TB9-11853

RAD File / Dossier de la SAR : TB9-11853 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 11, 2020. Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Stacey Margaret Duong 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 XXXX (the Appellant) is a citizen of China. She appeals a decision of the Refugee Protection Division (RPD), dated April 10, 2019, rejecting her claim for refugee protection. The Appellant alleges she faces persecution as a result of her violation of China's family planning laws. The RPD found that the Appellant had not established that her fear of persecution was well founded. [2] I agree with the Appellant that the RPD erred in its assessment of her forward-looking risk. For the reasons that follow, the appeal is granted, and I substitute a determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleges that after she had two children, she was forced to wear an Intrauterine Device (IUD) and had mandatory IUD check-ups with family planning officials to ensure she did not get pregnant again. The Appellant alleges that she became pregnant in XXXX 2015 and attempted to avoid her IUD check-up in hopes of carrying this child to term. The Appellant alleges that family planning officials came to her aunt's home where she was hiding and forced her to have an abortion. The Appellant alleges that she was fined for violating the family planning law and was once again forced to have an IUD inserted to prevent pregnancy. The Appellant alleges that officials told her that if she became pregnant again, she would be sterilized. [4] The Appellant alleges that in XXXX 2017, she discovered she was pregnant again and went into hiding to avoid another forced abortion. The Appellant alleges that officials searched for her, left a sterilization notice at her home, and issued a large fine against her. The Appellant alleges that officials also confiscated her belongings. The Appellant did not want to terminate her pregnancy and arranged for her departure from China with the use of a smuggler. The Appellant alleges that officials continue to search for her and have suspended her children from the public school they attended due to her violation of the family planning law. The Appellant gave birth to her third child after she arrived in Canada. [5] The RPD determined that fraudulent documents were easily accessible in China and placed little weight on the Appellant's documents. The RPD also found that the Appellant's fear of persecution was not well-founded. ROLE OF THE REFUGEE APPEAL DIVISION [6] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.1 ANALYSIS Appellant's arguments [7] The Appellant argues that the RPD erred in dismissing her documents and failed to properly weigh her evidence. The Appellant also argues that the RPD was selective in its assessment of the objective evidence and was incorrect in concluding that her claim was not well founded. The RPD erred when it dismissed the Appellant's supporting documents [8] The RPD noted that the Appellant used a smuggler that prepared fraudulent documentation in order to come to Canada. The RPD also noted that the Appellant provided a number of supporting documents concerning her previous dealing with family planning officials. The RPD found that the documents did not contain significant security features and could easily have been fraudulently produced. The RPD also noted that the objective evidence highlights the prevalence of fraudulent documents in China. The RPD concluded that since the Appellant had previously used falsified documents to travel to Canada, she would likely have access to similar documents to support her claim. As such, the RPD gave these documents little weight in establishing the allegations. [9] The Appellant argues that the RPD erred in dismissing her documents. The Appellant argues that the RPD failed to actually examine and weigh the documents as required. The Appellant also argues that the prevalence of fraudulent documents in China is an insufficient basis for rejecting her evidence. [10] I agree with the Appellant. The RPD was incorrect in rejecting her evidence without properly examining and weighing the documents. The Appellant's use of falsified documents to come to Canada and seek protection does not impugn the credibility of her evidence. This reasoning would be inconsistent with Canadian refugee law which does not penalize claimants for using fraudulent documents to flee persecution. [11] I also agree that the prevalence of fraudulent documents in China is an insufficient basis for rejecting the Appellant's supporting documents. The RPD fails to point to any irregularities in the documents, and simply highlights that they are printed on white paper with red stamps. The RPD does not point to any samples or information in the National Documentation Package (NDP) that suggests this format is inconsistent with genuine documents. The RPD should have conducted an analysis of the documents, along with the Appellant's other evidence. [12] Having independently reviewed the record, I find that the documents provided by the Appellant regarding her previous interactions with family planning officials are consistent with her other evidence. The documents are consistent with the Appellant's narrative and testimony regarding her history of forced IUD