TB6-05609

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 : TB6-05609 TB6-05610 TB6-05611 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (A.K.A. XXXX XXXX) XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 20, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M Lewis 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 XXXX (the Appellant) and XXXX XXXX XXXX and XXXX XXXX (the minor Appellants), citizens of China, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted new evidence in support of their claims. They have not requested an oral hearing. The Appellants request that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that they are Convention refugees or persons in need of protection. Alternatively, the Appellants request that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. Background [3] The Appellant's first child was born in 2000 and the Appellant was forced to wear an intrauterine device (IUD) which was very uncomfortable. The Appellant alleged that she was found to be pregnant during an IUD checkup on XXXX XXXX, 2006, and forced to have an abortion. Her IUD caused pain and she took medication to ease the pain. She asked the Family Planning Office (FPO) to remove the IUD XXXXtimes within 2007 and 2008, but she was refused. She was told that the alternative was sterilization by injection. Because of the pain she agreed, and in XXXX XXXX XXXX 2008 she was sterilized in this way. She no longer had to attend pregnancy checkups. She also was advised by a friend that if she drank a special tea after the injection that it would offset the effects of the injection. [4] In XXXX 2012, she found out she was pregnant. In XXXX 2012 she went into hiding at her aunt's home and her son was born on XXXX XXXX, 2012. Her son was left with her aunt when he was XXXX XXXX old. [5] On XXXX XXXX, 2015, the FPO discovered her son and on the same day the FPO came to the Appellant's home to locate her and her husband for sterilization within three days. They were not at home at that time and when they were informed they went into hiding. The Appellant's aunt was detained for a day and fined 5000 RMB. The FPO delivered a notice for sterilization and a fine. [6] Subsequently the Appellant's daughter was suspended from her school, a smuggler was found and the Appellants left China on XXXX XXXX, 2015. [7] After their arrival in Canada they learned that the FPO continues to look for them. [8] The Appellant fears sterilization, a big fine, the inability of her children to attend school and being forced to wear an IUD if the Appellants were to return to China. The Issues [9] The panel indicated the determinative issues in regard to these claims are the following: a. Are the Appellants credible? b. Have the Appellants proven there is a serious possibility of persecution or a risk to their lives or of cruel and unusual treatment or punishment or torture if they are returned to China? [10] The Appellants submit the issues in this appeal are the following: a. Did the panel err in its assessment of the Appellants' credibility? b. Did the panel err in its assessment of the Appellants' supporting documents? c. Did the panel err in finding that the Appellants lacked a forward-looking risk of persecution in China? The Role of the RAD [11] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [12] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [13] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [14] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [15] A decision of the Federal Court of Appeal2 has confirmed the central elements of Huruglica. The Court held that the RAD should use the correctness standard in respect to questions of fact, law and mixed fact and law. The RAD is to intervene when the RPD is wrong in fact, law and mixed fact and law. The Court further stated that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact and mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. The Court stated as well that an appeal to the RAD is not a true de novo proceeding. It does not start anew and the original decision is not ignored in all respects. [16] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. [17] The RAD notes the Appellant provided a brief analysis of the standard of review which should be applied in this case. The RAD has provided above a reference to the Federal Court jurisprudence that guides its review and decision as to the case at bar. Admissibility of Evidence presented on Appeal [18] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of the claim. [19] The Appellant submits two documents as proposed new evidence: a. A lifenews article titled: China Aborts 23 million Unborn Babies Every Year, Forced Abortions Continue Unabated, dated April 15, 2016.3 b. An internet article titled: What will happen to China's undocumented "ghost children" after the one-child policy ends? The RAD notes there is no date on this article but it refers to Thursday when China ended its one child policy. As this decision was announced on October 29, 2015, it is reasonable to assume the article was published in that week. There is no evidence of a later date in any of the other sources cited in the article.4 [20] The panel notes that document 'a' was published two days after the RPD decision and it has met the statutory requirements. The RAD therefore finds this document is admitted as new evidence. [21] The RAD notes that document 'b' was likely published in late October or early November 2015, well before the RPD made its determination in this case. The RAD finds that this document does not meet the statutory requirements noted above and therefore it is not admitted as new evidence. [22] The RAD further notes that even if document 'b' had been admitted, its contents are not material to the central issue in this