TB4-10183

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 : TB4-10183 TB4-10184 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 1, 2015 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine 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 (Appellant) and her husband XXXX XXXX (male Appellant), citizens of China, have appealed a negative determination of the Refugee Protection Division (RPD) issued on October 1, 2014. DETERMINATION [2] Pursuant to section 111(1) (c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to the RPD for redetermination with the directions cited below. BACKGROUND [3] The Appellants allege that they fear authorities in XXXX XXXX XXXX as a result of their breach of China's family planning policy. The Appellants allege that they had a child on XXXX XXXX XXXX 2013 after which the Appellant was required to have an IUD inserted and have family planning checkup three times each year. In May 2013, the Appellant had her IUD removed because of medical complications. The Appellant was informed that she must have a pregnancy checkup four times each year. The Appellant discovered that she was pregnant in November 2013. The couple decided not to abort the baby due to their Buddhist faith. The couple went into hiding in December 2013 and missed their January pregnancy checkup. On January 10, 2014, two birth control officers went to the Appellant's home and to her mother-in-law's home and asked the Appellant's whereabouts and provided her family with a notice requiring the Appellant to report for a pregnancy check-up within a week. The same birth control officers returned on January 17, 2014 and left a notice for the Appellant to report for an abortion and sterilization, and for the Appellant's husband to be sterilized as they had breached birth control policies. The Appellant contacted a smuggler who assisted her and her husband to leave China. The Appellants fear to return to China as they do not want to be subject to abortion or sterilization. [4] The Appellants travelled to Canada via Hong Kong with valid passports and Canadian visas and arrived on XXXX XXXX, 2014. The Appellants made their claims for refugee protection on June 23, 2014. While in Canada, the Appellant gave birth to her daughter on XXXX XXXX, 2014. [5] The Appellants had a refugee determination hearing on August 22, 2014. Written reasons were issued on October 1, 2014. The RPD found that the Appellants were not credible. Individual findings included: a) The RPD drew a negative inference from the inconsistency between the Appellants' claim that they lived in XXXX City while there identity documents indicate that they were residents of XXXX City. b) The RPD found that it was not possible that the Appellants would register themselves in the male Appellant's parents' household register (hukou) where they lived for about a month, yet they would not register in XXXX City. As such, the RPD found that the male Appellant's Resident Identity Card (RIC) and hukou were not authentic and drew a negative inference as to the credibility of the Appellants. c) The RPD noted that the male Appellant provided contradictory testimony regarding whether he was asked for his passport at the China-Hong Kong border. d) The RPD noted that the female Appellant acknowledged that the couples' passports had been scanned upon entering Hong Kong and agreed that the Public Security Bureau (PSB) would have been alerted to their departure from China once the passports were scanned. The RPD noted that the PSB were not looking for the Appellants and did not seek to arrest them at the end of May 2014. e) The RPD concluded that the Appellants do not face a risk of persecution due to any religious beliefs they may have. f) The Appellants' testimony was found not to be credible given that they did not tell the truth about where they were residing, how they acquired their identity documents, how they left China, and the invention of a province that does not exist. g) Due to the unreliability of the Appellants' hukou and RICs, the RPD was unable to accept as authentic the other documents submitted including the birth certificate, the birth control service card, and the sterilization notice. h) The RPD found that the Appellants are not parents of more than one child and therefore have not violated China's one child policy. i) The RPD found that the Appellant's would not face a danger under section 97 given the credibility concerns in their evidence. [6] Appeal pleadings were received on November 14, 2014. In the appeal, counsel argued that the RPD erred in its assessment of the evidence and in making unreasonable credibility determinations. Specific errors included: a) The RPD erred in finding that the male Appellant's RIC and hukou were not authentic given that it misconstrued the Appellant's explanation as well as the documentary evidence related to non-hukou migrants. b) The RPD erred in drawing a negative credibility inference regarding the male Appellant's testimony about events at the China-Hong Kong border, given that this was microscopic and dealt with a peripheral issue. c) The RPD erred in its finding that the Appellants invented XXXX Province as the IMM-5669 and the Basis of Claim (BoC) clearly stated that the Appellants resided in XXXX City, XXXX Province. Furthermore, the RPD had a duty to put the alleged inconsistencies to the Appellants. d) The RPD erred in failing to make key findings of fact with respect to the basis of the Appellants' claim for protection, their fear of sterilization in China due to a violation of the one child policy in XXXX Province. e) The RPD erred in failing to perform an analysis with respect to the Chinese birth certificate, sterilization notice, and the existence of a child in China as