TB7-22664

RAD File / Dossier de la SAR : TB7-22664 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 5, 2019 Date de la décision Panel Linda Hart Tribunal Counsel for the person(s) who is(are) the subject of the appeal Hart A. Kaminker Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (the Appellant) is a citizen of China. She appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. DETERMINATION [2] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [3] The Appellant alleged before the RPD that she and her common-law spouse had a daughter in 1987, and that she had a son with her current spouse in 1998. She alleged that she is the stepmother to her current spouse's son who was born in 1985. [4] The Appellant alleged that after the birth of her son in 1998, she was forced to wear an IUD which caused medical problems. It was discovered during a regular pregnancy checkup on XXXX XXXX, 2015 that the Appellant was pregnant. She alleged that she was forced to undergo an abortion and was required to be sterilized. She alleged that her husband paid a XXXX XXXX XXXX Renminbi (RMB) deposit to secure her release pending a scheduled sterilization. Prior to that date, the Appellant decided to leave China using the United States (US) visa that had been issued to her on XXXX XXXX, 2015. The Appellant fled China on XXXX XXXX, 2016 and from there came to Canada where her sister resides. She alleged that she entered Canada on XXXX XXXX, 2016 and made a refugee claim shortly afterwards. The Appellant fears that she would be forcibly sterilized should she return to China. [5] The Appellant's claim for refugee protection was heard on September 12, 2017. In a decision dated September 14, 2017, the RPD rejected her claim finding the Appellant was not credible on several material aspects of her claim. [6] The Appellant submits that the RPD erred in its assessment of her first marriage; her son's identity; the probability of a 50-year-old woman being sterilized; the existence of a child from her first marriage; family planning authority documentation; and the possibility of future persecution. ROLE OF THE RAD [7] For questions of fact, law, and mixed fact and law, the RAD has applied the standard of correctness, as per Huruglica. In assessing issues involving credibility of oral testimony, the RAD may give deference to an RPD finding depending on the circumstances of the case. ANALYSIS First Relationship [8] The RPD found the Appellant's evidence and explanations regarding her first marriage to be contradictory and inconsistent with the objective documentary evidence. The RPD noted that the Appellant initially stated in her Basis of Claim (BOC) that she was married to her first husband from 1986 to 1992, and married her present husband in 1995. In a BOC amendment, the Appellant identified her first union as common-law and wrote that a fine was imposed for her daughter having been born outside of the family-planning policy. The RPD asked the Appellant to explain why a divorce document appears in her disclosure, and the Appellant explained that her marriage was not registered. The RPD asked the Appellant why the court document refers to a wedding when her evidence was that there was no officiant in attendance, and the Appellant responded it was when she and her husband wanted to separate. When asked the question again, she replied that it was a wedding. The RPD found the Appellant's evidence and explanations to be contradictory and inconsistent with the documentary evidence. The RPD noted that the Chinese marriage law indicates that a woman must be at least 20 years of age before marrying and that the Appellant was 19 years old at the time. The RPD did not accept that she was married or that a legal court issued document would refer to the dissolution of her relationship as a divorce if the Appellant had not been legally wedded to her first partner. The RPD drew a negative credibility inference. [9] The Appellant argues that her evidence was that there was a ceremony and celebration, but that the marriage was never registered. She submits that this is consistent with the fact that she was underage at the time of the formation of her union with her first spouse, and that the RPD did not understand that one could have a ceremony without an officiant and a celebration, but not have the marriage officially registered. The Appellant submits that the document referred to by the RPD is titled "Civil Affairs Mediation" and that it spells out that the Appellant and her partner lived together, had a child together, and how the relationship broke down. She argues that her separation from her common-law husband could be termed divorce given the length of their common law relationship. [10] The RAD has reviewed the record and the document in question. The RAD notes that the document specifically refers to a divorce and a marriage, which is inconsistent with the Appellant's allegations that she never legally married her first partner. The divorce document provided is consistent with the information contained in the marriage laws of China in that the law states that when dealing with a divorce case, The People's Court shall carry out mediation when the parties are not in agreement. The document provided by the Appellant is from The People's Court and it refers to mediation. The RAD agrees with the RPD that the Appellant did not reasonably explain why this document refers to marriage and divorce. There is no documentary evidence in the record that discusses common-law relationships and the