TB4-10549

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 : TB4-10549 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 February 3, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Peggy Ka Pui Oei 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 appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal and requests a hearing. 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 of 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 in 2013, his wife and son left China and made a refugee claim in Canada after her practice of Falun Gong was discovered by authorities. The Appellant alleges that Public Security Bureau (PSB) repeatedly attended their home in China in search of his wife. As a result of her involvement in Falun Gong, his son was expelled from school and he was dismissed from his employment. [4] In September, 2013, following his wife's and son's departure from China, the Appellant learned that the local Government commenced expropriation of his home and the homes of his neighbours and that he was required to vacate his home by December 2013. The Appellant alleges that his neighbours were offered less compensation for their homes than what they believed was their true value. [5] The Appellant and his neighbours gathered together and drafted a petition asking the government to increase their compensation. [6] In October, the Appellant and ten of his fellow householders went to the town government seeking greater compensation. Their request was denied. Eight of the Appellant's neighbours then went to the land bureau of XXXX city but did not have any success in their efforts to obtain more compensation. [7] In November 2013, the Appellant and his neighbours agreed that they would not receive assistance from the government and decided to block the road to the village in order to deny government officials access to their homes. Officials attempted to enter the Appellant's village on December 9, 2013 but were turned back by the Appellant and his neighbours. The Appellant and his neighbours were warned that they would face consequences if they continued to block access to the village. [8] On December 10, 2013, government officials together with armed police and demolition workers arrived at the village and were again denied entry by the Appellant and his neighbours. The Appellant alleges he and his friend and fellow homeowner shouted anti- government slogans. After a standoff of several hours, the demonstrators were ordered to step aside to allow the government officials and workers access to the village. [9] The Appellant and his neighbours refused to move and a violent confrontation resulted. The Appellant was able to flee but six of his neighbours were arrested by police. While in hiding, the Appellant learned that the PSB had attended his home looking for him and left a summons with his mother. Fearing he would be arrested, the Appellant used the services of a smuggler to leave China. The Appellant obtained a US visa and traveled to the US on XXXX XXXX, 2014. He arrived in Canada on XXXX XXXX, 2014 and made a refugee claim on June 23, 2014. [10] The Appellant's application for refugee protection was heard over two sittings on August 13, 2014 and September 18, 2014. In a decision of October 10, 2014 the RPD rejected the Appellant's claim, finding that the Appellant was not credible. [11] The Appellant submits that the RPD erred in its determination for the following reasons: a) The RPD erred in failing to conduct the hearing with reverse-order questioning; and, b) The RPD's credibility findings are not supported by the evidence in the record and were based on minor discrepancies and misunderstandings. [12] For these reasons, the Appellant submits that the RPD's decision must be over-turned. ROLE OF THE RAD [13] 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." [14] 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. [15] 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. Admissibility of New Evidence Presented on Appeal [16] As provided for in ss. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and the Appellant. Subsection 110(4) of IRPA provides that the person who is the subject of the appeal may 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. [17] The Appellant has tendered the following proposed new evidence in support of his appeal. a) Affidavit of the Appellant dated November 12, 2014; b) Affidavit of his spouse XXXX XXXX; c) Affidavit of law clerk XXXX XXXX; and d) Copies of three online news articles reporting on violent clashes between Chinese villagers and the PSB which arose from land expropriation. Copies of three online news articles reporting on violent clashes between Chinese villagers and the PSB which arose from land expropriation. [18] The Appellant submits that the proposed evidence meets the statutory requirements set out in IRPA in that the incidents post-date the rejection of his claim and as such, he could not have reasonably submitted these documents. The Appellant argues that the three documents provide corroboration that protests against unfair land expropriation continues to be an issue in China. [19] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in ss. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of ss. 110(4), the RAD considered the following. [20] First, did the evidence arise after the rejection of the Appellant's refugee claim? Here the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.3 [21] The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.4 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [22] It is important to note here that ss. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [23] If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.5 [24] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in ss. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,6 or that it proves a fact that was unknown to him at the time of the hearing?7 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [25] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the ss. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.8 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the evidence. [26] In the case at hand, the RAD finds that the proposed evidence does meet the test set out in ss. 110(4). The proposed new evidence appears to post-date the rejection of the claim and does provide some evidence that is capable of proving the current state of affairs with regard to land expropriation in China. [27] While the proposed evidence appears to meet the express statutory provision of IRPA, the RAD further finds further analysis is required before the RAD can accept the articles as new evidence. In this regard, the RAD has turned to the factors in Raza.9 The RAD finds that, while Raza provides guidance on the application of the analysis that should be carried out, the analysis as set out in Raza is not entirely appropriate for the purpose of assessing evidence submitted to the RAD. Accordingly, the RAD has adapted the analysis in Raza to the assessment of evidence submitted to the RAD. [28] Given that the RAD finds that the proposed evidence appears to meet the statutory requirements of ss. 110(4) of IRPA, the RAD will proceed to assess the credibility, relevance, and materiality of the documents.10 The factors set out below need not be considered in any particular order; however, the evidence must logically meet all of the factors, in addition to having met one of the statutory criteria, to be admissible.11 [29] Credibility - Subsection 171(a.3) of IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. Evidence that passes the test in ss. 110(4) must therefore be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. If not, the evidence need not be considered.12 [30] Relevance - The RAD must consider whether the evidence is relevant to the appeal, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection. If not, the evidence need not be considered.13 [31] Materiality - Is the new evidence capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal? If not, the evidence need not be considered. [32] After review, the RAD finds that the articles are not admissible in this appeal because they lack materiality. It is the view of the RAD that materiality is the measure of the estimated effect that the presence or absence of an item of information may have on the accuracy or validity of a statement. In other words, the evidence has to have a certain threshold effect to be material, namely, that the evidence is capable of showing that the decision or reasons of the RPD are in error, or the evidence might affect the appropriate disposition of the appeal. The RAD notes that there was evidence of this nature already before the RPD contained in the National Documentation Package on China as well as in the documentary package tendered by the Appellant. The proposed new evidence does not provide any direct corroboration of the events which the Appellant alleges and adds little if anything to evidence already in the record. Accordingly, the RAD finds that these documents are not material in that they are incapable of showing that the decision or reasons of the RPD are in error and, as such, rejects them as new evidence. Affidavit of the Appellant dated November 12, 2014 [33] The RAD finds the Appellant's affidavit for the most part not new evidence within the meaning of ss. 110(4) of IRPA. The information contained in the affidavit is predominantly a reiteration of the evidence he provided at his refugee protection hearing or argument in response to the concerns expressed by the RPD in its reasons. However, the affidavit does contain some new information relative to information he received from his mother concerning the PSB's continued interest in locating him and the letter from his sister he is seeking to enter as evidence under the provisions of s. 29 of the RAD Rules. While the RAD finds the majority of the contents of the affidavit is not new evidence in this appeal, the RAD does allow as new evidence that portion of the affidavit dealing with the s. 29 application. Affidavit of the Appellant's Spouse XXXX XXXX [34] The Appellant has also tendered an affidavit of his wife. The affidavit provides an explanation for the Appellant's apparent testimonial failures before the RPD and is relied upon to support his argument that he is not a good witness and that the RPD ought to have reversed the order of questioning. [35] The RAD finds that this proposed new evidence lacks materiality. In the affidavit, the affiant describes her long-time knowledge of the Appellant's "XXXX XXXX XXXX and XXXX XXXX XXXX XXXX". The affiant stated that her family and friends often made fun of his manner of speaking. The affiant further described how as a result of his XXXX XXXX XXXX, she, over the course of their marriage became the Appellant's 'mouthpiece', expressing his thoughts and feelings on his behalf and that as a result, his XXXX XXXX did not improve. The affiant states that the RPD's findings regarding the Appellant's testimonial failings can be explained by his nervousness and his difficulty with communication. The RAD notes, however, that despite having this prior knowledge, no effort was made to tender this evidence at the RPD hearing even though it was clearly available to the Appellant. [36] The RAD also finds that the Appellant has not provided any explanation why this evidence was not provided to the RPD prior to the rejection of his claim. The Appellant has argued that his difficultly in testifying was so obvious that the RPD ought to have reversed the order of questioning in accordance with Guideline Eight of the Chairperson's Guidelines. However, the RAD notes that there is no evidence in the record that the Appellant