TB9-16503

RAD File / Dossier de la SAR : TB9-16503 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 November 30, 2020 Date de la décision Panel Kiran Qureshi Tribunal Counsel for the person who is the subject of the appeal Yirong Wang 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 (Appellant) is a citizen of China. The Appellant's allegations are as follows. [2] The Appellant fears persecution from the authorities in China due to his political opinion. In August 2015, the Appellant's father bought the family home in the Appellant's name. In March 2017, the town government notified the Appellant he must vacate the house as it would be demolished by the end of July 2017. The compensation the government offered was 100,000 RMB even though his appraisal said the property was worth 450,000 RMB. Two representatives from the affected homes repeatedly went to the town government to seek fair compensation. On July 5, 2017, the representatives and some residents, including the Appellant, went again to the town government office for an answer. The Appellant says he was rebuked after voicing his anger over the government's actions. On July 10, 2017, he participated in a protest in front of the town government's office. Police officers from the Public Security Bureau (PSB) came to arrest the protesters, but the Appellant was able to escape and went into hiding at a friend's house in Beijing. While he was in Beijing, he learned from his sister that the PSB were looking for him. With the help of a smuggler, he falsely obtained a visa and came to Canada on XXXX XXXX XXXX 2017. [3] The claim was heard on May 1, 2019. The Minister of Immigration, Refugees and Citizenship intervened. The Appellant's claim was rejected on June 7, 2019 on the basis of credibility and well-foundedness. The Appellant appeals to the Refugee Appeal Division (RAD). DECISION [4] I dismiss the appeal. The Refugee Protection Division (RPD) was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [5] The Appellant submits as new evidence a Response to Information Request (RIR) dated October 15, 2015 that was produced by the Board.1 However, I note this document already forms part of the relevant National Documentation Package (NDP) and therefore it is not necessary to consider its admissibility as new evidence. Also, as this document is not new evidence, there is no basis upon which to hold an oral hearing. ANALYSIS [6] I have reviewed the RPD decision on a standard of correctness and conducted an independent assessment of all of the evidence.2 I acknowledge that when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their veracity. [7] The Appellant submits that the RPD erred as follows:3 a. By finding the Appellant could not have exited China on his own passport even though he was assisted by a smuggler b. By finding the detention order is not genuine c. By doubting the credibility of the Appellant's identity as a protester RPD did not err by finding the Appellant exiting China on his own passport undermines that he is wanted by the PSB [8] The RPD considered objective documentation regarding the Golden Shield Project and the Appellant's evidence that he left China on his own passport.4 The RPD concluded that, even accounting for corruption in China, border screening of passengers is thorough and determined that the Appellant's ability to leave China on his own identity documents undermined his allegation that he is wanted by the PSB. The Appellant submits that the RPD erred by finding he could not have left China on his own passport because he was assisted by a smuggler.5 The Appellant does not further explain or articulate its submissions. However, I note the RPD decision does not address the Appellant's alleged use of a smuggler. I have considered this allegation and, based on my independent assessment, I do not find the RPD erred by concluding the Appellant's ability to exit through Beijing airport undermines that he is wanted by the police, for the following reasons. [9] Although the Appellant has not provided a summons or subpoena, he alleges that even though he escaped at the actual protest, the authorities were nevertheless able to recognize and identify him, and sought him on five occasions thereafter at his own home, as well as at his sister's home. I find, on a balance of probabilities, that this suggests the PSB had a significant interest in the Appellant and that, at the very least, he would have been entered into the PSB database. The documentary evidence indicates that generally PSB investigations - including detention and arrest procedures - require "meticulous documentation of offenders" and that the PSB "specifically requires documentation, reporting, and monitoring of potential offenders."6 Regarding a wanted person's ability to exit China without detection by authorities, the objective evidence also states that airport security officials have access to the PSB's online database of citizens who are wanted by the authorities (known as Policenet or the Golden Shield),7 and there is "clear evidence" that airport officials are connected to Policenet.8 Therefore, the objective evidence suggests that a wanted person in China would be detected while trying to exit the country on their own passport. [10] In the Appellant's case, he alleges he was able to exit China without detection due to the assistance of a smuggler. However, when questioned at the hearing, the Appellant had very little details on how this was orchestrated. For example, the Appellant was asked if he handed his passport to airport authorities in Beijing.9 The Appellant responded he did not and explained that the smuggler led him through another line. The RPD asked the Appellant where the other line was. The Appellant responded, "This I am not very clear because when arriving at the airport everything was arranged by the snakehead." The RPD went on to ask the Appellant how he was able to get through the airport when airport authorities have access to computer systems allowing them to see people who are of interest to the PSB. The Appellant simply responded that the smuggler arranged everything and "they let me leave." The RPD asked if he had any further details about the arrangements. The Appellant responded "no." That is, even though the