claim. The document indicates that it is not clear what will happen to undocumented children as a result of the new two-child policy. It further notes there might be a significant decrease in the fine for parents with a second child. It further indicates a lack of knowledge as to whether the new policy will be retroactive. In general the article reviews possibilities while noting a lack of knowledge and information regarding prospects for the future. [23] In regard to the 'ghost children' issue, the RAD has disclosed an article, dated April 8, 2015, titled: End of China's one-child policy is slowly giving 'ghost children identities.5 The article provides evidence indicating the 'ghost children' problem is being remedied. The RAD deals with this evidence in the 'Forward-looking' risk section of these Reasons below. Credibility Travel to Hong Kong [24] The panel noted inconsistencies regarding the Appellants travel to Canada. The Appellant testified she travelled from XXXX to XXXX by XXXX and then XXXX to Hong Kong. The panel further noted that in the Appellant's Port of Entry (POE) interview she stated that she and her children went to Hong Kong by XXXX. In her Schedule 12 form,6 prior to being amended, the Appellant stated they travelled from XXXX to Hong Kong by XXXX. The Panel noted as well that when an immigration officer pointed out the discrepancy, the Appellant initially refused to provide details of her departure and then changed her story by stating she went from XXXX to XXXX by XXXX, and met an agent with whom she travelled to Hong Kong. [25] The Appellant was asked why her story changed regarding the trip to Hong Kong and she explained that her children were noisy and she did not understand the questions. The panel noted the question was asked a number of times and the Appellant reiterated her explanation about not understanding the question. [26] The panel drew a negative inference regarding the Appellant's credibility as a result of the inconsistencies in her responses, her initial refusal to clarify this information with an immigration officer and her evasiveness in responding to the panel's questions. Cost of smuggler [27] The panel noted the Appellant testified she paid $45,000 to the smuggler which included the cost of travel. The panel further noted that in her POE interview she stated that she paid the smuggler $4500 which did not include the cost of travel. However she was shown her Schedule 12 form which indicates she paid $45,000.7 The Appellant agreed she paid $45,000 which included air travel. In response to the panel's question, the Appellant explained she made a mistake because her children were crying. [28] The panel rejected the Appellant's explanation and drew a negative inference on the basis of the inconsistencies between her testimony and documentation. Relatives' address [29] The panel noted the Appellant stated her in-laws lived in XXXX which differs from the address in her hukou, XXXX. The Appellant explained she must have misunderstood the question and then denied she had said XXXX and suggested the interpreter must have interpreted improperly. The panel confirmed the interpretation with the interpreter and drew a negative inference as the Appellant alleged she lived with her in-laws. The panel noted that the fifteen year old minor Appellant was unable to provide her home address in China. The panel further noted the minor Appellant was able to answer other questions and agreed she lived with her family including her grandparents. The panel found it unlikely that a fifteen year old would not know her home address. Alleged fines [30] The panel noted the Appellant received several documents allegedly sent by a friend of her mother-in-law. The Appellant listed the documents including one which she referred to as a fine for her daughter. Counsel acknowledged that the Appellant stated her daughter's fine document. [31] The Appellant explained that she referred to her daughter's suspension letter and spoke of her fine document. The Appellant further stated there was no fine document for her daughter and also stated it was her aunt's fine document. The Appellant also denied saying her daughter's fine document and suggested it was an interpretation issue. [32] The panel noted it had conferred with the interpreter twice in this regard and both times the interpreter checked her notes and confirmed the Appellant stated her daughter's fine. The panel drew a negative inference as to the Appellant's credibility. The panel found as a result that the Appellant's allegations regarding the breach of the one-child policy is fabricated. [33] The Appellants noted the panel's findings concerning the cost of hiring a smuggler, whether the Appellant was fined for her son or daughter and whether her in-laws lived in XXXX or XXXX. The Appellant further noted how difficult it was at times for her to understand the questions in the hearing. It is noted as well that counsel in the hearing indicated the Appellant may have some difficulty in communicating with the interpreter and she was distracted by her children. The Appellants argue that natural justice requires that a claimant have the opportunity to be heard without distractions. [34] The Appellants submit that a refugee claimant's testimony need not be flawless in order for the claim to be established. The Appellants further submit the minor inconsistencies concerning the address of the Appellant's in-laws and the cost of the smuggler are not material to the claim for protection itself. [35] The Appellant argues the panel engaged in microscopic examination related to the issues noted above that do not bear directly on whether the Appellant has a genuine fear of persecution in China due to violation of family planning policies. [36] The RAD has reviewed and