TC0-10727

RAD File / Dossier de la SAR : TC0-10727 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 May 26, 2021 Date de la décision Panel E. Rose Tribunal Counsel for the person who is the subject of the appeal Mary E. Boyce 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 the decision of the Refugee Protection Division (RPD) dated December 4, 2020. [2] The Appellant fears returning to China as he believes that the moneylenders with whom he has an overdue business loan, have engaged the Public Security Bureau (PSB) to jointly persecute him. The Appellant came to Canada in XXXX 2018 (his second visit on a pre-exiting visa) to visit his sister and get away from the stress he was experiencing.1 On XXXX XXXX XXXX 2018, he made a claim for protection, after a PSB summons dated XXXX XXXX XXXX 2018 was issued for his interrogation. [3] The RPD found the Appellant to be lacking in credibility and determined that he is neither a Convention refugee nor a person in need of protection. [4] The Appellant submits that the RPD erred with its credibility findings and asks that I allow the appeal pursuant to subsection 111(1)(b); or, in the alternative, refer the matter back to RPD for re-determination by a differently constituted panel pursuant to subsection 111(1)(c).2 [5] The Appellant is not submitting new evidence pursuant to subsection 110(4),3 and does not request an oral hearing.4 [6] After my independent review of all the evidence on standard of correctness,5 I conclude that the Appellant is neither a Convention refugee nor a person in need of protection and the appeal is dismissed. ISSUES IN APPEAL [7] The Appellant alleges that the RPD erred with its credibility findings by misapprehending evidence, confusing credibility with plausibility, rendering unreasonable inferences and by speculating. ANALYSIS [8] I have reviewed the record and the Appellant's arguments and find that overall, the RPD decision is correct. I have addressed some of the Appellant's credibility arguments below. However, as the findings on the PSB involvement and pursuit are determinative, I have not addressed all. RPD findings and the appellant's argument [9] The Appellant argues that the omission from his Basis of Claim (BoC) about an altercation occurred during the XXXX XXXX XXXX 2018 encounter with the moneylenders in his office, is not sufficiently serious to undermine the credibility of the claim.6 Although, he acknowledges that the oral testimony and written narrative differ slightly. [10] My review of the oral testimony of the Appellant confirms that the Appellant indicated that there was a physical confrontation with the moneylenders, "thugs" who came to his office in XXXX 2018. While the confrontational aspect to the incident was omitted from the narrative, I note that when asked directly at the RPD hearing if he sustained any injuries, the Appellant testified: "Basically not."7 [11] I agree with the Appellant that his oral testimony is not a significant departure from his BoC narrative,8 as he confirmed that no injury was sustained, and I agree that had this been the only issue around credibility, the RPD would have erred in dismissing the claim. However, this is simply not the case. [12] The Appellant also argues that the RPD misapprehended the evidence regarding the Huang's threat, along with Huang's PSB connections; and the RPD also erred by expecting an original copy of a phone WeChat message, which had been shown to the RPD member at the hearing.9 [13] As the messaging was taking place on a phone app platform, I agree with the Appellant that the phone message shown to the RPD was the original, and no other original was available beyond viewing the phone itself.10 It was for the RPD then to assess the content and determine the weightiness of the evidence, which was not done. While this is an error, it is also not a determinative issue. [14] In his Memorandum, the Appellant also contests the RPD's treatment of the new evidence letter from the Appellant's wife. [15] I note that the RPD gave lengthy reasons for its concerns with the post hearing supporting documents.11 The Appellant has not specifically contested the RPD's findings around the obstacles to accepting the supporting evidence in general, he just contests the reference to content of his wife's letter. [16] The Appellant argues that the RPD erred as it did not formally accept the new post hearing evidence, yet also impugned the letter in the decision, noting inconsistency it raised with the Appellant's oral testimony around threats his daughter received at university.12 [17] While the Appellant directly testified he has not heard that his daughter faced any problems with thugs finding her at university,13 and that he speaks almost everyday to his wife as noted in the submissions;14 his wife's post hearing new evidence letter provided information around events that he was vague on, indicating that his daughter was sought out at university.15 The RPD was correct in noting that this ran inconsistent with the level of contact he alleged and the details he provided at the hearing; however, the RPD also provided adequate reason to not accept this new evidence, beyond it being too fortuitous to be believed.16 [18] As the wife's letter, accepted or not, is not determinative, any error that the RPD made in referring to it, after finding it inadmissible has no effect on the outcome of this appeal. [19] With respect to meeting his evidentiary burden, the Appellant provided no supporting statement from family members, or business associates at his RPD hearing. His family members and associates had allegedly interacted with the moneylenders and the PSB. [20] The Appellant was asked about the dearth of