TB9-14889

RAD File / Dossier de la SAR : TB9-14889 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 July 27, 2020 Date de la décision Panel T. Andrews Tribunal Counsel for the person who is the subject of the appeal Jacqueline M Lewis 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 who appeals a decision of the Refugee Protection Division (RPD) dated May 13, 2019, rejecting her refugee claim. [2] The Appellant argues that the RPD was wrong to find that her account lacked credibility. [3] After conducting an independent analysis, I find that the RPD was correct to find that she lacked credibility. The appeal is therefore dismissed. BACKGROUND [4] The full allegations can be found in the Basis of Claim (BOC) narrative. [5] The Appellant alleges that she is wanted because of her political opinion as she was openly critical of government corruption. [6] She was notified that the land which she and her husband had leased from the government was being expropriated. In response, she and some neighbours went to the town government to protest the expropriation and the unfair compensation, but after attending several times and not being allowed to speak to those in charge they tried to escalate the matter by making an appointment with the city. However, they were informed that they had to deal with the town government who was in charge of the matter. [7] On XXXX XXXX XXXX XXXX, they returned to the town government in a final effort to obtain a resolution. However, they were informed that the decision to expropriate would stand. In her anger the Appellant said several negative things about the government and indicated that they would go to XXXX to complain. Security guards then assaulted and restrained her until the Public Security Bureau (PSB) arrived. [8] The PSB detained and interrogated her over two days for making statements denouncing the government. Once released she was required to report monthly to the PSB, which she did over the next several months. During two of those reporting periods; XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXt, she was assaulted and threatened. [9] As a result of this treatment from the PSB, she arranged to leave China XXXX XXXX XXXX, with the help of a smuggler. [10] When she failed to report for her scheduled check in with the PSB in April 2018, they issued a summons in her name and have since returned to look for her on three further occasions. ROLE OF THE REFUGEE APPEAL DIVISION [11] The standard of review is correctness as established in Huruglica1, where the Federal Court of Appeal gives guidance in regard to the role of the Refugee Appeal Division (RAD). ANALYSIS Memorandum of Appeal [12] The Appellant argues that the RPD erred in its assessment of her credibility because it did not properly engage with the documentary evidence, it failed to consider the evidence that she is wanted by the PSB and it erred in its assessment of her oral testimony by finding there were inconsistencies where there were none or which were minor in nature. [13] The Appellant is not relying on any new evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and does not request an oral hearing under s.110(6) of the IRPA. Findings related to Credibility The summons is fraudulent [14] The RPD was correct in its assessment of the Appellant's summons and I find that the summons is fraudulent. [15] The RPD noted that the summons was a simple, mostly handwritten document with one basic stamp that could easily be reproduced, it did not conform with the samples found in the National Documentation Package (NDP) and did not accept that the PSB issued summons would not cite the legislative provision under which it is being issued. The RPD concluded that given the availability of fraudulent documents in China along with the credibility concerns that little weight could be given to the summons. [16] The Appellant argues that the RPD erred in its assessment of the summons in multiple ways. She argues that the excerpt quoted from the NDP is not applicable to the summons as it indicates that identity documents can be fraudulently obtained. [17] She argues that the RPD failed to examine other features of the summons such as the stamps and signatures, which are indicative of authenticity and that it was an error to dismiss the document without assessing these features. As per caselaw, she argues that the decision becomes dubious when it rests so greatly on the single finding of a fraudulent summons. [18] She also argues that the Courts recognize that it is unreasonable to draw comparison between the sample summons and the Appellant summons when they reference different articles of criminal procedure law. [19] She submits that the sample is just a sample and even if differences exist, they are microscopic in nature. She suggests that it was unreasonable to question the Appellant on the lack of a legislative section in the summons, and while the RPD took issue with that, it failed to acknowledge similar security features and overall formatting that aligned with the sample summons. She agrees that it is reasonable to use sample summons to assess genuineness of a summons in conjunction with other features and information, but not to assess it in a rigid and inflexible manner against a sample as evidence must be assessed in its totality. Especially as it is impossible to have an exact authentic sample of the summons issued to the Appellant before the RPD given the hundreds of articles of law in China under which a summons could be issued and therefore the hundreds of samples that would be required in the NDP to correspond with each potential summons. [20] She suggests that the summons overall appears correct and the RPDs findings relied on microscopic differences that were unrelated to the document's authenticity and the RPD was oblivious to the purpose of the summons based on the lack of article