TB8-14630

RAD File / Dossier de la SAR : TB8-14630 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 March 10, 2021 Date de la décision Panel Devika Ratnayake Tribunal Counsel for the person who is the subject of the appeal Aleksei Grachev Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX ("the Appellant"), a citizen of China, appealed a decision of the Refugee Protection Division ("RPD"), dated May 24, 2018, rejecting his claim for refugee protection. The Appellant fears persecution by the Public Security Bureau ("PSB") in China who detained him for protesting the government's expropriation of his farmland. The RPD rejected the claim based on credibility, finding that the Appellant had submitted fraudulent documents, and his ability to exit Xiamen, China using a false passport containing his actual photograph was indicative that he is not wanted by the PSB. BACKGROUND [2] The details of the Appellant's allegations are outlined in his Basis of Claim form ("BOC").1 In summary, the Appellant is a 39-year-old XXXX who lived in Changle City, China. In XXXX 2015, he learned that the government would be selling his XXXX to a developer. He and other villagers approached the town government and later the mayor to reverse the decision, to no avail. In late XXXX 2016, protests began, and at the final protest on XXXX XXXX, 2016, the PSB attended and arrested the Appellant. He was detained for XXXX XXXX and had to report to the local PSB each month after his release. After numerous reports, the Appellant went into hiding and arranged for a smuggler to assist him in exiting China. An arrest warrant, dated XXXX XXXX XXXX 2017, was issued for the Appellant. The Appellant fled China on XXXX XXXX XXXX 2017 using a Taiwanese passport with his photograph and a different name. He claimed refugee protection at the port of entry ("POE") in Canada on May 2, 2017. Preliminary Issue [3] The Appellant stated that he was not seeking to submit any new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act ("IRPA").2 However, the Appellant included in his appeal record two documents: a sample of Form 6, which is a Canadian Summons to a Person Charged with an Offence3 and a sample form of a Canadian Recognizance of Bail.4 In his Memorandum, the Appellant sought to rely on these documents as a comparison to dispute the RPD's finding regarding the Chinese summons the Appellant had submitted to the RPD. Given that I am able to dispose of the appeal on the basis of the evidence already on record, which was before the RPD, I decline to deal with the admissibility of this evidence, as I find it is moot. ANALYSIS [4] My role is to look at all of the evidence and decide if the RPD made the correct decision.5 [5] The RPD's negative decision was based on three credibility findings: (a) the citation of an incorrect section of the law in a summons; (b) the omission of a legal citation from an administrative punishment decision; and (c) the Appellant's ability to exit China with a false passport with his own photograph without incident. [6] The Appellant submits that the RPD erred in its credibility assessment by: (i) breaching the principle of fundamental justice by failing to give him an opportunity to address the RPD's concerns about the documents that were found to be fraudulent; (ii) the RPD's assessment of the documents was incorrect; (iii) making a blanket finding that it was implausible for the Appellant to have exited China on a false passport using his own photograph if he was wanted by the PSB without engaging in a factual analysis of the Appellant's specific circumstances; and (iv) ignored Federal Court jurisprudence about the plausibility of wanted people being able to exit China on their genuine passports with the use of a smuggler. The Arrest Summons and the Administrative Punishment Decision [7] The RPD's finding that the arrest summons was fraudulent was erroneous. The RPD's conclusion that the arrest summons referenced an incorrect section of the Chinese criminal procedural law was based on the RPD's reliance on an incorrect section of the National Documentation Package ("NDP"). The RPD noted that the English translation of the summons referenced "...Criminal Code 59 of the procedure criminal law of the People's Republic of China...".6 The RPD went on to note that, "[a]ccording to the Chinese Criminal Code contained in the National Documentation Package, this section refers to confiscation of property, not arrest."7 [8] While the Criminal Law of the People's Republic of China (Chinese and English Text) Amended February 25, 2011 ("Criminal law") found at item 9.15 of the March 31, 2017 NDP for China indicates that article 59 is about "confiscation of property", the pertinent document the RPD ought to have relied on was the Criminal Procedure Law of the People's Republic of China (2012 Amendment) ("Criminal Procedure law") found at item 9.5 of the March 31, 2017 NDP for China which indicates that article 59 is about the collection and use of evidence. The variance which appears to be due to the different amendment dates is corrected in the October 31, 2018 NDP for China such that the wording of article 59 found in the Criminal Law and the Criminal Procedure Law was made consistent without any reference to "confiscation of property." The RPD erred in finding that article 59 of the Criminal Procedure Law was in relation to "confiscation of property." [9] Although article 59 of the Criminal Law and the Criminal Procedure Law found in the 2017 and 2018 NDPs for China do not reference "arrest", I note that, in an earlier, 1996 version of the Criminal Procedure Law, article 59 refers to "arrest"8 which the RPD noted was missing in the summons issued to the Appellant on February 2, 2017.9 Since the arrest summons was issued subsequent to the 1996 version of the law, it is reasonable that the summons would not reference "arrest" in connection with article 59 of the Criminal Procedure Law. [10] My review of the RPD's hearing transcript indicates that the RPD did not put its concerns about the arrest summons to the Appellant and provide him with an opportunity to respond prior to drawing an adverse inference, which, as the Appellant correctly points out, is a breach of procedural fairness. While the application and relevance of article 59 of the Criminal Procedure Law in the context of the arrest summons is not entirely clear to me, based on the available evidence, I