TB9-01410

RAD File / Dossier de la SAR : TB9-01410 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 12, 2020 Date de la décision Panel T. Andrews 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 who appeals a decision of the Refugee Protection Division (RPD) dated December 14, 2018, rejecting her refugee claim. [2] The Appellant argues that the RPD was wrong to find that her account lacked credibility. After conducting an independent analysis, I find that the RPD was incorrect to find that she lacked credibility. As such, I will substitute my own decision and the appeal is allowed. BACKGROUND [3] The Appellant alleges that she began to practice Christianity in China to combat the stress and anxiety that she developed because of incidents of violence that she experienced while engaged in temporary work in XXXX XXXX [4] On XXXX XXXX, 2017, she and two other congregants were caught spreading the gospel and the Public Security Bureau (PSB) took them into custody where she remained for two days. She was questioned about what they had been doing, what church she attended and her activities in XXXX and accused of spreading a foreign religion to local Chinese, which she denied. She was released on the condition that she refrain from religious activity and report to them if called on. Knowing she was not free to engage in her faith, she arranged for a smuggler who helped her to travel to Canada. She travelled to the US shortly thereafter using a US visa that was already in her possession. [5] While in the US waiting for the smuggler to make onward travel arrangements, he sexually assaulted her. She had a baby after her arrival in Canada that was the result of the assault. [6] While in Canada, she learned that the PSB had gone to her parents' home to look for her after raiding her church and they left a summons. [7] She fears the PSB will harm her should she return to China because she is Christian and chooses to practice at an underground church. Further, she fears that as an unwed mother with a child born contrary to the family planning policy she will be fined severely and will be unable to pay, thus impacting her child's ability to register for the things he requires. ROLE OF THE REFUGEE APPEAL DIVISION [8] The standard of review is correctness as established in Huruglica1, where the Federal Court of Appeal gives guidance in regard to the role of the Refugee Appeal Division (RAD). ANALYSIS Memorandum of Appeal [9] The determinative issue on appeal is the Appellant's credibility as it relates to her Christian identity. [10] The Appellant argues that the RPD erred in its assessment of her credibility by finding a non-existent omission, by making an implausibility finding regarding PSB action/inaction, by finding her not credible because there was no coercive summons or arrest warrant issued, by impugning her credibility because she lacked documentary evidence of her arrest and based on her safe exit from China using her own passport. She also argues that the RPD was wrong in its assessment of the sur place aspect of her claim and that the RPD was microscopic when it came to assessing her religious knowledge, that it erred in its assessment of the objective documents regarding religious persecution in China, and in its assessment of the risks to her based on a breach of the family planning policy. [11] The Appellant is not relying on any new evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and does not request an oral hearing under subsection 110(6) of the IRPA. [12] There was however an application made by Counsel under Rule 29 requesting that further submissions be allowed pertaining to an argument in the memorandum related to exit from China. I find that this information is relevant, provides new information and these submissions on the revocation of the Jurisprudential Guide could not have been provided sooner as it was only revoked as of June 28, 2019 after the appeal was filed and perfected. The late submissions are therefore allowed. Findings related to Credibility PSB visits [13] I find that the RPD did err by finding that the Appellant omitted details about the PSB visits from her Basis of Claim (BOC). The RPD found that information that the PSB last visited her parents' home on XXXX XXXX, 2018 and had visited them on a total of seven occasions was missing from her narrative. Consequently, the RPD found that the PSB was not in pursuit of the Appellant since her departure and this was an embellishment. [14] The Appellant argues that the RPD erred by identifying a non-existent omission. She submits that the date the PSB last came to her home was contained in her amendment. She suggests that the factual background of the reasons also illustrates that the RPD was not fully grasping the basic facts of the case, because in it the RPD again misstated that the most recent PSB visit was XXXX 2018. [15] I have reviewed the record in its entirety and I agree with the Appellant. Her initial BOC narrative indicates in paragraph 7, that since leaving the summons, the PSB had returned to her parents' home twice. The second paragraph of the amendment2 states the PSB have continued to look for her in China at her family home, most recently on XXXX XXXX, 2018. Hence, the Appellant clearly articulated the date of their last visit and while she did not outline specifically that there were seven visits in total, she did indicate that they continued to visit her family home. I find it was incorrect to make a negative inference as a result. Harm to her family [16] I find that the RPD was also wrong to draw a negative inference regarding the PSB's treatment of the Appellant's family. The RPD drew a negative inference based on the Appellant's family members' ability to carry on their lives without serious consequences in China despite the PSB's interest in the Appellant. [17] The Appellant argues that it was an error to make an implausibility finding and draw a negative inference from the Chinese authorities' failure to impose consequences on her family in China. They submit that this finding is based on conjecture and the RPD failed to abide by the Court's repeated caution against speculating about the mental processes of Chinese authorities. [18] At the hearing the Appellant's testimony was that since her departure, the authorities have not threatened her parents. [19] I find there is merit to the Appellant's arguments. A Response to Information Request (RIR) on that very subject indicates that family members and relatives may be detained and questioned in order to expose practitioners.3 The documentary evidence also provides examples of family members who have been ill-treated and indicates that that some family members may suffer various degrees of mistreatment, not unlike Falun Gong practitioners themselves, including such things as such things as harassment, detentions, loss of employment and expelling children from school.4 However, I find that the information suggests that although this happens sometimes, it is not a standard practice and practices in China are known to vary widely in different locales. I find that it was wrong to draw a negative inference in this circumstance. Exit from China [20] I find that the RPD was wrong in its assessment of the Appellant's exit from China. [21] The RPD considered and applied the Jurisprudential Guide (JG) TB6-11632 in coming to its conclusion. The RPD concluded it was possible that the Appellant would not have been in any database because a summons had not yet been issued to her prior to her departure, but found that given her alleged detention several weeks earlier that the Appellant would have on a balance of probabilities been on their radar. [22] The Appellant argues that the panel erred in finding that she was not credible regarding her exit from China on her own passport. She submits there is no evidentiary or factual basis for the RPD's speculation that the Appellant would have been flagged in the Golden Shield network at the time of her departure and at the time there was no summons for her, so there was nothing that would have prevented her departure. She submits also that it was not clear what qualifies as "on the radar." [23] At the hearing the Appellant testified that she travelled on her own passport. She explained that the smuggler arranged for her ticket; she then met him at the airport on the date of travel and he helped her to get her boarding pass. She testified that she personally showed her passport once at customs in China, but that otherwise the smuggler retained possession of that document. When asked by her counsel if the smuggler had to show her passport to anyone else on her behalf she responded that he did show it to airport staff. She verified that he had to show it when she was boarding and also when he was getting her boarding pass. [24] When asked about whether the snakehead did anything to facilitate her departure through the airport, the Appellant replied that he bribed customs officials and brought her through the VIP line. She testified that she knew he bribed them because she went through customs and simply showed her passport, which they immediately stamped without scanning. She testified that the snakehead also told her that he had bribed officials so she would not get into trouble. [25] I agree with the Appellant's arguments in this regard. The JG is now defunct as it was found to contain errors and is out of date. The Appellant's testimony was that no summons was issued for her prior to her departure and she had the assistance of a smuggler who bribed officials to get her to safety. Furthermore, regarding her previous run-in with the PSB, while the objective evidence5 confirms that Chinese authorities are meticulous in their documentation of offenders during detention and arrest procedures, documents also discuss the arbitrary and uneven enforcement of rules6 and the Appellant was never formally arrested. Rather, she was let go with a warning after denying being a member of the church. As such, I find that it cannot be assumed that being questioned resulted in any entries into the government's system, which would trigger alerts at the airport, particularly as she testified that she was not given any documentation regarding her detention, which suggests a lack of formality. Hence, no negative inference should have been drawn regarding the manner of her departure. Lack of Coercive Summons or Arrest Warrant [26] The RPD made multiple findings about the summons. The findings were that it was reasonable to expect that a coercive summons would have been issued in light of the Appellant's alleged detention, or following her failure to appear when the non-coercive summons was issued and she failed to report. The RPD drew a negative inference from the lack of compulsory or coercive summons as it found that the type of summons issued was inconsistent with the objective documents regarding the provisions of the PSB. [27] I agree with the Appellant with respect to her arguments related to whether a coercive summons should have been left. Article 74 of the Ministry of Public Security (MPS)'s Regulations Concerning the Handling of Criminal Cases by Public Security Authorities indicates that where there is a need to use a coercive summons on a criminal suspect or on someone