TB4-10828

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 : TB4-10828 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 XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 10, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael Korman 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 appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own decision that the Appellant is a Convention refugee or a person in need or protection or in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that up until the age of fifteen years, he was raised by his grandmother and that she introduced him to Catholicism. After he began to live with his parents, they discouraged him from practicing Catholicism on his own. In 2003, his parents allowed him to join the state authorised Catholic church. The Appellant quit attending the state sanctioned church after two months because he found that the church was influenced by government ideology. In 2010, he was working in XXXXand began to attend an underground church with a friend. He regularly attended the church until 2013 when he moved to XXXXfor work. Unable to find an underground church in XXXX, the Appellant opted to pray at home. [4] He returned to his home in XXXXin January 2014 and began attending underground Catholic services. Members of his underground church decided to build a meeting place for their services and the Appellant agreed to have it built on his property. They built the meeting place under the guise of constructing a warehouse. In XXXX2014, while the building was still under construction, the Public Security Bureau (PSB) dismantled the building, accusing the members of constructing an illegal church. The Appellant and other members of his underground church were taken for interrogation. One of the Appellant's fellow underground members admitted that they were constructing a church and also informed the PSB that the Appellant had previously attended an underground church in XXXX. After fifteen days of detention they were all released. The Appellant's conditions of release included refraining from engaging in any illegal religious activity and reporting to the PSB office four times a month. On each occasion the Appellant reported to the PSB, he was interrogated, physically assaulted and forced to make anti-religious comments by the PSB. [5] The Appellant decided use the services of a smuggler to leave China to escape the persecution. [6] The Appellant's application for refugee protection was heard on October 17, 2014. In a decision of October 28, 2014 the RPD rejected the Appellant's claim finding that the Appellant was not credible. [7] The Appellant submits that the RPD made unsustainable credibility findings and erred in its assessment of his religious identity. ROLE OF THE RAD [8] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [9] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person is need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL Credibility Findings [11] The Appellant submits that the RPD's credibility findings are unsustainable because the RPD: a) Placed undue reliance on the Port of Entry Declaration; b) Unreasonably rejected credible corroborative evidence; c) Speculated about the actions of the PSB; and d) Unduly focused on a lack of corroborative evidence. Did the RPD place undue reliance on the Port of Entry Declaration? [12] The Appellant alleged in his Basis of Claim (BoC) and in his testimony that he was a practicing Roman Catholic in China and that he fears persecution due to his religious activities in China. When the Appellant first arrived in Canada and sought protection, he alleged he was being persecuted for allowing members of his grandmother's former underground church to build a church on his property. The RPD drew adverse credibility findings from the Appellant's failure to mention at the port of entry that he was a practicing underground Catholic in China. [13] The Appellant submits that the RPD placed undue reliance on the port of entry statements. The Appellant argues that the Federal Court jurisprudence is clear in stating that the RPD should not place undue reliance on port of entry notes due to circumstances in which they are obtained and their reliability. The Appellant relies on the Federal Court decision in Hamdar3 to support his arguments [14] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the circumstances in Hamdar are distinguishable from those in this appeal. The RAD finds that in Hamdar, the court took exception to RPD's reliance on the claimant failure to include all of the additional facts in his port of entry interview that were provided in his Personal Information Form (BoC, in this case). [15] In this appeal however, the RAD finds that the omissions in question are not just additional facts, but rather, the centrepiece of the Appellant's claim for refugee protection. His claim for refugee protection is based on religious persecution due to his religious identity and activities in China. The RAD finds that the Appellant's failure to make mention of his religious identity and activities and his fear of persecution on that basis is a significant omission which fundamentally changes the nature of his alleged persecution. [16] As noted by the RPD in its reasons, in addition to the interview with border officials, the Appellant provided a prepared handwritten declaration in his own language. However, the RPD noted that the Appellant did not make any mention of being a practicing underground Catholic or holding any religious beliefs in either the written declaration or in his interview. He provided a hand written declaration at the port of entry in his own language. In that declaration he stated that because he was brought up by his maternal grandmother , who had been a member of the Chinese church when she was alive, he felt sentimental towards the members of the Chinese church who requested that he transfer to them land he owned. It was their plan to build a church on this land. In the written statement he detailed how he was detained and assaulted and released on conditions that he not engage in the Chinese church, and that he sign in with the government four times per month. The claimant wrote that after his release he was not able to go anywhere else in China and he came to Canada to seek political asylum. 