TB4-05935

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 : TB4-05935 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 22, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Aleksei Grachev Conseil(s) du (de la/des) personne(s) en cause Barrister & 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, has appealed a negative determination of the Refugee Protection Division (RPD) issued on May 6, 2014. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA) the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. BACKGROUND [3] The Appellant fears authorities in China as a result of her breach of the Family Planning laws. The Appellant alleges that she gave birth to her daughter on XXXX XXXX XXXX 2007 outside of the Family Planning laws as she was not married. In XXXX 2009, the Appellant brought her daughter to the Public Security Bureau (PSB) to register her in the household registry. The Appellant received a fine of 100,000 Yuan (approximately 18,000 CDN) as she was a single mother. To avoid the fine, the Appellant moved to XXXX XXXX. [4] The Appellant alleges that in XXXX 2013, a classmate of hers was having a second child outside the Family Planning laws and begged the Appellant to hide her. The Appellant alleges that on XXXX XXXX, 2013 the Appellant and her daughter went shopping. When they returned, they saw people gathering in front of the door of her home and discovered that the Birth Control Committee and the PSB had arrested her friend and forced her to undergo an abortion. The Appellant alleges that authorities discovered that the Appellant had broken the Family Planning laws and she was summoned to the PSB. The Appellant was also issued a fine of 50,000 Yuan. The Appellant and her daughter fled to her uncle's home on XXXX XXXX, 2013. Through the help of her uncle the Appellant was able to obtain the services of a smuggler. [5] The Appellant traveled to Canada on XXXX XXXX, 2014, and made her claim for protection at the airport on XXXX XXXX, 2014. [6] The Appellant had a refugee determination hearing on April 24, 2014 and written reasons were issued on May 6, 2014. The RPD found that the Appellant's allegations were not credible based on the following individual findings: 1. The RPD found that the Appellant did not provide a satisfactory explanation for the conflicting information she gave to port of entry officials and the details of her basis of claim form (BoC) narrative. 2. The RPD noted that the Appellant continued to provide information in her refugee claim forms (IMM-5669) which was inconsistent with her visa application in terms of her employment and family status. The RPD rejected the Appellant's explanation that she was following her smuggler's instructions. The RPD found the Appellant's failure to make mention of her fear of returning to China because of breaches in the One Child Policy, without a satisfactory explanation for having done so, detracts from the credibility of the Appellant's fear and her allegations of harm. 3. The RPD found that the information provided by the claimant about her marital status and family members provided to Canadian officials in China and to port of entry officials in Canada is more likely than not accurate; especially given that the Appellant's first account of evidence is usually more reliable and trustworthy as set out in Federal Court jurisprudence. 4. The RPD found that the Appellant provided inconsistent testimony regarding when she fled to her uncle's home and when she met the smuggler, which undermined her credibility. 5. The RPD found that the Appellant's evidence about the arrest of her pregnant friend was vague and uncorroborated. The Appellant was asked why she believed that her friend had been subjected to a forced abortion and she responded that she assumed that this is what happened. The Appellant had not been in contact with her friend and could not provide any corroboration of the allegations. As such the RPD found that that the events which led the Appellant to flee China did not occur. 6. The RPD found the discrepancies in when the Appellant fled to her uncle's home undermined the credibility of the allegation. 7. The RPD found the omission of any reference in her BoC narrative of the PSB's frequent visits to her family's home undermined the credibility of the allegation. 8. The RPD placed little weight on the summons as it was a scanned document and could not be compared with the examples of summonses included in the national documentation package. 9. The RPD found that the Appellant had not established that she is a single mother of a seven-year-old child, as alleged, based on the Appellant's inconsistent testimony regarding her family status, and the failure to provide reliable evidence of the age or identity of her child. The RPD gave little weight to the letter from the birth attendant as it did not contain security features such as a stamp from the clinic. 10. The RPD found that there is little persuasive documentary evidence to corroborate the allegations that assisting someone from hiding from family planning officials would result in coming to the attention of the PSB, or having an out of wedlock child would mean that the child would be denied the right to obtain identity documents or attend school. 