TB5-03839

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 : TB5-03839 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 September 15, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ashley Erin Fisch Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX, is a citizen of China, and appeals a decision of the Refugee Protection Division (RPD) dated February 20, 2015, rejecting his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD or that the RAD refer the matter back to the RPD for reconsideration. 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 not a Convention refugee nor is he a person in need of protection. BACKGROUND [3] The Appellant fears returning to China because he alleges that he is a Falun Gong practitioner. The Appellant alleges that he began to practice Falun Gong in November of 2013 in the privacy of his home. In January of 2014 he decided to join an underground practice group which was raided in XXXX of 2014. The Appellant alleges that he went into hiding and arrived in Canada using his own passport and a valid Canadian visa. The Appellant did not provide a copy of his passport to the Board. He filed his claim for refugee protection in September of 2014. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court 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. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an 'overriding and palpable error'. [5] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found that the determinative issue in this claim is credibility. The RPD found that the Appellant was not a credible witness. [8] The RPD found that the Appellant's testimony was not credible. [9] The Appellant submits that the RPD erred in its credibility findings and misconstrued the facts and the law in this case. He argues that his testimony was straight forward, consistent and unequivocal. CREDIBILITY Fear of the PSB [10] The Appellant testified that he began to practice Falun Gong due to a medical condition. He stated that, although his wife was also suffering from physical ailments which forced her to take early retirement, she refused to become a Falun Gong practitioner out of fear of the Public Security Bureau (PSB). His wife's fears of the authorities were intensified after the Appellant's Falun Gong group was raided and the Appellant had been forced into hiding. [11] The RAD has had an opportunity to listen to the recording of the RPD hearing and found that there were a number of discrepancies with respect to the Appellant's testimony. [12] The RPD noted that the Appellant's hukou is dated XXXX XXXX, 2014, almost a month after the alleged raid of the Appellant's Falun Gong group by the PSB. When asked by the RPD as to why he had a new hukou the Appellant's first response was: "New hukou?" The RPD pointed out to the Appellant that the document had been issued on XXXX of 2014 and asked the Appellant if he wished to see it. At this point, the Appellant stated that this was his new hukou. [13] Given the above responses by the Appellant, it is reasonable to conclude that he was not aware of the existence of a new hukou and it was only after the persistent questioning of the RPD that the Appellant confirmed that the document was his new hukou. [14] The Appellant's testimony was also inconsistent with respect to the reason for obtaining a new hukou. The RPD asked the Appellant why he needed a new hukou and he replied that the old one had been damaged and they needed a new one in case someone wanted to check it out. He then stated that perhaps during the population survey, his wife had been told that she needed a new one. Later on in his testimony, the RPD once again asked the Appellant why his wife had obtained a new hukou and the Appellant changed his story and said that if the census people came back they would want to see a new one. [15] The RPD questioned the Appellant as to how he had obtained his hukou if the PSB were looking for him. He replied that his wife had obtained the document since the old one was falling apart. She had been advised by individuals doing a survey that they needed a new one just in case someone wants to look at it. The Appellant was then questioned by the RPD as to why his wife, who according to his testimony, was very fearful of the PSB, would present herself at an office of the PSB. The Appellant replied that his wife had been told that she needed a new one just in case someone needed to look at it. [16] The RPD rejected this explanation and found that he was not credible in his response. Counsel submits that "... the claimant's wife would want to take any measures possible to ensure that her family does not encounter further trouble with the authorities...."3 The RAD does not agree with this submission. [17] The Appellant stated that after the PSB had gone to his home to look for him, after the alleged raid of the Falun Gong group, his wife became very fearful of the PSB. He stated that she did not dare to go out of the house for fear of the PSB and that she only went out at night to go to their neighbour's house