cited within it. [21] Further, she argues that the differences could be attributed, not only to the particular article referred to in the summons which is different than the sample, but otherwise to changes made in issuing summonses during the time between the old sample and the Appellant's summons. [22] Finally, she argues that the RPD erred by not assessing the summons as a corroborative document, which provided support to her claim, and in allowing the finding that this was false to contribute to its findings related to her other supporting documents. [23] I have closely examined the document as part of my independent assessment and I agree with the RPDs findings. [24] First, I have considered the purpose of the summons. A summons is defined as "the official requirement to defendant[s] to [appear] before the authorities or attend the court"2. And, according to Article 53 of the 2012 MPS (Ministry of Public Service) Regulations Concerning the Handling of Administrative Cases by Public security authorities and the visiting scholar from the faculty of Law of the Chinese University of Hong Kong who has extensive research experience in Chinese criminal justice, the person summoned has to be informed of the reason and legal basis for the summons.3 The visiting scholar goes on to say that they must also be informed of the time and place of the summons.4 [25] When I examine the sample summons, I find that it aligns with its purpose. It communicates what the person is wanted for, the applicable provision under which the PSB can summon the person as well as the time and place that they are required to report. The summons in evidence indicates "According to Regulations of the People's Republic of China on Public Security Administration, you are summoned...5" However, as noted by the RPD there is no article or citation of a specific provision. [26] According to the NDP "[t]he issuance of public security summonses is governed by [the Security Administration Punishment Law], and by "the Ministry of Public Security Regulations on the Handling of Administrative Cases.6" Neither of these correspond with the Regulations referred to in the Appellant's summons. More importantly, the failure to cite a particular article or legislative provision is problematic. It is not logical that such a document; the official notification from the PSB that confirms the Appellant is wanted does not indicate the article under which she is sought in the applicable legislation or the authority under, which this document is being issued given its importance. [27] The Appellant argues it was unreasonable to question her about the lack of a legislative section in her summons, but I disagree. The RPD was required to put its concerns to the Appellant for explanation given its nonconformity with the sample. This is not to say that she is expected to know why the legislative section does not appear, but rather in acknowledgement of the fact that she may have had an explanation to offer, which could be deemed reasonable. [28] She submits that the Courts have found it unreasonable to compare the sample and the Appellant's summonses when they reference different articles of criminal procedure law. However, I find that this caselaw is not relevant here and her argument related to differences in her summons being attributable to the particular article referenced in her summons versus that which is referenced in the sample has no merit because in this case as the summons she proffered does not refer to any article of any law whatsoever. Furthermore, I note that when looking at all possible types of summons issued by the PSB, while the legislative section or Article itself is subject to change, the notation of the applicable provision is uniform across all summonses. [29] I have closely examined the Appellant's summons. The Chinese characters found at the top of the summons on the second line, identify the summons type and they match the sample for the public security summons (zhi'an chuanhuan). Thus, I compared the document to the sample. [30] I have reviewed both the versions of the NDP that was before the RPD, and the current NDP and find there are no material differences between them regarding the issue of summonses. [31] According to the NDP, summonses have not varied in format since 2003. The Response to Information Request (RIR) titled, Samples of summonses and subpoenas indicates that "...such forms are supposed to be used throughout the country and that regional variations are not meant to exist."7 This information is echoed in another 2012 RIR where the format and appearances of summonses and subpoenas is discussed. According to the Visiting Scholar, "the format and appearance of summonses should not differ according to the territorial jurisdiction of courts, procuracies and public security organs" (19 Sep 2012). The Associate Professor of Law at the CUPL likewise stated that there are no jurisdictional differences in the format and appearances of summonses and subpoenas, with the exception of Hong Kong and Macao (2 Oct. 2012).8 [32] Hence, the summons in evidence should duplicate the sample in terms of its format and structure. [33] I note that the Response to Information Requests (RIR)9 on this subject do not indicate that regional variations exist. Furthermore, I have reviewed all country condition documents in evidence and I find that there is no information stating that there are regional variations in the summonses and subpoenas. As such, I find that it has not been established on a balance of probabilities that there are regional variations in summonses and subpoenas in China. [34] I find that the summons in evidence differs significantly from the sample contained within the NDP. [35] On the third line down from the top of the document, the Chinese word/character that should follow the number 0650 is missing. This Chinese character in