TB6-01689

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 : TB6-01689 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 April 18, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman 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), who is a citizen of the People's Republic of China, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted any new evidence in support of his appeal, nor is he requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is, however, requesting that the RAD determine him to be a Convention refugee, or in the alternative, that the matter be remitted to a newly-constituted panel of the RPD for re-determination. DETERMINATION: [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background: [3] The Appellant's claim is based on his alleged violation of the Family Planning Policy in China (FPP). He alleges that he has XXXX sons, all born in breach of the FPP, having been born to his then girlfriend, now wife, prior to their marriage. He further alleges that although his eldest son is registered on his HUKOU, his other XXXX sons remain unregistered. [4] The Appellant alleges that officials from the Family Planning Office (FPO) have come to learn of his other XXXX children and as a result, they are searching for the Appellant and his wife. He fears that he faces an exorbitant fine as well as forcible sterilization should he return to China. ROLE OF THE RAD [5] Counsel has made submissions in line with the decision from the Federal court in Huruglica.1 [6] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,2 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. The RAD's role is to conduct an independent assessment of the entire record to determine if the RPD erred and come to its own conclusion if the Appellant is a Convention refugee or a person in need of protection. SUBMISSIONS BY THE APPELLANT: [7] Did the RPD err when it did not consider, notwithstanding the credibility findings, that the fact remains that the Appellant has run afoul of China's Family Planning Police and the implications as a consequence? XXXX 2014 visit by the FPO: [8] Given that the Appellant obtained his passport in XXXX 2014, but did not decide to leave China until XXXX 2014, the Appellant was questioned as to why he had waited. His response was that the FPO had visited in XXXX 2014, an assertion which is not contained in the Appellant's Basis of Claim form (BOC). The Appellant provided three different explanations for this omission; namely, he did not feel it was important, he did not know, and then finally he suggested it was the fault of the interpreter. As a result, the RPD drew a negative inference, particularly given the fact that the Appellant had the services of counsel and an interpreter. [9] The RAD concurs with the RPD that three internal inconsistencies certainly cast aspersions on this portion of the Appellant's testimony. Notice left for the Appellant and his wife: [10] The Appellant testified that a notice issued by the family planning officials was left with his parents on XXXX XXXX, 2015, in which he and his wife were asked to report. He learned of this notice, according to his testimony, in early September, yet this information is not contained in the BOC. The Appellant had no response to this omission, which the RPD considered to be significant, as this is evidence of an ongoing and active interest in the Appellant. [11] The RAD concurs with the RPD that this testimony calls into question the existence of a valid notice. This is a significant issue and even an amendment to the BOC could have been provided. Moreover, in the absence of an explanation for this error, the RAD finds that the Appellant is not being actively pursued as alleged. Absence of reasonably available supporting documentation: [12] The Appellant testified that he did not deem it necessary to request a copy of the notice when asking for corroborative evidence from China. His excuse was that he failed to consider the usefulness or importance of this notice, but again the RPD found this omission to be significant as it deals with ongoing and active interest in the Appellant on the part of the FPO. [13] The RAD finds that the Appellant, who had the services of competent counsel, failed to read the instructions provided to him in pursuing his claim. The BOC indicates clearly that documents in support of his allegations must be provided. If said documents are not available, the Appellant ought to provide an explanation of efforts he made to obtain them. Other credibility concerns in the Appellant's alleged experiences: [14] In oral testimony, the Appellant stated that his XXXX unregistered children were attending a private school in China, when he was allegedly in a poor financial situation. Moreover, the RPD noted that the Appellant alleged that his children were in hiding in another province (where they were studying), however, they were listed in the BOC as living in XXXX. His excuse that it was a careless act or it was a convenience to list them in XXXX, was found to be an unreasonable explanation by the RPD, thereby further detracting from the Appellant's credibility. [15] The RAD concurs with the RPD that this conflicting evidence calls into question the existence of these XXXX children The RAD concludes that the burden rests on the Appellant to provide credible evidence, particularly with respect to his children, since it is "family planning" which is the central issue. Upon review of the recording, the RAD finds that the Appellant, when confronted with numerous omissions, contradictions, and inconsistencies, simply had no explanations. Failure to claim in the US [16] The Appellant testified that he entered the US on his own Chinese passport and US visitors' visa, and remained in the country for 8 months. He did not claim in the US, according to his testimony, because he does not have friends or family there. However, the RPD noted that there was no evidence that he had any friends or relatives in Canada, and therefore it did not accept the explanation provided by the Appellant. [17] The RPD further noted that the Appellant crossed illegally into Canada at an unmarked border between Washington state and British Colombia. Even though he used the services of a smuggler, the RPD did not accept the Appellant's assertion that he was unaware that it was an illegal border crossing. When drawing a negative inference in this regard, the RPD also considered the fact that this Appellant has had experiences in travelling to Japan and the US, and would therefore be aware of the practices when crossing a border. Moreover, the RPD had no evidence as to when the Appellant actually entered Canada. [18] Furthermore, the RPD noted that the Appellant was in Canada without status, and therefore he was placing himself at risk of deportation. He had already remained in the US XXXX months beyond his visitors' visa status. In totality, the RPD found that the Appellant's actions, his failure to claim in the US, overstaying his authorized stay there, crossing the border illegally and delaying in claiming in Canada, were inconsistent with those reasonably expected of an individual with a fear of being returned to China. [19] The