TB7-05019

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 : TB7-05019 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 June 27, 2017 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Stacey Margaret Duong 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 XXXX (the Appellant), is a citizen of the People's Republic of China (PRC). He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own decision that he 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 section 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 (XXXX XXXX XXXX) alleged before the RPD that he fears persecution in China due to his religion as a Christian follower of the Church XXXX XXXX XXXX, also known as XXXX XXXX. [4] The Appellant's claim for refugee protection was heard on January 19, 2017. In a decision of February 7, 2017, the RPD rejected the Appellant's claim, finding that the Appellant was not credible about the central elements of his claim. [5] The Appellant submits that the RPD misapprehended the objective evidence regarding his religion and further misapprehended his testimony. ROLE OF THE RAD [6] The RAD finds that the Federal Court of Appeal (FCA) 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. [7] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions by applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ANALYSIS OF THE MERITS OF THE APPEAL Exit from China Using own Passport [8] The RPD drew an adverse credibility finding based on the Appellant's ability to exit China on her own passport at a time when she alleges that she was wanted by the Public Security Bureau (PSB). The RPD found that the Appellant exited China on his own identity document, thus undermining his allegation that he was wanted by the police. [9] The Appellant submits that the RPD's finding in this regard was speculative. He argues that the availability of the system does not equate to perfect implementation. He further argues that the existence of corruption in China, his use of the smuggler, and the inconsistent policing levels in China are factors which undermine perfect implementation. [10] The RAD is not persuaded by the Appellant's argument in this regard. After its own assessment of the evidence, the RAD finds that it agrees with the RPD that the Appellant could not have left China using his genuine passport, given his allegations that the PSB were vigorously pursuing him. [11] The RAD notes that the documentary evidence reveals that the Chinese government has a national computer network known as the Golden Shield Project,2 and the PSB has access to a national policing database, which includes information about criminal fugitives, passports, and exit and entry. The Golden Shield incorporated extensive tracking and control mechanisms, including facial recognition surveillance technology. [12] The RAD also notes, from its own review and assessment of the evidence, that the Exit and Entry Administration Law of China, which came into force on July 1, 2013, states that Chinese citizens who exit or enter China shall submit their exit/entry documents such as passports or other travel documents to the exit/entry border inspection authorities for examination, go through the prescribed formalities, and may exit or enter upon examination and approval. The Appellant testified that he was told that because he had only received a summons rather than an arrest warrant, and his crime was limited to his home town area, he could leave from a different airport, such as Beijing Capital International Airport. He testified that he was told to follow the snakehead but he did not notice any special arrangements made by the snakehead, and was required to present his passport which was scanned and stamped. [13] According to the evidence in the National Documentation Package (NDP) on record, a Canadian Embassy official states that, upon departure, a person may be requested to produce their passport four times in the airport. The embassy official also indicated that the passport is scanned at two of these times: at the airline check-in counter and at the immigration departure counter. The source mentioned that the passenger's airline ticket is scanned when entering the "secure transit area" and at the airline boarding gate.3 [14] In correspondence with the Research Directorate, an assistant director responsible for aviation security and facilitation at the International Air Transport Association (IATA) indicated that, to the best of the source's knowledge, the departure procedure at airports in China seems to involve three steps: 1) check-in; 2) immigration; and 3) security and that all three locations, passengers are required to show their passports. Usually, at check-in, the Advanced Passenger Information System (APIS) info is input, manually or through scanning. The machine-readable zone (MRZ) of the passport contains the advanced passenger information (API) which is gathered by the airline. Passengers leaving China then must pass through exit immigration control points where their passports are physically inspected by Chinese immigration agents prior to approaching the boarding gate. Finally, the passports are further inspected at a security