TB8-24119

RAD File / Dossier de la SAR : TB8-24119 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 July 27, 2020 Date de la décision Panel M. Lee 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), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) dated September 5, 2018, rejecting his claim for refugee protection. DETERMINATION [2] In accordance with paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) dismisses the appeal for the Appellant and confirms the decision of the RPD. BACKGROUND [3] The Appellant alleges to fear persecution in China because of his religious affiliation with the Three Grades of Servants Christian sect. The Appellant alleges that he was involved in an underground house church while in China. However, since coming to Canada in XXXX XXXX XXXX 2017 for refugee protection, he now affiliates himself with the Pentecostal church, and fears persecution based on this set of beliefs as well. [4] The RPD heard the Appellant's refugee claim on August 20, 2018. The RPD denied the claim on the determinative issue of credibility on September 5, 2018. The Appellant submits that the RPD erred in making unsustainable credibility findings. The RAD carefully considered the merits of the appeal in its decision below. Role of the RAD [5] According to the Federal Court of Appeal's ruling in Huruglica,2 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. ANALYSIS New evidence application pursuant to RAD's request for new submissions [6] At the time of perfection, the Appellant did not initially make an application to submit new evidence pursuant to subsection 110(4) of the IRPA, nor is the Appellant requesting an oral hearing pursuant to subsection 110(6) of the IRPA.3 [7] However, on June 15, 2020, the RAD provided an opportunity for the Appellant to provide any additional submissions and evidence after the perfection of the appeal, in light of the worldwide Corona virus pandemic (Covid-19). The Appellant was given a chance to provide submissions on any potential impact that Covid-19 could have on the refugee claim, along with any other new evidence. [8] In response to this request, the Appellant provided an affidavit where he explained some recent incidents that took place in China and the reasons for submitting the new evidence. The Appellant provided a letter from his wife affirming her recent encounter with the Public Security Bureau (PSB) and a copy of her identity card, a screenshot of these documents being sent to the Appellant over WeChat and two news articles.4 Rule 29 Application [9] The new evidence was provided on XXXX XXXX XXXX 2020, after the perfection of this appeal record on September 25, 2018. The RAD must consider whether the documents meet the three requirements under Rule 29 of the RAD Rules. The RAD must consider the documents' relevance and probative value, any new evidence the documents bring to the appeal, and whether the person, with reasonable effort, could have provided the documents or written submissions with the Appellant's record. [10] The letter from the Appellant's wife and her identity card are relevant and probative to the claim, as the incidents outlined in the letter describe the PSB's ongoing interest in the Appellant and the treatment of the Appellant's cousin before she was released from prison. This could potentially show the treatment that the Appellant could receive if he were also arrested.5 The RAD finds that these documents bring some new evidence to the appeal, as the wife's encounters with the PSB took place at the end of XXXX and at the end of XXXX 2020; the cousin's release from prison was in XXXX 2019, and the cousin continues to report to the PSB regularly. These incidents took place after the perfection of the appeal. Since these documents were received after the RAD requested new evidence, the RAD finds that the Appellant could not have provided these documents or submissions with the Appellant's record. [11] The RAD also finds that the news articles are relevant and probative to the claim. The first article describes Jilin province's recent ongoing efforts to suppress religious groups associated with foreign countries.6 This article indicates that there have been government initiatives to target Christian-affiliated groups which are evangelical in nature. The Appellant's Christian sect is also evangelical in nature. Although the Appellant's group is not specifically named in this article, the RAD finds that the increased efforts by the government to suppress Christian groups is relevant to the Appellant's ability to practice his faith in China. The second article describes Jilin province shutting down hundreds of Christian home churches.7 The Appellant alleges that he practiced in a home church while in China. Therefore, this article is relevant since it could potentially prevent the Appellant from participating in his preferred method of worship. [12] The RAD also finds that the articles are new evidence. The articles were respectively published on August 24, 2019 and on May 5, 2020, long after the appeal record was perfected. Consequently, the