statements about the pivotal events at the hearing, and he explained that he was not aware that he needed supporting evidence about these events. I find this explanation falls short of being reasonable as the Appellant was represented by experienced counsel; he had completed a BoC form where it is expressly stated to provide supporting documentation;17 and the Appellant is a sophisticated well traveled businessman, where the concept of supporting a refugee story with credible corroborating documents would not be foreign, or an unreasonable expectation of the RPD. I note that there is no new evidence provided with this appeal which addresses any ongoing safety concerns for the Appellant's family in China recently either. The RPD was correct in finding the lack of supporting evidence of events by family members and business associates adversely affected his credibility. [21] The Appellant presents other arguments in his Memorandum; that the RPD erred when it asked the Appellant to speculate on the thugs conduct of requesting only copies of the Appellant's parents' property documents,18 and misconstrued the evidence on the Appellant's ability to exit China without interception by the PSB19 and the evidence on his captivity in the 24 hours prior to departure. [22] I do not find these arguments need to be addressed in light of my findings on the PSB pursuit and summons below. Therefore, I find these arguments are not determinative. Subpoena and PSB involvement and pursuit are determinative [23] The Appellant submits that the involvement of the PSB with the loan sharks, and the PSB pursuit of him as evidenced in the XXXX XXXX XXXX 2018 summons, supports the central allegation that he is at risk of torture or a risk to his life or of cruel and unusual treatment or punishment on return to China.20 In my view, this is determinative. [24] According to the Appellant, the summons was left at the home of his parents in Shanghai. It was discovered amongst the mail collected by a neighbour as his parents were away in Shaanxi Province until XXXX 2019, five months after the summons' issuance. [25] While indicating that he spoke with his wife regularly, the Appellant also indicated that he did not know if any coercive summons had been issued to his family after he failed to appear on XXXX XXXX XXXX 2018. When asked about the issuance of a subsequent coercive summons, the Appellant stated, "I only received this summon because I am not in China now, I am not quite sure if there is any other issued."21 [26] The RPD found the Appellant's evidence around the issuance and receipt of the subpoena22 to be vague, in the context of the importance of this document, and the implication of a continued PSB pursuit, and I agree. [27] When asked about the circumstances of the summons being forwarded to him, the Appellant provided more vague and evolving testimony23 about how he obtained the summons six months after the issuance: APPELLANT: They were in Shaanxi province. My friend then passed the whole package of all mails regarding me to my parents. MEMBER: Which friend is this? APPELLANT: He is a good friend of mine. He is old neighbour. MEMBER: Okay, and then how did you get it? APPELLANT: Then, this old neighbor and friend sorted through...sorted through all these mails, piles of mails, anything relevant and important to show, tell me and the summon is one of those. Then, a friend...another friend who has been immigrated to Canada for a long time, many years and traveling back and forth and this person brought this back to Canada for me. MEMBER: What's his name? APPELLANT: My friend's name is XXXX XXXX, this person's name is XXXX XXXX actually had someone else retrieve these things for me and I do not know the name of that person, so he is a friend, an old friend too, had done this, so many of my documents that is brought back here to Canada from China, through a friend and friend. MEMBER: Okay, the one who immigrated to Canada, your friend, he is the one who brought back the documents, yes or no. How do you spell XXXX XXXX? APPELLANT: XXXX XXXXisXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX MEMBER: XXXX XXXX is the one who was in Canada? APPELLANT: Yes, he is a Canadian citizen. MEMBER: Okay, so he went to China and retrieved the documents from the other guy. APPELLANT: XXXX XXXX has many friends in Shanghai area travelling between Canada and China, so XXXX XXXX asked his friend to bring back to me. [28] The Appellant's testimony evolved from XXXX XXXX bringing the summons to Canada for him, to an unknown, friend of a friend, and then to XXXX XXXX friend, XXXX XXXX XXXX bringing the summons to him.24 His evidence is not sufficiently credible. [29] Additionally, my review of the summons provided by the Appellant in support of the alleged interest in him and connection to the moneylenders leads me to the conclusion that it is fraudulent. [30] The objective evidence from the most recent National Documentation Package (NDP) for China confirms that "there has been no variation in the format of the summonses and subpoenas since 2003." 