TB6-04397

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 : TB6-04397 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 15, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Diane B. Coulthard Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), 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, asking the RAD to substitute a positive determination, or in the alternative, remit the matter to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background [3] The Appellant's claim is based on his political opinion. He received a notice from the government that they would be expropriating his XXXX XXXX to build a large residential plaza. Although the government was offering compensation for the expropriation, the Appellant alleges that the compensation was far less than the sum which was provided on a business estimate report relating to the property. [4] The Appellant alleges that he attempted to negotiate with the government; however, this did not result in success. The Appellant, along with others who were affected, protested when the government attempted to access XXXX XXXX. The Appellant alleges that this first occurred on XXXX XXXX, 2015 and again the day following. The Appellant alleges that the standoff between the group and the Public Security Bureau (PSB) on XXXX XXXX, 2015 lasted five hours, and the PSB officers began to beat and arrest the crowd of protesters when they began shouting about police corruption. [5] The Appellant alleges that he ran away to avoid being arrested and hid at his cousin's house. He alleges that a summons was left for him at his home and the PSB has been in pursuit on many occasions. With the assistance of a smuggler, the Appellant left China. ROLE OF RAD [6] Counsel has made no submissions on the role of the RAD. The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides us 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 justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. SUBMISSIONS BY THE APPELLANT * Did the RPD err in fully integrating into its analysis the fact that the Appellant has only 5 years of education? * Was the RPD microscopic in its analysis of hearsay evidence? * Was the RPD overzealous in finding against the Appellant as it failed to provide sufficient weight to the fact that the Appellant was clear, consistent, and forthright with all evidence which related directly to him? * Did the RPD err in failing to properly assess the Appellant's explanations? * Did the RPD err in its expectation as to what the Appellant knew was written in his BOC? Summons [7] The RPD found that the greatest credibility issues arose with respect to the timing of the arrival of the Appellant's summons, discrepancies between the Appellant's oral testimony and his BOC as well as within his testimony. [8] The RPD noted that the Appellant testified that he spoke to his wife on XXXX XXXX, 2015, and during this phone call, she told him that the PSB had come looking for him. In response to the RPD's question as to when the summons was left, the Appellant testified that they came to the house on XXXX XXXX, 2015. However, in light of the fact that the summons submitted to the RPD is dated XXXX XXXX, 2015, the Appellant was asked for an explanation for this discrepancy. He responded that the summons had been left with his wife on XXXX XXXX, 2015. When questioned again in this regard, given the date of XXXX XXXX, 2015 which appears on the summons with instructions to appear on XXXX XXXX, 2015, the Appellant then responded that the summons had been left on XXXX XXXX, 2015. Given the shifting testimony as to when the alleged summons was left with his wife (XXXX XXXX, XXXX, and XXXX), each of which was internally inconsistent, and the Appellant's inability to provide an explanation both to the RPD and through his counsel, the RPD found, on a balance of probabilities, given the significance of this date, the testimony with respect to the PSB having visited his home and leaving a summons, as alleged, was called into question. [9] Although the RPD considered the Appellant's explanation that he heard of this event through his wife and cousin and he was not present when the summons was left at his home, after much questioning, it found that the Appellant ought to have remembered such a significant event, the date of which was submitted by way of corroborative evidence. [10] The Appellant submits that the RPD was microscopic in its assessment of the foregoing evidence and that it did not properly consider the Appellant's explanation that he was not present when the summons was left at his home, and this was, therefore, hearsay evidence. [11] Upon review of the audio recording, the RAD concurs with the RPD that the Appellant's testimony was ever changing on this issue. The copy of the summons submitted by the Appellant clearly states the date of XXXX XXXX, 