TB4-04061

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 : TB4-04061 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 17, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Matthew Oh Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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), a citizen of China, appeals a decision of the Refugee Protection Division (RPD), rejecting his claim for refugee protection. The Appellant has not submitted new evidence in support of his claim. He has however requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that he is a Convention refugee or a person in need of protection. Alternatively, he requests an oral hearing. Alternatively, he further requests that the matter be remitted back to the RPD to be reconsidered 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 finding of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [3] The Appellant alleged he feared persecution, as a result of his illegal underground Roman Catholic house church activities. His parents were Roman Catholics and he was initially brought to their house church in XXXX 2010. On XXXX XXXX, 2012, their church was raided by the Public Security Bureau (PSB). He escaped and went into hiding, but his parents were arrested. The PSB went to his home and the home of his grandparents, and accused him of involvement in illegal religious activities. His relatives found a smuggler but, because they lacked sufficient funds, the Appellant was required to work in Canada until the fee was paid. He was forced to work on a XXXX in Ontario. He was released at the end of XXXX 2013, when the fee was paid off. He recently learned the PSB are still looking for him, and his parents are still in jail. He attends a church in Canada. ISSUES [4] The Appellant submits that the issues in this appeal are the following: What is the applicable standard of review? Did the RPD err in its assessment of the Appellant's credibility? Did the RPD fail to properly assess the risk to the Appellant as a child of an arrested underground Catholic? [5] The RPD indicated the determinative issue in this claim is credibility. ANALYSIS The Role of the RAD [6] While the Immigration and Refugee Protection Act (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. The RAD now has the benefit of some Federal Court jurisprudence which speaks to the appellant tribunal's role in relation to that of the RPD. [7] Most recently, the Court in Huruglica, considered the appropriate relationship between 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. [8] 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." 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. [9] The RAD notes the Appellant indicates the standard of review is one of the issues on appeal. The RAD has reviewed the Appellant's argument in this regard and the case law on which it is founded. The RAD notes however, that this case law has been considered in Huruglica, and the RAD considers Huruglica the leading case in regard to this matter. APPLICATION FOR AN ORAL HEARING [10] The Appellant has requested an oral hearing. Section 110(3) of IRPA requires that the RAD proceed without a hearing on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the Appellant that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence (i.e., evidence admitted under subsection 110(4), subsection 110(5) or Minister's evidence), in which case, the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. No new evidence has been submitted in support of this claim, and therefore the RAD dismisses the application for an oral hearing. Notice of Detention [11] The RPD noted the Appellant obtained a genuine Chinese passport in XXXX 2012. He applied for a Canadian student visa on XXXX XXXX, 2012, and the visa was issued on XXXX XXXX, 2012. The Appellant arrived in Toronto on XXXX XXXX, 2012, and made a refugee claim on March 24, 2014. The Appellant filed a notice to his family that informed them that his mother was arrested on XXXX XXXX, 2012, on suspicion that she was involved in an illegal religious organization. The Appellant's father signed for this document as the 'receiver' on XXXX XXXX, 2012. [12] The Appellant testified that both of his parents were arrested on XXXX XXXX, 2012, and sentenced to two and a half years in jail. The Appellant was asked how his father could have signed the arrest notice if he had been detained. The Appellant stated that they each signed for each other. The RPD noted that the purpose of the notice was to inform family members that a person, the Appellant's mother, had been detained. The RPD noted that, based on this document, it was satisfied the Appellant's mother had been detained, but not his father. The RPD found the Appellant had not been truthful on this issue. [13] The Appellant submits that, as he was only 17 years old at the time of the arrest, and given he had no siblings, it is plausible that each of his parents signed the notice of detention in order to notify the Appellant of the arrest since, as a minor, he would not have had the legal capacity to sign as a 'receiver'. [14] The Appellant further submits that the Member appeared to accept the genuineness of the detention document and that it established that the Appellant's mother had been arrested. The Appellant noted the Member only took issue with whether the Appellant's father