TB5-14298

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 : TB5-14298 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a.XXXX XXXX XXXX XXXX XXXX)XXXX Personne(s) en cause Appeal considered Toronto, Ontario Appel instruit à Date of decision March 31, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jacqueline M. Lewis 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 (the Appellant) claims to be a citizen of China. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] She has not submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that she is a Convention Refugee or in the alternative refer her claim back to the RPD for redetermination. DETERMINATION [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [4] The Appellant alleged before the RPD that she is being persecuted by Family Planning Officials (FPO) in China. She alleges that she became pregnant out of wedlock and that her unborn child was forcibly aborted. She alleges that she continues to be pursued by the FPO forcing her to undergo pregnancy tests even though she is not married. She alleges that she wants to have two to three children but she will be forced to wear an IUD or be sterilized after her first child is born. [5] The Appellant's refugee determination hearing was held over three sittings on June 25, 2014, October 14, 2014 and April 13, 2015. In a decision of December 3, 2015, the RPD found that she had not established her identity as a citizen of China and that she is not a Convention refugee or a person in need of protection. [6] The Appellant submits that the RPD erred in finding that she was not a citizen of China by failing to properly assess and consider critical documents in support of her Chinese identity. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RAD notes that the evidence in the record establishes that when the Appellant arrived in Canada, she presented a passport bearing her photograph issued in the name XXXX XXXX XXXX XXXX by the Republic of China (Taiwan) on XXXX XXXX 2013. She also presented another document issued in the same name bearing the same photo.1 She also had an e-Ticket receipt and boarding pass in the same name for a round-trip flight from Tokyo's Narita Airport to Toronto issued by Air Canada in Kuala Lumpur on XXXX XXXX 2013, departing Narita XXXX XXXX with a return flight scheduled from Toronto to Tokyo on XXXX XXXX 2013. The Appellant also had another e-Ticket for an onward flight on China Airlines from Narita to Taipei on XXXX XXXX 2013 in that name, which was booked on XXXX XXXX 2013. In addition, the Appellant also had two vouchers for hotels in the name XXXX XXXX XXXX XXXX: 1) at the Narita Gateway Hotel for one night on XXXX XXXX 2013, which was issued on XXXX XXXX 2013; and 2) at the Toronto Plaza Airport Hotel for a stay from XXXX to XXXX XXXX 2013, which was issued by City Vacation in Kuala Lumpur on XXXX XXXX 2013. Copies of all of these documents were included with the forms signed at the time the Appellant made her claim.2 [8] In her original interview with an officer of Canada Border Services Agency (CBSA), she asserted that she was XXXX XXXX XXXX XXXX, born in Taiwan on XXXX XXXX 1990, and that it was her passport issued to her by the Taiwanese government. During an interview with border officials, she provided significant details on her identity as a national of Taiwan. [9] She subsequently told CBSA officials during further questioning that she was not XXXX XXXX XXXX XXXX of Taiwan but that she was XXXX XXXX, date of birth was XXXX XXXX 1984 and that she was seeking refugee protection. The Appellant eventually tendered a number of documents in an effort to corroborate her allegation that she is a Chinese citizen from Fujian province. [10] The RPD found, on the basis of the Taiwanese passport, that the Appellant failed to rebut the prima facie presumption, as found in section 93 of the Office of the United Nations High Commissioner for Refugees (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status, that she is a national of the country of issue, in this case, Taiwan.The RPD found that the Appellant failed to meet her onus to establish that she is of a different citizenship than that indicated in the Taiwanese passport. As the Appellant made no allegations of persecution on a Convention ground, or that she is a person in need of protection with respect to Taiwan, the RPD determined that her claim must fail. [11] The Appellant essentially submits that she is a citizen of China and that she used a fraudulently obtained Taiwanese passport to travel to Canada. She also submits that she has tendered sufficient credible documents which established her identity as a citizen of China. She argues that the RPD's treatment of her identity documents was deficient. The Appellant submits that the RPD's decision cannot be sustained and that the RPD's errors can be categorized as follows: * The RPD extended the presumption of truthfulness to only select documents and failed to address all the documents in its reasons. * The RPD rejected her [Chinese Identity] documents based on previous credibility findings and the availability of fraudulent documents. * The RPD selectively reviewed the documentary evidence in the record. Presumption of Genuineness of Foreign Issued Documents [12] The Appellant submits that the presumption of genuineness of documents issued by a foreign government is clear and that although the RPD applies that presumption to the validity of the Taiwanese passport, the RPD failed to apply the same presumption to the validity of any