Jurisprudential Guides - Decision TB6-11632

Private Proceeding

Reasons and Decision

Person(s) who is(are) the subject of the appeal:

XXXX XXXX

Appeal considered / heard at:

Toronto, Ontario

Date of decision:

November 30, 2016

Panel:

Leonard Favreau

Counsel for the person(s) who is(are) the subject of the appeal:

Elyse Korman, Barrister and Solicitor

Designated Representative(s):

N/A

Counsel for the Minister:

N/A


Reasons for Decision

[1] XXXX XXXX (the “Appellant”) is a citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. He asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own decision that he is a Convention refugee or a person in need of protection or, in the alternative, refer his claim back to the RPD for redetermination.

Determination

[2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal.

Background

[3] The Appellant alleged before the RPD that he came to Canada in XXXX 2014 on a work visa. He returned to China in XXXX 2014. He fears persecution in China because the Public Security Bureau (PSB) learned that he had brought a copy of the book, Zhuan Falun, from Canada into China for his mother-in-law who is a Falun Gong practitioner. The Appellant went into hiding, and the PSB returned to his home on several occasions demanding that he surrender. Fearing for his safety, the Appellant left China and came to Canada with the help of a smuggler. Shortly after his arrival in Canada, he initiated his claim for refugee protection. Since arriving in Canada, the Appellant learned that his mother-in-law was sentenced to a term of imprisonment of XXXX years because of her illegal Falun Gong practice.

[4] The Appellant’s application for refugee protection was heard July 20, 2016. In a decision of August 2, 2016, the RPD rejected the Appellant’s claim, finding that the Appellant was not credible.

[5] The Appellant submits that the RPD erred in its assessment of his credibility.

Role of the RAD

[6] The RAD finds that the Federal Court of Appeal’s decision, in Huruglica,Footnote 1 provides the RAD 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.

[7] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD’s decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred.

Analysis of the Merits of the Appeal

Credibility

[8] The Appellant submits that, although the RPD made several adverse credibility findings, he is only contesting the RPD’s findings with respect to his exit from China and the assessment of the summons that was tendered in support of his claim. He argues that these findings were determinative of his claim for refugee protection.

Exit from China

[9]  The RPD drew an adverse credibility finding based on the Appellant’s ability to travel out of China using a passport in his own name, given that he has alleged that the PSB were actively pursuing him to arrest him for bringing Falun Gong material into China. The RPD found that, despite his allegations that he used a smuggler, it was not plausible that he was able to bypass all of the security measures in place.

[10] The Appellant submits that the RPD’s finding was premised on the speculative assumption that his smuggler did not have the means to ensure his unobstructed passage out of China. He argues that the RPD failed to appreciate that the whole purpose of hiring a smuggler is to accomplish what he could not do on his own. He further argues that the RPD’s findings that there is corruption and bribery in China belies its conclusion that his story is implausible.

[11] He argues that he paid a significant sum to the smuggler and given that the smuggler’s entire enterprise is based on spiriting individuals out of China, it is reasonable to assume that he had the means of either avoiding detection or ensuring the consent of the necessary airport officials.

[12] The RAD is not persuaded by the Appellant’s argument in this regard. The RAD finds, after its own assessment of the evidence, that it agrees with the RPD that the Appellant could not have left China using his genuine passport given his allegations that the PSB wanted to arrest him.

[13] The documentary evidence reveals that the Chinese government has a national computer network known as the Golden Shield Project,Footnote 2and 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.

[14] 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 1 July 2013, states that 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.

[15] According to the evidence in the National Documentation Package (NDP) in the record, a Canadian Embassy official states that upon departure, a person may be requested to produce their passport four times in the airport. The embassy official also indicated that the passport is scanned at two of these times: at the airline check-in counter and at the immigration departure counter. The source mentioned that the passenger's airline ticket is scanned when entering the "secure transit area" and at the airline boarding gate. Footnote 3

[16] Furthermore, in correspondence with the Research Directorate, a representative of Air Canada who works in the area of airline facilitation indicated that upon check-in, the person's passport is scanned … the machine-readable zone (MRZ) of the passport contains the advanced passenger information (API), which is gathered by the airline. Passengers leaving China must pass through exit immigration control points where passengers are seen by Chinese immigration agents prior to approaching the boarding gate.

