TB7-16262

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : TB7-16262 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 26, 2018 Date de la décision Panel Laura Brittain Tribunal Counsel for the person(s) who is(are) the subject of the appeal Diane B. Coulthard Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the "Appellant"), a Chinese national, fears reprisal from his government for protesting unfair compensation for the expropriation of his family property in China. In August 2016, his father was arrested for having organized a protest. The Appellant escaped, and hid with a relative. Chinese authorities delivered a summons to the Appellant's mother, and they are alleged to have returned repeatedly to look for him. The Appellant alleges that his father remains in detention and that he, himself, fled China with the help of a smuggler. [2] The Refugee Protection Division (RPD) rejected the Appellant's claim in a decision dated August 2, 2017, on the basis that the Appellant was not credible. The Appellant asks the Refugee Appeal Division (RAD) to substitute a positive decision or remit the matter to a newly constituted panel of the RPD for redetermination. The Appellant does not submit new evidence on appeal, and he does not request that the RAD hold an oral hearing. [3] As explained below, I have found that the RPD committed some errors. Nevertheless, I agree with the RPD that the Appellant is not credible with respect to his allegation of being wanted by authorities. DETERMINATION [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismiss the appeal. ISSUES ON APPEAL [5] The Appellant argues that the RPD erred in its assessment of three specific matters: the Appellant's ability to exit China on his own passport, the supporting documents filed in support of the claim, and the Appellant's failure to make a refugee claim in the United States (US). ROLE OF THE RAD [6] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. 1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, attracts a standard of review of reasonableness.2 Unless specifically stated below, I have applied a correctness standard. ANALYSIS [7] For the following reasons, while I do find that the RPD erred in some respects, I do not find that these errors are fatal to the overall determination of the claim, which I find is correct. [8] For example, I agree with the Appellant that his failure to make a claim in the US is not material to the determination of his claim. The Appellant transited through the US for less than two weeks. His allegation was that he always intended to come to Canada. In the vast majority of cases, subjective fear is rarely determinative. It was an error for the RPD to cite a case which was the exception to this rule where the facts of the present claim are not. I have set this finding aside. [9] I also agree that the RPD's assessment of the Appellant's supporting documents was oversimplified. Having assessed these documents as the Appellant requests, however, I have found that the summons he provided is not genuine. He also does not challenge all of the RPD's negative credibility findings. Therefore, as I will explain, I agree that his ability to exit China on his own passport undermines his allegation that he is wanted by authorities. The summons provided is not credible, on a balance of probabilities [10] In support of his claim, the Appellant submitted documents relating to his identity, the ownership and value of the family home purportedly expropriated, an expropriation notice, a summons for the Appellant, and a detention notice for his father. [11] The RPD found that the Appellant's ability to exit China on his own passport caused it to "[doubt] the veracity" of the summons he submitted. The RPD further noted that such a document would be easily counterfeited and that fraudulent documents are reportedly available in China. [12] The Appellant argues that the RPD erred in its analysis of his exit from China - I have addressed this argument elsewhere in this decision. He also argues that the RPD erred in relying on the existence of fraudulent documents, or less stringent security features, without analyzing the document in question. [13] I agree that this is a legal error. However, I have looked at the summons3 (a chuanpiao) in question and significant differences between it and an official sample4 available in the National Documentation Package (NDP) lead me to conclude that the summons provided by the Appellant is not genuine, on a balance of probabilities. [14] For example, the spacing at the top of both documents is distinct, and while the reference number and identifying information in the sample appears above the contents in table form, it does not on the summons provided by the Appellant. The content and spacing on the right-hand column, first line is different between both documents. The instructions at the bottom are numbered one through three on the sample version, and all are complete; on the Appellant's document, there is space for four instructions, but only two are completed. In the standard portion of the form, in the left-hand column, the third row has five characters and the fourth has 8. In the Appellant's, the third row, first column has only four characters (which also appear in a different order than in the official sample), and the fourth row first column has only four characters. The spacing throughout the bottom portion of the form is different between the two documents, and there are 11 characters at the bottom left of the sample and only eight on the Appellant's. [15] Differences in the documents are also visible between the translated official version5 and the translation of the Appellant's summons.6 The order of information in the Appellant's document looks more like that in the copy meant to be retained by the court rather than what is meant to be given to the person summonsed. As already pointed out, the third instruction is missing from the Appellant's document, and there are blank spaces rather than the standard content. [16] The documentary evidence indicates that the format of a summons is reported to have been standard throughout the country and has not changed since 2003; "regional variations are not meant to exist."7 I therefore find, on a balance of probabilities, that the differences between the two documents call the authenticity of the Appellant's summons into question. I do not find this to be a genuine document. [17] I have also considered the detention notice for the Appellant's father. I do not find this document establishes that the Appellant is wanted by Chinese authorities, on a balance of probabilities. First, the Appellant has demonstrated a willingness to provide fraudulent documents to the Board in his reliance on the summons. Second, this document arises from the same incident that the Appellant alleges resulted in the summons - given my findings about the summons, I am of the opinion that this document's credibility is also tarnished. Finally, and in the alternative, this document only mentions the Appellant's father - in light of my other findings, I find that this document does not establish any risk to the Appellant, personally. [18] I have also considered the documents provided regarding the ownership of the family home, the notice of expropriation and a valuation of the property in question.8 Assuming without deciding that these documents are authentic, they do not establish a risk to the Appellant, but only that his family owns a property to be expropriated under market value. The expropriation alone is insufficient to ground a claim under section 96 or section 97 - it is the danger of