so she could contact the Appellant. The RPD asked him why she only ventured out at night and he replied that it was to avoid being monitored by the PSB. The RPD asked the Appellant if the PSB had ever threatened his wife and he replied that they had made oral threats to her. [18] Furthermore, the Appellant alleges that his wife is still fearful of the PSB, for when forwarding documents to Appellant in Canada she used the name of a family friend as the return address and forwarded the documents to the Appellant's landlord in order to avoid the PSB discovering their activities. Several times the RPD asked the Appellant why his wife, who allegedly feared the PSB, would present herself freely at a PSB's office and ask for a new hukou. The only reply provided by the Appellant was that the old hukou had been damaged. [19] The RAD rejects this explanation. In fact, the RAD finds that the Appellant provided no reasonable explanation as to why his wife, who feared going out during the day in order to avoid being monitored by the PSB, who allegedly had been verbally threatened by the PSB, would present herself at a PSB's office and run the risk of being detained, just to obtain a new hukou. It is reasonable to expect that someone who fears being monitored by the authorities, who has been verbally threatened by the authorities, would avoid contact with the authorities. [20] Given the numerous credibility issues relating to the reason why the Appellant needed a new hukou, and the credibility concerns with respect to the explanation as to why the Appellant's wife, who feared the PSB, would present herself at a PSB's office, the RAD finds that PSB did not attend at the Appellant's house to look for him because he was a Falun Gong practitioner. [21] The Appellant also alleges that, after the alleged raid, he went into hiding at a friend's house. He submitted a letter from his friend to support his allegation. The RPD asked the Appellant how long he had remained in hiding at his friend's house and he replied that he been there from July 14 to August 19, 2014. The RPD asked the Appellant why the letter from his friend states that he left the house on August the 9, 2014. The RPD concluded that the discrepancy was not explained satisfactorily. [22] Since the RAD has concluded that the PSB were not looking for the Appellant, the RAD gives this document little evidentiary weight. [23] The Appellant alleges that he exited China using his own valid passport. He stated that the "snakehead" had bribed the officer at the airport so he could pass through security. The RPD did not accept this explanation and concluded that if the Appellant had been sought by the PSB, he would not have been able to exit China without being apprehended by the authorities. [24] The RAD agrees with the conclusion of the RPD. The RPD was thorough in covering contradictory evidence and citing the relevant documentary evidence on this issue. The documentary evidence shows that Chinese authorities control the exit of the citizens, and criminal fugitives are flagged in the country's national computer network of policing. The Exit and Entry Administrative Law of China states that Chinese citizens who are suspects or defendants in criminal cases are not allowed to exit China. [25] Airport security officials have access to the Policenet or the Golden Shield which is the PSB's online database of citizens who have been convicted of crimes or are wanted by the authorities. The documentary evidence indicates that the PSB monitors citizens' exits from China and that an individual wanted by the PSB would be noted in the computer database. The documentary evidence also indicates that the Golden Shield Project uses eight databases that cover everything from population information to criminal record, fugitive information, passport exit and entry. The panel finds that the preponderance of the documentary evidence does state that authorities at airports conduct thorough screenings of passengers.4 The RAD agrees with the RPD that, on a balance of probabilities, the Appellant was able to leave China without any difficulty because he is not wanted by the PSB.5 [26] The Appellant did not produce his valid Chinese Passport. He testified that the agent took the passport after arriving in Canada. The only reason provided by the Appellant as to why he gave his genuine passport to the agent was because they had agreed to do so. The RPD noted that there were inconsistencies with respect to this aspect of the Appellant's testimony. At first he stated that they had agreed ahead of time that the agent would take his passport; later on in his testimony, he stated that he only learned that the agent would take his passport when they arrived in Canada. Although this is an important contradiction, the fact remains that the Appellant has not explained why he would freely give up an important personal document which establishes his identity and his travels to a perfect stranger. [27] This is not a case of the Appellant coming to Canada with a false passport and then returning