was detained and the Member indicated it was implausible that the Appellant's father would have signed his mother's detention notice if he too had been detained. [15] The Appellant submits the Member's implausibility finding was speculative and it was made without regard to material evidence. [16] The RAD notes that the Appellant indicated in his Basis of Claim form (BoC) narrative that both his parents were unable to escape the alleged raid and that they were arrested by the PSB. The RAD further notes that the Appellant further indicated in his BoC narrative that the PSB came to the Appellant's home and also came to the home of his grandparents. The RAD finds that, if the PSB considered the Appellant to be too young to sign as a 'receiver', the notice could have been given to one of the Appellant's grandparents who could have signed as a 'receiver'. The PSB visit to the Appellant's grandparents' home indicates the PSB were aware of their address. The RAD notes however that the Appellant did not disclose any evidence that the Appellant, at age 17, would not have been allowed to sign for the notice. The RAD finds that it was open to the RPD to find that the Appellant's testimony that his parents signed for each of their detention notices is implausible. The RAD notes in this regard that only a detention notice concerning the Appellant's mother was disclosed for the hearing. There was no notice signed by the Appellant's mother that indicated his father had been detained. Exit from China [17] The RPD noted that, subsequent to his mother's arrest, the Appellant took his passport to the US Consulate to be fingerprinted with no adverse consequences from Chinese authorities. In addition, he obtained a Canadian study visa. As well, he was able to pass through security and border control at the airport without being detained. The RPD noted, in this regard, that the PSB has a criminal database, the Golden Shield Project, and is responsible for exit controls. The RPD also noted no copy of a subpoena, summons, or other document indicating the Appellant was a person of interest to the PSB was disclosed. [18] The Appellant stated in the hearing that he was able to leave China without trouble because he was assisted by a smuggler. The RPD noted that he was not truthful about his father's arrest, and no documentary evidence was disclosed concerning any interest in him by the PSB. The RPD further noted that the Appellant left China under his own identity. The RPD concluded that, more likely than not, the Appellant was able to leave China with a valid passport and Canadian visa without any interest of Chinese authorities. [19] The Appellant submits that the RPD failed to address evidence that he was able to leave China undetected because he had the assistance of a smuggler. The Appellant further submits that the RPD's silence on this issue should lead to an inference that this evidence was either overlooked or ignored, and its finding was made without regard to the evidence. [20] The Appellant cites the Federal Court decision in Zhang,2 in which the Court held that bribing even just one official, with access to the computer system, would be sufficient. [21] The Appellant also cites country document evidence indicating problems getting local officials to share information and noting that China's policing system is not highly centralized but very decentralized. [22] The Appellant submits as well that the RPD failed to address contradictory evidence in making its finding in this regard. [23] The RAD notes the RPD did indicate in its reasons that the Appellant stated that he was able to leave China without a problem because he was assisted by a smuggler. The RAD further notes that the RPD concluded the Appellant did not encounter a problem in regard to his exit from China because, in the context of his untruthful testimony concerning the arrest of his father, and, as well, in the context of his failure to produce any evidence that indicated he was a person of interest to the PSB, he was able to leave legally using his own name and travel documents because Chinese authorities had no interest in him. The RAD finds it was open to the RPD to make this finding in the circumstances noted by the RPD. [24] The Appellant argues that the RPD misapprehended the evidence when it found that the PSB's Golden Shield Project is responsible for exit control and when it found that the Appellant was able to leave legally because Chinese authorities had no interest in him. The Appellant cites the Federal Court decision in Zhang3 to support his argument. In that case, the reviewing court took exception to the RPD's finding when it concluded that possibly hundreds of officials had to be bribed to facilitate undetected departure from China. [25] The Appellant argues that he used the services of a smuggler in order to avoid detection by airport officials. [26] The RAD is not persuaded by the Appellant's argument that these cases are similar. The RAD notes that, in the Zhang4 matter, the claimant provided testimony that officials were bribed. There is no such evidence in the case at hand. The Appellant merely testified that his exit was facilitated by the smuggler who made the arrangements for him to leave China. In addition, in the case at hand, the RPD did not speculate that hundreds of officials had to be bribed. [27] More significantly, the