TB5-08481

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 : TB5-08481 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 21, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine 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 (the Appellant) is a citizen of China. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find her to be a Convention refugee or a person in need of protection, or, in the alternative, refer her claim back to the RPD for re-determination. 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 she is being persecuted because of China's one child policy. She alleges that she had two children when she became pregnant in December 2014. She was forcibly subjected to an abortion, but due to complications the doctors were unable to sterilize her at the time. She was issued a notice to report for sterilization and fined for her out of plan pregnancy. The Appellant did not report for sterilization and she and her husband went into hiding. Family planning officials went to her home looking for her and left a notice for her and her husband to report for sterilization. The Appellant used the services of a smuggler to leave China and travel to Canada. She fears if she returns to China she will be forcibly sterilized. [4] The Appellant's application for refugee protection was heard over two sittings on May 20 and July 29, 2015. In the decision dated July 31, 2015, the RPD rejected her claim finding that the Appellant was not a credible witness. [5] The Appellant submits the that the RPD's determination is flawed for the following reasons: * The RPD's analysis of the Appellant's use of a smuggler was flawed; * The RPD's analysis of her evidence regarding her pregnancy, abortion and sterilization was unreasonable; and, * The RPD breached procedural fairness by failing to notify her of perceived deficiencies. [6] The Appellant submits that these errors are fatal to the RPD's determination. ROLE OF THE RAD [7] 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 the RAD to decisions of the RPD. 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.2 [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".3 [8] 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 in 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. Application for an oral hearing [9] The Appellant requests an oral hearing. However, the RAD finds that section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to section 110(4), present "...only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [10] According to section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in section 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in section 110(3) must be understood in relation to section 110(4). [11] When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal, such as this, unless there is new (section 110(4)) evidence; in which case, the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [12] There has been no new evidence submitted in this appeal. As such, the RAD must proceed without a hearing and as such, the Appellant's application for an oral hearing is denied. MERITS OF THE APPEAL Was the RPD's analysis of the Appellant's use of a smuggler flawed? [13] The RPD drew an adverse credibility finding from the Appellant's testimony that she needed the smuggler to accompany her to Canada because she had never traveled before. The RPD noted that the Appellant provided her current passport as well as her expired passport when she applied for a visa to Canada. The RPD found on a balance of probabilities, and on the basis of information contained in her expired passport, that the Appellant had traveled extensively and therefore found her evidence regarding the smuggler accompanying her to Canada not to be credible. [14] The Appellant submits that she provided a reasonable explanation and seems to argue that the RPD ought to have accepted that explanation. She argues that she testified that she had not previously traveled and did not have any previous passport other than the one she used to travel to Canada. She further argues that her visa was arranged by her smuggler and she was removed from the process. In addition, she argued that it was impossible for her to travel in 2009, as indicated in the previous passport, because she was pregnant and required treatment in China for a medical condition relating to her pregnancy. [15] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the RPD found that the Appellant did not provide a reasonable explanation for her contradictory evidence regarding the earlier passport. Although the Appellant testified that she had no knowledge of the passport issued in 2006, the RPD noted that the passport contains her photograph, not only on the biographical page of the passport, but also on two of the six visas contained in the passport. [16] The RPD also noted that the Appellant testified that she only provided a current photograph of herself to the smuggler. However, the passport, issued in 2006, contained three different photographs of the Appellant. The RPD further noted that the Appellant adjusted her testimony at the last sitting of the hearing and stated that she did not have a photograph to give to the smuggler so he took a photograph of her himself. The RPD noted that the testimony in this regard was inconsistent. [17] After its own review and assessment of the evidence, the RAD agrees with RPD's finding that the Appellant's explanation that everything was done by the smuggler does not sufficiently explain the existence of the 2006 passport and the fact that it contained three different photographs. The existence of the three different photographs in these documents undermines her testimony and indicates that she was involved and/or aware of the acquisition of the passport and visas. [18] The RAD also finds that it can give little weight to the Appellant's explanation that she could not travel because she was being treated for a condition affecting her pregnancy. The RAD notes that the Appellant's allegations in this regard are not supported by any medical documents or other corroborative evidence. The RAD notes that the Appellant provided medical records for herself and for her son at the RPD hearing. She has demonstrated her ability to acquire and tender medical records for her claim. As such, it is reasonable to expect that if she was being treated for a medical condition in 2009 as she has alleged, then she should