a risk of harm in China (i.e. a risk of death, a risk of cruel and unusual treatment or punishment, or a danger of torture). Ultimately, I agree with the RPD and find its overall determination correct, notwithstanding noting some analytical errors therein, and therefore dismiss the appeal. [10] The overarching issue in this case at the RPD was whether the Appellant is a Convention refugee or a person in need of protection, pursuant to sections 96 and 97(1) of IRPA. In that regard, the RPD determined, among other things, that the Appellant's evidence raises significant credibility concerns, which when considered cumulatively severely undermine his refugee claim. This includes the Appellant's failure to credibly establish that his farmland was expropriated, his reavailment in China, his delay in making a refugee claim, and inconsistencies pertaining to his alleged political opinion and related activism. [11] Additionally, the RPD found that the Appellant's allegations and related evidence do not establish a nexus with a Convention ground. As such, the determinative issues at the RPD were credibility, particularly as this relates to the Appellant's alleged fear and risk of persecution and harm regarding his political opinion or activism and land expropriation, as well as the lack of a nexus with Convention grounds. The same issues are determinative of this appeal at the RAD, notwithstanding my consideration of the issues and arguments raised by the Appellant. [12] According to the Appellant, at issue is whether the Appellant is credible, and whether his refugee claim has a nexus with a Convention ground. Furthermore, the Appellant has not taken issue with the additional findings made by the RPD beyond those identified in its argumentation, including with respect to the Appellant not being of interest to Chinese authorities, and his inconsistent evidence therein. [13] Based on the analysis herein, I find the RPD's overall determination correct and dismiss the appeal. The RPD is correct that the Appellant's refugee claim lacks a nexus with Convention grounds [14] The RPD found that the Appellant failed to establish a nexus between his allegations and a Convention ground, or a profile of someone with an anti-governmental political opinion due to land expropriation that amounted to persecution. In this regard, the RPD correctly referenced relevant Federal Court jurisprudence in support of its conclusions. [15] In Huang,6 Justice Gagne noted that the Federal Court has found that protestation in a land expropriation context demanding fair compensation does not necessarily give rise to persecution, just as shouting anti-government slogans does not necessarily create a nexus with a Convention ground. The Federal Court further found that even if it accepted that the refugee claimants were wanted by authorities (which has not been established in this case), they had only established that they would be prosecuted for contravening a law of general application (i.e. participating in an illegal gathering). Moreover, the Federal Court noted that there is no evidence to suggest that those who have opposed land expropriation are systematically subjected to treatment amounting to persecution. [16] In Ni,7 Justice Walker considered the Supreme Court of Canada's decision in Ward,8 with respect to a broad definition of 'political opinion' and nonetheless confirmed that the Chinese law of expropriation is a law of general application and refugee claimants bear the onus of establishing that it is persecutory, which the Appellant has not done in this case. Prosecution for obstructing government officials does not reflect holding a particular political opinion or political opposition to governmental policy. Moreover, the Federal Court noted that participation in such gatherings and/or shouting slogans does not demonstrate opposition to the government's law or policy generally, but rather is focused on the specific issue of compensation.9 [17] As such, the Appellant would not face persecution, but may face prosecution for his actions. In accordance with the Federal Court jurisprudence in this regard, I find that the Appellant failed to discharge his onus of establishing that Chinese expropriation law is inherently invalid and non-neutral or that the law would be applied against him in a persecutory manner.10 Moreover, the Appellant failed to establish with credible or persuasive evidence that the law in China would be used against him due to perceived political dissent rather than a dispute over compensation due upon expropriation. [18] Ultimately, the Appellant's dispute is a monetary dispute and not a political one. As Justice Phelan stated in You, "The real dispute was over money not a grounds under the Convention. The monetary dispute cannot be dressed up as a political dispute just because it is against a government decision."11 I agree and find that this further supports the reasoning provided by the RPD. [19] There are several other examples of the Federal Court providing similar conclusions, as in Jiang,12 where the Court determined that the basis for such a claim, involving expropriation of property, is not founded on a Convention ground, and the