assessed all of the evidence concerning the Appellant's responses to questions in regard to travel to Hong Kong, the amount paid to the smuggler, the address of her in-laws where she lived and the fine for an out-of-plan birth. The RAD acknowledges that individually these inconsistencies may be considered minor, but cumulatively the RAD finds they do raise a question as to the Appellant's credibility. [37] The RAD notes that the questions were repeated and although the Appellant suggested there was an interpreter problem, it was determined there was no error on the part of the interpreter. The RAD further notes that the Appellant gave inconsistent testimony in two different locations, in her POE interview and in the hearing. While the minor Appellants may have been distracting, the RAD finds there is no apparent credible reason why the Appellant would not have been able to state correctly where she lived, how she travelled to Hong Kong, whether the fine was the result of her daughter's or her son's birth and how much she paid the smuggler. [38] The RAD finds, on the basis of its review of the evidence in the record, that it was open to the panel to draw a negative inference in this regard. The RAD further finds however, that while the evidence above may result in a negative inference, it is insufficient as a basis to find that the Appellant's allegations regarding the breach of the one-child policy are fraudulent. Passport and Boarding Passes [39] The panel noted the Appellant was unable to provide documentation as to their travel to Canada. The Appellant explained they travelled on false Hong Kong passports and that the passports and boarding passes were taken by the smuggler. The Appellant was asked if she had luggage tags and she stated the smuggler took all the documentation and that there were no luggage tags because they brought no luggage. [40] The panel cited the decision of the Federal Court in Elazi in which the Court stated that it was reasonable for the RPD to attach importance to a claimant's passport and air tickets. The Court further stated that, Minimizing the importance of the passport and air ticket as documents to be produced or ignoring their non-submission for all sorts of reasons in my opinion only serves to encourage all those whose only purpose is to take advantage of a system which is intended solely to enable genuine refugees to come to Canada.8 [41] The panel drew a negative inference as to the Appellants' credibility on the basis of their inability to provide corroborating evidence regarding their trip to Canada. [42] The Appellants submit that the panel erred in finding that the Appellants' were not credible simply because they could not produce the Hong Kong passports and boarding passes. The Appellants note the passports did not belong to them as they were obtained by the smuggler. The Appellants further submit it was reasonable for them to return the documents to the smuggler as demanded because the documents were not their own. [43] The Appellants submits as well that the smuggler relies on clandestine practices and has an interest in concealing the pathways routinely used. The Appellants also submit that there was nothing implausible about their not having luggage tags because they were fleeing China and did not carry lots of luggage. [44] The Appellants argue that the panel's reasons for questioning their credibility in this regard were insufficient. The Appellants further argue the route they took to reach Canada is not material or determinative of their claims. The Appellants submit there is ample corroborative evidence to demonstrate that the risks they alleged exist. [45] The RAD agrees with the Appellants that their failure to provide documentary evidence concerning their travel from China is not determinative of their claims. The RAD acknowledges the Federal Court decision cited by the panel. However in this case, where the passports were fraudulent and the property of the smuggler, the RAD finds that the Appellant's explanation that the smuggler required they be returned is reasonable. The panel's conclusion on credibility [46] The panel found, on the basis of the credibility concerns noted above, that the Appellant is not a credible witness. The panel further found, on the basis of its credibility findings above, that it cannot give weight to the corroborative documentary evidence provided by the Appellant in support of their claims, including medical documents, notice of penalty and sterilization, the official receipt of birth fee, the one child certificate, and Appellant's suspension letter.9 The panel noted in this regard the prevalence of fraudulent documents in China. The panel found as well that the Appellants have not demonstrated a subjective well-founded fear of persecution if they were to return to China. [47] The Appellants submit that the panel erred in failing to look at the totality of the evidence in rejecting their supporting documents based on a finding of overall lack of credibility. The Appellants further submit that Federal Court jurisprudence has held that the Board has a duty to consider and assess supporting documents independently of its previous credibility findings. On the basis of the totality of the evidence. The Appellants cite a number of the Court's decisions in this regard. [48] The Appellants also submit that the availability of fraudulent documents in China does not indicate that the Appellants' documents must be fraudulent. [49] The Appellants submit as well that the panel was satisfied that their identities as citizens of China had been proven by the documentation they provided. The Appellants argue that the panel cannot pick and choose the documents it wants to find credible and not credible based on the availability of fraudulent documents. [50] The RAD notes that while there is no requirement that the panel must comment on all the documentary evidence disclosed in the record, it agrees with the Appellant that the panel should have reviewed and assessed the Appellants' personal documentation, especially before making a global finding as to their credibility. [51] The RAD has reviewed and assessed all of the evidence in the record including the Appellants' personal documentation. The Hukou [52] The RAD notes the Appellant's hukou indicates that the type of household is "XXXX family household." 