TB4-05329

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 File No. / N° de dossier de la SAR : TB4-05329 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 25, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Elyse Korman Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX a citizen of the Republic of China, is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. However, she is requesting that the Refugee Appeal Division (RAD) set aside her determination or, in the alternative, refer the matter back to the RPD for re-determination. DETERMINATION [2] The RAD finds the decision of the RPD to be an error in fact. Pursuant to ss. 111(1)(c) and 111(2) of IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant comes from XXXX XXXX Hebei, China. Her refugee claim is based on her participation in a Christian underground church in China. She alleges that she is a target of the Public Security Bureau (PSB) and, if captured, she would be detained, tortured, or sentenced to jail. [4] The Appellant had medical problems, when a friend suggested that she come to her church. She became a member of the underground church in XXXX 2012 and learned how the Bible is important to Christians. With time, the Appellant's "tinnitus" condition diminished. [5] On XXXX XXXX, 2013, the church service was held at the organizer's home, however the Appellant was not in attendance. Nevertheless, at 8 p.m. that night, she received a phone call from her friend, XXXX XXXX, informing her that the church had been discovered by the PSB, causing the Appellant to hide at the home of her friend, XXXX XXXX XXXX [6] On XXXX XXXX XXXX 2013, the PSB went to the Appellant's home, asking about her whereabouts, and they warned her family not to conceal anything. Through her younger brother, the Appellant learned that three church members were arrested - the organizer and two others. [7] The Appellant decided to flee China on XXXX XXXX, 2013 after the PSB had been to her home for the second time on XXXX XXXX, 2013. She was assisted by a smuggler through a friend, initially to apply for a US visa, which was refused. Another smuggler assisted her in obtaining a Canadian visa which was granted, and he accompanied her to Canada on XXXX XXXX, 2013. [8] The Appellant alleges that the PSB have been to her home on five separate occasions and also to the home of her friend, XXXX XXXX, who is in hiding. COUNSEL'S SUBMISSIONS * What is the applicable standard of review? * Did the RPD err in its assessment of the Appellant's Christian Identity? * Did the RPD make erroneous credibility findings and ignore the corroborative evidence? * Did the RPD erroneously base its credibility analysis on the Appellant's ability to exit China using her own passport? * Did the RPD err in its assessment of the Appellant's ability to freely practice her religion in China? ROLE OF THE RAD [9] Counsel has made submissions with respect to the applicable standard of review, however a recent Federal Court decision in Huruglica1 has provided the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." Christian Identity [10] The RPD acknowledges that the Appellant was able to answer basic questions about Christianity and notes the certificate of baptism and the photos taken in Canada. It also noted that the Appellant did not play a leadership role in her Protestant church in China. The RPD further noted the Appellant's attendance at a Pentecostal church in Canada was as a result of convenience, given its proximity to where she is residing. [11] While the RPD accepted that the Appellant is a Christian believer, it found that she was not tied to any one branch of the Protestant religion. Based on this, the RPD found that she would be able to find a legal congregation in China at which to worship. In coming to this conclusion, the RPD notes the documentary evidence.2 [12] The Appellant submits that the RPD's finding that she lacks ties to the Pentecostal church lacks rationality and common sense. Moreover, the Appellant argues that the fact that she was introduced to this church by a neighbour does not mean that she flippantly chose the church out of convenience, nor does it demonstrate that she would abandon the Pentecostal denomination. [13] The RAD finds that this finding by the RPD was misinterpreted by the Appellant. The RPD found that the Appellant was not tied to any one branch of the Protestant religion. The audio recording reveals that the RPD's finding was without error. Corroborative Evidence: [14] The Appellant provided three "verification letters" from the two friends with whom she stayed whilst in hiding, and from her father. She argues that the RPD rejected them out of hand as "they are written by people with an interest in the outcome of the claim." She quotes jurisprudence in Ugalde,3 in the RPD's finding of low probative value to evidence simply because it is "self serving." [15] The RAD finds that the Appellant misunderstood what the RPD said in its Reasons. The RPD would have accorded more weight had these documents been in the form of sworn affidavits and, when it gave them less probative value, it