TB7-19962

RAD File / Dossier de la SAR : TB7-19962 Private Proceeding / Huis clos Redetermination of the Appeal - Nouvelle décision relative à l'appel 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 April 7, 2021 Date de la décision Panel T. Cheung Tribunal Counsel for the person who is the subject of the appeal Vanessa M Leigh 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] This appeal is allowed. The Appellant, XXXX XXXX, is a citizen of China who appealed the negative determination of his refugee claim. [2] This is the second Refugee Appeal Division (RAD) decision following the re-opening of the appeal due to an administrative error. The first RAD decision dated January 23, 2020 was issued without the RAD panel's consideration of the new evidence filed in response to the directions for further submissions requested by the first RAD member on December 31, 2019. The new evidence is admitted [3] Pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA), I admit as new evidence the Appellant's affidavit, a letter of support from a fellow member of the Appellant's church in Canada, and a letter of support from the Appellant's wife in China. Since these documents were submitted in response to the first RAD panel's directions, these are documents that arose after the Refugee Protection Division (RPD) decision, and it could not have been reasonably expected for these documents to be submitted before the RPD decision was issued.1 [4] The documents meet the criteria of being new, credible, and relevant as per Singh and Raza.2 The documents are new such that they could reverse the RPD's negative determination. The documents are relevant to the issue of the genuineness of the Appellant's religious profile and his forward-facing subjective fear of persecution if he returns to China. The documents are prima facie credible as there is nothing on the face of the documents to call into question the credibility of the statements therein; the letter from the church member contains the phone number of the person who wrote the letter for verification; and the letter from the Appellant's wife includes a copy of her Resident Identification Card. [5] I do not grant the Appellant's request for a RAD hearing because the new evidence does not raise a credibility issue. The basis of claim [6] In XXXX 2016, the Appellant was introduced to the Shouters church, a sect of Christianity, to cope with his grief and anger due to his wife having to undergo forced sterilization after the birth of a second child. The Appellant started attending the Shouters church in XXXX 2016 until XXXX 2017 when the Public Security Bureau (PSB) raided the church. The Appellant avoided arrest and went into hiding. The PSB attended at his home and left a summons for him to appear to the police. The Appellant did not abide by the summons. The Appellant fled China with the assistance of a smuggler in XXXX 2017. The Appellant joined a Shouters church in Canada.3 The RPD reasons for decision [7] The determinative issue at the RPD was the Appellant's credibility. The RPD determined that the Appellant's overall credibility was impugned by his ability to exit China on his own passport, and by the absence of his passport at the RPD hearing without a reasonable explanation. Given the credibility concerns, the RPD determined the summons was fraudulent, that the Appellant did not attend an underground church in China, and that he was not wanted by the PSB.4 The RPD also found the Appellant is not a genuine follower of the local Shouters church in Canada.5 The Appellant's arguments at the RAD [8] The Appellant argued that the RPD made the following errors in rejecting the claim: a. The RPD erred in assessing the summons in its failure to apply the presumption of authenticity to the document as there was no valid reason to reject it, and the RPD failed to independently assess the summons within the totality of the evidence. The Appellant argued that the corroborative evidence, including the summons, is highly probative of the Appellant being sought by the PSB.6 b. The RPD erred in assessing the Appellant's religious identity when it drew a negative inference from the Appellant's efforts to become baptized.7 c. The RPD erred in making an implausibility finding that a person who is wanted by the authorities in China would not be able to travel on his own passport when assisted by a smuggler who could bribe an official to circumvent exit controls.8 d. The RPD erred in making a negative credibility finding from the Appellant giving his passport to the smuggler.9 ROLE OF THE RAD [9] The standard of review at the RAD is correctness on questions of law, fact, or mixed fact and law.10 The RAD can defer to an RPD finding where the RPD had a meaningful advantage in assessing the credibility of oral testimony.11 The RAD carries