TB6-08510

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB6-08510 TB6-08511 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 13, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) and her daughter XXXX XXXX (the minor Appellant), , both citizens of the People's Republic of China, are appealing the decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have not submitted any new evidence in support of their appeals nor are they requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellants are, however, asking the RAD to substitute a positive determination, or in the alternative, to remit the matter 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 confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Background [3] The Appellant alleges that she fears persecution at the hands of the Chinese authorities because she harboured a friend, who was a Falun Gong (FG) fugitive. [4] The Appellant alleges that on XXXX XXXX XXXX 2015 she allowed her best friend to stay at her home after she had managed to escape from a police raid at her FG meeting. The Appellant alleges that her friend remained with her for one night. [5] On XXXX XXXX, 2015, the Appellant was advised that her friend had been detained by the authorities, and consequently she went into hiding. The Appellant alleges that the Public Security Bureau (PSB) went to her parents' home to look for her on two occasions. With the aid of a smuggler, the Appellant and her daughter exited China. ROLE OF THE RAD [6] Counsel for the Appellants concurs that the RAD should apply the reasoning in the recent Federal Court of Appeal decision, in Huruglica.1 This decision provides us with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. SUBMISSIONS BY THE APPELLANT * Did the RPD err in its assessment of the Appellants' credibility? US visa [7] The RPD found that Article 310 of the Criminal Law of the People's Republic of China 2 would have applied to the Appellants with respect to procuring US visitor's visas, in that the US undergoes security checks and finger scans prior to the issuances of such visas. Given that the PSB had allegedly sought her out for the first time on XXXX XXXX XXXX 2015, long before she left the country in XXXX 2016, the RPD found, on a balance of probabilities, that the Appellant would not have passed the screening process undertaken by the US authorities.3 [8] It is submitted by the Appellant that it was highly speculative on the part of the RPD to find that the Appellant would not have been able to pass a screening process undertaken by the US authorities, if she were a criminal suspect in China. [9] With due respect, given the documentary evidence, the RAD concurs with the finding by the RPD in this regard. Moreover, although not stated by the RPD, upon review of the audio recording, the Appellant testified that the smuggler filled out her visa application with fraudulent information. This casts a doubt on the veracity of the information provided, when an individual is willing to provide false information in order to enter a country. Furthermore, although having the right to remain the US legally, the Appellant crossed over into Canada illegally, where she might well have been deported to the very country she alleges she fears. Appellant's passport [10] The RPD found as a result of the Appellant's inconsistent testimony as to when the smuggler took away her passport, that this detracted from the Appellant's credibility, specifically when and how the smuggler took away their passports. [11] It is submitted that the RPD conducted a microscopic assessment surrounding this issue. [12] In this regard, the RAD concurs that the Appellant provided an explanation that the smuggler took away her passport on two occasions: firstly after she had boarded the plane, and again after disembarking the plane when she had insufficient funds to pay the smuggler. The RAD finds that this conclusion is unsustainable; however, it does not go to the merits of the claim, and therefore is not fatal to the outcome of the claim. Lack of Travel Documentation regarding the Appellant's International trip [13] The RPD noted that the Appellants, having returned their passports to the smuggler, were asked if they had retained their boarding passes or baggage tags. The Appellant's response that she did not think to keep them was contrasted with the fact that she had submitted their boarding passes from Vancouver to Toronto. The RPD noted, however, that this provided no information regarding the Appellants' exit from Hong Kong and entry in the US, which is the part of the journey that is of most importance in this case. The RPD found, given the submission of domestic boarding passes, that the Appellant must have known the importance of these documents [14] In considering the Appellant's explanations, the RPD relied on the reasoning by Mr. Justice Nadon in Elazi.4 [15] The RPD drew a negative finding against the credibility of the Appellants and their allegations on the basis of a lack of passports or any other travel documentation to corroborate her testimony regarding their trip out of Hong Kong to the US. The RPD, given its credibility concerns surrounding the ability to obtain a US visa, found that this lack of corroborative evidence was significant. [16] It is submitted that the RPD further erred in drawing a negative credibility inference