TB7-06385

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 : TB7-06385 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 22, 2017 Date de la décision Panel Linda Hart Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nkunda I Kabateraine 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, the Appellant, is a citizen of China. She is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. She asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own decision that the Appellant is a Convention refugee or person in need of protection or, in the alternative, refer her 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 that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. Background [3] The Appellant alleged before the RPD that she followed her mother, a devout Christian, to church in Fuzhou City several times. She lost her job in February 2016 as her employer was aware that she had gone to a Christian church with her mother. She then had a series of itinerant jobs which did not last once her Christian sympathies were discovered. She decided to leave China because she could not find religious openness there and because she was bullied and experienced discrimination. [4] The Minister intervened in this case, disclosing port of entry interview notes, a 2016 Canadian visa application, and three US visa applications from 2014 and 2016. The Minister submitted that multiple credibility concerns impugned the overall credibility of the Appellant. The Minister observed that the claimant's responses at the port of entry interview demonstrated a lack of knowledge of Christianity and an economic motive for coming to Canada. Further, her previous visa refusals and forms contained inconsistent information, making it difficult to assess which information was accurate. The Appellant didn't claim refugee protection in the US and she has not provided valid travel documents. [5] The Appellant's application for refugee protection was heard on January 26, 2017. In a decision dated February 9, 2017, the RPD rejected her claim finding that she had not established that she is a Christian or perceived to be one and that if she did choose to practice Christianity in China she would not face persecution if she attended a registered church. The RPD further found that there was no objective evidence indicating that the Appellant would be unable to find work because of her religious belief. [6] The Appellant submits that the RPD made the following errors in coming to its conclusions: 1) the RPD erred in its assessment of the Appellant's Christian identity; 2) the RPD erred in its assessment of the Appellant's risk of persecution in China including a failure to assess the sur place aspect of the claim; 3) the RPD erred by applying the wrong standard of proof when determining the objective basis for the Appellant's fear of persecution. ROLE OF THE RAD [7] The RAD finds that the Federal Court of Appeal's decision, in Huruglica,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. [8] 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. For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica. In assessing issues involving credibility of oral testimony, I have applied the RAD modified standard of reasonableness as per the decision in X (Re), 2017 CanLII 33034 (CA IRB)". ANALYSIS OF THE MERITS OF THE APPEAL The Determinative Issue [9] The RAD finds that the determinative issue in this claim is whether there is a serious possibility that the Appellant would face persecution for the practice or perceived practice of Christianity in China should she return to that country. The RAD will therefore not address the argument that the RPD erred in its assessment of the Appellant's Christian identity and did not conduct a sur place assessment. Practice of Christianity in China [10] The RPD found that the Appellant had failed to establish her identity as a Christian, and further found that if she was to return to China and wished to continue to explore Christianity and attend church as she had been doing for the past few weeks in Canada, she would be free to do so. The RPD found that the Appellant "would not face persecution" if she attended a government sanctioned or registered church, noting that there is insufficient credible evidence that the Appellant had deeply held beliefs which are incompatible with the official churches in China. The RPD also noted that there was no objective evidence to establish that the Appellant would not be able to find employment if she was to return to China and attend church. [11] The Appellant argues that it is noted in the documentary evidence that authorities in China have targeted state sanctioned churches and specifically refers to the 2014 China Aid Report and the 2015 US International Religious Freedom Report. It is submitted that the RPD used evidence selectively and ignored relevant evidence. Further, the Appellant was never questioned as to whether or not she would be willing to join a registered church in China. It is submitted that the RPD ignored the question of religious freedom and failed to take into consideration numerous restrictions imposed on the state sanctioned church. [12] The RAD has reviewed the record and notes that the Appellant never explicitly stated at the hearing what sort of church she would be inclined to attend should she return to China. The RPD's reasoning that she could attend a government registered church was based on its finding that the Appellant had not provided credible evidence of deeply held beliefs incompatible with the official churches in China. The RAD finds that it was speculation on the part of the RPD when assessing the particular type of church that