out its own analysis of the record, on a correctness standard, to determine whether the RPD erred.12 As the RPD had no meaningful advantage in assessing the credibility of oral testimony, I apply the standard of review of correctness to the RPD decision. DECISION [10] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. ANALYSIS [11] The determinative issue in this appeal is the sincerity of the Appellant's religious belief which requires an assessment of his credibility. The Appellant demonstrated a sincere religious belief [12] I agree with the Appellant's argument that the RPD erred in its assessment of his religious identity. Although the RPD acknowledged that the Appellant accurately answered questions to demonstrate his knowledge of the Bible,13 and the RPD did not raise concerns with the Appellant's knowledge of Christianity, the RPD, without an explanation, found "his acceptance of faith remained vague." Based on an independent review of the testimony and documentary evidence, I do not find the Appellant's testimony or sincerity of religious belief to be "vague" such that it negatively impacted his credibility. It is an error to raise credibility concerns about the Appellant's sincerity of religious belief without giving adequate reasons for the concern. [13] In the RAD's independent assessment of the Appellant's sincerity of religious belief, I considered the Appellant's level of education.14 I was cognizant not to expect the Appellant to have an unrealistically high level of religious knowledge, and not to microscopically focus on the Appellant's errors or misunderstandings of his religion.15 [14] Having independently reviewed the entirety of the testimony and the documentary evidence, I find the Appellant demonstrated sincerity in his religious belief. The Appellant demonstrated his religious knowledge of passages in the Bible which were meaningful to him.16 Given the Appellant's level of high school education,17 his knowledge of the Bible is commensurate with this level of education.18 [15] I also agree with the Appellant's argument that not pursuing baptism faster or not having gone through baptism does not negate the sincerity of his religious identity.19 I find the RPD erred in drawing a negative credibility inference from the Appellant's efforts towards baptism. The RPD found it indicated an insufficient commitment to the church in Canada, and therefore the Appellant is not a genuine Christian practitioner.20 [16] The Appellant testified that baptism in his church in Canada occurs in XXXX around XXXX.21 Since the Appellant arrived in Canada in XXXX 2017,22 and the RPD hearing was held in August 2017, the Appellant would not have had an opportunity to become baptized. Hence, I do not draw a negative credibility inference from the fact that he had not yet been baptized at the RPD hearing. The Appellant exhibited a sincerity of belief when he testified that although he is not yet baptized, he wanted to be a true Christian. The Appellant testified to the significance of being a Christian, and that to be a follower of the church, a person must be baptized. He described his efforts towards fulfilling the requirements of baptism which included attending church regularly and volunteering at and after church service. He testified that he volunteered by handing out pamphlets in public, and that he likes "to preach good news to our people."23 [17] After the start of the pandemic, the Appellant stopped attending church, but he continued to study the Bible with his friend, who wrote a letter of support stating that he and the Appellant continued to engage in Bible study and discussions.24 [18] The Appellant testified about his motivation to join the Shouters church in China was to cope with his depression related to the circumstances surrounding his wife's pregnancy as a consequence of the government's enforcement of the family planning policy.25 The Appellant's testimony is supported by objective country conditions evidence that the family planning policy continued to be enforced to prohibit couples having more than two children.26 [19] The Appellant gave credible testimony about the following areas: the similarities between the church in China and the church he attends in Canada; the purpose of worshipping and praying aloud in the Shouters church is to confess one's sins;27 the Appellant's weekly church attendance in Canada; and how he publicly proselytizes the gospel after church service.28 [20] An area of testimony exhibiting some vagueness is when the Appellant stated that because he is new to the church in Canada, he does not know the "procedure" during the baptism. I draw no negative inference from the lack of knowledge about the "procedure" of the baptism in Canada as the RPD hearing took place before he was able to witness a baptism in his church in