Categories
All Countries China

2019 RLLR 29

Citation: 2019 RLLR 29
Tribunal: Refugee Protection Division
Date of Decision: November 18, 2019
Panel: Mary Lipton
Counsel for the Claimant(s): Doy Maierovitz
Country: China
RPD Number: TB9-04529
Associated RPD Number(s): TB9-04596
ATIP Number: A-2021-01124
ATIP Pages: 000170-000174


DECISION

[1]       MEMBER: This is the decision for 45-year-old claimant, [XXX], file number TB9-04529, and her 19-year-old daughter, claimant [XXX], file number TB9-04596. I have carefully considered the evidence in this case and have decided to render my decision today orally. You will receive your notice of decision in the mail and your council will also received a copy.

[2]       The claimants, [XXX] and [XXX], claim to be citizens of China and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find that you are Convention refugees for the reason that you have established that you face a serious possibility of persecution in China base on your Falun Gong practice and spiritual beliefs.

[3]       The allegations are fully set out in your Basis of Claim Form, sign on January 16, 2019. To summarize, you a mother and daughter from China, alleged that your fear persecution in China because of your Falun Gong beliefs and involvement in the practice of Falun Gong. Your mother introduced you to Master Lee’s book Zhuan Falun in [XXX], 1997, while you were a senior at the [XXX], and before the persecution of Falun Gong practitioners started in July 1999. At that time, people were already talking about the book and you were curious, so you began to read it during your winter holidays. You were profoundly impacted by the theory and principals described in the book as they reverberated with your own thinking about the universe, time, space and the human body. You have been studying and practicing Falun Gong since then.

[4]       After the persecution in 1999, you and your family were constantly harassed by the PSB. You were arrested and detained eight times from October 1999 to September 2008. The last being for four years during which you suffered abuse and torture and went on hunger strikes. Upon release since September 2008, you continued practicing Falun Gong in secret and your health improved quickly. Although the psychological scar of your experiences in prison remained.

[5]       You introduced your daughter to Falun Gong and by 2016, she was reading the Zhuan Falun on her own. Although you were busy with your career, you continued to be monitored by the PSB who would harass your husband. Fearing persecution for your daughter and yourself by Chinese authorities who have banned Falun Gong everywhere in China, you decided that you and your daughter would leave the country. You planned to leave China after your daughter had arrived safely in Canada in [XXX] 2018 and after the [XXX] 2018 was over. You applied for a passport in [XXX] 2018 and for a visa to Canada in [XXX] 2018.

[6]       After repeating attempts by the PSB to locate you, you went into hiding until the end of the summit and waited until [XXX] 2018 to move forward with your plan to come to Canada to rejoin your daughter. You left China for Canada on [XXX], 2018, from the [XXX] city airport and you wanted to avoid the [XXX] and [XXX] airports for fear of detection. Once in Canada, you immediately got involved with the Falun Gong community along with your daughter who had already been in contact with the community. You both filed for refugee protection on January 16, 2019.

[7]       I find that you have established your identities as nationals of China, on a balance of probabilities, through your testimony and the supporting documentation you presented including your Chinese resident identity cards in Hukou and copies of your passports issued by the People’s Republic of China which you provided to authorities at the time you formalized your claim.

[8]       You have also presented today at the hearing, your original resident identity cards, your Hukou and your marriage certificate. You testified in a straightforward, spontaneous and unhesitating manner and you answers to the questions, the Panel posed about the central aspects of your claim were detailed and unrehearsed. There were no material inconsistencies in your testimony or contradictions between your testimony and the other evidence before the Panel.

[9]       Your testimony was consistent in content and chronology with this and the other documents you provided. In particular, your testimony about your practice of Falun Gong and in China and Canada, and your knowledge of Falun Gong was detailed, natural and clearly based on your personal experience as a practitioner. Although, I initially had concerns with the delay in claiming refugee protection in Canada, you explained that you approached the Falun Dafa Association for support in [XXX] 2018 who investigated you for two months and who referred you to council who spent the rest of time with you and your daughter gathering data and documents.

[10]     Your claim was extensively corroborated with supporting documentation which includes photographs of your participation in various Falun Gong activities in Canada, supporting letters from five Falun Gong practitioners in Canada including two supporting letters from your-, for your daughter, a supporting letter from your mother, who introduced you to Master Lee’s Book, the Zhuan Falun, in [XXX] 1997, supporting letters from your brother, sister and   husband, supporting letter from the Falun  Dafa waist drum band in Toronto of which you are a member, a news report from [XXX] a website that reports on the worldwide Falun Gong community about your [XXX] at the [XXX] provincial women’s prison where you were imprisoned from 2004 to 2008, dated June 3rd, 2005. You have also provided a decision on re-education through labour documents, a detention notice, an arrest notice, an expert opinion, conclusion from the prison in [XXX] where you were detained, the indictment, the criminal judgments, the criminal ruling and a release certificate.