Appellant was physically accompanied through the airport with a smuggler, he could not provide details of how this was orchestrated. Common sense and rationality dictate that one's illegal escape across international boundaries through a major international airport would be a memorable event. The Federal Court has stated that "where the evidence before the RAD does not establish that smuggling was involved or if there is a lack of evidence relating to the efforts or tactics used by the smuggler, it will necessarily be difficult to show that an Applicant could have overcome the Golden Shield program."10 Based on the objective documentation and the lack of details with respect to how the Appellant was smuggled out of China, I find, on a balance of probabilities, that the Appellant did not use a smuggler to help him exit through the airport. [11] As an aside, I note that the RPD decision states "facial recognition technology is used at Beijing and Guangzhou airports."11 I note however that in the RIR cited by the RPD, it states "In Beijing, photographs were taken in the past, but are not being taken now." Therefore, to the extent that the RPD decision relies on the use of facial recognition technology as a reason why the Appellant would not have been able to pass through Beijing airport without detection, this would be an error. Nevertheless, the objective evidence concerning the Golden Shield Project is substantial and establishes, as correctly found by the RPD, that a person of interest to the PSB would be highly unlikely to be able to exit China on their own passport,12 which undermines the Appellant's claim that he is of interest to PSB for protesting the compensation he received when his land was expropriated. RPD did not err by finding the Detention Order is not genuine [12] The RPD considered the Appellant's documentary evidence including a Detention Order for another protester. The RPD concluded that the document was without security features and could have been produced by anyone, and that the Appellant's use of fraudulent documents for the purpose of a visa demonstrates that he has access to fake documents. The RPD concluded that the Detention Order was not genuine.13 The Appellant submits that the Detention Order is genuine because he used a smuggler to help him obtain a visa, which he would not have needed to do otherwise.14 Based on my independent assessment, I find the RPD was correct in finding the Detention Order is not genuine, and that it does not establish that the Appellant is wanted by the PSB, for different reasons as follows. [13] First, regarding the Appellant's argument, I do not accept that the Appellant retaining a smuggler to help him obtain a Canadian visa automatically establishes that the Detention Order is genuine. A person may wish to retain a smuggler to help them obtain a Canadian visa not only because they may be wanted by police, but also because they simply would not meet the criteria for being issued a Canadian visa on their own genuine credentials. Secondly, as the Detention Order indicates that another protester was detained, this is not probative of the PSB's interest in the Appellant himself for having allegedly protested the expropriation. [14] Finally, I note that sample detention orders in the objective documentation identify the legal provision and article under which the detention is taking place.15 Contrarily, the document produced by the Appellant does not name any legal provision. I find that the law and article under which one is being detained is a relevant and important feature of a detention document given that its central purpose is to allege that someone is in contravention of the law. The court has said "it may very well be reasonably open to the RAD or another decision maker to question the authenticity of a document based on very small or even microscopic differences between the document and an authentic counterpart. It is in the small or microscopic details where a forgery may well be exposed."16 I find that this undermines the authenticity of the Appellant's document. The Federal Court has determined that the RAD is not required to give an appellant notice of inconsistencies in their own documents. They are reasonably expected to be aware of the contents of the documents that they themselves provided.17 I therefore do not find that the Detention Order is genuine or that it corroborates the Appellant's allegations that he was involved in a protest and is wanted by the PSB as a result. RPD did not err by doubting the credibility of the Appellant's identity as a protester [15] Finally, the Appellant submits that the RPD erred by doubting the credibility of his identity as a protester and points to objective evidence which indicates that protests against the government can lead to arrest, beating, harassment and death in China.18 The Appellant relies on a Response to Information Request in the NDP as support for its contention that land expropriations have resulted in harm and imprisonment of residents who have resisted.19 [16] I acknowledge that the RIR cited by the Appellant relays instances where protesters were detained and mistreated for resisting expropriation. However, the RIR does not actually comment on the authorities' rationale behind the detentions or mistreatment. That is, the RIR does not conclude on whether the authorities' retaliation is with the sole intent of exacting compliance with the expropriation order and that their interest dissipates once that goal has been achieved, or whether retaliation is due to protesters breaching laws of general application, such as rules against large gatherings or disturbing the peace, or, as the Appellant suggests, that the authorities retaliate because they consider resistance against expropriation to be a denunciation of the government or its policies. The RIR does point to an instance where thugs were hired to intimidate residents into acquiescing, and another instance where police were sent to a village to force the farmers out. If anything, this suggests that the authority's goal is to obtain compliance with expropriation orders rather than specifically punishing the protesters for expressing anti-government views. In the Appellant's case, he alleges that the authorities achieved