regarding the Appellants' lack of evidence to corroborate their alleged journey from Hong Kong to the US when the Appellants had been assisted by a snakehead, particularly in respect of their trip from China to the US. [17] The RAD concurs with the RPD that the Appellants' journey from Hong Kong to the US is material to their claims. Given the lack of corroborative evidence in this regard, it is impossible to ascertain if and when the Appellants left Hong Kong. PSB's interest in Appellant not proven [18] The RPD considered the documentation with respect to the harbouring of a FG fugitive. Firstly, it found that very little documentation in fact which referred to non FG practitioners who had harboured FG fugitives. This Appellant clearly had no FG connections. She was simply helping a long-time friend for one night. [19] More importantly, however, the RPD considered the fact that no summons or arrest warrant has been issued. Further it took into consideration the documentation that states that anyone who publicly supports FG or its practitioners is dealt with harshly, but that simple association or showing sympathy would not be sufficient to pose a "real danger" to those involved.5 [20] It is submitted that the RPD further erred in finding that the Appellants had failed to establish that a person with their profiles would be targeted by the PSB, on the basis of the following grounds and considerations: a) The fact that the Appellant had not received a summons or a warrant, since documentation indicates variances in arrest procedures in China from locale to locale, and corroboration not being a requirement in refugee law. b) The documentation did not provide a justifiable basis for the RPD's effective finding that the PSB would not be interested in the Appellant, a non-practitioner, for having harboured a FG practitioner. Corroborative evidence [21] The RAD finds that it was incumbent upon the Appellant to provide some proof other than hearsay evidence that she is wanted by the PSB. In her Basis of Claim (BOC), she states that co-practitioners were arrested. The RAD finds that if this were really true, then the RAD concurs with the RPD that a summons would have been issued to the Appellant. [22] The RAD notes that country condition documents6 indicate that a summons is often left with or shown to family members when the police want someone to come to their headquarters. In addition, the summons is the documentary basis for the subsequent issuance of an arrest warrant if the person in whom they are interested does not respond to the summons. Although this policy is not always implemented, it is reasonable that one would have been issued in respect of the claimant given that the Appellant testified that the PSB have gone to her home in search of her. [23] The RAD concurs with the RPD's finding surrounding the foregoing issue. The onus is on the Appellant to provide sufficient credible evidence to support the material allegations of her claim. Although the RPD did not indicate in its reasons, upon review of the audio recording, the RAD finds that the exit process described by the Appellant is lacking in detail, and calling into question the process used by the Appellant to get through the airport. The RAD concurs that even with bribery, if wanted by the PSB, she could not have exited China without being detected. [24] The RAD finds that, after its own review and assessment of the evidence, the documentary evidence in the record reveals that the Chinese government has a national computer network known as the Golden Shield Project,7 and the PSB has access to a national policing database, which includes information about criminal fugitives and information on passports and exit and entry. The Golden Shield incorporated extensive tracking and control mechanisms including facial recognition surveillance technology. [25] The RAD also notes, from its own review and assessment of the evidence, that the Exit and Entry Administration Law of China, which came into force on July 1, 2013, states the following:8 (...) Article 11. Chinese citizens who exit or enter China shall submit their exit/entry documents such as passports or other travel documents to the exit/entry border inspection authorities for examination, go through the prescribed formalities, and may exit or enter upon examination and approval. Article 12. Under any of the following circumstances, Chinese citizens are not allowed to exit China: (...) are suspects or defendants in criminal cases; (...) If a foreigner or a Chinese citizen must be prevented from leaving China at a border control station, the people's court accepting the case shall report up the hierarchy to the High People's Court, and a written notification of preventing person from departing through entry-exit port shall be issued by the Highest People's Court, and work with the public security organ of the corresponding level for handle control formalities. If the control port is not within the same province, autonomous region, or municipality directly under the central government, the public security organ in the relevant province, autonomous region, or municipality directly under the central government shall be contacted for the handle control formalities. Under emergency situations, if necessary, may first have the border control prevent departure and complete control formalities later. (China 