[11]     More significantly, there is also the letter of support from the Falun Dafa Association [XXX] dated [XXX], 2019. The Panel has taken particular note of the letter written on your behalf from the Falun Dafa Association which verifies your Falun Gong practice here in Canada. The Panel places great weight on that letter which is supported by an Immigration and Refugee Board response to information request on the Falun Dafa Association [XXX]. In that response to information request, it states that the asso-, association set out that credibility is very important because it can save the lives of genuine practitioners who risk persecution if returned to China. They therefore only support those practitioners who are known to them and take serious steps to determine the validity of each individual claim before agreeing to support them. The document goes on to provide the list of those people that are responsible for signing these support letters and I note that in the [XXX] region it is [XXX]. The letter that you had provided is from [XXX] and he confirms that you are both Falun Gong practitioners. I find that this letter corroborates your identity as a Falun Gong practitioner with respect to you and your daughter.

[12]     In the letter, Mr. [XXX], who [XXX] president of the Falun Dafa Association [XXX], went over the rigorous procedures for the Falun Dafa Association supporting a Falun Gong practitioner in his letter. While a letter of support from the Falun Dafa Association is not determinative of any refugee claim in the Panel’s experience, such a letter is a relatively rare occurrence and is certainly one piece of evidence that the Panel takes seriously. In this case, we have a letter from the Falun Dafa Association [XXX].

[13]     For these reasons, the Panel finds that you have established, on a balance of probabilities, your Falun Gong practitioner identities and the Panel believes that your commitment to your spiritual practice is genuine. On the basis of your credible and consistent testimony and because of his consistency with the documentary evidence you have presented which I accept, the Panel believes what you have alleged, namely that you were both Falun Gong practitioners, that you were arrested and detain, that you were abused and tortured by the Chinese authorities and harassed for being a Falun Gong practitioner. And I find that you have established that you have a subjective fear of persecution in China based on your Falun Gong practice and identity as a Falun Gong practitioner with respect to you and your daughter.

[14]     The objective evidence is also consistent with your account of fearing persecution as Falun Gong practitioners in China and Canada. Specifically, I have considered the objective documentary evidence in Exhibit 3, namely the National Documentation Package, known as the NDP for China, version 31 October 2019. At Item 2.1 of the NDP, the U.S. Department of State confirm of the People’s Republic of China is an authoritarian state in which the Chinese Communist Party commonly known as the CCP is the paramount authority. Repression and cohesion persist including as against members of banned religions and or spĀ­, spiritual practices such as Falun Gong. In Item 12.23, an Immigration Refugee Board response to information request on the treatment of Falun Gong practitioners contains information that further confirms that there is a serious possibility that the practice of Falun Gong will be met with persecution.

[15]     In Item 12.22, a 2008 report by the Falun Dafa Information Center states that family members of those who practice Falun Gong have suffered various degrees of persecution ranging from lost of employment to detention and torture. The United States Commission on International Religious Freedom 2019, annual report in Item 12.2 indicates that the Chinese government has classified Falun Gong as an evil cult. Under article 300 of the Chinese criminal code, belonging to a banned group such as the Falun Gong is punishable with three to seven years of imprisonment or more. Throughout 2018, authorities harassed, detained, intimated Falun Gong practitioners simply for practising their beliefs. There were reports that many of the detainees suffered physical violence, psychiatric abuse, sexual assault, forced drug administration, organ harvesting and sleep deprivation. Items 2.1 and 12.23 also reference the State’s use of harassment, intimidation, imprisonment and torture against Falun Gong practitioners.

[16]     Base on the credible evidence provided by you, with respect to your Falun Gong activities both in China and in Canada, as well as the documentary evidence before the Panel, the Panel finds that your fear of persecution in China at the hands of Chinese government has an objective basis and therefore, you have a well-founded fear of persecution.

[17]     Having found that, you face a well-founded fear of persecution, on the basis of being Falun Gong practitioners, the Panel must consider whether state protection is aval-, available to you or whether you could safely live elsewhere in China without facing such risks. In this case, the Panel finds that the State is the agent of persecution. It is the state authorities who have outlawed the practice of Falun Gong whom you fear. The Panel, therefore, finds, on a balance of probabilities, that it is objectively unreasonable for you to seek the protection of the State.

