TB8-07673

RAD File / Dossier de la SAR : TB8-07673 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 25, 2019 Date de la décision Panel T. Andrews Tribunal Counsel for the person who is the subject of the appeal Hart A Kaminker Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister S. Virani Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant), claims to be a citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA)1, the Refugee Appeal Division (RAD) allows the appeal, sets aside the determination of the RPD and refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [3] The Appellant alleged before the RPD that he organized the masses to obtain reasonable compensation for their homes that were scheduled to be demolished. He received a notice in XXXX of 2015 from the town land planning board informing him that the land in his village would be expropriated. After attending a meeting with the other affected homeowners, the Appellant suggested that everyone obtain an appraisal report to ascertain the value of their homes. He collected those reports and then prepared a letter along with another neighbour, XXXX XXXX, and they submitted both to the town land planning bureau. When they finally received the compensation notice they were dissatisfied with the low amount of compensation being offered. The Appellant suggested they protest, which they did on XXXX XXXX, 2016. He and XXXX XXXX also prepared a petition letter, which they delivered to someone from the mayor's office. They followed up several times, but on XXXX XXXX XXXX 2016, they were warned not to return and that there would be trouble if they continued to protest. They decided to escalate their complaints and wrote a petition letter to Fujian province complaints office and the central government complaints office. [4] On XXXX XXXX, 2016, when the demolition workers came to the village, the male villagers made a human wall to prevent the destruction of their properties. After a standoff and the exchange of various accusations, the demolition workers and land planning officials left. [5] The following day the PSB attended and searched the appellant's home when he was not there. They told his wife that he must surrender as he had organized the illegal gathering. After receiving this news, he went to stay with a friend. The PSB visited his home on a further occasion, therefore the Appellant got the assistance of a smuggler to depart from China. [6] The Minister of Immigration, Refugees and Citizenship intervened in this claim on paper, based on credibility issues. The claim was heard on December 8, 2017, and January 11, 2018, and the Appellant was found not to be a Convention Refugee or Person in Need of protection. The determinative issue was credibility. ROLE OF THE RAD [7] The standard of review is correctness as established in Huruglica2, where the Federal Court gives guidance in regard to the role of the RAD. The RAD will defer to findings of the RPD where the RPD has a meaningful advantage in assessing the credibility of oral testimony. ANALYSIS Memorandum of Appeal [8] The determinative issue on appeal is credibility. The Appellant argues that the RAD erred: i) As there was a breach of natural justice because the application to summon the Border Services officer was dismissed, and; ii) In its assessment of credibility [9] The Appellant is not relying on any new evidence referred to in subsection 110(4) of IRPA and he does not request an oral hearing under ss. 110(6) of the Act. Breach of Natural Justice [10] The RAD finds there was no breach of natural justice in this case. [11] The RPD dismissed Counsel's application to summon the Border Services Officer who had conducted the Appellant's eligibility interview when he initiated his refugee claim at the port of entry (POE). [12] The Appellant argues that the RPD was wrong not to allow the application as there were questions regarding the process of how the information was collected, which could have been answered by the officer and would have impacted the weight that the member should ascribe to port of entry notes. They submit that as port of entry notes were used to impugn the Appellant's credibility, the refusal to call the Canada Border Services Agency (CBSA) officer resulted in a breach of natural justice because the Appellant did not have an adequate opportunity to state his case. [13] Natural justice is defined in the Dictionary of Canadian Law as the basic requirements of procedure that the one who judges is neither interested nor biased and that the parties have enough notice and the chance to be heard. [14] The RAD finds that the Appellant was afforded the above opportunities as the member's concerns regarding statements made at the port of entry were put to the Appellant for explanation. Therefore, he was made aware of the issues, given an opportunity to respond to them, and his Counsel was given the opportunity to make submissions on his behalf. Had Counsel wanted information on the process that the Appellant went through at the border regarding translation and how the forms were completed is information that could have been obtained through questioning of the Appellant as he was the one who was examined at