TB5-08418

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 : TB5-08418 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 December 2, 2015 Date de la décision Panel Ken Atkinson 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 Daniel Morse Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX ("Appellant"), a citizen of the People's Republic of China ("China"), appeals a decision of the Refugee Protection Division ("RPD") rejecting his claim for refugee protection. The Appellant is not submitting any new evidence and he is requesting an oral hearing. He requests that the appeal be allowed and the decision of the RPD be set aside and the Refugee Appeal Division ("RAD") find the Appellant to be a Convention refugee or a person in need of protection or alternatively, that the matter be returned to the RPD for re-determination. The Minister of Public Security and Emergency Preparedness ("Minister") intervened in this matter by Notice of Intervention on September 10, 2015 and filed a memorandum of law and argument on October 22, 2015. The Appellant has submitted no new evidence in support of his appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and his application for an oral hearing is denied. DETERMINATION OF THE APPEAL [2] The appeal is dismissed. Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant states that in XXXX 2013 his family received a notice that some houses in the village where they lived would be selected for expropriation for the construction of a new commercial residential building. His family's house was included in the project. Most of the individuals involved were in support of the development project but they were not satisfied with the compensation offered by the government and developer since it would not replace their current homes. [4] He says that some people moved out but it was discovered that these people worked for the government and they had been offered more money than the other homeowners. He maintains that when the developer and the government realized that the remaining individuals would not move by the deadline of XXXX XXXX XXXX 2014, they were threatened that their electricity and power supply would be cut off if they did not sign the agreement. Some of the families moved out when faced with this threat. However, most of the families did not have sufficient money to buy another residential property but they had no way to fight for their rights. [5] The Appellant states that the government then carried out their threat and cut the electricity and water supply. On XXXX XXXX XXXX 2014, construction workers, developers, government officials and some Public Security Bureau (PSB) officials came to the area with demolition equipment. He alleges that they broke into the houses, took out all the furniture and appliances and even dragged people out of their home. They proceeded to knock down the houses. When they approached their house, his mother blocked the door and his father laid down on the ground trying to stop them from going further. Some officials tried to push his mother. When the Appellant went to protect her, they beat him and he passed out. He woke up in a hospital with numerous injuries. [6] He says that he went to court but the court did not take any action. He then went to the complaints and petition office of the city government but they could not do anything with the demolition order that was approved by the city. He alleges that while walking on the street, he was threatened with death if he continued to make complaints. He went to Beijing to the complaints and petition office. His backpack and all materials were confiscated after an interview. He was advised that the local PSB would take him back to his village. The PSB accused him of obstructing social orders and public security, disturbing the national stability and unity, and slandering government officials. [7] He alleges that the PSB beat him. When they took him to a hospital for medical care, he got a chance to escape from the hospital. He fled to a relative's home to hide. He found out that the PSB had been to his home twice and they intended to arrest him. They told his parents the accusation against him and instructed his parents to advise him to surrender. He then decided to hire a smuggler to make arrangements to leave the country. He states that with a smuggler's assistance he obtained a Canadian visa and he arrived in Canada on March 13, 2015. ROLE OF THE RAD [8] The Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 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". [9] Accordingly, the RAD will review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. [10] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reason: The Appellant was not credible in his allegations that he would be persecuted or harmed if he returns to China. Submissions [11] The Appellant submits that the RPD erred in basing its decision on issues that are not central to the claim without taking into consideration the evidence that deals with the substantial aspect of the claim and therefore, did not consider the totality of the evidence. [12] The Minister submits that the RPD dealt with issues directly related to the alleged expropriation of the home and the subsequent charges by the PSB that forced the Appellant into hiding and coming to Canada. These included a discrepancy in addresses, work history, obtaining his Chinese passport and misrepresentations made at the port of entry into Canada. Analysis [13] The Appellant's claim is based on his allegations that he is being sought by the PSB in China as a result of his actions in opposing the expropriation of his family home. The RPD noted that the address of the property was No. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.2 In an IMM5669 form filed with his application for refugee protection, his address is given as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX from June 2005 until March 2015.3 The Basis of Claim (BOC) narrative refers to the first address as "my property". The narrative refers to him being actively involved in all the matters related to the property and is written to indicate that he lived at the property. The RPD asked him about this inconsistency. He stated that the address provided in his IMM5669 was his brother's home and he put this address down because he would sometimes look after his brother's place while his brother was away. He then stated that he just randomly provided the information and then said that he would also receive mail at his brother's address. The RPD found that his failure to indicate that he was living at the expropriated property on any of his immigration and refugee forms seriously undermined the credibility of his allegations. [14] The Appellant submits that where he lived is not an essential fact as to whether he was involved in the event that took place when the authorities came to destroy his parents' home. He also argues that even if he did not live there, it would not have prevented any of the events from happening as the Appellant alleges. This is not a situation where the Appellant is claiming that the expropriation is related to a house that he owned or that he solely occupied, such that an inconsistency in the residence would be more significant. Any discrepancy in relation to the Appellant's address has no impact on whether the events, as they were described, could have or did happen. [15] The RAD agrees with the RPD that the BOC narrative is written in such a manner that it implies the Appellant lived at the property in question and would be directly impacted by the loss of the property and the compensation that was offered. There is an inconsistency in stating that he lived at his brother's residence for 10 years prior to coming to Canada, and then alleging that he lived at the property in question. This inconsistency is not explained by saying that he looked after his brother's home while he was away and not offering an explanation as to why that was also his mailing address. [16] The Appellant submitted a medical report4 entitled "Outpatient and Emergency Medical Record for Hospitals and Clinics in Weihai". The medical report is dated XXXX XXXX XXXX 2014. There is no address on the document as well as no telephone number or other means to communicate with the medical facility that allegedly treated the Appellant. The Appellant testified that after he was released from hospital he went for a follow-up visit with the doctor who looked at the stitches around his eye and said that he had no problem. The doctor then gave him some eye drops. The Appellant was asked why this visit was not recorded in his medical record. He responded that doctors in China do not record brief follow-up appointments in their records. The RPD found that the medical report had no probative value because it did not identify a cause for the injuries which could have been reasonably caused by something other than what was alleged by the Appellant. The RAD agrees with this finding and also finds the medical report has no probative value since the medical report had no identifying features to confirm its validity and the record does not include any follow-up procedures. [17] The Appellant alleged that he had escaped from PSB custody and that he had gone into hiding at his cousin's home because of his actions in opposing the expropriation of the family home. The evidence is that the family home has not been expropriated. His evidence was that he had remained in his cousin's home for 11 months prior to leaving China. He did not include this address on his IMM5669 form when he filed his refugee claim. When the RPD asked him about this omission he responded that this was a temporary stay when he was in hiding. The Appellant's allegation is that he is being unfairly sought by the PSB for opposing the expropriation of his family home and it was necessary to hide. This stay at his cousin's is an essential part of his story. The RAD agrees with the RPD that this omission undermines his credibility. [18] The RPD pointed out to the Appellant that his IMM5669 form stated that he had been working at an XXXX XXXX in Shandong, China from August 2014 until March 2015 and prior to that, from July 2012 until August 2014, he was working as a XXXX XXXX at a XXXX XXXX. The RPD asked him how he could continue to work when his evidence was that he was hiding with a relative in China from April 6, 2014 until he left the country in XXXX 2015. He testified that he was doing this work on and off, going to help out when needed. He would go at night and only stay for about 20 minutes of time. The RPD did not accept the explanation that a company would allow a worker to be employed on this basis. The RPD determined that it was not credible that the Appellant stated that he was in hiding and still went to work. [19] The RPD also asked the Appellant why he was still listed as working as a XXXX XXXX during the months of April 2014 to August 2014, when he was allegedly hiding at his cousin's house. He responded that he stopped going to work in April 2014 when he went into hiding, but that he was not dismissed by his company until August 2014. The RPD found that it would have been reasonable to expect the Appellant to provide details of his actual activities in response to the question about his personal history, as required in the form. The Appellant submits that as he remained technically employed by the company until August 2014, it was entirely reasonable that he would indicate that date as part of his work history. The RAD does not accept this explanation. The Appellant alleges that he was in hiding from the PSB as a result of his actions in the expropriation of the property. It is inconsistent that he would be in hiding and fill out a form in his claim stating that he was employed during that period of time, that he found new employment during that period of time, and that he went out at night and worked for only 20 minutes at a time. The Appellant submits that this is not a significant discrepancy. The RAD does not accept this submission as the basis of the Appellant's claim is that he is being unfairly pursued by the PSB and is at risk if he returns to China. The RAD finds that these inconsistencies lead to the conclusion that the Appellant was never in hiding in China. [20] The RPD pointed out that at the hearing that the Appellant testified that when he was taken in by the PSB, he was charged with a number of things, including disturbing the social order. He was asked why there was no answer to the question in his Schedule 12 form asking if he had ever been sought, arrested, or detained by the police or military or any other authorities in any country, including Canada. He replied that he did not have documents to show that this had occurred. He also gave evidence that the PSB continued to come to his home looking for him, following his being taken in and questioned. He was asked why he did not respond to the question on the form stating that he was being sought by the PSB. He again responded that it was because he did not have any documents. The RPD did not accept these explanations since the response to the question does not require any supporting documentation. The RPD found that as a result of these omissions, on a balance of probabilities, the Appellant was not facing charges in China and he was not wanted by the PSB. The RAD agrees with this rationale and this finding. [21] The Appellant testified that he obtained his Chinese passport in XXXX 2015 and stated that he did not leave his hiding place in order to obtain it. The RPD noted documentary evidence5 that states passport issuance requires in person applications including providing fingerprints and signature on site and as such, the Appellant would have to go in person for his passport to be issued. He stated that the smuggler obtained the passport and he did not have to go in person to obtain it. He was asked why he did not mention that the smuggler obtained the passport in his BOC or any other documents. He replied that he just did not mention it. The RPD did not accept this explanation as he had mentioned the smuggler's help with a Canadian visa and getting him through the security at the airport when he left China. Given the country documentation and the procedures to obtain a passport in China, the RPD found that, on a balance of probabilities, the Appellant went in person and applied for the passport. The Appellant submitted that the RPD has not indicated where the forms call for specific information that the smuggler was involved in obtaining a passport and that not every bit of information is required to be mentioned in the forms. It is further submitted that the RPD's finding is contrary to the Appellant's testimony and unreasonably requires that he disclose a level of detail in his forms that is not required or reasonably expected. The RAD does not accept this submission as there is persuasive evidence that a smuggler would be unable to obtain a genuine Chinese passport on behalf of someone else. The RAD finds that this is further evidence that the Appellant was never in hiding in China. [22] The RPD found that it was not likely that the Appellant would have been able to leave China on his own genuine passport if he was wanted by the PSB. The RPD cites documentary evidence6 stating that a national policing database known as the Golden Shield contains information on criminal fugitives as well as information on passports and exit and entry. The RPD notes another document7 states that airport security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities (also known as Policenet or the Golden Shield). There is documentary evidence that various sources report incidents involving Chinese citizens being detained at airports by the authorities and prevented from boarding an international flight; it is noted by one source of these incidents that there is clear evidence that airport officials are connected to the Policenet. According to one individual who was prevented from traveling to Geneva for human rights training in September 2013, when her passport was swiped by airport authorities: scanning equipment immediately made noises alerting airport officials that she was wanted by police. She was subsequently detained in the Guangdong Baiyun Airport and told that Shanghai police would not let her leave. She was then transferred from Guangdong to Shanghai for detention and questioning. The woman's experience provides concrete evidence of airport officials coordinating with police departments in tracking and detaining a political dissident. [23] The Appellant states that a recent Federal Court case8 has resolved this issue of the plausibility of one's ability to leave China on his/her own passport by stating: in light of the fact that the Board itself recognizes that bribery is prevalent and that it is possible that information would not be effectively shared, the Board was not entitled to conclude that the Applicant's story is implausible. It was equally entirely speculative to find that the Applicant could not plausibly have traveled through China to apply for US visa without being detected; this finding does not rest on any evidence. [24] The information used in that decision has been updated, as outlined above, including the specific occurrence of an individual whose passport was scanned and the system immediately alerted officials that she was wanted by police. The RPD did acknowledge that while not impossible, it did not find it likely that the Appellant would be able to leave China on his own passport as alleged, if he were indeed wanted and being sought by the PSB. The RPD considered the explanation that the smuggler bribed airport officials but based its finding on the recent documentation. The RAD agrees with this finding and taken with the other findings outlined above, concludes that the Appellant is not wanted by the PSB. [25] The RPD also drew a negative inference from the fact that the Appellant did not make a refugee claim when he first came to Canada and only made his claim after some time at the detention center. The RAD does not agree that this reflects on the subjective fear of the Appellant. The RAD also does not agree with the RPD's finding in regard to the plausibility finding that Chinese authorities would have opened the mail to find the documents sent by the Appellant's wife to Canada. [26] The Appellant testified that the family was given notice that they had to leave the property by XXXX XXXX XXXX 2014. He states that on that date officials from the developers, the city relocation office and members of the Public Security Bureau (PSB) came with construction workers, bulldozers and trucks and advised them if they did not move out they would demolish the building. He also gave evidence that some people were pulled out of their homes, furniture and appliances were removed and the properties were demolished. He gave evidence that his mother tried to stop them and his father laid on the ground when they came to their house. He says that he went to his mother's defense and was beaten unconscious. Later in his testimony he stated that his mother and father, as well as his wife and child, were still living in the property and that it had not been demolished. He stated that they had demolished houses in the west end of the village and they started the new building from that area. He was then asked if they no longer wanted to demolish the family home. He responded by stating that he thinks they would demolish it after they finish the construction from the west end. He was asked why they did not demolish his home and he stated that because he was beaten in XXXX they were afraid of problems this might create, so they left because his home was located in the middle of the village. He gave evidence that other homes in the centre of the village were also not demolished. [27] The Appellant's claim is based on the inadequacy of the compensation for the expropriation of the property. The property has not been expropriated. There is no documentary evidence of the charges against him. [28] The Appellant submits that the credibility findings of the RPD are not central to the allegations made by the Appellant, that he is being unfairly pursued by the PSB because of his actions in opposition to the expropriation of the family property. The Appellant has presented no persuasive evidence that the alleged expropriation of the property was illegal or that it even occurred. The Appellant did not agree with the compensation that was offered because it would not be enough to replace the family home. The central allegation in this matter is actually that the Appellant was unfairly treated by the PSB and is wanted by the PSB. The RAD finds that the credibility conclusions reached by the RPD, and with which the RAD agrees, relate to the Appellant actually being pursued by the PSB. The RAD agrees with the RPD that it is not credible that the Appellant is being pursued by the PSB or that he will be arrested if he returns to China. The RAD finds that there is no serious possibility that the Appellant will be persecuted if he returns to China or that, on a balance of probabilities, he will be at risk to his life or at risk of cruel and unusual treatment or punishment or torture if he returns to China. DISPOSITION [29] The appeal is dismissed. Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Ken Atkinson" Ken Atkinson December 2, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit RPD-1, RPD's Record, pp. 508- 525. 3 Exhibit RPD-1, RPD's Record, p. 55. 4 Exhibit RPD-1, RPD's Record, pp. 504-506. 5 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (October 31, 2014), item 3.8, RIR CHN104415.E, May 6, 2013. 6 Ibid., item 10.4. 7 Ibid., item 14.3, RIR CHN104761.E, March 6, 2014. 8 Sun, Hongxin v. M.C.I. (F.C., no. IMM-8088-13), de Montigny. March 27, 2015, 2015 FC 387. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08418