[18]     The Panel has also considered whether a viable internal flight alternative exists for you. On the evidence before this Panel, I find, on a balance of probabilities, that there is a serious possibility of persecution for you throughout China given that the State is the agent of persecution and is in control of the whole country. The Panel, therefore, finds that there is no viable internal flight alternative for you in China. Based on the forgoing analysis and considering the totality of the evidence before the Panel, I therefore find that you are a Convention refugees and I accept your claims.

———- REASONS CONCLUDED ———-

Categories
All Countries China

2019 RLLR 26

Citation: 2019 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: December 2, 2019
Panel: Daniel Mckeown
Counsel for the Claimant(s): Mohammed Tohti
Country: China
RPD Number: TB8-31053
Associated RPD Number(s): TB8-31087, TB8-31110
ATIP Number: A-2021-01124
ATIP Pages: 000159-000161


DECISION

[1]       MEMBER: I’ve considered the testimony and evidence in this claim and I am now prepared to render a decision in IRB file number TB8-31053. The claimants seek refugee protection against China pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act. For the following reasons, the Panel finds that the claimants are Convention refugees and this claim is accepted.

[2]       This claim was based on the following allegations. The claimants are ethnic Uyghurs. They left China in 2014 so that the adult male claimant could work in Malaysia fearing current pol-, Chinese policies towards Uyghurs. The claimants fear for their lives if they were to return to China. The claimants left Malaysia and came to Canada on November 20th, 2018. They signed their Basis of Claims on December 8th, 2018.

[3]       The identity of the claimants were established on the basis of their Chinese passports. The originals of which were seized by the Minister.

[4]       The Panel had no significant concerns about this claim. There was one potential exclusion issue, given that the claimants had Malaysian residence permits in their passports. However, those residence permits are also-, also clearly state that their residence was dependent upon the validity of their passports. Which means that in order for the claimants to continue legally residing in Malaysia, they would have to renew their passports with the Chinese government at some point in the foreseeable future. Given the claimants ethnicity and the government of China is the agent of persecution, it would not be reasonable to expect the claimants to have their Chinese passports renewed. They could not reasonably exercise any right to residency in Malaysia, therefore even if it was available to them and of akin to Malaysian citizenship.

[5]       The sole determinative issue in Uyghurs-, in Uyghur claims in this Panel’s view is the identity of the claimants as Uyghur. That is because of the brutally persecutory nature of the Chinese government towards the Uyghur people. This Panel has access to reliable and credible resources such as the U.K. Home Office report and the US DOS report. Each of which make clear that the Chinese government has oppressed the Uyghur people in virtually every aspect of their lives. Some reports even suggest that as many as two million Uyghur people are now detained in concentration camps.

[6]       The country conditions evidence is suggestive that the Chinese policy of assimilation has now arguably moved into the realm of genocide. For this reason, in this Panel’s view, identity as an ethnic Uyghur is sufficient to establish persecution.

[7]       In this claim, the claimant presented their passports which noted their places of birth in [XXX] province. The claimants spoke Uyghur. And the Panel had no reason to disbelieve any of the evidence or testimony. The Panel finds that the claimants are indeed likely ethnic Uyghurs. Whereas the State is the agent of persecution, the claimants have rebutted the presumption that state protection would be adequate and forthcoming to them. Likewise, there is no location in China where they can go where they would not face a serious possibility of persecution.

[8]       For all these reasons, the Panel finds that this claim is credible. The claimants’ fear is well-founded. The claimants face a serious possibility of persecution on account of their ethnicity.

[9]       The claimants are Convention refugees and this claim is accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries China

2019 RLLR 14

Citation: 2019 RLLR 14
Tribunal: Refugee Protection Division
Date of Decision: December 18, 2019
Panel: Teresa Maziarz
Counsel for the claimant(s): Jordan Duviner
Country: China
RPD Number: TB8-14763
ATIP Number: A-2020-01124
ATIP Pages: 0000104-0000108


[1]       MEMBER: This is the decision of the Refugee Protection Division in the claim relating to File Number TBS-14763, and to the Claimant, who is [XXX], [XXX]. The Panel has heard the claim at two sittings, on September 23rd, 2019 and December 18th, 2019, and is prepared to make a decision in the claim that is favourable to the Claimant.

[2]       The Panel finds that the Claimant is a Convention refugee in accordance with section 96 of the Immigration and Refugee Protection Act. Given this decision, the Panel will not provide an analysis with regard to section 97(1) of the Act.

[3]       The Panel makes the decision in favour of the Claimant because she meets all of the elements of the definition of a Convention refugee.