[17] In correspondence with the Research Directorate, an assistant director responsible for aviation security and facilitation at the International Air Transport Association (IATA) indicated that, to the best of the source's knowledge, the departure procedure at airports in China seems to involve three steps: 1) check-in; 2) immigration; and 3) security and that, at all three locations, passengers are required to show their passports. Usually, at check-in, the Advanced Passenger Information System (APIS) info is input, manually or through by scanning; at immigration by physical inspection, and at security checkpoint by matching passport info with boarding card for verification, either using barcode readers on the boarding pass or just a visual check (with a stamp on the boarding pass). Footnote 4

[18] The documentary evidence also states that Chinese citizens are not allowed to exit China if they are suspects or defendants in criminal cases. The same article states that:

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.Footnote 5

[19] The panel 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).Footnote 6 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).Footnote 7

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)Footnote 8

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).Footnote 9

[20] 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.Footnote 10

[21] In addition, the representative of the Laogai Research Foundation stated that 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.Footnote 11

[22] The Appellant has alleged he left China from the Beijing Airport. According the NDP, facial recognition technology is in place at the Beijing Airport. A 2009 article by China Daily indicates that, as of September 2009, Beijing Capital International Airport has used facial recognition systems to “stop people from pretending to be airport staff and sneaking into restricted areas”. Similarly, the Canadian embassy official indicated that Beijing international airport has a facial recognition system “used by airport staff passing between the secure transit and public sections of the terminal” [w]hen passengers [pass] through [the] immigration counter, they [are] photographed by a mini-camera to record each passenger's face. Facial recognition technology is applied to the images; however, it is unclear as to the total scope of the database against which the images are assessed. Footnote 12

[23] The RAD notes that the Appellant’s allegation was that the smuggler arranged for his safe passage because he had “already bribed customs”. The RAD also notes that the Appellant also testified that he presented his passport for inspection four different times. The RAD also finds that the Appellant’s evidence of the smuggler’s actions was vague and lacking detail. The RAD finds that the Appellant’s evidence that the smuggler bribed customs does not account for the additional levels of security screening that the Appellant was subjected to including check-in, immigration and security. The RAD notes that the Appellant had no knowledge that officials other than “customs” were bribed. The RAD finds it is reasonable to expect that an individual who is trying to avoid arrest and detention by leaving the country would want to know what services the smuggler he was engaging was able to provide and what steps would be taken to ensure his safe passage from China. The RAD finds it makes little sense that the Appellant would simply put his life in the hands of an unknown smuggler without receiving detailed information on the plan that was to be undertaken to exit the country. The RAD finds that the lack of detail regarding the actions of the smuggler provided by the Appellant undermines his allegations that he was assisted by a smuggler.

[24] In addition, his explanation that the smuggler bribed customs also does not account for the additional level of screening conducted by the airline at the gate. Furthermore, the RAD notes that the Appellant’s explanation does not account for how he was able to by-pass the covert facial recognition system. The RAD finds that his explanation that he was able to by-pass all the security measures in place because the smuggler was able to bribe “customs” is not credible.

[25] The Appellant relies on recent Federal Court decisions in Sun,Footnote 13 Ren,Footnote 14 YaoFootnote 15 and YangFootnote 16 to support his argument that the RPD’s finding is unreasonable.

[26] The RAD finds that the facts in SunFootnote 17 and RenFootnote 18 can be distinguished from the facts in the present case in that there is insufficient evidence in the present case which establishes that the “smuggler” bribed individuals at each of the security layers in place. The RAD also finds that suggestion, as set out in Ren,Footnote 19 that bribing “one person with a computer would be sufficient” to allow the Appellant to exit China without difficulty, is not applicable in the circumstances of this case.

[27] The RAD finds that the suggestion implies that one bribe could facilitate the removal of police interest in the Appellant from the Golden Shield computer system. The RAD notes that the Appellant alleges that the smuggler accompanied him throughout his travel from China to Toronto. If the smuggler was able to bribe an official to alter computerized records of the police interest in the Appellant, the RAD finds it makes little sense that the smuggler would place himself at risk by accompanying the Appellant through the airport and onto the aircraft when there was no need. Furthermore, the Appellant’s allegation that the police have continued to look for him in China since his arrival in Canada undermines the argument that his name would somehow be removed from the system.

[28] In addition, the RAD finds that evidence reveals that the Golden Shield system is an extensive 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.

[29] The RAD also finds that the facts in YangFootnote 20 can be distinguished from the facts in the present case. The RAD notes that, in Yang,Footnote 21 the tribunal did not address the Applicant’s specific evidence that the customs officer did not scan her passport or type anything into the computer but merely stamped the passport. The Court held that, if believed, the tribunal had the responsibility to explain why it believed that the applicant still could not have exited China safely. If not believed, the tribunal had the responsibility to explain why that evidence was not credible.

[30] In the present case, the RAD notes that the Appellant’s evidence with regard to how he was able to exit was scant. The RAD has found his explanation of how the smuggler by-passed all of the security measures in place was not credible.