4 [17] The Appellant's explanation for the omission was as a result of difficulties he had with the telephone-based interpreter and the fact that his answers were not read back to him. The RPD pointed out to the Appellant that his written declaration, which did not involve the interpreter, also did not include any mention of his religious identity and activities in China. The Appellant provided the explanation that he was told to write his story simply. [18] Although the Appellant provided explanations for the omission, the RAD finds that it was open to the RPD to reject the explanations provided. The RPD noted that considering that the Appellant's alleged fear stems from the practice of his religion in China, it would be reasonable to expect that he mentioned this when he first made his claim for refugee protection. The RPD further noted that even if the Appellant had difficulties during the interview, this does not explain adequately why he would not include this information in his written statement. The RPD noted that the Appellant wrote two pages on his declaration, and that much of the information was repetitive. The RAD agrees with the RPD that it is not reasonable that he would duplicate some information and yet neglect to mention his religious practice, which goes to the heart of his claim. [19] Based on the foregoing, the RAD agrees with the RPD's adverse credibility findings in this regard. Did the RPD unreasonably reject credible corroborative evidence? [20] The RPD found that the summons tendered by the Appellant was not a genuine document. The RPD found that the reasons stated on the summons for the PSB's interest in the Appellant is inconsistent with the allegations he made in his BoC. The RPD noted that the Appellant alleged in his BoC that the reason the PSB pursued him at his home was because he failed to comply with the reporting requirements imposed on him by the PSB. However, the summons stated that he was being summonsed for having joined illegal religious activities. The RPD further noted that the summons referenced article 82 of the relevant legislation and found that the article refers to the powers of citizen arrest rather than the power of the PSB to summons or the reason for their interest in the Appellant. [21] The Appellant submits that the RPD's finding that the summons is inconsistent with his allegations is nonsensical and microscopic. He argues he was summonsed after failing to comply with reporting requirements due to his suspected involvement in religious activities. The Appellant argues that as such there is no inconsistency. [22] The Appellant further argues that the improper legislative reference on the face of the summons can be explained by the documentary evidence, which explicitly cautions that local Chinese authorities often ignore proper procedures and that there is great variability and abuse with Chinese law enforcement when it comes to the issuance of summonses. [23] The RAD is not persuaded by the Appellant's argument. The RAD finds that it was open to the RPD to find that the summons was not a genuine document. While it is true the reason the Appellant alleges he was required to report to the PSB was for illegal religious activities, his evidence was that he was released after he served his term of detention for that offence. The Appellant explicitly states in his BoC that the PSB's return to his home was based on his failure to report as required. The Appellant did not allege that the PSB suspected him of engaging in further religious activities, only that he failed to report as required. [24] The RAD also finds that the improper reference to article 82 on the face of the summons further undermines the genuineness of the summons. While it is true there can be wide discrepancy in the police procedures, there is nothing in the documentary evidence which suggests that the PSB fail to reference the appropriate legislation when issuing summonses. The RAD finds that it is reasonable to expect that the summons would reference the appropriate legislative authority. [25] In light of the above findings, the RAD finds that it was open to the RPD to find on a balance of probabilities and in light of the documentary evidence of the prevalence of fraudulent documents available in China, and in the context of its credibility findings, that the summons tendered by the Appellant is not a genuine document. [26] The RAD finds that the Appellant's argument in this regard fails. Did the RPD speculate about the actions of the PSB? [27] The Appellant submits that the RPD erred when it drew an adverse credibility finding from the fact that the PSB made repeated visits to his home asking his whereabouts when they would have known that he left China. The Appellant argues that the RPD's finding was based the fact that the Appellant used his own passport to leave China and as such, they would know he had left China. [28] The Appellant argues that the RPD's finding was mere conjecture as the RPD had no knowledge of what steps the smuggler may have taken to facilitate his exit from China and that he may have bribed a border security official to refrain from scanning his passport. [29] The RAD is not persuaded by the Appellant's argument in this regard. The documentary evidence before the RPD on issues of security and exit control is contained in Request for Information CHN102869.E dated July 2008. The RIR states in part: In March 2008, the General Administration of Civil Aviation of China (CAAC), China's aviation regulator, reportedly introduced new security regulations (Airport International 17 Mar. 2008; Xinhua 27 Mar. 2008). The regulations instruct airport security to conduct a more thorough examination of hand luggage, to ban liquids on flights (ibid.; Airport International 17 Mar. 2008), and to have passengers remove their shoes for security checks (Xinhua 27 Mar. 2008). The regulations additionally prohibit "easy boarding" services, which had previously allowed passengers to obtain faster security checks