TB6-06289

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 File No. / N° de dossier de la SAR : TB6-06289 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 24, 2016 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Aleksei Grachev Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Appellant"), a citizen of the People's Republic of China ("China"), appeals a decision of the Refugee Protection Division ("RPD") rejecting his claim for refugee protection. The Appellant has submitted new evidence and is requesting an oral hearing before the RPD. He requests that the appeal be allowed and that the decision of the RPD be set aside and the Refugee Appeal Division ("RAD") find him to be a Convention refugee or a person in need of protection. Alternatively, he requests that the matter be referred back to the RPD for redetermination. DETERMINATION OF THE APPEAL [2] The appeal is dismissed. Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant states that he was having difficulty in his marriage when a friend introduced him to Roman Catholicism in XXXX 2015. He started to attend his friend's house church in late XXXX 2015. He says there were 12 members of the church, and their group leader arranged for lookouts and changed the locations of their meetings for their safety. He maintains that they also distributed religious leaflets and left them on benches in parks at midnight when there was no one around. He says that he began to have peace and happiness, and his relationship with his wife improved daily. [4] He maintains that, on XXXX XXXX, 2015, his friend and another member of the house church went to distribute leaflets, but they were arrested by the Public Security Bureau ("PSB"). He says that he was arrested the same day and detained by the PSB. He maintains that he was beaten during his detention, and he was chained without food or water. He states that his company provided bail for his release on XXXX XXXX XXXX 2015. He was released on conditions that he would not participate in house church activities, and he would report to the local PSB office every Monday. He reported on XXXX XXXX, 2016, but he was frightened of being detained again. He then went into hiding on XXXX XXXX XXXX 2016 at his aunt's house. [5] While he was in hiding, his wife telephoned his aunt and told her that the PSB went to his house looking for him on XXXX XXXX, 2016. The PSB accused him of breaching the condition of reporting on XXXX XXXX, 2016. The PSB left an arrest warrant with his wife. One week later, the PSB issued a "wanted" circular for his arrest. He also learned that the two individuals arrested for distributing leaflets were sentenced to two years' imprisonment. [6] With the help of his aunt, he found a smuggler who helped him leave China. He arrived in Canada on XXXX XXXX, 2016 and made a claim for refugee protection. ROLE OF THE RAD [7] The decision of the Federal Court of Appeal in Huruglica1 provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of the first-level administrative tribunal. [8] The Court stated that, with respect to findings of fact (and mixed fact and law), which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to s. 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD's decision without hearing the evidence presented before the RPD. This recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because those cases require an assessment of credibility or weight to be given to the oral evidence it hears. It further indicates that, although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [9] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. New Evidence [10] The Appellant submits the following documents as new evidence: (a) XXXX Social Employment and Security Card; (b) Articles of Association - XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [11] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. [12] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.3 [13] Section 110(4) establishes a disjunctive test.4 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in the circumstances, to have presented the evidence to the RPD prior to the rejection of the claim. If he could not have been expected to do so, the evidence meets the requirements of section 110(4). [14] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.5 [15] As the RAD understands it, Section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [16] Section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.6 [17] The fact that evidence presented does not go as anticipated is not a reason that other available evidence could not have been presented as well. [18] The Federal Court has stated: [24] I am satisfied that the RAD did not err in refusing to admit the applicant's proposed new evidence. The RAD's decision indicates that it was well aware of its role, that it assessed each piece of proposed new evidence, including the applicant's submissions on the new evidence, in light of subsection 110(4) and, "within the context of the totality of the Appellant's evidence adduced at the RPD." The applicant's explanation for failing to place the proposed new evidence before the RPD was that he could not have foreseen that the RPD would make negative findings on: (1) his identity; and (2) the question of objective risk. This is simply not consistent with the record. I concur with the RAD's conclusion that the applicant had the onus to put forward his case to the RPD as to why he should be accepted as a Convention refugee or a person in need of protection. It was not open for him to wait to forward requisite and relevant evidence until after the RPD rendered a negative determination.7 [19] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.8 Old evidence remains old evidence, even if it is placed in a new document with a recent