checkpoint, by matching passport information with the boarding card for verification, either using barcode readers on the boarding pass or just a visual check (with a stamp on the boarding pass).4 [15] The documentary evidence also states that Chinese citizens are not allowed to exit China if they are suspects or defendants in criminal cases. The following article states that: If a foreigner or a Chinese citizen must be prevented from leaving China at a border control station, the people's court accepting the case shall report up the hierarchy to the High People's Court, and a written notification of preventing person from departing through entry-exit port shall be issued by the Highest People's Court, and work with the public security organ of the corresponding level for handle control formalities. If the control port is not within the same province, autonomous region, or municipality directly under the central government, the public security organ in the relevant province, autonomous region, or municipality directly under the central government shall be contacted for the handle control formalities. Under emergency situations, if necessary, may first have the border control prevent departure and complete control formalities later. [16] The panel also notes that the documentation states that security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities (also known as Policenet or the Golden Shield).5 [17] In particular, the RAD notes that the system has been used to track down cult practitioners. The Chinese economist's writing in Open Magazine affirms that "Cisco's Policenet has been helping the [Chinese Communist Party]'s public security organs to ferret out political dissidents and Falun Gong practitioners for years."6 [18] The RAD notes that the Appellant has alleged that he was a member of the Church of Almighty God in China, which is viewed as a cult by Chinese authorities. In addition, the RAD notes the following: Information Sharing by Public Security Officials [19] Similarly, the representative of the Laogai Research Foundation stated that reports on "experiences of activists who have been detained while trying to board an international flight provide clear evidence that airport officials are connected to Policenet" (26 Feb. 2014). A colleague of Cao Shunli, who was prevented from travelling to Geneva for the human rights training in September 2013, later publicized her own experience at the airport in Guangdong (HRIC) (Oct. 11, 2013). According to the Laogai research Foundation, the colleague indicates that when her passport was swiped by airport authorities, scanning equipment immediately made noises alerting airport officials that she was wanted by police. She was subsequently detained in the Guangdong Baiyun Airport and told that Shanghai police would not let her leave. She was then transported from Guangdong to Shanghai for detention and questioning. This woman's experience provides concrete evidence of airport officials coordinating with police departments in tracking and detaining a political dissident (26 Feb. 2014).7 Security and Exit Control Procedures [20] The representative of the Laogai Research Foundation wrote that the Chinese government checks the passports of citizens attempting to leave the country in order to ensure that they are suitable for foreign travel. Customs officials stamp the passports of citizens approved for foreign travel. Public security officials often confiscate passports held by individuals deemed unsuitable for foreign travel. (23 Feb. 2014).8 [21] An undated article on the website of the Ministry of Public Security, entitled "Deepening the Implementation of the 'Golden Shield' Project," indicates that all police units nationwide have access to eight public security databases, including the "National Basic Population Information Database" (China n.d.). Also accessible through the databases includes information on household registration [hukou], border exit and entry, road traffic, and criminal investigations.9 [22] In addition, the representative of the Laogai Research Foundation stated that the: Golden Shield incorporates extensive tracking and control mechanisms such as real-name online registration requirements, GPS monitoring, and facial recognition surveillance technology in a multi-pronged approach to identify potentially disruptive individuals. Policenet, a component of the Golden Shield, stores a wealth of information on Chinese citizens and connects the various agencies and levels of command within the public security apparatus. This integrated system enables Chinese public security forces to effectively target and neutralize political dissidents.10 [23] The RAD further notes that the objective evidence is clear that government authorities are taking aggressive actions to root out the practice of Falun Gong in China. A report by Amnesty International states that the Chinese government established the "610 Office" to "crack down" on the Falun Gong and other "heretical cults." Similarly, the US Department of State's International Religious Freedom Report for 2013 states that the Chinese government continues to employ 610 offices to eliminate the Falun