raised this issue with the RPD. If as the Appellant has argued that it should have been obvious to the RPD that he had difficulty testifying, then, it follows that it should have been obvious to the Appellant's counsel. However, neither the Appellant nor his counsel made any application or request to reverse the order of questioning in order to accommodate his alleged lack of XXXX XXXX. Given the affiant's prior knowledge of the Appellant's poor XXXX XXXX and the difficulty he had testifying during the first sitting, it is reasonable to expect that the Appellant would have made an effort to tender an affidavit from his wife prior to the rejection of his claim or to have her testify on his behalf at his hearing. Again, the Appellant has not provided any explanation why this was not done. Accordingly this evidence is not admitted as evidence in this appeal. Affidavit of Law Clerk XXXX XXXX [37] The RAD finds that this proposed new evidence is not new evidence within the meaning of ss. 110(4) of IRPA. For the most part the affidavit contains an excerpt from the transcript of the Appellant's hearing. While this is not evidence within the meaning of ss. 110(4) of IRPA, the RAD nonetheless finds thatthe transcript excerpt is admissible as evidence in this appeal under provisions of the rules. Application to Submit Documents Not Previously Provided [38] The Appellant filed an application to submit documents not previously provided. In the application, the Appellant submitted a letter from his older sister in China in which she describes the events of the confrontation between government officials and the homeowners. The letter also provides information of the PSB's continued interest in pursuing the Appellant. [39] The Appellant also submitted a copy of his sister's Resident Identity Card together with the waybill from China Post and an affidavit to provide an explanation for why these documents were not submitted previously. The Appellant states in his affidavit that he was only informed of the ongoing interest of the PSB by his mother in November 2014. He argues the delay in obtaining the letter from his sister and in getting the letter translated prevented him from tendering the letter with his Appellant's Record. [40] The RAD has considered these documents, pursuant to the factors in Rule 29(4). Section 29(4) of the RAD Rules states that: In deciding whether to allow an application, the Division must consider any relevant factors, including a) the document's relevance and probative value; b) any new evidence the document brings to the appeal; and c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [41] The RAD notes that the Appellant has provided two affidavits in support of his appeal. He provided one affidavit dated November 12, 2014 in which he described the circumstances of his mother being question about his whereabouts. In that affidavit he indicated that a letter from his sister was forthcoming. The second affidavit was tendered in support of his Rule 29 application. [42] The RAD notes however, the Appellant's affidavit is inconsistent with the information contained in the letter he is seeking to tender. The Appellant has stated in his affidavit that his mother returns to her village each month to collect her pension payment. He alleges in the affidavit that his mother told him that on one such visit near the end of October 2014, the PSB approached her and asked her his whereabouts and told her they would continue to pursue him until they apprehended him. [43] However, the RAD notes that the letter states the following: "when mom goes to the committee of the village to receive her old age pension every month, the police send people to ask mom where you are now. Mom always says that she does not know. They won't stop asking until they find you and arrest you." [44] The content of the letter suggests that every month that the Appellant's mother has gone to obtain her pension payment she has been approached by the police. Whereas the Appellant has alleged in his affidavit that his mother told him it only occurred on one occasion in October 2014. The RAD notes that the Appellant has stated in his affidavit that he speaks with his mother regularly, on average once per week since he has been in Canada. The RAD also takes note that the letter is undated and that it provides no evidence when the Appellant's mother was first approached by the PSB. The letter is vague about when the Appellant's mother was contacted by the police and does not provide any information about when she notified the Appellant of the PSB's continued interest. However given the letter's content and the Appellant's regular contact with his mother the RAD finds that it is reasonable to expect the Appellant would have been aware of the contact the PSB were having with his mother and their ongoing interest in him. Accordingly, the RAD finds that the Appellant has not established that he could not have tendered this evidence with the Appellant record. [45] The RAD also notes that the letter does not state that the police informed his mother that they would pursue him until they apprehended him but rather it contains an opinion expressed by his sister that "they won't stop asking until they find and arrest you." The RAD also notes there is no indication in the letter why the police are interested in finding the Appellant. The Appellant has alleged in his Basis of Claim (BoC) narrative that the PSB have been repeatedly coming to his home looking for his wife. In the absence of any persuasive evidence in the letter of why the PSB are pursuing him, the reason for their interest in locating him could be explained by his allegations of their ongoing interest in locating his wife. Given the vagueness of the letter, the RAD finds that the letter lacks probative value. [46] Accordingly, the Appellant's application to submit these documents must fail under the provisions of Rule 29(4). [47] Although these documents do not pass the test set out in Rule 29(4), the RAD also finds that these documents would not meet the factors in ss. 110(4) of IRPA and Raza. Application for an Oral Hearing [48] The Appellant asks that an oral hearing be held, pursuant to ss. 110(6) of IRPA, in the event that the RAD raises an issue with respect to his credibility or that of his proposed new witness. [49] Subsection 110(3) of 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 person who is the subject of the appeal. The person who is the subject of the appeal may, pursuant to ss. 