TB8-15196

RAD File / Dossier de la SAR : TB8-15196 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 August 24, 2020 Date de la décision Panel Patricia Broad Tribunal Counsel for the person who is the subject of the appeal Diane B. Coulthard 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) is a citizen of China. He claims that as his family did not comply with the family planning rules in China, he faces sterilization there. He applied for protection in Canada. The Refugee Protection Division (RPD) found that there was not sufficient credible evidence to support his claim. [2] Having reviewed the record, I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant bases his claim on the following. [4] The Appellant and his wife lived in Liaoning. They had a child and his wife used an IUD for birth control afterwards in 2004. They were entitled to have a second child and did so in XXXX 2012. His wife again used the IUD. However, because of health issues, it was removed. The doctor who did so provided a letter to support her with the government. The wife started to use birth control pills. However, she became pregnant and was forced to have an abortion. She received notice in XXXX 2015 that either she or her husband would have to be sterilized. He and his wife went to stay with his aunt to hide. Birth control officers went to his home to find them; they spoke to his parents. The parents also told him that their daughter was expelled because of the violation of birth control policies. His wife did not have a passport, so the Appellant left on his own. [5] He claimed protection in Canada. The RPD held a hearing on December 18, 2015 and on January 11, 2016. It found that he was not a Convention refugee. There were issues with the documentation, and there was not a sufficient likelihood of persecution should the Appellant return to China. The Appellant appealed to the Refugee Appeal Division (RAD). In a decision dated May 28, 2018, the RAD remitted the appeal back to the RPD. In the second RPD decision, the RPD found that there was insufficient credible evidence that the Appellant was a Convention refugee. [6] The Appellant has once more appealed to the RAD. Notice for updated National Documentation Package (NDP) [7] In a letter dated Jun 29, 2020, I provided notice that I would be relying on all relevant documentation in the NDP that was on record at the time that the decision was being written. I specified seven articles from the NDP on China from March 31, 2020 that I had considered, all of which relate to the central issues of family planning in China. These articles are: A. Item 3.2: "Security features of birth certificates, including the meaning of the alphanumeric code (2000-December 2017)". B. Item 3.29: Family planning-related documents issued by the family planning authorities and/or hospitals in Guangdong Province, including whether authorities issue reports detailing abortions, sterilizations, and/or implantations of IUDs (intrauterine devices). C. Item 5.5: China: Whether Family Planning authorities, including in Guangdong and Fujian provinces, enforce the two-child policy through forced abortions, sterilization, and other birth control methods; information on measures taken against parents who fail to register additional children, including fines (replaces CHN106235 of 1 October 2019). D. Item 5.6: Country Policy and Information Note. China: Contravention of national population and family-planning laws. Version 3.0. E. Item 5.7: China: Effects of the implementation of the Two-Child Family Planning Policy on children born outside the country and their parents, including access to social services and benefits, particularly in Guangdong, Fujian, Hebei, and Liaoning; punitive measures taken against parents who return from abroad after having children in violation of family planning policies, including whether the Two-Child Family Planning Policy is being applied retroactively (2017-October 2018). F. Item 5.12: People's Republic of China. Social Institutions and Gender Index 2019. G. Item 5.14: Whether a National Population and Family Planning Commission directive prohibiting forced abortion and sterilization was issued in 2012 and implemented (2012-January 2015). [8] I also provided copies of two of the articles, NDP items 3.29 and 5.5, to ensure that counsel had access and could review the attachments to the documents. The Appellant was given 30 days to provide submissions on these articles. [9] The Appellant responded in a submission dated July 29, 2020. [10] In it, he argues that the RAD must ask a specific question regarding the evidence. He quotes Torres,1 which states that inconsistencies must be presented to an appellant so that he or she can respond. However, the updated information does not present evidence that directly contradicts the Appellant's statement. The