expropriation law in question is presumptively valid and neutral. Given that the Appellant has not rebutted this presumption or established that the law would be used against him due to perceived political dissent or in a persecutory manner, and in light of credibility concerns raised by the RPD with the Appellant's evidence, I find that the RPD did not err in this regard. [20] Ultimately, while I have considered the Appellant's arguments in this regard, I do not find these persuasive with respect to establishing that there is a nexus between his allegations and Convention grounds. As such, I find that the RPD is correct, that the Appellant has failed to establish a nexus with Convention grounds in this case. Therefore, the Appellant's refugee claim was properly assessed by the RPD with respect to subsection 97(1) of IRPA, in terms of whether, on a balance of probabilities, he faces a risk to his life, a risk of cruel and unusual treatment or punishment, or a danger of torture, in China. [21] Nonetheless, even if the Appellant was able to establish a nexus with Convention grounds, which he has not done, given the credibility concerns raised herein with respect to his evidence, the overall outcome of his refugee claim and appeal would be the same. The Appellant's evidence regarding the alleged expropriation and protest activities raises credibility concerns [22] The Appellant takes issue with two elements of the RPD decision as these relate to credibility concerns arising from his evidence. These pertain to findings the RPD made in the absence of documentary evidence confirming that the Appellant's land was being expropriated; and evidence surrounding an alleged protest that was not credible. However, I do not accept the Appellant's arguments in these regards and find that the RPD decision is correct. [23] Firstly, the RPD ultimately found that the Appellant had not established that his land had been expropriated and that his related evidence was inconsistent. I agree. The Appellant stated in his Basis of Claim form ("BOC") that he was sent a formal notice by the village committee advising that his land was to be expropriated.13 However, the Appellant did not provide any such document in support of his refugee claim, or other related documentation (e.g. receipts of payments as allegedly presented to the village authorities) and he testified that he was instead only notified orally of the expropriation and that his other documents were in China. This evidence is inconsistent and confusing. Furthermore, given the requirement to provide documentary evidence to establish the elements of his refugee claim, the time the Appellant has had to provide such evidence, and the fact that he has provided other documents, it is correct for the RPD to find that this shortfall undermines the evidentiary basis for the Appellant's refugee claim. [24] Moreover, the Appellant has provided no persuasive or credible documentary evidence to establish that his land was expropriated, as alleged, and his testimony is inconsistent with the evidence provided in his BOC. Overall, this undermines the Appellant's credibility and the basis for his refugee claim and appeal. Furthermore, I do not accept the Appellant's arguments or assertions in this regard, which fail to address this concern and the related inconsistency. Nonetheless, it is correct to expect the Appellant to have received documentary notification that his land was being expropriated, if this was in fact the case, and the absence of such evidence, which he stated in his BOC that he received, fails to support his related allegations or to establish this central element of his claim. [25] Secondly, the Appellant takes issue with the RPD's findings relating to the Appellant's evidence surrounding an alleged protest event, which gives rise to significant credibility concerns. In particular, the RPD found that the timeline of events as recounted by the Appellant is not credible. In particular, the RPD found the Appellant's evidence not credible in relation to the following: a. at XXXX XXXX XXXX p.m. the Appellant and other villagers were attacked by a group of 12 individuals with wooden sticks; b. the Appellant was injured in the attack and went to a local clinic to seek medical treatment for his injuries; c. at XXXX XXXX XXXX p.m. the Appellant arrived at the county government office, which was XXXX XXXX XXXX km from his village; d. the Appellant and the villagers were denied access to the building; e. the Appellant then proceeded to a nearby store to purchase supplies and make signs and banners; and f. the Appellant then returned to the government building, which closed at XXXX XXXX XXXX p.m. to protest. [26] As the RPD noted, this timeline is not credible. To begin with, it is not possible for the Appellant to assert that he protested in front of the county government building one hour before it closed at XXXX XXXX XXXX p.m. This evidence is (internally inconsistent and) inconsistent with the Appellant's other evidence that he initially arrived at the building at XXXX XXXX XXXX p.m. (which was one hour before it closed), and then still went and purchased supplies, made banners and signs, and subsequently