TC0-02795

RAD File / Dossier de la SAR : TC0-02795 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 December 14, 2020 Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Stacey Margaret Duong 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 appeals a decision of the Refugee Protection Division (RPD), dated December 31, 2019, rejecting his claim for refugee protection. The Appellant alleges he faces persecution as a Protestant. The RPD found that the Appellant had not established there was an objective basis for his fear of persecution. [2] I agree with the Appellant that the RPD erred in its assessment of his forward-looking risk. For the reasons that follow, the appeal is granted, and I substitute a determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleges that he was introduced to the Christian faith when he was in Canada as a temporary foreign worker. He alleges that he attended a church in Canada as he missed his wife and child who remained in China. The Appellant alleges that after he returned to China, his uncle was killed in a car accident. The Appellant alleges that after his uncle's death, he began to suffer from depression and his friend introduced him to his Protestant house church in China. The Appellant alleges that he began attending this church regularly as it helped him cope with his uncle's death. The Appellant alleges that two members of the house church were arrested by the Public Security Bureau (PSB) for spreading their beliefs which caused him to fear for his safety. The Appellant alleges that he used a smuggler to help him arrange his departure from China. He alleges that a summons has been issued for his interrogation and that the PSB continue to look for him. [4] The RPD found that the Appellant had not credibly established that he was sought by the PSB. However, the RPD did accept that the Appellant was a practicing Protestant but found that his fear of religious persecution was not well-founded. ROLE OF THE REFUGEE APPEAL DIVISION [5] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.1 ANALYSIS Preliminary issue [6] The Appellant's memorandum indicates that he "intends to introduce new evidence on this appeal"2 however no new evidence was included with his Appellant's record. The RAD contacted the Appellant's counsel3 who confirmed that this was an error and no new evidence was being presented.4 Appellant's arguments [7] The Appellant argues that the RPD breached procedural fairness by failing to identify that the objective basis of his claim would be an issue in the claim. The Appellant argues that his fear is well-founded and that he faces a serious possibility of persecution as a follower of the Protestant faith who wishes to attend an unregistered house church to practice his faith. The determinative issue is whether the Appellant would face a serious possibility of persecution on the basis of his religion [8] While the RPD found that the Appellant had not credibly established that he was being sought by the PSB, it did accept that the Appellant was a genuine believer of the Protestant faith. For the reasons that follow, I find that the current objective evidence establishes that Protestants who attend unregistered house churches face a serious possibility of persecution. As such, I will not undertake an analysis of the other findings of the RPD. The Appellant's claim is well-founded [9] The RPD accepted the Appellant's evidence about his faith, however it found that the objective evidence did not establish that he would face a serious possibility of persecution. The RPD acknowledged that the evidence in the National Documentation Package (NDP) before it was mixed regarding religious freedom, however, it concluded that Chinese officials generally tolerate small house churches. The RPD also found that while the NDP contained information about security officials targeting parishioners of house churches in the Appellant's home province of Henan, the RPD found that there was no evidence of the PSB targeting Christians in his region of the province. Therefore, it found that the Appellant could practice his religion in smaller house churches without attracting the attention of security officials. [10] The Appellant argues that the RPD failed to indicate that the objective basis was an issue in his claim. He argues that this was a breach of procedural fairness. The Appellant also argues that the objective evidence supports his position that Protestants face a serious possibility of persecution in China. [11] I am not persuaded by the Appellant's argument that the RPD breached procedural fairness by failing to indicate that the objective basis was an issue in his claim. While the RPD did not set out that the objective basis was an issue in the claim, it is well established that a claimant's subjective fear must have an objective basis to be well-founded. Further, I note that the Appellant's counsel made significant submissions about the objective basis of his claim at his RPD hearing. [12] The determinative issue in the Appellant's claim is the current situation