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." [50] According to subsection 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in ss. 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 ss. 110(3) must be understood in relation to ss. 110(4). [51] When read together, ss. 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,14 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. [52] The RAD has not admitted the new evidence which meets the requirement for an oral hearing.. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL The Refugee Hearing Should have Proceeded with Reverse-Order Questioning. [53] The Appellant, in essence, submits that the RPD breached procedural fairness principles when it failed to conduct the hearing with reverse-order questioning due to his difficulty giving testimony. The Appellant argues that it was obvious to the RPD panel member that he was having difficulty testifying. He argues that this difficulty is a result of a long-standing personal trait of poor communication skills which was exacerbated by the stress of the hearing. The Appellant argues that his poor communication skills impacted his ability to testify and that the RPD ought to have reversed to the order of questioning in fairness to him. [54] The RAD is not persuaded by the Appellant's argument in this regard. As previously stated, the RAD notes that there is no evidence in the record that the Appellant raised this issue with the RPD. If as the Appellant has argued that it should have been obvious to the RPD that he had difficulty testifying, then it follows that it should have been obvious to the Appellant's counsel. However, neither the Appellant nor his counsel made any application or request to reverse the order of questioning in order to accommodate his alleged lack of communication skills. [55] The RAD notes that the hearing was held over two sittings and that the Appellant had ample opportunity to raise the issue during or post-hearing. However, the Appellant failed to do so. The RAD finds that the Appellant's argument in this regard fails. Credibility Findings [56] The Appellant submits that many of the RPD's credibility findings were unsupported by the evidence in the record. Contradictory Evidence about Home Appraisals [57] The RPD drew an adverse credibility finding from the Appellant's inconsistent testimony concerning his knowledge of whether or not the other homeowners obtained appraisals of their homes. The RPD found that he Appellant first testified that he was only aware that he and his close friend had obtained appraisals but was unaware if any of the other twenty homeowners obtained appraisals. [58] The Appellant submits that this perceived discrepancy is based upon the RPD's misunderstanding of the chronology of the when he learned the information. The Appellant argues that the question of whether he knew the other home owners had appraisals was in relation to two different meetings. He argues that in the first meeting he was sure he and his friend were getting appraisals and that he did not know that the others obtained appraisals until the second meeting. The Appellant argues that his testimony is consistent and that no discrepancy exists. In the alternative, the Appellant submits that the discrepancy is minor and does not justify an adverse credibility finding. [59] The RAD is not persuaded by the Appellant's argument in this regard. A reading of the transcript shows that the Appellant testified that all of the homeowners had agreed to obtain appraisals. The Appellant was asked specifically if he knew if anyone else beside him had obtained a home appraisal. Member: So do you know if anyone else, besides yourself got an appraisal? Appellant: Yeah. I only know my close friend such as Mr. XXXX XXXX XXXX.15 [60] Following this exchange, the Appellant was confronted by the RPD with the statement in his testimony and his BoC narrative which stated they all had appraisals. The Appellant then adjusted his testimony and stated that he did not know about the others having appraisals until after the second meeting. The RPD rejected the Appellant's explanation. The RAD finds that it is clear that the Appellant was asked if he was aware if anyone else had obtained an appraisal. He only adjusted his testimony after being confronted with the contradiction in his BoC. The RAD finds that it was open to the RPD to reject the Appellant's explanation and draw an adverse credibility finding. Failing to Contact the Media [61] The RPD drew adverse credibility findings based on the Appellant's failure to take steps to notify the media of the homeowners' intention to block road into their village. The RPD reasoned that given the decision to block the road was to generate media attention; the Appellant ought to have taken steps to notify media. The Appellant testified he did not know how to undertake contacting the media; however, the RPD rejected the explanation as unreasonable. The RPD further found based on this finding that the Appellant had not attended a meeting where blocking the road was discussed. [62] The Appellant submits that the RPD's findings in this regard are erroneous. The Appellant argues that RPD's reasons do not explain why the responsibility for