have been able to tender these documents in support of her appeal. [19] The RAD further agrees with the RPD's finding that the Appellant has not been credible regarding the existence of the 2006 passport and that, on a balance of probabilities, the passport was a genuine passport, accepted as such by Canadian authorities at the visa office in China. The RAD notes, as noted by the RPD, that the passport in question contains six visas for different countries, as well as the accompanying stamps showing that the visas were used and that the Appellant traveled to the issuing countries and returned to China numerous times. [20] In light of the foregoing, the RAD agrees with the RPD that the Appellant's testimony in relation to the 2006 visa was not credible. The RAD further agrees with the RPD that on the basis of the findings noted above and on a balance of probabilities, the Appellant's testimony concerning her use of a smuggler was not credible. [21] Accordingly, the Appellant's argument fails. Was the RPD's analysis of the Appellant's evidence regarding her pregnancy, abortion and sterilization unreasonable? [22] The Appellant submits that the RPD drew a negative inference due to the fact that her Birth Control Service Card4 did not contain an entry for the date of sterilization. She argues that she provided the explanation that since she was found to be pregnant on the last check-up and was immediately sent for abortion there was no record of the actual pregnancy check-up. She argues that her explanation was disregarded by the RPD without providing cogent reasons. [23] The RAD is not persuaded by the Appellant's argument in this regard. Contrary to the Appellant's assertions, the RAD finds that the RPD did not draw a negative inference on the basis that the Birth Control Service Card did not contain an entry for the date of sterilization. Rather, the RPD noted that the Appellant alleged that when she attended her regularly scheduled family planning check-up on XXXX XXXX, 2014 it was discovered that she was pregnant. However, the Birth Control Service Card that she tendered did not include any information on the December 2014 check-up. [24] The RAD finds that the RPD rejected the Appellant's explanation that the entry was not made because she was immediately taken for an abortion, and provided sound reasons for doing so. As noted by the RPD, the RAD finds that the Birth Control Service Card itemizes every other check-up that the Appellant attended. The RAD also notes from its own examination of the document the Appellant tendered in support of her claim, that the document is designed to capture and record whether or not a person is pregnant. [25] As noted by the RPD, the RAD finds that the documentary evidence states that "mandatory gynecological checks of women of child bearing age by family planning officials have been part of China's family planning policy since at least the 1990s. During these checks, held annually, semi-annually, or even quarterly, medical personnel check for reproductive health problems, monitor contraceptive use, and detect unauthorised pregnancies."5 The RAD agrees with the RPD that the Appellant's explanation does not explain the absence of this critical information from the booklet that was intended and designed to capture such information. [26] The RAD finds, after its own review and assessment of the evidence in the record, that it is reasonable to expect that given the design and purpose of the Birth Control Service Card that the December 2014 check-up would have been included therein. The RAD finds that the absence of that check-up information undermines her allegations that she reported for a check up on that date and that she was discovered to be pregnant. The RAD further finds, on that basis, that her allegation that the pregnancy was forcibly aborted is undermined. [27] The Appellant further submits that the RPD's treatment of her other documents was unreasonable. In particular, she argues that the RPD's decision to afford little weight to the abortion certificate due to the deficiency in the Birth Control Service Card was unreasonable, especially in light of the overwhelming evidence that the abortion occurred. [28] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that although the Appellant argues that there is overwhelming evidence that the abortion took place, the RAD finds that the evidence in the record does not support her argument. The only direct evidence of the abortion is the abortion certificate itself and the Appellant's testimony. The sterilization notices do not provide evidence that the Appellant was subjected to an abortion, only that the Appellant violated the one-child policy. [29] The RAD finds that in light of its adverse credibility findings in relation to the Appellant's allegations that she was found to be pregnant and in violation of the one-child policy and was forced to undergo an abortion, that the credibility of the abortion certificate is called into question. [30] The RAD notes that the documentary evidence in the record states that "...a professor of law at George Washington University Law School, who specializes in the Chinese legal system, stated that 'just about any document can be forged in China, and many are.'"6 In addition, a US consular official based in southern China reported that "'...you can't trust any [personal] documents in China," and that the market for fraudulent documents is rapidly expanding.7 The official further indicated that documents are assumed to be fraudulent unless proven otherwise. Furthermore, a 2009 Vancouver Sun article reports that it is possible to "...buy any kind of document you want" in China.8 [31] The RAD further notes that the document in question is a very simple document that lacks features that would assist in establishing its genuineness. The RAD notes that the document is not a printed form but was generated utilizing a word processor and is something that could easily be replicated. While there is a stamp on the certificate, the certificate does not bear the signature or name of the issuing individual. The certificate also does not bear a logo or pre-printed letterhead. [32] In addition, as noted by the RPD in its reasons, the Appellant has failed to tender any medical confirmation that she underwent an abortion which resulted in extensive bleeding. As previously found in these reasons, the Appellant provided medical records for herself and for