TB8-29759

RAD File / Dossier de la SAR : TB8-29759 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX(a.k.aXXXX XXXX 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 Joseph Wyger Tribunal Counsel for the person who is the subject of the appeal Jason Escalona Ibanez 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] I allow this appeal. The Principal Appellant XXXX XXXX XXXX XXXX XXXX XXXX XXXX is a citizen of China. She fears persecution in China because of her religious activities. a. MsXXXX XXXX turned to religion because of her mother's cancer diagnosis. For this she was persecuted by the Public Security Bureau (PSB) and fled China; b. The Refugee Protection Division (RPD) found Ms. XXXX not credible. The Appellant contends that the RPD made factual errors in arriving at a wrong decision; c. The determinative issue for the Refugee Appeal Division (RAD) is whether Ms. XXXX narrative is credible; d. The RAD determines that there is a reasonable chance the Appellant will be persecuted in China because her narrative is credible. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is Convention refugee. BACKGROUND [3] The Appellant was introduced to a Christian religion in 2014 by a friend who sought to ease her stress over her mother's treatment for cancer. Believing that her prayers were helping her mother, Ms. XXXX decided to join the group services which were held in member's homes on a rotating basis for safety. She also attended bible study twice a month, and at one of those sessions, she was arrested and detained for a week by the PSB. She stopped attending church services and was required to report to the PSB regularly up until December 2016. [4] After she was no longer required to report to the PSB, Ms. XXXX commenced re-attending house church services again. The PSB raided a service on September 3, 2017, from which she escaped and went into hiding. On September 4, 2017, the PSB searched her home for her and interrogated her father, accusing Ms. XXXX of refusing to repent and still engaging in illegal religious activities. The PSB issued a Summons for her to appear at the police station for questioning. [5] On XXXX XXXX XXXX 2017, Ms. XXXX left China with a smuggler on a false passport, with stops in Thailand, Malaysia, and Dubai. During this transit, the smuggler raped Ms. XXXX who became pregnant. Ms. XXXX arrived in Canada on XXXX XXXX, 2017. [6] The RPD made the following findings in rejecting the Appellant's refugee claim: a) The Appellant is not a sincere and genuine member of the church because she could not recite some information about the religion set out in the country condition documents; b) The supporting documents which include a PSB summons to the Appellant, are not reliable and don't overcome her general negative credibility; and c) The psychological report receives little weight and is not a cure-all for credibility concerns. NEW EVIDENCE [7] The evidence presented by the Appellant is rejected. [8] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] It is not necessarily the date of the document, but rather the contents of the evidence such as the date of events described in it, that is key to admissibility. If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [10] The evidence put forward is the sworn affidavit of Ms. XXXX. It is dated after the RPD decision, but it deals with events that occurred prior to the negative decision. Ms. XXXX describes how she was ill-served by her counsel and the RPD member during the hearing itself, because the events in her narrative were not addressed. These allegations are mirrored in the Appellant's Memorandum. I find that it could have reasonably been provided to the RPD before its decision was rendered. The affidavit does not meet the test in S. 110 (4) for admission into evidence before the RAD. ROLE OF THE RAD [11] My role is to conduct an independent assessment of all the evidence and decide if the RPD made the correct decision.3 ANALYSIS [12] I determine that the Appellant is a sincere and genuine member of her church, and that her narrative of persecution by the PSB in China is true. I find that she faces a serious possibility of persecution for her religious activities if she were to return to China. Sincere and genuine - Appellant knows what church members call themselves [13] I find the RPD erred in finding that Ms. Wu was not a genuine church member based on her inability to give other names for the church set out in the National Documentation Package (NDP). [14] The RPD found that Ms. XXXX reference to "Shouter's underground church" and that she gave no other name for the church, was grounds to undermine her credibility as a genuine member. The panel found that she was unable to state a single name used by the church and its members to identify themselves, other than that pejorative name assigned by the Chinese authorities. The RPD cited the NDP4 for the proposition that members refer to themselves as Christians, Local Church, Assembly Church, Church Assemblies or Little Flock. [15] The Appellant argues that her answer, that there is no name is correct. After my review of the NDP, I find that the faith is referred to by many names because it does not have one official name. The Appellant asserts that when asked to elaborate, she testified that