2016, and it therefore begs the question as to why the Appellant's testimony was internally inconsistent. However, the RAD finds that there may have been confusion between the date of the phone call from the Appellant's wife and the actual date of the summons, although that does not explain the date of XXXX XXXX. The RAD concludes that this, alone, does not sufficiently detract from the Appellant's credibility and it concurs with counsel that given the Appellant's limited education, some allowances ought to be made. It is, however, a significant date and although the Appellant was not present, the RAD finds that counsel's argument that this was hearsay evidence, and therefore easily misunderstood, is an argument without merit. The RAD finds that to accept this argument would be to accept any hearsay evidence regardless of any discrepancies surrounding it. Moreover, the RAD notes that the Appellant was cautioned that if he did not know the answer to a question, that he should simply indicate that he did not know, rather than guess the response. [12] More importantly, however, is the actual summons itself. The RAD notes the summons tendered by the Appellant is a non-coercive investigative summons issued under the authority of Article 82 of the Public Security and Administrative Punishment Law of the People's Republic of China (PSAPL). The RAD also notes that the Appellant did not respond to the summons left with his wife, and the Appellant has not tendered a coercive summons. The RAD finds that, given the Appellant's evidence2 that the PSB continues to pursue him by returning to his home, it is reasonable to expect that a coercive summons would have been issued when the Appellant failed to report. [13] The RAD finds that the absence of a coercive summons, when it is reasonable to expect that one would have been left with the Appellant's family, as was the case of the initial summons, undermines the genuineness of the summons the Appellant tendered. [14] While it is problematic that the RPD did not appear to conduct an independent assessment of the Appellant's summons,3 the RAD finds that, in light of the jurisprudence established in Huruglica,4 the RAD is required to conduct its own assessment of the corroborating documentary evidence. [15] The RAD concludes that the issuance of a non-coercive subpoena is inconsistent with the Appellant's allegation that he is being pursued to be arrested by the PSB. PSB Visits [16] The RPD noted that initially the Appellant testified that the PSB had visited his home on three occasions, namely, XXXX XXXX, 2016 and the two earlier visits in XXXX, 2015. However, the RPD noted that later in his testimony, the Appellant stated that the PSB had also visited his home on XXXX XXXX, 2015, the day of the standoff with the PSB officers, for a total of 4 visits. [17] The RPD drew a negative inference on this issue for three reasons, namely, that the Appellant failed to mentioned the XXXX XXXX visit in his BOC, this fourth visit was inconsistent with his earlier testimony of three visits, and lastly, that the Appellant's BOC indicates that the PSB "continuously went to my house looking for me." [emphasis added]5 [18] The Appellant submits that the number of visits by the PSB was information provided to him by his wife and cousin. It is, therefore, submitted that this is also hearsay evidence and given the Appellant's limited education, the RPD conducted a microscopic analysis in this regard. [19] The RAD unequivocally does not accept counsel's argument in this regard. The RAD finds that the Appellant stated in his BOC that the PSB were continuously in pursuit. This is the document upon which the Appellant relied when he made his refugee claim. The RAD concurs with the RPD that the Appellant's testimony surrounding this issue was internally inconsistent, however, more importantly, the RAD finds that the BOC suggests something quite different from his testimony. The RAD finds that the pursuit by the PSB is called into question as a result. [20] Upon review of the audio recording, the RAD finds it significant that there are discrepancies surrounding the visits by the PSB and this, along with the lack of coercive summons, leads the RAD to conclude that the PSB is not, in fact, in pursuit of the Appellant. The RAD finds that these issues go to the heart of the claim, namely, why the Appellant allegedly left China, and why he fears returning to China. The Appraisal [21] The RPD noted that the Appellant testified that the appraisal of his XXXX XXXX was completed by XXXX XXXX XXXX XXXX., a name which is similar to the company name listed on the translated Business Estimate Report (appraisal) - XXXX XXXX XXXX XXXX XXXX XXXX.6 In light of the fact that the BOC stated that "on or about XXXX XXXX", the Appellant went to a property appraisal company called XXXX XXXX XXXX XXXX, thereby