of the Chinese documents tendered. She argues that the Federal Court decision in Adar v. Canada3 highlights the importance of conducting an examination of her Chinese identity documents and providing sufficient descriptive and analytical details why they were not accepted as evidence of her identity. She argues that the RPD merely paid lip service to the documents and did not engage in any analysis and without that analysis, her ability to rebut the presumptions created by the Taiwanese passport is not possible. [13] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds, after its own review and assessment of the evidence, that the Appellant has not rebutted the presumption created by the Taiwanese passport and that she is a citizen of Taiwan. The passport was determined to be a genuine document after forensic analysis. The Appellant does not contest the genuineness of the Taiwanese passport but testified that it was improperly obtained using a "snake" agent. [14] The RAD notes, however, the RPD found that the Appellant was not a credible witness and that her testimony with regard to her identity was not reliable. The RPD made a number of credibility findings, none of which were contested by the Appellant. In particular, the RAD notes that the RPD found the Appellant's testimony that she fraudulently obtained the Taiwanese passport was inconsistent and contradictory and that she provided inconsistent and varied explanations for her testimony in that regard. The RPD also found that her testimony undermines her allegations that she obtained the Taiwanese documents fraudulently using a "snake" agent, as she has alleged. The RAD notes that the Appellant has not contested any of the RPD's credibility findings with regard to her testimony. After its own review and assessment of the evidence in relation to these findings, the RAD concurs with the RPD's findings. [15] The RAD also notes that the RPD found the Appellant's Taiwanese passport shows stamps from Taiwan on XXXX XXXX 2013, an entry to Malaysia on XXXX XXXX 2013 and an exit on XXXX XXXX 2013, an immigration inspector's stamp from Narita (Japan) dated on XXXX XXXX 2013 allowing a visit of 90 days, and departure stamp from Narita also dated XXXX XXXX 2013.4 The other Taiwanese document, described as the entry permit for China, bore stamps from China dated XXXX XXXX 2013 and XXXX XXXX 2013.5 [16] The RPD found that the Appellant's testimony concerning her travel at the first port-of-entry interview is actually borne out by the stamps in the Taiwanese passport and that the information the claimant provided in Schedule 126 and at the hearing was not consistent with the stamps in the passport. The RPD found as a result that the Taiwanese documents reflect not only the Appellant's real identity, but also her actual itinerary, en route to Canada. Again the RAD notes that the Appellant does not contest these findings of the RPD. After its own review and assessment of the evidence in relation to these findings, the RAD concurs with the RPD's findings in this regard. [17] The RAD agrees with the RPD and finds on the basis of the foregoing findings and on a balance of probabilities that the Appellant is a national of Taiwan. Treatment of Appellant's Corroborating Documents [18] The RAD notes that the Appellant argues that she tendered the following documents to corroborate her identity as a Chinese national: * Original Resident Identity Card (RIC); * Photocopy of the biographical page of a Chinese Passport, Hong Kong and Macao Exit-Entry Permit which indicates that she is from Fujian Province China; * A notarial certificate certifying that she was born in China; * An original Chinese family registry (Hukou); * The RICs of her parents; and, * A graduation certificate from China. [19] The Appellant argues that had these documents been properly analyzed by the RPD, they could have rebutted the presumption of genuineness of the Taiwanese passport. [20] The RAD is not persuaded by the Appellant's argument. The RAD finds that some of these documents can be considered primary documents to establish identity (RIC, Hukou, Passport) while others are secondary documents which can be also used to corroborate identity. Chinese Passport [21] The RAD finds that the "Gold Standard" for identity documents in establishing nationality is a genuine passport. The RAD notes that the Appellant claimed to have been issued a Chinese passport; however, she did not tender her Chinese passport, except a photocopy of the bio-page of a Chinese passport. 7 [22] The RAD notes that the Appellant's testimony during the hearing with regard to her alleged Chinese passport was inconsistent and unreliable. The RPD found that the Appellant did not provide credible evidence about the absence of her Chinese passport and about how she obtained the copy of the bio-page of the Chinese passport. After its own review and assessment of the evidence in relation to this finding, the RAD concurs with the RPD and finds that the Appellant's testimony concerning her Chinese passport is not credible. Again, the RAD notes that the Appellant has not contested the credibility findings of the RPD. In addition, the RAD finds, as also noted by the RPD, that the Appellant has had considerable time to produce the passport and has not provided a reasonable explanation for why she has not done so. Hukou [23] The RAD notes that the RPD found that some of the information contained in the hukou was inconsistent with the evidence that the Appellant provided in her claim forms. The RPD found that Appellant provided