11. The RPD place little weight on the fine notices given the negative credibility findings cited above, and given the fact that fraudulent documents are easily available in China. [7] Appeal pleadings, along with an Application for Extension of Time and Amended Appellant's Record were received on August 29, 2014. The pleadings and application were two business days late; however, the RAD accepted the explanation provided and considered the appeal. [8] In the appeal counsel argued that the RPD erred in its negative plausibility finding, which counsel argued was sufficient to overturn the remaining negative credibility findings of the RPD. The RPD erred in finding that it was implausible that the Appellant would not be able to produce some type of recent photographic evidence of the child as this finding was biased and subjective and did not take into account the particular situation of rural people in China. [9] The Appellant requested an oral hearing. Oral hearings are limited to new evidence as per s. 110(6) of IRPA. The Appellant did not provide new evidence, as such, the request for a hearing was denied. ANALYTICAL APPROACH [10] Counsel argued that the RAD must make an independent analysis of the facts in this matter as directed in Alvarez1. In assessing the appeal the RAD is guided by the recent Huruglica2 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. ANALYSIS [11] The RAD focused on one issue in assessing this appeal: Were the Appellant's allegations regarding her breach of the Family Planning laws, and harbouring her friend credible? [12] The RPD made several negative credibility findings regarding the Appellant's allegations which it found undermined the credibility of the allegations. The RAD will address the most significant credibility issues. [13] The RAD considered the evidence provided by the Appellant in support of her allegations. The RPD assigned little weight to the summons, given that the document was not original and therefore it could not be compared with the examples included in the national documentation package. The RAD concurs with the concerns regarding the non-original summons. The RAD also noted concerns on the face of the document. The RAD noted that at the bottom of the document, there was signature of the person summoned for questioning which reflected the Appellant's name. The RAD noted that the documentary evidence3 indicates that a person summoned must sign in a fix sealed to the receipt. There is no notation on the summons that the Appellant was not present to sign the receipt or that any other member of her family or a neighbor signed the receipt. There is evidence on the face of the summons that it was signed by the Appellant. This did not conform to the Appellant's evidence that she was not present at the time the summons was delivered. [14] The RAD also noted that a person needs to report within 12 hours after receiving his/her summons4. The summons was issued on XXXX XXXX XXXX 2013 and requested that the Appellant report on XXXX XXXX, 2013. The summons indicated that the Appellant was a suspect in the crime of harbouring a criminal under Family Planning laws. The Appellant therefore was subject to a criminal summons. The documentary evidence indicates the criminal summonses cannot last more than 12 hours and cannot be used more than once on the same person.5 This summons was not consistent with the documentary evidence on summonses before the RPD. [15] Finally, the RAD noted that the Appellant's was assessed a fine of 50,000 Yuan6 on XXXX XXXX, 2013 for committing the crime of harbouring a criminal under the Family Planning laws. This finding was issued before the Appellant was summoned as a suspect of the crime of harbouring a criminal under Family Planning laws which was on XXXX XXXX, 2013. The RAD finds that the issuance of a fine confirming that the Appellant had committed a crime, three days before the Appellant was summoned as a suspect in committing the crime, undermined the genuineness of the document as the penalty was administered by the same authority (XXXX Branch of XXXX Public Security Bureau) before the Appellant was called in for questioning on the alleged accusation. [16] For the reasons outlined above, the RAD finds that the Appellant's summons and the documents regarding her fines were not genuine and therefore did not support the Appellant's allegations that she was wanted by Chinese authorities. In addition, the RAD assigned a significant negative credibility inference to the Appellant's provision of non-genuine documents in support of her claim. [17] The RPD assigned little weight to the documents attesting the birth of a girl7 to the Appellant, given that this document did not contain any security features such as stamps. The RAD concurs with the RPD's finding given that the certification was a handwritten document, which could have been written by anyone who has no documentation regarding the existence of the author. Proof of the author's existence, such as a copy of the author's resident identity card, was not provided. As such the handwritten certification is given little probative value. [18] Similarly, the RAD noted that the photos of the Appellant with a child cannot establish relationship between the Appellant and the child. In addition, the photos do not identify when they were taken. As such the photos cannot establish parental relationship, between the child in the photos and the Appellant. [19] Given the credibility concerns with the Appellant as a witness, and given the lack of credible or trustworthy evidence in support of the existence of a daughter, the RAD concurs with the RPD that the Appellant has failed to provide sufficient credible or trustworthy evidence to establish that she had a child outside Family Planning laws. [20] Finally, the RAD considered the handwritten letter by the Appellant's father. The letter refers to the Appellant being summoned for the crime of breaking the Family Planning laws. The Appellant's evidence and allegations of being in violation of the Family Planning laws, and harbouring her friend were found not to be credible. The Appellant was also found not to be credible as a witness based on inconsistencies and omissions in her oral testimony and the evidence provided. As such the RAD finds that it cannot place any probative value on the letter from the Appellant's father, as the letter was self-serving