for Protestants and his forward-looking risk. After reviewing the most recent NDP, I find that the Appellant faces a serious possibility of persecution as a Protestant who choses to attend unregistered house churches. [13] Protestantism is one of five state-sanctioned religions in China, who can register with the state authorities.5 A report from Freedom House highlights that as the Protestant religion has grown in popularity so has the restrictions placed on it by the Chinese Communist Party (CCP).6 The report states that persecution of Protestant Christians is on the rise across China and Protestants face a high degree of persecution. The report also indicates that there have been significant recent clampdowns on Protestants, including imprisonment, demolition of churches, repression of state-sanctioned churches, targeting of lawyers who assist churches and obstruction of celebrating Christian holidays.7 [14] According to a report from the ChinaAid Association, the CCP is engaged in the "Sinicization of Christianity" in a five-year plan, which introduced a number of new regulations to establish stricter control on religious activity.8 [15] In February 2018, China implemented new regulations on religious affairs. The United States Commission on International Religious Freedom reported that in 2019 religious freedom deteriorated in the country.9 This report states that Chinese authorities raided or closed down hundreds of Protestant house churches in 2019, including in the Appellant's home province of Henan. Objective evidence in the NDP reports that officials in Henan have undertaken a propaganda campaign wherein the CCP claims that Christianity is spreading uncontrollably in China and is a great harm to the security of the Chinese people.10 The report from the ChinaAid Association also highlights numerous instances of house churches being targeted, closed or destroyed by the CCP in Henan.11 [16] The objective evidence indicates that the government has specific requirements for state-sanctioned churches. For example, the Chinese government requires that state-sanctioned Protestant churches remove the First Commandment (Thou shalt have no other God but me) to ensure that parishioners maintain their primary allegiance to the CCP.12 [17] The Appellant was asked by the RPD about the difference between house churches and state-sanctioned churches. He testified that state-sanctioned churches place the Communist Party as the leader of the Church. The Appellant testified that because of this, the state Church did not believe in the true God. The Appellant testified that he would not attend a state-sanctioned church as this was incompatible with his beliefs. [18] I agree with the Appellant that he ought to be able to practice his religion freely. In the circumstances, that would involve the Appellant attending house churches that conformed to his beliefs. However, the practice of religion in unregistered organizations, such as house churches, is illegal and subject to punitive action.13 Contrary to the findings of the RPD, recent reports indicate that houses churches are being targeted by officials. House church leaders and parishioners have been subject to surveillance and arrests throughout China, including in the Appellant's home province of Henan.14 Therefore, I find that the RPD was incorrect in finding that the government was tolerant of house churches and that the Appellant would be able to practice his faith. [19] Therefore, I find that the Appellant faces a serious possibility of persecution. The Appellant does not have access to state protection or a viable internal flight alternative (IFA) [20] Given that the agent of persecution is the state, the Appellant would not have access to state protection. The objective evidence highlights that Protestants are targeted throughout China and therefore the Appellant does not have a viable IFA. CONCLUSION [21] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee, pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act.15 (signed) J. Lourenço J. Lourenço December 14, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para 103. 2 Exhibit P-2, Appellant's Record, at p. 30. 3 Exhibit RAD-1, Member's directions, November 30, 2020. 4 Exhibit P-3, Appellant's response to member's directions, December 9, 2020. 5 National Documentation Package (NDP) for China (October 30, 2020), item 12.1. 6 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (October 31, 2019), item 12.5. The item is also in the current NDP for China (October 30, 2020) at item 12.5. 7 Ibid. 8 NDP for China (October 30, 2020), item 12.3. 9 NDP for China (October 30, 2020), item 12.2. 10 NDP for China (October 30, 2020), item 12.3, at p. 10. 11 NDP for China (October 30, 2020), item 12.3. 12 Ibid. 13 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for China (October 31, 2019), item 12.28. The item is also in the current NDP for China (October 30, 2020) at item 12.28. 14 Ibid. 15 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-02795 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