TB9-35625

RAD File / Dossier de la SAR : TB9-35625 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 13, 2020 Date de la décision Panel Elana Rose Tribunal Counsel for the person who is the subject of the appeal Stacey Margaret Duong 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, appeals a decision of the Refugee Protection Division (RPD), dated December 10, 2019, rejecting his claim for refugee protection. [2] The Appellant fears returning to China due to his participation in a protest against land expropriation in his village. On XXXX XXXX XXXX 2017, the Appellant along with others approached the government offices to protect unfair compensation. In XXXX 2017, the Appellant and four others became the representatives for the community of 40 farmers and petitioned the government. On XXXX XXXX XXXX 2017, one of the representatives was advised that a decision had been made in relation to their petition and that compensation would remain unchanged, resulting in a farmer's protest on XXXX XXXX XXXX 2017. After the protest, when the Appellant was not home, the Public Security Bureau (PSB) came to his home seeking his arrest. The Appellant engaged a smuggler and came to Canada on XXXX XXXX XXXX 2018. He claimed for protection in XXXX 2018. [3] The Appellant is not submitting new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). The Appellant is also not requesting an oral hearing pursuant to subsection 110(6) of the IRPA1. [4] In deciding this appeal, my role is to look at all the evidence and decide if the RPD made the correct decision2. The Appellant asks that I substitute a positive decision under Section 111(b) of the IRPA; or remit the matter back to a differently constituted panel under Section 111(c). [5] The RPD found that the Appellant lacked credibility, and after an independent review of the record I find that the RPD's decision is correct and I dismiss the appeal. ISSUES IN APPEAL [6] The Appellant argues that the RPD erred in the analysis of the Appellant's Hukou and erred by engaging in a microscopic analysis of the Appellant's land expropriation details. Specifically, the Appellant submits that: * the RPD erred in drawing a negative inference from the Appellant's failure to identify at the outset that he was fined for engaging in an underage marriage, as he was never asked; * the RPD erred by dismissing the evidence around the Appellant's Hukou issuance, finding it to be confusing and lacking in credibility, and incorrectly linked it to the adverse findings on the Appellant's marriage certificate; * the RPD erred in finding the Hukou was not genuine due to the availability of non-genuine documents in China; and * the RPD erred in focusing on microscopic details related to the expropriation claim, like the inconsistency between his oral testimony and his supporting documents on the value of his property. [7] While the Appellant has identified the above noted challenges, he has not contested the other adverse credibility findings drawn by the RPD, which I find are supported on the record, and which I agree are correct and chip away at the Appellant's overall credibility. The RPD drew an adverse finding from the following: * The Appellant provided inconsistent and evolving evidence3 on the location of his passport used to exit China and enter Canada4, undermining the establishment of his location at pivotal times; and failed to explain the inconsistency raised between his Generic Application Form statement5 and oral testimony; * The Appellant's evidence on the issuance of his replacement marriage certificate, dated XXXX XXXX XXXX 2019 in his absence, supported that the document was not genuine. The photograph contained in the certificate does not reflect the Appellant as a young man in 1996 as alleged, but depicts a middle-aged man; and the evidence on obtaining the certificate was vague and evolving; * The Appellant omitted mention in his Basis of Claim (BoC) form that he is the subject of an ongoing Public Security Bureau (PSB) search, post XXXX XXXX XXXX 2017; * The Appellant provided fraudulent documents in support of his claim; and * The Appellant omitted in his Background Schedule6 that there was a summons or that he was wanted by the authorities in China, despite the issuance of a summons in XXXX 2018, three months before signing his documents.7 Marriage certificate, Hukou certificate, and expropriation documents are not determinative findings [8] I agree with the Appellant that the RPD erred in its treatment of the Appellant's explanation for delaying the first registration of his marriage in 1996, due to being underage. I find the evidence on the early underage marriage, and the testimony around the penalty by the village authority