RAD also finds that the articles could not have been provided at the time that the appeal record was submitted. [13] Therefore, the RAD finds that all the new evidence provided by the Appellant meets the requirements of Rule 29. Subsection 110(4) of the IRPA [14] The RAD must also assess whether the evidence meets the requirements of new evidence under subsection 110(4) of the IRPA. The Appellant may only present evidence that arose after the rejection of the claim, or that was not reasonably available at the time of rejection, or that the person could not reasonably have been expected in the circumstances to have presented at the time of rejection. The evidence only needs to meet at least one of these criteria. [15] The RAD finds that incidents described in the wife's letter regarding the prison release of the cousin and of the PSB visits arose after the rejection of the claim. The RAD also finds that the news articles were published after the rejection of the claim. Therefore, all of the evidence submitted meets at least one of the criteria under subsection 110(4), so the evidence is accepted. Singh/Raza factors [16] The new evidence must also be credible, relevant and new in accordance with the requirements outlined by the Federal Court decisions of Singh and Raza.8 [17] The evidence is credible. The wife's letter is personally addressed to the Appellant and a copy of her Resident Identity Card (RIC) is provided to verify her identity.9 A screenshot of the WeChat record where these documents were sent to the Appellant is also provided.10 There are no inconsistencies or discrepancies at face value. The news articles show the website link where they are found. They both appear to have been published online from a magazine on religious liberty and human rights in China.11 They also appear to be credible sources on their face. [18] The RAD also finds that the evidence is relevant to the claim. The wife's letter could prove that the PSB have an ongoing interest in the Appellant, which is relevant to the claim. The news articles could also potentially prove that the Chinese government has an increased interest in suppressing Christian-affiliated groups from worshiping freely, which impacts the Appellant's ability to express his religious beliefs. [19] The RAD finds that the evidence is new. The wife's letter discusses incidents that arose after the hearing. The news articles describe government policies that also occurred after the hearing. Therefore, the new evidence also meets the criteria described in Raza/Singh and it is accepted. No oral hearing required [20] The Appellant is not requesting an oral hearing pursuant to subsection 110(6) of the IRPA. After assessing the new evidence, the RAD is also of the view that an oral hearing is not required. An oral hearing is granted where the new evidence raises a serious issue with respect to credibility, is central to the decision, and if allowed, would justify allowing or rejecting the claim. For an oral hearing to be granted, all three criteria must be met. [21] The RAD finds that the new evidence would not justify allowing or rejecting the claim altogether. The core of the claim concerns whether or not the Appellant is sincere in his beliefs as a follower of the Three Grades of Servants Christian sect. The documents provided describe a potential forward-looking risk regarding the PSB's ongoing interest and the government's efforts to suppress religious beliefs, but does not directly relate to the genuineness of the Appellant's religious beliefs. Therefore, no oral hearing will be granted. [22] The RAD will assess the new evidence within its decision below. RPD did not err in assessing Appellant's religious knowledge [23] The RPD found that the Appellant was unable to provide credible testimony regarding his beliefs as a member of the Three Grades of Servants.12 The RPD found that it was reasonable to expect the Appellant to explain what he believed in more detail, given that he attended weekly services for seven months, which were two hours in length.13 [24] The Appellant submits that it is the sincerity of his beliefs and practices that matter, not whether the beliefs or practices are objectively valid.14 The Appellant further submits that he only attended church in China for a very limited period of time, and so the RPD erred by focusing on his lack of knowledge.15 [25] After reviewing the audio recording of the hearing and the evidence regarding the Appellant's religious faith in the Three Grades of Servants, the RAD agrees with the RPD. At the hearing, the RPD repeatedly asked the Appellant to describe what his religious group believes. The RPD asked this same open-ended question in many different ways. The RPD explained to the Appellant that its job was to assess the genuineness of his beliefs, and the importance of elaborating and giving some detail on his belief system, but the Appellant was unable to do so.16 Despite being given numerous opportunities to describe his beliefs in his own words, the Appellant was only able to describe the title of his religion and