TB6-00433

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 : TB6-00433 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 9, 2016 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine 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 N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), is a citizen of China. The Appellant appeals the Refugee Protection Division's (RPD's) decision of December 17, 2015 that the Appellant is not a Convention Refugee. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) upholds the RPD's decision that the Appellant is not a Convention Refugee. Memorandum of Appeal [3] The Appellant raises the following issues: i) The panel's unreasonable assessment of the Appellant's supporting documents; ii) Erroneous determination based on cumulative findings. [4] The Appellant respectfully requests that the RAD set aside the RPD's decision, substitute that decision with its own determination that the Appellant is a Convention refugee or a person in need of protection in accordance with its jurisdiction under Section 111(1)(b) of the IRPA. Alternatively, the Appellant respectfully requests that the RPD remit this matter back to a differently constituted panel of the Immigration and Refugee Board (IRB) under section 111(1)(c) of the IRPA. Background [5] The Appellant is a mother of two children, born on XXXX XXXX XXXX 2005 and XXXX XXXX, 2007. The Appellant was forced to pay a 40,000 RMB fine for having a second child born outside the regulations. [6] After she was divorced from her husband on XXXX XXXX, 2012, she applied to the local birth control office for removal of the IUD, and her application was approved. In XXXX 2014, the Appellant became involved with another man, and she discovered in XXXX 2015 that she was pregnant. While planning to go into hiding, three birth control officers took her to their office for the pregnancy check, and then told her that she had to have an abortion because the pregnancy was illegal. The pregnancy was terminated through an injection. [7] After paying the 35,000 RMB fine, she received a notice for sterilization that stated that either she or her boyfriend were to report on XXXX XXXX, 2015. As result of this notice, the Appellant went to her aunt's house to hide, and her boyfriend went to his cousin's house to hide. On XXXX XXXX XXXX 2015, two birth control officers left another notice with her parents, and, as a result, she found a smuggler to flee China. After arriving in Canada, she received a call from her aunt that her two children, as well as her stepson, were expelled by their schools due to the Appellant's and her boyfriend's breach of the Chinese birth control policies. [8] The refugee hearing was held on October 29, 2015, and in a decision of December 17, 2015, the RPD found that the Appellant had not satisfied the burden of establishing a serious possibility that she would be persecuted, or that it is more likely than not that she would be personally subjected to a danger of torture, or face a risk to life, or risk of cruel and unusual treatment or punishment should she return to China. ROLE OF THE RAD [9] The Appellant made no submissions on the Standard of Review. [10] The RAD concurs and finds that the Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant 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". [11] Accordingly, the RAD will conduct its own assessment 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 MERITS OF THE APPEAL The Panel's Unreasonable Assessment of the Appellant's Supporting Documents Boyfriend Leaving Hiding [12] The Appellant produced a photocopy of her boyfriend's resident identity card (RIC). She stated that she could not produce the original RIC because he needed it for work in order to support his family. The RPD questioned why he needed his RIC if he was allegedly in hiding, according to her Basis of Claim (BoC) narrative.2 She testified that he left hiding in spite of the birth control office requiring one of them to be sterilized, because the birth control office only knew her address not his. She testified that he originally went into hiding because he was living at her home. [13] The RPD did not find her explanation reasonable, given that the authorities knew his name, and it would be reasonable to expect them to find out his address and/or place of employment. The RPD also found it reasonable that the officials would have looked for her boyfriend's address. As a result, the RPD found that the Appellant did not reasonably explain why he left hiding when he was being actively sought by the birth control authorities. The RPD drew a negative inference with respect to the Appellant's credibility and the allegation that the birth control authorities are interested in either of them. On a balance of probabilities, the RPD found that the birth control office is not interested in the Appellant's boyfriend. [14] The Appellant explained that he was forced to leave hiding to provide for his family