TB7-24271

RAD File / Dossier de la SAR : TB7-24271 Private Proceeding / Huis clos Redetermination of Appeal - Nouvel examen de l'appel Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 11, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Jacqueline M. Lewis 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] The Appellant, XXXX XXXX XXXX is a citizen of China. I allow this appeal and substitute my determination that the Appellant is a Convention refugee. This is a redetermination of an appeal that was first dismissed by the Refugee Appeal Division (RAD), but then sent back to the RAD by the Federal Court after a successful judicial review application. Basis of Claim Form Narrative [2] The Appellant fears persecution from Chinese authorities. The Appellant and his wife became the guardian of his nephew, XXXX, in 2014. He died in XXXX 2015 after being given a tainted rabies vaccine for a dog bite. The Appellant, among others whose children died from the vaccine, demonstrated in front of the local health bureau in XXXX 2016 to demand a public apology and compensation. Public Security Bureau (PSB) agents came to his home on XXXX XXXX, 2016 to find him while he was out. He went into hiding, and later learned that the PSB had returned with a summons accusing him of slandering the government and inciting people to protest. With the help of a smuggler, he fled China on XXXX XXXX, 2016 and made a refugee claim in Canada. He subsequently learned that the person who accompanied him at the protest was sentenced to three years imprisonment. RPD Reasons for Decision [3] The Refugee Protection Division (RPD) identified credibility as being the determinative issue and denied the claim for the following reasons: i) There are significant inconsistencies in the evidence about the guardianship of the Appellant's nephew; ii) The Appellant is not credible about his marriage certificate and this undermines key aspects of his family history; iii) The allegation that he is wanted by the PSB is not credible because the arrest warrant for his friend is not likely authentic; iv) The fact that the Appellant was able to leave China with his own passport is inconsistent with the allegation that he is wanted by the PSB. Grounds of Appeal [4] The Appellant submits that the RPD erred in the following ways: i) The RPD made a factual mistake regarding the guardianship of his nephew. His testimony was consistent with the Basis of Claim (BOC) and is corroborated by the Power of Attorney which he provided; ii) The RPD's credibility concerns about the Power of Attorney are speculative and not supported by any documentary evidence; iii) The RPD erred in its interpretation of the wording and meaning of the Notice of Arrest and failed to give valid reasons for rejecting it; iv) The RPD erred in its analysis by inadequately assessing the appellant's age at the time he attempted to marry his wife; v) The RPD's credibility findings are not sufficient to doubt the manner in which the Appellant exited China. [5] Post-Perfection Submissions: The Appellant now also fears persecution as a practicing Catholic. He was baptized as a Christian in China in XXXX 2008, but became disillusioned with the church and discontinued his religious practice. Since his negative RPD decision, he is now a practicing Catholic. The issue was not raised at the RPD as it was not relevant at the time. His daughter informed him that the PSB is still looking for him and his fellow protesters are still detained. Further to the Federal Court decision, if the summons and arrest notice are genuine, they would constitute prima facie evidence of the credibility of the claim. RAD Summary [6] The determinative issue in the appeal is credibility. [7] The RPD erred in drawing adverse credibility inference from minor peripheral issues, but giving credible documents no weight for inadequate reasons. In addition, the RPD ignored a considerable number of important supporting documents without mention. The Appellant is credible and trustworthy, and the supporting documents are reliable. NEW EVIDENCE Some evidence presented by the Appellant is rejected and some is accepted [8] According to the law,1 I can only accept evidence that: i) arose after the RPD decision; or ii) was not reasonably available at the time of the decision; or iii) that the appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [10] The Appellant has provided the following documents. i) Statutory Declaration of the Appellant; ii) Exhibit A - Baptismal Certificate, dated XXXX XXXX XXXX, 2008; iii) Exhibit B - Letter from Chinese Martyrs Catholic Church, dated XXXX XXXX XXXX XXXX 2019; iv) Exhibit C - Knights of Columbus Certificate, dated XXXX XXXX XXXX XXXX 2018; v) Exhibit D - Religious Activities Photos; vi) Exhibit E - Country Documentation (6 articles) regarding religious persecution of Christians in China; vii) Exhibit F - Letter and translation from appellant's daughter, dated XXXX XXXX XXXX, 2019. [11] Relevance concerns whether the evidence can prove or disprove a relevant fact. None of this evidence is relevant to an issue that was before the RPD. Rather than constituting new evidence that can