Gong movement and to address "evil cults."11 The RAD finds that, given the objective evidence, it is reasonable to believe that if the Appellant was wanted by the PSB as he has alleged, he would have been entered in the Golden Shield database as a wanted individual. [24] The Appellant has alleged that he left China from the airport in Beijing. According to the NDP, facial recognition technology is in place at major airports in China. ... A 2009 article by China Daily indicates that as of September 2009, Beijing Capital International Airport has used facial recognition systems to "stop people from pretending to be airport staff and sneaking into restricted areas" (18 Sept. 2009). Similarly, the Canadian embassy official indicated that Beijing international airport has a facial recognition system "used by airport staff passing between the secure transit and public sections of the terminal," ... ... [w]hen passengers [pass] through [the] immigration counter, they [are] photographed by a mini-camera to record each passenger's face. Facial recognition technology is applied to the images; however, it is unclear as to the total scope of the database against which the images are assessed.12 [25] The RAD notes that the Appellant's explanation about why he was able to by-pass the extensive security apparatus vague and does not account for the additional levels of security screening that the Appellant was subjected to including check-in, immigration and security. The RAD notes that the Appellant had no direct knowledge that officials were bribed. [26] In addition, the RAD notes that the Appellant's evidence does not account for the additional level of screening conducted by the airline at the gate. Furthermore, the RAD notes that the Appellant's explanation does not account for how he was able to by-pass the covert facial recognition system. [27] The RAD finds that there is insufficient evidence in the present case which establishes that the "smuggler" bribed individuals at each of the security layers in place. The RAD also finds that it makes little sense that the smuggler was able to orchestrate the removal of police interest in the Appellant from the Golden Shield computer system. The RAD notes that the Appellant alleges that the smuggler accompanied him throughout his travel from China to Toronto. If the smuggler was able to bribe an official to alter computerized records of the police interest in the Appellant, the RAD finds it makes little sense that the smuggler would place himself at risk by accompanying the Appellant through the airport and onto the aircraft when there was no need to do so. Furthermore, the Appellant's allegation that the police have continued to look for him in China undermines the notion that his name would somehow be removed from the system. [28] In addition, the RAD finds that evidence reveals that the Golden Shield system is an extensive security apparatus that is far-reaching and encompassing. The RAD finds that, given the importance of this system to Chinese authorities in monitoring its citizens, it is reasonable to expect that the use of the apparatus is also monitored and that there are many systems in place to prevent the system from being compromised by a single individual. [29] The RAD finds that there are a number of Federal Court decisions which support the RAD's finding in this regard. In particular, the RAD notes that the Refugee Appeal Division's decision of X (Re), 2015 CanLII 72857 (CA IRB), addresses similar circumstances: API [advance passenger information] requirements which have been in effect for years, in conjunction with the highly effective Golden Shield program, makes it, on a balance of probabilities, unlikely a wanted person could depart China from an international airport using a passport with his own name, date of birth, and photograph in it. The likelihood of bribing so many people as would be involved in a person's departure is miniscule. From the person selling the ticket, to the check in counter, to the security checkpoint, the customs and immigration people onto the person who checks the Boarding pass, all of these people may be randomly in place and make it nearly impossible for anyone to know who to bribe at what point. It is simply implausible that a wanted man will escape China on his own legitimate documents.13 [30] While there is documentary evidence that indicates that corruption exists within the police force in China, and that authorities in China do not always apply regulations evenly, the RAD finds that the preponderance of the documentary evidence does state that authorities at borders conduct thorough screenings. The RAD is aware that there is evidence in the record which establishes that there is corruption in China. However, the RAD notes that the very comprehensive Australian Background Paper on Corruption in China14 makes no mention that corruption extends to the airport security apparatus'. The RAD further notes that there is insufficient evidence elsewhere in the National Documentation Package or in the Appellant's disclosure which establishes that corruption extends to the airport security apparatus. The objective evidence states that corrupt