date. [20] Where a document meets the test in Section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in Section 110(4). [21] In Singh,9 the Federal Court of Appeal held that there is no valid reason that the RAD cannot apply the criteria set out in Raza10 to the assessment of new evidence. While Raza predates the introduction of Section 110(4) of the IRPA, it is based on the nearly-identical wording of Section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.11 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of Section 110(4).12 [22] Where evidence meets the test in Section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances". This provision makes it clear that, in addition to the factors in Section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [23] Relevance is a basic condition for the admissibility of any piece of evidence.13 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant". It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to Section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit". [24] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality". Newness is implicitly incorporated into Section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in Section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.14 [25] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in Section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of Section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. [26] The Appellant submits that the documents tendered as new evidence corroborate that he lived in Sichuan province. He states that these documents were not available at the time of the RPD hearing because his previous counsel at the RPD did not advise him that they would be needed. [27] The RPD hearing was held on March 31, 2016, and the Notice of Decision is dated April 25, 2016. The Articles of Association are dated as signed on XXXX XXXX, 2006 and XXXX XXXX, 2006. The social employment and security card is undated and, therefore, does not comply with section 110(4). The Articles of Association are dated prior to the RPD hearing. There is no evidence that these documents were not reasonably available at the time of the RPD hearing or that they could not reasonably have been expected in the circumstances to have been presented at the time of the rejection of the claim. The statement that his previous counsel did not advise him that they would be needed is not a valid reason to find that they were not reasonably available or that it was unreasonable for them to be presented to the RPD. The documents do not meet the test in section 110(4) of the IRPA and will not be accepted into evidence. ANALYSIS OF THE MERITS OF THE APPEAL [28] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: (a) It is not credible that the Appellant is a genuine Roman Catholic practitioner; and (b) It is not credible that the PSB is pursuing the Appellant for failing to comply with reporting conditions after he was released from detention for attending an illegal house church. Submissions [29] The Appellant submits that the RPD erred by ignoring evidence properly before it; by making an unwarranted implausibility finding; and by failing to conduct a proper sur place analysis. [30] The Appellant submits that the RPD erred in finding inconsistencies between his interview by the Canada Border Services Agency (CBSA) when he arrived in Canada, his oral testimony at the hearing and his Basis of Claim (BOC) form. The RPD erred in failing to accept his explanation that he was under stress when he was detained at the airport, and he was not sure how much information he should volunteer to the CBSA fearing that he would be immediately deported back to China and then the information would be used against him and other people. This was a reasonable explanation, and the RPD should have considered that his statements to the CBSA at the airport were made without a lawyer representing him. It is a general principle of law that statements given without prior consultation with a lawyer should not be given much weight in assessing a party's credibility. [31] The RPD found inconsistencies between the Appellant's address given in the BOC that stated he resided in Sichuan; whereas, his IMM form stated that he resided in Fujian. The Appellant explained why there were two different addresses on these forms, but the RPD rejected his explanation. The issue of address discrepancy was not the central issue of the claim especially given the Appellant's explanation. [32] The RPD erred in finding that the Appellant would not be able to leave China on his own passport if he was wanted by the authorities in China. The RPD failed to consider the explanation that he had used a smuggler to leave the country and that the smuggler had bribed airport officials to allow him to pass through security checkpoints at the airport and board the plane to Canada. The RPD did not accept this reasonable explanation. This was also a plausibility finding that was not supported by the clearest of evidence. [33] The RPD erred in relying upon documentary evidence in reaching the conclusion that the Appellant could not leave the country on his own passport. The documentary evidence cited by the RPD does not state that authorities at the airport have information about entries and exits in the Policenet database. [34] The RPD erred in undertaking a microscopic analysis of the Appellant's Christian knowledge and failing to explain to the Appellant the RPD standard of knowledge of Christianity against which the Appellant's knowledge would be measured. [35] The RPD erred by applying the wrong legal test in determining whether the Appellant has a well-founded fear of persecution. The RPD stated that the Appellant had not satisfied the burden of establishing