did not do so in isolation. The RAD finds that this was just one of the RPD's credibility concerns and was without error. Ability to Exit China using her own Passport: [16] The RPD had credibility concerns surrounding the Appellant's testimony with respect to the use of a smuggler to facilitate her exit from China. Initially, the Appellant had given the name of the smuggler as XXXX XXXX, however later stated XXXX XXXX. When confronted with the contradiction, the Appellant acknowledged that she messed up the names. The RPD did not accept this explanation as she had met this smuggler on two occasions regarding her Canadian visa application; he drove with her to the airport, led her through the airport, and he travelled with her to Canada. [17] Counsel first argues that the RPD was microscopic in its findings when it did not accept the explanation for the contradiction provided by the Appellant. She further argues that she was at all times consistent about the events leading up to her exit from China, and, therefore, the RPD was narrow in its focus in this regard. [18] In this regard, the RAD would have given the Appellant the benefit of the doubt as she did provide much detail which, as the Appellant argues, was consistent. [19] However, having said this, the Appellant further argues that the RPD rejected the Appellant's explanation as to how she was able to exit China, following a smuggler through the airport. The Appellant argues, as in the Federal Court case of Zhang,4 that the smuggler had means of avoiding detection by airport officials and, therefore, the RPD erred in finding that this portion of the Appellant's testimony is not credible. [20] The RPD found that the Appellant's ability to exit China called into question her allegation that she was wanted by the PSB for her alleged illegal activity in an underground Christian Church. It looked at the documentary evidence concerning the efficiency of Chinese authorities and the presence of the Golden Shield Project and found that if she was indeed wanted for arrest on the day after the raid, by XXXX XXXX, 2013, utilizing her own passport, she would have been unable to effect her departure. In coming to its conclusion, the RPD acknowledged that the documentary evidence does indicate that authorities in China do not always apply regulations evenly. Nevertheless, the RPD found the preponderance of the documentary evidence does state that authorities at airports conduct thorough screenings of passengers. Given the alleged number of times the PSB have visited her house in pursuit, the RPD found that the Appellant was not wanted by the PSB with her facility of exit from the country. [21] The RAD concurs with the RPD's finding in this regard. The audio recording reveals a thorough line of questioning in this regard, including the testimony of the Appellant that her passport had been stamped. The RPD quite properly cited the evidence with respect to the Golden Shield Project, which is the national computer network of policing and, in doing so, acknowledged that authorities in China do not always apply regulations evenly. However, it found that the preponderance of the documentary evidence does state that authorities at airports conduct thorough screenings of passengers. As a result of this analysis, the RPD found, on a balance of probabilities, that the Appellant is not wanted by the PSB. The RAD concurs, based on all the evidence, that this finding is without error. The Appellant's Ability to Practice her Religion Freely in China: [22] The RPD noted that various pieces of documentary evidence indicate that authorities generally do not bother with Christian followers who keep their congregations under 25 people and do not confront others. The RPD does, however, acknowledge that there is mixed evidence and there are examples of authorities harassing congregants.5 Notwithstanding this, the RPD found that the preponderance of evidence indicates that Christians can practise their faith in a lawful church and that authorities generally do not concern themselves with small house church gatherings. [23] The Appellant submits that the only "legal congregations" in China are those that are officially sanctioned by the Chinese Communist Party. The underground churches are illegal and may be subject to "closure, fines and criminal sanctions", and the suggestion by the RPD that underground house churches are "legal" in China is clearly and unequivocally erroneous. (Responses to Information Request dated April 27, 2007 and June 13, 2007). The Appellant further argues that the Appellant has no way of knowing whether she would join an unregistered church that would limit its gatherings to "under 25 people or could she foresee whether the membership might grow in size and to limit this would indicate a restriction on her right to practice her religion". [24] The RAD agrees that the RPD erred when it stated that Christians can practise their faith in a lawful church. The RAD notes that these are the churches that are sanctioned by the Chinese Communist Party. The RPD did not qualify its statement when it indicated the