assist in assessing risk to the Appellant as disclosed in the refugee claim, the Appellant is asking the RAD to engage in a first instance determination of a new basis of claim. Parliament did not grant the RAD this jurisdiction. The Federal Court of Appeal's Singh case makes it clear that new evidence must be relevant to the issues that were raised before the RPD, not to risk of return for reasons that, as counsel concedes, were not relevant to the claim that was before the RPD. As a result, these documents are inadmissible as new evidence pursuant to subsection 110(4) of the IRPA. [12] The Appellant has also filed a Statutory Declaration outlining his involvement in the Roman Catholic Church. For the previous reasons, these paragraphs are inadmissible, as is also the case with counsel's submissions on the subject. Nevertheless, the Appellant also includes a paragraph about a letter that he recently received from his daughter that refers to continued police interest in locating him. The letter in question was attached as an exhibit. This paragraph of the Statutory Declaration and the letter at Exhibit F are admissible as new evidence. The letter post-dates the RPD decision, it is likely from his daughter, and it is relevant to the risk as expressed in the BOC. The letter and the section of the Statutory Declaration about it are admissible as new evidence under subsection 110(4) of the IRPA. Given that these documents do not raise credibility issues with respect to the Appellant, the application for an oral hearing is denied. ANALYSIS [13] My role is to look at all the evidence and decide if the RPD made the correct decision.3 Inconsistent Dates for the Legal Guardianship of the Nephew RPD Findings [14] The RPD considered that the Appellant's testimony about when he assumed guardianship of his nephew and concluded that it was inconsistent and evolved between 2011 and 2014. The panel could not understand how the Appellant could be appointed guardian in 2011, yet his nephew did not come to live with him until 2014. Counsel's Objections [15] Counsel submits that there was no inconsistency in the Appellant's testimony about his relationship with his nephew between 2011 and 2014. The RPD made a mistake of fact when it concluded that his testimony, that he took guardianship in 2011, is inconsistent with the BOC which says that he took guardianship in 2014. The BOC narrative says that he became the legal guardian in 2011, but that the nephew did not come to live with him until 2014- when the Appellant's mother passed away. RAD Assessment [16] With respect, counsel has misread the RPD's reasons. The panel was aware of the facts as stated by counsel, but concluded that this scenario is implausible, not that the dates are contradictory. The RPD's error lies elsewhere. The Appellant's explanation was, in fact, quite plausible. He explained that his sister-in-law granted him the Power of Attorney in 2011 to provide care for his nephew after the death of his brother. This was necessary because the child was cared for by the child's grandmother when his mother was away. As a result, the nephew moved back and forth between the mother and grandmother. The Appellant himself was too busy looking after his own children to look after his nephew at the time. The Power of Attorney was granted to him rather than to his mother because she was residing with him, but was illiterate. He was better placed to deal with legal and administrative matters. The nephew's mother was in a relationship with a man whom she married in 2014. At that point, the nephew moved in with the Appellant on a full-time basis because his step-father did not want him around and his sister-in-law sold the house. The Appellant's mother also died in that year. There is nothing inherently implausible about this scenario. The RPD is not expected to understand this in accordance with North American standards. However, it is expected to provide clear reasons why it concludes that this scenario is implausible. It erred by not doing so. Details Lacking in the Power of Attorney RPD Findings [17] The RPD concluded that the power of attorney that granted him guardianship was not likely authentic because it is lacking in such details as his birthdate and resident identity card number.4 As a result, it concluded that the Appellant did not likely adopt his nephew, as alleged. Counsel's Objections [18] Counsel submits that this amounts to a veiled implausibility finding about what a Power of Attorney should look like. This should only be done on the clearest of cases.5 The RPD did not base this finding on any documentary evidence. RAD Assessment [19] I note that the Power of Attorney contains full information for both the child's mother as the principal and for the Appellant as the agent: name, gender, birthdate, resident identity number, and address. The relationship between them is stated, followed by the scope of his authority as a guardian who manage his affairs, including educational matters. Responsibilities granted include all rights and obligations legally created. No third-party is included and the Power of Attorney is valid from XXXX XXXX, 2011 until the