main point in the documentary evidence is that the family planning laws have become more relaxed; this is self-evident in the articles. [11] Also, the "Policy on National Documentation Packages in Refugee Determination Proceedings",2 states that the RAD will "disclose to the parties new NDP documents only when they wish to rely upon them". Further, having given counsel notice that it is on record and having given a generous amount of time to review it, the circumstances are similar to those when an appellant is before the RPD. As noted in the Policy, parties are responsible to be aware of the documentation in the NDP after the RPD discloses the relevant NDP. The same applies for the RAD and the current NDP when the RAD has informed the parties that the NDP is updated; counsel is expected to know it. The Appellant has been given a full and fair opportunity to present any arguments both on the NDP the RAD disclosed, as well as the specific articles it relied upon. NEW EVIDENCE AND ORAL HEARING [12] The Appellant has submitted no new evidence, nor has he requested a hearing. As there is no new evidence, the RAD does not have jurisdiction to hold a hearing.3 ANALYSIS The likelihood of persecution in China [13] The RPD noted that it found that it was not likely that the Appellant was a citizen of China. However, I find that even if the Appellant is a citizen of China, there is insufficient evidence that there is a serious possibility of persecution in China. [14] At the outset, it is clear that the Appellant's claim relies on a refusal to undergo sterilization. It is not the refusal of the wife to undergo an abortion, nor is it the birth of a third child. Rather, the Appellant and his wife received notice that one of them would have to be sterilized and the Appellant fled. His wife remains in China. Hence, the question is the level of risk of persecution for refusing to be sterilized. [15] The weight of the evidence does not support a finding of a serious persecution. There is little likelihood he would be punished in Liaoning or in China as a whole. As will be discussed, there are issues with the documentary evidence. Further, it is unclear how the Appellant's wife could live in China for about five years since he left without facing consequences. There is insufficient evidence that she had any incidents with authorities, or that the authorities visited the home of the Appellant's family, since 2015. This is in the context of documentary evidence that women are more likely to be subjected to persecution for violating the family planning laws than men. Given the issues with the evidence, it is important to consider the documentary context of this claim. [16] In fact, there is very little evidence regarding punishment for men. [17] In his most recent submission, the Appellant argues that the documentary evidence, notably an Immigration and Refugee Board (IRB), Response to Information Request (RIR) at NDP item 5.54, shows that the government continues to promote implementation of harsh and invasive family planning measures. However, these measures consist of a two- child policy and the Appellant has two children. In order to have more children, the Appellant may have to pay a fee; this is not the serious harm that is necessary for a finding of persecution. It is also not consistent with his claim that he faces sterilization should he return now to China. Further, this same article notes that forced abortions and sterilizations are less common.5 In fact, they could apply for approval of a third child.6 [18] In Liaoning, government employees face administrative sanctions for violation of the family planning laws.7 The Appellant wrote that he was a manager of a restaurant, although he also wrote that he was a clerk at a bank.8 The Appellant testified that he never worked in a restaurant.9 However, even if he was a government employee and was facing sanction, that is not consistent with a forced sterilization, nor is it sufficient to find serious harm necessary for persecution. Further, this article also states that sterilizations are less frequent. Similarly, an IRB RIR states that the repercussion for returning to Liaoning after violating a policy is a fine of ten times one's income;10 it is not sterilization. I give this documentary evidence significant weight as it is from a neutral and reputable source. A fine is not serious harm; it is not persecution. [19] There is some evidence that forced sterilization still occurs, but the evidence about it is dated; the most recent dates are in 2014, and they appear to be forced mostly on women.11 Other articles also contain information about forced sterilization. The Appellant argues in his most recent submission that in the April 2018 NDP, the UK Home Office had noted a 2017 CECC report stating that the government reportedly continued to force