legalities regarding the severance of such a relationship. The RAD finds that little weight can be assigned to this document as corroboration of the Appellant's common-law marriage or the birth of a child to the Appellant and her ex common-law partner. The RAD finds, on a balance of probabilities, that this is not a genuine document. Third Child's Name [11] The RPD found that the Appellant had not reasonably explained why the name of her son born in 1998 was different in the Hukou as compared to his birth certificate. The RPD noted that this child's name on the birth certificate was entered as XXXX XXXX, whereas his name on the Hukou appears as XXXX XXXX, with XXXX XXXX showing as his "used name". The RPD rejected the Appellants' explanation that as the child grew older he did not like the name XXXX, so they went to the police station and changed it. The RPD noted that it was necessary to ask the Appellant three times what the process was regarding the name change and that the Appellant provided a very curt and nondescript account of how the legal name change was carried out. The RPD noted that the Appellant made no reference to identity documents required or any forms that needed to be completed, and did not find it plausible that one could simply enter the police station and change one's name on the Hukou with no other legal requirements or verification. [12] The RPD considered that fraudulent identity documents are easily available in China and considered the timing of the Hukou's issuance in XXXX 2015 which coincided with her US visa issuance. The RPD noted that the Hukou entry is the only primary government issued document with the alleged current name of the Appellant's son, and that the Appellant did not provide this child's Resident Identity Card (RIC) because she testified that she was not aware it would be required. The RPD rejected the Appellant's explanation for not having her son's RIC as she was represented by counsel and was informed in her BOC of the importance of submitting all documents related to her claim. The RPD drew a negative credibility inference and found that the Appellant had not established, on a balance of probabilities, the identity or existence of her alleged third child. [13] The Appellant argues that the Hukou notes that the son had previously used the name XXXX XXXX and that this confirms the name change as the two different names are shown. She submits that there was nothing in the evidence to suggest that the Hukou is not genuine and that the RPD did not refer to any evidence to indicate how name changes are made at the local Public Security Bureau (PSB) office. The Appellant argues that the Hukou and the RIC are both issued by the PSB and that there is nothing nonsensical about her evidence that they would attend the PSB office to make the name change. [14] The RAD has reviewed the record and notes that there is no evidence on the record regarding how a Chinese citizen would change his or her name in the Hukou. However, the RAD has considered that the Hukou registration is based on the child's medical birth certificate.i The RAD has reviewed the 1998 medical birth certificate allegedly issued by the Ministry of Health of the People's Republic of China and notes that it is inconsistent with the documentary evidence regarding what this document should have looked like when it was issued in 1998. The RAD notes that the evidence indicates that in 1999, a second version of the medical certificate of birth was issued. One of the changes in this document was that the English translation of the Chinese for "Birth Certificate No," which appears at the bottom of the certificate, was changed from "Birth No" to "Birth certificate No". The birth certificate for the Appellant's child was issued on XXXX XXXX, 1998 and therefore, should show "Birth No". However, it is written as "Birth certificate No" at the bottom of the document. Furthermore, the documentary evidence states that the 1999 version of the certificate changed from a small "c" in the word "China" in the English explanation at the right side of the certificate, to a capital "C". The word China is written with a capital "C" in the 1998 certificate provided by the Appellant, which is inconsistent with the documentary evidence. Furthermore, although the identity card numbers appearing on their certificate have only 15 digits, there are boxes for three more digits for each number. The RAD notes from the documentary evidence that 18 digit resident identity card numbers did not come into existence until October 1999 and that it is therefore not reasonable that the medical birth certificate submitted, which was allegedly issued in XXXX 1998, would have boxes for an additional three numbers. [15] The RAD has considered the differences between the medical birth certificate submitted into evidence and the documentary evidence; that the medical birth certificate is a necessary document for the issuance of a Hukou; and the inconsistencies between the name appearing on the Hukou and the birth certificate. The RAD finds that no weight can be put on the medical birth certificate issued in 1998 given the inconsistencies identified, and further finds that this medical birth certificate is a fraudulent document. Given that this document would have been the basis for the Hukou entry for the child, the RAD finds that no weight can be put on the Hukou as proof of this child's existence and, on a balance of probabilities, that it is not a genuine document. The RAD notes that, although there is a