RAD finds that this aspect of the Appellant's conduct is inconsistent with a person living in fear of persecution in their country. It is to be expected that genuine Convention refugees would seek protection as soon as is practical, once out of reach of their oppressors. The Board is mindful, then, that one of the significant factors which speaks to subjective fear and credibility is the element of delay. Delay, in and of itself, is not normally factor in refugee determination.3 However, it can be relevant and a potentially important consideration to the Board,4 where the Appellant has delayed in making a claim upon their arrival to Canada and failed to offer a reasonable explanation for the delay. In certain circumstances, however, delay can be a determinative and decisive factor.5 In the case at hand, given the failure to claim in the US, crossing into Canada illegally, and then delaying in making a refugee claim the RAD draws an adverse inference and finds as a result of that delay that the Appellant lacks subjective fear and his credibility is seriously undermined. The Appellant's other evidence: [20] The RPD noted that the Appellant had provided his HUKOU, FPO documentation, and his marriage certificate, to support his allegations that he previously paid a fine to register his son, XXXX, after paying a fine following his marriage in 2008 to the boy's mother. However, the RPD noted that the Appellant's HUKOU contains a different date of birth for the Appellant than that on his RIC and other documentation. The Appellant explained that he had noticed this error many years ago in China, however, when he went to have it corrected, he was advised to come back at another time. Moreover, he testified that he left it with the boy's mother to have it changed, however, after he came to Canada he realized that the date was still incorrect. Given the prevalence of fraudulent documents in China, the RPD did not accept the Appellant's explanation. [21] The RPD noted that the Appellant's marriage certificate was submitted to corroborate his marriage in 2008. The FPO documentation is noted by the RPD as seemingly indicating that the Appellant was issued a fine and given a payment schedule to pay this fine. However, the reason for the fine is not indicated and given the Appellant's overall lack of credibility, and the RPD's concerns with the HUKOU, the RPD gave these documents little weight. [22] The RPD further noted that even if it accepted that the Appellant faced a fine for registration of this son in his HUKOU, that despite his reported inability to pay this fine in full, the Appellant has not alleged to have had any difficulties from the FPO related to his failure to make the scheduled payments for the fine. The RPD concluded that there was insufficient credible or trustworthy evidence to establish that the Appellant and his now wife have XXXX other children in breach of the FPP (XXXX children in total, XXXX of which are unregistered), that he is wanted by the FPO, that he was hiding before leaving China or that he had to flee with the assistance of snakehead. [23] In totality, the RPD found that the Appellant had not established, on a balance of probabilities, the factual basis for there being a reasonable chance that he would be persecuted or a factual basis for there being, on a balance of probabilities, a harm to him as set out in section 97(1) of the IRPA, in China. In other words, the RPD found the story as a whole lacked a ring of truth. SUBMISSIONS BY THE APPELLANT: [24] In spite of adverse credibility findings regarding inconsistencies in the Appellant's evidence, omissions in his BOC narrative and certain implausibilities, it is submitted that the Appellant has XXXX sons, thereby running afoul of China's family Planning Policy. Accordingly, it is submitted by the Appellant that the RPD must consider the implications of the Appellant's violation of the police should he return to China. He cites the documentary evidence6 which indicates that "the country's birth-limitation policies retained harshly coercive elements in law and practice." Moreover, it is argued that the Appellant's fear of forced sterilization is also corroborated in the documentary evidence.7 (US DOS report) and RIR CHN 104963.E 16 October 2014) [25] It is argued that although physically coercive measures such as forced sterilization are prohibited on paper by the national authorities, in reality, population targets provide powerful incentives for local officials to use such measures.8 [26] With respect to the situation in XXXX, where the Appellants resides, it is argued that the UK Home Office Operational Guidance Note on China indicates that unspecified "remedial measures" are required to deal with unauthorized pregnancies. [27] In addition, it is submitted by the Appellant that he also faces a risk of other punitive measures, including social compensation fees, which can be prohibitively high and if families cannot pay, children cannot be registered and cannot obtain a HUKOU. RAD'S FINDINGS: [28] Counsel has made no submissions with respect to the credibility findings by the RPD. The RAD finds that this is particularly significant, given the fact that the RPD findings led to a conclusion that there was insufficient credible evidence that Appellant has XXXX children, including XXXX who are unregistered, that he is wanted by the FPO, that he was in hiding before leaving China, or that he had to flee with the assistance of a snakehead. [29] Given the aforementioned findings, the RAD finds that the RPD did not err in considering the consequences of violating China's Family Planning policies, as it did not find any of the Appellant's testimony to be credible and in fact, stated that "it did not have a ring of truth". [30] The RAD has conducted its own analysis of the entire record, which included a review of the audio recording of the proceedings, and finds that the RPD's credibility findings are sustainable. We also note that the Appellant has not challenged these findings. Accordingly, the RAD finds that it is unnecessary to examine the documentary evidence with respect to any consequences flowing from violation of the Family Planning Policies, when it has been determined that there is no such violation. [31] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara April 18, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), Hugessen, Desjardins, Létourneau, March 17, 1993. Reported: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 4 Heer, Karnail Singh v. M.E.I. (F.C.A., no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988. 5 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003. 2003 FC 1324; Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003, 2003 FC 1266; Bhandal, Surjit Kaur v. M.C.I. (F.C., no. IMM-4277-05), Teitelbaum, April 3, 2006, 2006 FC 426. 6 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for China (October 30, 2015), items 5.14 and 2.1. 7 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for China (October 30, 2015), items 5.5 and item 2.1. 8 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for China (October 30, 2015), item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-01689