foregoing in its Reasons. In fact, the RPD re-iterated this when it stated that the preponderance of evidence indicates that Christians can practice their faith in a lawful church, there are lawful congregations she could attend, and she would be able to find a legal congregation in China at which to worship. (paragraphs 34, 37, 38) The RPD went on to indicate "that authorities generally do not concern themselves with small house church gatherings," a statement which the RAD finds is without error. In totality, given the statements made by the RPD with respect to lawful churches, the RAD finds that this decision cannot stand on this basis. It is unclear from the RPD's findings if it is referring to state sanctioned churches, and if this is the case, it is clearly an error. Lack of Summons or Arrest Warrant: [25] Although not argued in the Appellant's submission, the RAD notes that there was no evidence of a summons or warrant indicating that the Appellant is being sought. The documentary evidence6 states that: Article 81 Summons, notices and other court documents shall be delivered to the addressee himself; if the addressee is absent, the documents may be received on his behalf by an adult member of his family or a responsible person of his unit. [26] If the addressee or a recipient on his behalf refuses to accept the documents or refuses to sign and affix his seal to the receipt, the person serving the documents may ask the addressee's neighbours or other witnesses to the scene, explain the situation to them, leave the documents at the addressee's residence, record on the service certificate the particulars of the refusal and the date of service and sign his name to it, the service shall thus be deemed to have been completed. (China 1997, Art. 81) [27] In terms of a physical description, a summons shows the issuing local Public Security Bureau office, date of issue, warrant number, official stamp, [and] name of the person being summoned. Normally the Public Security Bureau delivers the summons and the person needs to be at the designated place within 12 hours after he receives it. The Public Security Bureau will release the person in 24 hours after he reports if he is not a suspect; otherwise, he will be detained. No other document will be given to the person but a Notice of Detention will be given to the detainee's family. [28] The Public Security Bureau rarely uses arrest warrants. The Procuratorate will issue an arrest warrant after the Public Security Bureau has investigated the case and has evidence that the suspect committed the crime. [29] Although the PSB does not always issue a summons, one will be issued after the PSB has investigated the case and has evidence that the suspect committed the crime. Based on the Appellant's Basis of Claim form (BOC) and testimony, the allegation that three members of the claimant's group were arrested demonstrates to the panel that the PSB appears to have investigated the case. Given the PSB allegedly went to her home on five occasions, they have demonstrated an interest in the Appellant and, given the documentary evidence, a summons would have been left at their home. The RAD finds it unreasonable that a summons would not be left at their home if the PSB was interested in him and subsequently draws a negative inference. Country Documentation with Respect to Practicing Members of Unregistered Churches in China: [30] The RPD had reviewed the country documentation to assess the situation of practicing members of unregistered churches in China.7 The RAD further notes that, according to statistics,8 the officially recognized Protestant population in China is 16 million, with about 50,000 churches and gathering sites throughout the country and there are more than 50,000 Protestant churches registered under the Three-Self Patriotic Movement (TSPM), the state-approved Protestant patriotic association, and 18 TSPM theological schools. It is estimated that there may be 40 to 60 million unregistered Protestants in China. [31] Christians practice in unregistered religious gatherings/house churches. The number of Protestants, including those in both registered and unregistered churches, was estimated to be nearly 90 million. Most Protestant house churches are non-denominational and they have no fixed liturgy or tradition. Their services are like Bible study classes.9 [32] The following information are excerpts from the Home Office Country of Origin Report on China10: The Chinese government continues to restrict the religious activities of Protestants who worship in the government-approved church and to harass and intimidate unregistered Protestants. The government also labels some unregistered Protestant groups as cults. 