letter from the Appellant's stepson submitted into evidence, there is nothing from the child born in 1998 to confirm his existence either in the RPD record or submitted with the appeal. Existence of Daughter [16] The RPD found that the Appellant had not established the existence and registration of her daughter on a balance of probabilities. The RPD considered the credibility concerns relating to the divorce document and the Hukou, as well as the prevalence of fraudulent documents in China. The RPD placed little weight on the Hukou submitted in substantiating the existence of her daughter. The RPD found that the Appellant's explanation that she had not provided her daughter's RIC because she was not aware it was required, was not reasonable. [17] The Appellant argues that there were two documents that did make reference to her daughter, which were the civil mediation documents and the family-planning service card. She submits that although the RPD stated that there was reference to the daughter in the Hukou, this was incorrect. The Appellant submits that there is nothing in the record to suggest that the family-planning service card was not genuine and that the RPD should rely on this document to substantiate the existence of the daughter. [18] The RAD has reviewed the record and notes that the Appellant has not provided a birth certificate for her daughter and that this child is not included in the 2015 Hukou submitted into evidence, despite having paid a fine for the violation of the family-planning policy. The documentary evidence indicates that the payment of a fine is a requirement for a child born out of wedlock to be issued a medical certificate of birth and to be entered into the Hukou.ii The RAD does note that the Appellant stated at the hearing that her daughter is married and lives with her husband; however, the Appellant has not provided earlier Hukou booklets which would have indicated that the daughter resided with her in earlier years or any other identifying document for her daughter. Furthermore, there is no evidence on the record that the Appellant was unable to register her firstborn child or that this child was not able to access government services such as education and health care. The RAD additionally notes that although the Appellant has provided a letter from her stepson, there is nothing on the record from her two other children who allegedly reside in China. Given that the existence of her daughter allegedly created a situation where the Appellant was doubly in violation of family-planning policies, it is reasonable to expect that she would provide proof of this child's existence. [19] The RAD has considered that this child is mentioned in the divorce document and in the family-planning booklet. The RAD notes that these are not primary identity documents. The RAD has found that the divorce document is not genuine and that the 1998 birth certificate for the Appellant's son is also not genuine. The RAD notes that case law indicates that, where there is sufficient evidence to cast doubt on the authenticity of the document, whether because of an irregularity on the face or the questionable circumstances in which it was obtained or provided, the document may be assigned little or no weight.iii Further, evidence of the widespread availability of fraudulent documents in a country is not by itself sufficient to reject foreign documents as forgeries, but it may be relevant if there are other reasons to question the documents or a claimant's credibility.iv The RAD notes that 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,v and on the overall credibility of an Appellant.vi [20] The RAD finds that the family-planning booklet is an interrelated document given that it contains information that was also found in fraudulent documents. As a result, the RAD finds that little weight can be assigned to the family-planning booklet as proof of the daughter's existence. [21] The RAD finds, after conducting its own assessment of the evidence, that the Appellant has not established the existence of her daughter on a balance of probabilities. Sterilization and Future Persecution [22] The RPD found that it was highly improbable that the family-planning authorities would seek to forcibly sterilize the Appellant given that she had been in appliance with the regulations for 17 years, her 2015 pregnancy was unplanned and unintentional as she was wearing an IUD, and because at the time of the hearing she was almost 50 years old and at the end of her childbearing years. [23] The Appellant argues that she was not in compliance with the family-planning policy and that in some areas of China the policy is enforced harshly, especially where local officials are trying to meet birth targets. She submits that despite her age, the family planning officials may very well have forcibly sterilized her. She cites the 2012 US Department of State report which states that in 2011, her province, Jilin, had family planning regulations requiring abortions for out of plan pregnancies. She further cites the latest US Department of State report which notes that Jilin no longer has a regulation concerning the termination of pregnancies, but that it still had a repressive family-planning policy. [24] The RAD has reviewed the record and notes that Jilin no longer has a requirement to terminate out of plan pregnancies. Although it is stated in the documentary evidence that there remains a requirement to report out of plan pregnancies to higher authorities, it is not indicated what the