and priority boarding (ibid.; Airport International 17 Mar. 2008). According to a 27 March 2008 article by the Chinese Xinhua News Service, the CAAC has also requested that all international airlines provide "accurate," "complete" and "timely" information on passengers and airline staff to the Chinese border authorities (Xinhua 27 Mar. 2008). The requested information reportedly includes name, nationality, gender, date of birth and passport number and expiration date (ibid.).5 [30] Based on the foregoing, it is clear security practices have become increasingly stringent in recent years in China and that there are systems now in place to identify persons leaving the country. The RAD finds that it is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.6 Where the RAD 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.7 In this case, there is an evidential foundation in the objective evidence for the RPD's findings. [31] 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 at 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 Appellant could have bypassed all of the security controls in place. Furthermore, the RAD notes that the Appellant has only speculated that the smuggler may have bypassed security by bribing a border official. The Appellant has not provided any persuasive evidence that he knows that to be the case. [32] The RAD notes that the United Kingdom Operation Border Report, dated 29 August 2012, states the following: The Chinese police have access to a National Computer Database, known as Golden Shield Project. Its aim is to improve policing, and there are strict regulations on the use of the database. It holds information on population information, criminal records information, information on criminal fugitives, information on stolen vehicles, information on passports and exit/entry data, information on registered cars and drivers, information on police officers and information on key fire-prevention units. All police departments at county level and above (i.e. police departments at provincial, city and county levels) and most grass-roots units (police units below county level) can now connect to this system. There are some small police departments in remote areas that cannot yet connect to Golden Shield.8 [33] A researcher, who has conducted research and published on the Chinese policing system for fifteen years and who was previously a professor of Chinese and East Asian Politics at Western Michigan University, stated the following in correspondence with the Research Directorate: China's Public Security Departments absolutely do have nationwide computer information sharing networks, and have been working hard to develop and expand those for at least a decade.... [A] fair amount is published about them in Chinese language police journals. One does read complaints about provincial police departments not being willing to share information with each other, however. For Chinese readers, a good deal of information about nationwide arrest warrants is openly available on the webpage of the Ministry of Public Security (www.mps.gov.cn) and on the webpages of the various provincial public security departments. There has really been an explosion of this online police information in the past 6-7 years. (11 May 2009)9 [34] According to a 13 April 2006 article from the New York-based Epoch Times, an official from the Ministry of Public Security indicated that the objective of the Golden Shield project is to "facilitate the transmission and sharing of data among police so as to enhance the capability of the police to solve cases." The article also describes the Golden Shield as a "digital system for information management within the Public Security Ministry," with 640,000 network computers that are "grouped into 23 operating systems," which contain population, crime, vehicle registration and border control information (The Epoch Times 13 Apr. 2006).10 [35] The Appellant has alleged that he was on conditions of release for illegal religious activities. The RAD finds it is highly likely that his information was entered into the Golden Shield database as a person monitored by the police. The RAD notes that the Appellant alleged in his port of entry declaration that he was unable to travel anywhere in China after being detained by the PSB, which implies that the PSB had him under observation. [36] The RAD finds that given the police interest in the Appellant and the infrastructure in place to monitor his exit from China, it was open to the RPD to find it implausible that the PSB would continue to ask his whereabouts after he was out of the country. Furthermore, the RAD notes that the RPD's finding in this regard was not an independent credibility finding but was made in the context of its broader finding about the Appellant's testimony of the PSB's visits to his home. [37] The RPD found that the Appellant's testimony was internally inconsistent in regard to the PSB's interest in him after August 25, 2014 and the number of times they visited his home. The RPD found that the Appellant did not provide a reasonable explanation for this inconsistency. The PSB's interest in the claimant goes to the heart of his claim and the RAD agrees with the RPD it is not reasonable or plausible that he would not be more aware of when, or how many times the police came searching for him. The RAD notes that this finding was not contested by the Appellant. [38] In light of the foregoing and the RPD's other credibility findings, the RAD finds that it was open to the RPD to find on a balance of probabilities that the PSB has not come looking for the Appellant at his home or anywhere in China and that he is not wanted by the PSB for the reasons stated in his BoC and during the hearing. The RAD agrees with the RPD's findings in this regard. Did the RPD unduly focus on a lack of corroborative evidence? [39] The Appellant stated in his BoC and at the hearing that he owned a piece of land in China, which he gave as a gift to the underground church that his grandmother had been a member of and which he had joined in 2014. The RPD drew an adverse credibility finding from the Appellant's failure to provide any