TB3-04422

RAD File No. / N° de dossier de la SAR : TB3-04422 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 26, 2013 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Diane B. Coulthard 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 (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX XXXX a citizen of China, has appealed a negative determination of the Refugee Protection Division (RPD) dated June 20, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the Refugee Protection Division (RPD) that the Appellant is not a Convention refugee nor is he a person in need of protection. BACKGROUND [3] Mr. XXXX (the Appellant) alleges that he was identified by authorities in China because of his wife's involvement in an illegal underground Roman Catholic Church in Guangzhou and the couple's violation of China's birth control policies. [4] The Appellant alleges that his wife joined an underground Catholic church in XXXX of 2010. The Appellant was not interested in joining his wife at church. The Appellant alleges that, on XXXX XXXX, 2010, his wife's church was raided by the Public Security Bureau (PSB). His wife managed to escape and went into hiding. The PSB attended the Appellant's home three days later and accused the Appellant's wife of being involved in an illegal underground church. The PSB searched the house. They returned on XXXX XXXX, 2010 with a summons. The PSB also harassed the Appellant's mother, his in-laws and his siblings. [5] The Appellant and his wife travelled to the United States with the assistance of a smuggler. The Appellant's wife travelled to Canada; however, the Appellant was stopped by US Immigration and Customs officers and was ordered to return to China in XXXX of 2010. [6] The Appellant's wife gave birth to a son on XXXX XXXX, 2011 in Canada. She found out she was pregnant for a second time in late XXXX XXXX 2012 and made her claim for protection. [7] The Appellant returned to China and was subject to harassment and threats by the PSB who kept coming to look for the Appellant's wife. On XXXX XXXX XXXX 2012, the Appellant told the PSB that his wife had gone to Canada and would not be returning. The PSB accused the Appellant of deceiving them and harbouring his wife. Upon realizing that he was in trouble, the Appellant told the PSB that he had lied to them. The Appellant went into hiding. The PSB returned to his home. The Appellant contacted a smuggler to assist him to come to Canada. [8] The Appellant arrived in Canada on XXXX XXXX, 2012 and made his claim for protection on January 23, 2013. He fears that he would be jailed and forced to be sterilized due to his violation of Chinese birth control policies. The Appellant also would like to have more children and does not agree with China's birth control policies, as they breach the Appellant's religious beliefs. [9] The Appellant had a refugee determination hearing along with his wife which spanned two sittings (March 25, 2013 and April 17, 2013). Written reasons dismissing the claim were issued on June 20, 2013. Given that the Appellant's wife is not a party to the appeal but given that the reasons refer to both the Appellant and his wife, the RAD will use the term "claimants" in this section to refer to the joint findings of the RPD related to the claim. In its decision, the RPD panel found the following: 1. The claimants were found not to be credible witnesses based on inconsistencies and implausibilities in their evidence. 2. The female claimant did not live with her in-laws before the marriage, and therefore her motivation to turn to Catholicism did not exist. 3. The female claimant's allegation that the pressure from her in-laws was the cause for her inability to become pregnant was not credible based on the claimant's failure to seek medical attention related to her inability to conceive. 4. The female claimant's assertion of being a practicing Catholic was undermined by concerns with her knowledge of the Apostle's Creed, the purpose of baptism, her failure to know the name of her pastor, her failure to turn to her church in Canada to help locate her priest and fellow congregants in China, and her inconsistent testimony as to how long she practiced in China. 5. The male claimant was found not to be a practicing Catholic in Canada given the omission of this fact in his Basis of Claim (BoC) form, the omission of any reference to the male claimant in the letter from the church, and his failure to provide documentation that he was attending baptism classes in Canada. 6. The summonses (two) presented did not conform to the documentary evidence related to the format and appearance of summonses and therefore were found not to be genuine. 7. The claimants were found not to be genuine Catholics, and therefore their fear of being subject to China's Birth Control Policy based on their religion was not credible. 8. The claimants' fear of abortion is not credible as, based on the evidence, the claimants would be subject to a fine rather than abortion. Payment of a fine is not persecutory. 9. Laws permit financial penalties rather than forced sterilization for children born outside the birth control policy. This is the case in Guangdong. There is no evidence that the female claimant has been targeted and if there is a family planning campaign in the Appellant's hukou area. There is no evidence of a sterilization campaign in Guangzhou. There is no evidence of forced sterilization in Guangzhou. Middle-class person can buy their way out of being subject to the Family Planning Policy, and the claimants appear to have financial resources as they travelled to Canada with the assistance of a smuggler. Therefore, the claimants would not be forced to be sterilized when they return to China. 10. The claimants' claim of wanting more children was found not to be credible given the finding that the claimants lacked credibility on other central aspects of their claim. 