10 The panel further notes that although the Appellant stated in her BOC that they were urban residents11 and therefore they were not allowed to have more than one child, her hukou suggests the family is officially designated as rural. The RAD finds that documentary evidence indicates that XXXX families were generally allowed two children even during the one-child family period. The Abortion [53] The RAD notes the Appellant has not disclosed an IUD checkup booklet. Rather there are only two documents, each just one page. One document is titled Marriage and childbirth Study Record.12 This first section is blank. The second section is titled Method of operation for birth control and indicates that an IUD was inserted on XXXX XXXX, 2006.13 A third section also titled Method of operation for birth control indicates there was "Method of the operation: injection with medicine" on XXXX XXXX, 2008 and "Remark: Removed IUD/injection with medicine."14 [54] The RAD further notes there is no indication on this page whether this document is part of an IUD checkup booklet, a hospital document or a Family Planning organization document. [55] The RAD notes the second document is one page that appears to be from an IUD checkup booklet. The entries indicating the Appellant was not pregnant are dated from XXXX XXXX, 2007 to XXXX XXXX, 2008.15 [56] The RAD notes the Appellant stated in her BOC that on XXXX XXXX, 2006,16 she was found to be pregnant during an IUD checkup and she was forced to have an abortion. The RAD finds that there is insufficient evidence in the document provided by the Appellant to confirm she was found to be pregnant during a regular IUD checkup. [57] The RAD has reviewed the document titled Birth Control Surgery Certificate.17 The RAD notes that no medical booklet was provided by the Appellant with information in this regard. While this document indicates the surgery took place in a hospital, there is no hospital letterhead and only a signature of a doctor at the bottom and the name of the hospital. The RAD further notes there is no documentation concerning IUD checkups after the birth of the Appellant's daughter in 2000 to 2007. The RAD also notes there is no mention of the alleged discovery of the Appellant's pregnancy in 2006 and of the alleged abortion. [58] The RAD notes that country document evidence in the record indicates that most patients undergoing abortions go to a hospital as outpatients, and outpatient medical records are listed in a small medical booklet. It is further indicated that the booklet is "distributed on a mandatory basis" and retained by the patient. It is indicated as well that "hospitals issue reports [booklets] detailing medical records on abortions, sterilizations, and/or the implantation of a IUD to patients...."18 [59] The RAD notes as well that the Appellant provided pages from a medical booklet19 but they include only references to visits in 2006, 2007 and 2008 concerning symptoms associated with the IUD. In regard to the abortion, the Appellant provided a Birth Control Surgery Certificate20 that is very brief and appears to be only a document certifying that an abortion has taken place, rather than a detailed account of the patient's circumstances. In the document provided by the Appellant there is only a brief statement under the title of "Suggestions" noting she should take two weeks rest and come for a visit when feeling uncomfortable. [60] The RAD notes that the Appellant stated in her BOC that she began having pain associated with the IUD after her daughter was born in 2000. The Appellant further stated that she was told by a doctor that the problem was not serious and she took pain killers. The RAD also notes that there was no mention of the Appellant's health problems associated with the IUD in the 'Suggestions' and finds it likely that this issue would have been raised by the Appellant and noted by the doctor. [61] The RAD cites country document21 evidence which indicates that it is not standard procedure for a hospital to issue a "certificate" after a woman has had an abortion. It is further indicated that some women may request a certificate in order to obtain sick leave or to have hospital expenses reimbursed. The RAD notes that no evidence in this regard was disclosed by the Appellant. [62] The RAD finds, in the context of the analysis above, that there is insufficient credible evidence to find that the Appellant was discovered to be pregnant during an IUD checkup and that she was forced to undergo an abortion. The Dismissal Notices and School Suspension Notice [63] The RAD notes that the school suspension Notice22 for the minor Appellant, XXXX XXXX XXXX, is dated XXXX XXXX, 2015. The RAD further notes that the Notice from the Family Planning Office that they had learned that the Appellant and her husband had an out-of-plan child and a sterilization was required is dated XXXX XXXX, 2015.23 The RAD finds it strains credulity that the school notice would precede the family planning notice. The RAD gives little weight to this document and finds that it raises a doubt as to the job loss Notice for the Appellant.24 [64] The RAD further finds that even if these Notices were valid, in the context of the abandonment of the one-child