decision in Zhang was based on documentary evidence that existed in 2008 and made no reference to the Golden Shield Project, which was relied upon by the RPD in this case. In the Zhang matter, the reviewing court made reference to a 2001 Response to Information Report (RIR), which addressed security and exit control procedures at Chinese airports. The documentary evidence before the RPD on issues of security and exit control is contained in RIR CHN102869.E, Exit controls and security measures at airports in China for mainland citizens traveling overseas or to Hong Kong.5 [28] According to this documentation,6 there are separate barriers at airports that are designated for Chinese citizens, foreign travelers, diplomatic staff, and airline personnel. The Frontier Defense Inspection Bureau (FDIB) examines the passport and immigration and departure cards of Chinese travelers and verifies the identity of the person through a computerized records system. The same documentation indicates that Chinese citizens traveling overseas are required to show a valid passport, visa, boarding pass and exit registration card. The same documentation indicates that all international airlines have to provide (accurate), (complete), and (timely), information on passengers and airline staff to the Chinese border authorities. The requested information reportedly includes name, nationality, gender, date of birth, passport number and expiration date. [29] If the Appellant was wanted by the PSB, he would not reasonably have been able to leave China according to the same documentation. The RAD finds the RPD has not erred in making its finding concerning the Appellant's exit from China, and that there is an evidential basis in the RPD record. [30] The RPD has noted the lack of documentary evidence indicating a PSB interest in the Appellant. The RAD notes that the Appellant's testimony is presumed to be true, but that presumption can be challenged if there is an evidential basis for the challenge. The RAD further notes that, while documentary evidence is not always required; in some cases, it is reasonable to expect documentation. The RAD finds that the RPD did not err when it noted the lack of any corroborating evidence that the PSB were pursuing the Appellant as a basis, in part, for its finding regarding the Appellant's exit from China. [31] The RAD notes that the PSB issued a notice of detention in regard to the Appellant's mother, and this document indicates that the PSB, in this locality, documents its actions. The RAD further notes that the Appellant indicated in his BoC narrative that the PSB not only went to the Appellant's home but also went to his grandparents' home, and as well that the PSB are still looking for him. [32] The Federal Court in Zhang7 noted the police did not always leave a summons, but, given the number of times the claimant alleged police visits, the documentary evidence indicated that it was reasonable that the police would have left something at some time. In addition, the Federal Court's decision in Cao8 cited the Court's decision in Zhang9 in concluding the RPD had not erred in determining that the police should have left a summons in the context of multiple visits. [33] The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.10 Where the RPD finds a lack of credibility based on inferences concerning plausibility of evidence, there must be a basis in the evidence to support such inferences. In this case, there is an evidential foundation for the RPD's findings. Whether the Appellant was forcibly confined by the smuggler in Canada [34] The RPD noted the Appellant arrived in Canada in XXXX 2012 but waited until January 21, 2014, to make a claim for protection. The Appellant explained he was detained on XXXX XXXX until he paid off his debt to the smuggler, and he made his claim after he was released. The Appellant did not complain to Canadian police about his forceful confinement. The RPD further noted that no documents were disclosed concerning the question of where he was between XXXX 2012 and XXXX 2014. [35] The RPD noted the Appellant was not truthful about the arrest of his father, the existence of a warrant for his arrest, and the role of a smuggler, and the RPD concluded that there was insufficient credible or trustworthy evidence that the Appellant was forcibly confined in Canada as he alleged. [36] The Appellant submits that the RPD's credibility analysis noted above taints the entirety of its decision as to the remainder of the claim, and in this regard it failed to apply the presumption of truth in regard to the Appellant's claim as he was forcibly confined on his arrival in Canada. [37] The RAD notes that the presumption of truth is not absolute and it can be rebutted with evidential support. The RAD further notes the RPD found there was insufficient evidence to confirm that the Appellant was forcibly confined in Canada. The RAD finds that it was open to the RPD to make this finding in the context of the lack of any corroborating evidence. The RAD finds as well that the RPD's findings concerning alleged events in China may have influenced the RPD's consideration of events in Canada. In this regard the RAD cites the Federal Court decision in Jiang,11 in which the Court held that the Board must be entitled to import its credibility findings into its assessment of an applicant's