the airport. He failed to do so. [15] The member evaluated the Appellant's responses to her questions/concerns and drew conclusions about his credibility which was part of her role. There was nothing procedurally unfair about drawing such conclusions and the RAD will explore whether she was correct in making such findings below. Findings related to credibility Passport [16] The RAD finds that the RPD was correct in finding that his statements about having a passport were contradictory. [17] The RPD drew a negative inference from the fact that his statements about having a passport were different at the port of entry versus in oral testimony. [18] The Appellant argues that it was an error to find that he had a Chinese passport despite his testimony that he did not. The Appellant indicates it could have been a misunderstanding by an interpreter who was used over the phone for the port of entry interview or may have been caused by the inability to review the answers and how they were recorded. Hence not having the POE Officer testimony prejudiced his ability to present his case. [19] The RAD has reviewed the record in its entirety. The Appellant testified at the first sitting that he never had a Chinese passport and he was never issued a genuine passport by any country. He was questioned about why at the POE, he stated that he could not use his passport to get out of China, which implies he had a passport. He testified that he was not able to apply for the passport and what he meant was that he was not able to get a passport himself. When asked why he did not say exactly that at the POE, he explained that at the time his answer was that he could not use his passport because he could not apply for a passport. When the member pointed out that his answer at the border did not say that and it was different than his oral testimony he indicated that it had been a long time and probably he forgot. [20] At the second sitting he was asked to explain the passport issue further as his statement at the border was actually, "I was not able to use my own passport to get out of China. I did not have it with me3" and the member wanted clarification on the latter part of his statement. The Appellant responded that he tried to explain to the person that he did not have a Chinese passport. He verified when asked that he had an interpreter and that there were two interpreters on that day at the POE. The member asked whether he was saying that it was recorded or interpreted incorrectly and he testified that he had no idea. He testified that he was so nervous, he had just arrived in a new country and was questioned, but he did try to tell them that he did not have a passport and he may not have expressed himself fully or completely in his answer. [21] The RAD notes that his full statement at the border when answering the question, "Do you have any additional information to give me?" was, "I was not able to use my own passport to get out of China. I do not have it with me. I only have a copy of my ID card.4" Counsel had the opportunity to ask any questions about process to the Appellant and he did not do so, hence we can only assume that the Appellant was asked the questions in the normal course and gave his responses, which were interpreted by the interpreter who was on the phone. According to the interpreter declaration5 on file, an interpreter named GK was used over the phone to interpret the Question and Answer (Q&A) in the officer notes. This form also indicates that GK interpreted the verbal exchange between the officer and the person concerned during the examination; the content of the forms and the content of the interpreter declaration. The form suggests to the panel that the interpretation was done as it normally is. The RAD finds that his being nervous and not expressing himself fully does not explain why he would say that he did not have his passport with him if he did not actually have a passport. The RAD finds that it was not an error to conclude that he lacked credibility in this regard. Resident identity card [22] The RAD finds that the RPD was incorrect to draw a negative inference based on the Appellant's statements about the whereabouts of his resident identity card. [23] The RPD drew a negative inference based on what appeared to be a discrepancy regarding the whereabouts of the Appellant's Resident identity card (RIC). The RPD found that his explanation for the discrepancy was not reasonable and even if it did accept his explanation, he had not been forthcoming with the Immigration officer. [24] The Appellant argues that the RPD was incorrect to draw a negative inference because the contradiction did not exist and his explanation was reasonable regarding why he thought his RIC might have been available. [25] The RAD has reviewed the record. At the hearing, the Appellant testified that his original RIC was in China, but he could not find it. He explained that he realized that he could not find it in XXXX 2016 before he left for XXXX as the smuggler told him to bring his card so that it could be used to file a claim once he arrived in Canada. He testified that he asked his family to look for the card, but could not find it until now. The member