[4]       Starting firstly with the unspoken element of identity, the Claimant has produced ample evidence of who she is in terms of her name and date of birth and country of citizenship of China, which includes a certified true copy of her passport that is found in Exhibit 1, the original of which has been seized by authorities when she made her claim for refugee protection in Canada. There are other supplementary documents which support her identity, as is noted in the exhibits.

[5]       The Panel did have a concern that her Canadian visa application provides a different account in terms of who her husband is and her family structure and her educational and work history. The Panel accepts on a balance of probabilities that it does not materially undermine the Claimant’s account of her identity. The Panel notes that in terms of her own identity, the application was made in the same name and date of birth and country of citizenship, and the Panel finds on a balance of probability that the other information was amended as she testified for the purpose of enhancing the likelihood of obtaining a Canadian visa in circumstances in which she was fearing persecution.

[6]       I would note in this regard, also, that having described herself as a XXXX in the Canadian visa application. And without any offence to the Claimant, she did not come across as a sophisticated witness who is indeed someone in that profession. Having said that, while she did not have such sophistication, she was eloquent in regard to her religious belief, and I’ll turn to that later.

[7]       The Claimant also satisfies the element of nexus in that she has established credibly a Basis of Claim that relates to the ground of religion. Specifically, the Claimant is an adherent of the Church of Almighty God, which is banned in China, and in that regard, she provided credible and trustworthy evidence in support of her faith. As noted in counsel’s submissions, she had a wealth of knowledge of the basis of her faith and she has letters of support that indicate she is an adherent of that faith, including a letter from one of the leaders of the faith in Canada, who discusses in his letter a verification process that the Claimant underwent.

[8]       The Claimant also had a witness who came and testified about how they hold meetings of worship in Canada, and that information was substantially consistent with the information provided by the Claimant. It was the witness’s opinion that the Claimant is a genuine worshipper of the faith of the Church of Almighty God, and while that is a decision for the Panel to determine, it’s still relevant testimony to consider the opinion of a worshipper of the same faith who attends the same meetings, as does the Claimant, in Canada at the same place of worship and location.

[9]       While the Claimant had some difficulty in terms of identifying some aspects of the Church of Almighty God as stated in her disclosures, I find that in the context of all of her knowledge that those concerns are remedied and are not determinative of the issue of credibility or of the issue of her genuineness of her faith. For example, I had asked — the Panel had asked at the first and second sittings about the view of the Church of Almighty God in regard to the Communist Party, and the answer provided, as I reflect further on the testimony, responded to what the church thinks in China of how the Communist Party treats its adherents, and so the Claimant went on to discuss how adherents are jailed, maltreated, et cetera. Further questions did not elicit the information that is in her disclosure; however, when counsel asked the question another way in terms of what name does the Church of Almighty God give to the Communist Party, the Claimant did answer correctly that it calls the Communist Party the Red Dragon.

[10]     The Panel was also concerned that the Claimant was unable to discuss what is said to be, in her disclosure, a core tenet of the Church of Almighty God, and that is to participate in essentially battling the Communist Party. I accept that the Claimant understood the question to be in terms of physically slaying Communist members of the government, which is against their core belief.

[11]     So those are just two examples. There were others, but as the Panel notes, in the context of the totality of the evidence of the Claimant’s knowledge of this faith, those concerns are no longer determinative of the claim and of the issue of credibility.

[12]     The Claimant has also continued her faith in Canada, and that is supported by, again, the witness who testified, by her own consistent testimony, by the letters of support, by the letter of one of the leaders of the church in Canada, and by the photographs that have been provided, as well as, earlier noted, her knowledge.

[13]     Turning to the element of the definition of a Convention refugee relating to prospective risk, the Claimant has credibly established on a balance of probabilities that she would face a reasonable chance of persecution in China if she were to return to that country. And while I have kept the videos or snapshots of the videos that were provided in her disclosure, I don’t make the finding on that basis. I make the finding on the basis that the Claimant has shown credibly on a balance of probabilities that she is a genuine adherent of the Church of Almighty God and that it is not reasonable to expect that she drop that faith and return to China, and also, the totality of her evidence shows that she would indeed continue in that faith, and as an adherent of that faith she would therefore be persecuted if she returned to China.

[14]     Now, I did consider the possibility of the Claimant’s activities in Canada coming to light to the Chinese authorities, and I have considered their response to information requests in that regard and other objective evidence in the disclosures, but I don’t find that to be a determinative factor because I don’t have sufficient evidence on a balance of probabilities to find that she would be identified from the snaps of the videos that are shown in Exhibit 6, wherein she does not appear to be named, and the name that is on those snaps has been placed after their printing for my benefit so that — or whoever the Panel were to have been — so that the Panel would know that she is in those snaps of the video. And in any case, it’s her genuineness and the likelihood that she would continue her genuine faith in the Church of Almighty God if she were to return to China that raises and meets the risk of a reasonable chance of persecution from Chinese authorities.