corroboration of his entitlement to the land he alleges he gifted to the underground church. The RPD reasoned that given the land transfer to the church is central to his claim, the Appellant ought to have tendered some corroboration. [40] The Appellant argues that the RPD erred by misconstruing the evidence on land ownership. The Appellant argues that even though land ownership documents may exist in China, it does not mean that he had access to them. He argues that the documentation states that although there have been efforts to remedy the non-issuance of land certificates in China, a large number of individuals have not been issued documents. [41] He also argues that he provided the explanation in the hearing that the working group has record of the land ownership and that his father requested the documents when he transferred the land to the church but was told that no one had the documents. The Appellant argues that given the documentary evidence about the inconsistent issuance of land certificates, the RPD had no sustainable basis for finding that he would have been able to get proof of his right to use the land and that he should have requested it. [42] The RAD is not persuaded by the Appellant's argument in this regard. It is clear from the recording of the hearing that the Appellant has testified that documents with regard to the land entitlement did exist at some point. He testified that he signed the documents when his grandfather gifted the land to him. Although he states that his father asked for the documents and was told they do not exist, it was still available to him to have some other form of corroboration tendered in support of his claim. As reasoned by the RPD, the Appellant could have sought to have his father tender an affidavit to corroborate his efforts to obtain the land certificate. Furthermore, the RAD finds that further corroboration could have been sought from the members of the church to whom the land was gifted. Given the significance of the land transfer to the Appellant's allegations of persecution, the RAD finds that it was open to the RPD to expect that the Appellant would tender some evidence to corroborate this central allegation. [43] The RAD notes that Rule 11of the Refugee Protection Division Rules11 requires that the claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to provide them. Since the Appellant alleges that his persecution stems from the gifting of the land to the church, acceptable documents establishing the fact that he was entitled to this land and that he gifted it to the church would be an essential element of the claim. The RAD finds it reasonable for the Appellant to have provided documents such as letters, sworn affidavits, photographs or other documents to establish the existence of the land in question. [44] Given the lack of persuasive evidence that the Appellant had entitlement to land which he gifted to the church and the importance of this evidence to his claim, the RAD finds that it was open to the RPD to draw an adverse inference. Did the RPD err in its assessment of the Appellant's religious knowledge? [45] The RPD drew an adverse inference from the Appellant's limited knowledge of Catholicism and the Bible, given his alleged profile. The Appellant submits that the RPD conducted an overly stringent and microscopic examination of the Appellant's religious knowledge. [46] The RAD is not persuaded by the Appellant's argument. The Appellant has alleged exposure to the Catholic faith since he was a child and that he has actively studied the Bible and attended underground Catholic services in China for several years. The RAD finds that the RPD's questions of the Appellant regarding his knowledge of the basic tenets of the faith were not overly stringent or microscopic. The RAD finds it is reasonable to expect the Appellant to accurately describe the Holy Trinity, a concept which is fundamental to the Catholic faith. The RAD agrees with the RPD that it is not reasonable that the Appellant would not know that the Holy Son is Jesus or that he would be unable to state accurately refer to the third part of the Holy Trinity. Furthermore, the Appellant's knowledge of the Bible was inconsistent with his testimony concerning his study of the Bible [47] The RAD notes that the RPD considered the Appellant's level of education and sophistication in coming to this finding. The RAD agrees with the RPD's finding with regard to the Appellant's knowledge of the Bible. As such, the Appellant's argument in this regard fails. In Summary [48] Having reviewed all the evidence in this appeal, the RAD agrees with the RPD, on a balance of probabilities, that the Appellant is not a genuine Roman Catholic and has never been a genuine Roman Catholic practitioner in China. The RAD further agrees with the RPD, on a balance of probabilities, that the Appellant did not give land owned by him to an underground Roman Catholic Church group to be used to build a meeting place. Finally, the RAD agrees with the RPD that the Appellant is not wanted by the authorities in China because he is a Roman Catholic or because he failed to report as required to the PSB office CONCLUSION [49] The RAD finds that there is not a serious possibility that the Appellant would be persecuted should he return to China or that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment or a danger of torture by any authority in the People's Republic of China [50] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau February 10, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 3 Hamdar, Abdallah Ali v. M.C.I. (F.C., no. IMM-5197-10), Russell, March 29, 2011, 2011 FC 382. 4 P-2, Appellant's Record, RPD Reasons and Decision, p. 4, para. 5. 5 RPD-1, RPD's Record, National Documentation Package for China, 14 March 2014, Item 14.3. 6 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 7 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 8 RPD-1, RPD's Record, NDP for China, 14March 2014, Item 2.4. 9 Ibid., Item 10.3 10 Ibid. 11 Immigration and Refugee Board (IRB), Refugee Protection Division (RPD) Rules, SOR/2002-228, Rule 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10828