the sample, which follows the number 144 in that document is a standard, pre-existing part of the document and a feature which is missing from the Appellant's summons. [36] Likewise, in the line that follows, a Chinese character is missing. Four lines down from the top of the document, on the left side, the sample has a pre-printed Chinese character, followed by two x's and a colon, whereas the summons proffered by the Appellant has a number of handwritten Chinese characters, none of which matches the Chinese character on the sample. The translation indicates that the missing Chinese character is the word "To"10, which is the salutation written prior to the name of the summoned individual. Again, this pre-existing feature is missing from the Appellant's summons. [37] The Appellant's summons indicates that she is required to attend at 8:30 for questioning. In the fourth line of that summons where the number 30 appears, it is followed by only two of the three standard Chinese characters that appear in the sample. [38] There are also instructions at the bottom of the document, which indicate that the document is produced in duplicates and indicates where the portions of the document should go. This is missing from the Appellant's summons entirely. [39] Finally, as noted by the RPD, evidence of the counterfoil is totally absent. The applicable RIR indicates that on the zhi'an chuanhuan, "[t]he section on the left is the counterfoil while the section on the right is to be given to the person being summoned." This is significant as this type of summons in its entirety is actually a document with two sections. If authentic, the Appellant's summons should have at a minimum, evidence of perforations or dotted lines on the left side of the document where it was separated so that the left side could be saved in the Appellant's PSB file. However, there is no evidence of the counterfoil on the Appellant's summons. [40] Such differences are not meant to exist and In Jiang11, Justice Crampton found that small differences can be telling: In my view, 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. [41] The Appellant suggests that changes were made in issuing summonses during the time between the old sample and the Appellant's summons. However, while the information that refers to the lack of variation is from 2013, I note that there is no indication in the documentation that was before the RPD or supplied on appeal to establish that information in the aforementioned RIRs is no longer valid. [42] I find on a balance of probabilities, that the summons submitted is fraudulent. The Appellant's submission of a fraudulent document in support of her case significantly undermines her credibility. [43] The summons was expressly proffered to illustrate that she is wanted by the Chinese authorities for organizing villagers to protest against the government, defying the government, making petitions to higher levels and failing to report as required. The Appellant's allegations were that she protested unfair land expropriation, and was subsequently detained and required to report on a number of occasions. However, after reporting a few times, she decided to depart from China. After missing her April 1, 2018 reporting date, the PSB issued a summons in her name. [44] I find that the presumption of truthfulness with respect to the Appellant's testimony has been rebutted in this case. Given that the summons is fraudulent, I find on a balance of probabilities that the Appellant is not being investigated nor is she wanted by the PSB of XXXX XXXX for speaking out and organizing others against land expropriation as alleged. [45] Contrary to what is submitted by the Appellant, I find that the summons was assessed in its entirety and the differences were not microscopic. It is not simply that one small difference led to the finding that the document was not authentic. Multiple things were/are problematic including the lack of a legislative provision, related to the structure and format of the document, and the fact that there was no counterfoil where there should have been. I find that such glaring issues on the face of the document cannot be ignored just because the document has a signature and a stamp on it, which cannot be verified. [46] While she argues that the decision becomes dubious when it rests so greatly on the single finding of a fraudulent summons, I find that once again this caselaw is not applicable here as the RPDs determination was not based solely on finding that the summons was fraudulent, but also on a number of inconsistencies to be discussed below. [47] And finally, I disagree with her argument that the section of the NDP quoted by the member in relation to fraudulent documents is related to identity documents only. The RIR that was quoted is titled, China: Fraudulent documents, including the manufacturing, procurement, distribution and use of passports, houkou, and resident identity cards (RICs) particularly in XXXX XXXX XXXX; instances of officials issuing fraudulent RICs to citizens and selling authentic RICs on the black market (2010- September 2013). The name alone illustrates that the RIR is related to fraudulent documents in general and then it goes on to list documents that will be explored in more detail. Further, the section quoted is as follows: In correspondence with the Research Directorate, an official at the Canadian embassy in Beijing wrote that there are "consistent reports" of document fraud in China and that fraudulent identity documents (IDs) are easily obtained in the country (Canada 17 Sept. 2013). Similarly, a professor of criminal justice at Xavier University who specializes in Chinese policing stated in correspondence with the Research Directorate that "[t]here is little question that fraud of all kind[s], including ID fraud, is a major problem in China" (Professor 13 Sept. 2013).12 [48] A