TB8-15198

RAD File / Dossier de la SAR : TB8-15198 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de 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 March 3, 2021 Date de la décision Panel Karen Wallace Tribunal Counsel for the person who is the subject of the appeal Elyse Korman 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] XXXX XXXX (the Appellant) is a citizen of China. He fears persecution in China based on his religious identity as a Catholic. [2] The Refugee Protection Division (RPD) rejected the Appellant's claim for refugee protection. The RPD identified a credibility concern regarding the Appellant's ability to leave China using his own passport despite allegedly being wanted by the Public Security Bureau (PSB). [3] However, the main reason the RPD rejected the claim is because they determined that there are many congregations the Appellant could attend without attracting the interest of authorities if he chooses to worship upon his return to China. As a result, the RPD concluded that there is no well-founded fear of persecution. [4] The Appellant argues that the RPD erred in making a negative credibility inference based on the Appellant's ability to leave China using his own passport and erred in its assessment of the supporting documents. The Appellant also argues that the RPD erred in concluding that the Appellant could return to China and practice his religion without facing a serious possibility of persecution. [5] This is the Appellant's second appeal to the Refugee Appeal Division (RAD). The RAD dismissed the Appellant's first appeal in August 2020. The Appellant brought an application to the Federal Court for judicial review of the RAD decision. The application for judicial review was granted on consent and the appeal was remitted to the RAD for a re-determination. [6] New evidence has been submitted in the Appellant's Supplementary Appeal Record. An oral hearing is requested if it is determined that the new evidence raises a serious issue with the Appellant's credibility. [7] The determinative issue in this appeal is the well-founded fear of persecution. DECISION [8] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. NEW EVIDENCE The evidence presented by the Appellant is accepted [9] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.2 [11] The evidence submitted in this re-determination is an affidavit from a fellow Catholic practitioner at the Appellant's church, copies of the Appellant's Knights of Columbus Membership cards, and numerous news articles about the increase in the persecution of Catholics in China.3 [12] The evidence is accepted because it meets the requirements of the law, as well as the requirements of Rule 29(4) of the Refugee Appeal Division Rules. [13] The incidents and issues reported in the documents arose after the RPD decision. The evidence is new, and it is relevant to the sur place aspect of the claim since it provides further detail about the Appellant's religious activity in Canada. The news articles about the current country conditions are relevant to the analysis of the well-founded fear of persecution. The evidence is from credible and independent sources. [14] The requirements to permit an oral hearing4 before the RAD have not been met. The new evidence does not raise a serious issue with the Appellant's credibility. ANALYSIS [15] My role is to look at all the evidence and decide if the RPD made the correct decision.5 I have conducted my own independent analysis of the evidence. This included listening to the recording of the hearing and reviewing all the documents submitted. [16] Despite the RPD's credibility concern related to the Appellant's ability to exit China using his own passport, the RPD ultimately determined that the Appellant is a practising Catholic. I agree with that determination, particularly based on the Appellant's religious activity in Canada. Therefore, it is not necessary for me to address the credibility concern. It is possible to have credibility concerns with the alleged issues that arose in China, yet still find that the Appellant's religious identity is credible. [17] The Appellant's testimony is presumed to be truthful. There is a concern with an inconsistency in the Appellant's evidence regarding whether the PSB told him he had to report to them weekly after his release from detention.6 However, when considering the totality of evidence, this one inconsistency is not a sufficient basis to rebut the presumption of truthfulness for all of his testimony. The Appellant is a genuine Catholic [18] I find that the Appellant is a genuine practicing Catholic for the reasons set out below. [19] The Appellant's religious practice in China was limited in duration. He began his practice in XXXX 2016 to cope with his depression following the death of his fiancée. XXXX months later, in XXXX 2016, the PSB allegedly raided the underground house church he attended. He left China and came to Canada by the end of XXXX 2016. [20] The Appellant provided detailed and consistent answers to the questions he was asked at the RPD hearing about his attendance at the house church in China, such as where he attended, how often he attended and what occurred at a typical service. He also described the differences between a state sanctioned church and his house church.7 [21] The Appellant also testified about the details of his practice in Canada, including the classes he was required to take before he could be