explanations for these inconsistencies were neither consistent nor credible, and drew a negative inference concerning her credibility. The RPD also found other anomalies with the hukou and found it could give no weight to the hukou in establishing the identity of the Appellant as a citizen of China. Again, the RAD notes that the Appellant does not contest these credibility findings. [24] The RAD also notes that, the objective evidence establishes that the hukou is a rudimentary document unlike the Resident Identity Card. Household registers have few security features and little evidentiary value: pages may be counterfeit, obtained on the basis of other counterfeit documents, or otherwise improperly issued. In our experience, many applicants do not in fact live where they are registered or with the persons with whom they are registered for reasons that have nothing to do with immigration. Migrant workers in China, for example, usually live thousands of miles from their official place of residence. In view of these challenges, Visa Offices in China routinely request DNA testing whenever there is a concern about family relationships or other information on birth records. (Canada 24 June 2010) 8 [25] As such, the RAD finds that the hukou is not a primary identity document which can be relied upon to establish identity. Furthermore, an analysis of the objective evidence reveals that the household register (hukou) appears to be extremely susceptible to fraud and manipulation.9 [26] Given the objective evidence concerning the rudimentary nature of hukous, the prevalence of fraudulent hukous, and, in light of the totality of credibility concerns identified in this claim, the RAD agrees with the RPD findings in this regard. Appellant's Resident Identity Card [27] The RPD found that it could give little weight in establishing the Appellant's identity in light of its earlier findings that the Appellant was not a credible witness, the prevalence of fraudulent identity documents 10 including evidence that "fraudulent RICs could be purchased 100 metres from a police station in Guangdong for as low as 200 Chinese Yuan."11 [28] The Appellant submits that it was an error for the RPD to reject the RIC on the basis of its previous credibility findings and the prevalence of fraudulent documents in China. The RAD is not persuaded by the Appellant's argument. [29] The RAD notes, after its own review and assessment of the evidence, that the Appellant has alleged that she has the ability to acquire and the willingness to use fraudulently obtained documents. The RAD also agrees with the RPD that "... an applicant's overall credibility may affect the weight given to the documentary evidence (Granada v Canada (Minister of Citizenship and Immigration), 2004 FC 1766 (CanLII), 136 ACWS (3d) 123 at para 13)."12 [30] The RAD finds, on the basis of the foregoing and the totality of the adverse credibility findings noted above, that the Chinese RIC does not outweigh the Taiwanese passport and other documents in establishing identity. The RAD finds that while the Chinese documents may have been sufficient to establish identity in the absence of any evidence to the contrary, the RAD finds that they are insufficient to rebut the presumption created by the Taiwanese passport that the Appellant is a Taiwanese national. [31] In the alternative, the RAD finds that even if all the Chinese documents tendered by the Appellant were to be accepted as genuine, they do not establish that she did not obtain them through unlawful means or that she does not hold an additional identity in Taiwan. The RAD finds at best, they could establish that the Appellant also has nationality under a different name in China. The RAD finds that in light of this it would not be possible to determine which of the Appellant's identities her genuine identity is. [32] The RAD also finds that, based on the serious credibility issues identified, it cannot rely on the Appellant's testimony to establish her identity. CONCLUSION [33] The RAD finds, based on the totality of the evidence, that the Appellant has failed to provide sufficient reliable documents and credible evidence to establish her identity as required by section 106 of the IRPA and Rule 11 of the Refugee Protection Division Rules. The burden of establishing identity must be satisfied before the RAD considers the merits of the claim and whether the Appellant, in this case, faces a serious possibility of being persecuted or is a person in need of protection. The RAD finds, on a balance of probabilities, and on the basis of the totality of evidence disclosed and the findings and negative inferences noted above, that the Appellant has not established her personal identity or that she is a citizen of China as she has alleged. DISPOSITION [34] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau March 31, 2016 Date 1 RPD's Record, pp. 103-107. 2 Ibid., pp. 108-112. 3 Adar, Mohamoud Omar v. M.C.I. (F.C.T.D., no. IMM-3623-96), Cullen, May 26, 1997. 4 RPD's Record, p. 105, passport of Republic of China. 5 Ibid., p. 106. 6 RPD's Record, pp. 80-83. 7 Appellant's Record, p. 91. 8 RPD's Record, National Documentation Package (NDP) for China (October 31, 2013), item 3.2. 9 Ibid., item 3.11. 10 NDP for China (October 31, 2013), item 3.22. 11 Ibid. 12 Huang, Suishan v. M.C.I. (F.C., no. IMM-1972-10), Near, March 10, 2011, 2011 FC 288, at para 21; also Jia, Min v. M.C.I. (F.C., no. IMM-6522-13), Annis, May 5, 2014, 2014 FC 422 at para 19, for example. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-14298