and that the RPD's conclusion on this issue amounts to a plausibility finding. The Appellant submits that plausibility findings should be made in the clearest of cases and quoted Federal jurisprudence.3 The Appellant submits that the RPD used its own expected standard of behavior to question the actions of the Appellant's boyfriend in China, and this amounts to speculation. The Appellant also submits that the RPD used this finding to impugn the authenticity of numerous documents and the Appellant's overall credibility. [15] The RAD finds, on a balance of probabilities, that if the Appellant and her boyfriend were being actively sought by the family planning officers (FPOs), they would have been able to locate her boyfriend after he left hiding and went to work. This finding is reinforced by the following: the FPO had gone to her house and left notices4 for their sterilization, and documentation5 was submitted to show that the Appellant's two children were allegedly stopped from registering at school. In the Appellant's BoC narrative,6 she indicates that her stepson was also expelled. No documentation was submitted to support this allegation, contributing to a finding in this decision that the Appellant's boyfriend did not have a child. [16] The RAD rejects the submission by the Appellant that this finding was used to impugn the authenticity of numerous documents and the Appellant's overall credibility. As will be shown below in this decision, the RPD had many other credibility concerns upon which to base its decision. The RAD, given the documentation submitted as well as the Appellant's testimony, finds, on a balance of probabilities, that the authorities would certainly have been able to find the Appellant's boyfriend if he came out of hiding. Notice of Sterilization and Finding [17] The Appellant produced two pieces of documentation,7 dated XXXX XXXX, 2015, indicating that she had to pay a 35,000 RMB fine and that either she or her boyfriend should come for sterilization on XXXX XXXX, 2015. The RPD noted that the notice of fine quoted that the Appellant had breached Regulation 3(23) of the Population and Birth Control Policies of Fujian Province. The RPD stated to the Appellant that she searched the National Documentation Package (NDP) documentation8 and could not find the regulation referred to in the notice. The Appellant had no explanation for this incorrect statement of the regulation. [18] As a result of the above, the RPD found the notice of fine to be fraudulent. The RPD stated that it would be reasonable to expect that a notice issued by the FPO authorities will contain the correct regulation. With respect to this finding along with the previous finding that the authorities are not interested in her boyfriend, the RPD was not persuaded that the fine notice was a genuine document and gave it no evidentiary weight. [19] In observing the sterilization notice, issued the same day, the RPD found that this document was fraudulent as well and gave it no evidentiary weight. The RPD reasoned that the notice of fine, issued the same day, was found to be fraudulent, and, as a result, cannot give any weight to the notice of sterilization. The RPD quoted NDP documentation9 to state that fraudulent documentation from China is easily obtainable. [20] The Appellant produced a second sterilization notice,10 dated XXXX XXXX, 2015, that was allegedly left with her parents on XXXX XXXX, 2015. When asked what the second notice said, she testified that it told them to report for sterilization on XXXX XXXX, 2015. After confirming that she was certain about her testimony, the RPD showed the Appellant the notice. The notice states that either the Appellant or her boyfriend were to go for sterilization within a week. The Appellant then changed her testimony stating that the birth control officials told her parents on XXXX XXXX, 2015 that she had to go for sterilization on the same date, and that she had no idea what happened after. The RPD drew a negative inference with respect to credibility because of her inconsistent and shifting testimony. The RPD noted the inconsistency between her testimony and the documentation. Given the findings of other fraudulent documentation, the RPD determined, on a balance of probabilities, that the second sterilization notice is not genuine and gave it no evidentiary weight. [21] The Appellant submits that the documentation quoted above should have been assessed independently, and not relied upon the speculative finding that the Appellant's boyfriend was not being sought by the family planning authorities. The Appellant also submits that she is not an expert on Fujianese Family Planning Regulations, and she has only nine years of formal education. [22] The Appellant submits that, if the documentation was fraudulent, she would have studied the document to provide correct answers when questioned. The Appellant also submits that the RPD's finding that her boyfriend was not wanted by the FPO tainted