baptised in Canada. He found his church in Canada through his brother who is also Catholic. He described the purpose of confirmation and some religious doctrines.8 [22] The RPD Member stated at the hearing that there were no concerns with the Appellant's religious identity. In their written decision, they find that the Appellant is currently a practicing Catholic. [23] I agree with the RPD's conclusion that the Appellant is a practicing Catholic. The Appellant's description of his religious practice is one factor that indicates that his practice is genuine. The Appellant's religious activity in Canada [24] The Appellant has continued his Catholic religious practice in Canada. He began attending a Catholic church within days of his arrival. He attends the XXXX XXXX XXXX XXXX in Toronto. A XXXX 2016 letter from his XXXX states that he joined the church in XXXX 2016, and he attends Sunday Mass regularly.9 A second letter from his XXXX in XXXX 201810 confirms his ongoing attendance every Sunday and his baptism. [25] The Appellant presented his baptism certificate11 to show that he was baptised in Canada in XXXX of 2017. He also provided photographs of him attending church activities.12 [26] A XXXX 2021 affidavit from a member of the Appellant's Catholic church confirms the Appellant's continued regular attendance at Sunday Mass, his membership in the church's XXXX XXXX XXXX, and his active participation in many church activities. [27] The Appellant's baptism in Canada and his regular attendance and active involvement at church for over four years are additional factors that indicate that he has a genuine practice. The Knights of Columbus membership [28] The Appellant provided copies of his membership cards for the XXXX XXXX XXXX (the XXXX), which is an organization for Catholic men. The membership cards show ongoing membership from 2016 to 2020 and advancement from 1st degree membership to 4th degree. The most recent membership card from XXXX 2020, shows that the Appellant is a 4th degree member. According to the XXXX website,13 the 4th degree is the highest degree, and its purpose is to encourage active Catholic citizenship. Fewer than 20% of Knights join the 4th degree. [29] The Appellant's ongoing and active membership with the Knights is another factor which indicates that he is a genuine Catholic. [30] There is no evidence that the Appellant's religious activity in Canada has come to the attention of the authorities in China. However, since I have determined that he is a genuine Catholic, the risk of persecution if he returns to China must be assessed on a forward-facing basis. Well-founded fear of persecution [31] The RPD determined that the Appellant could continue to practice his religion in China because there are many congregations the Appellant could attend without attracting the interest of the authorities. Due to this, the RPD found that there is no well-founded fear of persecution. I disagree. [32] I agree with the Appellant that the RPD erred in assessing the forward-facing risk to the Appellant of religious persecution in China. They failed to fully account for current country conditions in China, as well as applicable legal principles regarding religious freedom. [33] The RPD's analysis suggests that, as long as the Appellant keeps a low profile, does not draw attention to himself, and carefully chooses which church he belongs to, he will not be at risk. This analysis fails to fully account for the concept of religious freedom. [34] Religious persecution is interpreted broadly. Persecution involves much more than just arrest and detention. It can take many forms, such as prohibition on worshipping in public or private, or serious discriminatory polices based on religion. Religious freedom includes the right to practice openly in public and choose your own place of worship. The Chinese government's religious policies do not allow the Appellant to practice as he chooses. [35] It is an error to determine that the Appellant can practice his religion in China without risk as long as he only attends certain churches and ensures that he does not call any attention to himself by limiting his participation in any religious activities that may come to the attention of the authorities. [36] The Appellant testified that state sanctioned churches expect citizens to worship China's Communist Party over God and that they support abortion. His Catholic faith does not support this. He feels unable to practice at a state sanctioned church.14 [37] Therefore, it must be determined whether there is an objective basis to conclude that the Appellant will face more than a mere possibility of persecution if he returns to China and continues to practice in an underground church. [38] It is important to distinguish between registered and unregistered religious groups in China when assessing the risk of persecution. The practice of Christianity must take place in state approved and monitored churches. Underground "house churches" are prohibited.15 [39] Religious groups in China must register with the government. Registration requirements are very restrictive, which serves to limit the growth of religious groups and the right to freedom of religion, assembly, and association. Each group's activities, leaders and theologies are regulated and controlled. Religious groups must belong to one of the five government sanctioned patriotic religious associations (Buddhist, Taoist, Muslim, Roman Catholic, and