policy, such decisions would likely not be implemented. The RAD considers the forward-looking situation below. Country Condition Documentation [65] The panel noted it was required to consider whether the Appellants have a residual profile that would place them at risk in China. The panel further noted that family planning laws vary by province and locality and it focused on the Appellants' home province, XXXX. The panel provided extensive citations that indicate that XXXX province has had a lenient approach to family planning and forced abortions and sterilizations are banned at the national level in China. XXXX Regulations further indicates there is no abortion or sterilization requirement for families that have an out-of-plan birth.25 [66] The panel acknowledged that this documentation indicates that some mandatory sterilizations and abortions procedures have been carried out in XXXX province as recently as 2009, 2010 and possibly 2012. The panel noted however there was no evidence available to it that indicated any such occurrences since 2012.26 [67] The panel noted that XXXX Regulations indicate a social compensation fee is charged for out-of-plan children as well as job loss and constraints on promotion possibilities.27 [68] The panel found there was insufficient evidence to establish that the Appellant would be subject to forced sterilization if she were to return to China. The panel notes that documentary evidence indicates that where families have two children, one parent was often pressured to undergo sterilization.28 The panel further notes however that this pressure is different from a written order demanding sterilization, as alleged by the Appellant. [69] The panel noted that forced sterilization is illegal in China, and given the illegality of such actions, even if authorities made such a demand it is unlikely they would do so in writing, as alleged by the Appellant. [70] The Appellant submits that only late term abortions are forbidden, and cites documentary evidence indicating that despite this directive, coercive practices continue to be employed.29 The Appellant cites as well country document evidence indicating that XXXX regulations still require that "unspecified remedial measures" be taken to manage out-of-plan pregnancies and births. The Appellant submits these remedial measures refer to forced abortions or sterilizations.30 [71] In the context of the submissions above, the Appellants argue that the panel erred in finding the Appellant does not have a well-founded fear of persecution by virtue of the fact she comes from XXXX province. The Appellant submits there is no evidence that the prohibition of coercive practices at the national level has any bearing on how FPOs choose to administer family planning rules locally. [72] The RAD agrees with the Appellants that the 2012 national directive indicates that only late term abortions are banned.31 The RAD notes the directive also states that the "...enforcement of family planning policy carried out in brutal way" is also banned. [73] The RAD acknowledges evidence that coercive measures continued to occur in China after this directive was implemented, but finds there is no evidence in the record that they occurred in XXXX province and in particular in XXXX XXXX. In regard to the Appellant's reference to "unspecified remedial measure" which the Appellant submits refer to forced abortions and sterilizations, the RAD notes this statement predates the 2012 directive, and the lack of evidence that coercive measure have been used in XXXX province since 2012 suggests that the directive has been implemented in this province. [74] The RAD finds that, given the variation in family planning regulations and the implementation of the one-child policy, it is necessary to consider the policies of the Appellants' home province in assessing the Appellant's risk of forced sterilization should she return to China. The RAD has reviewed and assessed the documentation in this regard for XXXX province, the Appellants' home province. The RAD notes, as did the panel, that country document evidence indicates that "historically, authorities in XXXX have taken a somewhat relaxed approach to family planning."32 This document further indicates that the Director of XXXX Population and Family Planning Commission applied for approval to be the leader in the country in the relaxation of family planning policy by allowing couples to have a second child if one parent was an only child.33 [75] The RAD notes that articles 49 and 55 of the XXXX Family Planning Regulations indicate that when there is an out-of-plan birth a social support fee will be imposed. This document further indicates that there will not only be a fine for the first additional child but an additional fine for the second out of plan birth.34 [76] The RAD notes that XXXX XXXX, the Appellants' home city, is XXXX XXXX XXXX XXXX Province and the province's largest city. The RAD finds, in the context of XXXX historical flexibility in regard to the implementation of family planning regulations and the indication in those regulations that a social support fee is charged for having an out-of-plan child, that it is likely that officials in XXXX XXXX will follow a national directive and also the province's regulations regarding the use of force in implementing family planning policy. [77] The RAD concurs with the panel's finding that a fine rather than forced sterilization or other harm is more likely than not the kind of penalty that the Appellant would face if she were to return to XXXX. The RAD is guided in this regard by the decision of the Federal Court in Chen35 in which the Court stated that a fine was likely and further noted a long line of jurisprudence to the effect that the "social compensation fee" charged to families that