pointed out that when asked at the POE about the whereabouts of his actual card, he said it was in China which suggests that the actual card is there. He was asked why he made no mention of the fact that it was lost. The Appellant replied that he thought at the time that it was possible that they may find it; he had hope it would be found, which is why they were still looking for it. [26] The RAD finds that the Appellant's explanation was not unreasonable. If the last place he had his card was in China and to his knowledge it had only been misplaced, it is not unreasonable to state that the card is in China as there was a reasonable prospect that it may eventually be found. The RAD agrees that there was no discrepancy here and even if there were, this is a peripheral matter as it does not go to the core of the claim; whether he was wanted for his protest related activities. [27] The RAD also finds that the RPD was incorrect to draw a negative inference regarding the advice of the smuggler. The RPD found it implausible that the smuggler would advise the Appellant to keep a copy of the RIC with his real name in his luggage. [28] The Appellant argues that the RPD erred by drawing a negative inference in this regard as the smuggler was used to facilitate a smooth departure and there is known corruption in China. [29] At the hearing, the Appellant testified that he kept a copy of the RIC in his luggage during the first leg of the trip when he exited China and later when he was in Belgium he put it in his pocket. He was asked to explain why he would keep a document on his person which stated a different name if he was at first travelling under a different name; his cousins name. The Appellant responded that at the time he knew he was going to use the copy to file a claim in Canada, so he had no choice and had to take it with him. The Appellant agreed that it would have jeopardized his ability to travel if it was found when he was travelling. When asked if he had any idea why the smuggler would tell him to bring the document with him, he testified that the smuggler told him he would need it when he filed his claim in Canada. [30] The RAD finds that smugglers are sought out to facilitate smooth travel. Persons trust these individuals and follow their instruction. While it is odd to carry the document on his person, it doesn't appear that the smuggler specifically said that he had to do that, but rather he said to bring the document with him as it would be needed to make his claim. It appears that the Appellant elected to put it in his pocket during the last leg of the journey. While it is true that there was a possibility that the Appellant may have been searched, it is not a foregone conclusion that such a thing would be done, particularly if a smuggler had made arrangements. Use of multiple names [31] The RAD finds that it was incorrect to find the Appellant lacked credibility because of conflicting testimony and his Generic Form on the subject of his use of multiple names. [32] The RPD drew a negative inference from the fact that the Appellant testified that he had not used any other names and had indicated on his generic form that he has never used any other names or aliases as this did not align with his narrative where he states he used his cousin's passport to exit China. [33] The Appellant submits that he understood the question to mean whether he had used any other names on a fairly regular basis; whether his name had been changed or he had used a nickname on a regular basis rather than the one time use of his cousin's name in order to exit China. He submits that the same applies regarding the Generic Form which he understood to mean long-time usage rather than one-time usage of a different name. [34] At the outset of the hearing, the member asked the Appellant for his name and whether he had gone by or used any other name. His response was that he had not. Later when discussing his use of his cousin's passport to leave China, he indicated that the name in that passport was XXXX XXXX. He was therefore asked why his earlier testimony was that he never used other names. He replied that he thought the member was asking about his usual name; whether he had other names before, but he had never had other names. The member then clarified that she was asking whether he had ever used any other names and he indicated he had used the name XXXX XXXX because he used his passport. He was asked why he had responded "No" to the question in his generic form where he was asked, "Have you ever used any other names? (Examples, nickname, maiden name or aliases)." In response, the Appellant testified that he did not know that he had to put that down because he just used the name once when he left the country. [35] It is apparent to the RAD that the Appellant misunderstood the meaning of the questions. His explanation was not unreasonable and as such the RAD finds that it was incorrect to draw a negative inference in this instance. Declaration card [36] The RAD finds that the RPD was correct to find that the Appellant's testimony regarding his declaration card lacked credibility. [37] The RPD found that the Appellant's responses and details regarding his declaration