11. The two children will have been born in Canada, and therefore the claimants would not be subject to the family planning regulations in Guangdong, as families with more than one child are largely forgiven. [10] An Appeal Record was submitted to the RAD on July 25, 2013. The Appellant's counsel alleged that the RPD made several errors of fact including: 1. The RPD erred in fact by concluding that there was not a serious possibility that the claimants would be forced to be sterilized when they return to China given that they ignored relevant documentary evidence (Family Planning Regulations of the Province of Guangdong) in making this finding especially as it relates to people who return with two or more children born outside the quota. An accurate reading of the provisions of Guangdong's Family Planning Regulations indicates that sterilization is a first choice contraceptive measure for those who have violated the policy. 2. The RPD failed to provide an adequate justification for rejecting the evidence as it stated that "the wording of the fee structure supports a conclusion that there are fines, not forced sterilization". 3. The RPD misapprehended the evidence that female returnees are not at risk of forced sterilization. 4. The RPD misapprehended the nature of the evidence regarding forced sterilization in Guangzhou, as the documentation cited for the RPD's conclusion did not focus on Guangzhou City, rather it related to Guangdong province. Therefore, the RPD had before it sufficient evidence to establish that the Appellants faced a serious possibility of sterilization upon their return. 5. The RPD's finding that, if there were forced sterilization in Guangdong, it would be reflected in the documentation was speculative. 6. The RPD failed to consider evidence that voluntary sterilizations are induced by coercive means. 7. The RPD erred in not treating the evidence of sterilization the same as it did with the evidence of fines as it relates to the Regulations. 8. The RPD speculated on its finding that the claimants could buy their way out of the Family Planning Policy based on limited evidence. The evidence on buying out of the Policy also pertained specifically to Liaoning Province. 9. The RPD speculated that the claimants would not have any more children if they return to China, especially given that it concluded that they had sufficient financial resources to buy themselves out of the One-Child Policy. 10. The RPD erred in selectively relying on evidence that children born outside of China are largely forgiven. The RPD did not analyze and explain why it preferred this evidence to the other evidence before it, such as the UK Home Office Report. [11] The Appellant did not adduce any new evidence and did not ask for an oral hearing. [12] The female claimant made her claim for protection on February 28, 2011. On August 15, 2012, section 36 of the Balanced Refugee Reform Act (BRRA) came into force by Order in Council which was published in the Canada Gazette on that date. Subsection 36(1) establishes that, where a refugee claim is referred to the Refugee Protection Division before August 15, 2012, there is no right of appeal to the Refugee Appeal Division. The female claimant's claim was referred on February 28, 2011, which was before Section 36 of the BRRA came into force. Therefore, the female claimant was not eligible to make an appeal to RAD. [13] The Appellant asks that the RAD set aside the determination and find that the Appellant is a Convention refugee or a person in need of protection. STANDARD OF REVIEW [14] The RAD focused on one determinative issue in assessing this appeal: Did the RPD err in finding of fact that the Appellant would not face a serious possibility of persecution or a risk of harm upon his return to Guangzhou for violating Guangdong's Family Planning Regulations by having two children out of the country? [15] In assessing and selecting the appropriate standard of review the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,1 which take into account the list of factors in Dunsmuir.2 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [16] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. In addition, the RAD finds that the Newton decision deals directly with the issue of the standard of review of an administrative tribunal of first instance as is the case between the RAD and the RPD. [17] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,3 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [18] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: IRPA. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." With respect to the respective roles of the RPD and the RAD in the context of IRPA, the powers of each Division are the same, although their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [19] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;4 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the proscribed relationship between the RPD and RAD, and the limits imposed on RAD in IRPA highlighted below. [20] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.5 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing6 and assesses the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [21] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to gather and consider evidence. The RAD is not a tribunal of first instance but exists to review the decision made by the RPD. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.7 The RAD's authority to consider new evidence and hold hearings is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.8 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.9 [22] Given that the RPD has held a hearing on the totality of the evidence, and given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".10 [23] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".11 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.12 [24] In the case at hand, the Appellant alleges that the RPD made errors of fact in the assessment of the evidence related to the content and implementation of the One-Child Policy. As such, the RAD afforded the RPD with deference and considered the reasonableness of the determination for these errors. ANALYSIS OF THE MERITS OF THE APPEAL [25] As identified above, based a review of all of the evidence and pleadings in the Appeal, the RAD focused on one determinative issue: Did the RPD err in finding that the Appellant would not face a serious possibility of persecution or a risk of harm upon his return to Guangzhou for violating Guangdong's Family Planning Regulations by having two children out of the country? [26] The RAD considered the evidence and arguments related to whether or not the Appellant breached Family Planning Regulations (the Regulations) in Guangdong by having two children born in Canada. The RPD found that the Appellant would not be subject to the Family Planning Regulations as his two children will have been born in Canada and families with more than one child are largely forgiven. The Appellant's counsel argued that the RPD erred in selectively relying on evidence that children born outside of China are largely forgiven. [27] The RAD noted that Article 2 of the Population and Family Planning Regulations for Guangdong13 applies to: "Chinese citizens living within the administrative jurisdiction of this province, citizens living outside this province but whose household registration is within this province, and all government departments, public groups, business enterprises, institutions and citizens' self-governance organizations within the administrative jurisdiction of this province shall observe these Regulations". Article 24 of the Regulations indicates that the Regulations apply to returned overseas Chinese and family members of overseas Chinese. [28] The RAD finds that the Regulations are not clear as to when and how the provisions are applied to those returning from overseas with foreign-born children. For example, there is no specificity in the Regulations that the Regulations apply retroactively, and therefore children born outside of China are considered in the calculation of the number of children that couples can legally have in China, or if the Regulations apply to residents who become pregnant before they return to China. [29] In assessing the application of the Regulations, the RAD takes direction from the jurisprudence on state protection which indicates that it is important to examine whether laws are enforced. The state protection jurisprudence differentiates between laws on the books and the application of the laws at the operational level.14 While authorities in Guangdong have enacted Population and Family Planning Regulations which apply to returning Chinese as outlined above, the RAD finds that two central issues which must be addressed include: whether or not these Regulations have been applied to returnees, and how have the Regulations been applied. [30] The RAD considered the documentary evidence on this matter and found that it is inconsistent. The UK Border Services Agency indicates that: "some Chinese nationals, especially from among the urban population, choose to have a second child abroad so that the child can obtain foreign citizenship and therefore not be included in the count".15 This report goes on to note that: "the question frequently arises whether Chinese couples who have an unauthorized child while residing abroad are likely to face penalties upon returning to China. The evidence available suggests that, in many if not most cases, the answer is no." The Report indicates that people returning to Guangdong with their children reported no problems. The Report did cite a retired US Census Bureau Analyst which indicated that: "there is no reason to expect that women who have children abroad will be treated differently than those who give birth in China".16 The retired analyst did not provide any evidence to support this conclusion, and therefore the RAD finds that the conclusion was speculative. Item 5.117 reinforces the fact that: "Chinese couples living abroad are not bound to the One-Child Policy. Chinese citizens studying or working in foreign countries can return with more than one child without any serious problem". [31] The documentary evidence18 dealing with children born outside the Regulations (Black Children) speaks about difficulties registering a child in a Hukou and accessing services; however, this RIR does not address the situation of foreign-born children. In fact, the RIR does not indicate whether foreign-born children are considered "Black Children" by Chinese authorities. [32] In the pleadings, counsel argued that the RPD failed to provide an analysis and explanation as to why it preferred the documentary evidence that concluded that returnees with more than one child are largely forgiven over other evidence. Counsel argues that the UK Home Office Report indicates that the One-Child Policy is applied to returned overseas Chinese and other residents. The RAD considered this argument. As identified above, the Regulations are not clear as to when and how they apply to returned overseas Chinese. There was little or no credible or trustworthy evidence before the RPD that returning overseas Chinese families were subject to enforcement or penalties for having a child or children outside the country. In fact, the bulk of the evidence before the panel was that returning families faced no problems. The RAD noted that, despite the vast evidence and comment in the National Documentation Package concerning Family Planning, the evidence was silent on any specific incident or case where a returned overseas Chinese person has been fined, has been