their end goal of demolishing his home, and there is no evidence of further visits by the PSB since May 2018.20 [17] Secondly, the RIR indicates that protests or riots pertaining to land expropriation are extremely common in China, with tens of thousands of such incidents every year. However, there is little to no equivalent information in the RIR or in other NDP documents to suggest that the government has responded with a widespread large-scale crackdown against those who protest expropriation. Rather, other objective documentation suggests that the central government actually agrees "that strong and secure land property rights for farmers are key to achieving social stability and sustainable growth in the agricultural sector" to the extent that it has taken steps to curb local authorities' desire and ability to expropriate farmers' land,21 although evidence with respect to the effectiveness of the policies are mixed. [18] The case of Huang22 is factually similar to the Appellant's situation. In Huang, similar to the Appellant, the claimant also managed to escape the police from a protest against expropriation, also went into hiding, was also notified that the PSB had visited his home, also used a smuggler to leave China and also did not provide any documentary evidence to the Board such as a summons or warrant. The Federal Court stated: I note that in Ni v Canada (Citizenship and Immigration), 2018 FC 948, Justice Elizabeth Walker found reasonable the RPD's decision that being involved in a protest to demand fair compensation did not amount to persecution on a Convention ground. Further, shouting anti-government slogans does not necessarily mean that there is a nexus to a Convention ground (Yan v Canada (Citizenship and Immigration), 2018 FC 781 at para 22). Even if I had accepted that the Applicants were wanted, they have not established that they would be persecuted; they have only established that they would be prosecuted for contravening a law of general application. Mr. XXXX testified that he did not want to return to China because he would be arrested and put in jail, not that he would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture. While it is true that the Applicants specifically pointed to objective country evidence documenting certain cases of abuse of individuals who protest against land expropriation, the RPD found there was insufficient evidence that the Applicants themselves would be subjected to treatment amounting to persecution. I find this conclusion to be reasonable. In other words, there is no evidence that persons who have opposed land expropriation are systematically subjected to treatment amounting to persecution, such that it renders unreasonable the RPD's conclusion that the Applicants will not be subjected to persecution. I also note that the government has already expropriated the Applicants' land and would have only a limited, if any, interest in the principal Applicant other than to prosecute him for having participated in an illegal gathering. Lastly, the fact that the sentence for unlawfully opposing an expropriation is harsher in China than in Canada does not amount to persecution. [19] Overall, I do not find that the Appellant has established with sufficient credible evidence that he would be viewed as a political dissident because of his alleged involvement in land expropriation protests against the government or that he is wanted by the PSB, on a balance of probabilities. [20] I find that there is no serious possibility that the Appellant would be persecuted in China, and that, on a balance of probabilities, he would not be personally subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment. CONCLUSION [21] 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) K. Qureshi K. Qureshi November 30, 2020 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 12. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 6. 4 Exhibit RPD-1, RPD Record, RPD Reasons, at paras. 12-22. 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 6. 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China, (29 March 2019), Item 12.8, Immigration and Refugee Board of Canada, 23 September 2015, Response to Information Request (RIR) CHN105283.E, at p. 2. 7 Exhibit RPD-1, RPD Record, NDP for China, (29 March 2019), Item 14.3: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports (2011-February 2014). Immigration and Refugee Board of Canada, 6 March 2014,RIR CHN104761.E. March 2014, at p. 6. 8 Ibid. 9 Transcript of May 1, 2019, RPD Hearing, at p. 12. 10 Mao v. Canada (Citizenship and Immigration), 2020 FC 542, at para. 40. 11 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 19. 12 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China, (29 March 2019), Item 16.2: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports (2011-February 2014), Immigration and Refugee Board of Canada, 6 March 2014, RIR CHN104761.E. 13 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 27-29. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 6. 15 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China, (29 March 2019), Item 9.6: ?Format of notices of detention and notices of arrest, including signatures, letterhead and information contained in the documents (2015-June 2018), Immigration and Refugee Board of Canada, 5 July 2018, RIR CHN106128.E. 16 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064 (CanLII), at para. 31. 17 Konare v. Canada (Citizenship and Immigration), 2016 FC 985 (CanLII). 18 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 6. 19 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China, (29 March 2019), Item 9.4: ?Legislation and procedures regarding land expropriation in urban and rural areas; documentation issued in cases of land expropriation; recourse available to citizens who oppose land expropriation; state response to citizens who resist..,. Immigration and Refugee Board of Canada, 15 October 2015 RIR. CHN105284.E. 20 Exhibit RPD-1, RPD Record, Exhibit 8, Amended Basis of Claim (BOC), at p. 28. 21 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (29 March 2019), item 9.7 at p. 1-2. 22 Huang v. MCI, 2019 FC 148. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-16503 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