TB1-00619

RPD File No. / N° de dossier de la SPR: TB1-00619 TB1-00620 TB1-00621 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXXXXXXX (a.k.a. XXXXXXX) XXXXXXX (a.k.a. XXXXXX) XXXXXXX (a.k.a. XXXXX) Demandeur(e)(s) d'asile Date(s) of Hearing April 16, 2012 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision May 9, 2012 Date de la décision Panel Stephen E. Rudin Tribunal Counsel for the Claimant(s) Jacqueline M Lewis Barrister & Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) XXXXXXXXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre [1] XXXXXXXX (a.k.a. XXXXXXX) (the claimant) and her minor sons, XXXXXXX (a.k.a. XXXXXX) (11 years old), XXXXXX (a.k.a. XXXXX) (13 years old) (the minor claimants), are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. JOINED CLAIMS [2] Pursuant to Rule 49 of the Refugee Protection Division Rules, these claims for refugee protection were heard jointly. Each claim was decided on its own merits, although decisions were made for each claimant, the panel notes that the minor claimants rely on the documentation and testimony of the claimant. APPOINTMENT OF A DESIGNATED REPRESENTATIVE [3] In accordance with subsection 167(2) of the Immigration and Refugee Protection Act, the Refugee Protection Division appointed the claimant as the Designated Representative for the minor claimants for the purposes of his claim for refugee protection. ALLEGATIONS [4] Living in Fujian province in the People's Republic of China, the claimant was having difficulty dealing with the issues that resulted from the death of her husband on XXXXXXX, 2005. In XXXXXX 2009, the claimant was introduced to Christianity by her friend, XXXXXX, who told the claimant that she had begun her practice of Roman Catholicism three months before and began to inform the claimant about the principles and practices of the religion. The claimant first attended a service on XXXXXX, 2009. The claimant attended regularly until XXXXXX, 2010, when in spite of the precautions to avoid discovery taken by the house church, the church was raided by the Public Security Bureau (PSB). The claimant was able to leave the service and went into hiding at the home of her cousin. While in hiding at her cousin's home, the claimant learned that the PSB had come to the home of her parents seeking her arrest. The searched her home, interrogated her parents and informed them that some of her fellow church members had been arrested. The following day, the PSB returned and left a summons for her arrest. The PSB also went to the home of the claimant's brother in search of her. [5] Believing it was no longer safe for the claimant to remain in the People's Republic of China, her family enlisted the assistance of a smuggler who helped the claimants leave the People's Republic of China on XXXXXXX, 2010. Arriving in Canada on the same day, the claimants made their applications for refugee protection on December 7, 2010. The claimant has subsequently learned that the PSB continue to look for her. DETERMINATION [6] For the reasons that follow, the panel finds that the claimants are not Convention refugees and do not have a well-founded fear of persecution or harm should they return to the People's Republic of China. ANALYSIS [7] In assessing these claims, the panel focused on the credibility of the claimants' allegations of the risk of persecution or harm they might face upon their return to the People's Republic of China. [8] The panel is cognizant of the difficulties faced by the claimants in establishing their claim. These include cultural factors, the environment of the hearing room and the stress inherent in responding to oral questions through an interpreter. The panel has taken these considerations into account in arriving at its determination. IDENTITY AS CITIZENS OF THE PEOPLE'S REPUBLIC OF CHINA [9] For the following reasons, the panel cannot establish that the claimants are citizens of the People's Republic of China. The principal claimant traveled to Canada on a fraudulent passport and could not provide the panel with her original resident identity card. When asked by the panel where the card was, the claimant testified that it was taken by the smuggler and "he threw it away" because he did not want her to have identity documents in different names. She further testified her other personal documents,1 such as her health certificate, summons and death certificate were mailed to her but could not provide the panel with the envelope in which they were sent. The minor claimants did not provide their birth certificates. When the principal claimant was asked where they were, she told the panel that they were in China. In supplemental questions on the subject of the minor claimant's birth certificates, the claimant told the panel that she did not think