close reading indicates that there are consistent reports of document fraud in China generally. Further, the professor who is quoted indicates that there is fraud of all kinds. I find this establishes that the problem of fraudulent documents is not limited just to identity documents and it was not an error to reference this document. The RPD did not err in its assessment of other supporting documents [49] The RPD found that documents related to the land expropriation; the land lease agreement, four payment lists, notice of land expropriation, testimonials, and photographs before her were insufficient to overcome the credibility concerns. The RPD found that at most these documents may illustrate that the Appellant's spouse had property that may have been expropriated, but did not accept the testimonials from individuals with a vested interest in the outcome of the claim as sufficient to establish that the Appellant protested against, was detained or is wanted by the PSB. The RPD found the documents were insufficient to establish the core of her allegations. [50] The Appellant argues that the RPD erred by discounting the other documents that supported her claim that her land was expropriated and that she protested this expropriation, and as such the RPD failed to consider all of the evidence in a holistic way. [51] She argues that the testimonials corroborate her oral testimony and the RPD did not consider those, nor did it consider the country condition documents, which talk about the consequences of protesting land expropriation and the way that this is linked to the expropriation and lease notice. She argues that the RPD erroneously found that the summons was fraudulent and impugned the other documents based on this error. [52] She argues also that the RPD incorrectly determined that the Appellant was not wanted by the PSB and failed to consider the Basis of Claim (BOC) narrative, testimony, and personal supporting documentation, including the summons. She submits that documents from a foreign authority benefit from the presumption of authenticity and the presence of the summons contradicts the RPDs finding that she is not wanted. [53] Regarding the latter, I have already considered the summons at length and found that the RPD did not err in its assessment of that document. I have also found that the summons is fraudulent after my independent assessment and the presumption described is only so when there is no reason to doubt the authenticity of a document. However, when there are issues with a document which are readily apparent on its face or based on comparison to genuine samples available, such documents may be scrutinized and conclusions can be drawn as appropriate. [54] The summons is the only official document before me that speaks to the PSB wanting the Appellant, and I find it was not an error to conclude that the Appellant was not wanted given it is a fraudulent document. [55] The testimonials13 from XXXX XXXX XXXX XXXX XXXX in particular consist of two lines handwritten at the bottom of their Resident Identity Cards (RIC) that simply state, "This is to testify that the land expropriation XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.14" They do not even refer to the Appellant, but rather to her husband, nor do they indicate that she was arrested or wanted in conjunction with the matter. Hence, I find that as they cannot prove the latter elements and they are of little to no probative value. [56] I also find that I can put little weight on the other lengthier testimonials15 from her husband and from XXXX XXXX. Both of these documents are handwritten, they are not sworn statements and I find that on their own they are insufficient to overcome the credibility concerns that exist in the case. Furthermore, I note that as per case law, submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the Appellant, especially when they are interrelated,16 and on the overall credibility of an Appellant.17 Hence, I find that, little weight can be put on these testimonials, which perpetuate the assertion that she is wanted, given her use of a fraudulent summons. [57] I find also that the RPD did not discount the other evidence out of hand. The RPD considered the documents and found that the Appellant's farm may have been targeted for expropriation, but that the Appellant is not wanted for anti government activities as alleged given the fraud summons and I agree. Hence, while the remaining documents (lease, payment documents, notice of expropriation, and photographs) may establish that land owned by the Appellant's husband was being expropriated, these documents do not establish that the Appellant is wanted or being investigated for gathering people in protest against the land expropriation. The RPD did not err in its assessment of the credibility of her oral testimony [58] I find that the RPD was correct to find that she lacked credibility. [59] The Appellant argues that it was an error to discount the testimony provided in her BOC based on inconsistencies in her oral evidence after establishing that she had limited education and the RPD failed to provide reasons why her original testimony in the narrative was not believed. She submits that because the Courts have established that a claimant's "first story" ought to be prioritized over any subsequent testimony as the first story is usually the most genuine, that any incoherent oral testimony ought not to have impacted the RPD's view of the credibility of that first story. [60] She argues that the inconsistencies and issues with recall were minor, but overall her risk of persecution was consistent. She submits that she corrected herself in response to the RPD's questioning on several issues and corrected oral statements which were consistent with her narrative about the fact that the PSB physically assaulted her. However, she argues the RPD erred as