the finding on the notice of fine and sterilization. [23] The Appellant submits that the RPD was unreasonable in relying on regulations from the year 2002, some 13 years old. The Appellant gave examples of other family planning regulations that have been updated, and she indicated that a newer version of the Fujian regulations existed at the time of the hearing. The Appellant referenced the affidavit of XXXX XXXX11 that stated that the Population in Family Planning Regulations of Fujian province was last updated on March 31, 2014. [24] The Appellant references NDP documentation Response to Information Request (RIR) CHN103401.E to indicate that there were significant issues with the rule of law in China and procedural implementation. The Appellant specifically quotes that, "public security officials in the local areas routinely failed to follow established laws and regulations." The Appellant also referenced federal jurisprudence12 regarding the same issue. [25] The RAD, in reviewing the alleged notice of fine, noted that the Regulation 3(23) quoted cannot be found in the NDP documentation.13 The RAD finds that this documentation is fraudulent. One would expect that the FPO would quote the appropriate regulations when sending such a notice. With reference to the Appellant's submissions, the Fujian Population Planning documents may have been changed, as stated in the affidavit referred to above. However, no documentation was presented by the Appellant to substantiate that the regulations now in existence validate that the number presented on the notice is accurate. Given the absence of any documentation to support the genuineness of the alleged regulation number, the RAD cannot discount the above finding. [26] With respect to the Appellant's submission regarding the rule of law in China, the RPD does not find it applicable in this situation. The issue was putting down the correct regulation on the alleged notice of fine. [27] In reviewing the testimony of the RPD hearing, the RAD finds that the Appellant did in fact insist that the second notice of sterilization14 required her to be sterilized the same day, XXXX XXXX, 2015. In reviewing the notice, the RPD notes that either the Appellant or her boyfriend were expected to report within the following week. After being shown the notice, the Appellant changed her testimony, and she testified that she only knew what her parents told her.15 The RPD draws a negative inference regarding the Appellant's credibility because of the inconsistency between her testimony and documentation, and the Appellant's inconsistent testimony regarding this issue. [28] In reviewing the second notice of sterilization, the RAD gives it no weight. After finding the first notice of sterilization and fine fraudulent, it would stretch credulity to find a similar notice, with the same date of issue and from the same alleged organization, to be genuine. [29] With respect to the Appellant's submissions that the RPD's finding that the boyfriend was not wanted by the FPO tainted the findings on the documentation, the RAD disagrees. The finding of the boyfriend not being wanted by the authorities is a standalone finding. The RPD references this finding as one of the findings in an accumulation of findings that the Appellant is not credible and has produced fraudulent documentation. The findings on the notice of fine and sterilization are based on independent analysis, and the reference to the Appellant's boyfriend is simply indicating that there is an accumulation of findings regarding her lack of credibility. BOC Omissions [30] During testimony, the Appellant stated that the FPO authorities returned to her home on XXXX XXXX, 2015. When asked why the delay, if she was to be sterilized by XXXX XXXX, 2015, she changed her testimony that they came between XXXX XXXX and XXXX XXXX, but she did not even notice. In further questioning, she stated that they came to her home on XXXX XXXX or XXXX XXXX, and XXXX XXXX XXXX When asked why these dates were not put in her BoC narrative, the Appellant stated she provided two visits and did not know how to write it. The RPD drew a negative inference with respect to her credibility from this material omission. The RPD did not accept the Appellant's explanation, given the importance of the issue, that of sterilization of herself or her boyfriend. The RPD noted that the Appellant was represented by experienced counsel and did not find it reasonable that such pertinent information would not be included in her BoC narrative. [31] Given the lack of credibility demonstrated above, the RPD found, on a balance of probabilities, that the Appellant was not being sought by the FPO authorities for sterilization [32] The Appellant submits that the omissions do not contradict or undermine her narrative. The explanations provided merely expand upon it. [33] The RAD draws a negative inference regarding the claimant's credibility because of the lack of such pertinent information not