card; who filled out the card, how this was done and what the card said were evolving and lacked credibility. [38] The Appellant submits that it is not implausible that he would use an individual other than the smuggler to assist him in completing the card as there was no evidence that the smuggler was sitting next to, or close to him, therefore this was a finding without an evidentiary basis. [39] At the second sitting the declaration card was discussed. The Appellant testified that a person he did not know who was sitting beside him filled it out because he could not speak the language so he picked up the form and he communicated with them through the use of sign language to show the person how the form should be filled out. He added that he showed his passport so that person understood he was trying to ask for help. When asked how that person got the address that was written on the form which was not in the passport, he added that he gave them another small piece of paper that was provided by the smuggler. He testified that he did not know what was on the piece of paper as he could not read it, but the smuggler told him that in order to fill of the form he would need the information from the passport and that paper. Then when questioned about how the six questions regarding what he was bringing to Canada were completed, which were filled out on the French side of the form, the Appellant initially indicated that "the person just put a check mark on that. I really couldn't-I don't read any of those. I didn't know what he filled out." When asked why that person would do this, the Appellant responded "he just put a check mark on it because I already on the plane so I didn't-I couldn't read. So, I thought it has to be a check mark on something." When asked to explain his answer further the following occurred: MEMBER: I don't understand your answer. Did you put those check marks? CLAIMANT: The check marks, I put it on. MEMBER: How do you even know that that needed to be filled out if you can't read that? CLAIMANT: There was on the separate paper. MEMBER: There was? CLAIMANT: A separate paper. MEMBER: Yes, paper. CLAIMANT: I didn't know that so I just put a mark on it, a check mark on it. [40] The RAD finds that while having a stranger assist in filling out a card is not in and of itself implausible, in this case the Appellant's answer did change and evolve as he was confronted with implausibilities. It went from the unknown person filling out the declaration card in its entirety with just the Appellant's passport to assist him, to that person doing so with the passport and a small piece of paper, to the Appellant completing a portion of the form with check marks despite not understanding English when he had specified moments before that it was the unknown person who put the check marks in. There was no testimony provided on the where the smuggler was seated at that time. While it was not an error to conclude that his testimony was evolving on this subject, ultimately this is a peripheral matter that does not go to the core of the claim. Demolition date [41] The RAD agrees that the RPD was incorrect in finding that there was a discrepancy in the demolition date. [42] The RPD drew a negative inference from an apparent discrepancy in the Appellant's narrative regarding the date of demolition. It found that his explanation that one page of the narrative contained a typographical error was not reasonable given that a BOC amendment had been submitted prior to the hearing wherein other adjustments were made. [43] The Appellant submits that the RPD erred by not accepting the Appellant's explanation and this was a microscopic finding. [44] The Appellant testified at the second sitting that he was only ever given one date regarding the demolition and that date was XXXX XXXX, 2016. He was asked why in his narrative he indicated that after attending a meeting he was told that the demolition would start on XXXX XXXX, 2016; a different date. He responded that it was the XXXX and there was no other date. He then indicated it might be a typo, but that he told the consulting agency (his counsel) that it was XXXX XXXX XXXX 2016. [45] The RAD notes that the Appellant's narrative is ten pages in length. On page 2 of the narrative it indicates that they were told that the demolitions would start from XXXX XXXX, 2016 whereas on page 7 of his narrative it indicates that on XXXX XXXX, 2016 the government began the demolitions. The RAD finds that it is possible such a typo could have been overlooked, particularly given the similarity of the digits XXXX and XXXX. Further, the Appellant was otherwise consistent regarding the date of the demolition. All supporting documents say the same thing and the Appellant's oral evidence was the same. Date they were required to vacate their home [46] The RAD finds that it was an error to find that the expropriation notice was lacking. [47] The RPD found that the notice of expropriation/demolition notice would include not only the demolition date, but also a date by which the premises should be vacated, and the fact that the Appellant's demolition notice did not have the latter was a material omission in the notice and in the Appellant's