Canada, which would have taken place after the RPD hearing. [21] The Appellant testified to witnessing baptisms in China wherein the pastor cleansed the face of the believer using a pool of water, followed by a prayer. He exhibited vagueness in his testimony when he could not remember the exact words of the prayer during the baptism in China.29 I do not draw a negative inference from this gap in knowledge about the prayer, as his testimony was otherwise detailed in his knowledge of the Bible and of the significance and the requirements of baptism in Canada. [22] As the RAD's independent review of the evidence indicates the Appellant has demonstrated a sincerity of religious belief, I set aside the RPD's negative credibility finding that the Appellant did not attend a Shouters house church in China, and that he has not established his religious identity as a Christian or as a follower of a local branch of the Shouters church in Canada.30 The Appellant's exit from China is a neutral consideration [23] Based on the RAD's independent review, I find the Appellant's exit from China is not determinative of credibility and is peripheral to the central issue of the sincerity of his religious belief. A determination based on a claimant's ability to leave China within the context of the country's exit controls is fact-driven.31 It is well established that implausibility findings may only be made in the "clearest of cases,"32 where the facts are beyond the realm of what could reasonably be expected to have happened.33 [24] There is sufficient objective country conditions evidence in the National Documentation Package (NDP) to support a finding that it was plausible for the Appellant to exit China in 2017, despite being wanted by the authorities by way of a summons issued against him. According to the objective evidence, if the Chinese authorities wished to prevent a Chinese citizen from exiting the country at a border crossing, the High People's Court must issue a written notification to prevent the person from departing at the entry-exit port, and there must be coordination with the relevant public security organ. Absent this written notification from the High People's Court that the Appellant is prohibited from departing the country from an entry-exit port, there is no indication that an issuance of a summons would have the effect of preventing the Appellant's exit from China.34 [25] Although some dissidents and government officials have been denied foreign travel, there is sufficient objective country evidence to support a finding that it is plausible for a Chinese citizen who is subject to a summons to leave China in 2017, especially if he used a smuggler to facilitate the circumvention of exit controls. There is evidence of travellers circumventing border security controls using fraudulent means.35 Exit procedures vary at each airport; Chinese secrecy laws make it extraordinarily difficult to obtain accurate information on exit controls at Chinese airports and information-sharing between security networks in China; there is a lack of transparency of information about travel restrictions and surveillance techniques; and Chinese regulations remain vague and subject to the discretion of Communist Party officials.36 [26] Since the RPD acknowledged the existence of systemic corruption and bribery in China, and the regulations not being consistently applied, I find the RPD erred in finding that it was implausible that the smuggler used bribery to facilitate the Appellant's exit from China. The RAD's independent review of the Appellant's evidence and the objective country evidence indicates that it is plausible for the smuggler to use bribery to circumvent exit controls so that the Appellant can exit China even if he is wanted by the PSB. Therefore, the Appellant's exit from China is a neutral consideration that does not impugn credibility. The return of the travel documents to the smuggler is a neutral consideration [27] The Appellant argued that the RPD erred in making a negative credibility finding that it is implausible that he would hand over his passport to the smuggler because he owed the smuggler the balance of the fee for the fraudulent visa application.37 [28] Having independently reviewed the testimony, I find little basis to draw a negative inference from the Appellant's explanation as to why the smuggler wanted to keep the passport. In response to the RPD's questioning, the Appellant testified that the smuggler helped him come to Canada at a time when the police wanted to arrest him. When asked again, he testified that the passport was taken away from him at the hotel in Canada, and he expected it to be returned to him once he pays the balance of the fee.38 I find the Appellant's testimony does not contradict his explanation given in the immigration intake documents