[31] The RAD finds that, while the Federal Court, in Yao,Footnote 22 found that it was possible for a wanted person to exit China safely using the services of a smuggler, there are a number of Federal Court decisions which support the RAD’s finding in this regard. In particular, the RAD notes the Refugee Appeal Division’s 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.Footnote 23

[32] This finding is also supported by Federal Court decisions (Zeng, Su, and Cao),Footnote 24 in which the Federal Court has supported findings that traveling unimpeded through Chinese exit controls is inconsistent with being wanted by Chinese authorities. The RAD finds that the objective evidence concerning the Golden Shield and other border controls in place in China is compelling and convincing. While it might be possible for a smuggler to bypass some of the security controls, the RAD finds that, based on the evidence in the record, it is highly unlikely that the Appellant could have bypassed all of the security controls in place.

[33] While there is documentary evidence that indicates that corruption exists within the police in China and that authorities in China do not always apply regulations evenly, the RAD finds that the preponderance of the documentary evidence does state that authorities at borders conduct thorough screenings. The panel has considered that documentary evidence states that the Chinese authorities issue travel documents much more easily than a few years ago. However, it is noted that certain individuals are still excluded, including those who have been convicted or who are being monitored by the police. As well, in March 2008, the General Administration of Civil Aviation of China (CAAC), China's aviation regulator, reportedly introduced new security regulations. The regulations prohibit “easy boarding” services, which had previously allowed passengers to obtain faster security checks and priority boarding. According to a March 27, 2008 article by the Chinese Xinhua News Service, the CAAC has also requested that all international airlines provide “accurate”, “complete” and “timely” information on passengers and airline staff to the Chinese border authorities. According to the Appellant, he left China using his own name with his own passport. This information would have been provided to Chinese authorities by the airline which he traveled on. The requested information includes name, nationality, gender, date of birth and passport number and expiration date. According to the June 2008 Travel Information Manual (TIM) published by the International Air Transport Association (IATA), immigration officials in China are now carrying out “stronger” document verifications.Footnote 25

[34] The RAD notes that a passport must be shown multiple times at the exiting airport when traveling internationally, including the initial check-in with the airline. The RAD finds it highly improbable that the smuggler would have prior knowledge of whom to bribe in order to facilitate safe travel through each checkpoint. The RAD finds that, in light of the Appellant’s allegation that he was wanted by Chinese authorities and in light of the evidence of the vigorous pursuit of the PSB, it is reasonable to expect that the local authorities would have entered his information into the database to further their efforts to apprehend him.

[35] The RAD finds that the RPD is entitled to make reasonable findings based on implausibility, common sense and rationality, and it may reject evidence if it is not consistent with the probabilities affecting the case as a whole.Footnote 26 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.Footnote 27 In this case, there is an evidential foundation for the RPD’s findings.

[36] 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 Appellant was able to leave China using his genuine passport. The RAD finds that the Appellant’s ability to exit China undermines his allegation that he was wanted by the PSB.

Summons

[37] The Appellant tendered a notice of summoning which indicates on its face that he was summoned to report to the Public Security Team Office of the Public Security Bureau of XXXX County for an interrogation regarding that he would “bring Falun Gong books to China”. The RPD found, on the basis of the prevalence and availability of fraudulent documents in China,Footnote 28 the documentary evidence cited and the credibility findings, that there was reason to doubt the genuineness of the summons and, as such, gave the notice of summoning little probative value in corroborating the Appellant’s allegations that he is wanted by the PSB.

[38] The RPD noted that country documentary evidence indicates that, if a summonsed person does not respond to a summons, a coercive summons or arrest warrant will be issued by the PSB. There was no evidence before the panel to indicate that such a document was received by the Appellant’s family when the PSB visited their home on subsequent dates after the date that the Appellant was summoned to the Public Security Bureau of XXXX County. The RPD also noted that XXXX County is under the administration of XXXX city, which is a prefecture of Shangxi where the PSB would likely carry out the requirements of the law. The RPD further noted that, given the Appellant has alleged that the PSB issued a summons, it is indicative that the PSB does document their actions.

[39] The Appellant submits that the RPD erred in rejecting the summons on the basis that there was no additional coercive summons or arrest warrant issued after he failed to submit himself to authorities. He argues that this finding is not supported by the evidence. The sole document relied upon by the RPD was a Response to Information Request, dated November 30, 2012, which was part of the October 31, 2014 National Documentation Package. He argues that there have been four new NDPs published since then, and the document relied upon by the RPD has long been removed from the National Documentation Package. Regardless, he argues that the document relied upon by the RPD does not state that a coercive summons will always be issued in such circumstances, nor does it state that it will often be used. Rather, it only states that it can be used in such circumstances.

[40] He submits that the document relied upon by the RPD also states that authorities often ignore procedures and there is great variability with the Chinese law enforcement when it comes to the issuance of summonses. In addition, he argues that there are other documents from the October 31, 2014 NDP which support this argument. The Appellant also argues that it was an error to reject the summons on the basis of the prevalence of fraudulent documents in China.