this directly related to the claim. f) The RPD's determination was based on its cumulative credibility findings which were not reasonable and therefore the entire decision is not reasonable. [7] The Appellants ask that the RAD set aside and substitute the negative determination with a positive determination or to refer the matter back to the RPD for redetermination. [8] After perfection and before the decision was rendered, the Appellants submitted an affidavit, a DNA report, and submissions1 for consideration by the RAD. The Assistant Deputy Chairperson communicated with counsel2 and indicated that an application based on RAD Rule 29 must be made in support of documents and submissions provided after an appeal has been perfected as per RAD Rule 37. The Appellants submitted a Rule 29 Application3 on December 11, 2014. Given that the RAD has referred the matter back to the RPD for redetermination, the RAD did not make a decision regarding the Rule 29 Application. The Appellants are free to put forward any evidence they wish at their new hearing in adherence with the RPD rules on disclosure. ANALYTICAL APPROACH [9] In the pleadings, counsel argued that the RAD is required to conduct its own de novo assessment of the evidence that was presented before the RPD. In assessing the Appeal, the RAD is directed by the recent Huruglica4 decision. In this decision, Justice Phelan had indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Respondent 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 section 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. The RAD concurs with counsel on the approach to analysis and will assess the claim based on the guidance in the Huruglica decision. ANALYSIS [10] The RAD focused on one issue in assessing this Appeal: Was there sufficient evidence on the record to support the RPD's negative credibility findings, especially as they relate to the claim-specific evidence they provided? [11] The RPD drew a negative inference from the inconsistency between the Appellants' claim that they lived in XXXX City while there identity documents indicate that they were residents of XXXX City. In addition, the RPD found that it was not possible that the Appellants would register themselves in the male Appellant's parents' hukou where they lived for about a month, yet they would not register in XXXX City. As such, the RPD found that the male Appellant's RIC and hukou were not authentic and drew a negative inference as to the credibility of the Appellants. Due to the unreliability of the male Appellants hukou and RICs, the RPD was unable to accept as authentic the other documents submitted including the birth certificate, the birth control service card, and the sterilization notice. Counsel argued that the RPD erred in finding that the male Appellant's RIC and hukou were not authentic, given that it misconstrued the Appellant's explanation as well as the documentary evidence related to non-hukou migrants. Counsel also argued that the RPD erred in failing to perform an analysis with respect to the Chinese birth certificate, sterilization notice, and the existence of a child in China as this directly related to the claim. [12] Based on a review of the evidence before it, the RAD concurs with counsel that the RPD misconstrued the evidence regarding hukou registration, especially among migrants. Counsel accurately cited the documentary evidence around non-hukou migrants, especially in urban centres. The male Appellant testified he was a migrant worker and was unable to register his hukou or RIC in XXXX XXXX Given the documentary evidence, the RAD finds that this explanation was reasonable. As such, the RAD finds that the record does not support the RPD's negative inference with respect to the male Appellant's identity documents, and the RPD's finding that the remaining documents presented in support of the claim were not authentic. The RPD did not question the Appellants on the remaining documents presented in support of the allegations. As such, the RAD finds that there is not sufficient evidence on the record for the RAD to make a finding on these documents. [13] The RAD noted, however, that there was sufficient evidence on the record to support the RPD's finding that the Appellants were not credible regarding their travel to Hong Kong and exit from China, especially in relation to the testimony regarding their crossing into Hong Kong from China; the male Appellant's testimony that they walked from the border between China and Hong Kong to the airport in Hong Kong; and both Appellants' inability to provide details regarding the role of the smuggler. The female Appellant indicated that maybe her husband confused the border with the checkpoint at the airport. It was explained that the Chinese words for walking and a journey were the same and this could explain the inconsistency. The RPD indicated that the male Appellant had testified that he left the car when he arrived in Hong Kong and therefore there was no reason to confuse a journey with walking. The RAD noted that the male Appellant had an extensive international travel history (Korea, Malaysia, South Africa, Singapore, Hong Kong, and Japan) and therefore, it would not be reasonable for the male Appellant not to understand the concept of the border between two countries, including the border between Hong Kong and China. In addition, the RAD noted that counsel indicated that the inconsistency could be attributed to interpretation issues and indicated that counsel's office would be reviewing the recording and making submissions in regard to the interpretation. No submissions regarding the quality of the interpretation were included in counsel's submissions. As such, the RAD finds that the inconsistency could not be attributed