the Appellant would choose to attend in China. However the RAD has conducted its own analysis (below) and finds that the Appellant would be able to practice Christianity in China in any sort of church in her home province of Fujian, other than one deemed an evil cult by the authorities. There is no evidence submitted that the Appellant ever had any interaction with or interest in one of the churches considered to be an evil cult. The RAD finds that there is not a serious possibility that she would be persecuted for practicing Christianity in China in her home province of Fujian. [13] The Appellant argues that the country documentation indicates that Chinese authorities have also targeted state sanctioned churches. The Appellant further submits that the RPD did not specifically consider conditions in her home province of Fujian. [14] The RAD has considered all of the evidence contained in the record. The RAD notes that the Appellant has alleged that while in China she attended church intermittently with her mother in a small 10 to 30 member church. She stated at the hearing that her parents were Christians for a long time and that they had not had any problems that she was aware of. She provided a photograph of the church she attended with her mother.2 As noted by the RPD in its reasons, this church appears to be a stand-alone building fronted by a gate which prominently shows the name of the church - XXXX XXXX XXXX XXXX - in English and Chinese characters. There is a large cross at the top of the gate underneath the name. When asked at the hearing the denomination of the church, the Appellant could only say that it was Christian, but was aware that it was not a Catholic church. The Appellant did not provide any evidence that the church was an underground organization or that it had to be attended clandestinely. It appears that there is a pastor associated with this church as she has provided a document dated January 8, 2017 from Pastor XXXX, stating that she was called by the Lord in October 2015, that she repented and believed in the Lord, and that she worshiped at the Fuzhou City XXXX XXXX XXXX XXXX.3 [15] The RAD has considered whether there is a serious possibility that the Appellant would be persecuted if she returns to China and chooses to practice her faith in either a registered or unregistered church. The RAD is guided by the country condition documents in evidence. 4 The Appellant is from Fujian Province; the RAD notes that there is limited evidence of incidents of persecution involving Christians in Fujian Province. [16] The RAD notes that the U.S. Department of State has designated China one of ten countries of particular concern in regard to religious freedom.5 The U.S. government estimates the total population at 1.4 billion (July 2014 estimate). In its report to the UN Human Rights Council during China's Universal Periodic Review in October 2013, the government stated there were more than 100 million religious believers, 360,000 clergy, 140,000 places of worship, and 5,500 religious groups. Estimates of the numbers of religious believers vary widely.6 [17] The Appellant has alleged that she worshiped openly in China in a church that had its own building which clearly showed on the outside that it was a Christian church. It is unclear whether this was a church registered with the authorities. The RAD notes from the documentary evidence that there are approximately 50 to 90 million Protestants in China, more of whom worship at unregistered churches rather than official churches. Unregistered groups are not equated with groups that have been declared evil cults. Individuals belonging to cults are ruthlessly pursued. In parts of the country unregistered groups have grown rapidly and the authorities do not pressure them to register. There are tens of thousands of unregistered churches in China, most of which carry out their business with little if any trouble from the local authorities. In some parts of the country authorities tacitly approve the activities of unregistered church groups and do not interfere with them. The RAD finds that the preponderance of evidence indicates that Christians can practise their faith in a lawful church and that authorities generally do not concern themselves with small, unregistered church gatherings.7 [18] The UK Home Office in its documentation on religious freedom in China notes at section 3.1.1. 8: In general the treatment faced by Christians in China, including those from unregistered churches, is unlikely to amount to persecution. Caselaw from early 2014 established that in general, the risk of persecution for Christians expressing and living their faith in China is very low. [19] The RAD also notes that the documentary evidence concerning the treatment of house Christians is mixed and that there are examples of authorities harassing congregants, but it often does not rise to the level of persecution. [20] The RAD finds the recent (March 2016) UK Home Office document provides a comprehensive review of the situation for Christians in China. 