TB8-11016

RAD File / Dossier de la SAR : TB8-11016 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 January 30, 2020 Date de la décision Panel T. Cheung Tribunal Counsel for the person who is the subject of the appeal Hart A Kaminker 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] XXXX XXXX (the Appellant), a citizen of China, appealed a decision of the Refugee Protection Division (RPD) that rejected his refugee claim. The claim was based on persecution due to his wife being pregnant with a third child which contravenes the family planning policy. [2] The Appellant states in his Basis of Claim (BOC) that he has two biological children with his wife. He adopted an abandoned baby in 2013. The Appellant claimed that shortly after the birth of their first child in 2002, the Appellant's wife was required to wear an IUD. In 2008, the Appellant and his wife were in South Africa when she had the IUD removed. In 2014, the Appellant's second child was born.1 [3] The Appellant and his wife attempted to register their second child in their hukous when they returned to China in 2016. The authorities refused to register the child until they provided proof that either his wife was wearing an IUD, or the Appellant or his wife were sterilized. When his wife sought to have an IUD, she was told that she was pregnant. In XXXX 2016, the Appellant's wife was taken away by local government officials for a coerced abortion. The hospital delayed sterilization of the Appellant's wife after the abortion because of her medical condition. The doctor required her to return a week later to be sterilized. If his wife is not suitable for sterilization due to health issues, the Appellant must undergo sterilization. As his wife was fearful of forced sterilization, she and the two children fled China for the United States (US) in XXXX 2016. [4] As the Appellant did not have a US visa, he flew to South Africa on XXXX XXXX, 2016 with the help of a smuggler. He entered Canada on XXXX XXXX, 2017. The Appellant claimed that the officers from the Family Planning Office (FPO) went to his home in China in XXXX 2016 looking for his wife because she did not abide by the scheduled appointment for sterilization. The Appellant claimed that the FPO visited his home on four other occasions seeking out the Appellant and his wife for sterilization.2 [5] The RPD rejected the claim for the following reasons: a. The Appellant's sole reason for coming to Canada is for him to gain status in the United States.3 b. There is less than a mere possibility that the Appellant will be subjected to sanctions amounting to persecution, as the country evidence indicates that women are much more likely than men to face sterilization as a family planning sanction. Moreover, the Appellant has already paid a fine to resolve the out-of-plan birth of his son.4 [6] The Appellant made the following arguments at the Refugee Appeal Division (RAD): a. The Appellant made the claim in Canada within the time frame of the expiry of his status in Canada. It is reasonable for the Appellant to join his family in the US where they have a pending asylum claim based on violation of China's family planning policy.5 b. The RPD decision did not consider that the Appellant's spouse was pregnant with their third child when she was forced to abort the pregnancy and the FP authorities demanded sterilization for either the Appellant or his spouse.6 c. Objective evidence exists to support the Appellant's fear of sterilization, as his spouse is in the US making an asylum claim.7 DETERMINATION [7] The Appellant did not present on new evidence at the RAD. Nor did he request a hearing at the RAD. [8] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). ANALYSIS Delay in making the claim [9] I find the delay in making a refugee claim to be a neutral consideration in the determination of this appeal. The Appellant delayed making the refugee claim by approximately two to three months from the time of entry into Canada on XXXX XXXX, 2017. Delay in making a refugee claim is a relevant consideration, but it is not a determinative factor in assessing the statements and actions of the claimant. The lack of a reasonable explanation for the delay can be fatal to the claim even if the claimant's credibility is not challenged.8 [10] The RPD misconstrued the Appellant's testimony as to the reason he entered Canada. The main reason he entered Canada was to make a refugee claim because he was refused entry into the US. His preference was to make the claim in the US because his wife and two children are there awaiting the determination of their asylum claims. He waited two to three months before making the refugee claim in Canada because he was attempting to find a legal means to enter the US. He did not want to enter the US illegally which was the only recourse available to him.9 The Appellant had status in Canada as a visitor when he made the refugee claim in Canada.10 Family planning claim [11] The RPD was correct in its analysis of the Appellant's claim based on family planning. I uphold the RPD's finding that there is less than a mere possibility that the Appellant will be subjected to sanctions amounting to persecution, as the country evidence indicates that women are much more likely than men to face sterilization as a family planning sanction. [12] The Appellant argued that the RPD did not comprehend that the Appellant's spouse was pregnant with a third child which contravenes the two-child policy and this breach led to the forced abortion and demand for sterilization.11 The Appellant presented a contraceptive surgery certificate confirming that the Appellant's wife had an abortion in XXXX 2016 that required hospitalization.12 The hospital discharge summary provides as a "Suggestion" that the Appellant's wife returns to the hospital a week after the discharge as she must be sterilized if her health condition permits it.13 [13] The Appellant testified that he fears returning to China because a family planning officer will sterilize him. The RPD member asked the Appellant to respond to the country evidence that men are less likely to be sterilized. In response, the Appellant testified that the authorities will pursue him if they cannot find his wife.14 He testified that his wife was caught with an out-of-plan pregnancy, and she was forced to undergo an abortion. She did not undergo a tubal ligation procedure shortly after the abortion because she was not medically fit for the procedure.15 [14] The Appellant argued at the RAD