for engaging in early marriage contained in the record, to have been provided spontaneously when asked.8 [9] That said, the uncontested findings around the photograph contained in the marriage certificate, and the document's issuance, in my view do undermine the reliability of the marriage document reissued to the Appellant's wife on XXXX XXXX XXXX 20199. [10] According to the Appellant, the marriage certificate issued in 2019 contained the same duplicate photograph that was provided for the original marriage certificate issued in XXXX 1996. The Appellant offered confusing evidence around the photograph10; and acknowledged that the photograph contained in his RIC taken in 2007, 8 years later, pictured a younger and thinner man11. [11] The conclusion on the marriage document and photograph is not contested by the Appellant, and I agree that the photograph is not picturing a young man consistent with it having been taken of the Appellant in the 1990's. [12] The Appellant also provided vague evidence around the issuance of the marriage certificate to his wife, given that he alleges to have an outstanding summons and active PSB pursuit of him. Initially he testified that his wife could just take his RIC and get a copy of their marriage certificate12, and when the danger of so doing when he was a wanted man was put to him, the Appellant changed his testimony indicating that his wife had someone obtain the documents: 'My wife knew a person to do it for us.' 13 I agree with the RPD that the evolving evidence on issuance of the marriage certificate and the photograph that clearly depicts the Appellant as an older man and not as a young man in 1996 as alleged, undermines the credibility of the document. [13] As I do not find the RPD finding on the Hukou, or the issue of the Appellant's memory of property values related to his expropriated land 14, or the inconsistency in documents that refer to woodland, when the Appellant describes it as farm land, to be determinative issues, I have not addressed the Appellant's submission. [14] I find that the credibility of the Appellant's claim lies squarely with the credibility of the PSB pursuit of the Appellant for his involvement in a protest, that he alleges gave rise to an imputed political opinion. This is, in fact, the core allegation for the Appellant, and if true, this profile could establish a forward-looking risk on return to China. [15] For the following reasons, I find that the Appellant did not establish this aspect of his profile with credible evidence and coupled with the other uncontested credibility findings, the RPD conclusion that the Appellant lacks credibility is correct. Appellant's Profile and PSB pursuit is not credible [16] The Appellant testified that he left China as he had been charged by the authorities for organizing a group of people to protest against the government and disturb social security.15 [17] He testified that he was outspoken at a group protest, and as one of the representatives of his village, this led to an active PSB pursuit of him, beginning with a visit to his home on the day of the protest16, and continuing thereafter. [18] A review of the record confirms that the Appellant offered confusing evidence about the events and timing of the protest and police visit17, with an evolving story about leaving for the city, seeking to obtain tickets to Beijing.18. Others who were charged are still in detention 2 years later.19 [19] The Appellant testified that the police came five times between XXXX 2017 and XXXX 2018 when he left China20, coincidentally, each PSB visit coincided with a holiday in China. The explanation for the complete omission of the active PSB pursuit while in hiding and thereafter from his BoC21, was not found credible by the RPD and I agree. His explanation that he thought it necessary to focus on the main 'things' is not reasonable given that it is the PSB pursuit that caused him to go into hiding and flee China. [20] It is also notable that according to the Appellant, the PSB made five trips to his home seeking his arrest, yet no summons was left until after he fled from China in XXXX 201822 and no coercive summons subsequently. The RPD noted this in the decision that this is not supported objectively23. [21] The Appellant does not challenge the RPD finding that the summons is not genuine, or that the Appellant failed to establish the PSB pursuit. Instead, the Appellant raises other challenges with RPD findings, which in my view do not speak to the core allegation that led to the Appellant's need to seek international protection. [22] The summons24 issued on XXXX XXXX XXXX 2018 deviates in its substantive layout and content from the samples contained in the National