TA9-16690

RPD File No. / N° de dossier de la SPR : TA9-16690 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing May 27, 2011 September 21, 2011 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision October 14, 2011 Date de la décision Panel John Kivlichan Tribunal Counsel for the Claimant(s) Ann Crawford Barrister and Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre [1] XXXXX XXXXX (the claimant), a citizen of the People's Republic of China, claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1 ALLEGATIONS [2] The claimant alleged that after he and his mother-in-law exchanged words in XXXXX 2007, his wife was very upset with him. The claimant's friend, XXXXX, learned of this and helped him to realize why he should apologize. Later, he introduced the claimant to an underground Roman Catholic church in his home area of XXXXX, Fujian province. The claimant attended this church every week from XXXXX, 2007 until it was raided by the Public Security Bureau (PSB) on XXXXX, 2008. [3] The claimant fled and went into hiding. Subsequently, he learned that the PSB went to his home to look for him, questioned his wife, and accused him of being involved in illegal religious activities. He also found out that two members of his congregation had been arrested. The claimant fled China on XXXXX, 2008. Later, he learned that the PSB had also been to two other members' homes to arrest them. [4] The PSB has kept coming to his home to look for him. He fears that if he returned to China he would be arrested and jailed, and adds that he cannot practice his religion as freely in China as he can in Canada. [5] In amendments2 to his Personal Information Form (PIF) narrative, he stated that in the second half of XXXXX 2009 he learned that the two persons arrested, who were the organizer and the person whose home was being used for the service when it was raided, were sentenced to three years and three months, and to three years and eight months imprisonment, respectively. IDENTITY [6] The claimant's identity as a national of the People's Republic of China is established by documentation provided to the panel by the claimant, specifically by the Chinese Resident Identity Card (RIC),3 and hukou or household register4 as tendered into evidence. DETERMINATION [7] The panel finds that the claimant is not a Convention refugee and is not a person in need of protection for the following reasons. ANALYSIS [8] The determinative issue in this claim is the credibility of the claimant's PIF5 narrative and oral testimony concerning the claimant's membership in an underground church and his pursuit by agents of the PSB. I find that the claimant was not a credible witness in this regard and is not currently wanted for arrest by the PSB on account of his religious activities in China. As well, I find that should he return to his home in Fujian province in China and should he practice Roman Catholicism there, there is not a serious possibility that he would be persecuted in Fujian province for that practice. The reasons for this decision are noted below. [9] In assessing credibility, the panel was mindful of the claimant's age, education, and background in China. He alleges that he has eight years of education in China. In addition, the panel took into account the milieu of the hearing room, cultural factors, and the anxiety a claimant may feel in responding to viva voce examination through an interpreter. The sojourn in Chile en route to Canada [10] The claimant testified that after he left China he traveled to Chile, where he spent XXXXX months between XXXXX, 2008, and XXXXX, 2009. The snakehead or agent procured certain documents for him, in order to get a transit visa for Canada.6 The claimant was asked if the Chilean documents, which appeared to suggest that he had some form of status in that country were genuine, and he said that he did not know, but he thought they were fraudulent. [11] Subsequent to the first hearing date, the Refugee Protection Officer inquired through the Minister to ascertain whether any of the documents from Chile were genuine. The Minister checked with the visa post in Santiago, Chile, and they in turn were able to establish that the documents were false, and the claimant does not have permanent residence status in Chile.7 [12] I asked him if he had made a refugee claim in Chile, and he replied that he did not know of that, and the snakehead was taking him to Canada, and this was the intended destination even before he left China with the snakehead. He added that he rarely left the apartment arranged for him in Chile. He also noted that he never attended any church in Chile as he did not know where they were, nor did he ask anyone as he did not speak the language. The snakehead advised him to stay inside so he just watched television. He had nothing to read in Chinese, not even a Bible. [13] The documentary evidence, while succinct, notes in reference to Chile that:8 The government cooperated with the Office of the UN High Commissioner for Refugees