have more than one child is not persecution within the meaning of the Convention. [78] The RAD cites as well the Federal Court decision in Yu36 in which the Court noted that the panel recognized that although forced sterilization and forced abortion are illegal in China, such practices still occur. The Court further noted the panel relied on evidence of conditions in the applicants' province of XXXX and found sufficient safeguards against these forced measures. The Court noted as well that evidence shows that Chinese citizens may be required to pay a monetary fine. The Court also noted the jurisprudence of this Court which has held that such fines do not amount to persecution. [79] The RAD also cites the decision of the Federal Court in Liang37 in which the Court reviewed XXXX family planning documentation and noted that the Regulations indicate that a fine is charged for an out-of-plan birth and the fine is multiplied by the total of out-of-plan children. The Court further noted that documentation indicates that enforcement of family planning regulations vary from region to region and that forced sterilizations still occur in China. The Court noted that the RPD acknowledged the mixed messages and that forced sterilizations had taken place in XXXX province. [80] The Court noted the RPD indicated enforcement of family planning policies varies from region to region and there was insufficient evidence to establish that the applicants would face forced sterilization. The Court found that in this kind of situation where the evidence is not clear, the RPD can do no more than weigh what is available. The Court further found the weighing of evidence is the job of the RPD and the fact that other reasonable conclusions are possible does not render a decision unreasonable. [81] The RAD acknowledges its mandate requires it to review and assess all of the evidence in the record, including the findings of the panel. The RAD has done so and as noted above it concurs with the panel's finding that there is not a serious possibility that the Appellant is at risk of persecution if she were to return to China. In regard to the sterilization Notice38 provided by the Appellant, the RAD notes it cites the Family Planning Policy of XXXX Province as the basis for requiring that either the Appellant or her husband must be sterilized. The RAD notes there is no such requirement in the XXXX policy document. In addition, the RAD finds, in the context of the analysis above, that this document is likely fraudulent. Choice of Contraception [82] The panel noted, as to the Appellant's concern regarding the forced use of an IUD, that XXXX country document evidence suggests that the Appellant could choose her method of contraception and that a refusal to use contraception would result in a fine of less than 200 RMB.39 [83] The Appellant stated in her BOC that she fears being forced to wear an IUD and that family planning officials refused to although her to remove the IUD on numerous occasions. [84] The Appellant submits the panel did not clarify what alternative methods of contraception it had in mind when it indicated the Appellant had a choice. [85] The Appellant cites country document evidence which indicates that migrant women in XXXX province, when applying for a hukou, were required to have an IUD implanted. This document further indicated that women who had newborns in Nanhai District and Foshan, Guangdong province were requested to insert an IUD and there were complaints that officials threatened not to register a newborn child if the mother did not comply. It is also indicated that Baiyun district, XXXX municipality officials withheld hukous for children or welfare disbursements if the mother refused to have an IUD inserted. One district level official indicated there was a link between IUD insertion and hukou registration. However a high level official stated that such a linking was not permitted. [86] The Appellants submit that the panel erred in finding that the Appellant was not at risk in XXXX province because she could select a preferred method of contraception. [87] The RAD acknowledges that the Appellant disclosed medical documentation40 concerning health problems associated with the IUD. The RAD notes this documentation indicates the Appellant visited a hospital in this regard on XXXX occasions between XXXX 2006 and XXXX 2008. [88] The RAD further notes that the Appellant stated in her BOC that she made XXXX requests to the Family Planning Office to remove the IUD but she was refused. The Appellant stated in addition that she was told if she did not want to wear an IUD she could be sterilized by injection. She further stated that she agreed to this procedure and disclosed documentation in this regard. [89] The RAD notes that this document is titled Birth Control Surgery Certificate of Baiyun District, XXXX XXXX, dated XXXX XXXX, 2008.41 The RAD further notes that there is a hospital stamp and a doctor's signature but no information as to the Appellant's condition. Given that the Appellant visited a hospital on multiple occasions and found to have a number of medical problems associated with the IUD, the RAD finds it strains credulity that a document signed by a doctor concerning sterilization would not mention anything about the Appellant's health and circumstances. [90] The RAD has the same concerns about this sterilization document as it had concerning the abortion document noted in paragraphs 53-60 above. [91] The RAD notes that the Appellant stated in her BOC that she made eight requests to family planning officials to have her IUD removed but she was refused each time. The RAD further notes that the Appellant did not provide any supporting evidence regarding these requests and regarding the refusal of family planning officials on eight