they were required because it was her claim, not theirs (the minor claimants). The claimant was reminded that this was a joined claim and that she was represented by experienced counsel who is well aware that such documents are required. The claimant testified that the minor claimants were included in her hukou and that established their citizenship. For the following reasons, the panel finds that the claimants' hukou does not establish their citizenship. HOUSEHOLD REGISTER (HUKOU) [10] The panel has considered the hukou.2 Documentary evidence3] notes that the household register (hukou) appears to be extremely susceptible to fraud and manipulation. A Canadian Embassy official has stated that 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). The panel is able to put little weight on the hukou as evidence of the claimants' national identity [11] The resident identity card is the most important document to establish a claimant's identity as a national of the People's Republic of China. The resident identity card is issued to all citizens of the People's Republic of China who are 16 years of age or older.4 The claimant stated that she no longer has a resident identity card because she gave her card to the smuggler prior to coming to Canada. She stated that the smuggler had thrown the card away because he did not want her to have two pieces of identification with different names. [12] Given that the resident identity card is the most important identity document to establish the claimant's identity and the claimant intended to travel to Canada to make a claim for refugee protection, the panel finds it unusual and implausible that the claimant would just give the smuggler her card knowing of his intention to dispose of it, without attempting to take any precautions to ensure its return. The panel notes that the claimant did provide a photocopy of a resident identity card5 but this photocopy cannot be examined to establish its authenticity and determine if it contained security features, such as the microchip technology referred to in the documentation.6 The panel does not find the claimant's explanation for not having a resident identity card plausible given the importance of this document in establishing that she was a citizen of the People's Republic of China, as she and the minor claimants traveled to Canada on fraudulent passports. The panel finds, on a balance of probabilities, that the photocopy of the claimant's resident identity card cannot be verified, the claimant's explanation was fabricated to provide a plausible explanation for the absence of an original resident identity card and draws a negative inference in this regard. [13] With respect to the assessment of these documents, section 106 of the Immigration and Refugee Protection Act states: The Refugee Protection Division must take into account, with respect to the credibility of the claimant, whether a claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. [14] Rule 7 of the Refugee Protection Division Rules states: The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. [15] In assessing the authenticity of the claimant's documents, the panel is guided by the Federal Court decision in Sertkaya7 which asserts that it is open for the Board to consider the authenticity of documentary evidence and the ability of the claimant to obtain and use fraudulent documents. The panel is also mindful of the Federal Court decision in Rasheed,8 which asserts that the basic rule in Canadian law is that foreign documents (whether they establish the identity or not of a claimant) purporting to be issued by a competent foreign public official should be accepted as evidence of their content unless the Board has some valid reason to doubt their authenticity. [16] In making this determination, there is no obligation on the panel to submit the household register to the RCMP for forensic testing. In the Federal Court decision of Jin,9 Mr. Justice Barnes indicates: While it is correct that the Board is not itself an expert in the field of forensic analysis, it also has no duty to submit suspect documents for expert assessment provided that there is sufficient evidence before it to cast doubt upon their authenticity. Furthermore, the Federal Court has said that if the Board has sufficient evidence that the claimant's identity has not been established, that the Board is under no obligation to send further identity documents for forensic analysis.10 [17] In the alternative, the panel considered the religious identity of the claimant and the situation of Roman Catholics in Fujian province. She provided her baptismal certificate from her church in Canada, photographs of the baptism ceremony, and an endorsement letter from her pastor.11 The panel finds that the attendance at church does not