and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern. Also, The country's laws provide for the granting of asylum or refugee status, and the government has established a system for providing protection to refugees. In practice the government provided protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion. During the year 75 residents were given recognized refugee status, for a total of 1,614 residents with that status at year's end. [14] While I do note that the claimant alleged that he was not aware that he could make a refugee claim in Chile, he sojourned there for over eight months, yet made no efforts to investigate the possibility of a refugee claim while there. He testified that the snakehead told him that he would obtain temporary status for the claimant while there. [15] The Board has considered the mental state of the claimant, the claimant's educational background and his level of sophistication before putting forward any comments in this regard. Nevertheless, it is to be expected that genuine Convention refugees would seek protection as soon as is practical, once out of reach of their oppressors [16] If the claimant truly feared persecution in China, his stated reasons for failing to make a refugee claim in Chile are insufficient given that he had lived there for XXXXX months starting in XXXXX 2008. The panel finds on a balance of probabilities that this failure to make a refugee claim, in a signatory country with a functioning refugee determination system, undermines the credibility of the refugee claim. [17] Also, in reference to Chile, it is common knowledge that this is a predominantly Roman Catholic country, so much so that it still restricts access to legal abortion.9 The claimant asserted that his religious activities in China were so important that he risked sanction by the authorities, yet in Chile he never once attended any services. Even taking into account any language barrier, I would reasonable expect that a genuine Roman Catholic would have made an attempt to attend Mass at a nearby church, and would have brought a Bible with him, or insisted that the agent get him one. [18] The claimant did none of these, thus I draw a negative inference as to the genuineness of his alleged religion. [19] Moreover, in conjunction with the panel's credibility findings in this claim, noted below, the panel has considered the proffered explanations for the failure to claim in Chile, and determines that the claimant's behaviour is evidence of a lack of subjective fear of persecution in China. [20] As the Federal Court has noted,10 "Asylum shopping" is not a permitted course of conduct for refugee claimants. The applicant could have sought protection in the United States, but did not do so. Why Canada? The applicant should have sought protection at the first opportunity (Saleem v. Minister of Citizenship and Immigration, 2005 FC 1412, at paragraph 28; Reyes v. Minister of Citizenship and Immigration, 2005 FC 418; Samseen v. Minister of Citizenship and Immigration, 2006 FC 542). Arrests of others [21] The claimant alleges that two of his fellow church members were arrested and each received multi-year sentences. The claimant's testimony in this regard runs counter to the country condition documents, which will be demonstrated later in these reasons with the analysis of the Situation of Catholics in Fujian Province. I draw a negative inference as a result. [22] On the basis of the subsequent analysis on the Situation of Catholics in Fujian Province and in the context of the findings and negative inferences drawn above, the panel finds, on a balance of probabilities that the claimant's allegation that there was a raid on his house church and that two of his fellow church members were arrested and each received multi-year sentences exceeding three years each, is neither plausible nor credible. Having found that the claimant's testimony about the arrest and incarceration of his fellow church members is not credible, the panel further finds that the alleged raid on the claimant's house church did not occur. [23] The claimant was asked a number of questions concerning Catholicism and the Bible. The claimant demonstrated some limited knowledge, however it does not necessarily mean he is a genuine practicing Catholic. Claimant's Canadian Church Attendance [24] The claimant alleges that shortly after arriving in Canada he joined a Roman Catholic Church. The claimant produced a letter and some photographs.11 The letter indicates that the claimant has been attending classes in the XXXXX XXXXX XXXXX XXXXX since August 2009. These documents can only attest to the claimant's participation in church activities, they can not attest to his true motivation. [25] While it is difficult to make a judgment regarding the genuineness of a person's religious practice it is necessary in this case. In doing so, the panel considered the totality of the evidence available. While it is true that the claimant demonstrated some knowledge of Roman Catholicism, it does not necessarily mean he is a genuine practicing Roman