that there was a reasonable possibility of persecution. The test under section 96 of the IRPA is "more than a mere possibility"; whereas, the test applied by the RPD is a higher standard than a reasonable chance of persecution. [36] It is also submitted that the RPD erred by making a cumulative negative credibility finding on some of its credibility findings that were made in error. Analysis [37] In considering whether the Appellant was a genuine Roman Catholic practitioner in China, the RPD noted a number of inconsistencies between the Appellant's Basis of Claim (BOC), his testimony and his port of entry (POE) interview. In the POE interview, he stated that, when he was young, his grandmother taught him about Christianity. He was asked if his spouse in China was a Christian and he responded, "yes". When he was asked if the police would arrest her, he said, "She is in XXXX (Fujian province) and she is not in the public." In his BOC and oral testimony, he stated that a friend introduced him to Christianity in 2015, that his wife is not Christian and that she is living in Sichuan province. [38] The RPD asked the Appellant about these inconsistencies, and he replied that, when he was interviewed at the border, he wanted to tell them the truth, but he was afraid of being sent back to China. The RPD rejected this explanation stating that he may have been frightened when he was interviewed; however, the inconsistencies were not minor or immaterial. His statements at the POE are inconsistent with his statements as to the motivation that led him to join an illegal Christian church in 2015. [39] The RPD noted that he stated that he was first introduced to Roman Catholicism in XXXX 2015, and he attended his first house church service in late XXXX 2015. The RPD stated that he was able to tell the panel about some of the basic principles of Catholicism including the seven holy sacraments, the Blessed Trinity and "Incarnation". The RPD stated that he began attending a weekly Sunday worship in a church in Toronto in XXXX 2016, and he is attending a Christian initiation course. [40] The Appellant produced into evidence before the RPD a letter from the Toronto Chinese Catholic Center - XXXX XXXX XXXX XXXX XXXX XXXX, dated March 20, 201615 stating that the Appellant has been registered as a member of the church since February 14, 2016. It states that he attends Sunday worship every week and helps in volunteer work. It also states that his teacher says that he is a good student and, when he completed his Rite of Christian Initiation Course, he will be eligible to be baptized a Catholic next XXXX 2017. The RPD found that the knowledge he possessed could easily have been gained in Canada. The RPD found that his knowledge of Christianity did not overcome the cumulative credibility findings it made. The panel found that these documents do not overcome the credibility concerns and establish the Appellant's profile as a genuine Roman Catholic who was wanted by the PSB. [41] The Federal Court has commented on the use of POE notes in considering differences between the notes and the BOC and oral testimony: [16] With respect to the Board's reliance on differences between Mr. Wu's statements at the POE and his testimony at the hearing, I accept that the Board should be careful not to place undue reliance on the POE statements. The circumstances surrounding the taking of those statements is far from ideal and questions about their reliability will often arise.16 [13] ... In evaluating the applicant's first encounters with Canadian immigration authorities or referring to the applicant's Port of Entry Statements, the Board should also be mindful of the fact that "most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority": see Prof. James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworth, 1991) at 84-85; Attakora, supra; and Takhar, supra.17 [42] In this case, the Appellant stated that he wanted to tell the truth at the POE, but he was afraid of being sent back to China. The RPD acknowledged that he may have been afraid, but the inconsistencies were not minor or immaterial. They went to the heart of the claim, as he misrepresented the person who introduced him to Christianity and the date which he began to learn about Christianity. He misrepresented his wife's religion and misrepresented the province where she was residing. The RPD found that his explanation for the misrepresentations was not reasonably addressed by his statement that he was afraid to tell the truth. Whether or not he was taught Christianity since childhood or he was taught Christianity in 2015 does not have any bearing on whether or not he would be sent back to China. The same reasoning applies as to whether or not his wife is also Christian and the province where she resides. [43] The RAD agrees with the RPD that the Appellant's reason for his inconsistent statements at the POE that he was afraid that he would be sent back to China is not reasonable. Whether he learned about Christianity at an early age from his grandmother or whether he learned about Christianity from a friend in 2015 is not a reason to believe that he would be sent back to China. The Federal Court has stated that the Board should be careful in rejecting an explanation for differences between the POE notes, the BOC and oral testimony because the claimant stated that he was afraid of being sent back to his country of origin and being persecuted further by the agent of persecution. The RAD finds that in this particular circumstance, the RPD has considered the proper weight to be given to statements made at the POE and agrees that the inconsistencies affect the credibility of the Appellant. [44] The RAD finds that the address discrepancy was a major factor in the RPD's conclusion that the arrest warrant18 