included in her BoC narrative. Having been represented by experienced counsel, if such information was given, it would be reasonable to expect a BoC narrative addendum. The issue of the alleged sterilization of herself or her boyfriend is the basis of her claim. It is not reasonable that such important information as the continuing search for the Appellant by the FPA authorities would not be included. Other Documents [34] Given the finding that the documents above were fraudulent, the RPD found, on a balance of probabilities, that the Birth Control Operation Certificate16 and Notice from the school17 are not genuine documents and are given no evidentiary weight. The notice from the school is based on the Appellant having breached the birth control policies of China. The RAD has found that the Appellant and her boyfriend did not breach these regulations. [35] The Appellant made no submissions on these specific findings. [36] The RAD, given the findings of fraudulent documentation above, finds that these two notices, on a balance of probabilities, are not genuine and gives them no weight. Presence in China/being in China at the Relevant Time [37] The RPD outlined the Appellant's interview with the Canada Border Services Agency (CBSA)18 outlining the Appellant's inability to explain how she arrived in Canada. The RPD noted that the Appellant provided no documents from the trip. Because the RPD found other documentation presented to be fraudulent, the RPD found that the Appellant had not established that she was in China at the times material to her claim-XXXX 2015 to the time she alleges she left China, XXXX XXXX, 2015. [38] The RPD noted that the Appellant was inconsistent regarding her testimony about the specifics and timing of giving her documentation to the smuggler. The RPD drew a negative inference with respect to the Appellant's credibility because of her contradictory, inconsistent, and shifting testimony about her travel documents. The RPD referenced federal jurisprudence19 concerning the importance of passport and travel documents. The RPD drew a negative inference with respect to her overall credibility from her failure to provide these materially relevant documents to establish her journey from China to Canada and her presence in China at the relevant times. [39] The Appellant submits that there was nothing before the RPD to question the truthfulness of her testimony with respect to being in China, at the relevant times. The Appellant referenced Maldonado20 and states that, in the absence of any evidence to the contrary, the RPD appears to be questioning the Appellant's presence in China at the time the events took place. This is unreasonable. The Appellant also submits that the issue of passport and boarding passes taken by the smuggler are both powerful and microscopic, and have no logical bearing on whether the Appellant was in China at the relevant time. The Appellant further states that the Federal Court has established that the absence of evidence cannot be relied upon to contradict an Appellant's sworn testimony. In conclusion, the Appellant submits that these inconsistencies have no bearing on whether the Appellant is facing a risk of persecution in China for account of family planning violations [40] The RAD finds that the Appellant's lack of documentation and inconsistent testimony regarding her travel and documentation undermine her credibility. However, the RAD agrees with the Appellant that these issues do not speak to the main basis of the claim, that is whether she faces a risk of persecution in China on account of family planning violations. In reviewing the transcript of the hearing, there was insufficient evidence gathered to allow the RAD to make a finding on the Appellant's presence, or lack of presence, in China at the relevant time. Residual Profile [41] The RPD, given the DNA results,21finds that the Appellant is a mother of two children. The RPD referenced several Federal Court decisions to support that forced sterilization is a fundamental violation of basic human rights and that threat of forced sterilization can ground a fear of persecution within the meaning of the Convention refugee. [42] The RPD noted that, during the hearing, the Appellant did not disclose an aversion to wearing an IUD. The RPD stated that, "based on her own evidence that after her divorce, she had the IUD removed with permission of the birth control office, the panel finds, on a balance of probabilities, that she has not established that she would be required to wear an IUD upon her return to China, that she is opposed to having an IUD." Quoting a Federal Court decision,22 the RPD found that she did not have the difficulties that she alleged with the FPO and, as a result, did not find that she had satisfied their burden of establishing a serious possibility that she will be sterilized upon return to China. The RPD found, on a balance of probabilities, that the Appellant did not breach China's birth control