the false document to the agent once he arrived in Canada. This is a case where the Appellant was in possession of a genuine Chinese passport which had been issued to him by the Chinese authorities. He used this genuine passport to obtain a visa to Canada, to travel to Europe, and exited China to come to Canada. Once he arrived in Canada, and before he filed his claim for refugee protection, he relinquished this genuine document to his agent simply because he and the agent had agreed to do so. [28] Although identity was not an issue in this appeal, the passport would not only have corroborated the genuine identity of the Appellant but it would also have corroborated the allegations in his narrative. The passport would have had a Chinese exit stamp on his passport with a date; the passport would also have had a stamp with the date of his entry in to Canada. All of these would have corroborated the fact that he had been in China when he alleges that he had been sought by the PSB. These details which would have been found in his passport are very important details which the Appellant could have relied upon to support his allegations. Yet he freely surrendered his passport to the agent and with it, he has lost a very valuable piece of information which would have corroborated the allegations in his narrative. [29] The Board is mindful of the recent decision of the Federal Court where the court stated that "All documents filed and the explanations provided by the Applicant must be considered before coming to a conclusion."6 In that particular case, the claimant had entered Canada on a false passport. That is not the case in this appeal. The Appellant used his genuine passport to obtain his Canadian visa and to travel to Canada. [30] For the Board to accept the explanation given by the Appellant as to the reason why he no longer is in possession of his genuine passport would be to commit a fraud on the IRPA. Section 106 of the IRPA states: The Refugee Protection Division must take into account, with respect to the credibility of the claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation... [31] Furthermore, Rule 7 states that "The claimant must provide acceptable documents establishing identity... A claimant who does not provide acceptable documents must explain why they were not provided...." [32] As the Federal Court has stated: "The onus is on the claimant to produce acceptable documentation establishing his or her identity. This is a high burden, as it should be."7 [33] As already stated, identity is not an issue in this appeal. However, the fact that the Appellant has not provided a reasonable explanation as to why he surrendered his genuine passport to his agent is a credibility concern for the RAD. Appellants cannot pick and choose which identity documents they want to provide to the Board. Filing a claim for refugee protection requires discharging onuses and responsibilities on the part of the Appellant who has a responsibility to make every effort to ensure that they provide genuine and authentic documentation to the Board. If they cannot provide these documents, their explanation for their failure must be reasonable and accepted by the Board. [34] The Federal Court has stated that: "... it is always open to the Board to draw negative credibility findings based on an applicant's failure to provide key identity documents absent compelling reasons as to why they could not be obtained."8 The RAD does draw a negative credibility finding with respect to the Appellant's failing to provide a reasonable explanation as to why he surrendered his passport to the agent after arriving in Canada. The Appellant's knowledge of Falun Gong practices [35] The RAD concludes that the Appellant's knowledge of Falun Gong practices does not prove that he is a Falun Gong practitioner for such knowledge may be obtained by studying and reading information on Falun Gong. CONCLUSION [36] On the basis of the findings noted above and after its own assessment of all the evidence in the Record and the transcript of the hearing, the RAD agrees with the RPD's finding that the Appellant has not established that he is a Convention refugee or a person in need of protection. [37] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellant is not a Convention refugee nor is he a person in need of protection. [38] The appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino September 15, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Exhibit P-2, Appellant's Record, p. 286. 4 RPD's Record, National Documentation Package (NDP) for China (October 31, 2014), item 14.3. 5 Ma, Lan v. M.C.I. (F.C., no. IMM-5123-14), Kane, July 9, 2015; 2015 FC 838. 6 Kabongo, Johnson Mili Tshibola v. M.C.I. (F.C.,no.IMM-1084-12), de Montigny, October 25, 2013; 2013 FC 1086, at para. 21. 7 Su, Sai v. M.C.I. (F.C., no. IMM-4632-11), Snider, June 14, 2012; 2012 FC 743, at para. 4. 8 Shi, Zhen Ting v. M.C.I. (F.C., no. IMM-4014-10), Barnes, February 18, 2011, 2011 FC 199 at para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03839