[15]     So turning to the matter of state protection. Given that the state is the agent of persecution, as is well-documented in the National Documentation Package for China, and in counsel’s and the Claimant’s own disclosures, there is no possibility of the Claimant receiving adequate state protection at the operational level relevant to her personal circumstances as a genuine adherent of the Church of Almighty God, and so therefore, that aspect of the definition of the — of a Convention refugee is also met.

[16]     Just to give one example from the Claimant’s evidence: There is, in Exhibit 6, starting at page 15, evidence from a professor from the University of Nevada that talks about the church in China. And that’s one example, but from what I understand is that if someone is indeed a genuine member of the Church of Almighty God then these documents support the reasonable chance of persecution of such members in China, as does, of course, the National Documentation Package that I’ve mentioned.

[17]     Turning to the matter of internal flight alternative. I find that because the state is the agent of persecution and has the means to find the Claimant in every part of the country, especially given that she would continue to express her faith as a member of the Church of Almighty God were she returned to China, that there is no viable internal flight alternative for her in China.

[18]     And — so I’ve given further consideration to the file and to some more testimony, but I believe that I have reviewed everything for the decision that is relevant to support the finding of the Claimant being a Convention refugee. Of course, the Panel’s examples are truncated and the record will speak for itself, not only in terms of the objective evidence, but also the Claimant’s testimony that demonstrates her genuine faith in the Church of Almighty God.

[19]     So for all of these reasons, I find that the Claimant is a Convention refugee in accordance with section 96 of the Immigration and Refugee Protection Act, and that her claim is allowed.

[20]     Thank you, everyone for your participation. This hearing is concluded.

— HEARING ADJOURNED

Categories
All Countries China

2019 RLLR 12

Citation: 2019 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2019
Panel: A. Lopes Morey
Counsel for the claimant(s): Shelley S Levine
Country: China
RPD Number: TB8-10761
ATIP Number: A-2020-01124
ATIP Pages: 000093-000098


[1]       This is the decision in the claim of [XXX] (“the claimant”). She claims to be a citizen of China and is claiming refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).

ALLEGATIONS

[2]       The allegations are set out in the claimant’s Basis of Claim form (BOC)i and were detailed further in her oral testimony. In summary, the claimant alleges she fears persecution at the hands of Chinese authorities due to her violation of the Family Planning Policy.

DETERMINATION

[3]       The panel finds that the claimant has established that she faces a serious possibility of persecution in China on the basis of her membership in a particular social group, namely as a woman who violated the family planning policy.

ANALYSIS

Identity

[4]       The panel is prepared to accept the identity of the claimant on a balance of probabilities based on the certified true copy of her passport at Exhibit 1.

Credibility

[5]       The determinative issue in the claim was credibility. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities. The panel found the claimant entirely credible in this claim. Her testimony was detailed, spontaneous, expressive and entirely consistent with her narrative and with the documentary evidence that she provided. The panel finds the claimant was forthcoming where the panel had questions about missing documents, and that minor inconsistencies were reasonably explained. The panel therefore finds that the claimant has established her allegations on a balance of probabilities.

a. Forced insertion of IUD, Abortion, Fine, and threat of Sterilization

[6]       The panel finds that the claimant established on a balance of probabilities that she was forced to wear and IUD and then forced to undergo an abortion when it was discovered she was pregnant for a third time, as alleged.

[7]       The claimant was able to describe in detail her experience under the family planning policy as it impacted her directly. She testified that she was first forced to wear an IUD in 2008 after the birth of her first child. Given the child was a female, the claimant was allowed to apply for a permit to have a second child. The claimant testified that she made the application and had her IUD removed in 2012. After her second daughter was born in [XXX] 2015, the claimant was again forced to wear an IUD and undergo pregnancy checks three times per year. Due to medical complications, however, the claimant had her IUD removed in [XXX] 2017.

[8]       The claimant provided a document from [XXX] Hospital to corroborate the insertion of the IUD in 2015 after the birth of her second child, and the removal of the IUD for health reasons in 2017.ii On examination of the original documents, the panel found no inconsistency with its form or its content as compared to the claimant’s testimony. The panel therefore finds that the document is genuine on a balance of probabilities, and finds that the claimant has established both that she was forced to wear an IUD and that it was removed in 2017 for health reasons.