it only took note of her initial testimony/the inconsistencies, and failed to consider the significance of the fact that she was consistent about the PSB assault and the risk of persecution as a result. [61] She submits that the testimony provided in the BOC and at the hearing were not different as they built upon and clarified each other, and argues that consistent evidence was given regarding the central issues in the claim; namely the disagreement with government officers. [62] She argues also that the RPD had a duty to consider her profile when assessing the overall claim and any discrepancies were minor and did not go to the heart of the claim. [63] I have looked at the evidence in its entirety and find that the RPD did not discount the evidence in her BOC. Rather, the RPD found that there were discrepancies between what the Appellant had written versus what she said at the hearing, which were related to central issues in the claim. The RPD put those concerns to the Appellant, as she should, and found that the discrepancies were not reasonably explained, therefore negative inferences were drawn. There is an expectation that when recounting things that she had allegedly experienced personally, that the Appellant would provide consistent details about these events. Particularly as this is the very reason she came to Canada; in order to escape persecution. While she may have limited education, she was able to articulate the details of her experiences to an interpreter to write her narrative, and she failed to explain why that limited education allowed her to articulate her story accurately at one time and not at another. [64] While she argues that she corrected herself and this should be considered, these corrections were not spontaneous and were the result of the member prompting or outright telling her what her narrative said. I find that the Appellant should not have to be reminded of the details of what she went through. I find that it was correct to come to the majority of the conclusions that the RPD did as outlined below. The RPD did err in finding that her lack of awareness of a clause in her lease detracted from her credibility [65] I find that the RPD was incorrect in its finding regarding the expropriation clause as it was not central to her claim. The RPD found that the Appellant's ability to recite Section 3 of her lease agreement strongly suggested that she was fully aware of the expropriation clause and her evidence about being unaware of the clause was not credible. [66] The Appellant argues that it was an error to find that there was an inconsistency regarding her awareness of the expropriation clause in the farm lease agreement. She argues that she answered that she was specifically referring to Section 3 of that document, and although her testimony was that she read the document, it is possible that due to the stress of the hearing and her nervousness that she did not fully understand the question. She argues also that this does not go to the heart of the claim and should not be used to challenge her credibility. [67] I find that there is merit to the Appellant's argument that this is a peripheral issue. Whether or not she had read, remembered or fully understood the lease agreement is really of no consequence, as it is her actions and what she did about the land expropriation that led to problems with the PSB. Hence, I find that it was an error to draw a negative inference about this. The Appellant was inconsistent about the number of times she approached the town government and this was a relevant consideration [68] The RPD found that the Appellant gave evolving, inconsistent and unreliable evidence about the number of times she attended the town government, which was not reasonably explained and found that she lacked credibility as a result. [69] The Appellant argues that it was an error to draw a negative inference from the inconsistencies between the number of times she approached the town government as her answers were not inconsistent. She submits that when prompted she correctly answered that she XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX which matches her narrative and furthers her credibility. [70] She argues that her responses were not evolving, inconsistent and unreliable as suggested. Rather, she was confused by RPDs questioning as the RPD cited information from her narrative incorrectly and the line of questioning led her to confuse her own response and provide testimony that did not align with the BOC. However, when recalled, her responses matched the BOC. [71] She submits that when questioned about the sixth time she went to the town government, she immediately indicated that the information was incorrect as she went to the municipal government and stated it was an error in translation of her narrative which had been written in Chinese. She argues that it would be prejudicial to hold this against her, and that the RPD continued to confuse her by saying that she had written that she went to the city government, which is incorrect. She argues that despite this confusion she was still able to identify that she went to the town government XXXX XXXX XXXX XXXX XXXX, and the RPD was wrong to indicate in its decision that she did not indicate that she did not comprehend the questions as she clearly stated this when asked why her answers had changed. [72] I have reviewed the testimony provided at the hearing. Her testimony was that she went to the town government three times. She was asked when and testified it was in the middle of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and she did not specifically recall the third time, but it was sometime from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The member confirmed that those were the three times and she concurred. [73] The member then drew the Appellant's attention to her narrative in which she had written in paragraph thirteen that from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She testified in response, "No. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX When asked if her narrative was wrong she testified that she now remembered XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [74] The member pointed out that in paragraph eighteen of her narrative, she had written that on XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She testified in response that on XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The RPD noted that her narrative indicated that she went to the XXXX XXXX XXXX and this was the exact same reference used for the town government throughout her narrative. The Appellant responded by asking that the Chinese narrative be read as she had written XXXX XXXX XXXX XXXX XXXX. The RPD indicated it would take note of the Appellant's response, but informed her that she was not in possession of any narrative other than the English version. The Appellant testified that she wanted to clarify that this was a mistake; she had said the municipal government and did not write the XXXX XXXX XXXX. For clarity, the RPD asked where she had said/recorded the municipal government. She testified in response that she went to ask the municipal government for help at the XXXX XXXX XXXX XXXX. The member noted that she saw a reference to that, but it was separate. The Appellant then clarified that the member was referring XXXX XXXX XXXX. She apologized and indicated that she had not gotten the point, but now understood. She went on to explain that on XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant was asked again how many times she had gone to the town in total and she testified it was six times. When asked why her answer had changed from three times, to five times to six times, she testified that she was confused at that time, but now if you ask her to think clearly those were the times she went. She reiterated that she did not understand earlier. [75] I find there was no error in the RPDs finding. The Appellant testified that she went three times to the town government and confirmed this answer when stating the specific dates of her visits. When the Member drew her attention to the reference in her narrative about three further visits, her initial response was, "no" that she had gone three times in total. Only when asked if the narrative was wrong did she recall three other visits and that there were five visits in total, which was still incorrect. [76] Although, she submits that the Member misquoted her BOC in its decision in relation to the city government and submits that the Member's line of questioning confused her, caused her to confuse her own response and provide testimony that did not align with the BOC, I find that there was nothing wrong with or confusing about the member's questions. Contrary to what is presented by the Appellant, the member's questioning was straightforward as the Appellant was asked directly about the sixth and final visit to the town government that was recorded in her narrative. The member provided the date she was referring to and accurately read to the Appellant what was written at the beginning of paragraph eighteen of the narrative. [77] The Appellant is the one who brought up the municipal government in her response, indicating that this is where she went XXXX XXXX XXXX and that it was an error in her English narrative, as it should reflect that she went to XXXX XXXX XXXX XXXX XXXX. The member went an extra step and sought clarification on where in the narrative the error was and the Appellant's response was again that she went to ask the municipal government for help at the end XXXX XXXX XXXX. When the member indicated that she saw a separate reference to that; going to the municipal government, it is only at that point that the Appellant understood and recalled that she had actually gone XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX as she had been saying. [78] Regarding the RPD inaccurately quoting paragraph 16 of the narrative in its decision, I find this is true. The RPD decision states, "[i]t was pointed out to her that paragraph 16 of her BOC narrative states that she went to the city government." However, when you read paragraph 16 in its entirety, it indicates that although they tried to get an appointment with the municipal government via the phone, they were unsuccessful. However, I find that this is of no consequence. As indicated above, the questions to the Appellant were clear. The Appellant brought up the municipal government of her own accord, and I also note that despite what is written in the decision, this is not actually what was said at the hearing. During testimony after the Appellant stated that she went to the municipal government XXXX XXXX XXXX to ask for help, the member only noted that she saw a reference to that (going to the municipal government), but that it was separate. The member did not refer to any specific paragraph in the narrative at that point and did not reference paragraph 16 at all except in her written decision. Hence, I find that the Appellant's explanation, that this alleged confusion was as a result of the member's questioning and misquoting from the narrative is not persuasive. [79] I find that her testimony did evolve and she did not have a logical explanation for her varied responses. It is reasonable to expect her to recall consistently and accurately the steps she took to seek redress if indeed she did take them. The member's initial question was clear and concise. The Appellant was asked how many times she had gone to the town government. The Appellant's answer should have been six times from the outset and she should not have needed reminding about the things she had done. Even when reminded about the three further visits between late July and late August, the Appellant