Categories
All Countries China

2020 RLLR 134

Citation: 2020 RLLR 134
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2020
Panel: Avril Cardoso
Counsel for the Claimant(s): Nkunda I. Kabateraine
Country: China
RPD Number: TB9-12791
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000110-000117

REASONS FOR DECISION

[1]       [XXX] (the claimant) claims to be a citizen of China and is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (“the Act”)[1].

ALLEGATIONS

[2]       The claimant’s allegations are fully set out in the Basis of Claim form (BOC). In summary, the claimant alleges a fear of persecution in China at the hands of the government due to his membership in the particular social group of Falun Gong practitioners.

DETERMINATION

[3]       I find that the claimant is a Convention refugee pursuant to section 96 of the Act.

ANALYSIS

Identity

[4]       The claimant’s personal and national identity as a citizen of China has been established on a balance of probabilities by his resident identity card[2], hukou and oral testimony[3].

Credibility

[5]       When a claimant swears that certain facts are true, this creates a presumption of truth unless there is valid reason to doubt their veracity.

The claimant practiced Falun Gong in China

[6]       I find that the claimant was introduced to Falun Gong in [XXX] 2018. He testified that he went to a park near his family home on weekends when he visited and observed people doing exercises. He testified that after speaking with one of the practitioners he confided in him that he was diagnosed with Hepatitis B which was not responding well to treatment. During his testimony, the claimant testified that he spoke with the group leader in [XXX] 2018. When confronted with the discrepancy between his narrative where he states he was introduced to the group leader on [XXX] 2018 and not [XXX] 2018, the claimant said that he was not formally introduced in [XXX] but merely chatted informally with the group leader. I reject the claimant’s explanation. The claimant is well educated. He has a [XXX] in [XXX] and worked as an [XXX] and [XXX] in China. He is [XXX] years old. His narrative specifically states that he was approached by the leader on or about [XXX] 2018. There is no mention about any prior communication only that the claimant was watching people doing exercises. Taking into account, the claimant’s education and work history, his explanation for an omission about a central event in his claim is not credible. I draw a negative inference.

[7]       The claimant testified that he joined the group practice in a corner of a park in his neighbourhood. When asked if he had any concerns about practicing in a public space considering that Falun Gong was banned in China, he testified that the group was surrounded by trees and it would be difficult to see what the group was doing and the group kept the size to six people. The claimant said he practiced with the group for about a month on Saturdays.

[8]       I find on a balance of probabilities that the claimant was introduced to Falun Gong in China and joined the group practice. Although there are a couple of credibility concerns, the claimant described how he was taught exercise one in a very detailed and spontaneous manner which is consistent with the Falun Gong text[4] and his testimony was generally consistent with his narrative. He submitted a medical record which indicates his diagnosis date and repeated treatments for persistent Hepatitis B which are consistent with his narrative[5]. Therefore, the credibility concerns are insufficient to undermine his overall testimony about his introduction to and practice of Falun Gong in China.

The claimant feared arrest by the PSB in China

[9]       The claimant testified that there was an incident on [XXX] 2018 which caused him to stop group practice. He testified that he was at a convenience store near the park where he practiced and saw PSB officers and vehicles outside. He said the store staff told him that some people involved in an evil cult were arrested at the park plaza and some escaped but the PSB said they would be caught and arrested. The claimant testified that he had no way to contact the group leader and since he had provided the leader with his name and address, he decided to stop group practice and instead practiced alone at home.

The claimant omitted his resignation from his job after [XXX] 2018

[10]     The claimant testified that he resigned from his job but continued to live at his rented apartment which was close to his place of work. The claimant did not mention that he stopped working in his narrative. When confronted with this omission, he testified that he did not think this was an important detail. The claimant also failed to indicate that he stopped working in [XXX] 2018 in his immigration forms but instead indicated that he continued to work until [XXX] 2018 at which time he left China. When confronted with this discrepancy, the claimant testified that he made a mistake. I reject the claimant’s explanation. Deciding to resign from one’s workplace because of fear is a detail which is directly connected to the core of this claim. The claimant was very precise in completion of his immigration forms and he is well educated and worked as an accountant, a profession that is focused on details. I draw a negative inference from this omission and discrepancy.

The claimant travelled circuitously on route to Canada

[11]     The claimant testified that an agent arranged for his departure from China. He said he left China on [XXX] 2018 and travelled through a number of Caribbean countries staying from a month to several months in each country before arriving in Canada on [XXX] 2019. When asked about this lengthy and circuitous journey, the claimant testified that he did not know the reason but was following the directions of the agent. The claimant was asked if he questioned the agent about this lengthy route and he said he did and was told not to ask too many questions.

[12]     Since the claimant was reliant on the agent to secure his arrival in Canada, the nine-month delay is reasonable under these circumstances.

The claimant is also a genuine Falun Gong practitioner in Canada

[13]     I find that the claimant continues his Falun Gong practice in Canada. He testified that he continued to practice Falun Gong in Canada. He said he attends group practice at Milliken Park, distributes pamphlets and attends group study. The claimant provided detailed testimony about his first practice at Milliken Park and described taking the bus there and hearing the Falun Gong music as he walked through the park. He said he purchased Zhuan Falun and the Great Consummation Way of Falun Dafa at Pacific Mall. The claimant testified that he attends group practice weekly except on rainy days and he said he stopped attending once the COVID-19 lockdowns occurred. Overall his testimony was spontaneous, detailed and he elaborated with additional details when they were requested. He also submitted photos and a letter from a fellow practitioner to support his testimony[6].