[9]       The claimant testified that after the removal of the IUD she was put on the birth control pill and required pregnancy checks four times per year. On [XXX], 2018 during one of these checks, it was discovered that the claimant was pregnant. The claimant was therefore not allowed to leave the hospital and was put under anesthesia, at which time she underwent an abortion against her will. When she woke up, the claimant was informed that she had not been sterilized because after the abortion she had bled too much and was too weak to endure another procedure. However, she had been left with two documents from Family Planning officials: the first was a notice to pay a fine, and the second a notice instructing her or her husband to report for sterilization. The claimant has provided these two documents in evidence.iii As the panel found no issues with the content or form of the documents, they are presumed genuine. The panel finds that the claimant underwent an abortion and was targeted for sterilization by authorities as alleged.

Objective Basis

[10]     Country condition documents are consistent with the claimant’s allegations that there is a serious possibility she would face persecution should she return to China. Further, the Courts have found that forced abortion constitutes persecution, which the claimant has established she has already endured.

[11]     The panel acknowledges that the country condition evidence in the National Documentation Package (NDP) about China’s family planning policy and implementation is varied within and between provinces.iv There is a lack of information on implementation specific to Jiangsu province; however, despite variances, existing documentation suggests that common tools used to implement the family planning policy are still in practice across China. Until there is a clearer picture of whether and to what extent the local and provincial levels are relaxing implementation of the family planning polices, decisions must be made on available information, which suggest that coercive measures are still in effect.

[12]     For example, item 5.5 of the NDP, from October 2019, indicates that “despite the change in demographic landscape, the two-child policy is still being ‘strongly’ enforced.”v It points to the discrepancy between the views of Chinese leadership, which recognizes the need for higher birth rates, and the interests of local government officials who derive a large amount of revenue and power from the continued strict implementation of the policy. The same document notes “despite the encouragement from Chinese leaders for couples to have more children, local government officials… have a vested interest in ‘maintaining the rules that justify their jobs and authority”, even if violence is used.vi It cites multiple sources which each indicate that, while less common, forced abortions, sterilizations, and other invasive measures such as the coerced insertion of IUDs and regular pregnancy checks continue to be used.vii This is further corroborated in the documentary evidence provided by counsel.viii

[13]     Further, the United Kingdom Home Office Country Information and Guidance Report on China entitled Contravention of National Population and Family Planning Laws states that “couples who exceed their government-mandated birth limit continue to be punished with crushing fines equal to two to ten times their annual household income.”ix

[14]     The panel therefore finds that overall the documentary evidence corroborates the claimant’s allegations that the government continues to impose harsh penalties on those who violate the family planning policy, that she herself underwent an abortion against her will upon discovery of her third pregnancy, that she was subject to a significant fine as a result of that pregnancy, and that she has been targeted for sterilization.

[15]     The claimant already has two children, as evidenced by their birth certificatesx, and, as indicated above, she has already been identified by family planning officials as a target for a fine and forced sterilization. Therefore, even if implementation of the family planning policy in Jiangsu province is relaxed in the future, the claimant is unlikely to benefit from the change on a forward-looking basis such that she would no longer face a serious possibility of persecution.

[16]     Having considered all of the evidence, both in testimony and the documentary evidence, the panel finds the claimant has established that there is a serious possibility of persecution should she return to China, in the form of sterilization and the limiting of her future reproductive choices. The panel finds that the claimant’s fear is well-founded.

State Protection

[17]     States are presumed to be capable of protecting their citizens except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant has to provide clear and convincing evidence of a state’s inability or unwillingness to protect its citizens.

[18]     In this case, the agent of persecution is a branch of the State itself which is implementing an official State policy. The panel therefore finds on a balance of probabilities that State protection would be unavailable to the claimant in China.

Internal Flight Alternative

[19]     Given that the State is the agent of persecution, and that the claimant is known to State authorities, the panel finds that there is a serious possibility of persecution for the claimant throughout China. Therefore, there is no internal flight alternative available to her.

CONCLUSION

[20]     Based on the totality of the evidence, the claimant has established that she faces a serious possibility of persecution on a Convention ground, namely her membership in a particular social group, as a woman who has violated the family planning policy. Therefore, the panel finds that she is a Convention refugee and accepts her claim.