policy and that her alleged fear of sterilization is not well founded. [43] The RPD stated that, "Although the issue of wearing an IUD was not raised in this claim, having found that the Appellant did not have difficulties with the birth control office, and given that the Appellant has not alleged a fear of wearing an IUD, together with country documents23 which provide that enforcement significantly varies from one locale to another, the panel is not persuaded that the Appellant would be subjected to forcibly wearing an IUD upon return to China." [44] The Appellant submits that the RPD misapprehended the application and guidance provided by the Federal Court, in Rahaman,24 stating that prima fascia case for persecution is made if the Appellant is a national of China and has two children. Those facts have not been "eroded". [45] The Appellant submits that, as a result of the arguments presented in the Memorandum, the RPD's conclusions cannot stand. The Appellant also submits that, if the RAD finds some of the conclusions justifiable, it would be unreasonable for the RAD to attend the analysis given the fact that the case came down to credibility findings. The RAD should remit the case back to a newly constituted panel. [46] The RAD noted, in reviewing the transcript of the RPD hearing,25 the Appellant testified that she was afraid of being sterilized, and she feared the FPO authorities, if she returned to China. In reviewing the entire transcript, the Appellant never at any point indicates an aversion to or fear of wearing an IUD. However, this issue was not explored by either the RPD or the Appellant's counsel at the hearing. [47] The RAD finds that the Appellant is the mother of two children. From the transcript of the hearing, the RAD finds also that the Appellant appeared not to have difficulty in her relationship with the FPO until she was allegedly found pregnant. As stated earlier in this decision, the RPD found that the documentation to support the alleged pregnancy, alleged abortion, and alleged threat of sterilization, were found to be fraudulent. Other supporting documentation was found to be fraudulent as well. The basis of this claim, according to the Appellant, is that she would be sterilized if she returned to China. Having found the documentation presented to support this allegation is fraudulent, the RAD finds, on a balance of probabilities, that the alleged abortion and threat of sterilization are not credible. [48] There is nothing in the documentation that the Appellant presented, or in her testimony, that would suggest that she will be forced to wear an IUD if she returns to China. As stated above, the RAD finds nothing in the testimony of the hearing that would suggest the forcible insertion of an IUD, or the Appellant's concern if she had to wear an IUD. [49] As a result, the RAD finds, on a balance of probabilities, that the Appellant could return to China without fear of persecution and torture, or risk to her life, or risk of cruel and unusual treatment or punishment. DISPOSITION [50] The RAD dismisses the appeal and upholds the decision of the RPD, according to section 111(1)(a) of the IRPA. (signed) "Robert S. Garner" Robert S. Garner March 9, 2016 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, at pp. 24-26. 3 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001, 2001 FCT 776; [2001] F.C.J. 1131; Ilyas, Muhammad v. M.C.I. (F.C., no. IMM-5636-03) Russell, September 16, 2004, 2004 FC 1270 4 Exhibit RPD-1, RPD's Record, at pp. 545-550. 5 Ibid., pp. 551-552. 6 Ibid., p. 25. 7 Exhibit RPD-1, RPD's Record, pp. 545-548. 8 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (17 July 2015), item 5.9. 9 Ibid., Item 3.22. 10 Exhibit RPD-1, RPD's Record, at pp. 551-552. 11 Exhibit P-2, Appellant's Record, Memorandum of appeal, pp. 15-16. 12 Chen, Jin Xiang v. M.C.I., (F.C., no. IMM-5888-12), Rennie, March 26, 2013, 2013 FC 311. 13 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (17 July 2015), item 5.9. 14 Exhibit RPD-1, RPD's Record, at pp. 34-35. 15 Exhibit RPD-2, Transcript of the RPD hearing, at pp. 29-30. 16 Exhibit RPD-1, RPD's Record, at pp. 543-544. 17 Ibid., pp. 551-2. 18 Ibid., p. 70. 19 Elazi, Iseikete Simon v. M.C.I. (F.C.T.D., no. IMM-1038-99), Nadon, February 17, 2000, 2000 Canlii 14891 (FC), cited with approval in Okafor, Edwin Chinedu M v. M.C.I. (F.C., no. IMM-2081-11), Harrington, January 25, 2012, 2012 FC 99. 20 Maldonado, Pedro Enrique Juarez v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; Reported: Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 21 Ibid., pp. 561-565. 22 Rahaman, Masoodhur v. M.C.I. (F.C., no. IMM-5190-06), Beaudry, October 3, 2007, 2007 FC 1008. 23 Exhibit, RPD-1, RPD's Record, National Documentation Package (NDP) for China (17 July 2015), item 5.5, Response to Information Request (RIR) CHN104963.E. 24 Rahaman, supra. 25 Exhibit RPD-2, Transcript of the RPD hearing, at p. 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :