TB9-08583

RAD File / Dossier de la SAR : TB9-08583 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 April 15, 2021 Date de la décision Panel Devika Ratnayake Tribunal Counsel for the person who is the subject of the appeal Leonard H. Borenstein 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. Her claim for refugee protection, based on her practice of Christianity in an underground/house church, was rejected by the Refugee Protection Division (RPD). The Appellant argues that the RPD erred in assessing the risk associated with her Christian identity and by giving her supporting documentation no weight. She asks the Refugee Appeal Division (RAD) to allow her appeal and substitute a positive decision or return her claim to the RPD for redetermination. DETERMINATION [2] The appeal is allowed. I set aside the RPD's determination and substitute my own decision that the Appellant is a Convention refugee. BACKGROUND [3] The details of the Appellant's claim are outlined in her Basis of Claim (BOC) narrative.1 In essence, she claims fear of persecution from the Chinese authorities due to her religion. After divorcing her husband who had a gambling problem, her aunt introduced her to Christianity in January 2017. She started attending a house church on Sundays comprised of approximately seventeen congregants. [4] On June 4, 2017, the Public Security Bureau (PSB) raided the house church while she was in attendance. Although no arrests were made, the officers documented the identification of all the congregants and ordered them to stop the meeting. The house church adhered by suspending the meetings temporarily. After the house church that the Appellant attended had stopped meeting, fearing she would be unable to practice Christianity, using her own passport, but with a fraudulently obtained Canadian Temporary Resident Visa (TRV), the Appellant traveled to Canada on XXXX XXXX, 2017. [5] The Appellant did not immediately make a refugee claim because she was conflicted about being separated from her children who still remain in China. The Appellant had hoped that the situation in China would change and the house church would resume. However, on January 23, 2018, the Appellant's daughter informed the Appellant that the house church in China had resumed but was raided by the PSB on January 21, 2018 and that two members had been arrested. The Appellant made an inland claim for refugee protection in February 2018. ANALYSIS [6] My role is to look at all of the evidence and decide if the RPD made the correct decision.2 The Public Service Bureau's interest in the Appellant [7] The RPD accepted the Appellant's profile as a Pentecostal Christian and did not dispute her testimony that, prior to departing China, the PSB raided the house church while she was in attendance. However, the RPD found that it was unlikely that the PSB went looking for her seven months after the initial church raid or twice thereafter, after being told that the Appellant had left the country. The RPD noted that no arrest warrant was issued or other documents indicating that the PSB was interested in the Appellant. [8] The RPD found that, since the Appellant was not part of the congregants during the PSB's second raid in January 2018, where the PSB arrested two members of the house church, there was insufficient credible evidence that the PSB would be interested in the Appellant upon her return to China. The RPD concluded that, since the Appellant was not wanted by the PSB when she left China, it is not credible that she is currently wanted by the PSB. [9] The Appellant submits that there is no evidentiary basis for the RPD's finding that the PSB is not currently interested in her merely based on the PSB's lack of interest in her when she left China. Further, she argues that, since the RPD seemingly accepted her testimony at the hearing, it is not implausible or "outside the realm of what could reasonably be expected"3 that she is wanted by the PSB. [10] Based on my review of the Appeal Record, the RPD's implausibility finding was based on the following: the absence of an arrest warrant having been issued; the passage of seven months between the PSB recording the Appellant's identification when they raided the house church and the PSB's visit to the Appellant's home; and the Appellant's absence during the PSB's second raid of the house church. However, the RPD does not explain why these factors make it implausible that the PSB is currently looking for the Appellant. [11] Regarding the RPD's reliance on the absence of an arrest warrant, I note that the Federal Court has cautioned decision-makers against "drawing adverse credibility inferences on the basis of expectations about what Chinese authorities are likely to do, or an assumption that law enforcement practices will be consistently uniform."4 While the lack of a warrant or summons can be a consideration in assessing whether the Appellant is wanted by the Chinese authorities, given that the issuance of a summons or a warrant is not mandatory or uniformly carried out across China,5 the mere absence of a warrant cannot be conclusive that the PSB is not interested in the Appellant. [12] Moreover, in this case, the Appellant submitted corroborating documents which the RPD appears to have overlooked. A letter submitted by the Appellant's parents corroborate that the PSB raided the Appellant's former house church on January 21, 2018; arrested two of its members who are still in detention without being given access to family members; the Appellant's aunt went into hiding after that raid; and that the PSB had been to the Appellant's house looking for the Appellant thrice, in January, May and November 2018.6 The Appellant also submitted another letter from the husband of one of the house church members that was arrested by the PSB in the January 2018 raid. It indicates that, as at the time of the writing of the letter in January 2019, his wife remained in detention, and the husband had been denied visits.7 There is nothing on the face of the documents that bring its authenticity into question, and they were accompanied by the authors' resident identification cards (RICs). I find these documents, which the RPD did not reference, corroborate the Appellant's testimony that the PSB is interested in her. [13] Further, objective documentary evidence in the Response to Information Request (RIR) prepared by the Immigration and Refugee Board of Canada (IRB) in the National Documentation Package (NDP) indicates that Chinese authorities harass, arrest and detain adherents of both registered and unregistered religious groups for activities related to their religious beliefs and practices.8 It also indicates that China is home to one of the largest populations of religious prisoners, likely numbering in the tens of thousands.9 Instances of arbitrary detentions and violence carried out with impunity have led the U.S. State Department to designate China as a country of particular concern over religious freedom annually since 1999.10 [14] Considering the foregoing, the Federal Court's direction in Valtchev that plausibility findings should be made in the clearest of cases,11 and the RPD's failure to clearly explain why the PSB's current interest in the Appellant is implausible or "outside the realm of what could reasonably be expected", the RPD's finding is unsustainable. [15] Further, based on my independent assessment, the Appellant's evidence was consistent, detailed and supported by corroborating evidence. In such circumstance, the presumption of truthfulness must apply to the Appellant's testimony that the PSB is interested in her and had gone looking for her at her home in connection with her participation in the house church. The Appellant's Profile as a Pentecostal Christian [16] The RPD accepted as credible that the Appellant is a practising Pentecostal Christian, who was baptised in Canada and is a member of the Living Stone Assembly Church in Scarborough, Ontario where she has been worshiping since November 2017. However, the RPD found that the Appellant's fear was not objectively well founded. It noted that, as a "'regular" protestant, by which the RPD presumably meant that it was not designated as a "cult" in China, the Appellant could worship in her Christian faith in China without attracting the interest of the authorities. [17] The Appellant's arguments in this regard are unclear and unhelpful. It appears the Appellant's argument is that the RPD failed to consider that a Pentecostal house church is not one of the five official government patriotic religious associations and therefore ignored evidence that members of such a church are vulnerable to coercive and punitive action.12 My review of the documentary evidence does not support the Appellant's contention that Pentecostal house churches per se are particularly prone to "vulnerable or coercive punitive actions" by the authorities. [18] However, after independently assessing the objective evidence, including in the province of Hebei which is where the Appellant is from, I find that the Appellant would face more than a mere possibility of persecution as a practising Pentecostal Christian if she returned to China. [19] In finding that the Appellant could practise her faith in China without persecution, the RPD did not adequately address the Appellant's testimony that the reason she did not wish to attend a state-sanctioned church is because of her belief that it is beholden to government, whereas the underground or house church places God first. The Appellant testified that, while house churches spread the gospel of Jesus Christ, the state-sanctioned churches had government as their idol. [20] The RPD erred in finding that the Appellant was incorrect about the differences between state-sanctioned churches and house churches. While it is true that registered churches do not require members to pledge loyalty to the Chinese Community Party (CCP) or that there is no policy to place the Communist Party above their God or Gods in their religious life, the RPD overlooked evidence which indicate that China's state-controlled Protestant church continued to interfere in internal church doctrine and to co-opt registered religious communities to meet Party goals and impose a Community Party-defined theology13 as a result of which "many chose to go underground to avoid the infiltration of state propaganda, the possibility of an ideological clash, and to preserve their own authentic faiths and beliefs."14 [21] More pertinently, the documentary evidence indicates that, while there are no differences between the doctrines taught in both registered and unregistered churches in China, "Pentecostalism, with its exuberant embrace of the of the [sic] 'gifts of the spirit,' is found everywhere in unregistered churches and almost never in registered ones."15 As such, even if the Appellant was unopposed to attending a state-sanctioned church, it is likely that she would not be able to practise her Pentecostal faith outside of the underground or house church. The Federal Court has remarked that persecution of the practice of religion can include the prohibition of worshiping in private and that the concept of religious practice should not be unduly limited by confining it to prayer and Bible study.16 [22] The Chinese authorities' targeting of underground/house churches is well documented. A UK Home Office report indicates that 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 in 2014.17 In addition, the 