contradicting his testimony and the Business Estimate Report, the Appellant was asked for an explanation. He responded that it "could be that the first time he provided a more general company name." When questioned further, the Appellant explained that his intention was only to write that the appraisal was done by a company in XXXX. The RPD rejected the Appellant's explanation. [22] The Appellant submits that the RPD was overzealous in expecting that he could read and understand English, and in particular, the use of capital letters to denote a proper name. Moreover, it is argued that the Chinese language does not use the alphabet, but rather it uses symbols to express written thought. Accordingly, it is submitted that the Appellant would not have known or understood that the words translated to him were written as a proper name on his BOC. [23] The RAD concurs with the Appellant that the RPD was overzealous with respect to the name of the appraisal company. However, the RAD does not find that this discrepancy, which it considers to be minor, is fatal to the RPD's overall finding of this claim. Receipt of Documents [24] The RPD further drew a negative inference with respect to the authenticity of the documentary evidence, as well the Appellant's credibility, due to a discrepancy between the Appellant's testimony and the documentary evidence of how he received the corroborative evidence to support this claim. [25] The Appellant provided a number of names of individuals who had sent the documents. His testimony included the following: His wife's mother was sick so she asked somebody else, his wife asked XXXX XXXX, then he said "maybe" this was a relative from his wife's side, followed by a more definitive response that he recalled that his wife had told him that she did not have time so she asked a relative to send the documents. [26] The RPD asked the Interpreter to provide the name listed on the envelope: an individual named XXXX XXXX.7 When asked to explain the discrepancy, the Appellant testified that XXXX XXXX had asked another person to send these documents, and he had learned this through a telephone call around XXXX XXXX, 2016, which contradicted his earlier testimony. In light of these discrepancies, the RPD drew a further negative inference with respect to the Appellant's testimony as well as the genuineness of the documentary evidence, in conjunction with the prevalence of fraudulent documents in China. [27] The Appellant submits that the identity of the sender of the documents does not go to the heart of the claim, and further, it is hearsay information. Accordingly, it is submitted by the Appellant that this finding is insufficient to detract from his credibility and conclude that the authenticity of the documents in general are called into question. Moreover, it is submitted that to reject the documents on the basis of the prevalence of fraudulent documents emanating from China, is erroneous. [28] On the latter point, the RAD concurs with the Appellant that while there is a prevalence of fraudulent documents emanating from China, this is no reason to reject the authenticity of corroborative evidence submitted by the Appellant on this basis. The RAD does, however, concur that the Appellant's shifting testimony was of concern; however, it also finds that the identity of the individual who sent the package containing the documents, does not go to the heart of the claim. The Expropriation of Property and Confrontation with the PSB [29] The RAD further finds upon review of the audio recording that, while the Appellant allegedly participated in a demonstration, he left the scene without incident, notwithstanding the fact that he was at the front of the demonstration where allegedly others were arrested.8 [30] The RAD finds that the Appellant has not provided sufficient credible and reliable evidence that he is being pursued by the PSB, given the credibility issues surrounding the summons and the PSB visits. [31] The RAD finds, on a balance of probabilities, and based on the foregoing negative credibility findings, that the Appellant's allegation that he was involved in demonstrations arising from the expropriation of his property is not credible. [32] In the alternative, if the RAD were to find that the Appellant's allegation of PSB pursuit is credible, the RAD finds that he would face prosecution based on the fact that he has broken a law of generalized application by demonstrating against the actions of government officials in carrying out their duty, and he is not facing persecution. [33] The RAD finds that, even if the Appellant is being pursued for his participation in the alleged demonstration, he has broken a law of generalized application, one that applies to the whole population without differentiation. The RAD notes that the Federal Court of Appeal, in Zolfargharkhani,9 states that "some general propositions relating to the status of an ordinary law of general application in determining the question of persecution". [34] The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.10 [35] The Federal Court of Appeal, in Zhu, states that an ordinary law of general application, even in non-democratic societies, should ... be given a presumption of validity and neutrality, and the onus is on the claimant, as is generally the case in refugee claims, to show that the laws are either inherently or for some other reason persecutory.11 [36] The RAD finds, based on the evidence tendered by the Appellant, that if he is wanted by the PSB, he is wanted for an unlawful act. The RAD further finds, on a balance of probabilities, that the Appellant would be, at most, prosecuted in China for participation in a demonstration. [37] The RAD finds, on a balance of probabilities and based on the totality of evidence tendered by the Appellant, that, at most, he would be prosecuted for obstructing government officials, namely, disallowing them through to the property and then engaging in a demonstration against them. The RAD further finds that the IRB's National Documentation Package (NDP) states that "in China, demonstrations require prior permission, which is rarely granted." 12 [38] The panel finds that one may apply for a permit to demonstrate, but public behaviour is also governed by a series of "administrative penalties." The RAD notes the maximum fine associated with these offences does not appear to rise to the level of persecution. [39] The RAD believes that while the maximum term of imprisonment of three years may be greater than what a similar situated offender in Canada would have obtained, it would still not offend international standards. [40] Assuming that the Appellant would be incarcerated on conviction, the RAD has considered what prison conditions he 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.13 However, according to the documentary evidence:14 China will further strengthen supervision over criminal proceedings, punishment execution and supervision, so as to guarantee the legal rights of detainees. -- Guaranteeing the rights and humane treatment of the inmates and improving legal stipulations concerning the management of prisons. The system of a bed for one inmate will be gradually adopted and medical care for prison inmates will be socialized so as to ensure an inmate gets timely treatment when ill. -- Preventing unnecessary detention. After a suspect or defendant is held in custody, the related people's procuratorate should review the necessity of the detention. Once it concludes the detention is not necessary, it should advise the organ that investigates the case to release the suspect or defendant, or change the compulsory measure adopted. -- Strengthening supervision over the time limit of criminal detention. The people's procuratorats should conduct supervision over the organs of criminal investigation to strictly implement the system of detention change, the warning and notifying system when the time limit of detention is going to expire and the accountability system for overdue imprisonment. Efforts will be made to prevent and settle cases involving prolonged detentions and urge the investigation organs to conclude cases that have long exceeded the time limit of detention. [41] The RAD finds that, after conducting an independent assessment of the entire record, the evidence, and the RPD's reasons, it concurs with the RPD, although for different reasons, that the Appellant is not a Convention refugee or a person in need of protection. [42] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) "Roslyn Ahara" Roslyn Ahara June 15, 2016 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, p. 24, BOC narrative, paras. 13-14. 3 Exhibit RPD-1, RPD's Record, RPD's Reasons, paras. 9-11. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 5 Exhibit RPD-1, RPD's Record, p. 24, BOC Narrative, para. 14. 6 Exhibit RPD-1, RPD's Record, pp. 248-249. 7 Exhibit RPD-1, RPD's Record, p. 263. 8 Exhibit RPD-1, RPD's Record, pp. 23-24, BOC narrative, paras. 11-12. 9Zolfagharkhani, Fereidoon v. M.E.I. (F.C.A., no. A-520-91), Hugessen, MacGuigan, Décary, June 15, 1993. Reported: Zolfagharkhani v. Canada (Minister of Employment and Immigration) [1993], 3 F.C. 540; (1993), 20 Imm. L.R. (2d) 1 (C.A.), at 552. 10Cheung, Ting Ting v. M.E.I. (F.C.A., no. A-785-91), Mahoney, Stone, Linden, April 1, 1993. Reported: Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.); (1993) 19 Imm. L.R. (2d) 81 (F.C.A.), at 319. 11 Zhu, Yong Liang v. M.E.I. (F.C.A., no. A-1017-91), MacGuigan, Linden, Robertson, January 28, 1994, at 2-3. 12 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), item 2.12. 13 Ibid., item 2.1, 14 Ibid., item 2.5, p. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-04397