speak to the genuineness of the claimant's religious convictions. The letter can only attest to the claimant's attendance at and participation in church activities. It does not attest to her motivation. In this regard, recent case law12 indicates that a pastor's assessment of the genuineness of a person's faith cannot be substituted for the assessment that the panel is required to make. The claimant was able to answer most questions about Roman Catholicism posed to her at the hearing. The panel finds that a good knowledge of religion can be exhibited by many non-Christians and questions of prayer and biblical stories are but one way for a panel to assess the genuineness of an individual's faith. SITUATION OF ROMAN CATHOLICS IN FUJIAN PROVINCE [18] The claimant testified that she first attended a service on XXXXXXX, 2009 and attended regularly thereafter. She joined 25 others in services usually conducted by the organizer but led two times per year by a Priest who was also from Fujian province. The claimant maintains that she attended services until XXXXXX, 2010 when she testified that the church was discovered by the Public Security Bureau during a service being conducted by the organizer. Although she did not see the PSB, the claimant left the service and went into hiding at the home of her cousin. The claimant subsequently learned that there had been arrests. This testimony is not consistent with the preponderance of the documentation regarding the situation for Roman Catholics in Fujian province. [19] If the claimant were to be a Roman Catholic, for the following reasons, the panel finds that she could practice Roman Catholicism in an unregistered church if she were to return to the People's Republic of China and would not be persecuted for doing so. Catholicism is one of the religions that are sanctioned by the government of the People's Republic of China.13 [20] In addressing the situation of Catholics in Fujian province, the panel examined the documentary evidence closely. Although precise figures are difficult to obtain, the documentation14 highlights that there are more than 5.3 million Catholics worshipping in sites registered by the Catholic Patriotic Association (CPA). The Holy Spirit Study Center in Hong Kong estimated there are 12 million Catholics in the country. Official sources reported that the CPA has more than 70 bishops, nearly 3,000 priests and nuns, 6,000 churches and meeting places, and 12 seminaries. Of the 97 dioceses in the country, 40 reportedly did not have an officiating bishop in 2007 and more than 30 bishops were over 80 years of age. There are no diplomatic relationships existing currently between the Chinese government and the Holy See. It is estimated that 90 percent of official Catholic bishops have reconciled with the Vatican. The CPA has allowed the Vatican discreet input in selecting some bishops and many priests and bishops publicly acknowledged that the Vatican had approved their appointments. They suffered no punishment for this public stance. The Vatican has also given official approval to the majority of Catholic bishops appointed by the government through "apostolic mandates." Nevertheless, in some locations, local authorities reportedly pressured unregistered Catholic priests and believers to renounce ordinations approved by the Holy See. As well, pressure from the CPA on "unregistered" Catholic bishops to join the official church continued, and some unregistered priests and bishops were detained. [21] With respect to Fujian province, where the claimant is from, the Catholic church is strong and most of the faithful are loyal to Rome.15 The panel acknowledges that there are references to Catholic clergy being forced into hiding, jailed or detained, placed under surveillance and detentions, pressure being applied by Chinese authorities for Catholic clergy and laypersons to renounce ordinations approved by the Vatican and join the CPA or face fines, job loss or detention and having children barred from school.16 According to one source as of March 2007, five bishops and 14 priests belonging to the "underground" church were in prison, eight bishops were under house arrest or surveillance and two others were in hiding.17 The documentation18 identifies that the treatment of Catholics, within the "unofficial" church, varies from place to place. It is local politics that dictate the final outcome of religious policy and the implementation of the Chinese Communist Party on freedom of religious belief can range from endorsement of religion to suppression. [22] There is mixed information regarding the treatment of Christians in Fujian province. Several sources stated that they believed that authorities in Guangdong and Fujian provinces might be more tolerant than those in other Chinese provinces. The