2017 Report on Religious Freedom indicate that religious affairs officials and security organs scrutinized and restricted the religious activities of registered and unregistered religious groups, including assembling for religious worship, expressing religious beliefs in public and in private.18 Further, the U.S. Religious Freedom Report for 2018, states that authorities continued to arrest Christians and enforce limitations on their activities, including surveillance and compelling them to sign documents renouncing their Christian faith and membership in the church.19 Other forms of government coercion over unregistered churches include pressure on landlords to terminate property leases with unregistered churches and the prohibition of weekend religious education programs in numerous cities.20 [23] As the RPD correctly pointed out, the evidence of the treatment of house Christians is mixed. The government's efforts to tighten control over unregistered churches varies across regions and within regions. In some areas, members of unregistered churches reported more freedom to conduct religious services, as long as they gathered in private and kept congregation numbers low. In other areas, authorities have shut down churches that maintained a low profile. [24] The variations in the local implementation of regulations mean that, in some parts of the country, local authorities tacitly approved or did not interfere with the activities of some unregistered groups. Amongst a number of factors, the size of the gathering is one factor that influences the treatment of house churches and their members. Gatherings of 20 to 30 people is considered a larger and more organized group that would attract the attention of the government authorities to become less tolerant.21 The Appellant's testimony was that her house church consisted of seventeen people, which brings it nearer to the threshold number attracting the scrutiny of the authorities. As such, there is a sufficient objective basis for the Appellant's claim of subjective fear. State Protection and Internal Flight Alternative [25] In terms of state protection, while I note that sources state that regulations concerning religion vary by province, objective documentary evidence indicates that religious persecution exist throughout China. Thus, regardless of where the Appellant returns to, there is more than a mere possibility that she would face persecution from the Chinese authorities if she continued to practice her Christian Pentecostal faith. In addition, having found that it is plausible that the PSB is interested in the Appellant, I find that there would be no state protection for the Appellant. As the authorities have control throughout China, I further find that the Appellant has no viable internal flight alternative in China. CONCLUSION [26] The appeal is allowed. I set aside the RPD's determination and substitute my own decision that the Appellant is a Convention refugee. (signed) Devika Ratnayake Devika Ratnayake April 15, 2021 Date 1 Exhibit RPD-1, RPD Record, at pp. 21-26. 2 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. 3 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001, 2001 FCT 776. 4 Xu, Wenhan v. M.C.I. (F.C., no. IMM-9837-12), Annis, August 30, 2013, 2013 FC 924, at para 14, citing Weng v. Canada (MCI), (25 October 2012), Ottawa IMM-1536-12 (FC), at para 6. 5 Article 81 of the Criminal Procedure Law and the 2012 MPS Regulations Concerning the Handling of Administrative Cases by Public Security Authorities states that summons, notices and other court documents "may" be received by a family member if he or she is absent. The MPS Regulations also state that where a person needs to be investigated, they "may" be served with a summons. 6 Exhibit RPD-1, RPD Record, at p. 192. 7 Exhibit RPD-1, RPD Record, at p. 199. 8 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; see also NDP for China (October 31, 2018), item 12.6, IRB, RIR CHN104966.E, "Treatment of 'ordinary' Christian house church members by the PSB, including treatment of children of house church members...", October 10, 2014, at pp. 4 and 9. 9 NDP for China (December 21, 2018), item 12.14, Council on Foreign Relations, "Backgrounder: Religion in China", October 11, 2018, at p. 3 10 Ibid. 11 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001, 2001 FCT 776, at para. 7. 12 Exhibit P-2, Appellant's Record, at p. 15. 13 NDP for China (October 31, 2018), item 12.24, IRB, RIR CHN103254.E, "Doctrinal and denominational differences between registered and unregistered Protestant churches; whether members who practice in registered Protestant churches must pledge loyalty to the Chinese Communist Party (CCP)", October 27, 2009. 14 Ibid., at p. 2. 15 Ibid., at p. 1. 16 Fosu, Monsieur Kwaku v. M.E.I. (F.C.T.D., no. A-35-93), Denault, November 16, 1994; [1994] 90 F.T.R. 182; Irripugge, Hirosh Nalin v. M.C.I. (F.C.T.D., no. IMM-2784-98), Sharlow, January 10, 2000; [2000] F.C.J. No. 29; and Golesorkhi, Ali Reza v. M.C.I. (F.C., no. IMM-3617-07), Phelan, April 18, 2008, 2008 FC 511. 17 NDP for China (October 31, 2018), item 1.8, UK Home Office, "Country Information and Guidance, China: Christians, Version 2.0", March 2016, at 6.1.7. 18 NDP for China (October 31, 2018), item 12.1, United States Department of State, "China (includes Tibet, Hong Kong, and Macau), International Religious Freedom Report for 2017", May 29, 2018, at p. 9. 19 NDP for China (October 31, 2018), item 12.1 (ibid.), at p. 24. 20 NDP for China (October 31, 2018), item 12.1 (ibid.), at p. 23. 21 NDP for China (October 31, 2018), item 12.6, IRB, RIR CHN104966.E, at p. 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-08583 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