did not initially remember. And, finally when she did recall these three visits, she still did not recall the final visit; the sixth visit to the township government, which should have been the foremost in her mind given the confrontation that allegedly occurred on that date and her subsequent arrest. When confronted with the inconsistent and evolving testimony she indicated that she did not understand, but I agree that the Appellant did not express that she was having any difficulty, nor did she hesitate in responding when the questions were being asked. She only offered the explanation at the end to try to explain why her testimony was contradictory. She argues that when given time to think about it carefully, she came to the correct responses. However, I find that this is not a reasonable explanation given that when a question is posed, it is always incumbent upon a person to respond after thought and consideration. I find that her inconsistent and evolving testimony on the number of visits she made to the town government to protest the land expropriation illustrates a lack of credibility. The RPD did not err in finding that she provided contradictory evidence regarding her detentions [80] I find that the RPD was correct in its findings regarding detention. [81] The RPD found that she provided inconsistent evidence regarding the number of detentions by the PSB after it considered the testimony, written evidence, Counsel's submissions and the BOC narrative. The RPD did not accept that the Appellant did not understand what she was being asked when she answered that she was detained only once. She considered that one of two responses would have been reasonable dependent on the Appellant's definition of detention; either three or six, dependent on whether overnight or all arrests and reporting periods were included. She found that the Appellant gave no indication of not understanding the question and that she demonstrated her understanding of the word detention. Hence, the RPD did not accept that she was credible regarding being detained by the PSB in China for protesting against land expropriation. [82] The Appellant argues that it was an error to find she was inconsistent regarding the number of detentions she faced. She argues that her oral evidence was consistent with her narrative based on her understanding of the question that was posed; she provided accurate information about the number of times she was detained before she was required to report to the PSB. She submits that the RPDs statement that she clearly understood the meaning of detention when her explanation was that she did not understand is nonsensical and undermines the refugee process as well as her testimony. [83] She submits that the confusing nature of her claim as well as her experiences with the PSB, which included physical and mental assault clearly impacted her. She submits that the RPD should have understood the nature of the trauma she underwent and found her credible given her accurate response to what she thought she was being asked. [84] She argues also that it is clear from the RPD's line of questioning, conduct and the determination that her level of education, nervousness and trauma were not given sufficient weight when assessing her credibility. And she argues it was reasonable to expect her to take her time to reply to questions correctly or not answer at all if she did not understand therefore it was an error to draw a negative inference because she did not answer quickly or spontaneously enough. [85] At the hearing the Appellant's testimony was that she first had problems with the PSB on XXXX XXXX XXXX XXXX, after she made complaints XXXX XXXX XXXX XXXX XXXX. She testified that she was arrested and detained on that date. When asked how many times she was detained for the purpose of being arrested or interrogated, she replied that she was arrested on XXXX XXXX XXXX XXXX, and afterward she was instructed to go and report herself each month. She was then asked how many times she was detained for detention, arrest or interrogation, and she replied once, XXXX XXXX XXXX. The Appellant then confirmed when asked if she was only detained once for questioning. The member asked once more if the detention was XXXX XXXX XXXX XXXX. She responded that this was correct and when the PSB came she was taken to the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [86] The member pointed out that the narrative indicated that she was also detained for one night XXXX XXXX XXXX XXXX XXXX, but she had failed to mention that. In reply, the Appellant testified that she was detained on XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. When asked why she did not say that she had been detained three times, she said she was detained only once for XXXX XXXX XXXX, Counsel interjected and indicated that the Appellant had started to tell the panel that she was reporting as well, but this was when the questions were re-directed. Counsel indicated that when the Appellant was first asked about the number of detentions for arrest, detention or interrogation, she had said XXXX XXXX and then she was asked to report. The Appellant then testified that she had not understood the question and did not think she was being asked about the number of times she was being detained. The member pointed out that she had asked the question a number of times and reminded her again that if she did not understand or was not sure, she should not guess. [87] After a break, the Appellant then verified that she was detained XXXX XXXX XXXX and explained that she thought the member was asking her how many times she was detained before she had to go for monthly reporting. She explained that she thought this was the question because she was thinking of how she swore at police. She was asked whether she considered the times that she had to go to the station and was kept