consequence of reporting the pregnancy would be.vii Furthermore, the RAD has reviewed the documentary evidence and finds that there is no evidence in the record stating that Jilin was or is a province that is engaged in forced sterilization of individuals in violation of the family-planning policy. [25] The RAD finds that there is not a sufficient evidentiary basis to establish the Appellant's claim that she would be subjected to coercive birth control measures in China. The RAD notes that forced abortions and sterilizations are banned at the national level, but that the implementation of these laws varies by province and locality, both through local regulations and actual enforcement.viii There is no evidence that the Jilin regulations presently set out mandatory sterilization or abortion procedures for families that have out-of-plan pregnancies and births. Jilin is no longer included amongst the provinces noted as having and enforcing regulations requiring termination of out of plan pregnancies, such as Hubei, Hunan, and Liaoning. Jilin is not mentioned as a province, such as Guizhou, Jiangxi, Qinghai, and Yunnan, that maintained provisions that require "remedial measures."ix [26] The RAD notes that the 2013 Australian Migration Review Tribunal Background Paper on Chinax stated that Jilin was a province that included forced abortion in its regulations; however, more recent documentary evidence states that this regulation has been removed.xi [27] The RAD finds that while there is a previous history of coercive abortions in Jilin, there is insufficient recent country condition information to establish the Appellant's claim that she would be subjected to coercive sterilization measures in China given the objective documentary evidence. [28] Moreover, the RAD notes that the family-planning laws of China have recently changed, and that as of January 2016, Chinese citizens are allowed to have two children. It is noted that couples of childbearing age can voluntarily choose contraception and birth control measures of their choice.xii There is no indication in the country condition documentation that in Jilin, forcible sterilization may be a method used to enforce birth control. [29] The RAD has considered the personal circumstances of the Appellant. The Appellant is approximately 51 1/2 years old. The RAD has found that she has not established the existence of the two children she bore on a balance of probabilities. However, even if she had born these two children, as well as having a stepson, the RAD finds that there is less than a mere possibility of persecution for having more than two children. The RAD notes that there is no evidence that the family planning officials required her to be sterilized in 1998 when her second child was born, or that there was any attempt to abort this child, despite being in violation of family planning regulations. There is no evidence on the record that sterilizations are or have been a practice in Jilin province. The RAD finds, on a balance of probabilities, that the Appellant would not be subjected to sterilization should she return to China given her past experiences, her age and country condition documentation. The RAD further finds, on a balance of probabilities, that the consequences of out of plan pregnancies would be the payment of a social compensation fee given that this was the consequence of the violation of the policy for the Appellant in the past in Jilin city in Jilin province. [30] The RAD finds that the requirement to pay social compensation fees for "out-of-plan" children is not persecutory in nature. The RAD finds that there is insufficient evidence to indicate that the requirement to pay these fees would prevent the Appellant from earning a livelihood, taking into consideration that she had sufficient funds to pay a smuggler $10,000 to bring her to Canada.xiii The RAD has additionally considered that the Federal Court has found that the imposition of such fees is not in itself persecutory, as they result from laws of general application,xiv and that economic penalties may be an acceptable means of enforcing a state policyxv where the claimant is not deprived of his or her right to earn a livelihood.xvi [31] The RAD is further guided in this regard by the decision of the Federal Court in Chen,xvii in which the Court stated that a fine was likely and further noted a long line of jurisprudence to the effect that the "social compensation fee" charged to families that have more than one child is not persecution within the meaning of the Convention. Family Planning Authority Documentation [32] The RPD considered documentation from the family-planning authorities which included sterilization notice receipts and other documents and found that they were unreliable and untrustworthy and placed no weight on them in establishing the core allegations of the claim. The RPD found that it was highly unlikely that the Chinese authorities would provide a document that explicitly indicates they wish to forcibly sterilize the Appellant. The RPD noted that the documents from the family-planning authorities contain features that can be easily replicated and that fraudulent documents are readily available in China. [33] The Appellant argues that documentary evidence indicates that family planning regulations are coercively enforced in some areas of China and the objective evidence cited above states that the province that the Appellant comes from, Jilin, is one of those provinces. She submits that it is not inconceivable that a