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".25 [31] The summons provided by the Appellant deviates from the objective evidence on its face. It has the same heading as two different samples contained in the objective material;26 however, it does not fully conform with either. [32] The Appellants subpoena is missing a character after the square bracket date27 and prior to the file number, as seen in the objective sample.28 The Appellant's subpoena places the time for appearance on the same line as the date of appearance in contrast with the objective sample which places the time on a different line. Lastly, the objective sample contains three lines at the bottom of the document which record details like the arrival time of the summoned individual, ending time of interrogation and signature of summoned person. This is entirely missing from the Appellant's subpoena. [33] The Appellant's summons also partially corresponds with another objective sample,29 but again deviates significantly from that sample as well. The Appellant's summons contains a square bracket around the year 2018, which is rounded in the sample; the Appellant's summons is missing a round bracket on line four, prior to the date of appearance, as is viewed in the sample. Lastly, the group of tombstone characters that are found on the last line of the sample after the appearance information are misplaced on the Appellant's summons to the end of the line above the last line. As already noted, there has been no variation in the format of summons in China.30 [34] The summons itself is dated on XXXX XXXX XXXX 2018, yet the Appellant was also expected to attend on XXXX XXXX XXXX 2018, the same day as issuance, yet the Appellant was not served personally, as it was discovered in a pile of mail that was retrieved by his neighbour. [35] As noted, the Appellant had no knowledge of the subsequent issuance of coercive summons which would follow when a suspect fails to appear for a summons.31 Given the issuance of a summons on XXXX XXXX XXXX 2018, with an appearance required on the same day of XXXX XXXX XXXX 2019, it is not credible that the PSB would have slipped it through the mailbox. [36] I further note that the summons states, "If you refuse to attend without lawful excuses, you will be forced to attend."32 This does not align with the Appellant's evidence of the summons being left without personal delivery to the Appellant or family members either. The Criminal Procedure Act for China, Article 107, specifically details that the delivery of subpoenas shall be made to the recipient in person, [emphasis added] and if the recipient is not present, it may be left with adult family members or in the workplace.33 [37] Lastly, the Appellant's subpoena references Article 117 of the Criminal Procedural Law of Peoples Republic of China which has no context to the Appellant's situation. This article addresses the right of parties to appeal34 and the Appellant has alleged that the summons was issued for the purpose of interrogation relating to a fraud allegation. [38] It is these numerous deviations, both on its face and in content, that lead me to conclude that the Appellant has provided a fraudulent summons.35 As the PSB involvement is intricately tied to the Appellant's allegations, the RPD was correct to conclude that the Appellant is not credible. [39] Furthermore, 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 interrelated,36 and may also impact the overall credibility of the Appellant;37 the fraudulent summons undermines the credibility of the remaining documents that the Appellant has submitted in support of this appeal. CONCLUSION [40] The Appellant has provided insufficient credible evidence establishing his appeal. I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Elana Rose Elana Rose May 26, 2021 Date 1 Transcript of March 2, 2020 RPD Hearing, p. 20. 2 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 11, at para. 20. 3 Subsection 110(4), Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. . 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 1. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 5. 7 Transcript of March 2, 2020 RPD Hearing, p. 21. 8 Exhibit RPD-1, RPD Record, Exhibit 2, p. 29, at para. 8. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 6. 10 Transcript of March 2, 2020 RPD Hearing, p. 34. 11 Exhibit RPD-1, RPD Record, RPD Decision, pp. 13-16. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 7. 13 Transcript of March 2, 2020 RPD Hearing, p. 18. 14 Exhibit RPD-1, RPD Record, Exhibit 10, p. 154. 15 Exhibit RPD-1, RPD Record, Exhibit 5, p. 130. 16 Meng v. Canada (Citizenship and Immigration), 2015 FC 365, at para. 22. 17 Exhibit RPD-1, RPD Record, Exhibit 2, p. 20, #2. 18 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 7, at para. 11. 19 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 6, 7 20 Ibid., p. 11, at para. 19. 21 Transcript of March 2, 2020 RPD Hearing, p. 14. 22 Exhibit RPD-1, RPD Record, Exhibit 5, p. 108, 109. 23 Transcript of March 2, 2020 RPD Hearing, pp. 35-36. 24 Ibid., pp. 36,-37. 25 National Documentation Package (NDP) for China (April 16, 2021), Item 9.10: Samples of summonses and subpoenas, Immigration and Refugee Board of Canada (IRB), Response for Information Request (RIR) CHN104458.E., p. 1. 26 NDP for China (April 16, 2021), Item 9.2: English translation of samples of summonses, IRB, 9 February 2018, RIR CHN106016.E., at p. 11; and Item 9.3: Regulations on summonses; information on the contents of summonses, including whether these indicate where a person must present his or herself, including street address, IRB, 20 October 2015, RIR CHN105217.E., p. 17. 27 Exhibit RPD-1, RPD Record, Exhibit 5, p. 109. 28 NDP for China (April 16, 2021), Item 9.2, p. 11. 29 NDP for China (April 16, 2021), Item 9.3, p. 17. 30 NDP for China (April 16, 2021), Item 9.10, (Supra, endnote 25). 31 Ibid. 32 Exhibit RPD-1, RPD Record, Exhibit 5, p. 108. 33 NDP for China (April 16, 2021), Item 9.5: Criminal Law, China, 2018, p. 18. 34 Ibid., p. 20. 35 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064. 36 Uddin, Nizam v. Canada (M.C.I). (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002. 37 Gochez, Julio Cesar v. Canada (M.C.I.) (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-10727 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