as it appears that it had been written to support the Appellant's allegations. [21] The RPD found the discrepancies in when the Appellant fled to her uncle's home undermined the credibility of the allegation that the Appellant was wanted by Chinese officials. The Appellant's BoC narrative indicated that she fled to her uncle's home on XXXX XXXX, 2013. In her oral testimony, the Appellant testified that she fled to her uncle's home in the morning of XXXX XXXX, 2013 and that she met the smuggler later that day. The RPD confronted the Appellant regarding the inconsistency and the Appellant indicated that she had testified that she fled on XXXX XXXX. A review of the recording indicates that the Appellant testified that she fled to her uncle's home on XXXX XXXX. This inconsistency was significant as it went to the core of the Appellant's claim and was the reason why she had to flee China. The RAD concurs with the RPD that the inconsistency undermined the credibility of the allegations which led the Appellant to leave China. [22] The RAD noted that the Appellant provided inconsistent evidence regarding the summons and the timing of her going into hiding at her uncle's home. The narrative indicated that the Appellant was fined 50,000 Yuan and fled to her uncle's home on XXXX XXXX, 2013 in order to avoid being arrested by the PSB. As noted above, notice of the Appellant's fine was issued on XXXX XXXX XXXX 2013 and the notice of the summons was issued on XXXX XXXX XXXX 2013. This was after the Appellant alleged in her BoC narrative that she fled to her uncle's home. As such, there was no reason for the Appellant to know that she had been fined or was wanted by the PSB until after XXXX XXXX, 2013 and therefore her explanation that she went into hiding on XXXX XXXX, 2013 was not reasonable. This inconsistency further undermined the credibility of the Appellant's allegation that she was wanted and fined for harbouring her pregnant friend. [23] The RPD found that the omission in her BoC narrative of any reference to the fact that authorities continued to seek the Appellant at her home undermined the credibility of the allegation. When asked to explain why her narrative did not mention this fact, the Appellant indicated that she had told the translator that the authorities had come to seek her; however, it was not included in her narrative. The RAD concurs with the RPD in rejecting the explanation given that the allegation of continued interest in the Appellant was central to her claim and that the Appellant affirmed at the onset of her hearing that the contents of her BoC had been fully interpreted to her before she signed it. The omission of a central detail in the BoC narrative undermined the Appellant's claim that authorities in China had a continued interest in seeking her. [24] The RPD highlighted the Appellant's inconsistent oral testimony regarding the occasions that she met the smuggler. In her oral testimony the Appellant indicated that she met the smuggler on three occasions (XXXX XXXX, XXXX XXXX, and XXXX XXXX). She also testified that she met the smuggler on XXXX XXXX, 2014, the day before she left China, at a XXXX XXXX XXXX XXXX XXXX XXXX and that on this occasion the smuggler reviewed with her all her documents and what to say when she arrived in Canada. When asked to explain why she indicated she met the smuggler on XXXX XXXX and later indicated that she met the smuggler on XXXX XXXX XXXX the Appellant maintained that she testified that she met the smuggler on XXXX XXXX. The RAD reviewed the recording and finds that the Appellant's explanation was not truthful. The Appellant testified that she met the smuggler at the XXXX the day before she left. The RAD finds that the inconsistency in the Appellant's meetings with the smuggler, especially the testimony regarding the fact that the smuggler reviewed with the Appellant details of her documents and told her what to say upon arrival in Canada the day before she left China, undermined the credibility of the Appellant's allegations that she used a smuggler to enter Canada. [25] The finding that the Appellant did not use a smuggler to exit China is important, as the Appellant explained that she was following the advice of the smuggler in explaining the inconsistency between her responses to CBSA officials and her original IMM-5669 and her BoC. The RAD concurs with the RPD that the information provided by the Appellant regarding her marital status and family members upon her arrival in Canada was, more likely than not, accurate. This finding was strengthened by the jurisprudence in Ishaku8 which indicates that a claimant's first account of events is usually more reliable and trustworthy. The RAD concurs with the RPD that the Appellant's initial responses to CBSA officials and in her original IMM-5669 were the truth, and her allegations in her BoC and revised IMM-5669 were fabrications. The RAD therefore placed greater weight on the Appellant's original IMM-5669, IMM-0008, Schedule 12 and the contents of her visa application,9 and finds that the Appellant's allegations of being a single mother in breach of the Family Planning laws were not credible. [26] The RAD found the fact that the Appellant was issued a passport undermined the credibility of the allegations that she had breached the Family Planning laws by having a child out of wedlock. The Appellant traveled to Canada on a valid Chinese passport which was issued to her on XXXX XXXX, 2012. The Appellant did not provide evidence that she had any difficulty in obtaining this passport or that she used any non-official methods to obtain the passport. The Appellant alleged in her BoC narrative that she had been issued a fine by the local birth control committee in XXXX 2009; however, she did not pay fine. Given that the Appellant had been found in breach of the