Catholic. Having previously found that the raid on the claimant's underground church did not occur, the panel finds that the claimant's testimony concerning his attendance at the underground church was not credible and was only for the purpose of supporting a fraudulent claim. [26] Having found that the claimant was not a practicing Catholic in China, the panel must consider whether the claimant is a genuine practicing Catholic in this country. [27] In this regard, the panel cites the following from James Hathaway's The Law of Refugee Status with regard to "sur place" claims: An individual who as a stratagem deliberately manipulates circumstances to create a real chance of persecution, which did not exist, cannot be said to belong to this category.12 The panel finds, on a balance of probabilities, and in the context of all of findings and negative inference drawn above, that this claim has not been made in good faith. [28] Having found that the claimant was not a genuine practicing Roman Catholic in China and having found that this claim has not been made in good faith, the panel finds, on a balance of probabilities, and in the context of findings noted above, that the claimant joined a Roman Catholic church in Canada only for the purpose of furthering his refugee claim. In the context as noted above, and on the basis of the totality of evidence disclosed and in the context of the claimant's knowledge of Roman Catholicism, the panel finds that the claimant is not a genuine practicing Roman Catholic, nor would he be perceived to be in China. Situation of Catholics in Fujian Province [29] Notwithstanding the forgoing analysis, alternatively, if the claimant decides to become a genuine Catholic and practice his faith upon his return to China, the panel has considered whether there is a serious possibility that he would be persecuted for practicing Catholicism in an unregistered church. [30] In dealing with the issue of repression of Catholics in Fujian province, the panel has examined the documentary evidence closely. Although precise figures are difficult to obtain, documentation13 highlights: The Catholic Patriotic Association (CPA) reports that 5.3 million persons worship in its churches, and it is estimated that there are an additional 12 million or more persons who worship in unregistered Catholic churches that do not affiliate with the CPA. According to official sources, the government-sanctioned Catholic Patriotic Association has more than 70 bishops, almost 3,000 priests and nuns, 6,000 churches and meeting places, and 12 seminaries. There are thought to be approximately 40 bishops operating "underground," some of whom are in prison or under house arrest. [31] With respect to Fujian province, where the claimant is from, according to a report in the Times of London, the Catholic Church is strong there and most of the faithful are loyal to Rome.14 The panel acknowledges that sporadic persecution of the "underground" Catholic Church occurs. 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.15 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.16 The documentation17 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. [32] 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.18 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. [33] 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. Many priests and bishops publicly acknowledged that the Vatican had approved their appointments. They suffered no punishment for this public stance. Pressure from the CPA on "unregistered" Catholic bishops to join the official church continued, and some unregistered priests and bishops were detained. [34] 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.19 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. [35] The panel is mindful that certain documentation20 indicates that the number of persecutory incidents may not be fully reflected in documentation and such factors as censorship in communications, failure 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 effect the number of reports. [36] 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, and Freedom House21 to name a few. These observers strive to inform the world whenever any religious persecution takes place in China. [37] Arguably, the Roman Catholic Church itself has a vested interest in bringing to light any abhorrent human rights transgressions involving its adherents. [38] In the 9 June 2010 telephone interview with the IRB Research Directorate,22 Mr. Bob Fu, "the President of China Aid Association stated that east coast provinces are generally 'more open' with fewer incidents involving Christians reported to the CAA (CAA 9 June 2010). However, the CAA President also stated that this did not necessarily mean there were fewer incidents, but rather that they were not reported (ibid.)