20 Dec. 2012, Art. 404). [26] The RAD also notes that the documentation states that security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities (also known as Policenet or the Golden Shield).9 3. Information Sharing by Public Security Officials In 10 February 2014 correspondence with the Research Directorate, the Executive Director of the Dui Hua Foundation affirmed that airport security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities [also known as Policenet or the Golden Shield]. Similarly, the representative of the Laogai Research Foundation stated that reports on "experiences of activists who have been detained while trying to board an international flight provide clear evidence that airport officials are connected to Policenet" (26 Feb. 2014). A colleague of Cao Shunli, who was also prevented from travelling to Geneva for the human rights training in September 2013, later publicized her own experience at the airport in Guangdong (HRIC 11 Oct. 2013). According to the Laogai research Foundation, the colleague indicates that when her passport was swiped by airport authorities, scanning equipment immediately made noises alerting airport officials that she was wanted by police. She was subsequently detained in the Guangdong Baiyun Airport and told that Shanghai police would not let her leave. She was then transported from Guangdong to Shanghai for detention and questioning. This woman's experience provides concrete evidence of airport officials coordinating with police departments in tracking and detaining a political dissident. (26 Feb. 2014)10 4. Security and Exit Control Procedures The representative of the Laogai Research Foundation wrote that the Chinese government checks the passports of citizens attempting to leave the country in order to ensure that they are suitable for foreign travel. Customs officials stamp the passports of citizens approved for foreign travel. Public security officials often confiscate passports held by individuals deemed unsuitable for foreign travel. (23 Feb. 2014).11 [27] An undated article on the website of the Ministry of Public Security, entitled: "Deepening the Implementation of the 'Golden Shield' Project" states that: all police units nationwide have access to eight public security databases, including the "National Basic Population Information Database" (China n.d.). Also accessible through the databases is information on household registration [hukou], border exit and entry, road traffic, and criminal investigations (ibid.).12 [28] In particular, the RAD notes that the system has been used to track down Falun Gong practitioners. The Chinese economist writing in Open Magazine affirms that: ...Cisco's Policenet has been helping the [Chinese Communist Party]'s public security organs to ferret out political dissidents and Falun Gong practitioners for years (17 Feb. 2010).13 [29] In addition, the representative of the Laogai Research Foundation provided the following information: The Golden Shield incorporates extensive tracking and control mechanisms such as real-name online registration requirements, GPS monitoring, and facial recognition surveillance technology in a multi-pronged approach to identify potentially disruptive individuals. Policenet, a component of the Golden Shield, stores a wealth of information on Chinese citizens and connects the various agencies and levels of command within the public security apparatus. This integrated system enables Chinese public security forces to effectively target and neutralize political dissidents. (26 Feb. 2014)14 [30] According to a Canadian embassy official in Beijing, a traveller will pass through four points: a check-in counter, a security checkpoint for entry into the airport's secure zone, departure immigration where border authorities are located, and the boarding gate; at each of the points, the traveler's passport may be checked, with scanning occurring at the check-in counter and the immigration checkpoint.15 Another source cited in the NDP, an assistant director for aviation security at the International Air Transport Association (IATA), indicates that three checkpoints exist, without making reference to the boarding gate, and states that a traveler's passport is checked at each of these locations.16 The IATA official also noted that specific departure procedures vary at each airport, but that the general procedures are consistent.17 [31] The NDP also indicates that freedom to exit China is not absolute.18 Under Article 12 of the Exit and Entry Administration Law of China, exit from the country is denied under certain circumstances, including instances where the citizen does not hold valid exit documents, or is a suspect or defendant in a criminal case.19 Chinese border authorities have also effectively implemented exit control measures, although there are isolated incidents of successful evasion20 and it appears that the database is automatically searched when border authorities scan a passport.21 [32] Furthermore, the RAD finds that evidence reveals that the Golden Shield system is an intensive security apparatus that is far-reaching and encompassing. The RAD finds that given the importance of this system to Chinese authorities in monitoring its citizens, it is reasonable to expect that the use of the apparatus is also monitored and that there are redundant systems in place to prevent