use and a forced abortion. The dates and biographical information in these documents are consistent with the Appellant's evidence. As such, I have no reason to doubt the authenticity of the documents. [13] I also note that the RPD failed to identify any other reason to doubt the veracity of the Appellant's allegations. In view of her consistent evidence, I find that the Appellant has credibly established her allegations. The Appellant faces a well-found fear of persecution [14] The RPD determined that the Appellant's claim was not well-founded. The RPD concluded that Chinese officials now allow all couples to have two children and, in some circumstances, permitted additional children. The RPD found that media reports suggested that the Chinese government was concerned with a declining birth rate and was discussing ways to encourage women to have more children. As such, the RPD found that the Appellant did not face a risk of forced sterilization or a loss of social benefits upon her return to China. [15] The Appellant argues that the RPD was selective in its analysis of the objective basis of her claim. The Appellant highlights that the objective evidence in the NDP which establishes that Chinese authorities continue to carry out forced abortions and sterilizations. The Appellant also argues that the RPD relied on speculation when it concluded that the Appellant could return to China, apply for permission for her third child, and avoid sanctions. The Appellant highlights that while there may be circumstances where the Chinese government would permit couples to have more than two children, the RPD failed to consider the Appellant's personal circumstances as someone who had already violated family planning requirements. Further, the Appellant argues that the RPD failed to consider the persecutory nature of social maintenance fees and the way that they are unevenly and punitively applied throughout the country. [16] I agree with the Appellant that the RPD erred in its assessment of the objective basis of her claim. The RPD's analysis fails to make any mention of the Appellant's circumstances and her previous dealings with family planning officials. It is important to note that the Appellant already violated the family planning requirements and was penalized. The Appellant was subjected to the forced insertion of an IUD after the birth of her second child. When she became pregnant again, she was forced to undergo an abortion, had the IUD re-inserted and was fined.2 After the Appellant became pregnant for a fourth time and failed to appear for her IUD compliance checks, she was fined again, her belongings were confiscated, her husband was fired from his job, her children were suspended from public school and a sterilization notice was issued.3 The Appellant's evidence is that officials continue to look for her in China. Therefore, it is difficult to understand how the RPD came to the conclusion that the Appellant would not face fines or forced sterilization when the officials had already fined her twice and issued a sterilization notice. [17] I also find that the RPD's analysis of the objective evidence to be selective. I agree with the Appellant that despite loosening restrictions and allowing couples to have two children, forced sterilizations and social and economic punishments are still routinely carried out. A report from the United Kingdom Home office confirms that these practices continue in the Appellant's home province of Hubei.4 The objective evidence also highlights that fines are not uniformly imposed, but rather are governed by local authorities. The NDP also highlights that individuals who have already violated family planning orders or who attempt to evade authorities often face more significant fines.5 The NDP highlights that these fines can be crippling and exceed a family's annual household income.6 In view of the Appellant's circumstances, I find that is it likely that she would receive a significant fine and be sterilized upon her return. In the circumstances, these consequences would amount to persecution. The Appellant does not have access to state protection or a viable internal flight alternative (IFA) [18] Given that the agent of persecution is the state, the Appellant would not have access to state protection. The objective evidence highlights that individuals who violate the family planning laws are targeted throughout China and therefore, the Appellant does not have a viable IFA. CONCLUSION (signed) J. Lourenço J. Lourenço December 11, 2020. Date [19] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para 103. 2 Exhibit RPD-1, RPD record, Exhibit 5, pp. 115-118. 3 Ibid., pp. 124-133. 4 National Documentation Package for China (October 30, 2020) item 5.6, Country Policy and Information Note. China: Contravention of national population and family-planning laws. Version 3.0. November 2018. Page 20. 5 Ibid., Item 5.7, Response to Information Request. Immigration and Refugee Board of Canada. October 18, 2018. CHN106165.E. Page 4. 6 NDP for China, (October 30, 2020) item 5.6, Country Policy and Information Note. China: Contravention of national population and family-planning laws. Version 3.0. November 2018. Page 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-11853 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