to an interpretation problem. [14] The RAD also finds that the Appellants provided conflicting evidence related to their residing at the male Appellant's parents' home. The male Appellant testified that the couple lived with his parents for one month in March of 2011. The female Appellant corrected her husband and indicated that they lived with her in-laws from February to March of 2012. The conflicting evidence, combined with the fact that this period of living with the in-laws was not reflected in the IMM-5669s, raised credibility concerns with the Appellants' residence. The RAD noted that the Appellants did not provide documentary evidence to attest to their residence, and employment in XXXX. [15] In reviewing the evidence on the record, the RAD noted a concern with the evidence related to the province where the Appellants fear family planning officials. The Appellants provided evidence of being subject to family planning regulations in XXXX Town, XXXX City, XXXX Province. The Appellants cited in their port of entry documents that they were living in XXXX XXXX XXXX Province. Counsel focused her submissions on the risk that the Appellants face in XXXX Province. The evidence on the family planning policy in China is that the national law varies in its implementation as provincial, county, and local governments have their own local family planning regulations.5 As such, an assessment of the risk of persecution or harm that the Appellants will face requires a determination related to which provincial and local authorities the Appellants face, and on provincial and local implementation. The RAD finds that there is not sufficient evidence on the record to enable it to assess the Appellants' fears based on local conditions. It is essential for the RPD to make a finding regarding where the Appellants lived and which provincial and local family planning authorities they fear. SUBSTITUTION [16] Under normal circumstances, the RAD would consider substituting the RPD decision; however, the RAD finds that there is not sufficient evidence on the record upon which to ground a decision, especially given that the RPD did not elicit testimony regarding the claim-specific documentation presented by the Appellant, and what provincial and local authorities the Appellants fear. Furthermore, the RAD noted that there were several concerns with the evidence on the record (see below) which may require clarification. For these reasons, the RAD finds that the evidence on the record is not sufficient to support the RAD substituting the RPD decision for its own. [17] In reviewing the evidence and testimony, the RAD identified the following concerns which the RPD may wish to explore at the hearing: 1. The Appellants indicated that they lived for one month with the male Appellant's family in XXXX in 2012; however, their IMM-5669s do not reflect this. 2. The female Appellant's IMM-5669 indicates that she lived at XXXX XXXX XXXX XXXX XXXX XXXX between March of 2004 and March of 2012; however, there is no mention of her living at her in-laws' home at XXXX XXXX XXXX. where she was registered in the hukou. 3. The Appellants did not provide any documentary evidence as to their residence in XXXX. 4. The Birth Control Check-Up Notice (p. 334) cites Regulation 43(1)(a) of the XXXX Population and Birth Control Policies; however, a review of the Policies reveals that there is no sub-section (a). 5. There was no evidence on the record as to the provenance of the documents the Appellant's provided in support of their claim, including the provenance of the DNA report. DIRECTIONS [18] The RPD is directed to perform a de novo hearing of this matter with the directions cited below. 1. Disclose the latest National Documentation Package for China (October 31, 2014 or later). 2. Disclose and assess the DNA evidence in light of the CHN104954.E (September 22, 2014) Response to Information Request. 3. Direct the Appellants to disclose all original documents to the RPD well before the hearing for examination/verification by the RPD and/or the Royal Canadian Mounted Police (RCMP). 4. Request that Citizenship and Immigration Canada (CIC) provide copies of the male Appellant's 2 temporary visitor's visa (CVV) applications and supporting documentation, and the female Appellant's 1 CVV application and supporting documents. 5. Make a clear determination of whether or not the Appellants would be subject to Family Planning Policies in Fujian, Guangdong, or any other location in China. 6. Make a clear finding regarding the risk of forced abortion/sterilization or other sanctions that the Appellants may face upon their return to China, especially given that their child has been born in Canada. 7. Assess the Appellants' views and intentions related to China's Family Planning policy. The RPD may want to refer to decisions such as Canada v Ye (Minister of Citizenship and Immigration), 2013 FC 634 and Lin v Canada (Minister of Citizenship and Immigration), 2014 FC 683. 8. Make a clear finding regarding the Appellants' faith and the impact on the claim. DISPOSITION [19] The RAD refers the matter back to the RPD with the directions cited above as per section 111 (1) (c) of IRPA. [20] The Appeal is allowed. (signed) "Daniel McSweeney" Daniel McSweeney February 1, 2015 Date 1 Exhibit P-3, Affidavit and supporting documents received December 2, 2014. 2 Exhibit RAD-1, Communication from ADC to counsel dated December 5, 2014. 3 Exhibit P-4, Rule 29 Application received December 11, 2014. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 5 RPD's Record, Exhibit 4, National Documentation Package for China, March 14, 2014, Item 5,7, China: Family Planning, Australia, Refugee Review Tribunal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10183 TB4-10184