sterilization.12 The citation in the Memorandum is incorrect; the UK Home Office quoted a CECC report from 2013 in the 2018 NDP.13 I was able to find the quote in the UK Home Office Report at item 5.6 in the March 2020 NDP. 14 It refers to a comment from a November 2015 UN Committee against Torture. This comment is dated, almost five years old, and I give it less weight when assessing a forward-looking risk. The evidence shows that sterilization is less likely now. This lessens the likelihood that a man would be forced to be sterilized. Again, this is the Appellant's claim; not his wife's claim [20] The Appellant argues that the documentation about forced abortion is mixed;15 but the issue is forced sterilization and not forced abortion. The UK Home Office does state that some provinces still do forced abortion.16 However, Liaoning is not listed as one of them. The issue is not that the wife was forced to have an abortion; she is not the claimant. [21] The RPD questioned whether the Appellant was a Chinese citizen. Essentially, even if the Appellant is a Chinese citizen, and even if there were problems in the past, the likelihood of a forward-looking risk of persecution is too low to meet the standard of a Convention refugee. The objective documentary evidence shows that the family planning laws are relaxed; there is a significant passage of time since the Appellant left; his wife, who is the greater target, has lived in China for years with little incident; and as a man, it is less likely that the Appellant would be targeted. These factors lead to a conclusion that the likelihood of persecution is too remote to constitute a serious possibility of persecution. The Appellant has pointed out evidence of human rights abuses in the most recent NDP, and in so doing quotes the Department of State Report on Human Rights for 2017.17 This quote states that the birth limitation policy is coercive and results in sterilization in some cases. However, I have considered this evidence in the context of the claim before me. The factors that weigh against the likelihood of forced sterilization outweigh the evidence that supports it. [22] The Appellant's testimony regarding the likelihood of persecution was not consistent with the documentary evidence. He testified that it could happen that men are forced to be sterilized when the woman is unable to undergo sterilization.18 However, as previously noted, the weight of the documentary evidence is that he could apply for a third child. This weighs against the likelihood that he would face sterilization [23] In addition, there were concerns with the documentary evidence which also weigh against the likelihood that the Appellant will face persecution in China. Documentary evidence Birth Certificates [24] There are issues regarding the birth certificates of the children. The RPD had sent them for a forensic examination from the Canadian Government's National Anti-Counterfeiting Bureau.19 The Appellant argues that the RPD's finding that they were fraudulent was speculative; the RCMP does not conclude that the documents are fraudulent. [25] The forensics experts state that the authenticity of the documents is inconclusive as there was not a genuine specimen for comparison. They noted that inkjet is not a known matter for printing serial numbers and wet seals.20 [26] When he was asked at the hearing about the birth certificates, and why they did not meet the standards of serial numbers printed by a letter press and set seal printed by a rubber stamp impression, the Appellant responded that he did not know.21 This is not a reasonable answer as he provided the evidence. I note that the RPD was in a position of significant advantage to review the birth certificates. The Appellant does not take issue with the RPD's description of them. In this case, and in these circumstances, I give deference to the RPD's comments about the format of the birth certificates. [27] The weight of the evidence is that it is not likely that it is an authentic document. Given a wet seal is a security measure, it is not likely that it would be done by ink jet. Further, while the Appellant was aware that this was an issue, he did not provide evidence to support a finding that it is more likely than not that the inkjet is valid. [28] The Appellant provided evidence of a DNA test to prove that the two daughters are his own. However, even if it is valid, it only proves he is the father of the children, not their citizenship. Further, two children are now allowed in China. It is not evidence that the Appellant would face sterilization. The DNA test is not evidence of a forward-looking persecution. School expulsion and sterilization notice [29] It was an error to import the credibility findings of the birth certificates to the sterilization notice and school expulsion. However, the school expulsion