'The majority of Protestants in China are affiliated with the house church movement, which refuses, both for theological and political reasons, to affiliate with the government-sanctioned Three-Self Protestant Movement (TSPM) or the China Christian Council (CCC). The Chinese government encourages TSPM and the CCC leaders to emphasize theological reconstruction in their religious training and teaching, doctrines which purge elements of Christian faith and practice that the Communist Party regards as incompatible with its goals and policies. In the past year, authorities continued to harass, intimidate, and detain arbitrarily members of unregistered Protestant organizations. According to the NGO [non- governmental organisation] China Aid, the number of detentions of unregistered Protestants declined slightly in the last year, with over 500 detentions. At least six individuals were sentenced to terms of imprisonment over one year, including in China's notorious re-education through labour system. Despite slightly fewer detentions and sentences this year as opposed to last, government efforts to suppress the growth and activities of house church Protestants continue to be systematic and intense, with regular raids on unrecognized church services and destruction of property and religious venues. Chinese government officials at various levels also forcibly closed large unregistered religious venues that previously had operated openly.11 [33] In its Annual Report 2011, published in May 2011, the United States Commission on International Religious Freedom (USCIRF) noted: While a growing number of Chinese citizens are allowed to practice their religion legally, the government tightly controls the affairs of all religious groups and actively represses and harasses religious activity that the Communist Party does not view as normal. Repression of unregistered religious activity varies by region, province, politics, and ethnicity. In some localities, officials arbitrarily implement national government policy and allow some unregistered groups, sometimes with thousands of members, to carry out worship activities openly. Some Catholic, Protestant, Buddhists, and members of spiritual movements have refused to join the officially-sanctioned religious organizations.12 House churches have an unclear status, neither banned nor fully approved of. As long as they avoid neighbourly confrontation and keep their congregations below a certain size (usually about 25), the Protestant ones are mostly tolerated, grudgingly. Catholic ones are kept under closer scrutiny, reflecting China's tense relationship with the Vatican.13 Religious groups independent of the five patriotic religious associations have great difficulty obtaining legal status and are vulnerable to coercive and punitive action by Public Security Bureau (PSB) and Religious Affairs Bureau (RAB). In some parts of the country, local authorities tacitly approved of the activities of unregistered groups and did not interfere with them. In some rural areas, unregistered churches held worship services attended by hundreds. In other areas, local officials punished the same activities by confiscating and destroying property or imprisoning leaders and worshippers. Several religious leaders reported that their applications for registration were rejected because they would not affiliate with a patriotic religious association although officials pressured [34] The Appellant is a resident of Hebei province. The U.S. State Department 2010 International Religious Freedom Report notes a range of arrests in various specifically identified provinces. There is only one reference to Hebei province. In this regard, it is noted that some unofficial Catholic clergy remain in detention. There is, however, no indication of any incidents concerning Protestant house churches. It is further noted that the police forced a pastor, who is president of the China House Church Alliance (CHCA), a network of house church groups that reportedly has 300,000 members, and his wife to relocate from Beijing to Hebei province after they met with members of a visiting delegation.14 This document further indicates that the ability of unregistered religious groups to operate varied greatly depending on the location. As noted above, there is evidence in this document of suppression by Chinese authorities in a number of provinces but none in regard to Protestant churches in Hebei province. The United States State Department 2011 Report provides no additional information regarding persecution of members of Protestant underground churches in Hebei province.15 [35] In this regard, another country document16 quotes the President of China Source, an organization that assists members of international faith-based communities to work in China, that "while reports of persecution remain a reality of life in China, a survey of the larger picture suggests that they are the exception rather than the rule...." In addition, the latest Annual Report of Persecution by the Government on Christian Churches within Mainland China, published by the United States-based China Aid Association, specifically notes information concerning arrests as well as evidence of persecution in various provinces. With one exception, none of the incidents noted occurred in Hebei province. In this regard, it is noted that the younger brother of a China Aid spokesman was threatened and placed under surveillance, however there was no detention, arrest or abuse, and no evidence of PSB action