repercussions as a result of protesting the expropriation that is said to be the basis for the danger. [19] I do not find that the supporting documents filed establish a danger to the Appellant from Chinese authorities. Moreover, I find that the provision of a false document undermines the Appellant's general credibility. The Appellant does not challenge the RPD's negative inferences regarding his passport and student visa [20] The Appellant does not challenge the findings that the RPD made regarding his acquisition of a student visa for the US and a passport. [21] The Appellant testified that he hired a smuggler to obtain his US student visa and to get him out of the country, because he did not know how to apply. Later, however, he testified that he had also done internet research about universities in Canada, but he had chosen to apply in the US because he did not believe he would meet the language requirements for Canadian schools. I also note that the Appellant demonstrated significant knowledge of the supporting documents that were required for his application. The RPD found this to be contradictory and drew an adverse inference with respect to the Appellant's credibility. [22] The Appellant applied for and obtained his passport in August 2016. Asked why he obtained a passport at that time, he indicated it was for a family trip at Chinese New Year in 2017. None of his other family members applied when he did, however. The Appellant alleged that they all intended to apply at a later date, but the intervening land expropriation and his father's arrest intervened. The RPD found it implausible that the Appellant applied for the passport approximately five months before he planned to travel and then, fortuitously, had it when he alleges he became wanted two weeks later. Combined with his research into schools in North America, the RPD found the timing so coincidental as to question the Appellant's credibility in this respect. [23] The Appellant has not identified an error in these findings. Alone, I would not find this analysis persuasive. However, in light of my finding that the Appellant has submitted a fraudulent summons and the fact that he does not challenge this portion of the decision, I agree with the RPD that the Appellant's arrangements to leave appear tied to finishing high school and fortuitously timed. I draw a slight negative inference as a result. The Appellant's ability to exit China on his own passport belies he is not wanted as alleged [24] The RPD found that the Appellant's ability to exit China on his own passport rendered incredible his allegation of being wanted by authorities. The RPD noted that the Appellant alleged that he was issued a summons, and thus he would have been in China's expansive security database. Given the checks for outbound travellers, the RPD found that the Appellant's ability to leave China on his own passport was contradictory to his allegation that he was wanted by Chinese authorities. [25] The Appellant argues this finding was in error. He cites several higher court decisions which found that a wanted person could exit China on their own passport if they hired a smuggler who bribed the appropriate person. [26] I adopt the reasoning of the RAD's decision in TB6-11632, which was designated as a jurisprudential guide under paragraph 159(1)(h) of the IRPA.9 Members are expected to follow the reasoning in a decision identified as a jurisprudential guide to the extent set out in the accompanying statement where the facts underlying the decision are sufficiently close to those in the case being decided to justify the application of the reasoning in the jurisprudential guide, absent exceptional circumstances. [27] The decision in TB6-11632 assesses whether a person wanted by the authorities can exit China via an airport using their own genuine passport. I find that the facts of the current appeal are quite similar to those in the jurisprudential guide - there, the Appellant was also in hiding while the Public Security Bureau (PSB) visited his home to arrest him. I therefore adopt the findings in the guide as support for the implausibility of the Appellant's ability to exit China while being sought by the authorities. [28] The Appellant cites two sources, also before the RPD, indicating that people smuggling does occur in Hong Kong and that customs officers in Hong Kong have been arrested for accepting bribes in relation to smuggling goods.10 I have considered these documents and the Appellant's argument that they render the RPD's finding erroneous. First, I note that the information is fairly dated - the newspaper articles are from 2014 and 2015. Second, I do not dispute that corruption and smuggling, including of people, both take place in China as in many countries. What this does not establish, however, is that they took place in the Appellant's case. In particular, the article about people smuggling mentions using fake passports and identity documents - this is not applicable in the Appellant's case. [29] In this case, the Appellant testified that he had no knowledge of any precautions taken by the smuggler to assist him in leaving. He was not given any instructions about how to evade security checks beyond following the smuggler and doing what he did. The only specifics he gave were that the smuggler "made arrangements" for him. By contrast, the Appellant had evaded a court summons, and the police were alleged to have continued to attend his house and ask after him for the months leading up to his departure. The evidence did not describe any particular measures taken to evade measures meant to prevent such people from leaving the country. The Appellant's testimony about the smuggler, overall, was vague. Taken together with the fraudulent summons filed, I am not satisfied that the Appellant has established either that he was wanted by authorities or that he was smuggled out of China, on a balance of probabilities. [30] I do note that higher court jurisprudence has been divided on this issue, as is acknowledged in the decision in TB6-11632 and evidenced in the jurisprudence cited by the Appellant. In this case, my decision that the Appellant's exit from China is implausible is tied not only to the airport but to my finding that the Appellant has submitted a fraudulent summons. While plausibility findings are to be reserved for the clearest of cases, I find this to be such a case in the totality of the circumstances. CONCLUSION [31] I therefore find that the RPD did not err in finding that the Appellant had not established, on a balance of probabilities, that he is wanted by Chinese authorities, on a balance of probabilities. For these reasons, I find that the RPD did not err in rejecting the Appellant's claim, and pursuant to paragraph 111(1)(a) of the IRPA, I confirm the RPD's determination that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Laura Brittain" Laura Brittain July 26, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit RPD-1, p. 172. 4 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China (March 31, 2017), item 9.10, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) CHN104458.E, October 18, 2013, p. 5. 5 Exhibit RPD-1, RPD Record, NDP for China (March 31, 2017), item 9.3, IRB, RIR CHN105217.E, October 20, 2015, p. 10. 6 Exhibit RPD-1, RPD Record, p. 171. 7 Ibid., p. 1. 8 Exhibit RPD-1, RPD Record, pp. 161-170. 9 Jurisprudential Guides - Decision TB6-11632, http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/jurisprud/Pages/TB6-11632.aspx 10 RPD-1, RPD Record, pp. 138-141. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-16262 10 RAD.25.02 (July 05, 2018) Disponible en français