the names of the three servants, the name of his leader, and the fact that the Chinese government has labelled this religion as an evil cult.17 Counsel for the Appellant also repeatedly asked the Appellant to explain anything that he was taught during his time in the underground church in China.18 The RAD finds that the Appellant was equally vague and non-responsive to the questions asked. The Appellant repeated his previous response, that China deemed this religion as a cult.19 The Appellant vaguely indicated that he was not given too much information about Jesus during this time.20 [26] The RAD finds that the Appellant was unable to give any details on the principles or practices of his religious group. The RAD finds that aside from the title of his religion, the name of his church leader, and China's classification of this group as an evil cult, the Appellant knew little else about the religion which he allegedly risked his life and safety to join, and which eventually led him to flee his home country illegally. The questions posed by the RPD and his own counsel were open-ended and rephrased repeatedly. The Appellant alleges that he is being sought by the PSB because of his membership in the Three Grades of Servants church while in China. This is the core of his claim, and it remains the Appellant's burden to prove his claim; namely, his religious identity as a member of this faith. However, the Appellant's lack of any knowledge on the substance of his religious beliefs leads the RAD to find that the Appellant was not a sincere follower of the Three Grades of Servants, on a balance of probabilities. Consequently, the RAD also finds that the Appellant did not attend an underground church affiliated with the Three Grades of Servants while he was in China. Therefore, the RPD's findings regarding the Appellant's lack of religious knowledge are correct. [27] The Appellant did not make any submissions on the RPD's findings that the Appellant's involvement in a Pentecostal church in Canada was also not sincere.21 After conducting its independent assessment of the evidence, including the Canadian church documents provided,22 the RAD agrees with the RPD. The Appellant indicated he could not find a church affiliated with the Three Grades of Servants, so he joined a Pentecostal church instead, and that he now subscribes to this church's set of beliefs.23 The Appellant explained that he believes in the Pentecostal church's doctrine, because the church has a pastor, baptism and a Bible.24 The Appellant alleges that he simply joined the Pentecostal church because he could not find the Three Grades of Servants denomination in Canada. [28] The RAD has already found that the Appellant was not a sincere believer in the Three Grades of Servants when he was in China, and therefore, the RAD does not find that the Appellant was looking for a church in Canada to continue practicing a religion that he discovered in China, as he alleges. Rather, the RAD finds that the Appellant simply joined this Pentecostal church in Canada out of convenience to bolster his claim. The RAD finds that any church involvement and any religious knowledge acquired in Canada is done to bolster his refugee claim, and is not the mark of a sincere religious believer, on a balance of probabilities. RPD did not err in assessing Appellant's relationship with Liu [29] The RPD found that the Appellant gave inconsistent evidence regarding whether Liu was his cousin, or whether she was the daughter of his mother's cousin.25 Liu was allegedly the cousin who introduced the Appellant to the faith in China. The RPD found that this inconsistency undermined the Appellant's credibility.26 [30] The Appellant submits that regardless of the nature of the relationship with Liu, there is sufficient evidence on record to corroborate the allegations about Liu's faith.27 The Appellant further submits that the RPD accepted the authenticity of Liu's notice of arrest after she was caught by the PSB.28 The Appellant further submits that the testimony regarding the relationship to Liu is not relevant.29 [31] In reviewing the RPD's decision, the RPD gave the arrest notice "moderate weight".30 The RAD finds that it was unclear whether or not the RPD accepted the notice as authentic, and so this finding is in error. However, the RAD has already found that the Appellant was not a convert to the Three Grades of Servants. [32] The Appellant did not oppose most of the RPD's findings in its appeal. For instance, the RPD found that the Appellant gave inconsistent testimony regarding when he became aware that the Three Grades of Servants was an illegal religion in China.31 The RPD also found that the Appellant gave inconsistent evidence regarding the arrest of one of the underground church members, as well as the time when he was allegedly in hiding after the PSB raid.32 The RAD independently reviewed the RPD's decision and the audio recording of the hearing, and also agrees with the RPD's findings. Taking all of these findings into consideration, the RAD consequently finds that the Appellant was not a