submitted by the Appellant was given little weight. The document states that the PSB of XXXX County XXXX City sent two officers to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX City, (Sichuan Province) on XXXX XXXX, 2016 to arrest the Appellant. The address on the warrant is not the same as the address given by the Appellant on the form IMM 5669 submitted with his refugee claim or the address on his resident identity card (RIC) or his hukou. Each of those documents lists his address as XXXX XXXX XXXX XXXX XXXX, Fujian province. [45] The RPD asked the Appellant why there was a difference between his address on his arrest warrant and his address on the other documents. He stated that his hometown is in Fujian province, and his family has been living with him in Sichuan province where his company is located. He states that, at the time he completed his form IMM 5669 he forgot to write his correct address and just used the address as noted on his RIC. The RPD noted that his hukou was issued in 2014 but did not reflect his current address. The Appellant stated that he lost his hukou, so he and his wife went back in 2014 to get a new hukou issued. He also stated that he did not update his hukou because he worked in a different city in XXXX at his friend's office and sometimes he would return to his home town in Fujian so he did not update or change his hukou. [46] The RPD rejected these explanations, as the documentary evidence19 states that individuals must notify the PSB in the original hukou zone to have his or her name deleted, as well as notify the PSB in the new hukou zone where his/her name would be registered. Changes which require a new registration, such as marriage, change of family status and relocation must be reported to the hukou authorities.20 The RPD gave little weight to the arrest warrant because his documents listed his address in Fujian province, and there was no persuasive evidence that he lived at the address on the warrant. [47] The RAD did its own examination of the document and notes that Article 78 of the Criminal Procedure Law of the People's Republic of China (2012 Amendment)21 states "The arrest of the criminal suspect or defendant must be subject to the approval of people's procuratorate or a decision of the people's court and be executed by the public security authority." Article 79 states in part "...Where the criminal suspect or defendant waiting for trial on bail or under residential confinement seriously violates the provisions on bail or residential confinement, the criminal suspect or defendant may be arrested." [48] There is no indication on the arrest warrant presented that the alleged arrest was approved by a people's procuratorate or a people's court. The RAD finds that this is further evidence that the RPD was correct in giving the document little weight, and the RAD concludes that the document is not genuine. [49] The RPD also gave the document entitled "Dismissing Detention Warrant" little probative value since it was related to the alleged issuance of the arrest warrant and documentary evidence showing the present prevalence and availability of fraudulent documents in China.22 [50] The RAD notes that Articles 64 and 66 of the Criminal Procedure Law23 provides that "a people's court, and a people's procuratorate, and a public security authority may grant bail to a criminal suspect or defendant..." and where these authorities grant bail, "it shall order the criminal suspect or defendant to provide as surety or pay a bond" and the law goes on to state what conditions can be imposed. There is no authority for a detention center to grant bail and provide conditions for release as shown in this document. After inspecting the document, the RAD finds that this is also a document that is not genuine. The RAD also finds that the document entitled "Payment Receipt of the Administration of Sichuan Province24 is not a genuine document since it is dependent on the genuineness of the other two documents. [51] In addition, the RPD found that, if the Appellant was wanted for arrest, he would not have been able to leave China on his own passport if he was wanted for illegal activity. The RPD considered his claim that the smuggler had bribed officials in order for him to pass through all the exit controls without being discovered. The RPD rejected this explanation after considering the documentary evidence. The RAD agrees with this finding. [52] The RAD finds that the documentary evidence reveals that the Chinese government has a national computer network known as the Golden Shield Project,25 and the PSB has access to a national policing database, which includes information about criminal fugitives and information on passports and exit and entry. The Golden Shield incorporated extensive tracking and control mechanisms including facial recognition surveillance technology. [53] The RAD also notes from its own review and assessment of the evidence that the Exit and Entry Administration Law of China, which came into force on 1 July 2013, states the following: Article 11. Chinese citizens who exit or enter China shall submit their exit/entry documents such as passports or other travel documents to the exit/entry border inspection authorities for examination, go through the prescribed formalities, and may exit or enter upon examination and approval. Article 12. Under any of the following circumstances, Chinese citizens are not allowed to exit China: (...) are suspects or defendants in criminal cases; (...) If a foreigner or a Chinese citizen must be prevented from leaving China at a border control station, the people's court accepting the case shall report up the hierarchy to the High People's Court, and a written notification of preventing person from departing through entry-exit port