occasions. [92] The RAD notes as well that the Appellants have disclosed a number of documents which appear to indicate that family planning officials in her area document their decisions. [93] The RAD also notes that neither the Population and Family Planning Law of the People's Republic of China42 nor the Regulations of XXXX XXXX on Population and Family Planning43 indicate that the IUD is the required and only method of contraception to be used in the administration of the family planning system. The primary issue of concern to the authorities appears to be one-child and not the method to achieve this goal. [94] Article 4 of the XXXX regulations states that "both spouses shall have the obligation to practice family planning in accordance with the law and their legitimate rights and interests regarding family planning shall be protected by law." Article 24 states that administrative departments "shall create conditions to guide couples of child-bearing age in knowing and selecting contraceptive approaches." (my emphasis) Article 30 states that "family planning technology services and medical and health institutions engaged in family planning technology services shall provide personnel of child-bearing age with safe, effective and appropriate contraceptive services." [95] The RAD finds, on a balance of probabilities, and in the context of the panel's findings above with which the RAD concurs and also in the context of the country document evidence above, that on a balance of probabilities, if the principal Appellant requested the removal of her IUD and if she provided credible supporting medical documentation, she would not have been denied the opportunity to use an alternative form of contraception, and in any case there would have been a documented response. The RAD further finds the principal Appellant has provided insufficient evidence to rebut the evidence and argument noted above. Payment of the Social Compensation Fee [96] The Appellant noted that the panel accepted that the Appellant and her husband face the risk of the imposition of a social compensation fee, and that the panel found the non-payment of the fee would not cause the Appellant and her husband to face persecution. [97] The Appellants submit that the panel erred in viewing the fees as a standalone punishment when they are part of a coercive system of persecution. The Appellants note the fees can be excessive and exorbitant fees can range from 200,000 to 800,000 yuan in XXXX province. The Appellant further submits that non-payment of the fee can result in the Appellant facing future problems, including but not limited to detention. [98] The RAD has reviewed the evidence in the record and also Federal Court jurisprudence concerning the social compensation fee. The RAD has cited at para 78 above, the Federal Court decision in Yu which states that the Court has held that such fines do not amount to persecution. [99] The RAD acknowledges the Appellant's submission that fines can be exorbitant and rise to 800,000 yuan. The RAD notes however the Appellant has provided documentary evidence of a 60,000 RMB fine44 which suggests that the exorbitant fines noted by the Appellant are either not used in her area or in any case not applied to the Appellant for the out-of-plan birth of her son. [100] The RAD finds, in the context of the analysis above and in particular in the context of Federal Court jurisprudence regarding this issue, that a social compensation fee is not persecutory. The Minor Appellants' Risk [101] The panel found, in regard to the two minor Appellants, that there is no credible evidence before it that indicates they will be unable to continue their education, or be otherwise deprived of social benefits as a result of the Appellant's violation of family planning rules. [102] The Appellant submits the panel erred in dismissing the minor Appellant XXXX XXXX Notice of Suspension without considering the totality of the evidence. [103] The RAD has considered the minor Appellant's suspension Notice. On the basis of the analysis provided above, the RAD concurs with the panel's finding that the minor Appellants would be able to continue with their education if they were to return to China. The Appellants' forward-looking risk of persecution in China [104] The panel noted as well that recent documentary evidence suggests that China is in the process of establishing a more permissive approach that will permit couples to have two children and also suggests that China continues to liberalize its family planning policies. [105] The Appellants submit that the panel failed to bear in mind that the Appellant has already been found to have violated the family planning policies as they existed at the material time. The Appellants note that the FPO already issued a Notice for sterilization against her on XXXX XXXX, 2015. [106] The Appellants further submit that there is no evidence that the introduction of the two-child policy means the Appellant's past violation will be forgiven. [107] The Appellants indicate that the new evidence they provided indicates that the two-child policy will not have retroactive effect and cure past violations of family planning policy. [108] The Appellants cite other country document evidence that states that despite the change in policy, "Chinese women will remain at risk of intrusive forms of contraception and coerced or forced abortions."45 [109] The Appellants submit that the article from lifenews provided as proposed new evidence confirms that forced abortions and mandatory sterilizations will continue to be employed as birth control measures and the only difference will be that they will be employed after a woman has two children rather than one. [110] The Appellants noted that the Appellant already has two children and submit