evidence. [48] The Appellant argues that the above finding with regard to a move out date is not supported by evidence, and there was a date that they were required to leave before which was the demolition date. [49] When asked at the hearing about the date he was supposed to vacate, the Appellant indicated that he was to do so the day before XXXX XXXX as this is what they were told verbally in XXXX when they came to his house. When asked why the move-out date would not be in the notice of demolition, the Appellant replied that the demolition date is already noted and he reiterated that there is no date on the notice requesting them to move out, but that someone visited the house to remind them to move by XXXX XXXX XXXX 2016. [50] The RAD agrees with the Appellant. There is nothing in the documentary evidence which states that a move out or vacate date should appear on a demolition or expropriation notice and it is unclear on what basis the member formed her conclusion. The RAD finds that the notice makes it clear that they were required to move before the demolition date and there is no evidence that it should say otherwise. The RAD finds it was an error to impugn the Appellant's credibility on this basis. Address [51] The RAD agrees with the RPD regarding the finding concerning an omission of a key address from his Schedule A form.6 [52] The RPD found that the omission of his last address in his schedule A was significant. It found that he did not reasonably explain why he did not include his friend's address; the place where he resided for XXXX months following the demolition date before he came to Canada. [53] The Appellant argues that the POE Officer's testimony would have been useful in this regard to find out about the preparation of the forms, hence reiterating that the RPD erred by not allowing the officer to be summoned. [54] The Appellant's testimony at the hearing was that he lived with his friend Mr. XXXX XXXX for more than XXXX days before coming to Canada. When shown the Schedule A form and asked why he did not include Mr. XXXX address; XXXX XXXX XXXX XXXX XXXX XXXX, Fuqing City, Fujian, given he was last residing there, he testified that at that time he did not know he had to put it down as he thought as he only lived there for XXXX days, he did not need to write it down. [55] The RAD has already dealt above with the issue of the summons. The RAD finds that if Counsel had questions about the process that the Appellant went through at the POE, the interpretation and whether the Appellant had an opportunity to review his forms prior to signature these are questions that he could have put to the Appellant. However, the RAD notes that Counsel asked no questions of the Appellant. [56] While the explanation of a short duration and temporary stay with his friend does not seem unreasonable in and of itself, this is only when one does not consider that his home was demolished as of XXXX XXXX, 2016. The Appellant actually specified that he lived at his home XXXX XXXX XXXX XXXX up until XXXX 2016 when he left China. The RAD finds that the question clearly states that one should list all addresses where they lived since their 18th birthday or in the past 10 years. The RAD finds it is not reasonable that he would not include his most recent address had he stayed with his friend for a three-month period, particularly under these circumstances when his own home no longer existed. Statements at the Port of Entry [57] The RAD finds that the RPD was incorrect in finding that because the Appellant did not elaborate fully on his claim at the POE that this should count against his credibility. [58] The RPD found that the Appellant failed to mention his activities and leadership role related to opposing the demolition when interviewed at the POE and his explanation for not doing so was unreasonable. [59] The Appellant argues that the purpose of the interview at the POE was not to gather details with respect to the claim, but only to determine eligibility and all facts underlying the claim are not necessary so it was an error to draw a negative inference. [60] The Port of Entry notes reflect the following: Q. WHY WILL YOU BE PUT IN PRISON? A. The Chinese government believes that I was being anti-government because my house was being demolished. They were questioning my grandfather for many things, and I could not stand it anymore. I asked them 'how could they treat their people like this' and crowds of people were cheering, so they believed I am anti-government.7 [61] At the first sitting of his hearing, the Appellant was asked about his statements at the POE. He was asked specifically why what he said is different to what appears in his narrative, in that he did not hit on any of the key points or significant things that he did such as the fact that he was involved in petitions, he went to the government to protest or that he physically stopped the demolition. He responded that he did mention in the narrative that his grandfather was scolded by officials, and when he got off the airplane he did not know that he needed to get into such details about it. [62] The RAD finds that although odd that the Appellant would not mention more specifics