Executive Secretary of the Hong Kong Christian Council expressed the opinion that officials in Guangdong and Fujian provinces have good relations with government-recognized bishops and have allowed non official bishops to operate openly.19 As well, he recently stated in June 14, 2010 correspondence, that the Chinese authorities have demonstrated a high-degree of tolerance to Christian activities in general and particularly towards non-registered groups.20 The U.S. 2009 International Religious Freedom Report21 specifically reviews arrests and incidents of persecution of Christians in China in 2008, 2009 and early 2010 notes arrests of Christians in Beijing, Shanghai, the XUAR, Jilin province, Hebei province, Henan province, Zhegiang province, Guangdong province, Anhui province, Hubei province, Sichuan province, Heilongjiang province, Inner Mongolia, and Shandong province. No mention is made of arrests or incidents of persecution of Christians in Fujian province. The Annual Report of Persecution by the Government on Christian Churches within Mainland China22 very specifically notes the arrests and incidents of persecution of Christians in China from January 2009 to December 2009 but no arrests or incidents of persecution occurred in Fujian province where the claimant is from. Conversely, a newspaper article refers to Fujian as one of the provinces where the most Catholics are located and that they are [translation] "tightly controlled" by local authorities. The President of the Cardinal Kung Foundation stated that Fujian province was one of "the worst" provinces for the "persecution" of the unofficial Catholic church. [23] The State has declared that religious communities are important for the construction of a "harmonious society". From the perspective of the Holy See, there has been no declaration of a schism between any part of the Catholic church in China and the Vatican.23 This is not to suggest that tensions do not exist between the Chinese government and the Holy See. Contentious issues surrounding the government's control of the selection of "patriotic" Chinese bishops and local officials cracking down on the "underground" church remain. [24] The panel is mindful that certain documentation24 indicates that the number of persecutory incidents may not be fully reflected in documentation and such factors as censorship in communications, failures to report cases of persecution for fear of retaliation by the government and the possibility that individuals in remote areas may have no idea that they can seek help from outside China can affect the number of reports. In the case of the Catholic church, there is information detailing very specific examples from areas much more remote and difficult to access than Fujian province. There is even information from Fujian province that indicates to the panel that information regarding persecutory treatment against members of the Catholic faith is documented if it has occurred. Further, there are a number of observers, such as the Holy Spirit Study Centre, the Research Branch of the Diocese of Hong Kong (principally concerned with the situation of Catholics in mainland China), AsiaNews.it (which provides information on ecclesiastic communities in Asia), numerous news agencies, Cardinal Fung Foundation, Freedom House25 to name a few. These observers strive to inform the world that religious persecution takes place in China. [25] In the claimant's particular situation, if arrests have occurred, such arrests would be an example of an egregious situation and the panel finds would reasonably be expected to appear in reports dealing with religious persecution amongst the multitude of different resources such as China Aid which strive to inform the world of religious repression in China. The availability of priests, nuns and lay catechists in the diocese associated with Fujian province persuades the panel that the claimant can return to Fujian and freely participate in an unregistered Catholic church. [26] The claimant testified that fellow members of her church were arrested. A close examination of the documentation regarding Catholic faithful in China clearly indicates that the harshest treatment is meted out to bishops and priests. In the case of Fujian province, the most recent article indicates that the priests involved in organizing the three hundred students were detained for fifteen days and then released. Other priests involved in the matter were fined 500 Yuan. In terms of the totality of the evidence, the alleged arrest of members of her underground church who were arrested is not in keeping with the types of punishment that has been referred to in the documentation with respect to non priests or bishops. [27] The panel considered that that information can flow to and from mainland