Protestant) to register with the government and legally hold worship services.16 [40] Due to this regulation and control, many religious groups practice in underground or house churches. Even if a person practices one of the five sanctioned religions, they can still face persecution if they do not practice within a state sanctioned facility. The National Documentation Package (NDP) for China reports numerous incidents of citizens being persecuted (including arrests and detentions) for practising one of the five sanctioned religions if they have done so outside of a registered state sanctioned facility. Increasing religious persecution in China [41] It is well established that the state controls religious activity in China and restrictions on religious freedom are widespread. Recent objective documentation in the NDP reports that there has been a shift in China's approach to religion, which has led to an increase in religious persecution in China. [42] The RPD's analysis failed to account for the increase in religious persecution of all house churches in China since 2018. The RPD did not acknowledge that there are new regulations on religious affairs. Due to these regulations, I disagree with the RPD's determination that the Appellant is not at serious risk of persecution in China. [43] In 2017, the Chinese Communist Party (CCP) coronated a new President and updated the Religious Affairs Regulations, which came into effect in February 2018.17 The new regulations expand the role of government in the management of religion from previously specified levels to nearly all levels of government. They also added new sections about regulation of "temporary venues for religious activities" to bring house churches under the government's control.18 [44] The new regulations provide labels for all religions, whether they are authorized or unauthorized religions. Many forms of religion have been labelled as separatism. Christianity and Catholicism have been labelled as infiltration. The China Aid 2017 Annual Report states that the content of the new Regulations establishes that the CCP intends to gain complete control over authorized religion and tame it; and dismantle unauthorized religion or destroy it, if it cannot be controlled.19 [45] This increase in regulation and control has led to oversight of online discussions, installation of surveillance cameras in churches, collection of data on house churches and their members, increased interrogations and fines of religious practitioners, demolition of churches and religious symbols, restrictions on the establishment and operation of religious schools and on the printing of bibles.20 [46] The news articles the Appellant provided in his Supplementary Appeal Record provide numerous examples of the increased persecution of Catholics throughout China, including Fujian province where the Appellant lived. Unregistered Catholic churches are being raided and shut down or demolished. Clergy and practitioners are being arrested and detained. [47] The increased regulation of religion increases the risk of persecution of the Appellant. Despite the new regulations, the RPD determined that there is little risk to the Appellant as long as he does not attract the interest of the authorities. Yet, if the Appellant must conduct his religious practice in hiding, and under constant fear of being caught, he does not have religious freedom and he is not free of persecution. [48] The Appellant testified about his subjective fear of being arrested by the PSB based on his religion. Due to the Chinese government's increased regulation and control of religion, there is an objective basis to the Appellant's fear of persecution. [49] Since the Appellant testified that he cannot practice in a state sanctioned church, there is more than a mere possibility of persecution if he returns to China and continues his practice in an unlawful underground church. [50] There is no state protection or Internal Flight Alternative for the Appellant in China. The state is the agent of persecution. CONCLUSION [51] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Karen Wallace Karen Wallace March 3, 2021 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza 2007 FC 385. 3 Exhibit P-3, Rule 29, January 19, 2021. 4 IRPA, S.C. 2001, c. 27, as amended, subsection 110(6). 5Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 See RAD Decision TB8-15198, James Sloan, August 7, 2020, endnote 1, where the details of this inconsistency are noted. 7 RPD Hearing Recording, May 15, 2018, at time 0:26:45 to 0:33:50. 8 RPD Hearing Recording, May 15, 2018, at time 0:34:00 to 0:38:45. 9 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 114. 10 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 120. 11 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 121. 12 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 123-124. 13 www.kofc.org 14 RPD Hearing Recording, May 15, 2018, at time 0:33:30. 15 National Documentation Package (NDP) for China (March 29, 2019), item 12.1, United States. Department of State, May 29, 2018. 16 NDP for China (March 29, 2019), item 2.9, Austrian Red Cross. Austrian Centre for Country of Origin and Asylum Research and Documentation, March 2014 at pp. 165-180. 17 NDP for China (March 29, 2019), item 12.3, ChinaAid Association, February 1, 2018. 18 Ibid., p. 6. 19 Ibid. 20 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-15198 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