TB8-31451

RAD File / Dossier de la SAR : TB8-31451 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 11, 2020 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for allowing the appeal brought by XXXX XXXX, a citizen of China. I find that Ms. XXXX is a Convention refugee. [2] The Appellant alleges that she is Christian and that she hosted a house church in China which was raided. As a result, she alleged that she fled to Canada and brought a refugee claim. She also alleged a fear of her ex-husband who, she alleged, was abusive towards her. [3] The Refugee Protection Division (RPD) denied the Appellant's claim because it found she lacked credibility. The RPD found this based on a lack of medical documentation, issues with the Appellant's summons and a finding that the Appellant gave vague and evolving testimony about her TRV application. The RPD found this outweighed the credible evidence of her Christian practice in Canada. The RPD also found that the Appellant had not established a forward-facing risk from her ex-husband, as they had been separated for over two years without incident. [4] The Appellant argues that the RPD erred because the RPD misunderstood her testimony. She also argues she has new evidence which further establishes her Christian faith and her risk from her ex-husband. [5] Upon an independent review of the record, I find that the RPD erred in the assessment of the Appellant's credibility, and I find she faces a serious risk of persecution based upon her religion. I am able to come to my conclusion without assessing the new evidence, based upon the record before the RPD. Additionally, as my decision is based upon the Appellant's religion, I am not assessing the arguments about the Appellant's risk as a victim of domestic violence as the issue is not determinative. DECISION [6] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugees. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [7] My role is to look at all of the evidence and decide if the RPD made the correct decision.1 There is an exception to this, where the RAD defers to the RPD if the RPD had a meaningful advantage in assessing the credibility of oral evidence. I do not find this case falls into the exception. Therefore, I will be looking at whether the RPD's decision was correct. ANALYSIS [8] The following issues are determinative of the appeal: (a) The RPD's credibility assessment is incorrect; and (b) The Appellant meets the definition of a Convention refugee The RPD's credibility assessment is incorrect [9] The RPD based its credibility assessment on three findings: (a) The Appellant had not provided evidence of her medical issues which she alleged was the reason she turned to Christianity; (b) The Appellant's testimony about her TRV application was vague and evolving; and (c) The Appellant's summons was of little weight because it lacks credibility that no further summons was issued after the Appellant failed to attend the first summons. [10] Against this, the RPD considered that the Appellant had knowledge about Christianity and evidence of her religious practice in Canada but found that this was insufficient to overcome the concerns. I find this was in error. I find that the RPD's concerns do not go to the heart of the claim such that they outweigh the credible testimony about the Appellant's faith and the lack of inconsistency in the evidence about her core allegations. [11] Moreover, I find the RPD improperly weighed the evidence. Justice Grammond has explained that the weight of evidence is the "persuasiveness of some evidence in comparison with other evidence" and "what counts in the ultimate balancing of the evidence that tends to prove or disprove a relevant fact."2 The evidence which the RPD found disproved the Appellant's allegations that she was not a Christian who had practiced in a house church which was raided was that she had not provided medical documentation, gave evolving evidence about her TRV, and had only submitted one summons. The evidence proving the allegations were: the Appellant's consistent testimony, her knowledge of Christianity and supporting letter of her practice, and the one summons she had. All of the evidence supporting the Appellant is highly probative in that it has the capability to prove the facts in issue and was found to be credible. Therefore, according to Justice Grammond, this evidence is deserving of weight. On the other hand, the evidence disproving the facts is not really relevant or probative of those facts, perhaps aside from the question of the summons. Therefore, I find that the evidence in favour of the Appellant deserves greater weight. [12] For these reasons, I find the Appellant to be credible, and I accept her allegations as alleged in her Basis of Claim form, on a balance of probabilities. I make this finding based on my own independent assessment of the record, as the Appellant is self-represented, and her record does not touch on these legal arguments.3 [13] First, I will look at the TRV. The Appellant's evidence was that she did not apply for the TRV but rather a friend applied for her. Despite this, the RPD concluded that the Appellant's credibility was undermined because the Appellant gave vague and evolving testimony about what information was in her TRV application, including the purpose of the visa and whether a travel agent was used. I find that these concerns are not material. The RPD did not find any inconsistency in the testimony which undermined the allegation that the Appellant did not apply for the TRV or conclude that the Appellant could not have exited China as she did. Moreover, given that the Appellant testified that she did not prepare the application, it was incorrect for the RPD to expect detailed knowledge of what was in the application. I do not find this evidence undermines the Appellant's credibility. [14] Second, I will look at the medical documentation. The RPD considered that the Appellant did not have medical documentation for injuries from abuse she sustained in 2013, including hospital documents, prescriptions or her medical booklet. This evidence is arguably significant because the abuse allegedly led the Appellant to Christianity. I agree with the RPD that it is concerning that the