returned to the building and held a protest. As such, I find that the RPD is correct in finding that the Appellant's related evidence is not credible. [27] Furthermore, the Appellant's additional evidence and related timing regarding the movement of his group of villagers to and from the county building, his village, a local medical clinic, and a nearby store to purchase and make signs and banners, is not credible. Even the most liberal interpretation of this sequence of events cannot overcome the obvious discrepancy between the time it takes to accomplish basic tasks and the Appellant's recounting of alleged key events. Therefore, I agree with the RPD and find its conclusions correct, particularly that the Appellant's evidence is not credible, evolving, and lacks an air of truth or common sense. [28] And, while the RPD perhaps could have provided additional explanation as to why it did not find the Appellant's timeline or evidence credible, it has clearly and sufficiently articulated what facts it took issue with and why, such that I find no error has been made in this regard. Therefore, I do not accept the Appellant's assertion that the RPD's reasons are "unintelligible".14 The RPD is correct that the Appellant's actions are inconsistent with his alleged fear [29] The assessment of whether an Appellant has a genuine fear of persecution or harm is intertwined with an assessment of the Appellant's credibility and can relate to behaviours considered to be inconsistent with such a fear. 15 Such behaviours include delay in making a refugee claim, reavailing in the country of alleged harm, delay in leaving the country of alleged harm, and failure to seek refugee protection - important factors to be considered in assessing an Appellant's statements, actions, and ultimately, their alleged fear and credibility.16 Where the delay is egregious and is inadequately explained, or an Appellant's fear is inconsistent with or severely undermined by their actions, this may be determinative of their refugee claim or appeal.17 [30] In this case, the Appellant failed to make a refugee claim when he first came to Canada in 2018, and rather than telling his first point of contact in Canada (i.e. customs or immigration officials) that he feared for his safety and well-being in China and that he had fled to Canada to seek refuge, the Appellant stated that he had come to Canada for sightseeing. Given the Appellant's obligation to provide honest and truthful information to officials in Canada, it is significantly problematic that he apparently did not do so, and instead opted to voluntarily return to China, while maintaining that he was not afraid to return to China. These actions are inconsistent with the Appellant's central allegations in his refugee claim and appeal and with what can correctly be expected of someone who genuinely fears for their safety in their country of origin. [31] Furthermore, I do not accept the Appellant's explanation that he did not understand the refugee process. There was no need to understand the refugee process at that point. All the Appellant needed to do was to respond to questions he was asked by Canadian officials in a truthful and forthright manner, which he did not do. And, if he was genuinely afraid to return to China and/or had come to Canada for the purpose of fleeing from danger or harm, then he ought to have stated as much when asked or given the opportunity to do so. That fact that he allegedly withheld or concealed the truth from customs or immigration officials in Canada undermines the Appellant's credibility, is inconsistent with his alleged fear of harm at that time, and is unacceptable. [32] Additionally, when the Appellant subsequently entered Canada approximately one month later, he again did not seek refugee protection, and only did so more than one year later. This further delay in seeking refugee protection, and the Appellant's continued concealment of the truth from Canadian officials, severely undermines his credibility and is inconsistent with his alleged fear of harm in China. It is correct to expect that the Appellant would seek refugee protection at his first available opportunity, and that he would not seek entry to Canada as a visitor without being truthful and forthcoming about his purpose or intentions for coming to Canada, including that he feared for his safety and well-being and was seeking refuge. [33] As such, I do not accept the Appellant's arguments, or his explanations before the RPD, or find these persuasive with respect to overcoming the credibility concerns that arise herein. Moreover, I find the RPD's conclusions correct in this regard. In accordance with the reasoning presented by the RPD, the Federal Court has recognized a delay in claiming refugee protection as an important factor in assessing a refugee claimant's credibility and fear. It is correct to expect that people will seek refugee protection without unreasonable delay.18 [34] In Garcia, Justice Near stated that: Delay in making a refugee claim "is not a decisive factor in itself" but it is a "relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant" (Huerta v Canada (Minister of Employment and Immigration) (1993), 157 NR 