contacting the media rested with him. Regardless, his testimony was the media did attend the demonstration indicating they were notified by someone. [63] The RAD finds that the Appellant's argument in this regards has merit. There is nothing in the record which suggests that the Appellant took the leadership role in organizing this demonstration or in contacting the media, only that he participated. The RPD has not grounded its finding on this issue with evidence in the record. The Appellant was one of many individuals at the meeting in which this was discussed and there is no evidence which suggests that this responsibility rested with the Appellant. Furthermore, the Appellant has provided a reasonable explanation of why he did not personally contact the media. The RPD has not disputed that the media did attend the demonstration. Given that there were several homeowners at the meeting, someone else could have easily taken the on the responsibility. The RAD finds that it cannot afford deference to the Appellant's finding in this regard as the credibility finding lacks an evidential foundation and cannot be sustained. Omission from BoC [64] The RPD drew an adverse credibility finding from the Appellant's failure to include information on a conversation he had with the village chief on December 10, 2013, the day of the confrontation with government officials and police. [65] The Appellant submits that the omission of the conversation with the village chief does not warrant an adverse credibility finding. The Appellant argues that this conversation was nothing more than an elaborative detail and is insignificant in comparison to the other activities with which he was involved. [66] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant's conversation with the village chief is the only evidence offered by the Appellant of his direct interaction with government officials. Although he states he was part of the group of homeowners that approached government officials on previous occasions he did not allege that he himself spoke at any of these meetings which took place between the homeowners and officials. The RAD finds that this conversation is a significant interaction which would tend to corroborate his allegations that he was perceived to have a leadership role in the group and at the demonstration. [67] Although the Appellant provided an explanation that the narrative was merely a chronological account of what occurred and that this was only additional detail, it was open to the RPD to reject the explanation. The RAD agrees with the RPD that the Appellant's conversation with a person of authority on that date is significant with respect to his allegation that the authorities perceive him to be in a leadership role with the group in expressing a political opinion in opposition to the Chinese government. As such the Appellant ought to have included this encounter in his BoC. The RAD further finds that it was also open to the RPD to find that the Appellant did not have the conversation with the village chief as he has alleged in his testimony and that he was attempting to embellish his allegations. The RAD further finds that in attempting to embellish his testimony, the Appellant has undermined the credibility of his allegations. [68] The RAD finds that the RPD's finding in this regard is grounded in the evidence and should be afforded deference. Implausibility Findings [69] The RPD noted that the Appellant testified that he spoke to XXXX XXXX after he arrived in Canada. Mr. XXXX told the Appellant that he had been released from detention because he placed all the responsibility on him. The Appellant testified that he assumed that the others who were arrested also placed the blame on him. The RPD did not accept the Appellant's assumptions that the state is interested in arresting him based on his testimony in this regard. The RPD reasoned that the Appellant's failure to obtain confirmation from the other householders undermined his testimony. [70] The Appellant submits that the RPD findings are not based on the evidence in the record but solely on the RPD expectation of what the Appellant ought to have done. The Appellant argues that he provided a reasonable explanation that he did not believe it was necessary to contact the other homeowners. [71] The RAD finds that the Appellant's argument has merit. While it was open to the RPD to question the Appellant on whether he had evidence to corroborate the arrest of his friend and fellow homeowners, the RPD seems simply to have drawn a negative inference from the Appellant's failure to verify if his fellow homeowners had also placed the blame on him. The Appellant has provided a reasonable explanation for not contacting other homeowners as there was no reason to doubt what his friend had told him. The RPD's finding lacks a proper analysis and cannot be sustained. [72] The RPD also drew an adverse credibility finding from the Appellant's failure to pursue legal means to fight the expropriation of his property and the unfair compensation. The Appellant submits that the RPD's finding is flawed. The Appellant argues he provided a reasonable explanation that there was no reason to pursue the matter with the village chief or to take the matter to court as he had lost confidence in the authorities and the justice system. [73] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds the Appellant's argument in this regard is inconsistent with his testimony that the purpose of the demonstration was to draw media attention in order to bring the issue to the attention of government officials. The RAD notes that the Appellant has testified that he knew that obstructing the government officials was an illegal act. The RAD finds that it was open to the RPD to draw an adverse credibility finding from the Appellant's failure to pursue all legal means before knowingly breaking