9 Christianity is a fast-growing phenomenon in China, and notwithstanding a variety of official and social sanctions against it, the majority of Christians are able to worship and practice without facing serious difficulties. Millions of Chinese Christians manifest their beliefs openly, and senior government officials have praised religious communities' positive role in society, and urged approved religious groups to promote 'economic and social development' and 'socialist principles'. [...] There has been a rapid growth in the number of Christians in China, both in the three State-registered churches and the unregistered or 'house' churches. Individuals move freely between State-registered churches and the unregistered churches, according to their preferences as to worship. [...] The US Department of State (USSD) 2014 International Religious Freedom Report, released 14 October 2015, noted: 'The constitution states citizens have "freedom of religious belief," but limits protections for religious practice to "normal religious activities." The constitution does not define "normal." The constitution provides for the right to hold or not hold a religious belief and states that state organs, public organizations, and individuals may not discriminate against citizens "who believe in, or do not believe in, any religion." The law does not allow for legal action to be taken against the government on the basis of the religious freedom protections afforded by the constitution. Criminal law allows the state to sentence government officials to up to two years in prison if they violate a citizen's religious freedom. There were no reported cases of such prosecutions during the year [2014]. 'Only religious groups belonging to one of the five state-sanctioned "patriotic religious associations" (Buddhist, Taoist, Muslim, Roman Catholic, and Protestant) are permitted to register with the government and legally hold worship services. Other religious groups, such as Protestant groups unaffiliated with the official patriotic religious association or Catholics professing loyalty to the Vatican, are not permitted to register as legal entities. [21] The RAD notes that groups that don't register are technically illegal, but the documentary evidence indicates there is uneven enforcement, with some churches meeting openly and regularly with large memberships. The RAD finds that the documentary evidence confirms that the government is generally tolerant of groups that meet in homes or in small groups, but it is suspicious of religious organisations with foreign ties, memberships that grow quickly, or whose leadership becomes too popular. Proselytizing in public or meeting in unregistered places of worship is not permitted...Religious groups independent of the five official government patriotic religious associations have difficulty obtaining any other legal status and are vulnerable to coercive and punitive action by SARA, the Ministry of Public Security (MPS), and other party or government security organs. 'All religious organizations are required to register with SARA [the State Administration for Religious Affairs] or its provincial and local offices. Registered religious organizations are allowed to possess property, publish approved materials, train staff, and collect donations. According to regulations, religious organizations must submit information about the organization's historical background, doctrines, key publications, minimum funding requirements, and a government sponsor. Due to the difficulty of fulfilling these requirements, many religious organizations either remain unregistered or register as commercial enterprises. 'In addition to the five nationally recognized religions, local governments have legalized certain religious communities and practices, such as Orthodox Christianity in Xinjiang, Heilongjiang, Zhejiang, and Guangdong provinces. ...'SARA has stated through a policy posted on its website that family and friends have the right to meet at home for worship, including prayer and Bible study, without registering with the government.10 [22] The RAD notes that members of unregistered Protestant groups that the government identifies as 'evil cults' appear to be the most vulnerable to detention, arrest and harassment. [23] Certain religious or spiritual groups are banned by law. The criminal law defines banned groups as "evil cults," and those belonging to them can be sentenced to prison. A judicial explanation states this term refers to: "those illegal groups that have been found using religions, 'qigong' [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by molding and spreading superstitious ideas, and endangering society." There are no published criteria for determining, or procedures for challenging, such a designation. The government maintains a ban on the Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Zhong Gong (a 'qigong' exercise discipline), and Falun Gong. The government also considers several Christian groups to be "evil cults," including the Shouters, Eastern Lightning, Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades of Servants (or San Ban Pu Ren), Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love, and South China Church. 11 [24] The RAD notes that the UK Home Office document addresses a situation that garnered a great deal of media attention and the implication that this may be an indicator of a new nationwide wave of discrimination against Christians. It discusses the situation as it appears in the US Commission on International Religious Freedom 2015 Annual Report, released 30 April 2015: In a striking development, at least 400 churches were torn down or had crosses forcibly removed and/or demolished in 2014, a notable increase over previous years. Most of these incidents occurred in Zhejiang Province and included both underground and state-sanctioned churches, though incidents were reported in other places as well.12 [25] A World Watch Monitor report of 22 September 2015, 'Analysis: What to make of China's demolition of crosses', further addresses the Central Government's role in this situation. Some Christians fear that the Chinese central government is testing how Christians in Zhejiang respond to this pressure. They are concerned that this is an early stage of a new, nationwide wave of discrimination