that although the country evidence indicates that women in China are more likely to face family planning sanctions than men, men may also be subject to forced sterilization.16 [15] The RAD's independent review of the country evidence indicates less than a mere possibility that the Appellant will face sterilization if he returns to China. Forced sterilization of men is less common than female sterilization.17 One of the least coercive family planning regimes in China exists in Fujian province (the Appellant's home province), although family planning rules in Fujian are more strictly enforced in the larger cities than in the rural regions.18 [16] The objective evidence contains reports of forced sterilization and abortions in Fujian from 2007 to 2009. However, the reports do not indicate whether the forced sterilizations were directed at fathers. In 2012, there was one reported case of forced abortion in a late-stage pregnancy as a consequence of the couple's breach of the family planning regulations. As of 2013, there has been no information on the prevalence of forced sterilization and abortions in Fujian province.19 It was reported in 2018 that official speeches and government reports from provinces throughout China, including Fujian, promoted the implementation of harsh and invasive family planning measures.20 [17] Within the foregoing country conditions evidence, incidents of forced sterilization of men in Fujian could not be found to support the allegations in the claim.21 There is an absence of evidence specifically related to the prevalence of forced sterilization of males in Fujian to support the Appellant's claim that there is more than a mere possibility that he will be subjected to coercive sterilization. [18] The Appellant has already paid a fine to resolve the out-of-plan birth of his son.22 The Appellant testified that he cannot pay a fine to avoid sterilization; he does not know why a fine will not suffice in lieu of coercive sterilization.23 [19] The RPD raised no doubts that the Appellant's spouse had a forced abortion. The Appellant correctly argued that the allegations related to the wife's abortion are supported by the documentary evidence. However, I disagree with the Appellant's argument that the objective evidence exists to support the Appellant's fear of sterilization.24 Forced sterilization of men is less common than female sterilization.25 Fujian has one of the least coercive family planning regimes in China.26 There is a lack of objective country evidence specifically of coerced male sterilization in Fujian province. Therefore, the RPD was correct in finding less than a mere possibility that the Appellant would face sanctions amounting to persecution if he returns to China. CONCLUSION [20] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of IRPA. (signed) "T. Cheung" T. Cheung January 30, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 19 to 26, Basis of Claim (BOC) narrative. 2 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, pp. 19 to 26. 3 Exhibit RPD-1, RPD Record, RPD Decision, pp. 5 to 6, para. 10 to 12. 4 Exhibit RPD-1, RPD Record, RPD Decision, pp. 6 to 7, para. 13 to 17. 5 Exhibit P-2, Appellant's Record, memorandum, pp. 119 to 120, para. 12 to 14. 6 Exhibit P-2, Appellant's Record, Memorandum, p. 120, para. 17. 7 Exhibit P-2, Appellant's Record, Memorandum, pp. 120 to 122, para. 19 to 28. 8 Licao v. Canada (Citizenship and Immigration), 2014 FC 89 (CanLII), <http://canlii.ca/t/g2v86>, para. 48 to 54. 9 Audio of RPD Hearing, 00:08 to 00:15. 10 Exhibit RPD-1, RPD Record, p. 38, Schedule 12 - Additional Information - Refugee Claimants Inside Canada. 11 Exhibit P-2, Appellant's Record, Memorandum, p. 120, para 15 to 19. 12 Exhibit RPD-1, RPD Record, Exhibit 6, pp. 150 to 151, contraceptive surgery certificate. 13 Exhibit RPD-1, RPD Record, pp. 153 to 154, Discharge summary. 14 Audio of RPD Hearing, 00:33 to 00:34. 15 Audio of RPD Hearing, 00:38. 16 Exhibit P-2, Appellant's Record, Memorandum, p. 121, para. 20 to 24. 17 Archive - National Documentation Package, China, 31 October 2017, tab 5.5: Family planning laws, enforcement and exceptions, particularly in the provinces of Guangdong and Fujian; reports of forced sterilization of men and women; consequences to officials who force women to have an abortion; whether family... Immigration and Refugee Board of Canada. 16 October 2014. CHN104963.E., pp. 31 to 32. 18 Archive - National Documentation Package, China, 31 October 2017, tab 5.5: Family planning laws, enforcement and exceptions, particularly in the provinces of Guangdong and Fujian; reports of forced sterilization of men and women; consequences to officials who force women to have an abortion; whether family... Immigration and Refugee Board of Canada. 16 October 2014. CHN104963.E., pp. 36 to 37. 19 Archive - National Documentation Package, China, 31 October 2017, tab 5.7: Background Paper. China : Family Planning. Australia. Refugee Review Tribunal. 8 September 2013. 20 National Documentation Package, China, 20 December 2019, tab 2.3 : Congressional-Executive Commission on China Annual Report 2018, United States. Congressional-Executive Commission on China. 10 October 2018, p. 151. 21 Karambal v. Canada (MCI), 2007 FC 936, para. 13 and 14; Morka v. Canada (Minister of Citizenship and Immigration), 2007 FC 315 (CanLII), at paragraph 18. 22 RPD Decision, pp. 6 to 7, para. 13 to 17. 23 Audio of RPD Hearing, 00:34 to 00:38. 24 Exhibit P-2, Appellant's Record, Memorandum, pp. 120 to 122, para. 19 to 28. 25 Archive - National Documentation Package, China, 31 October 2017, tab 5.5: Family planning laws, enforcement and exceptions, particularly in the provinces of Guangdong and Fujian; reports of forced sterilization of men and women; consequences to officials who force women to have an abortion; whether family... Immigration and Refugee Board of Canada. 16 October 2014. CHN104963.E., pp. 31 to 32. 26 Archive - National Documentation Package, China, 31 October 2017, tab 5.5: Family planning laws, enforcement and exceptions, particularly in the provinces of Guangdong and Fujian; reports of forced sterilization of men and women; consequences to officials who force women to have an abortion; whether family... Immigration and Refugee Board of Canada. 16 October 2014. CHN104963.E., pp. 36 to 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-11016 RAD.25.02 (April 04, 2019) Disponible en français 3 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 (April 04, 2019) Disponible en français