[41] The RAD is not persuaded by the Appellant’s argument in this regard. The Appellant’s argument is largely premised on an assumption that the RPD was referring to a document in the October 31, 2014 version of the NDP. The RAD notes that the version of NDP in the record is the May 31, 2016 version and that is what the RPD cited. The RAD does find, however, that the RPD did cite the wrong item number in its Reasons. The RPD incorrectly cited item 9.8 of the NDP when addressing the use of coercive summonses rather than the correct item 9.3. The RAD finds that this was nothing more than an unfortunate typographical error.

[42] Regardless, after its own review and assessment of the evidence, the RAD finds that there is reason to doubt the genuineness of the summons tendered. The RAD notes that the summons tendered by the Appellant indicates on its face that it was issued under the authority of Article 82 of the Criminal Procedure Law of the People’s Republic of China (CPLPRC),which required the Appellant to appear for interrogation.Footnote 29 The RAD notes that the objective evidenceFootnote 30 confirms that a coercive summons can be issued in cases of non-compliance. The RAD notes, however, that the Appellant has not tendered a coercive summons. The RAD finds that, given that the objective evidence makes it clear that Chinese authorities view adherents of Falun Gong as members of a cultFootnote 31 and in light of the objective evidence regarding the vigorous efforts the authorities undertake to pursue members of Falun Gong, and the Appellant’s allegations of the arrest of co-practitioners and ongoing visits to his family home as well as the allegation that the PSB informed the Appellant’s and his wife’s employers, it is reasonable to expect that a coercive summons would have been issued when the Appellant failed to report for the interview.

[43] The RAD finds that the absence of a compulsory summons when it is reasonable to expect that the Appellant would have been issued such a summons undermines the genuineness of the summons he did tender.

[44] Furthermore, the RAD notes that the documentary evidence states that summonses can be oral or written and can be issued only after a case has been filed for investigation and when suspects or defendants are not subject to certain conditions, such as preparing to commit or committing a crime, being found in possession of criminal evidence, or of tampering with evidence, refusing to identify oneself, or being suspected of committing crimes in different places.Footnote 32

[45] The RAD notes that the documentary evidence states that coercive summonses and arrest warrants are instruments that can be used by the PSB.Footnote 33 The RAD finds it is reasonable to expect that, given the allegations of the PSB’s vigorous efforts to arrest the Appellant, the PSB would employ the use of these coercive instruments to carry out their intention to arrest the Appellant rather than employ the use of an investigative instrument. The RAD notes that the Appellant has alleged that, when the PSB first attended his home, they issued an oral summons and only issued a written summons when he failed to appear for the oral summons. The RAD finds that this allegation of the Appellant suggests that the PSB were willing to use the tools available to them in order to apprehend him and to follow the rule of law to secure his apprehension.

[46] The RAD finds that it is reasonable in light of the Appellant’s allegations to expect that a coercive summons would have been issued for him. The RAD further finds that, given his family notified him when the summons was issued for him, it is reasonable to expect they would have informed him if a coercive summons was issued for him.

[47] More importantly, the RAD notes that the summons tendered by the Appellant is inconsistent with the documentary evidence in the record. The RAD notes that the summons indicates that it was issued pursuant to Article 82 of the Criminal Procedure Law of the PRC. The RAD notes, however, that article of that law deals with the citizen’s powers of arrest and detention. There is no reference to Falun Gong, the illegal importation of banned goods or to the issuance of summonses in the article named on the summons. The RAD finds that this significant discrepancy undermines the genuineness of the summons.

[48] On the basis of the foregoing analysis and the totality of adverse credibility findings, including the Appellant’s ability to exit China without difficulty, the RAD finds that the summons tendered by the Appellant is not a genuine document. The RAD further finds that tendering a fraudulent document in support of his claim undermines the Appellant’s general credibility.

Uncontested Credibility Findings

[49] The RAD notes that the RPD drew adverse credibility findings based on discrepancies between the Appellant’s oral testimony and the allegations made in this Basis of Claim narrative. In particular, the RPD found material inconsistencies in the Appellant’s allegations of when and by whom he was asked to bring the text, Zhuan Falun, from Canada to China and when and how he learned that the PSB were searching for him. The RAD finds that these credibility findings further undermine the Appellant’s allegation that he is being pursued by the PSB because he brought a banned copy of the Falun Gong text, Zhuan Falun, to China for his mother-in-law.

Summary

[50] The RAD finds, on the basis of the totality of the adverse credibility findings, that the Appellant’s allegation that he is being pursued by the PSB in China because he brought a banned copy of the Falun Gong text, Zhuan Falun, to China is not credible.

Conclusion

[51] On the basis of the totality of the evidence and the cumulative findings and negative inferences noted above, the RAD agrees with the RPD and finds that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that, on a balance of probabilities, he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in the People’s Republic of China.

[52] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal.

Signed:

Leonard Favreau

Date:

November 30, 2016