(signed)           A. Lopes Morey

November 7, 2019

i Exhibit 2
ii Exhibit 9, p. 4-7
iii Exhibit 9, p. 8-11
iv Exhibit 3, NDP China, version 28 June 2019, for example Item 5.7
v Exhibit 3, NDP China, version 28 June 2019, for example Item 5.5, RIR CHN106235.E
vi Exhibit 3, NDP China, version 28 June 2019, Item 5.5, RIR CHN106235.E
vii Ibid
viii Exhibit 5
ix Exhibit 3, NDP China, version 28 June 2019, Item 5.6, section 5.5.2
x Exhibit 7, p. 20-23

Categories
All Countries China

2019 RLLR 8

Citation: 2019 RLLR 8
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2019
Panel: William T. Short
Counsel for the claimant(s): Luke McRae
Country: China
RPD Number: TB6-02224
ATIP Number: A-2020-01124
ATIP Pages: 000058-000064


REASONS FOR DECISION

[1]       [XXX] (the claimant) is a 27-year-old man who is a citizen of the People’s Republic of China (China). He claims that he is a Convention refugee or a person in need of protection pursuant to the provisions of section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1

ALLEGATIONS

[2]       The claimant is a gay man. He alleges that should he return to China, he would run a significant risk of being subjected to electroshock therapy and other cruel and abusive treatments in order to “cure” him of his gay sexual orientation.

Allegations of material fact

[3]       The claimant’s story is a sad one and can be seen in its entirety in the narrative portion of his Basis of Claim Form (BOC).2

[4]       Briefly put, the claimant was subjected to severe and even appalling mistreatment by his parents (mainly by his mother) while he was young. This resulted in the claimant running away from home. He was, however, found by his father, returned home, and subjected to more mistreatment.

[5]       The mistreatment had a significant negative effect on the claimant’s physical and mental health. It culminated in the claimant attempting suicide in 2012.

[6]       To make the claimant’s life even more complicated, the claimant discovered when he was a young man that he was gay. He didn’t come out to his parents but maintained that he was bisexual.

[7]       In 2010, the claimant came to Canada as a student to study civil engineering. He returned to China on occasion between 2011 and 2014 but hid his true sexuality from his parents. In his last visit to China in 2014, the claimant “came out” to his parents as gay. This resulted in the claimant being involuntarily confined to a psychiatric facility (although he was 22 years old at the time) and subjected to electroshock therapy.

[8]       After he had returned to his parents’ home one night, the claimant was able to feign sleep when he surreptitiously did not take the sleeping pills his parents had given him. He escaped from his parents’ house and stayed in a small hotel for a few days before catching his flight back to Canada.

[9]       At present, the claimant is remarried (he had previously married, but divorced). He and his husband travelled from [XXX], where they now reside, for the hearing. The claimant’s husband was an observer at the hearing. I determined that it was not necessary for the claimant’s husband to testify, as I accepted that the claimant was gay.

[10]     The claimant has contact with his parents through an internet service, but they do not discuss the claimant’s sexuality.

[11]     The claimant applied for refugee protection in February 2016 after his studies were temporarily terminated. The claimant’s student visa was valid until [XXX], 2016.

DETERMINATION

[12]     I accept the certified true copy of the claimant’s Chinese passport tendered in evidence.3 I find that the claimant is a citizen of China and that he is who he claims to be.

ANALYSIS

[13]     By alleging that he would face persecution in China on account of his sexual orientation, the claimant has established a link to a Convention ground (e.g., membership in a particular social group).

[14]     I have accepted this claim for the reasons set out below.

Initial finding of facts

[15]     This hearing was a de novo hearing of a matter originally heard by a previous panel. The matter was sent back to the Refugee Protection Division (RPD) for redetermination by the Refugee Appeal Division (RAD).

[16]     I have read the reasons of both the previous panel and of the RAD (the hearing transcript was not available). I am of the opinion that I may safely accept the findings of fact made by the previous panel and the RAD without re-litigating them.

[17]     Accordingly, I accept that the claimant is a gay man and that he has psychological and emotional issues. I also accept that the claimant has a history of mental health problems (which is documented in the record), which arose in part from the mistreatment he endured from his parents during his childhood. To this end, I have read the claimant’s medical reports, which form part of the record in this matter.4

Chairperson’s Guideline 9

[18]     In considering this claim, I have been assisted in referencing the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE).5

The uniqueness of the claim

[19]     This claim has a unique complexity, because it involves the place and treatment of sexual minorities in China, the place and treatment of sexual minorities in the Chinese mental health system, the after-effects of China’s one-child policy, and the way family ties bind individuals to their families in China in ways that might seem odd to someone looking at the situation through Western eyes.

Determinative issue

[20]     The nub of this matter boils down to whether the claimant would face a serious possibility of harm upon return to China because of the interplay of the issues noted above.

[21]     In essence, the claimant alleges that he has a tendency to suffer from depression when he is alone, as a result of the chronic mistreatment by his mother when he was a youngster. The claimant also alleges that China’s one-child policy placed pressure upon him to live up to his parents’ hopes and expectations.