her son at the RPD's hearing. She has demonstrated her ability to acquire and tender medical records for her claim. As such, it is reasonable to expect that if she was taken to a hospital for the abortion as she has alleged, then she should have been able to tender medical records of that abortion in support of her appeal. The RAD notes that the documentary evidence in the record indicates that medical records should be available to her.9 [33] In light of the forgoing, and in the context of the totality of the findings noted, the RAD finds that little weight can be given to the abortion certificate. [34] The Appellant further submits that the RPD placed too much importance on the fact that the abortion certificate did not include the reason the abortion was performed. The Appellant argues that the reason for the abortion is obvious, non-compliant pregnancy. Furthermore, the Appellant argues that she also tendered multiple sterilization notices which provided the reasons for being issued. [35] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that it is not obvious that the Appellant underwent an abortion because she violated the one-child policy. The RAD notes there may be other reasons a pregnancy would be terminated outside of violations of the one-child policy, including personal choice or health reasons. The absence of an explanation provided on the document undermines the Appellant's argument in this regard. Furthermore the RAD finds, as previously stated, that the sterilization notices do not provide evidence that the Appellant underwent an abortion. [36] The RAD finds that on the basis of the totality of the evidence, and on a balance of probabilities, that the Appellant's allegation that she became pregnant and was forced to have an abortion is not credible. [37] The RAD notes that the Appellant has also tendered two sterilization notices. The RAD notes that documents in question lack features that would assist in establishing their genuineness. The RAD notes that the documents are not printed forms but were generated utilizing a word processor and is something that could easily be replicated. While there is a stamp on the documents, they do not bear the signature or name of the issuing individual. The certificate also does not bear a logo or pre-printed letterhead. [38] Having found that the pregnancy and abortion are not credible, the RAD further finds, on a balance of probabilities, that the Appellant's allegation that she was given sterilization notices following the abortion is not credible. On this basis and in light of the prevalence of fraudulent documents in China, the RAD can give little weight to these documents. The RAD further finds on the basis of the totality of the findings in this appeal, that the Appellant is not being pursued by family planning officials and is not at risk of sterilization for having violated the one-child policy. Did the RPD breach procedural fairness by failing to notify the Appellant of the perceived deficiencies? [39] The RAD finds that the Appellant's argument in this regard lacks substance and specificity. The Appellant seems to submit that the RPD erred by not putting its concern with regard to the lack of corroborating evidence to her; in particular, an affidavit from her family concerning the abortion. She argues that as such, she was deprived of her right to obtain additional evidence in support of her claim, which constitutes a breach of procedural fairness. [40] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that while it would have been preferable for the RPD to have put the issue of the lack of affidavit to the Appellant in the hearing, the RAD notes that the Appellant has tendered other documents from China and has demonstrated that she is in contact with her family there and has the ability to acquire documents from China. In this regard, it is reasonable to expect that the Appellant would be in a position to tender such a document for her hearing. The Board may draw a negative inference from an Appellant's lack of effort in acquiring evidence to corroborate central elements of a claim, since Rule 11 of the Refugee Protection Division Rules10 clearly states that the applicant must provide such documents. However in this case, the RPD does not make overt findings on this issue. [41] The RAD also notes that the issue of the abortion is central to her claim and that the evidence the Appellant did tender in this regard was addressed by the RPD in the hearing. The RAD again notes that the only direct evidence of the alleged abortion was the Appellant's testimony and the abortion certificate. Given the fact that this evidence was undermined, the RAD finds that the absence of other corroborative evidence is a factor which can be considered in determining whether the Appellant has met her burden in establishing her claim. [42] Regardless, the RAD finds on the basis of its independent assessment of the evidence in this appeal, that regardless of whether the affidavit was tendered or not, it would have little impact on the outcome of the determination in this appeal. The RAD finds that there was no breach of procedural fairness that would impact the determination of this appeal. In Summary [43] The RAD finds on a balance of probabilities, that the Appellant was not pregnant in December 2014 and was not forced to have an abortion. The RAD further finds that the Appellant is not being pursued by family planning officials and is not at risk of sterilization as a result of having violated the one-child policy. [44] For these reasons, the RAD finds that the Appellant would not face a serious possibility of persecution should she return to the China. The RAD further finds that the Appellant has not satisfied the burden that, on a balance of probabilities, she would face a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture, if she were to return to China. CONCLUSION [45] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau October 21, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid., Huruglica, para 54. 3 Ibid., Huruglica, para 55. 4 Exhibit RPD-1, RPD's Record, pp. 314-320. 5 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (31 October 2014), item 5.7. 6 Exhibit RPD-1, RPD's Record, NDP for China (31October 2014), item 3.24. 7 Ibid. 8 Ibid. 9 Ibid., item 5.6 and item 3.3. 10 Refugee Protection Division Rules (SOR/2012-256), Rule 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08481