a few hours, but not overnight to be detentions. The Appellant replied that at the time the member asked her the questions, she did not consider those as detentions. [88] While I find that the RPDs question could have been stated more plainly, for example by just asking how many times in total she was detained, I agree that the Appellant did not register any misunderstanding and did not hesitate prior to answering that she was detained only once. The RPD did verify a number of times that there was only one detention, and the last time the Member asked the question in the simplest way; "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [89] I find that the questions posed by the RPD about the number of detentions did not involve any particular timeline, and the question certainly was not how many times were you arrested prior to having to report to the PSB, so it is unclear where the Appellant would have gotten this from. While Counsel at the hearing suggested that the Appellant had started to tell the panel that she was reporting as well, but questions were re-directed, implying that this information may have come out, I find that there is no evidence of this. I have listened to the recording and the Appellant's reply had ended prior to the Member going on to ask again about the number of times she had been detained for detention, arrest or interrogation. Hence, there is nothing to establish that she was somehow cut off or prevented from saying something further. [90] The Appellant suggests in the memorandum that the confusing nature of her claim as well as her experiences with the PSB, which included physical and mental assault clearly impacted her. I find it unclear what would be confusing about the nature of her claim given she herself lived through these events and should be able to convey what she had been through. And, while she indicates the RPD did not fully consider her trauma, I find that this was not an explanation that she advanced at the hearing when asked what accounted for the contradictory testimony about the number of detentions. The nearest she came was when she testified later in response to Counsel's question about whether she had anything more that she wished to say, which she had not said at the hearing. Her response was that she was scared even at little noises and whenever she hears such things she immediately feels like the PSB is coming. Furthermore, there was no medical evidence supplied to establish that the she is experiencing difficulties such that her testimony or memory would be compromised. [91] I find there was nothing about the RPD's line of questioning, conduct or the determination that suggest that the Appellant's level of education, nervousness and trauma were not considered. [92] I agree with the RPDs assessment in that when responding to the question about how many times she experienced detention for arrest or interrogation, the Appellant's reply should have been either three if she considered detention to entail overnight stays or six if she counted all of the times that she was called in and questioned by the PSB. I find that her response is indicative of a lack of credibility. Credibility conclusion [93] Given my findings regarding the fraudulent summons, and the significant inconsistencies regarding the number of times she went to the town to seek redress as well as the number of detentions she went through, I find on a balance of probabilities that she was not a credible witness and the determinative basis of her claim i.e. being wanted by the authorities in China for her alleged involvement in anti-government protests regarding land expropriation, is not credible. [94] In light of the above, I find it unnecessary to deal with the argument in the memorandum related to whether or not the omission of being tied to a tree was significant as it would not change the outcome of the appeal, given my finding that the Appellant is not being investigated and/or is not wanted in China for her political opinion/expressing dissent. CONCLUSION [95] Having found that the Appellant is not being sought in China because of leading a protest against forcible land expropriation, I find that there is not a serious possibility that she would be persecuted should she return to China, nor would she be subjected personally, on a balance of probabilities, to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should she return to China and the RPD decision was correct. [96] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and the appeal is dismissed. (signed) T. Andrews T. Andrews July 27, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at paras. 70, 103. 2 National Documentation Package (NDP) for China, (March 31, 2020), item 9.11. 3 National Documentation Package (NDP) for China, (March 31, 2020), items 9.3 and 9.11. 4 National Documentation Package (NDP) for China, (March 31, 2020), item 9.11. 5 Exhibit RPD-1, RPD Record, Exhibit 8, pp. 227-228. 6 National Documentation Package (NDP) for China, (March 31, 2020), item 9.11. 7 National Documentation Package (NDP) for China, (March 31, 2020), item 9.10. 8 National Documentation Package (NDP) for China, (March 31, 2020), item 9.11. 9 National Documentation Package (NDP) for China, (March 31, 2020), items 9.11. 10 National Documentation Package (NDP for China, (20 December 2019), RIR CHN106016, Item 9.2. 11 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064 (CanLII). 12 National Documentation Package (NDP) for China, (March 31, 2020), item 3.22. 13 Exhibit RPD-1, RPD Record, Exhibit 7, pp. 237-240. 14 Ibid. 15 Exhibit RPD-1, RPD Record, Exhibit 7, pp. 229-235. 16 Uddin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 451 (CanLII). 17 Gochez v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16258 (FC). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-14889 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