person of interest to the PSB, and therefore gives the arrest notice no weight and finds that it is not authentic, on a balance of probabilities. [33] The RAD finds that the Appellant was not in hiding after an alleged PSB raid and the Appellant had little to no knowledge about the substance of this religious faith. The Appellant is the subject of this claim and not his alleged cousin. In light of this, regardless of the sincerity of Liu's religious convictions, the RAD finds that that the negative credibility findings regarding the Appellant's experience with the Three Grades of Servants outweigh any of the supporting documents provided. Therefore, the RAD finds that the RPD's finding is correct. Wife's letter insufficient to overcome credibility concerns [34] The RAD also considers the wife's letter provided in new evidence and finds that the contents of this letter are insufficient to overcome the credibility concerns of this claim and gives it no weight. [35] In the personal, handwritten letter, the Appellant's wife advises the Appellant that the PSB had come to the family home twice, at the end of May and at the end of June, looking for him and had cautioned her not to conceal information about the Appellant. However, the RAD has already found that the Appellant is not a genuine follower of the Three Grades of Servant Christian sect due to the Appellant's inability to describe basic aspects of his own faith, and that the Appellant is not being pursued by the PSB. [36] The wife's letter also indicates that the cousin has been released from prison. In two sentences at the end of the letter, the wife conveys second-hand information to her husband, advising him that the cousin told her that she believes that the Appellant can attend a Christian church in Canada since there is no church of the Three Grades of Servants in Canada, and they worship the same God.33 However, the Appellant has been found to be insincere in his faith as a member of the Christian sect he alleges to follow. Therefore, the RAD finds that this letter does not remedy these existing credibility concerns, and it is given no weight to corroborate the Appellant's claim. In summary [37] The RAD has carefully reviewed the Appellant's memorandum, all of the arguments listed, as well as the evidence associated with this claim. The RAD finds that the Appellant is not a person of interest to the PSB presently, and he is not a member of any illegal religious group. The RAD therefore finds that the Appellant would not face a serious possibility of persecution for any religious beliefs if he were to return to China; nor would he face a personalized risk to his life, of torture, or of cruel and unusual treatment or punishment. Therefore, the RAD finds that the RPD's decision is correct. CONCLUSION [38] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) M. Lee M. Lee July 27, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, paragraph 78. 3 Exhibit P-2, Appellant Record, Written Statement, at page 13. 4 Exhibit P-3, Rule 29 Application, Dated July 16, 2020. 5 Exhibit P-3, Rule 29 Application, Dated July 16, 2020, Exhibit A, at pages 10-13. 6 Exhibit P-3, Rule 29 Application, Dated July 16, 2020, Exhibit B, at pages 16-20. 7 Exhibit P-3, Rule 29 Application, Dated July 16, 2020, Exhibit B, at pages 21-24. 8 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 at para 13; Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 9 Exhibit P-3, Rule 29 Application, Dated July 16, 2020, Exhibit A, at pages 10-13. 10 Exhibit P-3, Rule 29 Application, Dated July 16, 2020, Exhibit A, at page 14. 11 Exhibit P-3, Rule 29 Application, Dated July 16, 2020, Exhibit B, at pages 16-24. 12 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 6, paragraph 16. 13 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 7, paragraph 19. 14 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 77, paragraph 8. 15 Ibid, paragraph 9. 16 RPD Hearing Recording, August 20, 2018, at 21:00. 17 RPD Hearing Recording, August 20, 2018, at 16:09-24:44. 18 RPD Hearing Recording, August 20, 2018, at 1:42:55. 19 RPD Hearing Recording, August 20, 2018, at 1:43:30. 20 RPD Hearing Recording, August 20, 2018, at 1:46:44. 21 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 12-13, paragraphs 48-51. 22 Exhibit RPD-1, RPD Record, Exhibit 5, at pages 118, 125-126; Exhibit 6, at page 128. 23 RPD Hearing Recording, August 20, 2018, at 1:28:33. 24 RPD Hearing Recording, August 20, 2018, at 1:28:55. 25 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 8, paragraph 24. 26 Ibid. 27 Exhibit P-2, Appellant Record, Appellant's Memorandum, at page 78, paragraph 10. 28 Ibid. 29 Ibid. 30 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 11, paragraph 43. 31 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 8-9, paragraphs 26-29. 32 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 9-10, paragraph 30-40. 33 Exhibit P-3, Rule 29 Application, Dated July 16, 2020, Exhibit A, at pages 12-13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-24119 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