who has already been issued a summons, but disregarded it for no legitimate reason, the Authorities may serve a coercive summons to bring the subject to a designated location.7 Hence, the issuance of a coercive summons is discretionary. [28] I find the RPD was wrong to draw a negative inference from the type of summons left and in placing little weight on the summons in evidence on this basis. However, while the RPD was wrong in its reasoning for putting little weight on the summons, I find that the RPD was not wrong in its overall conclusion as I find that the summons is in fact fraudulent for other reasons than what was articulated. [29] I have closely examined the summons8 that was before the RPD, which was tendered to show that the Appellant is wanted by the Chinese authorities. The Chinese characters found at the top of the summons on the second line, identify the summons type and match the sample for the public security summons (zhi'an chuanhuan). Thus, I compared the document to the sample. [30] According to the National Documentation Package (NDP) summonses have not varied in format since 2003. Further, the same document indicates that "...such forms are supposed to be used throughout the country and that regional variations are not meant to exist."9 Hence, the summons in evidence should duplicate the sample in terms of its format and structure. [31] I find that the summons in evidence does not align with the sample as it is missing the salutation before the name of the addressee, the Chinese character prior to the number 30 appears on the second line of the main body of text when it should be on the third line, a Chinese character is missing within the bracket in the line above the date of issuance, and the spacing in the bottom three lines is incorrect as it is single-spaced, whereas it is double-spaced in the sample. [32] Such differences are not meant to exist and In Jiang10, Justice Crampton found that small differences can be telling: In my view, it may very well be reasonably open to the RAD or another decision maker to question the authenticity of a document based on very small or even microscopic differences between the document and an authentic counterpart. It is in the small or microscopic details where a forgery may well be exposed. [33] I find on a balance of probabilities, that the copy of the summons submitted is fraudulent and that the Appellant was not wanted nor is she being investigated by the PSB or authorities in China for being a member of a Christian house church as alleged. [34] Despite this fraudulent summons, I find that the Appellant has a residual profile and a valid sur place claim and I find it unnecessary to deal with the argument on lack of corroboration of her detention as it would not change the outcome of the appeal. Christian identity [35] I find that the RPD was wrong in its evaluation of the Appellant's Christian identity. The RPD considered the allegations of what happened in China which it disbelieved, as it went toward the Appellant's overall credibility. The RPD found that the letters, photographs and baptismal certificate did not attest to the genuineness of the Appellant's practice and found that while she responded correctly to one question, her responses to other questions were either incorrect or lacking in detail. As such, the RPD found the Appellant was not a genuine practitioner. [36] The Appellant argues that the RPD erred in its assessment of the sur place aspect of the claim because this finding was based on the previous credibility findings, which cannot be sustained. She also submits that the RPD focused microscopically on things she did not know and ignored her credible testimony about her faith, which was particularly unreasonable given she had been practicing for a short period, the majority of which took place in China where restricted. She submits that the federal court imposes a low standard on claimants to demonstrate religious knowledge and the RPD erred by weighing her testimony against its own idea of what a person in her circumstances should know or understand. [37] The Appellant testified at the hearing about what led her to practice Christianity, about Baptism, about the concept of original sin and about the Holy Trinity in response to the member's questions. The Appellant then explained the significance of Holy communion and what the bread and wine represent when responding to Counsel's questions. [38] While the RPD specifies that the Appellant's responses to all the questions aside from one were incorrect or lacking in detail, I note that the RPD did not specify what answers it was looking for or what was incorrect about the answers provided. In my review, I did not see that the answers were particularly wrong given the short period of time the Appellant has practiced and studied freely. [39] The Member pointed out that the Appellant could not provide another name for communion. The Appellant's response echoed the member's question as she indicated she knew it as holy communion. However, I find that given the sheer number of denominations that exist in Christianity, all of which emphasize different things, it was not reasonable to expect perfect knowledge, and I note that while she did not know the alternative name, she was able to describe the significance of communion and what it stands for. The member also points out that the Appellant did not understand the question, what happens upon the return of Christ? The Appellant did provide an answer; that souls would go to God in heaven, which is perhaps not fulsome, but is not entirely inaccurate. [40] I find that part of the problem may have been that some questions posed were too broad and/or perhaps too academic, which makes it is difficult to say that the Appellant's answers were wrong. For example, the member asked what is the main belief of Christianity? The Appellant responded that God loves all people, we have to love ourselves, love our enemies and try our very best to love God. Again, while perhaps not the answer that the Member was looking for, this answer was not wrong as the question could have been interpreted in several ways. Another question posed was how many types of sin are there? The Appellant answered to the best of her ability and drew upon the concept of original sin to reply demonstrating something that she did know. [41] While she has been through Baptism, I find that this does not mean she knows everything. In my view it may have been more fair to ask about what things the Appellant had learned/what was meaningful to her and why, which would have given her the opportunity to answer more broadly. I agree that it did appear that the Member had a preconceived notion of what a Christian would know and what would have been taught to her in her limited timeframe in the faith. In any event, I find that the answers that were provided to the questions were not incorrect or not so wrong that one could conclude that she was not genuine in her practice. I find, on a balance of probabilities, that she is a genuine Christian in Canada. [42] The Appellant also furnished a certificate of baptism related to her practice of Christianity in Canada, a letter from the Reverend of her church and photographs of her engaged in Church activities in support of her claim11, which I have no reason to question. [43] The refugee claim analysis is forward-looking. Even if the Appellant is not a person of interest to the PSB presently, given she is not a practicing Christian, I must look at whether her religious beliefs would be permitted in China and if she could worship freely upon return. Objective Basis for the claim [44] The Appellant argues that the RPD erred in its assessment of religious persecution in China and that its conclusion about low risk in Guangdong was not based on any evidentiary source as none were cited. They submit that the RPD failed to disclose documents it relied on in coming to this determination and relied on two outdated documents despite recent developments re: treatment of Christians in China. [45] I have conducted my own independent assessment and I must assess the objective basis for the Appellant's fear of persecution as a Christian who prefers to worship at a house church. [46] I have reviewed the National Documentation Package dated December 20, 2019 with reference to the situation for Christians/Protestants in China. I find that the older documentation within that package (pre-2017) suggests that in the past, the majority of both registered and non-registered Protestant groups were able to live and practice their faith in China in small groups without significant problems. There were only sporadic incidents of harassment and orders to disband, hence the risk to individual church members was low. [47] However, I find that there has been a significant change in the situation based on the government's introduction of revisions to the Regulations on Religious Affairs in late 2017 that were implemented in February, 201812 and I place greater weight on these recent documents. [48] President Xi Jinping has continued to consolidate power. The presidential term was abolished in 201813 and the Chinese Communist Party (CCP) has tightened controls over state bureaucracy, the media, online speech, religious groups, universities, businesses and civil society associations.14 [49] Regarding religion, the revised Regulations/ "the new legal mechanisms have codified previously informal restrictions"15 and the grey areas, which allowed for the operation of unofficial Protestant and Catholic congregations are no longer. These regulations require religious groups to register and only those who are registered can legally hold worship services, possess property, publish approved materials and collect donations.16 Groups outside of those that are formally recognized are required to ask for permission to do anything related to their faith and permission is unlikely to be forthcoming without significant interference from the authorities. [50] According to the Director of the Center for Studies on Religions (CESNUR), the government has made it known that the aim of the new regulations is to eliminate independent house churches altogether, compelling them to become part of the Three Self- Patriotic Movement17 (TSPM); the government-appointed organization that manages registered Protestants. [51] Consequently, since the implementation of the revised regulations there has been an increased level of government-sanctioned persecution against religious minority groups. Protestants are among the religious minorities along with Uighur and other Muslims and Tibetan Buddhists, that consistently report incidents of torture, physical abuse, arbitrary arrest, detention, harassment for activities related to their religious beliefs.18 The use of violence against this community has risen.19 In fact, Freedom House researchers and academics have actually designated Protestants as high risk on the spectrum for religious persecution in the country.20 There are numerous reports of authorities across the country forcing shut downs, demolishing churches/religious sites, forcing persons to renounce their faith, banning holiday celebrations and employing lethal violence.21 [52] The crackdowns even extend to registered groups and the way