the law and placing himself at risk. The Appellant has alleged in his BoC that he had already come to the attention of the PSB due to his wife's involvement with Falun Gong. It is reasonable to expect that he would seek to exhaust legal means to obtain proper compensation before knowingly placing himself at risk. [74] The RAD finds that the RPD's finding in this regard is supported by the evidence and should be afforded deference. [75] The Appellant submits that the RPD found it implausible that his mother would not also experience problems with the PSB. The Appellant argues that there was no reason for the PSB to adversely treat his mother because she is elderly and not the owner of the home. [76] The RAD finds the Appellant's argument in this regard is without merit. The RAD finds that contrary to the argument of the Appellant, the RPD did not draw an implausibility finding regarding the treatment of the Appellant's' mother. Rather, the RAD finds that the RPD was merely assessing the extent of the treatment received by the Appellant for having disputed his land expropriation in China in the context of the reported treatment of other cases reported in the documentary evidence. [77] The RAD finds that the Appellant's argument in this regard fails. Summons [78] The RPD gave little weight to the summons tendered by the Appellant as evidence of the PSB's interest in him. The RPD found that the summons was a coercive summons based on a comparison to known examples of Chinese summons in the National Documentation Package. The RPD notes that there was no information on the face of the summons which indicated why the PSB were interested in the Appellant. The RPD went on to find the information contained in the documentary material indicates that it may have been issued in error, or that given the length of time that has passed, that the authorities are no longer interested in him or possibly it relates to some other unrelated event. [79] The Appellant submits that the RPD erred in giving the summons little weight. The Appellant does not dispute the RPD's assessment that the summons tendered by the Appellant is a coercive summons. However the Appellant argues that the RPD's finding that the summons does not contain information on its face which describes why the PSB are interested in him is not supported by the evidence in the record. The Appellant argues that the information contained in Response to Information Request CHN103401.E provides a description of the content of a summons and that description does not include particular information about the reason for the summons. [80] The RAD finds that the Appellant's argument in this regard has merit. The RPD's finding is not supported by the evidence in the record and as such cannot be sustained on this basis. [81] The Appellant further argues that contrary to the RPD's finding that the documentary evidence supports that summons may have been issue in error or that it relates to some other event or that the police are no longer interested in the Appellant, there is nothing in the documentary evidence which supports this finding. [82] The RAD finds that the Appellant's argument in this regard has merit. It is unclear on which documentary evidence the RPD relies to make this finding. A review of the documentary evidence on record does not support the RPD's finding in this regard. As such the RPD's finding cannot be sustained on this basis. [83] Notwithstanding the foregoing, however, the RAD finds that there is sufficient evidence in the record to place little weight on the summons. The RAD notes that the Appellant does not contest the RPD's conclusion that the summons is a coercive summons based upon its comparison to known copies of summonses in the objective evidence. In fact, the Appellant agrees with the RPD's finding in this regard.16 [84] The documentary evidence referred to by the RPD states the following about coercive summons: "[c]oercive summonses" (juchuan) are served by the people's courts, people's procuracies, public security or state security organs to those who do not comply with criminal summonses.17 [85] The same documentation states that Criminal summonses (xingshi chuanhuan) are served by the people's courts, people's procuracies, public security or state security organs to criminal suspects or defendants who need not be placed under pretrial detention, and have to appear before courts or undergo interrogation by the procuracy, the police or state security organs. (ibid.) [86] The Visiting Scholar added that Criminal summonses cannot last more than twelve hours, and cannot be used more than once on the same person. While a suspect or a defendant is being summoned for questioning, it is possible to issue a coercive summons if it is found out that there is the need to limit his personal freedom.18 [87] Given the information in the documentation, it is reasonable to expect that the Appellant would have been served with a criminal summons prior to the issuance of the coercive summons. However, the Appellant testified that he was only issued one summons. [88] Furthermore, the RAD notes that the transcription of the summons tendered by the Appellant states the following: "According to the Criminal Code 50 of the Criminal Law of the People Republic of China....."19 [89] The RAD notes there is no reference whatsoever in the documentation to the Criminal Law of the People's Republic of China in reference to the issuance of summonses. The documentation does refer to the Criminal Procedures Law of the People's Republic of China.20 The RAD notes, however, that article 5021 of that law does not refer to the issuance of summons or otherwise relate to the circumstances of this claim. Rather it refers to the right of defence attorneys to conduct inquiries. [90] The RAD finds that these deficiencies with the summons undermine the genuineness of the document