China via means of personal contact, informal NGO networks, telephone calls, etc., that in the past, there has been documentary evidence dealing with detention and arrests of Catholic bishops and priests, from Fujian and other more remote provinces; and the large number of documentary sources that have a vested interest in highlighting any and all information that negatively impacts on religious freedom. The panel determines that it would be reasonable for it to have before it information of state actions taken against Catholic parishioners in Fujian province if any actions were taken. The panel considered the documentary evidence that indicates that millions of Catholic parishioners belong to the "unregistered" church; that the documentation in the context of the "unregistered" Catholic church indicates, by far, that persecution occurs to bishops and priests; that there is extremely limited evidence of state authorities taking action against parishioners in Fujian province; that Catholic congregations worship freely; and the reasonable expectation that documentation from Fujian province indicating actions by state authorities against parishioners at the time of any alleged incident would reasonably be before the panel. The panel considered all of the documents submitted about the situation for Christians in China, specifically the articles and reports documenting arrests and persecution. The panel finds, on a balance of probabilities, that if there were recent arrests or incidents of persecution of ordinary Roman Catholic Christians in Fujian province, there would be some documentation of these arrests or incidents of persecution by reliable sources. [28] According to the U.S. Department of State International Freedom of Religion Report,26 the extent of religious freedom in China continues to vary widely within the country. That report notes that unregistered religious groups have continued to expand and that most Christian groups, the majority of which are not registered, no longer operate in strict secrecy27 and in fact carried out public activities including convening seminars, publishing materials, renting space for offices and events, and disseminating information on the Internet. Many unregistered religious groups also carried out social service work.28 In parts of the country, unregistered groups grew rapidly and authorities did not pressure them to register.29 In some areas, officials did little to interfere with the worship or social service activities of unregistered churches. It is noted that at least 20 million Chinese citizens worship in official churches and that 50 to 70 million worship in unregistered churches.30 Some unregistered church groups were able to hold meetings that hundreds attended without interference. Some unregistered groups had significant membership, properties, financial resources and networks.31 The government has granted approval for an increasing number of religious books to be published and the number of Christian websites on the Internet increased.32 The panel finds that the situation in Fujian province does not reflect what is happening in many other provinces such as Hebei province where there have been arrests and incidents of persecution of ordinary Christians. [29] The panel has considered the documentary evidence about conditions in Fujian province and the claimant's personal circumstances and finds, on a balance of probabilities, that the claimant would be able to practice her religion in any church if she were to return to her home in Fujian province in China and that there is not a serious possibility that she would be persecuted for doing so. [30] The panel also considered the summons provided by the claimant33 and for the following reasons finds that this document is not consistent with the preponderance of documentation before the panel.34 The documentary evidence35 regarding the issuance of a summons notes that although there are regional variations, Article 81 states that summons, notices and other court documents shall be delivered to the addressee himself. If the addressee is absent, the documents may be received on his behalf by an adult member of his family or a responsible person of his unit. If the addressee or a recipient on his behalf refuses to accept the documents or refuses to sign and affix his seal to the receipt, the person serving the documents may ask the addressee's neighbors or other witnesses to the scene, explain the situation to them, leave the documents at the addressee's residence, record on the service certificate the particulars of the refusal and the date of service and sign his name to it. The service shall thus be deemed to have been completed. [31] Though this is not actually the proper procedure, it happens all the time, especially in cases when a