Appellant did not have this evidence. However, the Appellant did provide an explanation that this was a long time ago (approximately five years), and she did not know where her documentation was. Given this explanation, I put less weight on the lack of documentation as a negative credibility inference. [15] Third, I will look at the summons. The RPD did not find any defects on the face of the summons but rather found that the summons should be given little weight because, according to the documentation, if the Appellant failed to appear as directed in the summons (which she did) then further documentation would have been issued to her. Reviewing the country conditions, I agree with the RPD. However, this is essentially a plausibility finding. The documents indicate it is likely that further documents would be issued in this type of case, but it is certainly not impossible that they were not issued. Furthermore, it is out of the Appellant's control. Again, I find this is a factor to be considered in the credibility assessment, but I do not find it is a strong negative credibility finding from which to draw an inference of a lack of credibility. [16] These were the sum total of the RPD's reasons for doubting the Appellant's credibility. I do not find this meets the requirements to displace the presumption of truthfulness set out in Maldonado.4 This is particularly so when I weigh these issues against the remainder of the evidence. The RPD did not find any material inconsistencies or omissions in the Appellant's testimony and evidence about her allegations of her involvement in Christianity in China. Reviewing the evidence, I do not find any such issues. This supports the Appellant's credibility. The RPD found the Appellant had knowledge about her Christian faith, including evidence about festivals and holidays. This supports the Appellant's credibility. The Appellant had letters from the church she attends in Canada. This supports her credibility. The Appellant had a summons which did not have deficiencies on the face of the document. All of this evidence supports her credibility. [17] My finding that the RPD's decision cannot be sustained is less about the individual findings being incorrect and more about the sum total of the findings made. When I consider the negative credibility findings, I find that they do not outweigh the evidence in the Appellant's favour. I agree that the concerns raised by the RPD are just that, concerns. But I do not find them sufficient to conclude that the Appellant lacks credibility. The standard of proof in a refugee claim is a balance of probabilities. This standard leaves room for more than a little doubt. I have doubt in this case, but I find that the Appellant has established her allegations, on a balance of probabilities. [18] For these reasons, I find the RPD's credibility assessment is incorrect. The Appellant meets the definition of a Convention refugee [19] Based on my credibility findings above, I find that the Appellant has credibly established that she is Christian, that she was part of a house church in China, and that this house church was raided. On this basis, I find that the Appellant is a Convention refugee because she faces a serious possibility of persecution, based upon her religion, which is a Convention ground. I further find that she does not have access to adequate state protection or a viable internal flight alternative (IFA). She therefore meets the test for a Convention refugee. [20] In terms of the Appellant's risk, I note that the evidence is mixed about the risk faced to individuals who practice Christianity in house churches. However, a Response to Information Request (RIR) from the Immigration and Refugee Board of Canada (IRB) in the National Documentation Package (NDP) notes that practice of Christianity in an unregistered church is illegal and "vulnerable to punitive official action."5 The RIR notes that the Chinese authorities continue to arrest Christians and restrict religious activities, and house churches are being shut down.6 Additionally, according to a report from the UK Home Office, the Chinese government issued a directive to "eradicate" unregistered churches over the course of the next decade, resulting in unregistered church members facing an increased number of arrests, fines and church closures.7 [21] While there is some evidence that smaller churches can operate without issue, in this instance, I accepted that the Appellant's church has been targeted and the Appellant is wanted as a result. Given that I accept, on a balance of probabilities, that the Appellant is already wanted by the Public Security Bureau for her religious practice, I find that she could not return to China and practice her religion, on a balance of probabilities. I therefore, find that the Appellant faces a serious possibility of persecution, based upon her religion. [22] Given that the Appellant faces a risk from the Chinese state and given she is already wanted, I find that the Appellant would not have access to adequate state protection or a viable IFA should she return to China. CONCLUSION [23] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "E. Bobkin" E. Bobkin June 11, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 2 Magonza, Magreth Benard v. M.C.I. (F.C., no. IMM-1506-18), Grammond, January 7, 2019, 2019 FC 14, at para 27. 3 Exhibit P-2, Appellant's Record, at p. 17. 4 Maldonado, Pedro Enrique Juarez v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; [1980] 2 F.C. 302 (C.A.). 5 NDP for China (March 31, 2020), item 12.28, IRB, RIR CHN106374.E, "Christian House Churches, including smaller congregations that meet in people's homes; activities and beliefs; treatment of members by authorities, including in Guangdong, Fujian, and Hebei Provinces (2017-October 2019)", October 22, 2019, at p. 4. 6 Ibid., NDP for China (March 31, 2020), item 12.28, at pp. 8-9. 7 NDP for China (March 31, 2020), item 1.8, ?United Kingdom Home Office, "Country Information and Guidance, China: Christians, Version 2.0", March 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-31451 RAD.25.02 (January 2020) Disponible en français 2 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.25.02 (January 2020) Disponible en français