Family Planning laws and had failed to pay the fine assessed to her, the RAD finds that it was implausible that the Appellant be issued a valid Chinese passport in 2012. The documentary evidence10 indicates that passports are issued by the entry-exit control Department of the Ministry of Public Security, or by the entry-exit control departments of the public security organs under the People's governments or above the county level authorized by the Ministry of Public Security. Article 13 indicates that the passport may be refused if the applicant: is punishment for crime and is serving a sentence; is not allowed to leave the country because of an unsettled civil case, as is notified by a people's court; is a defendant in a criminal case; or a criminal suspect. Given the ability of officials to refuse passports for those who are in breach of the law, the RAD finds that it was implausible that the Appellant be issued a valid Chinese passport by authorities if she had been found to be in breach of the Family Planning laws and has refused to comply with the order to pay a fine. The issuance of a valid passport therefore undermined the credibility of the Appellant's allegations that she had been found in violation of the One Child Policy. [27] The RAD found that the Appellant did not use the services of a snakehead in order to leave China (see above) and to avoid authorities. The Appellant did not provide evidence that she had any difficulty leaving China on her own passport. Given the exit controls and security measures at Chinese airports11, and given existence of a National Computer network which has databases on criminal fugitives and tracks exit and entry into the country12, and that the Appellant's her own passport to leave China; the RAD finds that the Appellant was not wanted for violating China's One Child Policy and for harbouring her friend. [28] The RAD noted a significant concern which undermined the Appellant's subjective fear. While being detained at the airport the Appellant stated that she wished to have the Chinese consulate in Toronto notified of her detention.13 The RAD finds that the Appellant's efforts to reach out to her consulate were inconsistent with the behavior of someone who feared government officials. This inconsistency undermined the Appellant's allegations that she was subject to persecution or harm by family planning officials and the PSB. [29] The RAD also noted that the Appellant received documents from her family in China which the RAD finds undermined her subjective fear. The documents were sent using the Appellant's father's name and address and were sent to the Appellant under her name and address14. The RAD noted that the documentary evidence indicates that Chinese authorities monitor international correspondence.15 The Appellant explained at the hearing that post office staff informed her family that they could not send an original summons through the mail. The package the Appellant allegedly received from her family in China contained two notices of fines (one of which accuse the Appellant of committing a crime of harboring a criminal) and a letter from the Appellant's father indicating that the Appellant had been summoned and recommending that the Appellant not returned to China. The RAD finds the fact that the Appellant received mail from her family, which identified her family's name and address as well as identified the Appellant's name and address in Canada, undermined the Appellant's subjective fear of authorities in China and the credibility of her allegations given that authorities in China monitor international correspondence. SUMMARY [30] Based on the findings above, the RAD finds that the Appellant has failed to provide sufficient credible and trustworthy evidence to support her claim that she had a child outside of the Family Planning laws in China, and that she harbored her friend and therefore was wanted by Chinese officials. The RAD also concurs with the RPD that the Appellant was not a credible witness overall based on the inconsistencies highlighted above. In addition, the RAD concurs with the RPD that it is more likely than not that the Appellant is the person in her visa application, and not the person in the Appellant's BoC allegations and her revised IMM-5669. As such the RAD finds that the Appellant does not have a well-founded fear of persecution in China, nor would she be personally subject to a risk to her life, or a risk of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture should she return to China. DISPOSITION [31] The RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection as per s. 111 (1)(a) of IRPA. [32] The Appeal is denied. (signed) "Daniel McSweeney" Daniel McSweeney October 22, 2014 Date 1 Alvarez, Ismael Garcia v. M.C.I. (F.C., no IMM-7218-13), Shore, July 17, 2014; 2014 FC 702. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 RPD's Record, Exhibit 3, RIR, NumberXXXX, 6 July 2010, Item 9.3. 4 Ibid. 5 RPD's Record, Exhibit 3, RIR NumberXXXX, 30 November 2012, Item 9.8. 6 RPD's Record, Exhibit 5, Notice of fine, p. 141. 7 RPD's Record, Exhibit 5, Certification of Birth, p. 145. 8 Mapangu Ishaku, Ambroise v. M.C.I., (F.C., No. IMM-3882-10), Shore, January 14, 2011; 2011 FC 44. 9 RPD's Record, Exhibit 4, Visa Application, pp. 87 - 95. 10 RPD's Record, Exhibit 3, Passport Law of the People's Republic of China, Item 3.6. 11 RPD's Record, Exhibit 3, RIRXXXX XXXX XXXX, 8 July 2008, Item 14.3. 12 RPD's Record, Exhibit 3,XXXX XXXX XXXX, 2 July 2009, Item 10.3. 13 RPD's Record, Exhibit 1, Officer Notes, p. 68. 14 RPD's Record, Exhibit 5, translation of envelope, p. 149. 15 RPD's Record, Exhibit 3, US DOS Report on Human Rights in China, Section 1f, Arbitrary Interference with Privacy, Family, Home, or Correspondence, Item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05935