that the smuggler took the passport because the documents inside are fraudulent.39 The Appellant is merely giving another reason for the smuggler taking the passport that is in addition to the reason given in the intake forms. [29] I agree with the Appellant's argument that the RPD erred in citing Elazi40 because identity is not an issue in this appeal. The Appellant provided a plausible reason why the smuggler took the passport containing the fraudulent visa, whereas in Elazi, the passport was critical to proving the claimant's identity and journey, which was at issue, and it was not sufficient for the claimant in Elazi to merely assert the smuggler took the passport without more explanation.41 [30] As the RPD accepted the Appellant's identity and nationality based on other identification documents,42 I find the discrepancy in the testimony concerning the reason for giving the passport to the smuggler is peripheral to the core issue of the claim of the genuineness of the Appellant's religious identity. I agree with the Appellant's argument that the different reasons given for the return of the passport to the smuggler is not sufficient to support a negative credibility inference. [31] I agree with the Appellant's argument that the RPD erred in speculating that the passport is not useful to the smuggler or that that the smuggler placed himself at risk of being discovered to be in possession of the stolen passport.43 The RPD cited no specialized knowledge on the motives of smugglers, and there may be unknown reasons why the smuggler wanted the fraudulent documents to be returned. I agree with the Appellant's argument that the RPD erred in impugning the Appellant's credibility based on a third party's actions when the Appellant is not privy to the third party's decision-making process.44 Insufficient basis to support the finding of a fraudulent summons [32] I agree with the Appellant's argument that the RPD erred in failing to independently assess the summons within the totality of the evidence related to the issue of the sincerity of religious belief. The RPD's error lies in rejecting the summons based on credibility concerns related to the Appellant's exit from China and the smuggler taking the Appellant's passport,45 which was used to support the negative credibility finding that the Appellant is not wanted in China for attending an underground church.46 It is an error to make a conclusion on the claim based on certain evidence and dismiss the remaining evidence as inconsistent with that conclusion. This inverted reasoning of reaching a negative conclusion about the Appellant's religious profile based on the exit and the passport before assessing the summons has been held to be an error by the Federal Court of Canada.47 [33] Since the credibility concerns related to the exit and the passport have been set aside in the RAD's independent review, I find the RPD erred in finding that the summons is fraudulent. I agree with the Appellant's argument that there is nothing on the face of the summons to indicate it is a fraudulent document. I agree with the Appellant's argument that the RPD erred in rejecting the summons for being fraudulent because of the prevalence of fraudulent documents in China.48 The RPD's description of the summons as having a "rudimentary security feature" that is easily forged is not sufficient to support a finding that the summons is fraudulent.49 The Appellant's subjective fear of persecution [34] Since I have determined that the Appellant's religious belief is sincere, I find the Appellant has a forward-facing subjective fear of persecution on the basis of his religious identity in the Shouters church. According to the objective country evidence, the Shouters church is considered an "evil cult" banned by the Chinese government.50 The Federal Court of Canada has held that freedom of religion, one of the grounds of protection under section 96 of IRPA, permits the selection of one's own place of worship and sect. It is a misconception of freedom of religion that there is no fear of persecution if one can attend a state-sanctioned church.51 Since the presumption of truth has not been rebutted, I accept the Appellant's testimony that the reason why he would not join a state-sanctioned church in China is because those churches put the Communist party ahead of God's first and second commandants.52 The Appellant re-iterated in his affidavit the same reason for not joining a state-sanctioned church in China.53 [35] There is no viable internal flight alternative (IFA) for the Appellant as the Shouters sect is banned throughout China. Where the agent of persecution is the state, it is not necessary to inquire into the effectiveness of state protection.54 CONCLUSION [36] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) T. Cheung T. Cheung April 7, 2021 Date 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, 2007 FC 385. 