225, [1993] FCJ no 271 (CA)). It is reasonable to expect that the Applicants would make a claim at the first possible opportunity (see Jeune v Canada (Minister of Citizenship and Immigration), 2009 FC 835, [2009] FCJ no 965 at para 15). Recent jurisprudence also suggests that while the delay itself is not determinative, it "may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim" (Duarte v Canada (Minister of Citizenship and Immigration), 2003 FC 988, [2003] FCJ no 1259 at para 14). Absent a satisfactory explanation for the delay, it "can be fatal to such claim, even where the credibility of an applicant's claims has not otherwise been challenged" (Velez v Canada (Minister of Citizenship and Immigration), 2010 FC 923, [2011] FCJ no 1138 at para 28).19 Overall Findings in this Appeal [35] Ultimately, pursuant to my independent assessment in this appeal, I find that the RPD is correct in finding that the Appellant failed to provide credible or trustworthy evidence regarding his alleged political opinion and related protests, which based on the facts of this case, do not reflect a nexus with Convention grounds, and instead give rise to significant credibility concerns. [36] Moreover, I do not find the Appellant's arguments persuasive with respect to overcoming these concerns and/or to establishing the core elements of his refugee claim or appeal, or his related alleged risk of persecution or harm. Furthermore, the Appellant has not taken issue with the additional findings made by the RPD beyond those identified in its argumentation, including with respect to the Appellant not being of interest to Chinese authorities, and the inconsistent evidence he provided in this regard. [37] Ultimately, the Appellant failed to establish that he faces a serious possibility of persecution or that, on a balance of probabilities, he faces a risk to his life, a risk of cruel and unusual treatment or punishment, or a danger of torture in China. Therefore, this appeal is dismissed. CONCLUSION [38] Pursuant to paragraph 111(1)(a) of IRPA, I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) G. Cohen G. Cohen November 1, 2021 Date 1 Immigration and Refugee Protection Act ("IRPA"), S.C. 2001, c. 27, as amended. 2 M.C.I. v. Huruglica, 2016 FCA 93; Rozas Del Solar v. M.C.I., 2018 FC 1145. 3 Ibid. 4 Ibid. 5 Exhibit P-2, Appellant's Record, at pp. 1 and 3. 6 Huang v. Canada (Citizenship and Immigration), 2019 FC 148 at paras. 40-44; Ni v. Canada (Citizenship and Immigration), 2018 FC 948; Yan v. Canada (Citizenship and Immigration), 2018 FC 781 at para 22; You v. Canada (Citizenship and Immigration), 2013 FC 100; Jiang v. Canada (Minister of Citizenship and Immigration), 2015 FC 486; Cao v. Canada (Minister of Citizenship and Immigration), 2015 FC 790. 7 Ni v. Canada (Citizenship and Immigration), 2018 FC 948 at paras. 22-27. 8 Canada (Attorney General) v. Ward, [1993] 2 SCR 689. 9 Ni v. Canada (Citizenship and Immigration), 2018 FC 948 at paras. 22-27. 10 Ni v. Canada (Citizenship and Immigration), 2018 FC 948 at paras. 22-27. See also Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 FC 540 (FCA). 11 You v. Canada (Citizenship and Immigration), 2013 FC 100 at paras. 20-21; Jiang v. Canada (Minister of Citizenship and Immigration), 2015 FC 486 at paras. 13-14. 12 Jiang v. Canada (Minister of Citizenship and Immigration), 2015 FC 486 at paras. 13-14. 13 Exhibit RPD-1, RPD Record, Basis of Claim form ("BOC"), p. 28 at para. 8. 14 Exhibit P-2, Appellant's Record, pp. 13-14, at paras. 17-18. 15 Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone, July 4, 1984; Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugesssen, Desjardins, Létourneau, March 17, 1993. 16 Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugesssen, Desjardins, Létourneau, March 17, 1993; Nezhalskyi v. Canada (Citizenship and Immigration), 2015 FC 299 at para. 12. 17 Ghasemian v. M.C.I. (F.C., no. IMM-5642-02), Gauthier, October 30, 2003; 2003 FC 1266; Velez v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010; 2010 FC 923; Ortiz Garzon v. Canada (Citizenship and Immigration), 2011 FC 299 at para. 30. 18 Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone, July 4, 1984; Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugesssen, Desjardins, Létourneau, March 17, 1993; Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugesssen, Desjardins, Létourneau, March 17, 1993; Nezhalskyi v. Canada (Citizenship and Immigration), 2015 FC 299 at para. 12; Ghasemian v. M.C.I. (F.C., no. IMM-5642-02), Gauthier, October 30, 2003; 2003 FC 1266; Velez v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010; 2010 FC 923; Ortiz Garzon v. Canada (Citizenship and Immigration), 2011 FC 299 at para. 30. 19 Garcia v. Canada (Minister of Citizenship and Immigration), 2012 FC 412 at paras. 19-20. See also Jeune v. Canada (Minister of Citizenship and Immigration), 2009 FC 835 at para. 15; Velez v. Canada (Minister of Citizenship and Immigration), 2010 FC 923, [2011] FCJ no 1138 at para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC1-03509 RAD.25.02 (January 2020) Disponible en français 2 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.25.02 (January 2020) Disponible en français