and as such, the RAD affords little weight to the summons. Appellant's Exit from China [91] The Appellant testified before the RPD that he used the services of a smuggler to help him obtain a US visa, leave China and travel to Canada through the US. Although the RPD did not make any findings in this regard, the RAD finds that the Appellant's ability to exit China using his own passport when he alleges he was being actively pursued by the PSB is implausible. The RAD notes that there are systems in place to vet Chinese citizens before they travel abroad and that passports are checked against a database of persons wanted by the authorities. [92] Country documents22 state that the PSB have established a national policing database, which includes "criminal fugitive information" and "information on passports and exit and entry." In 17 June 2009, correspondence with the Research Directorate, a counsellor at the Embassy of the People's Republic of China in Ottawa, provided the following information on PSB information sharing: a) The national computer network of policing is called the Golden Shield Project. b) The Project has eight databases: (1) Population information, mainly the information on the citizen ID; (2) Criminal record information; (3) Criminal fugitive information; (4) Information on stolen and robbed cars; (5) Information on passports and exit and entry; (6) Information on registered cars and drivers; (7) Information on police officers; (8) Information on key fire-prevention units. c) Now all police departments at county level and above (namely, police departments at provincial, city and county levels) and most police stations and other grass-roots units (namely police under the county level) can connect to the system. Some small police stations and grass-roots units in remote areas cannot connect to the system. d) Chinese police are in charge of exit and entry administration. Just like CBSA [Canada Border Services Agency], in all ports of entry including international airports there are police units in charge of examination and they can connect to the system e) ... A researcher... 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'... It also includes monitoring phone conversations with advanced speech recognition technology, and monitoring citizens' movement through a vast network of surveillance cameras, equipped with face recognition technology... [93] 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).23 [94] 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)24 [95] The RAD finds that given his allegation that the PSB were in pursuit of him and had issued a coercive summons for his arrest, it would appear unlikely that the Appellant would have been able to leave China without being detected. [96] 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.). [97] 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.25 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.26 In this case, there is an evidential foundation in the objective evidence for the RAD's findings. [98] 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 in China is compelling and convincing. The Appellant has alleged that he was being pursued for taking the lead in anti-government activities. Given the seriousness of the charges he alleges he was facing, it is highly likely that his name was entered into the Golden Shield database as a person wanted by the police. 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. The RAD further finds that his ability to exit China on his own documents undermines his allegations that he is wanted by the PSB as he has alleged. [99] The RAD finds that based on the foregoing sustained credibility findings, and on its own findings, and on a balance of probabilities, the Appellant's allegations that he was involved in demonstrations arising from the expropriation of his property is not credible. The RAD further finds that the Appellant has not provided sufficient credible and reliable evidence that he is being pursued by the PSB for any reason. [100] The RAD further finds that while the Appellant has tendered evidence that his property in China was expropriated, there is no persuasive evidence in the record to suggest that the Appellant has any nexus to a Convention ground based on the expropriation of his property. Even if the RAD was to find the Appellant's allegations of the PSB pursuit credible, the RAD finds that the Appellant faces prosecution based on the fact that he has broken a law of generalized application and is not facing persecution. [101] The Appellant has alleged that he together with other homeowners confronted and tried to prevent government officials from demolishing their homes and that as a result, a violent confrontation resulted. He alleges he was able to escape and go into hiding. The RAD finds that given the Appellant's evidence that he interfered with government officials in the execution of their duty, his pursuit by officials is not based on persecution. Rather, the RAD finds he is being prosecuted under the law of general application. A similar law exists in many countries including Canada and the RAD does not find that it violates basic human rights principles. [102] As stated, the RAD finds that the Appellant is being prosecuted for committing a crime in his country of origin or contravening a law of general application. This term refers to a law which, on its face, applies to a country's entire population, without differentiation. [103] The RAD notes that the Court of Appeal, in Zolfagharkhani,27 set forth "some general propositions relating to the status of an ordinary law of general application in determining the question of persecution": The statutory definition of Convention refugee makes the intent (or any principal effect)28 of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.29 [104] But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.30 [105] In such consideration, an ordinary law of general application, even in non-democratic societies, "should ... be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory."31 [106] It will not be enough for the claimant to show that a particular regime is generally oppressive, but rather that the law in question is persecutory in relation to a Convention ground. [107] Based on the evidence tendered by the Appellant, the RAD finds it is clear that if the Appellant is wanted by the PSB, he is wanted for an unlawful act rather than for holding a particular political opinion. The RAD finds on a balance of probabilities the Appellant would be at most, prosecuted in China for assaulting or obstructing a public official. [108] The RAD has considered that, if convicted, the Appellant would be imprisoned. Subsection 97(1) of the IRPA reads as follows: Person in Need of Protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or to a risk to their life or to a risk of cruel and unusual treatment or punishment if the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and the risk is not caused by the inability of that country to provide adequate health or medical care. [109] The RAD finds that, if the Appellant returns to China and is convicted at trial for assaulting a government official or police officer, it is inherent or incidental to the lawful sanctions in China. Notwithstanding the foregoing, the panel does acknowledge that lawful sanctions cannot be imposed in disregard for accepted international standards. [110] The RAD has considered section 33(f) of the IRPA, which directs that the IRPA be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. The test that is used is whether the punishment that the Appellant may reasonably face in China would shock the conscience of Canadians. [111] The RAD also notes that the evidence of human rights abuses in general in a country is not in itself sufficient to show that the Appellant is personally at risk of harm. Chinese laws may be harsher than Canadian laws or the prisons may not be the same standard as Canadian prisons; however, this is not sufficient ground to grant a claim under section 97(1). [112] Assuming that the Appellant would be incarcerated on conviction, the RAD has considered what prison conditions the Appellant would face. The RAD has reviewed the documentary evidence on Chinese prison conditions. The RAD notes that the conditions in many penal institutions are harsh and degrading; the panel does find that the conditions are generally such that the prisoners' basic needs and rights are accommodated.32 [113] Based on oral testimony and evidence tendered by the Appellant, the RAD finds on a balance of probabilities that the Appellant was, at most, being prosecuted in China. If he is wanted in China, the RAD finds he is wanted for obstructing government officials and not for holding a particular political opinion. The panel notes that, in this case, the Appellant's charge is not political and that he will, therefore, not be treated accordingly. [114] Therefore, on the RAD's examination of the gravity of the offence, the legal processes in China, and the proposed method of punishment, the panel does not find that subsection 97(1) applies to the Appellant. In Summary [115] The RAD has concluded, on a balance of probabilities, that the claimant is not being sought for arrest by the authorities in China for obstructing officers demolishing his home. The RAD has additionally found the Appellant has failed to establish any nexus to the Convention refugee definition based on allegations that the compensation for his property was insufficient. If the Appellant had established such a nexus, the RAD further concludes the credibility of the allegations of unfair compensation was not supported with persuasive evidence. Further to this, the RAD has alternatively reviewed the Appellant's alleged crime and fear of incarceration, concluding if the RAD was to find that he is being pursued by the police, that he is being sought for contravening a law of general application. CONCLUSION [116] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau February 3, 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 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, para. 13.3(a). 4 Ibid., para. 16. 5 Ibid., para. 13.5(b). 6 Ibid., para. 13.5(a). 7 Ibid., para. 13.3(b). 8 Ibid., para. 13.5(a). 9 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 10 Ibid., para. 13.5(b). 11 Ibid., paras. 14, 15. 12 Ibid., para. 13.1. 13 Ibid., para. 13.2. 14 Subsection 110(4) of IRPA. 15 Exhibit P-2, Appellant's Record, Transcript excerpt, p. 42. 16 P-2, Appellant's Record, Memorandum of Argument, p. 221, para. 80. 17 RPD-1, National Documentation Package (NDP) for China, March 14, 2014, item 9.8, para. 1.1. 18 Ibid 19 P-2, Appellant's Record, Summons, p. 185. 20 RPD-1, NDP for China, 14 March 2014, item 9.3. 21 Ibid., item 9.5. 22 Ibid., item 10.3, RIR CHN103133.E, 2 July 2009. 23 Ibid. 24 Ibid. 25 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 26 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 27 Zolfagharkhani, Fereidoon v. M.E.I. (F.C.A., no. A-520-91), Hugessen, MacGuigan, Décary, June 15, 1993; [1993], 3 F.C. 540; (1993), 20 Imm. L.R. (2d) 1 (C.A.), at 552. 28 Cheung, Ting Ting v. M.E.I. (F.C.A., no. A-785-91), Mahoney, Stone, Linden, April 1, 1993; [1993] 2 F.C. 314 (C.A.); (1993) 19 Imm. L.R. (2d) 81 (F.C.A.), at 319, 29 Suleman, Adams v. M.E.I. (F.C.A., no. A-1297-91), Desjardins, Décary, Létourneau, May 5, 1994, 30 Zhu, Yong Liang v. M.E.I. (F.C.A., no. A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994, at 2-3. 31 Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995, at 5. 32 RPD-1, NDP for China (14 March 2014), item 1.7, U.K., Operational Guidance Note: China, 29 August 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10549