members call it small gatherings, local church and house church. The Appellant contends that the translation of phrases such as "little flock" and "small gatherings" were inaccurate, adding to the confusion. [16] I note that in the first line of her written narrative, Ms. XXXX says she is a member of the "Local Church (known as Shouters by non-believers or by the Chinese government)". Shouters appears to be the most common name given to the church throughout the documentary evidence by scholars and other non-members. I find that it is not unreasonable for Ms. XXXX to use the common phrase "Shouters underground church" in her answer to the question from the panel who she may have thought was not familiar with her faith. [17] The RPD faulted Ms. XXXX for re-iterating this omission, and not stating a single name until after confronted with the evidence of other church names. I note however, that Ms. XXXX elaboration did not exactly mirror the names given to her by the RPD, but did repeat earlier answers of "small gatherings" and "house church," that the RPD failed to notice. Sincere and genuine - Appellant did not know why Christian holidays were not celebrated [18] I find the RPD erred in finding that Ms. XXXX was not a genuine church member based on her inability to explain why church members do not celebrate the usual Christian holidays. [19] The RPD determined that it would be reasonable to expect that Ms. XXXX would know the reason why her faith does not celebrate religious holidays. The panel rejected the explanation that Ms. XXXX did not know why and drew a negative credibility inference about her genuineness. [20] The Appellant contends that while she never thought to go behind the rationale for the lack of celebrations, she definitely knew that her church did not celebrate them. She argues that she could have easily answered in conformity with the common knowledge that Christians celebrate major events on the Christian calendar. If she was not a member, how would she know that? I agree with the logic in that argument, and would also note that the converse may also be true, that being new to the religion, Ms. XXXX may legitimately not have had the common knowledge of Christian holidays, and never gave it a thought. On the balance of probabilities, I find that either of these scenarios is more likely than the RPD's conclusion that it shows she is not a genuine member of the church. [21] Furthermore, the NDP indicates that while they do not practice celebrating holidays, "...that is not a legality..."5 of the faith, and some members do individually celebrate Christmas and Easter. In fact, a 2006 article says definitively that "...Christmas and Easter are celebrated..."6. The inference I draw from this information, is that not celebrating the holidays, is not a core belief of Ms. XXXX faith, and that her inability to articulate a rationale for this seemingly optional practice ought to be judged in that light. Sincere and genuine - RPD expecting answers on core beliefs exactly as in NDP [22] After an independent review of the evidence, including both listening to the audio recording and reading the transcript, I determine that the Appellant displayed sufficient knowledge of core beliefs to demonstrate she is a genuine convert to her church. [23] The RPD faulted Ms. XXXX for leaving out certain items when asked about the core beliefs of her new religion: home visits to nourish the converted by praying with the Bible, because preaching the gospel is central to their faith; salvation being gained by shouting and "pray reading" aloud the Bible to achieve the mingling of one's spirit with God's spirit; the belief in the "second coming." Core belief - preaching the Gospel [24] The Appellant argues that the RPD asked Ms. XXXX a series of generalized questions about her religious beliefs and interpreted the answers in a negative light because the panel was expecting exact answers in accordance with the documentary evidence. I agree with the Appellant's submission and note that Ms. XXXX is a person who converted not that long ago who might presumably still be on the receiving end of nourishing home visits to the converted. In fact, she testified that she was not able to understand the Bible without the help of her Bible study group, indicating her novice status. Her answer on the core belief of spreading the gospel was that she would shout out the Lord's name, spread and explain the gospel on the streets of Chinatown, and preached the gospel and shared her experience and the miracles of God with neighbours and friends around her. That sounds to me, like preaching the gospel. [25] I find that the RPD's expectation that Ms. XXXX would elaborate in greater detail on how she preached the gospel beyond that answer is overly stringent. The RPD was also wrong to say that Ms. XXXX re-iterated an omission, because in answer to the panel's second question about general core beliefs, Ms. XXXX testified "...to spread the Gospel...". I consider Ms. XXXX elaboration later to be sufficiently congruent with the documentary evidence, such that the RPD's negative credibility inference was unwarranted. Core belief - shouting to mingle with God's spirit [26] On the core belief of mingling spirits with God, Ms. XXXX explained that "So when we shout those prayers, we