nephew reaches his age of majority. There is nothing missing from this that one could reasonably expect from such a document. However, the subject of the authority is referred to as her son, XXXX XXXX XXXX XXXX. Given that he was born in XXXX of 2004, he was seven years old at the time. It is not implausible that his resident identification number was not included. Although it appears unusual that his birthdate would not be included, this is insufficient to lead to an implausibility finding that would justify concluding that the document is likely inauthentic. The RPD erred in so doing. Notice of Arrest RPD Findings [20] The RPD concluded that the Notice of Arrest for the Appellant's friend is not likely authentic because there is a serious mistake on its face which the PSB would not likely have committed.6 Article 91 of the Criminal Procedure Law is a directive to the PSB to notify them of the arrest within twenty-four hours. It is not a substantive provision of criminal law. Counsel's Objections [21] Counsel submits that the RPD erred by misreading the Notice of Arrest. It does not indicate that Article 91 is the substantive offense of disturbing social order, but simply indicates what procedures the PSB must follow in making the arrest. There is no error in the form. As a document issued by an official source, it is presumed to be authentic unless the RPD can provide good reasons to discount it. The RPD also erroneously speculated that the PSB did not arrest protestors because of this finding. RAD Assessment [22] The Notice of Arrest states that, according to Article 91 of the Criminal Procedure Law of the People's Republic of China, the person concerned was arrested on XXXX XXXX, 2016. The full citation is: "When arresting a person, a public security authority must produce an arrest warrant. After a person is arrested, the arrestee shall be immediately transferred to a jail for custody. The family of the arrestee shall be notified within 24 hours after arrest, unless such notification is impossible".7 There is no obvious error on the face of the document. The Notice of Arrest refers to a provision of procedural, not substantive law. The stated article outlines the steps which the PSB must follow while executing the warrant. As such, it is appropriate for an arrest warrant. The RPD had no basis to discredit the Warrant for Arrest and to speculate that others were not arrested. I note that the Appellant also provided a summons for him to appear for questioning. Although a crucial document, the RPD made no reference to it at all. The Marriage Certificate RPD Findings [23] The RPD drew an adverse inference from the fact that the Appellant testified that he married in 1995, but the marriage certificate was registered in 2005. The RPD did not accept his explanation that he did not register it in 1995 because he believed that he had to wait until he was 23. He went to city hall and was told that he did not meet the age requirement. He did not go back in 1996 or 1997 because he did not think that he could do so because his wife was pregnant out of wedlock. The RPD noted that the legal age for a man to marry is 22 and that the Appellant turned that age in 1995. In addition, the national documentation package (NDP) does not indicate that marriages cannot be registered if a child is born outside of marriage. Marriages cannot be contracted until a man reaches the age of 22 or a woman turns 20. Submissions by Counsel [24] Counsel submits that the RPD erred in its consideration of the Appellant's age. Because he turned 22 on XXXX XXXX, 1995, he would have been turned away if he attempted to register the marriage before that date. The RPD did not ask when he attempted to register the marriage in 1995. The panel had insufficient facts to draw the conclusion that it did. [25] Counsel submits that family planning laws vary among provinces and that a national policy was only initiated in 2002. The RPD drew an impermissible inference because laws in 1996 and1997 could be different than they are today. RAD Assessment [26] I agree with counsel that the Appellant would likely have been turned away from the registry office if he tried to register his marriage before XXXX XXXX, 1995. Without additional questions, the RPD drew a conclusion without an adequate factual basis to justify it. [27] Counsel's submission on the second point is speculative in nature. Although the Appellant had the opportunity to provide rebuttal material as new evidence under subsection 110(4) of the IRPA, he did not do so. A review of the documentary evidence did not find a single reference in law, or practice anywhere in China, that would prohibit the registration of a marriage because a child had previously been born. The RPD was entitled to assess a subjective belief on the basis of objective documentary evidence. It did not err in so doing. If the Appellant believed that, he was likely misinformed. However, this issue is of insufficient significance to justify an adverse credibility inference. The RPD erred in doing so. [28] I would also add that this is a peripheral issue that has nothing to do with the Appellant's guardianship of his