shall be issued by the Highest People's Court, and work with the public security organ of the corresponding level for handle control formalities. If the control port is not within the same province, autonomous region, or municipality directly under the central government, the public security organ in the relevant province, autonomous region, or municipality directly under the central government shall be contacted for the handle control formalities. Under emergency situations, if necessary, may first have the border control prevent departure and complete control formalities later. (China 20 Dec. 2012, Art. 404)26 [54] The RAD also notes that the documentation states that security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities (also known as Policenet or the Golden Shield).27 3. Information Sharing by Public Security Officials In 10 February 2014 correspondence with the Research Directorate, the Executive Director of the Dui Hua Foundation affirmed that airport security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities [also known as Policenet or the Golden Shield]. Similarly, the representative of the Laogai Research Foundation stated that reports on "experiences of activists who have been detained while trying to board an international flight provide clear evidence that airport officials are connected to Policenet" (26 Feb. 2014). A colleague of Cao Shunli, who was also prevented from travelling to Geneva for the human rights training in September 2013, later publicized her own experience at the airport in Guangdong (HRIC 11 Oct. 2013). According to the Laogai research Foundation, the colleague indicates that when her passport was swiped by airport authorities, scanning equipment immediately made noises alerting airport officials that she was wanted by police. She was subsequently detained in the Guangdong Baiyun Airport and told that Shanghai police would not let her leave. She was then transported from Guangdong to Shanghai for detention and questioning. This woman's experience provides concrete evidence of airport officials coordinating with police departments in tracking and detaining a political dissident. (26 Feb. 2014)28 4. Security and Exit Control Procedures The representative of the Laogai Research Foundation wrote that the Chinese government checks the passports of citizens attempting to leave the country in order to ensure that they are suitable for foreign travel. Customs officials stamp the passports of citizens approved for foreign travel. Public security officials often confiscate passports held by individuals deemed unsuitable for foreign travel. (23 Feb. 2014)29 [55] An undated article on the website of the Ministry of Public Security, entitled: "Deepening the Implementation of the 'Golden Shield' Project" states that: ... all police units nationwide have access to eight public security databases, including the "National Basic Population Information Database" (China n.d.). Also accessible through the databases is information on household registration [hukou], border exit and entry, road traffic, and criminal investigations (ibid.).30 [56] In addition, the representative of the Laogai Research Foundation provided the following information: [T]he Golden Shield incorporates extensive tracking and control mechanisms such as real-name online registration requirements, GPS monitoring, and facial recognition surveillance technology in a multi-pronged approach to identify potentially disruptive individuals. Policenet, a component of the Golden Shield, stores a wealth of information on Chinese citizens and connects the various agencies and levels of command within the public security apparatus. This integrated system enables Chinese public security forces to effectively target and neutralize political dissidents. (26 Feb. 2014)31 [57] The RAD finds that, in light of the Appellant's allegation that the PSB have continued to show interest in pursuing him and want to arrest him, it is reasonable to expect that the local authorities would have entered his information into the database to further their efforts to apprehend him. [58] The RAD has considered that the Appellant used a smuggler to exit China. However, the RAD finds that the objective evidence concerning the Golden Shield and other border controls in place in China is compelling and convincing. While it might be possible for a smuggler to bypass some of the security controls, the RAD finds that, based on the evidence in the record, it is highly unlikely that the principal Appellant could have bypassed all of the security controls in place. [59] The RAD notes the Appellant does not cite specific evidence to support an argument about the corruption of officials. The RAD has reviewed the documentary evidence before it and notes that the US Department of State Report32 document discusses corruption at the local level indicating that it was widespread. The document goes on to state that police and urban management officials being engaged in extrajudicial detention, extortion, and assault and that many cases of corruption involved areas heavily regulated by the government, such as land-usage rights, real estate, and infrastructure development, which were susceptible to fraud, bribery, and kickbacks. [60] The RAD notes, however, that the documentary evidence provides little relevant information which applies to activities to overcome security measures in place at border controls. The RAD further notes that the same document states that, while corruption remained a serious problem, there were increasing indications that the government recognized the seriousness of the problem and was taking measures to address the problem. The RAD also finds that the RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.33 As such, the RAD agrees with the