and the sterilization notice were over five years ago and not sufficient evidence of any persecution since then. Further, if they wanted to sterilize one member of the couple, it is likely that they would have found and sterilized the wife by now; there is insufficient evidence to conclude that there is any health issue that would prevent them from doing so. Even if she is in hiding, it has been almost five years since the notice and since any attempt to find them. If the agents of persecution were still seeking the Appellant, there would have been more activity. This weighs against the likelihood of a future-looking serious possibility of persecution; the likelihood is too remote. Marriage Certificate [30] The RPD expressed concerns about the condition of the marriage certificate. When asked about the condition of the marriage certificates, the Appellant testified he did not know why the spine was ripped and that his children were playing with it.22 However, whether he is married or not, the central issue is the likelihood of sterilization in China. Being married does not lead to sterilization, and the evidence states that the likelihood that a male would be sterilized years after the notice in the current climate is unlikely. [31] Further, this is in the context of the Appellant being able to receive a passport while in hiding. None of these things in and of themselves are determinative, but the issues do weigh against the likelihood that he faces sterilization is too low. The documentary evidence has very limited probative value regarding whether there is a serious possibility he would face sterilization; especially in the context of objective documentary evidence that does not support the claim. [32] I note that the Appellant states that the RPD found he was in Guangdong and not Liaoning, but I did not find that in the decision. In any event, I have considered the risk in Liaoning and not Guangdong. Section 97 [33] I note that there is also insufficient evidence that the Appellant is a person in need of protection. The burden of proof to establish one is a person in need of protection is higher than that for a Convention Refugee. The standard to establish that one is a Convention Refugee in accordance with section 96 of the Immigration and Refugee Protection Act (the Act) is whether there is more than a mere possibility; the standard to establish that one is a person in need of protection in accordance with section 97 of the Act is whether on the balance of probabilities one is in need of protection. One must show that there is a mere possibility of persecution under section 96. Section 97 stipulates that one must show that there is a danger of torture; alternatively, that there is a risk to one's life or a risk of cruel and unusual treatment or punishment. The level required to establish a sufficient risk is higher under section 97 than it is in section 96. Further, the burden of proof is higher. As there is insufficient evidence to establish that the Appellant faces more than a mere possibility of persecution in China, there is also insufficient evidence that he is a person in need of protection in China. CONCLUSION [34] 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) Patricia Broad Patricia Broad August 24, 2020 Date 1 Torres v. Canada (Minister of Citizenship and Immigration), 2002 FCT 212. 2 https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx [Hereinafter referred to as the Policy]. 3 Section 110(6) of the Act. 4 National Documentation Package (NDP) for China, March 31, 2020. Item 5.5. Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR). CHN106400.E. December 18, 2019. 5 Ibid., Item 5.5, at p. 4. 6 Ibid., Item 5.6, United Kingdom. Home Office. November 2018, at para. 2.4.6. 7 Ibid., Item 5.6, at para. 5.5.2. 8 Exhibit RPD-1, RPD Record, Exhibit 3, p. 321. 9 Transcript of RPD Hearing, January 11, 2016 pp. 8 and 9. 10 Ibid., Item 5.7. IRB, RIR.CHN106165.E October 18, 2018; also, see item 5.13 (IRB, RIR. CHN105499.E, May 19, 2016) which confirms the sanction is a fine. 11 Ibid., Item 5.14. IRB, RIR. CHN105051.E. March 4, 2015, at p. 6. 12 Exhibit P-3, Response to Member's Directions, p. 5. 13 NDP for China, April 30, 2018, Item 1.9. United Kingdom. Home Office. July 2015. paragraph 4.1.6 14 Supra, endnote 6. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 16, para. 16. 16 Supra, endnote 6. 17 Found at NDP for China, October 31, 2018, at Item 2.1. United States. Department of State. April 20, 2018. 18 Transcript of RPD Hearing, May 14, 2018 p. 9. 19 Exhibit RPD-1, RPD Record, Exhibit 1, pp. 50-53. 20 Exhibit RPD-1, RPD Record, Exhibit 1, p. 50. 21 Transcript of RPD Hearing, May 14, 2018, p. 13. 22 Transcript of RPD Hearing, May 14, 2018, p. 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-15196 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