of why he is fearful or why he is wanted, he was consistent with respect to the basis of his claim. He did mention that he is perceived by the government as being anti-government because his house was being demolished. He subsequently expanded upon and gave further details about his fears in his narrative. The RAD finds that this is not a major inconsistency or omission. Profile as a wanted individual [63] The RAD finds that it was an error for the RPD to conclude that the Appellant does not have the profile of a wanted individual. [64] The RPD considered that the documentary evidence indicates that authorities have little tolerance for those who escalate their concerns to Beijing and found that local authorities are more concerned with persons who take grievances to the state level. Therefore, she found that as the Appellant never took his protest/complaints beyond the local city government level and because he was a home owner who locally protested the expropriation of his land, the Appellant would not be considered a political dissident or a person seeking to overthrow the government. [65] The Appellant argues that this finding was made in error because the Appellant's evidence was that he made it clear to officials that he would complain to the central government and he led the human chain. He also submits that the objective evidence does not limit the PSBs interest only to persons seeking redress from Beijing. [66] At the first sitting the Appellant indicated that he only ever went to the Fuching city government to protest and he never went to either the provincial or central government. [67] The RAD finds that the narrative on page six does allude to the fact that the appellant suggested that they continue to protest their rights to the Fujian Province complaints office. The RAD finds that while true that he may not be considered anti-regime or a political opponent, this does not mean that he would not be pursued based on his activities, which are an expression of a dissenting view as the evidence also indicates that local protests happen with regularity and that they are often suppressed to prevent further escalation to Beijing. For example, the United Kingdom Home office states that: "Citizens continue to gather publicly to protest evictions, relocations and compensation in locations throughout the country, often resulting in conflict with authorities or other charges."8 [68] There were other issues identified in the memorandum; whether a negative inference should have been drawn from the actions of the PSB based on when they chose to look for the Appellant, whether it was correct to draw a negative inference from the fact that mail was sent to the Appellant who was a wanted person or whether he would have been able to depart on a photo substituted passport. However, the RAD finds it is unnecessary to deal with these arguments given that they would not change the outcome of the appeal. [69] Despite the above-mentioned errors, the RAD is not in a position to find that the Appellant has established his allegations based on the record before it. Having reviewed the whole record, including the audio recordings, the RAD finds that it has remaining questions related to the core aspects of the claim. The RAD cannot hold a hearing given the lack of new evidence and therefore it can only assess the existing evidence. The hearings focused on identity and travel documents, but there were limited questions asked about his claim; the events that occurred and related to his exit from China. I find that the central elements of the Appellant's claim were insufficiently tested at the hearing. Given that credibility concerns still exist, the RAD finds it has insufficient evidence to make a finding as to the Appellant's overall credibility and insufficient evidence before it to substitute a positive finding. CONCLUSION [70] After conducting its own analysis of the entire record, the RAD finds that the RPDs findings are insufficient to maintain the determination that the Appellant is not a Convention refugee or person in need of protection. While there were several credibility concerns raised, many were not related to the core of the claim and were based on peripheral issues. The RAD finds that it is unable to confirm, or set aside and substitute its own decision. [71] Accordingly, pursuant to paragraph 111(1)(c) of the IRPA, the RAD allows the appeal and refers the matter to the RPD for re-determination by a differently constituted panel. (signed) "T. Andrews" T. Andrews October 25, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras 70, 103. 3 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 99 4 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 99. 5 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 80. 6 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule A, at p. 74 7 Exhibit RPD-1, RPD Record, Exhibit 1, Officer notes, at p. 97. 8 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China, (October 31, 2017), item 1.7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-07673 RAD.25.02 (April 04, 2019) Disponible en français 16 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.25.02 (April 04, 2019) Disponible en français