RPD that, in light of the complexity of the Golden Shield infrastructure and its "completely computerized inspection procedures and integrated operations", it is reasonable to expect that the Appellant would not be issued a boarding pass or would otherwise be prevented from exiting China. [61] Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.34 In this case, the RAD finds that there is an evidential foundation for the RPD's findings. [62] After its own review and assessment of the evidence, the RAD agrees with the RPD's findings and does not find it credible that the Appellant was able to leave China on his own passport after coming to the attention of the PSB. [63] The RAD, therefore, finds that, on a balance of probabilities, the Appellant is not wanted by the authorities, and there is no serious possibility that he will be persecuted if he returns to China or that he is personally at risk to his life, or at risk of cruel and unusual treatment or punishment, or in danger of torture if he returns to China. [64] In considering all of the evidence, the RPD found that the Appellant's profile concerning his religion as a Roman Catholic is not genuine. It also found that he was not credible with respect to the allegations that he was a practicing Roman Catholic in China. The RPD also found that, on a balance of probabilities, the Appellant was not being pursued in China for attending an illegal house church and for failing to comply with reporting conditions. [65] The RAD has reviewed all of the evidence in this matter and agrees with the findings of the RPD that, on a balance of probabilities, the Appellant was not a genuine practitioner of Christianity in China, and he is not wanted by the authorities in China for attending an illegal house church or failing to comply with reporting conditions. [66] The RAD finds that the credibility findings can be imported into its assessment of the Appellant's sur place claim.35 Having found the Appellant's story of persecution by the PSB because of his attendance at a house church not to be credible, there is no reason to believe that he is now a genuine Christian follower. He has provided a letter from XXXX XXXX XXXX XXXX XXXX Church in Toronto, but this does not overcome the other findings. The letter states that he is attending the Rite of Christian Initiation course, but this does not attest to his motivation in joining the church in Canada or the genuineness of his convictions. There is no persuasive evidence that he would come to the attention of Chinese authorities due to his activities in Canada. [67] The RAD finds that there is no serious possibility that the Appellant will be persecuted if he returns to China and on the same evidence concludes that, on a balance of probabilities, he would not be at risk to his life, or at risk of cruel and unusual treatment or punishment, or in danger of torture if he returned to China. DISPOSITION [68] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Ken Atkinson" Ken Atkinson August 24, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022, para 51. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 5 Deri v. M.C.I., (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 63. 6 Ibid., Singh, para. 54. 7 Cabdi,Mahad Cali v. M.C.I., (F.C., no. IMM-1365-15), Gleeson, January 8, 2016, 2016 FC 26, para. 24. 8 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, [2008] 1 F.C.R., para. 16. 9 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 64. 10 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, [2008] 1 F.C.R. 11 Ibid., Raza, 2007 FCA 385, paras. 13-15. 12 Singh, 2016 FCA 96, para. 64. 13 Singh, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence": Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at 17-6.12; Re Bortolloti and Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para. 64. 14 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 48. 15 Exhibit P-2, RAD's Record, p. 80. 16 Wu, Min v. M.C.I., (F.C., no. IMM-647-10), O'Reilly, November 8, 2010, 2010 FC 1102, para. 16. 17 Lubana, Rajwant Kaur v. M.C.I., (F.C., no. IMM- 2936-02), Martineau, February 3, 2003, 2003 FCT 116, para. 13. 18 Exhibit RPD-1, RPD's Record, p. 271, Exhibit 5. 19 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 30, 2015), item 3.25, "China: Reforms of the Household Registration System (Hukou) (1998-2004), Issue Paper", February 2005. 20 Ibid., NDP for China (October 30, 2015), item 3.25. 21 Ibid., NDP for China (October 30, 2015), item 9.5, Criminal Procedure Law of the People's Republic of China (2012 Amendment). 22 Ibid., NDP for China (October 30, 2015), item 14.3, Response to Information Request (RIR) CHN104761.E. 23 Ibid., NDP for China (October 30, 2015), item 9.5, Article 65.. 24 Exhibit P-2, RAD's Record, pp. 76-77. 25 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), item 14.3, RIR CHN104761.E; and item 10.4, RIR CHN104762.E. 26 Ibid., NDP for China (30 October 2015), item 14.3, RIR CHN104761.E. 27 Ibid., NDP for China (30 October 2015), item 14.3, RIR CHN104761.E. 28 Ibid., NDP for China (30 October 2015), item 14.3, RIR CHN104761.E. 29 Ibid., NDP for China (30 October 2015), item 14.3, RIR CHN104761.E. 30 Ibid., NDP for China (30 October 2015), item 10.4, RIR CHN104762.E. 31 Ibid., NDP for China (30 October 2015), item 10.4, RIR CHN104762.E. 32 Ibid., NDP for China (30 October 2015), item 2.1, US Department of State, "China (includes Tibet, Hong Kong, and Macau), Country Reports on Human Rights Practices for 2014", 25 June 2015. 33 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012, 2012 FC 1037, at 19. 34 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 35 Jiang, Sumei v. M.C.I., (F.C., no. IMM-13-12), Zinn, September 11, 2012, 2012 FC 1067. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-06289