aborted, or has been sterilized for returning to China after having a child or children overseas. [33] The RAD noted that the RPD did not clearly indicate in its reasons why it placed more weight on the documentary evidence that returning families were not faced with any problems over the statements in the Regulations that returned overseas Chinese were subject to enforcement. Given that the Regulations were ambiguous as to when they apply and how they apply to returning Chinese, given that the RPD based its decision after consideration of all of the evidence, and given the preponderance of the evidence that Chinese returnees did not face problems upon their return, the RAD finds that the RPD did not err in its finding that returned overseas Chinese were not subject to the Regulations and that families with more than one child are largely forgiven. [34] The RAD turned its mind to the issue of the implementation and enforcement of the Regulations in Guangzhou City where the Appellant was from. The RAD found that the Regulations are not consistent in the area of sanctions for breaching the Regulations. For example, Article 55 of the Regulation seems to indicate that social support fees are levied to those who have two or more children than permitted. In fact, the article indicates: "for urban residents who have two or more children than permitted, a social support fee shall be levied that is based on the amount levied for one out-of-plan child and multiplied by the total number of out-of-plan children." This statement seems to contradict the statement in Article 25 of the Regulations which indicates that: "Where there are already two or more children, the first choice shall be a ligation for either the husband or wife".19 The RAD finds that, not only was the evidence on the implementation of the Regulations before the RPD inconsistent, the Regulations themselves were inconsistent. Given this internal inconsistency in the Regulations, the RAD finds that the RPD did not err as counsel argues by ignoring the provision in the Regulations that the Appellant's counsel indicated that sterilization shall be the first choice contraceptive measure for couples in violation of the policy.20 In addition, even if the RPD was found to have erred, given the totality of the evidence, the error would not render the RPD's reasons or findings unreasonable or unjustifiable. [35] The RPD found that there were no specific reports of sterilization occurring in Guangzhou and that it would be reasonable to expect that, if forced sterilization was occurring with frequency in Guangzhou, this would be reflected in the documentation. The Appellant's counsel indicated that this statement was an error and quoted the Jin decision which stated: "the fact that there [have been] no recent reports of persecution [does] not prove a lack of it".21 The RAD noted that this was a 2005 decision which dealt with religious persecution. The RAD found that the logic expressed by Justice Campbell in this decision was supplanted by the more recent Nen22 decision in which Justice Crampton found that it was reasonable for the panel to find that, if underground Christians faced a serious possibility of persecution in Fujian Province, it would have been documented. Given the newer jurisprudence, the RAD finds that the RPD's finding that there would be documentation of forced sterilization in Guangzhou was not speculative and therefore was not an error. In addition, given that the logic from the Nen decision can be applied to the implementation of Family Planning Regulations, the RAD finds that the RPD did not err in limiting the scope of its analysis to the City of Guangzhou. [36] The documentary evidence also indicates that the enforcement of the Regulations varies across China and within provinces, including in Guangdong and varies between rural and urban residents.23 The RAD noted that the RPD had before it evidence that authorities in Guangdong enforce the Population and Family Planning Regulations for people who have unauthorized pregnancies or births in Guangdong. For example, unmarried women who become pregnant in Guangdong are imposed a high social support fee for the first child (twice the amount for married couples who have more than one child), and an even greater fee for a second child (six times the amount of married couples who have more than one child). 24 In Foshan, Guangdong Province, mothers were threatened with the denial of hukou for their newborn children if they did not have an IUD inserted. Maonan District implemented a plan of coercive measures to prevent or terminate out-of -plan pregnancies. Lechang City launched a spring family planning campaign to keep birth rates low by all means necessary. Puning City launched a campaign to sterilize 9,559 people. Some people were denied state benefits and household registration for their children. Zhanjian City mandated abortions for those who exceeded birth quotas.25 [37] The RPD found that the Appellant has not demonstrated that there is a serious possibility that he will be sterilized upon his return to China. The evidence does not comment on enforcement practices in Guangzhou City. The evidence also does not comment on any enforcement of the Regulations (fines, forced abortions, threats of sterilization, sterilization) for returned overseas Chinese. Given that there was considerable comment on the implementation of the Regulations in Guangdong Province as outlined above, given the lack of evidence before the RPD of enforcement in Guangzhou, including family planning campaigns in the Appellant's hukou area, given that Guangzhou is a very large city (12 million people), given that forced sterilization of returnees would be a very serious matter which would be of the public interest, and given the direction in the Nen decision highlighted above, the RAD finds that the