sur place claim. In any case, the RAD finds the issue of the Appellant's alleged forcible confinement does not concern a surplice claim. Rather, it concerns the Appellant's delay in making his claim. The Risk to the Appellant as a Child of an arrested Underground Christian [38] The Appellant testified he joined a Roman Catholic church in XXXX on XXXX XXXX, 2014, and demonstrated a basic knowledge of its beliefs and practices. [39] The RPD found that the Appellant's mother was arrested for illegal religious activities, but that the Appellant and his father were not likely of interest to Chinese authorities. The RPD noted the Appellant indicated that he joined a Roman Catholic church in XXXX in XXXX 2014, a month after he filed his claim and approximately one and a half years after his arrival in Canada. The RPD further noted that no document was filed from the Church to substantiate his affiliation or current status. In this context, the RPD indicated it was not satisfied the Appellant was a Roman Catholic as a matter of conscience. The RPD found that the Appellant likely studied the subject after his refugee claim was filed primarily in order to prepare for the hearing. [40] The RPD cited country document evidence concerning the state-authorized Catholic Church (CPA), which indicates that 90 percent of its bishops and priests have been ordained by the Vatican. It is further indicated that the government has pressured Catholic clergy to affiliate with the CPA, and some have been arrested and detained. In addition some laypeople have been detained. The RPD found, however, that the evidence is insufficient to establish a level of practice linked to conscience that would put the Appellant at risk of persecution or of cruel and unusual treatment or punishment in China because of his affiliation with the Roman Catholic Church. [41] The Appellant submits the RPD accepted that the Appellant's mother was arrested and only took issue with whether the Appellant's father had been arrested. The Appellant further submits the RPD ought to have assessed the risk to the Appellant as the child of an arrested underground Catholic. [42] The Appellant submits as well that the RPD failed to consider country document evidence in this regard and specifically cites item 12.1612 in the National Documentation Package, which indicates that "while there are no specific laws or regulations concerning the cessation of rights for children of house church Christians, there have been several instances of persecution amongst children of house church pastors and Christians". The document further indicates that the China Aid Association had received reports that "children of the underground church were discriminated against, even expelled from schooling". [43] The RAD notes that the RPD found that neither the Appellant nor his father was of interest to the PSB. The RAD finds, in the context of the Appellant's father signing for the detention notice concerning the Appellant's mother, and the lack of any detention notice concerning the Appellant's father, and the lack of any corroboration concerning the PSB's interest in the Appellant, and as well concerning the lack of any evidence that the Appellant was in school, that the RPD did not err in finding that the PSB had no interest in the Appellant. [44] The RAD notes that the evidence in the document cited above is vague. It indicates that children of house church pastors have experienced discrimination but it provides no specific evidence in this regard. The RAD further notes that there is a reference to reports indicating children had been expelled from school, but again there is no corroborating evidence in regard to specific cases where this has happened. [45] The RAD finds that it was open to the RPD to find that the Appellant was not of interest to the PSB. The RAD further finds that there is insufficient evidence to support a determination that the Appellant would be at risk of persecution or cruel and unusual treatment or punishment merely because he is the son of a person arrested because of her underground religious practice. [46] The RAD has reviewed counsel's additional submissions concerning standard of review. The RAD's view on this matter is noted in paragraphs 6-9 above. [47] The RAD has considered all of the evidence in this case and finds the RPD made no errors in arriving at its conclusion. DISPOSITION [48] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the finding of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [49] The appeal is therefore dismissed. (signed) 'Milton Israel' Milton Israel September 17, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 Zhang, Xiu Jie v MCI (FC, no. IMM-2703-07), Dawson, April 23, 2008; 2008 FC 533 3 Zhang, Xiu Jie v MCI (FC, no. IMM-2703-07), Dawson, April 23, 2008; 2008 FC 533 4 Ibid. 5 National Documentation Package, China, 14 March 2014, item 14.3 7 Zhang, Xi Shun v MCI (FC, no. IMM-6200-10), Kelen, June 8, 2011; 2011 FC 654 8 Cao, Feng Lan v MCI (FC, no. IMM-2326-12), Near, November 29, 2012; 2012FC 1398 9 Supra, footnote 4 10 Numbi, Gaston Kipa v MCI (FC, no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19 11 Jiang, Sumei v MCI (FC, no. IMM-13-12), Zinn, September 10, 2012; 2012 FC 1067 12 RPD-1, National Documentation Package, China, item 12.16 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04061