TB5-07834

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-07834 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXXXXX 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 28, 2015 Date de la décision Panel Roslyn Ahara 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 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, (the Appellant), who is a citizen of the People's Republic of China, is appealing the decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. No new evidence has been submitted in support of her appeal, nor is she requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. However, the Appellant is asking the RAD to substitute a positive determination, or in the alternative, remit the matter back to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. This appeal is dismissed. Background [3] The Appellant had medical problems beginning in 2009, which following surgery, did not improve. In XXXX 2013, when the pain worsened, the Appellant saw Chinese medicine doctors who prescribed medication to manage the pain. [4] However, in XXXX 2014, a friend advised her that practicing Falun Gong (FG) could improve her condition. Initially, the Appellant practiced at home, and after two months, she noticed some improvement in the severity of the pain. She joined the FG group in early XXXX 2014. [5] On XXXX XXXX, 2015 the Appellant came to Canada to visit her parents and siblings, planning to return to China in XXXX 2015. In Canada, she continued her FG practice on a daily basis and joined a group at Queen's Park and in Chinatown. [6] However, while in Canada, the Appellant had communications with her husband and learned that her friend XXXX XXXX XXXX, who had introduced her to FG had been arrested on XXXX XXXX, 2015 at a group practice. The Appellant also learned that on the following day the PSB had gone to her home, conducted a search, and interrogated her husband with respect to her FG activities both in China and in Canada. She was ordered to return to China and a summons was left for her to report within XXXX days. The Appellant also learned that two other co-practitioners had been arrested. [7] Upon learning the foregoing, the Appellant decided to make a refugee claim and not return to China. ROLE OF THE RAD [8] The RAD has taken guidance from the Federal Court in Huruglica1 wherein 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 claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." SUBMISSIONS BY THE APPELLANT * Did the RPD err in law by failing to make a determination on the Appellant's identity as a Falun Gong practitioner, and by failing to conduct any analysis of the sur place aspect of the Appellant's claim? * Did the RPD err in determining that the Appellant's summons and arrest notice are fraudulent? [9] The determinative issues in this claim are identity and credibility. The RPD found the Appellant not to be a credible witness as a result of vague, confusing and evasive testimony with respect to material aspects of her claim. Hukou [10] The RPD had concerns about the condition of the Appellant's hukou, as the stitching on the document was ripped. The Appellant thought that it may have been ripped when it came in the mail. However, it was brought to her attention that it came in a large envelope and the Appellant was not sure if the envelope arrived ripped. In response to counsel, the Appellant testified that the hukou may have been ripped because of its age, and perhaps she didn't hear the question earlier when the RPD was posing the questions. In light of the evasive and contradictory testimony, the RPD found, on a balance of probabilities, that the hukou is not genuine and, accordingly, there was nothing to support the Appellant's allegations that she was registered or living at this address in China. [11] The RPD further considered the fact that the Appellant's address on her visa application was not the same as her hukou. The Appellant explained that she lived at one address during the week and the other on the weekends. However, the issue which was significant was the fact that this address on the visa application had no supporting documentation other than a property certificate. The Appellant was unable to explain how she was able to obtain a Canadian visitor's visa with no government issued identity documents confirming the address used in her application, leading the RPD to conclude that the Appellant's actual residence was lacking in credibility. [12] The Appellant submits that the RPD's reason for finding her hukou fraudulent is capricious, as it relied on ripped stitching and the contradictory responses provided by the Appellant. It is argued that since it was issued on XXXX XXXX 1999, some regular wear and tear could be expected. The Appellant argues that she simply does not know why the document was ripped. [13] With respect to the address provided on the visa application and issues relating to her passport (discussed below), the Appellant submits that the RPD erroneously found the Appellant to be lacking in credibility with respect to her residence. It is argued that the questions about the Appellant's precise residential address in China; and the location of the Appellant's passport and whether she would have gone to replace it within 48 hours are completely immaterial. [14] The Appellant argues that her presence in China was well-supported by evidence that was not addressed by the RPD, namely a letter from her employer dated XXXX XXXX 2014 and medical records as recent as XXXX 2014. The RPD did not, it is submitted, dispute these documents. [15] After listening to the audio recording of the proceedings, the RAD finds that the RPD made every effort to glean information from the Appellant, repeating questions more than once, on many occasions. This occurred as the RPD's questions were not being answered, although other evidence was being elicited. The response from the Appellant with respect to the ripped stitching on the hukou was such an example. The Appellant provided contradictory answers between what she told the RPD and her response to her counsel. While it is true that a hukou issued in 1999 could appear worn and while the Appellant may not have known when it ripped, she nevertheless provided her initial response that perhaps it had ripped in the courier envelope which contained other documents, when at the very least, she could have said "I do not know". This is a credibility issue, as the RPD repeatedly ensured that the Appellant understood this and other