against Christians. Other Christians disagree. While it's true that a small number of "house churches" were closed down recently, most church leaders outside Zhejiang don't report any difference in government attitude towards them. Meetings and gatherings for training have continued as usual. There's no evidence that points to an increase in discrimination on a national level.13 [26] The RAD, having reviewed the documentation, finds that this increase in anti-Christian sentiment, as much as it is disturbing, is isolated to one area of China and there appears to be no increase in discrimination on a national level. The photograph provided by the Appellant clearly shows that her church in Fuzhou, Fujian province, is standing and the cross on the building remains. There is a recent letter from her pastor and it is reasonable to expect that if the church had been demolished or the cross taken down, this would have been mentioned by her pastor. Fujian [27] The RAD has carefully reviewed the recent documentary evidence regarding the Appellant's home province of Fujian. Asia Harvest, a US non-profit organization as well as an "inter-denominational Christian ministry" working with Asian church leaders in China and other countries, has published an ongoing study of the estimated number of Christians in China. The Asia Harvest study states that the number of Christians in Fujian in 2011 was 5,360,810, which is 14.31 percent of the population of the province. The same source reports that there are 3,453,069 Protestants and 1,907,741 Catholics. According to OMF International, a missionary movement that promotes the creation of churches in East Asia, the Three-Self Patriotic Movement indicated that in 2008 there were 830,000 baptized Protestant members in the province (OMF Apr. 2009).14 [28] It is noted in the documentation that Fujian has a thriving and rapidly growing Christian community.15 The Appellant is from a county in Fuzhou. She attended a church in Fuzhou City and stated at the hearing that if she were to return to China she would return to Fuzhou. Fuzhou, the capital of Fujian, with its six surrounding rural counties and two smaller municipalities, had at least 350,000 Protestants in 2002, meeting in 300 registered churches and 2,000 meeting points.16 [29] Fujian is a relatively liberal province in relation to religious policy, information which was supported by a Canadian government fact-finding mission to the province in 2000 and the executive secretary of the Hong Kong Christian Council in 2005. A 2009 report on the Protestant Church in Fujian Province in a Global Chinese Ministries newsletter confirms that there are large numbers of independent house churches in Fujian. The report also indicates that in general, local government in Fujian seems fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of house-church Christians in this province.17 [30] Fujian is rarely mentioned in reports on breaches of religious freedom by the US Department of State, the United States Commission on International Religious Freedom, Amnesty International, Human Rights Watch or the various Christian NGOs that report on China. [31] After a careful review of the documentary evidence, the RAD has found no recent incidents of persecution of Christians in Fujian province. Counsel at the RPD hearing pointed out one incident in which a church was demolished in Pingtan, Fujian province in 2006.18 This occurred 11 years ago. As the reason for the demolition is not noted, the RAD can put little weight on this incident as proof of persecution. There could have been a variety of reasons for the demolition of the church that did not include persecution of its members. [32] The RAD has considered all of the documentary evidence submitted. The RAD finds, on a balance of probabilities, that if there were recent incidents of persecution of Christians in Fujian province, there would be some documentation of this by reliable sources. The RAD has considered that the documentary evidence regarding Fujian province reveals only the demolition of a church in Pingtan in 2006, without stating the reason for that demolition. The RAD has further considered that the Appellant attended a church in Fuzhou without problem, that this church has its own building with a prominent sign stating that it is a church, and that her parents had been Christians for a long time without experiencing any difficulties. The Appellant stated at the hearing that her parents had never shared any problems relating to their Christianity. It is reasonable to expect that if there were problems associated with being a Christian practitioner, her mother would have revealed this to her considering that she was encouraging be Appellant to become a Christian. The RAD has further considered the Appellant's risk of persecution in light of the number of Christians practicing in Fujian province. The RAD finds that there is less than a mere possibility that she would be persecuted for the practice of Christianity in Fujian province. Discrimination [33] The Appellant has alleged that she suffered discrimination in China when it became known that she attended church with her mother. She stated that she lost her job, was unable to find a permanent job, and was spoken badly about by neighbors, friends and family. The RAD has considered the documentary evidence and finds that it does not support the allegation that Christians are discriminated against in China. As noted earlier, Fujian has a thriving and rapidly growing Christian community. Anti-Christian sentiment appears to be isolated to one area of China. Further, The Appellant has not referred to any documentary evidence that would support her