TB5-06771

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 : TB5-06771 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 September 16, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine 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, Province of Hunan, is appealing the decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. The appellant has not submitted any new evidence in support of her appeal, nor is she requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. She is, however, asking the RAD to remit the matter back to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. This appeal is dismissed. Background [3] The appellant began dating her boyfriend in 2012, however in XXXX 2013 when she was sick, she discovered that she was pregnant and not allowed to give birth as she was not married, nor had she reached the age of marriage. As a result, the birth control officers told her that an abortion had to be carried out. [4] In XXXX 2014, the appellant found herself pregnant again and she was forced to have an abortion. Moreover, her parents were forced to pay a fine for their daughter's violation of the birth control policies. However, the appellant's parents refused to pay and in XXXX 2014, the officers came to their home demanding the payment and warned them of the consequences if they did not accede to the demands. [5] In the XXXX of XXXX 2014, the appellant became pregnant for the third time. After a discussion with her boyfriend and her parents, she decided to go into hiding at the home of her uncle. While in hiding, the appellant allegedly learned that the birth control officers became aware that she had been to the drugstore and that she was pregnant. With the assistance of a smuggler, the appellant came to Canada. ROLE OF THE RAD [6] The RAD has taken guidance from the Federal Court in Huruglica1 wherein Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT [7] Did the RPD err with respect to the appellant's identity? [8] The determinative issues are identity and credibility. Identity [9] The RPD examined the appellant's identity, applying Section 106 of the Immigration and Refugee Protection Act and Rule 11 of the Refugee Protection Division Rules. [10] The RPD questioned the addresses on both the appellant's hukou and her Resident Identity Card (RIC). Moreover, when questioned thoroughly in this regard, the appellant was unable to provide reasonable explanations for the discrepancies between the addresses on both of the foregoing documents and her oral testimony. The RPD noted the importance of these documents that are used for everyday things, such as school registration and opening a bank account. [11] The appellant submits that the RPD erred in failing to apply a presumption of truthfulness to the appellant's identity documents in accordance with the relevant case law, which establishes that foreign documents should be accepted as evidence of their contents. [12] The appellant further argues that the RPD erred in relying on circumstantial evidence to find that the appellant's RIC and hukou documents were fraudulent, as it had no actual and direct evidence to suggest that the documents were fraudulent. The appellant also submits that the RPD failed to conduct an independent analysis of other documents which supported the appellant's identity, including a birth control certification document, a payment receipt and an official notice. [13] The RAD concurs with the RPD that it was open to question the differences between the appellant's testimony and the information contained in the foregoing important identification documents. The RAD concurs that in the absence of a passport, these two documents are significant documents with respect to identifying appellants. [14] In addition to the contradictions articulated by the RPD, the RAD notes from the audio recording that the appellant had no medical records to submit to the RPD. The RAD further notes that there were credibility issues relating to where and when the appellant had been in hiding. For example, initially the appellant stated that she was in hiding at the home of her uncle for one month in XXXX, 2015. When confronted by the RPD that this information was at odds with Schedule A, wherein it states that she was with her uncle in December, January and until her departure in XXXX XXXX, 2015, she was unable to provide an explanation for the discrepancy. [15] After reviewing the audio recording of the proceedings, the RAD notes that the date of the appellant's departure from China was called into question. She had testified that she left China on XXXX XXXX, and arrived in Canada on XXXX XXXX, 2015, whereas the immigration forms indicate a departure date of XXXX XXXX XXXX arriving in Canada XXXX XXXX later on XXXX XXXX, 2015. The RAD finds that this ought to have been a date to remember, particularly given the significance and the proximity of the timing to the hearing. [16] Furthermore, the audio recording reveals a discrepancy in the appellant's testimony with respect to her domicile between the years of 2012, 2013 and 2014 contained in her IMM Schedule A and her testimony which was that she had been living at the same address from XXXX 2005 until XXXX 2014. [17] The RAD concurs with the RPD that in the absence of a passport, the foregoing discrepancies call into question the identity of the appellant and the authenticity of the foregoing documents. [18] In the analysis of the issue of the appellant's identity, the panel is guided by section 106 of the IRPA which states: The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. [19] Furthermore, Rule 11 of the Refugee Protection Division Rules2 states: The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. [20] The RPD further rightfully noted the prevalence of fraudulent documents in China. The RAD notes that the documentary evidence3 states: In correspondence with the Research Directorate, an official at the Canadian embassy in Beijing wrote that there are "consistent reports" of document fraud in China and that fraudulent identity documents (IDs) are easily obtained in the country (Canada 17 Sept. 2013). Similarly, a professor of criminal justice at Xavier University who specializes in Chinese policing stated in correspondence with the Research Directorate that "[t]here is little question that fraud of all kind[s], including ID fraud, is a major problem in China" (Professor 13 Sept. 2013). The Professor added that fraudulent IDs are "easily accessible" and that the industry is a "big business" and an "open secret" in China (ibid.). In July 2012, the state media source China.org.cn described the fraudulent ID industry as "an incredibly lucrative trade," in an article about the market for fake student ID cards, university diplomas, and other types of ID on the grounds of Renmin University in Beijing (9 July 2012). According to the Beijing embassy official, the provinces of Guangdong and Fujian are "considered particularly high-risk for fraudulent documents" (Canada 17 Sept. 2013). The embassy official also related that the Fujian government announced the launch of a comprehensive investigation into document fraud in February 2012 and called on the public to provide tips to aid the investigation (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. [21] Further , the RAD notes the documentation states "a professor of criminal justice at Rutgers University, who has written on Chinese human smuggling, told the Research Directorate that, in his opinion, "it is pretty easy to obtain all kinds of fake documents in China," including identity documents, birth certificates, university diplomas and hospital documents."4 [22] The RAD has considered the country documents that state "fake Hukou booklets are common and that they can be purchased easily on the black market and even semi-open market." Furthermore, an analysis of the documents reveals that the household register (Hukou) appears to be extremely susceptible to fraud and manipulation.5 A 2012 article published by the China Watch, an English-language Chinese news website, reports on the online black market for Beijing hukou (household registration documents), catering in particular to students who wish to live and work in the city after graduating (1 Mar. 2012). According to the article, some hukou sold on the black market are genuine documents while some are forgeries, but there is no difference in price and it is difficult to differentiate between real documents and fakes (The China Watch 1 Mar. 2012). Citing a China Economic Weekly report, the Chinese Communist Party's English-language newspaper Global Times states that 70 percent of hukou are allocated to state-owned enterprises but that those that are not given out are "usually sold to graduate students for exorbitant prices" (9 June 2011). Global Times also corroborates the existence of online markets for hukou and the sale of forged hukou (ibid.). [23] Furthermore, a United States (U.S.) consular official stationed in southern China states that "you can't trust any [personal] documents in China." The official also stated that the market for fraudulent documents is rapidly expanding and that documents "are presumed to be fraudulent unless proven otherwise."6 The panel prefers the evidence of the China country documentation as this information is provided by unbiased, independent sources with no interest in the outcome of any particular refugee claim. [24] The RAD notes that the Federal Court has said that the Immigration and Refugee Board (Board) is under no obligation to send further identity documents for forensic analysis.7 Moreover, the RAD finds that such documents submitted by the appellant have less probative value when their contents have been contradicted both in writing upon arrival in Canada and through the appellant's testimony. [25] The RAD concurs with the findings by the RPD that the appellant has not established her identity and that, on a balance of probabilities, the Hukou and RIC are not genuine. [26] Having said this, the RPD also made a determination considering other credibility issues. Credibility [27] The appellant provided a copy of her boyfriend's RIC, which allegedly her parents were able to locate, notwithstanding the appellant's testimony that he was in hiding. Moreover, the RPD noted the absence of the fact that her boyfriend was in hiding in her Basis of Claim (BOC) form. Her reply when confronted with this omission "I don't know" was not accepted by the RPD. [28] Overall, the RPD did not find the appellant to be a credible witness and concluded that she did not testify in a straightforward and clear manner. Moreover, she did not provide reasonable explanations for the discrepancies in her evidence. [29] Upon review of the audio recording of the proceedings, the RAD finds that the portion of the evidence relating to the appellant's boyfriend was lacking in credibility. There was contradictory evidence with respect to how the appellant's family were able to obtain her boyfriend's RIC. Initially, she testified that he had given it to them. Later, she stated that the business owned by her family kept copies, then later she said the company had originals of everyone's RIC's, in case they decided to leave. She acknowledged that other companies did not follow this policy, however. [30] The RAD finds the omission in the BOC form, of the appellant being in hiding to be significant. The RAD does not accept the explanation that she did not want to be too lengthy. If as alleged the appellant's boyfriend is now a target, the RAD finds that this is a very significant issue, which ought not to have been omitted from the BOC form. Moreover the RAD noted that the appellant testified that she did not know what the family planning authorities wanted from her boyfriend. Moreover, the RAD further notes that the appellant initially testified that she had a boyfriend in China, however she had no photographs. Later, when questioned on the issue of the RIC, it was determined that they broke up prior to her departure from China, when she allegedly learned that the family planning authorities were looking for her. The RAD concludes, at the very least, that the appellant's boyfriend was not in fact in hiding, if he in fact exists, as the RAD has nothing before it to link the appellant to him. [31] The RPD accepted that the appellant is pregnant with an expected due date of XXXX XXXX, 2015. The RAD concurs with this finding, however, as stated above, the testimony surrounding her boyfriend is fraught with contradictions. CONCLUSION BY THE RAD [32] The RAD concurs with the RPD that there was insufficient credible evidence to establish the appellant's identity. The RAD finds that the inconsistent testimony elicited by the appellant with respect to her hukou and RIC, along with inconsistencies between her IMM 008 form and her testimony are sufficiently clouded to call into question the authenticity of the appellant's RIC and Hukou. [33] Given the significance of identity, namely, an issue which must be established prior to making a determination on the merits of the claim, the RAD concurs that the foregoing finding is determinative. However, the RAD further concurs with the RPD that it examined other credibility issues, particularly the evidence with respect to the appellant's boyfriend and found it to be lacking in credibility. Moreover, the RAD concurs with the RPD that given the foregoing concerns, the lack of security features on the birth control certification, payment receipt and notice, and the prevalence of fraudulent documents in China, these documents could not be accorded much weight and could not overcome the credibility deficiencies. [34] After conducting an independent assessment of the entire record, the RAD finds that the appellant is not a Convention refugee or a person in need of protection. [35] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. [36] This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara September 16, 2015 Date 1 Huruglica Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 2 Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2002-22. 3 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (31 October 2014), item 3.22, code: CHN104579.E. 4 Ibid., item 2.3, Country of Origin Information (COI) Report: China. Source: United Kingdom. Home Office. Date of Document: 12 October 2012, para. 33:06. 5 Ibid., item 3.22, code: CHN104579.E. 6 Ibid., item 2.3, para. 33:09. 7 Farooqi, Shaukat Ali v. M.C.I. (F.C, no. IMM-5446-03), Harrington, October 12, 2004; 2004 FC 1396. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06771