nephew, his death, and the subsequent protests that led to the PSB wanting to arrest him. The Federal Court has warned against adopting a microscopic assessment of peripheral issues in an attempt to discredit overall credibility, given the very limited value of these issues.8 Exiting China on his own Passport RPD Reasons [29] The RPD doubted that the Appellant could have flown out of China with his own passport without impediment if the PSB had issued a warrant for his arrest. The panel considered Jurisprudential Guide (JG) decision TB6-11632 and concluded that the Golden Shield security system would have made this unlikely. The RPD considered the Federal Court Huang decision that indicates that one properly-placed person with access to the appropriate database could allow someone to circumvent the system.9 Nevertheless, the RPD preferred the documentary evidence and assessment of the JG on this issue and concluded that he could not likely have left the country, as alleged. [30] The RPD also drew an adverse credibility inference from the fact that he testified that the passport used for travel was provided to him by the smuggler and that he did not make the trips identified by the port stamps. When asked if he ever travelled outside of China, he said no. However, he later contradicted himself by saying that he had previously gone to Thailand on business with his real passport. [31] The RPD also drew an adverse conclusion from the fact that the Appellant used a fraudulent passport and obtained a Canadian visa with fake documents in order to deceive Canadian officials. Counsel's Objections [32] Counsel submits that the RPD's findings were speculative and failed to account for the totality of the documentary evidence. One minor discrepancy in the Appellant's testimony does not justify an adverse credibility inference and the conclusion that he is not wanted by Chinese authorities. The conclusion that the Appellant had access to fraudulent documents is speculative. RAD Assessment [33] It is true that the RPD asked the Appellant if he had travelled before and he testified that he had never been outside of China. This was a follow-up question to whether he had travelled to Malaysia, as indicated by the port stamp in the passport which he used to obtain the Canadian visa and travel to Canada. He testified that the passport was given to him by the smuggler, that he had never seen it before, and that he had not engaged in the travel suggested by the port stamps. After he later testified that the had once gone to Thailand on business with his authentic passport, the panel asked him to explain the inconsistency in testimony. He replied that he said that he had never travelled outside of the country in the context of the discussion of the fake passport. He meant to say that he had never travelled outside of the country before with that passport. This is a plausible explanation under the circumstances. The result may have been different if the RPD had asked whether he had previously obtained a genuine passport and travelled with it. The panel did not do so. This minor issue does not justify an adverse credibility conclusion. [34] The RPD erred in drawing an adverse inference from the fact that he secured the services of a smuggler to obtain false documents in order for him to seek asylum in Canada. International refugee law recognized this right, as does Canada.10 [35] The debate between the RPD and counsel about the documentary evidence concerning the efficiency of the Golden Shield system must be resolved on a case by case basis. As the Federal Court pointed out in the Huang decision, the system is not infallible. A bribe given to a local official who can prevent an arrest warrant from appearing in the Golden Shield system will suffice to permit an uneventful departure through a major Chinese airport.11 This would not require the circumvention of all of the levels of security at an airport that could be characterized as being unlikely. Whether or not a claimant should be disbelieved on this issue depends on the overall credibility of the claimant and the specific circumstances of the case. This issue is not automatically determinative in itself. On the facts of this case, the RPD was unable to provide adequate reasons to support the conclusion that the Appellant is not a credible witness. As a result, his testimony that a smuggler paid a large bribe to an official to permit him to leave the country without difficulty remains unrebutted. Did the RPD Ignore Important Evidence? [36] In addition to the documents that were considered and dismissed by the RPD, the Appellant filed a number of other important documents that not referred to. These include the following: a corroborative letter from his daughter,12 a jail visit card pertaining to the friend who accompanied him to the protest and who is serving a three-year prison sentence,13 the complete vaccination record for his nephew, including the XXXX XXXX, 2015 one for rabies,14 a hospital record showing that the nephew was treated with a rabies vaccination after sustaining a dog bite,15 his nephew's death certificate showing that he died in hospital on XXXX