have no objective basis upon which to doubt the authenticity of the arrest summons or impugn the Appellant's credibility based on his submission of the arrest summons. Consequently, I do not draw a negative credibility inference pertaining to the arrest summons. [11] The RPD also drew a negative credibility inference regarding the Administrative Punishment Decision the Appellant submitted based on the document omitting a reference to any section of the law. The RPD noted that: ...It is reasonable to assume that an authentic document detailing an offender's crime and punishment issued by "The Public Security Bureau of Changle City" would have at least one section of the law cited therein, as it is an essential aspect of criminal law and this summons was purportedly issued by the official Chinese public security organ.10 [12] While I agree with the RPD that such an expectation may be reasonable, at least in the Canadian context, in the absence of the RPD having put this concern to the Appellant and provided him an opportunity to respond, I cannot impugn the Appellant's credibility based on an omission in a document issued by a third party. Additionally, I note that the contents of the document are consistent with the Appellant's testimony regarding the timing and duration of his detention, the bail amount and the required reporting frequency. [13] The RPD's findings regarding the arrest summons and the Administrative Punishment Decision were central to its other credibility findings, based upon which the RPD proceeded to discount all other documents the Appellant submitted. Since the RPD's negative credibility findings in this regard are unsustainable for the reasons articulated, it follows that the RPD's negative credibility assessment of the other documents which are predicated on it are also unsustainable. [14] The Appellant submitted a land expropriation notice, stamped and issued on XXXX XXXX XXXX 2015, by the People's Government of Yingqian Town Changle City;11 a Dismissal Notice issued by the PSB in Changle City, dated XXXX XXXX 2016;12 and a reporting card issued by the PSB in Changle City indicating the dates and officers to whom the Appellant reported after his release commencing XXXX XXXX XXXX 2016 to XXXX XXXX XXXX 2017.13 In addition, the Appellant submitted nine photographs of the protest against the land expropriation in which he participated, although he testified that he was not in any of the photographs.14 I have reviewed each of the documents and find them to be credible on its face. The contents of the documents are consistent with the material aspects of the Appellant's testimony, the BOC and the POE notes.15 Based on the totality of the evidence, I am satisfied, on a balance of probabilities, that the Appellant was detained by the PSB and is wanted for his role in protesting against the government's expropriation of his farmland. The Appellant's ability to exit China [15] The Appellant testified that a smuggler assisted him in his exit from China, including securing a false passport under a different name but containing his own photograph; accompanied him on his journey from Xiamen to Germany; provided specific instruction to queue in a specific line at a certain time and to not speak; and while his passport was inspected by airport security personnel, they did not question him. The RPD did not identify any particular aspect of the Appellant's evidence about his exit from China as being inconsistent with the objective evidence. However, the RPD noted that it preferred the documentary evidence concerning the efficiency of Chinese authorities, the presence of the Golden Shield Project, including facial recognition software. While the RPD was correct in noting the general efficiency of the Chinese authorities including its airport exit controls, I agree with the Appellant that the RPD made a blanket finding and did not consider the specific facts surrounding the Appellant's exit or explain why it was implausible that the Appellant could not have exited China with the use of a smuggler. Based on my assessment of the available evidence relating to the Appellant's exit from China in conjunction with the jurisprudence cited by the Appellant,16 I find it is not implausible that the Appellant was able to exit China with the assistance of a smuggler in the manner he described. [16] Having found that the Appellant has established, on a balance of probabilities, that he is wanted by the PSB, who are government agents, I find that the Appellant cannot seek state protection, and there is no viable internal flight alternative for the Appellant anywhere in China. For the foregoing reasons, I find that the Appellant faces a serious possibility of persecution and a risk to his life, or a risk of cruel or unusual treatment or punishment, or a danger of torture in China. CONCLUSION [17] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the Refugee Appeal Division ("RAD") sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) Devika Ratnayake Devika Ratnayake March 10, 2021 Date 1 Exhibit RPD-1, RPD Record, at pp. 18-19. 2 Exhibit P-2, Appellant's Record, at p. 8. 3 Exhibit P-2, Appellant's Record, at p. 10. 4 Exhibit P-2, Appellant's Record, at p. 11. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 6 Exhibit RPD-1, RPD Record, at p. 5, RPD's Reasons and Decision, at para. 10. 7 Ibid. 8 Criminal Procedure Law of the People's Republic of China - 1996 - "Article 59 - An arrest of a crime suspect or a defendant must be approved by a people's procuratorate or decided by a people's court, and shall be executed by a public security organ." Retrieved from *46814279.pdf (oecd.org) 9 Exhibit RPD-1, RPD Record, at p. 106. 10 Exhibit RPD-1, RPD Record, at p. 6, RPD's Reasons and Decision, at para. 12. 11 Exhibit RPD-1, RPD Record, at p. 98. 12 Exhibit RPD-1, RPD Record, at p. 102. 13 Exhibit RPD-1, RPD Record, at p. 104. 14 Exhibit RPD-1, RPD Record, at pp. 108-111. 15 Exhibit RPD-1, RPD Record, at pp. 56-60. 16 Sun, Hongxin v. M.C.I. (F.C., no. IMM-8088-13), de Montigny, March 27, 2015, 2015 FC 387; Zhang, Xiu Jie v. M.C.I. (F.C., no. IMM-3703-07), Dawson, April 23, 2008, 2008 FC 533; and Ren, FeiHu v. M.C.I. (F.C., no. IMM-1558-15), Boswell, December 18, 2015, 2015 FC 1402. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-14630 RAD.25.02 (April 04, 2019) Disponible en français 2 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