Documentation Package (NDP).25 I agree that it is fraudulent. [23] The objective evidence confirms that; "...there has been no variation in the format of the summonses and subpoenas since 2003 (ibid. XXXX XXXX 2013)."26 The documentation goes on to state that such forms are supposed to be used throughout the country and that "'regional variations are not meant to exist' [footnote omitted]".27 [24] The identifier prior to the name of the individual concerned (top left) is missing on the Appellant's summons. The structure of the second and third lines is inconsistent with the NDP, specifically the character before the number 30 is on the second line in the Appellant's summons, and not the third line as pictured in the objective sample. In observing the spacing for the bottom three lines of the Appellant's summons, it is also inconsistent with the documentation provided in the NDP.28 [25] It is the deviations in document and practice that confirm the RPD finding that the Appellant has provided a fraudulent summons. This is an important credibility finding as the credibility of the Appellant's story and fear hinges on his imputed political opinion profile, which he supports with the PSB pursuit for his arrest. [26] As the submission of a false or irregular document may have an impact on the weight assigned to other documents provided by the Appellant, especially when they are interrelated29, and also impact the overall credibility of the Appellant30; the fraudulent summons brings the credibility of the expropriation documents that the Appellant has submitted in support of his alleged profile into question as well. [27] Essential for the Appellant was establishing a profile that put him at risk on return, and he has failed to do so with sufficient credible evidence. While supported adverse credibility findings around the ownership of land and his marital situation could affect the Appellant's general credibility, in this case, they are not determinative. The central and core allegation for the Appellant is whether he is wanted by the PSB for his imputed political profile. [28] In my view, when the Appellant provided a fraudulent summons and provided evidence around a protest linked to a PSB pursuit that lacked credibility, the most central and essential aspect of his claim allegation was eroded, and this undermines his appeal. [29] As noted by the Federal Court, even an active protest against expropriation has been held not to amount to persecution on a Convention ground, as it does not draw a nexus to a Convention ground.31 The Appellant needed to establish an imputed political profile with sufficient credible evidence and he has failed to meet his onus. [30] I do not have to disbelieve every part of the Appellant's evidence to find him sufficiently lacking in credibility, or to find that there is insufficient credible evidence relevant to his refugee claim32 and insufficient credible evidence establishing his appeal. CONCLUSION [31] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugee nor a person in need of protection. (signed) "Elana Rose" Elana Rose November 13, 2020 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 32. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Transcript of the RPD Hearing dated October 17, 2019, pp. 16, 37, 38. 4 Ibid., p. 37. 5 Exhibit RPD-1, RPD Record, p. 37 6 Exhibit RPD-1, RPD Record, p. 47, Question 8. 7 Ibid. 8 Transcript of the RPD Hearing dated October 17, 2019, p. 11. 9 Exhibit RPD-1, RPD Record, pp. 124-127. 10 Transcript of the RPD Hearing dated October 17, 2019, pp. 12, 13. 11 Exhibit RPD-1, RPD Record, p. 52. 12 Transcript of the RPD Hearing dated October 17, 2019, p. 14. 13 Ibid., p. 15 14 Ibid., pp. 18, 19. 15 Transcript of the RPD Hearing dated October 17, 2019, p. 17. 16 Ibid., p. 27. 17 Ibid., p. 28. 18 Ibid., p. 29. 19 Ibid., p. 31. 20 Ibid., p. 34. 21 Ibid., pp. 32, 33. 22 Ibid., p. 34. 23 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China (28 June 2019), at Item 9.11. 24 Exhibit RPD-1, RPD Record, Exhibit 6, p. 137. 25 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (28 June 2019), Item 9.10. 26 Ibid. 27 Ibid. 28 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (28 June 2019), Item 9.10, p. 8. 29 Uddin, Nizam v. Canada (M.C.I). (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002. 30 Gochez, Julio Cesar v. Canada (M.C.I.) (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. 31 Huang v Canada (C & I) 2019 FC 148, paras. 40-44 ; Ni v Canada (C & I) 2018 FC 948; Yan v. Canada (C & I), 2018 FC 781, at para. 22. 32 Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.). --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-35625 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