person in the summons is not easily locatable. The summons provided by the claimant was not signed. When asked by the panel what the summons directed the claimant to do, she responded that she was not sure but that the PSB wanted to arrest her. The summons provided by the claimant was issued in accord with Article 92 of the Criminal Procedures Law of the People's Republic of China.36 The panel's understanding of that article would direct the claimant to appear for questioning, not arrest or detention. In this finding, the panel is guided by Mr. Justice Zinn37 who found that while it may be possible that a genuine summons may not contain the signature of the recipient or may lack a criminal procedure law number, the evidence before the panel is that such details can be expected to appear on a genuine summons. According to Justice Zinn, the absence of the signature and the availability of fraudulent documents led the Board to properly conclude that the summons was not genuine. [32] The panel also considered the letters38 that address the minor claimants' suspension from school and as these letters cannot be verified for authenticity, the panel gives these documents little weight. [33] Neither the claimant nor the minor claimants have established their identities as citizens of the People's Republic of China. In the alternative, having carefully considered the documentation, the panel finds that the claimant would be able to practice her religion in any church if she were to return to her home in Fujian province in China and that there is not a serious possibility that she would be persecuted for doing so. As the minor claimants have based their claims on that of the claimant, the panel finds that they have not satisfied their burden of establishing that they face the serious possibility of persecution or they would be subject to a risk to their life or a risk of cruel and unusual treatment or punishment if they were to return to the People's Republic of China. CONCLUSION [34] Based on the foregoing analysis, the panel finds that the claimant has not satisfied her burden of establishing that she faces the serious possibility of persecution or that would be subject to a risk to her life or a risk of cruel and unusual treatment or punishment if she were to return to the People's Republic of China. [35] The panel finds that as the minor claimants base their claims on that of the claimant, the panel finds that they have not satisfied their burden of establishing that they face the serious possibility of persecution or that they would be subject to a risk to their lives or a risk of cruel and unusual treatment or punishment if they were to return to the People's Republic of China. "Stephen E. Rudin" Stephen E. Rudin "May 9, 2012" Date REFUGEE PROTECTION DIVISION / RELIGION / RELIGIOUS PRACTICE / HIDING / IDENTITY / IDENTITY DOCUMENTS / SUMMONS / AUTHENTICITY / RULES / FREEDOM OF RELIGION / FEMALE / CHILDREN / NEGATIVE / CHINA 1 Exhibit C-3. 2 Exhibit C-3. 3 Exhibit R/A-1, item 3.17. 4 Exhibit R/A-1, item 3.15, Information Request CHN43360.E. 5 Exhibit C-3. 6 Exhibit R/A-1, item 3.15. 7 Sertkaya, Ismail v. M.C.I. (F.C., no. IMM-9058-03), Layden-Stevenson, May 21, 2004; 2004 FC 734. 8 Rasheed, Sohail v. M.C.I. (F.C., no IMM-1956-03), Martinua, April 21, 2004 FC587. 9 Jin, Hong Shi v. M.C.I. (F.C., no. IMM-1535-05), Barnes, February 3, 2006 FC 126. 10 Farooqi, Shaukat Ali v. M.C.I. (F.C, no. IMM-5446-03), Harrington, October 12, 2004, 2004 FC 1396 11 Exhibit C-3, p. 22. 12 Cao, Wo Ji v. M.C.I. (F.C., no. IMM-1303-08), Mosley, October 17, 2008, 2008 FC 1174. 13 Exhibit R/A-1, item 2.1. 14 Exhibit R/A-1, item 12.1, International Religious Freedom Report 2009, p. 5 of 51. 15 Exhibit R/A-1, item 2.3, Country of Origin Information Report: China, p. 78. 16 Exhibit R/A-1, item 12.8, Information Request CHN103501.E. 17 Exhibit R/A-1, item 12.16, China: China's Catholics, the Holy See and Religious Freedom. 18 Exhibit R/A-1, item 12.8. 19 Ibid. 20 Ibid. 21 Exhibit R/A-1, items 12.1 and 12.9. 22 Exhibit R/A-1, item 12.10. 23 Exhibit R/A-1, items 2.3, 12.1, 12.8 and 12.16. 24 Exhibit R/A-1, item 12.10. 25 Exhibit R/A-1, item 12.8. 26 Exhibit R/A-1, item 12.1. 27 Ibid. 28 Ibid. 29 Ibid. 30 Ibid. 31 Ibid. 32 Ibid. 33 Exhibit C-3. 34 Exhibit R/A-1, item 9.5. 35 Exhibit R/A-1, item 9.3, Information Request CHN103401.E. 36 Exhibit R/A-1, item 9.5. 37 Zhang, Xi Shun v. M.C.I. (F.C., no. IMM-6200-10), Kelen, June 8, 2011, 2011 FC 654; Liu, Yi Liang v. M.C.I. (F.C., no. IMM-5714-10), O'Reilly, September 2, 2011, 2011 FC 1045; and Chen, Jian Dong v. M.C.I. (F.C., no. IMM-368-10), Zinn, February 15, 2011, 2011 FC 187 38 Exhibit C-3 pp 18 & 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TB1-00619 TB1-00620 TB1-00621 RPD File No. :TB1-00619 TB1-00620 TB1-00621