that they practice is being fundamentally altered to accord with the nation-wide campaign to Sinicize religion.22 Sinicization of Christianity means to change "Christianity in China" into "Chinese Christianity," emphasizing that "the heart and soul of Christianity's Sinicization is to Sinicize the Christian theology," and even proposing to "re-translate the Bible or re-write biblical commentaries." The outline also advocates for "incorporating Chinese features into church worship services, hymns and songs, clergy's attire, and the architectural style of church buildings."23 [53] There are references to some churches being required to install surveillance devices, attendees being required to sing the national anthem prior to worship service, having the content of the church sermon dictated to them by the governing powers, manipulation of religious doctrine according to party priorities such as removing the first commandment, having their religious leaders vetted and having to replace crosses and pictures of Jesus with images of the President instead. [54] The Appellant was residing in Guangdong, which had traditionally been more liberal in its treatment of unregistered churches.24 However, things have evolved. Being a member of an unregistered church is ultimately illegal as reiterated in the new regulations, those who participate in unsanctioned religious activities are subject to criminal and administrative penalties25 and it appears that many local authorities under advisement from Beijing are applying these penalties more readily than in the past. [55] Repression of religious activities has increased nationwide, incidents in Guangdong are occurring,26 and I note that Guangdong is listed as a province where religious persecution is now high according to a 2017 Freedom House Special report.27 Where previously some Christian groups were able to get by based on positive relationships and the good will of local authorities,28 given that in 2018 jurisdiction over religious affairs was transferred to an organ of the CCP,29 the government is even more directly involved in the daily operations of religious groups now. And, while some groups may survive- "this precarious survival should not be confused with enjoying genuine religious liberty."30 [56] I find that given all of the above information that the Appellant would not be able to practice her Christian faith freely given the strict oversight of religious practices and, that there is a serious possibility of persecution if she returned to China. STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE [57] I find that there is no state protection nor is there a viable internal flight alternative given that the state is the agent of persecution and there is a serious possibility of persecution throughout the country. [58] Further, I find it unnecessary to deal with the Appellant's argument related to the error in the RPD's assessment of the family planning policy given that I have found the Appellant to be a genuine Christian in Canada who could not practice freely in China. CONCLUSION [59] Based on the above analysis, I find that the RPD's decision cannot be upheld given the errors made. I find that the Appellant is a Convention refugee as she has established that she has a well-founded fear of persecution in China and would face a serious possibility of persecution if she were to return. [60] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee (signed) "T. Andrews" T. Andrews June 12, 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, at paras 70, 103. 2 Exhibit RPD-1, RPD Record, Exhibit 4, page 54. 3 National Documentation Package (NDP) for China (20 December 2019), Item 12.22. Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR). CHN104580.E. 18 October 2013. 4 Ibid., Items 12.22 and 1.7. Country Policy and Information Note. China: Falun Gong. Version 1.0. United Kingdom. Home Office. November 2016. 5 National Documentation Package (NDP) for China (20 December 2019), Item 12.8. IRB, RIR. CHN105283.E. 23 September 2015. 6 National Documentation Package (NDP) for China (20 December 2019), Items 9.3, IRB, RIR. CHN105217.E. November 2015., and 10.5. IRB, RIR. CHN104967.E. 10 October 2014. 7 National Documentation Package (NDP) for China (20 December 2019), Item 9.3. 8 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 90-91. 9 National Documentation Package (NDP for China (20 December 2019), item 9.10. IRB, RIR. CHN104458.E. 18 October 2013. 10 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064 (CanLII). 11 Exhibit RPD-1, RPD Record, Exhibit 5, pages 92-94. 12 NDP for China (20 December 2019), Items 2.2. Amnesty International. 22 February 2018., 2.7, Freedom House. 2019., 12.1. United States. Department of State. 21 June 2019., item 12.2. United States. Commission on International Religious Freedom. April 2019., Item 12.3.ChinaAid Association. 28 February 2019., item 12.4. IRB, RIR. CHN106166.E. 27 September 2018., item 12.14. Council on Foreign Relations. April 2018., and item 12.28. IRB, RIR. CHN106374.E. 22 October 2019. 13 Ibid., Item 2.7. 14 Ibid., Item 2.7. 15 Ibid., Item 12.5. Freedom House. February 2017. 16 Ibid., Item 12.1. 17 Ibid., Item 12.28. 18 Ibid., Item 12.1. 19 Ibid., Item 12.3. 20 Ibid., Item 12.5 21 Ibid., Items 12.1-12.3, and 12.5. 22 Ibid., Items 2.3, and 12.1-12.3. 23 Ibid., Item 12.3, at p. 27. 24 Ibid., Items 12.4 and 12.5. 25 Ibid., Item 12.1. 26 Ibid., Items 1.8, 2.9, 12.1, 12.2 and 12.3. 27 Ibid., Item 12.5 28 Ibid., Item 12.5. 29 Ibid., Item 12.1. 30 Ibid., Item 12.28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01410 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