[22]     The claimant further alleges that should he return to China, he would be unable to take his husband with him. As the claimant’s husband has no status in China and the Chinese government does not recognize same-sex marriages, the claimant would be unable to sponsor him. This would result in the claimant, who has already attempted suicide and has suffered from suicidal ideations, needing to seek assistance from the mental health system.

[23]     Because the claimant is gay, the Chinese mental health system would very likely single him out for “corrective” treatment in order to give him a “normal” sexual orientation. This would likely involve electroshock therapy of the type that the claimant endured.

[24]     Furthermore, although the claimant is now 27 years old, well-educated, speaks fluent English (no interpreter was required at the hearing), and is considered an emancipated adult, the claimant maintains that in China, filial piety and the Confucian tradition would emotionally compel him to seek out his parents and subject himself to their will, even if he was aware that such a course of action would be profoundly against his own interests.

Country condition documents

[25]     According to Human Rights Watch, “Homosexuality is neither a crime nor officially regarded as an illness in China.”6 An article on conversion therapy in China by online publication, Sixth Tone, states that:7

The Chinese government decriminalized homosexuality in 1997. Three years later, in 2001, the country’s psychiatric association declassified homosexuality as a mental disorder. However, activists say that there are still few legal protections for LGBT [lesbian, gay, bisexual, and transgender] people who are targeted for conversion therapy despite notable court cases questioning the practice.

[26]     The article further states that, “Clinics are cashing in on prejudices and misinformation that people harbor about the LGBT community.”8

[27]     The SOGIE Guideline indicates that sexual minorities may be forced into various “treatments,” including electroshock therapy. It notes that these treatments “violat[e] an individual’s security of the person and [are] persecutory.”9

[28]     It is accepted by this panel that in 2014, the claimant was forced by his parents to undergo electroshock therapy, which constitutes persecution as per the SOGIE Guideline.

[29]     That said, is there a serious possibility of the claimant being forced to undergo electroshock therapy or other such treatments, should he return to China?

[30]     The claimant asserts that this question should be answered in the affirmative for two reasons. Firstly, as someone who is prone to bouts of depression and suicidal ideation, he would be a stranger in a strange land without the support of his husband, his friends, or any of his support network. He would likely spiral into depression and would come into contact with the Chinese mental health system. At that point, he would run to a high risk of some of the cruel and persecutory treatments outlined in the SOGIE Guideline.

[31]     Secondly, the claimant says that if he were to return to China, he would be under the control of his parents. For Westerners, it is difficult for us to imagine how a well-educated and otherwise emancipated adult would come under the control of his parents. In his testimony, the claimant stated that his parents had given him life and that they had the right to take it away from him. He wept when he said that if he were to return to China, it would be emotionally impossible for him to not do what his parents had told him.

[32]     I find myself persuaded by these arguments. I find as a fact that if the claimant were to return to China, his emotional well-being would likely hit rock bottom, bringing him into contact with the Chinese mental health system. There would be, in my view, more than a mere possibility that the claimant would be subjected to persecutory medical treatments for a Convention reason. This, to my mind, makes him a Convention refugee.

[33]     If the claimant were to re-establish contact with his parents in China, this would likely fast-track him to the same type of persecutory treatments.

[34]     In the circumstances, it is not necessary to consider counsel’s “compelling reasons” submission with respect to section 108(4) of the IRPA.10

[35]     In reviewing this file, I must say that it is a pity that the previous RPD panel chose not to use its discretion and make a positive determination in favour of the claimant, instead of this matter having to be reheard and the claimant and his husband having to travel back to Toronto from [XXX].

CONCLUSION

[36]     I accordingly find that the claimant is a Convention refugee. His claim is therefore accepted.

(signed)           William T. Short

July 22, 2019

1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC), received February 16, 2016.
3 Exhibit 1, Package of information from the referring CBSA/CIC, received February 16, 2016.
4  Exhibit 1, Package of information from the referring CBSA/CIC, received February 16, 2016.
5 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guideline issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, effective date: May 1, 2017 [Chairperson’s Guideline 9].
6 Exhibit 3, National Documentation Package (NDP) for China (March 29, 2019), item 6.1, p. 1.
7 Exhibit 4, Country Documents Package, “Conversion Therapy Still Promoted in China, Investigation Finds,” p. 1, received June 24, 2019.
8 Ibid., p.3.
9 Chairperson’s Guideline 9, supra, footnote 6, s.8.5.8.1.
10 IRPA, supra, footnote 1, section 108(4).