against an underground church and its members. [36] The RAD notes the comments in the February 2013 China Aid report.17 Three incidents that occurred in Hebei province are reported. In one case a church was raided in Wangdu County, Baoding and six people were placed under 15-day administrative detention. In another incident, a house church in Zhunzhou City was persecuted and a pastor and five others were detained. In the third incident, a house church in Xili was raided and the church was banned. The RAD notes, in regard to the Zhunzhou and Xili incidents, the congregations numbered more than 60 and more than 90. The size of these gatherings raises a doubt as to whether these were ordinary house church gatherings. They clearly do not compare to the size of the congregation indicated by the Appellant in his BOC and testimony. Only one of the incidents noted above, the raid on a house church in Wangdu County, Baoding, may be comparable to the Appellant's alleged raid of his underground church. [37] Although country documentary information regarding China generally provides mixed messages concerning the suppression of underground church activity, the lack of any information regarding raids on ordinary house church congregations in Hebei province, other than the incidents cited above, in any of the documents available to the panel, is significant and convincing. This does not mean that there is no possibility that an underground church community and its members might be harassed by the police. However, the RAD finds, on a balance of probabilities, and on the basis of the analysis of the evidence cited above, as well as on the basis of findings and negative inferences noted above, that there is only a mere possibility that the Appellant's alleged house church would be of any interest to the police in Hebei province. The RPD has made a determination that the church was not, in fact, raided and the RAD concurs with this finding. The RAD notes in this regard that there are more than 5,600,000 Christians in Hebei province and, of these, more than 895,000 attend underground Christian churches. It is evident in the context of the few documented incidents noted above that the risk of persecution to practicing Christians in Hebei province is very small and the RAD finds, on a balance of probabilities, that there is only a mere possibility that a house/underground church would be raided in this province. [38] The RPD preferred the documentary evidence over the Appellant's testimony because of the variety of credible sources referred to and the consistency of the documentary evidence. The RAD has articulated even more specific information from the National Documentation Package, in particular, relating to the province of Hebei, where the Appellant was residing. [39] After carefully reviewing the documentary evidence and the findings noted above, the RAD concurs with the RPD that, on a balance of probabilities, the house church the Appellant alleged to have attended was never raided by the authorities, and, as a result, the Appellant is not wanted by the PSB. The RAD has also examined the issue of a summons not having been issued in this regard, which, together with the RPD findings, leads the Board to the same conclusion as the RPD. [40] The RAD has also conducted an independent analysis of the situation of underground Christians in Hebei province and concludes that, on a balance of probabilities, the Appellant could return to her church without a serious risk of persecution. [41] Although the RAD has conducted the foregoing analysis, it finds that the decision cannot stand, in light of the RPD's statements with respect to the Appellant's ability to practice Christianity in a lawful church. It is possible that the RPD did not mean what it said. However, the RAD is not in a position to conduct an oral hearing, in the absence of any new evidence. Moreover, the RAD is unable to substitute its own decision, in light of the lack of an evidentiary basis for its findings in this regard. CONCLUSION [42] The RAD finds the decision of the RPD to be an error in fact. [43] Pursuant to ss. 111(1)(c) and 111(2) of IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. (signed) 'Roslyn Ahara' Roslyn Ahara September 25, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 RPD-1, National Documentation Package, (NDP), China, item 1.7, UK Home Office Operation Guidance Note 3 Ugalde v. Canada (MPSEP), 2011 FC 458 4 Zhang v. Canada (MCI), 2008 FC 533 5 Supra, footnote 2 6 RPD-1, NDP, China, 3 May 2013, item 9.3, Response to Information Request CHN103401.E. 7 Supra, footnote 2 8 RPD-1, NDP, China, item 12.11, Response to Information Request CHN103500.E 9 RPD-1, NDP, China, Home Office, Country of Origin Report China: s. 19.22. 10 RPD-1, NDP, China, item 2.3 11 Supra, footnote 9, s. 19.25. 12 RPD-1, NDP, China, Home Office, Country of Origin Information Report: China s. 18.05. 13 Ibid., s. 19.02. 14 RPD-1, NDP, China, item 12.1. 15 RPD-1, NDP, China, item 12.1 16 RPD-1, NDP, China, item 12.11 17 RPD-1, NDP, China, item 12.12 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05329