the system from being compromised by a single individual. [33] The RAD's finding in this regard is supported in the Refugee Appeal Division decision of X (Re), 2015 CanLII 72857 (CA IRB), addressing similar circumstances: API [advance passenger information] requirements which have been in effect for years, in conjunction with the highly effective Golden Shield program, makes it, on a balance of probabilities, unlikely a wanted person could depart China from an international airport using a passport with his own name, date of birth, and photograph in it. The likelihood of bribing so many people as would be involved in a person's departure is miniscule. From the person selling the ticket, to the check in counter, to the security checkpoint, the customs and immigration people onto the person who checks the Boarding pass, all of these people may be randomly in place and make it nearly impossible for anyone to know who to bribe at what point. It is simply implausible that a wanted man will escape China on his own legitimate documents.22 [34] After its own review and assessment of the evidence, the RAD agrees with the RPD's findings and does not find it credible or plausible that the Appellants were able to leave China on their own passports after coming to the attention of the PSB as alleged. The RAD further finds that this undermines the credibility of the Appellant's allegations that she was being pursued by the PSB because of her harbouring a FG fugitive. [35] The RAD also notes that Article 51 of the Exit and Entry Administration Law of the People's Republic of China requires that companies involved in the transportation of goods and passengers in and out of Chinese ports must declare information on the goods and passengers in advance of their departure or entry to the country.23 Chinese border authorities are provided what is described as "advance passenger information" on arriving and departing passengers.24 This information contains a number of details of that passenger, including full name, date of birth, gender, nationality, country of residence, travel document type, and passport number, expiry date, and issuing country.25 With respect to flights into the country, it appears that China maintains a "stop list" which bars the passenger from boarding the aircraft; however, the NDP remains silent on whether a similar list exists for outbound flights.26 In any event, it is evident that border authorities are provided detailed information on the passengers aboard outbound flights. [36] The RAD finds that, in light of the Appellant's allegation that the PSB have continued to show interest in pursuing her, it is reasonable to expect that the local authorities would have entered her information into the database to further their efforts to apprehend her. [37] Furthermore, the Appellant was asked by the RPD if any ill harm had come to her parents, following the initial search of their home. As far as she knew, nothing untoward had occurred. They were, however, threatened if they did not divulge the whereabouts of their daughter, yet in spite of this threats, no family members had sustained any harm. RAD'S CONCLUSION [38] The RAD, after conducting an independent assessment of the entire record, concurs with the RPD with the outcome of this claim. The RAD is led to this conclusion for the following reasons: * The Appellants' ability to exit China, both the procurement of the US visa and the ability to pass through security check points if wanted by the PSB. * The lack of a summons or a search warrant. * Family members not sustaining any ill effects of their daughter's alleged problems. * The Appellants' lack of proof of their exit from Hong Kong to the US. [39] With respect to the Appellant's daughter, the RAD finds that her allegations are based on those of her mother, and therefore, her claim must also fail. Furthermore, upon review of the audio recording, it would appear that schooling in China was a concern, although when further questioned, the Appellant acknowledged that only some schools might not allow her to attend. [40] In light of the foregoing, the RAD finds that the Appellants are not Convention refugees or persons in need of protection. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara September 13, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, p. 166. 3 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (October 30, 2015), item 14.9. 4 Elazi, Iseikete Simon v. M.C.I. (F.C.T.D., no. IMM-1038-99), Nadon, February 17, 2000. 5 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), item 12.27, p. 5. 6 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), items 9.5 and 9.6. 7 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), items 14.3 and 10.4. 8 Ibid., item 14.3. 9 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), item 14.3. 10 Ibid. 11 Ibid. 12 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), item 10.4. 13 Ibid. 14 Ibid. 15 Ibid., item 3.24, section 3.1. 16 Ibid. 17 Ibid. 18 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), item 14.3. 19 Ibid., at p.1. 20 Ibid. at pp.2-7 21 Ibid. at p.6. 22 X (Re), 2015 CanLII 72857 (CA IRB), at para. 23. 23 Exhibit RPD-1, RPD's Record, NDP for China (October 30, 2015), item 14.11. 24 Ibid., item 14.15, at pp. 2-4. 25 Ibid. at p. 3. 26 Ibid. at p.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB6-08510 TB6-08511