are mingling with the spirit of the God." She argues that just because she was not able to identify the prayer as part of the core beliefs, does not mean she is not a genuine member of the faith. I agree that Ms. XXXX answer corresponds with the RPD's recitation of the documentary evidence that members shout the Lord's name to gain salvation as this is a form of mingling one's spirit with God. I note that the RPD did not put the concept of shouting equaling mingling with God directly to Ms. XXXX, but she volunteered that tenet of the faith unprompted. The RPD wrongly characterized that explanation as proceeding to repeat the omission already highlighted by the panel. I find that the RPD simply misheard the answer it was looking for and reached an unwarranted negative credibility inference from it. Core belief - the second coming [27] On the belief in a second coming, the RPD expected Ms. XXXX to know what it is and that it is a core tenant of her faith. The Appellant contends that asking her to volunteer information about the second coming is unreasonable, citing the Federal Court in Gao7 that questioning should be focused on the genuineness of the belief and not theological correctness. The Court held that an adverse conclusion should not be based on minutiae or holding the claimant to an unreasonably high standard of religious knowledge. [28] I agree with the RPD that it would be suspicious that Ms. XXXX seemed unaware of the core belief in the second coming of the central figure of the faith, if in fact it is a core belief. I note however, that the only reference in the documentary evidence in the RPD Record to the second coming is a single line in a twenty-six year old paper by Human Rights Watch.8 The other document is more recent Research Response prepared for the Australian Refugee Review Tribunal examining Shouter beliefs, how they worship, and differences from mainstream Christianity9. In twelve pages, there is much discussion about shouting, mingling, preaching dogma and persecution of this faith branded an evil cult by the government. There is not a single reference to the second coming. While I understand it may be considered bad form to analyze a document for what it does not contain, I think it a reasonable expectation to find some reference to the second coming, if it is as central a tenet of the faith as the RPD determined it was. [29] Further on the second coming, the RPD writes that Ms. XXXX was given multiple opportunities to explain the omission. Aside from the semantic exercise of whether two questions answered by two questions constitutes multiple opportunities, I find there is insufficient evidence to draw a negative credibility inference. The RPD faulted counsel for choosing not to seek clarification, but I believe a few follow-up questions by the RPD were in order after Ms. XXXX asked if the panel was referring to Jesus after the resurrection. That question shows that Ms. XXXX might have been heading toward a more fulsome answer, because the second coming is about Jesus, and it is about an event after the resurrection. I determine that a negative credibility inference is not warranted on this issue. Summons is identical in form to document in current country condition evidence [30] I determine that the summons issued by Chinese authorities is authentic, on a balance of probabilities. [31] The RPD highlighted issues it had with the notice of summons and confirmation of release, citing few security features and that the border frame and text appeared to the panel to be over top of security stamps rather that under them. More important to its determination that the documents are not reliable, the RPD found that the notice of summons presented does not resemble the NDP sample document, being different in format and structure. According to the panel, these irregularities undermined their authenticity and reliability, and so the documents did not overcome the RPD's general credibility concerns. [32] The Appellant contends that she had no competence or qualifications to address questions about what the summons should look like. In submissions, counsel pointed out that summonses may have changed since the 2013 Response to Information Request (RIR) containing the samples.10 I have conducted an independent assessment of the documentary evidence and find that the public security summons issued to Ms. XXXX is quite similar to the sample summons in the 2013 RIR. The sample document is two pages, with one page given to the person summoned and the other page detached and retained by authorities. Ms. XXXX provided one page which is practically identical to the page on the right side of the sample document that is given to the individual. [33] This document is also referenced in the most current documentary evidence from February 9, 201811, with an English translation attached. The document refers to the same three Chinese characters at the top translated as "Summons for Appearance." The format is identical to the one page of Ms. XXXX document with three lines of text with Chinese characters and spaces for dates and times in the same places. Signature and stamp locations as well as three lines at the bottom of the form have the same Chinese characters and spaces for dates and times in exactly the same places. The English translation