XXXX, 2015 at age eleven from an acute swelling of the lungs which occurred over a twelve-hour period,16 his brother's 2010 death certificate,17 the cancellation of the Appellant's mother's household registration after her death in XXXX 2014,18 the Appellant's household register (hukou) that shows that his nephew began living with him on XXXX XXXX, 2014 and that his death was registered on XXXX XXXX, 2015,19 a PSB Summons that required the Appellant to present himself for questioning on XXXX XXXX, 2016 because he is suspected of having led a protest against the government which disturbed the social order.20 [37] It was impermissible for the RPD to make conclusive credibility findings without considering all of the relevant evidence, as emphasized by the Federal Court of Appeal in the Sheikh decision.21 This judgement first notes that the RPD can find a claimant so lacking in credibility that there is no credible evidence to support the claim. This general finding of lack of credibility can extend to all relevant evidence that emanates from the claimant's testimony. In Sellan, the Federal Court of Appeal held "where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim" if there is no independent and credible evidence that is capable of supporting it.22 It is important to note that this Federal Court of Appeal extends reasons to believe that a claimant is not a credible witness to all evidence that is not independent of the person. This point is made clear by the Federal Court in the Dhaliwal decision.23 [38] Justice Boswell asserts that the Sellan decision is not based on a legal principal, but rather on a logical inference. Unreliable evidence from the claimant does not negate independent evidence. An allegation is not proven to be false by the mere fact that some of the evidence is unreliable and could not alone establish that it is true. He illustrates this point by referring to one of Aesop's Fables: "distrusting the panicked yelps of the boy who cried wolf does not let one ignore security camera footage of a wolf chasing him." This is precisely what the RPD has done in this case. The Appellant filed a considerable number of official, third-party, documents which substantiate his allegations of fact. The RPD dismissed them all without a word because of erroneous credibility findings based on minor and peripheral issues. Alleged defects on the face of two documents are not well-founded and the rest of the documents were unchallenged. The totality of the evidence supports the credibility of the Appellant's testimony and the authenticity of the supporting documents. Concluding Remarks [39] When all of the evidence is viewed together, the presumption that the Appellant's testimony is true and that the documents filed are likely authentic has not been correctly rebutted by the RPD. Given this conclusion, his testimony that his smuggler was able to pay a large bribe to facilitate exit from China is not implausible. More likely than not, the Appellant participated in a protest against the Chinese government's handling of the tainted rabies vaccine issue, as alleged, and that the PSB is seeking to arrest him for disturbing the social order. [40] The Appellant has a nexus to the Refugee Convention by means of political opinion. Arrest and lengthy detention for expressing legitimate political views constitute a sustained and systematic violation of fundamental human rights which rises to the level of persecution. Given that the State is the agent of persecution, the risk is present throughout the country and State protection is not available. The Appellant has a well-founded fear of persecution in the People's Republic of China. CONCLUSION [41] The appeal is allowed. I substitute my own decision that the Appellant is Convention refugee. (signed) "H. Shepherd" H. Shepherd March 11, 2020 Date 1 Section 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 93. 5 Valtchev .v Canada (Minister of Citzenship and Immigration), 2001 FCT 776 (CanLII) at paragraph 7. 6 Exhibit RPD-1, RPD Record, Exhibit 8, at p. 156. 7 Exhibit P-2, Appellant's Record, at p. 34. 8 Lubana v. Canada (Minister of Citizenship and Immigration), 2003 FC 116 (CanLII). 9 Huang v. Canada (Citizenship and Immigration), 2017 FC 762 (CanLII). 10 Section 133 Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 11 Ren v. Canada (Citizenhsip and Immigration), 2015 FC 1402 at para. 16; Yang v. Canada (Citizenship and Immigration), 2016 FC 543 at para. 12. 12 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 101. 13 Ibid, at p. 106. 14 Exhibit RPD-1, RPD Record, Exhibit 8, at p. 137-145. 15 Ibid, at p. 146. 16 Ibid, at pp. 152-153. 17 Ibid, at pp. 150-151. 18 Ibid, at pp. 154-155. 19 Ibid, at pp. 118-129. 20 Ibid, at pp. 158-159. 21 Sheikh v. Canada (Minister of Employment and Immigration), 1990 CanLII 8017 (FCA), [1990] 3 FC 238. 22 Canada (Citizenship and Immigration) v. Sellan, 2008 FCA 381 (CanLII), at para. 3. 23 Dhaliwal v Canada (Minister of Public Safety and Emergency Preparedness), 2015 FC 157 (CanLII), at paras. 85-86. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-24271 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