questions. [16] Even if the RAD accepts that the hukou became ripped after years of use, the RAD finds that the identity issue was not determined in isolation. The Appellant was unable to explain how she obtained a Canadian visitor's visa without any government issued documents, given the address she provided, which was not the address on the hukou or Resident Identity Card (RIC). This, in the RAD's opinion, casts doubts on the address of the Appellant. However, the RAD finds that the absence of the passport and the credibility issues surrounding it (discussed below) add to the concerns raised by the RPD with respect to the residency of the Appellant) at the time she was allegedly practicing Falun Gong. Passport [17] The Appellant travelled to Canada using her own genuine passport. However, according to her testimony, she had lost the passport in a fire that took place at her parents' home in Canada. When questioned by the RPD, she was unable to provide a definitive response as to what had transpired with respect to her passport during the fire., i.e. somehow the passport was in her luggage, and her mother had left the luggage on the sidewalk, however, the Appellant could not provide a response as to how, if it was placed in the luggage, and the luggage was not misplaced, that the passport was lost. She testified that she discovered her passport was missing on XXXX XXXX, 2015 and she had reported it to the police.2 She had not, however, approached the Consulate to report her missing or lost passport. According to the Appellant, the police had told her that it would take four months to replace the document, however she was made aware that her visitor's visa expired in XXXX. The Appellant explained that once she learned the PSB's interest in her she did not want to proceed to replace the passport. However, the RPD noted that she became aware that her passport was missing two days before her family called with the news of the PSB's interest in her. [18] In light of all the foregoing evidence, although the RPD accepted, on a balance of probabilities, the Appellant's identity as a citizen of China, it found that it had not been provided with reliable documentation establishing that she lived in China where alleged or that she was in China at the time she was allegedly practicing Falun Gong. [19] Upon review of the audio recording of the proceedings, the RAD finds that the foregoing portion of the Appellant's testimony was vague and evasive when responding to questions surrounding how she had lost her passport in a fire which for the most part affected the kitchen. Although the Appellant responded that it was in her bedroom, and her mother had put luggage out in front of the house, suggesting the passport was placed in that luggage, no explanation was proffered for the loss of the passport. Moreover, although counsel for the Appellant argues that the replacement of the passport and the efforts on her part are not central to the claim, the RAD finds that this document is critical, particularly when questions arise with respect to the Appellant's hukou and RIC. The RAD also concurs with the RPD that the failure to even make contact with the Consulate to replace this important document, since she was allegedly returning to China in XXXX 2015, when her visitor's visa ran out, casts aspersions on her intentions. Corroborative evidence [20] Although the Appellant provided documents to establish that she is wanted by the PSB, including a summons and a notice that her family has been detained in China, the RPD's aforementioned credibility findings led it to doubt the authenticity of these documents. It further noted the prevalence of fraudulent documents in China3 and noted that the province of Guangdong and Fujian are "considered particularly high-risk for fraudulent documents." [21] The Appellant argues that the RPD erred in determining that the Appellant's summons and arrest notice were fraudulent, and that these documents are crucial to corroborate the central elements of the claim. The Appellant submits that since there were no deficiencies on the face of the documents, the RPD had no circumstantial evidence to find them to be fraudulent. The RPD, it is submitted, considered the prevalence of fraudulent documents in China, which is a general observation. The only basis for the rejection of these documents, it is submitted, is because of other credibility findings made by the RPD, and this in and of itself, is an error, particularly since the other findings have little, if anything, to do with the question of whether the Appellant is a Falun Gong practitioner and whether the PSB are pursuing her. CONCLUSIONS BY THE RAD [22] In the analysis of the issue of the Appellant's identity, the panel is guided by section 106 of the IRPA which states: The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. [23] Furthermore, Rule 11 of the Refugee Protection Division Rules4 states: The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. [24] The RPD further rightfully noted the prevalence of fraudulent documents in China. The RAD notes that the documentary evidence5 states: In correspondence with the Research Directorate, an official at the Canadian embassy in Beijing wrote that there are "consistent reports" of document fraud in China and that fraudulent identity documents (IDs) are easily obtained in the country (Canada 17 Sept. 2013). Similarly, a professor of criminal justice at Xavier University who specializes in Chinese policing stated in correspondence with the Research Directorate that "[t]here is little question that fraud of all kind[s], including ID fraud, is a major problem in China" (Professor 13 Sept. 2013). The Professor added that fraudulent IDs are "easily accessible" and that the industry is a "big business" and an "open secret" in China (ibid.). In July 2012, the state media source China.org.cn described the fraudulent ID industry as "an incredibly lucrative trade," in an article about the market for fake student ID cards, university diplomas, and other types of ID on the grounds of Renmin University in Beijing (9 July 2012). According to the Beijing embassy official, the provinces of Guangdong and Fujian are "considered particularly high-risk for fraudulent documents" (Canada 17 Sept. 2013). The embassy official also related that the Fujian government announced the launch of a comprehensive investigation into document fraud in February 2012 and called on the public to provide tips to aid the investigation (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. [25] Further , the RAD notes the documentation states "a professor of criminal justice at Rutgers University, who has written on Chinese human smuggling, told the Research Directorate that, in his opinion, "it is pretty easy to obtain all kinds of fake documents in China," including identity documents, birth certificates, university diplomas and hospital documents.6 [26] The RAD has considered the country documents that state "fake Hukou booklets are common and that they can be purchased easily on the black market and even semi-open market." Furthermore, an analysis of the documents reveals that the household register (Hukou) appears to be extremely susceptible to fraud and manipulation.7 A 2012 article published by the China Watch, an English-language Chinese news website, reports on the online black market for Beijing hukou (household registration documents), catering in particular to students who wish to live and work in the city after graduating (1 Mar. 2012). According to the article, some hukou sold on the black market are genuine documents while some are forgeries, but there is no difference in price and it is difficult to differentiate between real documents and fakes (The China Watch 1 Mar. 2012). Citing a China Economic Weekly report, the Chinese Communist Party's English-language newspaper Global Times states that 70 percent of hukou are allocated to state-owned enterprises but that those that are not given out are "usually sold to graduate students for exorbitant prices" (9 June 2011). Global Times also corroborates the existence of online markets for hukou and the sale of forged hukou (ibid.). [27] Furthermore, a United States (U.S.) consular official stationed in southern China states that "you can't trust any [personal] documents in China." The official also stated that the market for fraudulent documents is rapidly expanding and that documents "are presumed to be fraudulent unless proven otherwise.8 The RAD prefers the evidence of the China country documentation as this information is provided by unbiased, independent sources with no interest in the outcome of any particular refugee claim. [28] The RAD notes that the Federal Court has said that the Immigration and Refugee Board (Board) is under no obligation to send further identity documents for forensic analysis.9 Moreover, the RAD finds that such documents submitted by the Appellant have less probative value when they have been questioned. [29] Even if the RAD were to accept that the hukou is old, the question still remains as to why the Appellant could obtain a Canadian visitor's visa in the absence of Government issued corroborative evidence to confirm her identity. Moreover, the RAD finds that the issue surrounding the loss of the Appellant's passport is fraught with contradictions and vague responses. [30] The RAD concurs with the findings by the RPD that the Appellant has not established her identity and that, on a balance of probabilities, the hukou and RIC are not genuine. [31] The Appellant argues that the RPD erred when it failed to make any explicit determination on the very basis of her claim - whether she is a Falun Gong practitioner. The RPD, it is submitted, also failed to assess the sur place aspect of the claim, and the Appellant submits that these are both errors in law. [32] The Appellant submits that if she is found to be a genuine Falun Gong practitioner, then a positive determination follows, since it is extremely well-established by documentary evidence that Falun Gong practitioners are persecuted in China. The Appellant cites the reasoning from the Federal court in Chen10 wherein the Honourable Mr. Justice O'Keefe held that it is a reviewable error for the RPD to fail to make an explicit determination on whether a claimant is in fact a Falun Gong practitioner. [33] It is further submitted by the Appellant that the RPD erred when it failed to assess the sur place aspect of the Appellant's claim, namely if she was a genuine practitioner. It is argued that even if the RPD does not accept the claim sur place it must at least address the evidence supporting the Appellant's sur place claim and explain why it does not accept that evidence.11 The Appellant specifically mentions the photographs and support letter from her fellow practitioner. [34] The RAD concurs with the RPD's finding that the Appellant has not established her residency in China at the time she was allegedly practicing Falun Gong. The RAD further concurs with the RPD's findings with respect to the three significant identification documents which are issued by the government, namely, the Appellant's passport, the hukou and the RIC. Given these findings, the RAD agrees that it was open to the RPD to discount the documents that were not government issued, had no security features, and taking into consideration the prevalence of fraudulent documents in China. [35] The RAD finds that counsel's argument that the RPD did not make a determination on the central element of the claim, is without merit. In fact, the RPD stated, "...the claimant is not wanted by Chinese authorities owing to her Falun Gong activities". The RAD finds that it was open to the RPD not to conduct an analysis of the Appellant's Falun Gong practice, as she had not established her presence at the time of the alleged incidents. The RAD further finds that the Federal court jurisprudence cited by the Appellant is not applicable as identity was not an issue in the referenced cases. [36] After conducting an independent assessment of the entire record, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [37] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara September 28, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit RPD-1, RPD Record, pp. 248-300. 3 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for China (31 October 2014), item 3.22, RIR CHN104579.E. 4 Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2002-22. 5 Exhibit RPD-1, RPD Record, NDP, item 3.22, CHN104579.E. 6 Exhibit RPD-1, RPD Record, NDP, item 2.3, Country of Origin Information Report: China, UK Home Office, 12 October 2012, para. 33:06. 7 Ibid., item 3.22. 8 Exhibit RPD-1, RPD Record, NDP, item 2.3, para. 33:09. 9 Farooqi, Shaukat Ali v. M.C.I. (F.C, no. IMM-5446-03), Harrington, October 12, 2004; 2004 FC 1396. 10 Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 480. 11 Yin v. Canada (Citizenship and Immigration), 2010 544 at paras 89-91. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07834