RPD did not err in finding that there is not a serious possibility that the Appellant would be sterilized should he return to China based on the lack of evidence in the country condition documentation. [38] The Appellant's counsel cited evidence related to the Regulations and enforcement in Guangdong through contraception, application of social support fees, and sterilization.26 As outlined above, the RPD did not have before it sufficient evidence as to enforcement measures for returned overseas Chinese in Guangdong Province and the implementation of these measures in Guangzhou City. For these reasons, the RAD finds that it cannot find that the RPD misapprehended the evidence before it, or made a selective analysis of the evidence before it. As such, the RAD finds that the RPD's findings related to the implementation of the Regulations in Guangdong and Guangzhou City were reasonable. [39] The RAD considered counsel's argument that the RPD applied an arbitrary and inconsistent methodology to its analysis of the evidence related to fines and sterilization. Counsel argued that the RPD was prepared to conclude that the Applicant would be fined based on the wording of the social support fee structure; however, it was not prepared to find that the Appellant would be subject to sterilization for violating the same Regulations. The RAD found that this argument had some merit. The RAD finds that there was a lack of coherence in the RPD findings as they relate to the whether or not the Appellant would be subject to enforcement of the Regulations. The RAD finds that the incoherence, while it is an error, did not disturb the RPD's overall finding as stated in paragraph 38 of the decision that: "the evidence also indicates that when children are born in other countries they are not subject to the one-child policy, and families with more than one child are largely forgiven".27 The RPD provided a justified and transparent rationale for this finding which, after review of all of the documentary evidence, the RAD found fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [40] The RAD noted that the RPD's finding that the Appellant and his wife were not genuine Catholics was not challenged in the Appeal. Likewise, the RPD's finding that the Appellant was not a credible witness overall was also not challenged in the Appeal. The RAD therefore finds that any assertion in the claim that is solely based on the Appellant's oral testimony cannot be provided with weight. For example, the Appellant and his wife assert that they would like more children upon return to China. Given that the Appellant was found not to be credible, and given that this finding was not challenged in the Appeal, the RAD finds that the RPD did not err in placing no weight on this assertion. In addition, the RPD found that the Appellant was not a genuine Catholic, and therefore the Family Planning Policy does not impact his religious freedom. This assertion was not challenged in the Appeal. Given that the Appellant was found not to be a Catholic, given that the finding was justified in the reason, and given that the finding was not challenged, the RAD finds that the RPD's finding in relation to the Family Planning Policy and the Appellant's religious freedom was reasonable. SUMMARY AND DETERMINATION [41] The RAD found that the RPD made two findings which supported its overall determination that the Appellant would not face a serious possibility of persecution or a risk of harm should he return to China. Firstly, the RPD found that there was little or no evidence of forced sterilization in Guangzhou City. Secondly, families returning to China with children born outside the Regulations are largely forgiven. The RAD found these findings to be reasonable for the reasons outlined above. Given these two findings, the RAD finds that the RPD's overall determination that the Appellant would not face a serious possibility of persecution should he return to China or that he would not be personally subjected to danger of torture, or a face a risk to his life, or a risk of cruel and unusual treatment of punishment was reasonable. [42] For the reasons outlined above, the RAD confirms the determination of the Refugee Protection Division that the Appellant is not a Convention refugee, nor is he a person in need of protection, as per Section 111(1)(a) of IRPA. [43] The RAD dismisses the Appeal. (signed) "Daniel McSweeney" Daniel McSweeney September 26, 2013 Date 1 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110(3). 8 IRPA, s. 110(4). 9 RAD Rule 57. 10 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 13 RPD Package, Exhibit 4, Population and Family Planning Regulations of the Province of Guangdong, 25 July 2002. 14 Toriz Gilvaja v. Canada (Minister of Citizenship and Immigration), O'Keefe, 2009 FC 598 at para 39. 15 RPD Record, Exhibit 5, UK Border Services Agency Report on China, Section 28.43. 16 RPD Record, Exhibit 5, UK Border Services Agency Report on China, Section 28.44. 17 RPD Record, Exhibit 5, Response to Information Request (RIR), Number CHN103033.E, 29 January 2009. 18 RPD Record, Exhibit 5, RIR CHN104186.E, 1 October 2012. 19 RPD Record, Exhibit 4, Population and Family Planning Regulations of the Province of Guangdong, July 2002. 20 Appellant's Pleadings, paragraphs 6 - 16. 21 Jin v. Canada (Minister of Citizenship and Immigration), Campbell, 2005 F.C. 240. 22 Nen Mei Lin v. Minister of Citizenship and Immigration, (F. C., no. IMM-5425-08), Crampton, February 4, 2010; 2010 FC 470. 23 RPD Record, Exhibit 4, Response to Information Request (RIR), Number CHN104185.E, 1 October 2012. 24 RPD Record, Exhibit 4, RIR CHN103135.E, 23 June 2009. 25 RPD Record, Exhibit 4, RIR CHN103135.E, 23 June 2009. 26 Appellant Pleadings, paragraphs 9 - 12. 27 RPD's Reasons, Paragraph 38. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-04422