TB6-16442

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 : TB6-16442 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, Ontario Appel instruit à Date of decision February 22, 2017 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lindsey K Weppler Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) Représentant(e)(s) désigné(e)(s) Counsel for the Minister Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not provided new evidence in support of his appeal, and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and remit the matter to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged that he and his wife want to have five children. The Appellant has one son, born in 2004, who lives with his wife in China. The Appellant's wife was pregnant in 2013 and she was forced to undergo an abortion. [4] The Appellant further alleged that the local government seized 1.93 acres of his 2.27 acre field in March 2014, and that his family was impoverished. As a result he was forced to seek work elsewhere. [5] The Appellant applied for a Canadian temporary resident visa with the help of an agent and arrived in Canada on XXXX XXXX 2015. He alleged he opposes the political opinion of the Chinese government and he fears persecution under the family planning policy as he wishes to have five children. He further alleged he has been denied of a means to make an adequate living as a result of the loss of his land. The issues [6] The panel indicated the issues in regard to this claim are credibility as to his jeopardy at the hands of Chinese family planning officials, and as to the alleged loss of his land, resulting in his inability to support his family. The panel further indicated that additional issues of concern are delay in leaving China and delay in making a claim for protection in Canada. [7] The Appellant submits the issues in this appeal are whether the panel erred in making a negative finding as to his testimony concerning the loss of his land. The Appellant further submits the panel erred in regard to its negative finding concerning his delay in making a claim for protection. The Appellant submits as well the panel erred in finding he and his wife would be able to have more than one other child. The role of the RAD [8] The RAD notes that the Federal Court of Appeal decision in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [9] The RAD concludes from its statutory analysis with respect to findings of fact and mixed fact and law, that the RAD is to review RPD decisions applying the correctness standard, and that there may be deference to the RPD where the findings of fact involve the assessment of oral evidence. [10] The RAD must carefully consider the RPD's decision and after doing so must carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. [11] The RAD notes the Appellant provides a brief analysis and argument concerning the Standard of Review. The RAD has indicates above its view of its role as to this appeal. The Appellant's fear of family planning authorities [12] The panel cited country document evidence which indicates that family planning regulations have been revised as a result of January 2016 legislation initiating a two-child policy. It is noted that this legislation applies nation-wide, and the Appellant's home province is specifically included in a list of provinces that have revised their regulations. The Appellant testified that if her were to return to China and had a second child with his wife, he did not believe there would be a problem. [13] The panel questioned the Appellant as to why he had not explored the possibility of having a second child in China since it is now permitted. The Appellant responded that he arrived in Canada in 2015, before the policy change. The panel found, in the context of the policy change described above, and also the Appellant's own evidence that a second child would not be a problem, that the basis for the Appellant's fear no longer exists. [14] The panel noted the Appellant's intention to have four children and his fear that if he were to do so he would be in jeopardy of fines and prison and his wife would be in jeopardy of abortion. The panel noted the Appellant had not yet explored the possibility of a second child as a result of the policy change, and found the issue of multiple further children is premature, hypothetical and speculative. The panel further found there is not a serious possibility of persecution or the harms pursuant to ss. 97(1) of IRPA, as to the Appellant's political opinion concerning China's family planning policy, if he were to return to China. [15] The Appellant submits the panel erred in finding that he and his wife could potentially be able to have four more children that they wanted in China. The Appellant argues that new two-child policy would not allow him and his wife to have more than a second child and if they did there was a risk of fines, forced abortion and forced sterilization. [16] The Appellant notes the panel found the Appellant's testimony in this regard to be speculative and a consideration of the consequences of multiple further births to be premature and hypothetical. The Appellant argues the panel was speculative in regard to this finding and this is a reviewable error. The Appellant further argues it is not speculative based on his credible testimony that he and his wife want to have more than one additional child. The Appellant submits the law has changed regarding the one-child policy but there is no evidence they will continue to change to include more than two children. The Appellant argues in this regard that "reproductive liberty" affords every individual freedom from restrictions on their own body, including forced abortion, sterilization and the forced insertion of an IUD. [17] The RAD has reviewed and assessed all of the evidence in the record concerning China's new family planning legislation and policies. It has also considered the Appellant's submission that her and his wife wish to have four more children and that they would be in jeopardy of persecution if they did so. [18] The RAD is not persuaded by the Appellant's argument and concurs with the panel's finding in this regard. The RAD notes the panel did not state that the Appellant would be able to have four more children. Rather the panel found that the Appellant's testimony in this regard was speculative. The RAD notes as well that any consideration of further changes in family planning policy in China would also be speculative. [19] The RAD finds the issues to be considered in this regard is whether the Appellant is now at risk of persecution at the hands of family planning officials if he were to return to China, and whether if the Appellant and his wife had another child they would be at risk of persecution. The RAD further finds that it is clear from the evidence before the panel that the Appellant is not now being pursued by family planning authorities. [20] The RAD finds as well, on the basis of the new family planning legislation noted above and the Appellant's testimony in this regard, that the Appellant would not be at risk of persecution if he were to return to China and he and his wife had a second child. [21] As to the Appellant's wish to have four children and the potential risk in this regard, the RAD finds the panel did not err in finding this issue to be hypothetical and speculative and not the basis for a finding of risk. The Appellant's inability to earn an adequate living as a result of the loss of his land [22] The panel noted the Appellant alleged that in 2004, the government took away most of his land and as a result he was unable to make a living. The panel further noted the Appellant testified he worked in Japan in 2006 and in Korea from August 2008 to February 2010. He also testified he worked on construction sites for 6 months in Shenyang in 2000. [23] The panel noted the Appellant testified that in June 2004 he was threatened by the local government and the police, and advised that if he comes again he will be imprisoned. The Appellant further testified this occurred when he and 10 other people whose land was seized spoke to the local government. The panel noted in the RPD hearing that the Appellant failed to mention this incident in his Basis of Claim narrative (BOC). The Appellant explained that this was something that depressed him and he is still fearful. [24] The panel did not find this explanation satisfactory and noted the BOC instructions concerning requests to authorities for help and found the alleged interaction with authorities and the threat was material and should have been included in the narrative. The panel noted the BOC instructions indicate that everything important to the claim should be included and explained in detail. The panel drew a negative inference from this material omission from the narrative. [25] The panel noted the Appellant provided a letter from the village secretary dated May 13, 2016 indicating that the Appellant had only .14 acres of land left since 2003.2 The panel noted in the hearing that the Appellant had testified and indicated in his BOC that his land was seized in March 2004, and questioned the Appellant as to the discrepancy in the dates. The Appellant explained that the letter was inaccurate and referred to the forest property certificate which reflects the date March 20, 2004. The panel noted the Appellant testified the village committee letter was inaccurate and therefore found the letter to be unreliable. The panel drew a negative inference as to the Appellant's credibility. [26] The panel concluded that its cumulative negative credibility findings resulted in its doubt as to the veracity of the Appellant's evidence, including the alleged forced seizure of his land in March 2004. The panel found that the totality of the negative inferences noted above undermined the Appellant's credibility. The panel cited in this regard the decision of the Federal Court in Sheikh in which the Court stated "...a general finding of lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony."3 [27] The panel noted the Appellant provided a forest property certificate4 in support of his claim. The panel cited in this regard the decision of the Federal Court in Huang in which the Court stated that "overall credibility may affect the weight given to the documentary evidence." In the context of its earlier findings as to the Appellant's overall credibility, the panel gave this certificate little weight. [28] The Appellant submits the panel erred in finding that his land was not seized by the government. The Appellant further submits in this regard that the panel erred in drawing a negative inference from his failure to mention in his BOC, his protest to town authorities regarding the seizure of his land. The Appellant argues that he is not alleging persecution based on the expropriation of his land but merely "explaining his history", and therefore there was no reason to include this information in his BOC. The Appellant further argues that this information were "additional details to explain his general continued fear of the authorities."5 [29] The Appellant submits the panel erred in failing to provide reasons for rejecting his explanation that he did not mention his complaint to authorities because this thought depressed him and he was afraid. [30] The Appellant argues the panel had no reason to place undue weight on the discrepancy in the village committee letter which indicated the land was seized in 2003 while the Appellant indicated in his narrative it was seized in 2004. The Appellant notes the committee letter was mistaken as to the date but the forest property certificate reflected the correct date. [31] The Appellant acknowledged that he does not fear persecution by authorities in China based on the expropriation of his land but that it added to his fear of authorities in general. The Appellant argues that in this context the weight placed on these details is unfounded and the panel was unreasonable in making this a determinative issue in the claim. [32] The RAD has reviewed and assessed all of the evidence in the record concerning the expropriation of part of the Appellant's land by the village government. The RAD has some concerns about the Appellant's testimony in this regard. The RAD notes that the Appellant stated he and his family were impoverished as a result of the expropriation. However he further stated that he had found work in Japan and Korea after the loss of his land. In addition he found work in Shenyang in 2000, which appears to reflect the need to seek extra income before the expropriation. [33] The RAD finds the panel did not err in drawing a negative inference from the Appellant's to mention threats from village officials as a result of his attendance on the village government along with other farmers who lost their land. These threats are clearly material to the Appellant's alleged fear of the officials. The RAD finds it was open to the panel to find the Appellant's explanation unsatisfactory and notes the panel provided citations from BOC instructions that should have guided the Appellant in this regard. [34] As to the panel's finding regarding the discrepancy in the date in the village committee letter, the RAD notes the Appellant's argument that since he acknowledged he does not fear persecution from local authorities in China, the weight placed on these details was unwarranted. The RAD further notes that the Appellant states that he was threatened by village officials and he indicated he had a general fear of officials even though he stated he did not fear persecution from these local officials. [35] The RAD notes the Appellant's evidence in regard to his alleged subjective fear was vague in that he also stated he did not fear persecution from local authorities. The RAD also notes the evidence regarding the expropriation of his land was minimal The Appellant provided no 2004 corroborative evidence that village authorities intended to expropriate his land. The only evidence as to the expropriation is a brief 2016 note allegedly from the village committee secretary which contained a significant discrepancy regarding the date of the expropriation. There is no letterhead concerning the official source. In addition the note indicates the Appellant has been a migrant worker since 2003, although he left his village to work in 2000 and his land was allegedly taken away in 2004.6 [36] The RAD finds there is insufficient evidence concerning the loss of the Appellant's land and the impoverishment of the Appellant's family. The Appellant's evidence indicates he has been able to support his family as a migrant worker, a situation that is unfortunately common in China. [37] The RAD further finds, whether or not a large portion of the Appellant's land was taken away, it is clear from the Appellant's evidence that he is not at risk of persecution by local village officials if he were to return to his family and home in China. Delay in leaving China and in claiming protection in Canada [38] The panel noted the Appellant's land was allegedly seized and he was threatened in June 2004. The panel further noted the Appellant arrived in Canada on XXXX XXXX, 2015, approximately 11 years and 7 months after the seizure. The panel notes as well the Appellant testified that he learned about refugee protection in Canada in October 2015 from someone in Chinatown but his BOC was not signed until May 30, 2016, almost 8 months later. [39] The panel acknowledged that delay in making a claim is not determinative but cited the Federal Court decision in Garcia which indicates that delay remains a relevant element which the panel may take into account in its assessment of a claimant's statements and actions.7 The Court in Garcia cited the Court's decision in Duarte which states that delay "may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim."8 [40] The panel noted it had considered the Appellant's explanation as to his delay in leaving China, that he had to care for his wife after her abortion in 2013, and he was barely able to make a living. The panel also noted it had considered the Appellant's explanation as to his delay in making a claim in Canada that his mother was ill and as a result he put off the decision regarding a claim. [41] The panel did not find the explanations to be satisfactory. The panel noted that if the Appellant delayed leaving China to care for his wife and his finances, it was not reasonable that he would have delayed further in making a claim in Canada. The panel also noted the Appellant's wife was allegedly subjected to an abortion in 2013, but the farm was allegedly seized in 2004, almost 9 years and 6 months earlier. The panel considered as well counsel's submission that the delay in leaving China was the result of inadequate funding and the need to borrow the money. The panel found that none of these explanations credibly account for such a lengthy delay. The panel drew a negative inference as to the Appellant's delay in leaving China and his delay in making a claim for protection in Canada. [42] The Appellant submits the panel was unreasonable in finding his delay in claiming protection reflected his lack of subjective fear of persecution. The Appellant argues he provided an explanation for the delay. The Appellant submits his livelihood was mostly taken away in 2004 and he was threatened by the authorities. In addition he could not leave China as he had to support his family and worked multiple jobs. He also did not have the financial resources to leave the country. As well he did not seek compensation for his land and he was therefore not at risk of persecution. [43] The Appellant argues his risk crystallized after his wife's abortion in 2013 and added pressure from authorities in this regard. He was then able to get the required funds to travel to Canada and try and support his family and bring them to Canada. He could not leave immediately because his wife need care and he needed to make arrangements for a visa. [44] As to his delay in making a claim for protection in Canada, the Appellant submits he did not understand his ability to make a claim until after his arrival. In addition his mother was ill and he did not know if he would have to return to China. He made the decision to make a claim when his mother told him to do so. The Appellant argues that in his circumstances, his explanation for the delay leaving China and in making a claim in Canada is reasonable. The Appellant further argues that the panel was unreasonable in finding this explanation fell under the purview of "right circumstances" as defined in Garcia. [45] The RAD has reviewed and assessed the evidence in the record concerning the Appellant's delay in leaving China and his further delay in making a claim for protection after he arrived in Canada. The RAD finds that it is clear from the Appellant's testimony that the he was not compelled to leave China because he feared persecution or harm at the hands of Chinese authorities. As noted in the analysis above and in the Appellant's testimony, he was not being pursued by family planning officials. Neither was he being pursued by his local village officials. [46] As to the Appellant's approximately 8 month delay in claiming protection in Canada, although his residence was illegal and he could have been deported at any time, the RAD finds it is clear from the evidence in the record that there was no basis for a fear of persecution or harm at the hands of Chinese authorities and therefore no basis for a claim for protection in Canada. The RAD further finds, on a balance of probabilities, that the Appellant came to Canada for economic reasons. As noted in para 43 above, he came to Canada in order try and support his family and bring them to Canada. DISPOSITION [47] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel February 22, 2017 Date 1 Huruglica: M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, at p. 162 and Exhibit 6, Personal Document Package. 3 Sheikh, Abdulhakim Ali v. M.E.I. (F.C.A., no. A-521-89), MacGuigan, Iacobucci, Desjardins, July 4, 1990. Reported: Sheikh v. M.E.I., [1990] 3 F.C. 238 (C.A.); 11 Imm. L.R. (2d) 81 (F.C.A.), at 244. 4 Exhibit RPD-1, RPD's Record, Exhibit 6. 5 Exhibit P-2, Appellant's record, Memorandum, p. 70. 6 Exhibit RPD-1, RPD's Record, at p. 162. 7 Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 8 Calderon Garcia, Cid Onasis v. M.C.I. (F.C., no. IMM-5949-11), Near, April 11, 2012, 2012 FC 412, at paras 19-20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-16442