practices are evident in many areas of Chinese society, but most sources agree that corruption problems are concentrated in sectors with extensive state involvement, such as construction, land use, infrastructure, property development and banking. The "Former Chinese Premier, Wen Jiabao, said in March 2012 that corruption tends to occur frequently in departments that possess great power and in areas where the management of funds is centralised."15 [31] The panel has considered the documentary evidence which states that over the past few years it has been easier to obtain travel documents from Chinese authorities. However, it is noted that certain individuals are still excluded, including those who have been convicted or who are being monitored by the police. As well, in March 2008, the General Administration of Civil Aviation of China (CAAC), China's aviation regulator, reportedly introduced new security regulations. The regulations prohibit "easy boarding" services, which had previously allowed passengers to obtain faster security checks and priority boarding. According to a July 2012 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.16 [32] According to the Appellant, he left China using his own passport. This information would have been provided to Chinese authorities by the airline on which he traveled. The requested information includes: name, nationality, gender, date of birth and passport number and expiration date. [33] The RAD again notes that a passport must be shown multiple times at the exiting airport when traveling internationally, including the initial check-in with the airline. The RAD finds it highly improbable that the smuggler would have prior knowledge of whom to bribe in order to facilitate safe travel through each checkpoint. The RAD finds that, in light of the Appellant's allegation that he was wanted by Chinese authorities and in light of the evidence of the vigorous pursuit of the PSB, it is reasonable to expect that the local authorities would have entered his information into the database to further their efforts to apprehend him. [34] The RAD finds that the RPD is entitled to make reasonable findings based on implausibility, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.17 Where the RPD 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.18 In this case, there is an evidential foundation for the RPD's findings. [35] The RAD finds that the objective evidence concerning the Golden Shield and other border controls in place in China is compelling and convincing. After its own review and assessment of the evidence, the RAD finds that the Appellant's evidence that he was able to exit China using his own passport remains inconsistent with the documentary evidence in the record. The RAD agrees with the RPD's findings that it is not credible or plausible that the Appellant would be able to leave China using his genuine passport if he was wanted by the authorities. The RAD finds that the Appellant's ability to exit China undermines his central allegation that he was wanted by the PSB for participation in the Church XXXX XXXX XXXX. [36] This finding is also supported by Federal Court decisions (Zeng, Su, and Cao),19 in which the Federal Court has supported findings that traveling unimpeded through Chinese exit controls is inconsistent with being wanted by Chinese authorities. Raid of the House Church [37] The Appellant testified that two of his fellow practitioners were arrested by the PSB when the house church was raided on XXXX XXXX, 2016. He testified that when they were at the service in a fellow worshipper's house, the group leader received a phone call saying that the police were approaching. He testified that he ran over the fence to the neighbour's property, where he hid inside a toilet.20 A few minutes later, he saw the police arrest two people including his friends. The police also searched the backyard where he was hiding. He alleged that he remained in hiding for thirty minutes in the neighbour's backyard. [38] The RPD noted the inconsistency between the Appellant's oral testimony and written testimony in his Basis of Claim (BOC) narrative. The RPD noted the Appellant only mentions that he ran away from the underground church service when he heard the sirens of the police cars approaching. His explanation was that he did not describe that detail. The RPD rejected the explanation and found the Appellant's allegations concerning the raid of his house church was not credible. The Appellant does not contest the RPD's finding in this regard [39] After its own reviews and assessment, the RAD finds it reasonable to expect that if the Appellant had witnessed two of his fellow practitioners being arrested by the PSB, he would have included this important fact in his BOC narrative. In addition, the RAD notes the material differences in how he alleged he knew the police were coming to raid the church. The RAD finds that the inconsistency between the Appellant's oral testimony and BOC narrative with regard to the alleged raid of his house church significantly undermines the credibility of his allegations in this regard. [40] The RAD further finds that in light of the foregoing