that she may be exposed to the risk of mandatory sterilization or mandatory IUD use if she returned to China, particularly as she has already violated family planning policies. [111] The Appellants submit that the panel erred in dismissing the Appellant's forward-looking concerns as a woman already being sought for violating family planning policies. [112] The Appellants further submit that a substantial risk remains that the Appellant will face coercive birth control measures, whether mandatory sterilization or compulsory IUD use, if she were to return to China as she already has two children and may not have a third. [113] The RAD finds the Appellant's concern about the risk of abortion or sterilization if she were to have a third child is speculative both as to whether she might become pregnant again and also the nature of Chinese and in particular XXXX provincial family planning policy and practice in the future. [114] In regard to the lifenews article cited by the Appellant above, the RAD notes it concerns events that took place in 2015, before the implementation of the two child policy, and also speculation about government policy and practice concerning the birth of a third child under the two-child policy. [115] In regard to whether the new two child policy will be retroactive, the RAD has disclosed an article titled: End of China's one-child policy is slowly giving 'ghost children' identities,46 dated April 3, 2016. The RAD notes this article was written four months after the implementation of the two-child policy and is based on evidence concerning the impact on families with so-called 'ghost children' who have not been allowed registration in the family hukou and therefore access to social benefits because their parents contravened the one-child policy. [116] The RAD notes this article indicates that Chinese citizens with 'ghost children' are now being allowed to obtain legal status for their children and they are allowed to do so without paying punishing fines. [117] The article further notes that some areas in China have registered both second and third-born children. In the city of Shenzhen, a major city in Guangdong province, it is noted that the new era began in January 2016, ahead of the school enrolment season according to local media. It is also noted that that parents are seeing signs that the once-formidable family-planning regime is collapsing. [118] The RAD provided a copy of this article to the Appellant's counsel and indicated counsel should respond with any submissions within one week. Counsel failed to respond and therefore the RAD has made its decision in this regard. [119] The RAD has found, on the basis of its analysis above, that the Appellant will not be at risk of sterilization and her children will be able to continue their schooling if they were to return to China. The RAD further finds that the evidence in this article makes clear that the new policy will likely be retroactive in terms of the risks and penalties associated with the old policy. Disposition [120] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. (signed) "Milton Israel" Milton Israel July 20, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-2, Appellant's Record, at pp. 98-100. 4 Exhibit P-2, Appellant's Record, at pp. 89-93. 5 Exhibit RAD-1. 6 Exhibit RPD-1, RPD's Record, at pp. 76-79. 7 Exhibit RPD-1, RPD's Record, at p. 77. 8 Elazi v.Canada (Minister of Citizenship and Immigration), 2000 CanLII 14891 (FC). 9 Exhibit RPD-1, RPD's Record, Exhibits 8, 9 and 12. 10 Exhibit P-2, Appellant's Record, Household Register, at p. 55. 11 Exhibit RPD-1, RPD's Reason, at p. 18, para. 2. 12 Exhibit P-2, Appellant's Record, at p. 62. 13 Ibid. 14 Ibid. 15 Exhibit P-2, Appellant's Record, at p. 63. 16 Exhibit RPD-1, RPD's Reason, at p. 18, para. 4. 17 Exhibit P-2, Appellant's Record, at p. 66. 18 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (30 October 2015). 19 Exhibit P-2, Appellant's Record, at pp. 70-72. 20 Exhibit P-2, Appellant's Record, at p. 66. 21 Exhibit RPD-1, RPD's Record, NDP for China (30 October 2015). 22 Exhibit P-2, Appellant's Record, at p. 79. 23 RPD-1, RPD's Record, Exhibit 9, at p. 607. 24 Exhibit P-2, Appellant's Record at p. 78. 25 Exhibit RPD-1, RPD's Record, NDP for China, (30 October 2015), items 5.7, 5.15. 26 Exhibit RPD-1, RPD's Record, NDP for China, (30 October 2015), items 5.7, 1.7. 27 Exhibit RPD-1, RPD's Record, NDP for China, (30 October 2015), items 5.14, 2.1. 28 Exhibit RPD-1, RPD's Record, NDP for China, (30 October 2015), item 2.1. 29 Exhibit P-2, Appellant's Record, Memorandum of Argument, at p. 157. 30 Exhibit RPD-1, RPD's Record, NDP for China, (30 October 2015), item 5.15. 31 Ibid. 32 Exhibit RPD-1, RPD's Record, NDP for China, (30 October 2015), item 5.7. 33 Ibid. 34 Exhibit RPD-1, RPD's Record, at pp. 31-34. 35 Chen, Li Xing v. M.C.I (F.C., no. IMM-8158-13), Rennie, February 19, 2015, 2015 FC 225. 36 Yu, Jiahong v. M.C.I (F.C.., no. IMM-3220-14), Shore, January, January 15, 2015, 2015 FC 61. 37Liang, Ai Yan v. M.C.I. (F.C., no. IMM-8066-12), Russell, July 9, 2013, 2013 FC 765, at paras 91-95. 38 Exhibit RPD-1, RPD's Record, Exhibit 9, at p. 607. 39 Exhibit RPD-1, RPD's Record, Exhibit 9, at p. 238. 40 Exhibit P-2, Appellant's Record, at pp. 70-72. 41 Exhibit P-2, Appellant's Record, at p. 67. 42 Exhibit RPD-1, RPD's Record, NDP for China (30 October 2015), item 5. 2. 43 Exhibit RPD-1, RPD's Record, NDP for China, (30 October 2015), item 5.14. 44 Exhibit P-2, Appellant's Record, at p. 77. 45 Exhibit RPD-1, RPD's Record, NDP for China, (30 October 2015), item 5.17. 46 Exhibit RAD-1 (RAD disclosure), The Globe and Mail, End of China's one-child policy is slowly giving 'ghost children' identities, April 3, 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05609 TB6-05610 TB6-05611