notice requiring an individual to report for sterilization could have been issued. [34] The RAD has reviewed the record and agrees with the RPD that little weight can be put on the documentation from the family planning authorities to corroborate that Chinese authorities continue to pursue the Appellant in order to sterilize her. The RAD takes judicial notice of the fact that at approximately 51 1/2 years old, the Appellant is at the end of her childbearing years and the RAD finds, on a balance probabilities, that the authorities would not be pursuing her for sterilization given her age. The RAD finds that even if the authorities had required the Appellant to be sterilized in XXXX 2015 when she was 48 years old, it is not plausible that they would continue to do so at the present time. The RAD notes that there is a letter from the Appellant's stepson dated XXXX XXXX, 2016, stating that family-planning officers went to their home several times looking for the Appellant and her husband after they had not shown up for the sterilization procedure scheduled on XXXX XXXX, 2016. However, the RAD notes that there is no updated documentation on the record or in the appeal record to indicate that family-planning authorities continued to seek out the Appellant for sterilization. The RAD finds, on a balance of probabilities, that the present potential consequence of not showing up for sterilization three years ago would be the payment of a fine, which is not persecutory. [35] Although the Appellant has argued that the documentary evidence states that Jilin is one of the provinces where family-planning regulations are coercively enforced, the RAD finds that this is not the case. As noted earlier, it is stated that Jilin no longer has requirements to terminate pregnancies that violate the family planning policy and that the requirement now is to report to higher authorities when there is a violation. There is no mention of what the consequence of being reported to a higher authority would be. The RAD has carefully reviewed the country condition documents in the NDP and those submitted at the RPD by the Appellant's counsel and finds that there is no evidence in the record that sterilization would be the result of violation of family-planning policies in Jilin province. The RAD has also considered that the Appellant violated the policy twice, was fined, but was not subjected to sterilization after the birth of a second child in 1998 when the one child policy was in effect. [36] The RAD has further considered that other documents allegedly issued by authorities in China have been found to be fraudulent and those documents are interrelated with the family-planning notices. The RAD places no weight on the documentation from the family-planning authorities in Jilin province as corroboration that the Appellant continues to be sought for sterilization in China. Summary [37] The RAD finds that the Appellant has not established, on a balance of probabilities, that Chinese authorities wish to have her sterilized. The RAD finds that there is less than a mere possibility that the Appellant would be subjected to persecution in the form of sterilization should she return to China. CONCLUSION [38] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "Linda Hart" Linda Hart March 5, 2019 Date i Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for China (20 July 2017), Item 3.30, Response to Information Request (RIR) CHN105545.E, Immigration and Refugee Board of Canada (IRB), 29 June 2016. ii Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), Item 3.30 and Item 5.4, RIR CHN105636.E, IRB, 20 October 2016. iii Grozdev, Kostadin Nikolov v. M.C.I. (F.C.T.D., no. A-1332-91), Richard, July 16, 1996. iv Nasim, Babar v. M.C.I. (F.C.T.D., no. IMM-6455-00), Tremblay-Lamer, November 2, 2001, 2001 FCT 1199. v Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002, 2002 FCT 451. vi Gochez, Julio Cesar v. M.C.I. (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. vii Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), Item 2.1, United Statess. Department of State, 3 March 2017 and Exhibit 5.13, RIR CHN105499.E, IRB, 19 May 2016. viii Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), Item 5.5, CHN104963.E, IRB, 16 October 2014. ix Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), Item 2.1. x Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), Item 5.7, Australia. Refugee Review Tribunal, 8 September 2013. xi Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), Item 2.1 and Item 5.3, China (2011). xii Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (20 July 2017), Item 2.1. xiii Exhibit RPD-1, RPD Record, Exhibit 1, p. 53, Schedule 12, Question 7. xiv Wang, Jian Zhong v. M.C.I. (F.C., no. IMM-4488-10), Rennie, June 2, 2011, 2011 FC 636; Chen, Li Xing v. M.C.I. (F.C., no. IMM-8158-13), Rennie, February 19, 2015. 2015 FC 225. xv Cheung, Ting Ting v. M.E.I. (F.C.A., no. A-785-91), Mahoney, Stone, Linden, April 1, 1993. Reported: Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.); (1993) 19 Imm. L.R. (2d) 81 (F.C.A.). xvi Lin, Qu Liang v. M.E.I (F. C. A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Citizenship and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.). xvii Chen, Li Xing v. M.C.I. (F.C., no. IMM-8158-13), Rennie, February 19, 2015. 2015 FC 225. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-22664 RAD.25.02 (September 18, 2018) Disponible en français 12 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 (September 18, 2018) Disponible en français