findings, on a balance of probabilities, the Appellant's allegation that he was a member of an underground church XXXX XXXX XXXX is not credible. Activities in Canada [41] The RPD drew an adverse inference from the Appellant's testimony with regard to his church activities in Canada. The RPD noted that when asked about what religious activities he does with his fellow worshippers he has met in Canada, he stated that they pray, sing hymns, listen to sermons and discuss the words of God. The RPD noted that the Appellant failed to mention evangelizing. The RPD noted that the Appellant tendered letters of support from his fellow practitioners in Canada which stated that they evangelize together. [42] The Appellant submits that the RPD finding was based on a microscopic analysis. He argues it was an error for the RPD to draw an adverse finding based on the omission of a singular activity that he undertakes with fellow worshipers. He argues that he did testify about spreading the gospel to others and handing out flyers. [43] The RAD finds that the Appellant's argument has merit. The RAD agrees that the RPD's finding was microscopic in nature and should not have resulted in an adverse credibility finding. There was other evidence before the RPD that the Appellant engaged in evangelizing. Religious knowledge and Identity [44] The RPD found that while the Appellant did have some knowledge of the basic tenets of his religion, he is a not a genuine follower of the Church XXXX XXXX XXXX. The RPD found that there were some inconsistencies and difficulties expressing his knowledge of his religion. [45] The Appellant submits that the RPD erred in drawing its adverse inferences with regard to his religious knowledge by misapprehending his testimony and by applying a microscopic and trivia based analysis of his knowledge. [46] The RAD finds that notwithstanding the allegations of error, the RAD finds that merely having some information regarding basic teachings and practice, or the lack of such information, does not necessarily reflect genuine or false practice. While it is true that the Appellant did demonstrate some knowledge of the religion, the RAD notes that the Appellant has alleged that, since shortly after his arrival in Canada, he has been attending a church on a regular basis. Given the extent to which he alleges he has been practicing and studying in Canada, the RAD finds that the knowledge he possesses could easily have been gained in Canada. The RAD finds that little weight can be given to the Appellant's ability to answer questions about the Church XXXX XXXX XXXX XXXX XXXX stated by the RPD in its reasons, even though the Appellant was able to correctly answer some questions put to him about his alleged faith, those correct responses could not overcome the serious credibility findings. The RAD notes that the RPD has made serious credibility findings about the Appellant's central allegations. The RAD has agreed with those findings and has found that that the Appellant was not an adherent to the Church XXXX XXXX XXXX in China and he is not being pursued by the authorities in China for his religious activities. IN SUMMARY [47] Having reviewed all the evidence in this appeal, the RAD agrees with the RPD, on a balance of probabilities, that the Appellant is not a genuine practitioner of the Church XXXX XXXX XXXX XXXX The RAD further agrees with the RPD, on a balance of probabilities, that the Appellant is not wanted by the authorities in China because XXXX XXXX XXXX sect Christian activities, or for any other reason. [48] Accordingly, the RAD finds that the Appellant has not satisfied his burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture. CONCLUSION [49] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau June 27, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (31 October 2016), item 10.4, Response to Information Request (RIR) CHN104762.E, and item 14.3, RIR CHN104761.E. 3 Ibid., NDP for China (October 31, 2016), item 3.24, RIR CHN105049.E. 4 Ibid., NDP for China (October 31, 2016), item 3.24, RIR CHN105049.E. 5 Ibid., NDP for China (October 31, 2016), item 14.3, RIR CHN104761.E. 6 Ibid., NDP for China (October 31, 2016), item 10.4, RIR CHN104762.E. 7 Ibid., NDP for China (October 31, 2016), item 14.3, RIR CHN104761.E. 8 Ibid. 9 Ibid., NDP for China (October 31, 2016), item 10.4, RIR CHN104762.E. 10 Ibid. 11 Ibid., NDP for China (October 31, 2016), item 12.28, RIR CHN105282.E. 12 Ibid., NDP for China (October 31, 2016), item 3.24, RIR CHN105049.E. 13 X (Re), 2015 CanLII 72857 (CA IRB), at para. 23. 14 RPD's Record, NDP for China (October 31, 2016), item 7.4. 15 Ibid. 16 RPD's Record, NDP for China (October 31, 2016), item 14.3, RIR CHN104761.E. 17 Kipa Numbi v. Canada (Citizenship and Immigration), 2012 FC 1037, at para 19. 18 Miral v. Canada (Citizenship and Immigration), 1999, at para 14. 19 Zeng v. Canada (Citizenship and Immigration) 2014 FC 1060, at para 32; Su v. Canada (Citizenship and Immigration), 2015 FC 666, at para. 17; Cao v. Canada (Citizenship and Immigration), 2015 FC 315, at para. 19. 20 Presumably in the backyard of the home --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-05019