." I also noted a brief allusion to a 2010 house church demolition in Fujian,23 however this was not Roman Catholic, and did not provide sufficient details as to any circumstances for me to assess whether this has any applicability to Roman Catholic house churches of a similar size as the claimant's, which was said to have twenty-one members. [39] In reference to the claimant's particular allegations, in the panel's view, if two arrests with multi-year jail sentences of Roman Catholic Churchgoers had occurred, such would be an example of an egregious situation and would reasonably be expected to appear in reports dealing with religious persecution amongst the multitude of different sources, which strive to inform the world of religious repression in China. [40] Given that information can flow to and from mainland China via means of personal contact, informal NGO networks, telephone calls, etc.; and, 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, because of 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. [41] The most recent documentary24 evidence provided by the Board reveals that underground priests have been arrested in Fujian in March 2010. Given the fact that information exists to show arrests of priests, it is reasonable to expect to see persuasive evidence that ordinary members of the Roman Catholic Church in Fujian province are facing persecution, if such persecution is occurring. Further, 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 participate in the Roman Catholic church of his choosing. [42] The claimant testified that two fellow house church members were arrested and were ultimately sentenced to multi-year imprisonment. 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 camp for three hundred university 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 punishment given to the two lay members of the claimant's 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. [43] Relying on documentary evidence that indicates millions of Catholic parishioners belong to the "unregistered" church and that the documentation in the context of the "unregistered" Catholic Church indicates, by far, that persecution occurs to bishops and priests. Further, there is extremely limited evidence of state authorities taking action against parishioners in Fujian province. In addition, Catholic congregations, worship freely. It is reasonable to expect that documentation from Fujian province indicating actions by state authorities against parishioners at the time of the alleged incident and more recently should be before the panel. In coming to this determination, the panel has been guided by the Federal Court decisions in Yu,25 Li,26 and Zhang27 [44] Based of the totality of findings noted above, the panel determines that the claimant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life or a risk of cruel and unusual treatment or punishment or a risk of torture by any authority in the People's Republic of China. CONCLUSION [45] The panel finds that the claimant is neither a Convention refugee nor a person in need of protection. Therefore, the Refugee Protection Division rejects his claim. (signed) "John Kivlichan" John Kivlichan October 14, 2011 Date REFUGEE PROTECTION DIVISION / RELIGION / FREEDOM OF RELIGION / SOJOURNING / UNREASONABLE DELAY / FAILURE TO SEEK PROTECTION IN OTHER COUNTRIES / RELIGIOUS PRACTICE / GUINENESS / MALE / NEGATIVE / CHINA 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit C-3, received by the I.R.B. on May 24, 2011. 3 Exhibits C-2, tabs 2, and 3. 4 Exhibit R/A-2. 5 Exhibit C-1. 6 Exhibit R/A-3. 7 Exhbit M-1, Letter from Minister, June 20, 2011. 8 Exhibit R/A-5, RPD National Documentation Package, Index re Chile, 29 April 2011, tab 2.1, U.S. Department of State Report, Country Reports on Human Rights Practices for 2010. 8 April 2011, pp.9-10 of 25. 9 Exhibit R/A-5, RPD National Documentation Package, Index re Chile, 29 April 2011, tab 2.3, Human Rights Watch. January 2011. "Chile." World Report 2011: Events of 2010. http://www.hrw.org/en/world-report-2011/chile, p.4 of 5. 10 Ahamat, Wardagou v. M.C.I. (F.C., no. IMM-3825-08), Frenette, April 30, 2009, 2009 F.C. 422. 11 Exhibit C-2, p.1 ; C-4 , pp.1 and 2. 12 Hathaway, James, The Law of Refugee Status, (1991). 13 Exhibit R/A-1, item 12.1, International Religious Freedom Report 2009, p.5 of 51. 14 Exhibit R/A-1, item 2.3, Country of Origin Information Report: China, p. 78. 15 Exhibit R/A-1, item 12.8, Information Request CHN103501.E. 16 Exhibit R/A-1, item 12.16, China: China's Catholics, the Holy See and Religious Freedom. 17 Exhibit R/A-1, item 12.8. 18 Exhibit R/A-1, item 12.8. 19 Exhibit R/A-1, items 2.3, 12.1, 12.8 and 12.16. 20 Exhibit R/A-1, item 12.10. 21 Exhibit R/A-1. item 12.8. 22 Exhibit R/A-1, item 12.9 . 23 Exhibit C-6, p.3, Also Exhibit R/A-7, item 12.10, ChinaAid Report 2010, p.20 (21 of 37). 24 Exhibit R/A-6, Refugee Review Tribunal (Australia), CHN 37032, p.1. 25 Yu, Wen Qiang v. M.C.I. (F.C., no. IMM-5461-08), Zinn, March 18, 2010; 2010 FC 310. 26 Li, Li v. M.C.I. (F.C. no., IMM-3279-09), Russell, February 23, 2010; 2010 FC 205. 27 Zhang, Xi Shun v. M.C.I. (F.C. no., IMM-6200-10), Kelen, June 8, 2011; 2011 FC 654. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TA9-16690 RPD File No. :TB0-00082