displays the same content as the English translation of Ms. XXXX document. [34] I surmise that in finding irregularities, the RPD may have compared Ms. XXXX document to one of the other three types of summons that are not similar to the public security summons. Alternatively, the RPD may have compared it to the two- page public security summons in finding it different in format and structure, unaware of the process of providing only part of that document to the person summoned. Either way, I find the RPD analysis of the form of the summons to be faulty. [35] With respect to the RPD's brief expression of concern with the security features of the document, I note that the panel did not make a finding that it was not authentic based on those concerns. The panel specifically based its' negative finding in reference to irregularities compared to the NDP sample documents, but did not link that finding to its' observations on the security features. Further, upon review of the document in the RPD Record, I am unable to confirm those observations. I determine that the RPD's concerns do not rise to the level of "numerous irregularities" on its' face, that allow the tribunal to impugn a document's authenticity12. Given the absence of any irregularities in the format and structure of the document, I find on a balance of probabilities that there is insufficient evidence to find that the summons is not authentic. [36] I determine that Ms. XXXX summons to appear for questioning by the PSB to be authentic and warrants substantial weight. The summons, together with the confirmation of her release from detention, the list of seized items and the receipt for payment of a fine, are sufficient corroboration for Ms. XXXX story of detention and pursuit by the PSB. I conclude that the agents of persecution were seeking her out and that there is a serious possibility they will continue to do so if she returns to China. Not necessary to consider other grounds of appeal [37] The Appellant raised other grounds of appeal: a) RPD did not take account of the psychological report showing Ms. XXXX had a confused, fragmented and fragile state of mind; b) RPD spent the first fifteen minutes questioning about passports in an effort to taint Ms. XXXX credibility; c) RPD questions were based on a pre-conceived idea that Ms. XXXX was a fraudulent claimant; d) Ms. XXXX was ill-served by her counsel who asked no questions, so Ms. XXXX narrative of persecution was not even addressed at the hearing. [38] I have determined that there is sufficient evidence already addressed herein, including the corroborating letter from her church in Canada, to conclude that Ms. XXXX is a genuine convert to her new faith. I accept the evidence that she was arrested and persecuted by the PSB while in China for her religious activities. I determine it is not necessary to address the other grounds of appeal put forward. [39] The country condition evidence is clear that the Shouter's church is banned in China and operates underground. Members have been labelled an evil cult and have been subject to arrest and harassment for many years. 13 This evidence provides an objective basis for finding that as a genuine practicing member of that church, Ms. XXXX fear is well-founded and there is a reasonable chance she would face the same treatment if returned to China. CONCLUSION [40] Following an independent assessment of all the evidence, I determine that there is a serious possibility that the Appellant would face persecution by the Chinese authorities for her religious activities if she were to return to China. Since state authorities are the agents of persecution, there would not be any state protection or any internal flight alternative available to her. [41] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "Joseph Wyger" Joseph Wyger June 12, 2020 Date 1 Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza 2007 FCA 385 3 Canada (M.C.I) v. Huruglica, 2016 FCA 93, at para. 103. 4 Exhibit RPD-1, RPD's Record, Exhibit # 5, Refugee Review Tribunal, CHN17561, at pp. 98-105, 7 October 7 2005. and Exhibit RPD-1, RPD's Record, Exhibit #10, Refugee Review Tribunal, CHN31015, at pp. 230-242, 8 December 2006. 5 Exhibit RPD-1, RPD's Record, Exhibit #10, Refugee Review Tribunal, CHN31015, at p. 240, 8 December 2006. 6 Ibid., at p.240. 7 In Gao v. Canada (M.C.I) 2015 FC 1139 8 Exhibit RPD-1, RPD's Record, Exhibit # 5, Refugee Review Tribunal, CHN17561, at page 99, 7 October 2005. 9 Exhibit RPD-1, RPD's Record, Exhibit #10, Refugee Review Tribunal, CHN31015,at pp 230-242, 8 December 2006. 10 Exhibit RPD-1, RPD Record, Exhibit # 3, NDP China, 30 April 2018, Item 9.10, Immigration and Refugee Board of Canada (IRB), Respones to Information Request (RIR) CHN 104458.E: Samples of Summoneses and subpoenas. 18 October 2013. 11 National Documentation Package (NDP) for China, 31 March 2020, Item 9.10, Immigration and Refugee Board of Canada (IRB), Respones to Information Request (RIR), Item 9.2 CHN 106016: English Translation of samples of summonses. 9 February 2018. 12 Kazadi v. M.C.I 2005 FC 292 13 Exhibit RPD-1, RPD's Record, Exhibit # 5, Refugee Review Tribunal, CHN17561, pp. 98-105, 7 October 7 2005. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-29759 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