allegations of societal discrimination. [34] The Appellant stated that she had difficulty finding work because she was Christian. The RAD notes from her work history detailed in the Schedule A Form19 (completed when she made her claim for refugee protection) that she only worked for three years as an adult from the ages of 39 to 42, in the years 2013 to 2016. She has alleged that she began to attend church with her mother in October 2015. She has not provided any evidence of employment in China or that she was fired from her jobs because of her religion, despite discriminatory employment practices in China being central to what the Appellant fears should she return. The instructions for the completion of the BOC ask that the claimant attach documents to support the claim. The Appellant was represented by counsel during the RPD process. [35] The RAD finds that the alleged discrimination the Appellant experienced in China does not amount to persecution. The RAD has considered the alleged work experience of the Appellant and the lack of corroborating documentation regarding that experience; that there is no evidence that her parents suffered discrimination because they were Christians; and that the country condition documentary evidence does not support the allegation that Christians are discriminated against in China. Though the Appellant has stated that in her particular area of Fuzhou the majority of the people are Buddhists, there is no reason why she cannot move to or work in another part of Fuzhou, especially since she has stated that her parents' home where she had resided has been demolished. The Appellant has three years' experience working as a waitress and it is reasonable to expect that she could find similar work in other areas of the city. It is unfortunate that her friends, neighbors, and family members speak badly to her about her Christian activities, however the RAD does not find that this amounts to persecution. She has come to Canada without knowing anyone and so it is reasonable to expect that she could live in another area of Fuzhou where she similarly does not know anyone. In Summary [36] The RAD has reviewed all of the evidence about the conditions for Christians in China and specifically in the Appellant's home province of Fujian, as well as the Appellant's personal circumstances. The RAD finds, on a balance of probabilities, that the Appellant would be able to practice her religion, worshiping in the Christian congregation of her choosing, if she were to return to Fujian Province in China, and there is not a serious possibility that she would be persecuted for doing so. Further, the RAD finds that there is not a serious possibility that she would suffer discrimination amounting to persecution because she is Christian or perceived to be Christian. The RAD also finds that the Appellant has not established on a balance of probabilities that she is at risk as per section 97 of the IRPA. Standard of Proof [37] The RPD found in the conclusion of its decision that the Appellant had failed to establish a reasonable possibility that she would be persecuted. Earlier in the reasons the member wrote that "the claimant would not face persecution on the ground of religion if she is to return to China"20 and "the claimant would not face persecution if she attends a government sanctioned or registered church".21 [38] The Appellant submits that the RPD used the wrong standard of proof and erred by applying a more stringent legal test for well-founded fear of persecution when it required the Appellant to establish that she "would" be persecuted if she returned to China. It is argued that this error alone is sufficient justification for setting aside the RPD's decision. [39] The RAD finds that the RPD did not use the correct test in paragraphs 34 and 41. However, this is not fatal to the decision as the RAD has conducted its own analysis and has found that there is not a serious possibility that the Appellant would face persecution in China on the basis of religion or her attendance at any sort of church in her home province of Fujian. CONCLUSION [40] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. (signed) "Linda Hart" Linda Hart June 22, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, Exhibit 8, p. 402 of the record. 3 Exhibit RPD-1, RPD's Record, Exhibit 8, p. 400 of the record. 4 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (31 October 2016). 5 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (31 October 2016), item 12.2, United States Commission on International Religious Freedom Annual Report 2016. 6 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (31 October 2016), item 12.1, 2015 International Religious Freedom Report. 7 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (31 October 2016), item 12.13, Background Paper: Protestants in China 8 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (31 October 2016), item 1.8, Country Information and Guidance. China: Christians 9 ibid 10 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (31 October 2016), item 1.8 11 ibid 12 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (31 October 2016), item 1.8, para. 6.1.4. 13 Ibid., para. 7.1.5. 14 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (31 October 2016), item 12.7. 15 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for China (31 October 2016), item 12.13. 16 Ibid. 17 Ibid. 18 Exhibit RPD-1, RPD's Record, Exhibit 5, p. 219 of the record. 19 Exhibit RPD-1, RPD's Record, Exhibit 1. 20 Exhibit RPD-1, RPD's Record, p. 10, para. 34 of the decision. 21 Exhibit RPD-1, RPD's Record, p. 12, para. 41 of the decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-06385