3 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) Narrative, pp. 23 to 26; Exhibit P-2, Appellant's Record, Memorandum. 4 Exhibit RPD-1, RPD Record, RPD Reasons for decision, pp. 6 to 9, paras. 11, 15, 17, 18. 5 Exhibit RPD-1, RPD Record, RPD Reasons for decision, p. 12, paras. 29 to 30. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 64 to 71. 7 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 71 to 75. 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 75 to 80. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 80 to 85. 10 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 11 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 70. 12 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 13 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 10 to 11, paras. 24 to 27. 14 Wu v. Canada (Citizenship and Immigration), 2009 FC 929 (CanLII), para. 21. 15 Wu v. Canada (Citizenship and Immigration), 2009 FC 929 (CanLII), para. 21. 16 Transcript of RPD Hearing, p. 16. 17 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule A Background Declaration, p. 38. 18 Transcript of RPD Hearing, pp. 26 to 27. 19 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 73 to 75. 20 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 11 to 13, paras. 25 to 29. 21 Transcript of RPD Hearing, p. 15. 22 Transcript of RPD Hearing, p. 5. 23 Transcript of RPD Hearing, pp. 15 to 17. 24 Exhibit P-3, Appellant's new evidence, Appellant's affidavit signed October 22, 2020 and letter of support dated XXXX XXXX, 2020, pp. 6 and 9. 25 Transcript of RPD Hearing, pp. 6 to 7; pp. 18 to 19; pp. 21 to 22; pp. 25 to 27. 26 Exhibit RPD-1, RPD Record, Exhibit 4, news article re: family planning policy, pp. 132 to 139. 27 Transcript of RPD Hearing, pp. 8 to 9. 28 Transcript of RPD Hearing, pp. 9 to 10 and 20 to 21. 29 Transcript of RPD Hearing, pp. 16 to 17. 30 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 11 to 12, paras. 28 to 30. 31 Huang v. Canada (Citizenship and Immigration), 2017 FC 762, para. 66; Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064, para 25; Yan v. Canada (Citizenship and Immigration), 2017 FC 146, para 20. 32 Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776, at para 7. 33 Divsalar v Canada (Minister of Citizenship and Immigration), 2002 FCT 653, at para 24. 34 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, China, 20 July 2017, item 16.2: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports (2011-February 2014). Immigration and Refugee Board of Canada. 6 March 2014. CHN104761.E. 35 Ibid., National Documentation Package, China, 20 July 2017, item 16.3: Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, security checkpoints, and the use of facial recognition technology (2013-2014). Immigration and Refugee Board of Canada. 22 September 2015. CHN105049.E. 36 Ibid., National Documentation Package, China, 20 July 2017, item 16.2. 37 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 80 to 85. 38 Transcript of RPD Hearing, pp. 11 to 12. 39 Transcript of RPD Hearing, pp. 11 to 12; Exhibit RPD-1, RPD Record, Exhibit 1, p. 31. 40 Elazi v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14891 (FC). 41 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 82 to 84; Elazi v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14891 (FC), paras. 16 to 17. 42 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p.5, para. 6. 43 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6, para. 10. 44 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 84 to 85; Fei Chan Lin v. Canada (Citizenship and Immigration), 2014 FC 683, para. 21. 45 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 9, para. 17. 46 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 9, paras. 17 to 18.n 47 Chen v Canada (Minister of Citizenship and Immigration), 2013 FC 311, paras. 20 to 21. 48 Lin v Canada (Minister of Citizenship and Immigration), 2012 FC 157, paras. 53 to 55. 49 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 67; Exhibit RPD-1, RPD Record, Exhibit 9, p. 516. 50 National Documentation Package, China, 30 October 2020, item 12.23. Country Policy and Information Note. China: Christians. Version 3.0. United Kingdom. Home Office. November 2019, pp. 23 to 25. 51 Dong v. Canada (Citizenship and Immigration), 2010 FC 575 (CanLII), paras. 16 and 17. 52 Transcript of RPD Hearing, pp. 22 to 23 and 26 to 27. 53 Exhibit P-3, Appellant's new evidence, p. 6, Appellant's affidavit signed October 22, 2020. 54 Canada (Minister of Citizenship and Immigration) v. Chen, 2004 FC 1403 (CanLII); Zhuravlev v. Canada (MCI), 2000 CanLII 17128 (FC), [2000] F.C.J. 507. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19962 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