Claimant demonstrated knowledge of Falun Gong consistent with his profile

[14]     I find that the claimant demonstrated Falun Gong knowledge commensurate with his profile. The claimant testified about jealousy being the most harmful attachment and explained in great detail how this attachment impedes cultivation and why it is prevalent in Chinese culture. He described the three principles and how they affect mind nature, explained the origins of karma and the purpose of the exercises. He provided an example of how he incorporates the principle of truth in his life and correctly explained that the exercises are not for the purpose of healing rather to purify the body. The claimant also explained the purpose of sending righteous thoughts and described activities such as attendance at a rally on World Falun Dafa Day and distribution of pamphlets to clarify the truth. The claimant’s testimony was very detailed, spontaneous and demonstrated in-depth knowledge about Falun Dafa.

[15]     When asked if he would continue to practice Falun Gong if he returned to China, the claimant responded in the affirmative and explained that his energy level is low and must be increased and also if he stopped practice, his karma would return and create adverse affects on his health.

Objective Basis

[16]     The objective evidence is consistent with the claimant’s account of fearing persecution as a Falun Gong practitioner in China[7].

[17]     At item 2.1 of the NDP, the US Department of State confirms that the People’s Republic of China, is an authoritarian state in which the Chinese Communist Party, the CCP, is the paramount authority. Repression and coercion persist, including against members of banned religions and/or spiritual practices such as Falun Gong.

[18]     An IRB Response to Information Request or RIR[8] on the treatment of Falun Gong practitioners contains information that further confirms there is a serious possibility that the practice of Falun Gong will be met with persecution.

[19]     Chinese authorities continue to label Falun Gong an ‘evil cult’ in China. In particular, items 2.1 and 12.23 of the NDP reference the State’s use of harassment, intimidation, imprisonment and torture against Falun Gong practitioners. The 2019 Commission on International Religious Freedom, item 12.2, indicates that as of February 1, 2018 new regulations on religious affairs came into effect detailing strict registration criteria for religious organizations. The regulations ban unauthorized religious teaching and expands the role of local authorities in controlling religious activities. Further as of March 2018, jurisdiction over religious affairs was transferred from the State Administration of Religious Affairs (SARA) to the United Front Work Department (UFWD), an organ of the CCP. International criticism of China increased during the latter half of 2018 as the scale of government crackdown on religious freedom became widely publicized.

[20]     I find that the claimant’s fear of persecution because of his Falun Gong practice has an objective basis and is well-founded, especially since he has credibly established that he was a Falun Gong practitioner in China and continues to practice in Canada.

State Protection

[21]     A state, unless in a condition of complete breakdown, is presumed to be capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing confirmation of the state’s inability to protect its citizens.

[22]     Given that the state is the agent of persecution, I find that it would be objectively unreasonable for the claimant to seek the protection of the state in his circumstances, and that adequate state protection would not be reasonably forthcoming.

Internal Flight Alternative (IFA)

[23]     Given that the state is the agent of persecution with control over the entire country, I find that there is a serious possibility of persecution throughout China and therefore a viable IFA does not exist.

CONCLUSION

[24]     Having considered all of the evidence, I find that there is a serious possibility that the claimant would face persecution in China. I find that the claimant is a Convention refugee and I accept his claim.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1)

[2] Exhibit 1

[3] Exhibit 4

[4] Exhibit 3, Item 12.7

[5] Exhibit 4

[6] Exhibit 4

[7] Exhibit 3

[8] Exhibit 3, Item 12.9

Categories
All Countries China

2020 RLLR 133

Citation: 2020 RLLR 133
Tribunal: Refugee Protection Division
Date of Decision: February 10, 2020
Panel: Dawn Kershaw
Counsel for the Claimant(s): Deryck Ramcharitar
Country: China
RPD Number: TB9-11038
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000107-000109

DECISION

[1]       MEMBER: So, this is a decision for [XXX] in file number TB9-11038. I have considered your testimony and the other evidence and will render my decision now orally. I find that you are a Convention refugee as you have established a serious possibility of persecution in China based on your religion. Namely, being a member of the Church of Almighty God.

[2]       Your allegations were documented in the Basis of Claim form. In summary, you are a citizen of China who fears persecution in China because you practice your religion as a member of the Church of Almighty God. You alleged that if you return to China, you will be targeted by the Chinese government for your involvement in the Church of Almighty God and will be arrested. You alleged that there is no state protection or an internal flight alternative for you.

[3]       Your personal identity has been established by your testimony and supporting documents filed in the exhibits. Specifically, a certified copy of your passport at Exhibit 1 in addition to your original resident identification card, a copy of which is at Exhibit 5. I find that on a balance of probabilities your identity and country of reference have been established. I find that there is a link between what you fear and one of the five Convention grounds, namely religion by virtue of the fact that you are a practicing Christian who practices in the Church of Almighty God. As such, I have assessed your claim under Section 96.

[4]       I have found you to be a credible witness and I therefore believe what you alleged in your oral testimony and in the Basis of Claim form. Your claim is supported by documents including a letter from the church leader of your current church in Toronto. As well as a letter of support from four fellow church members. You also provided photos of you with your fellow church members and participation in a human rights demonstration at Old City Hall at which you were demonstrating for China to return freedom of speech and religion to the Chinese people.

[5]       Your claim was also well supported by your knowledge of the tenets of the Church of Almighty God. You were able to speak knowledgeably and spontaneously about the faith. Including about the several different books of faith you read, the preaching you do in public by talking to others about God’s word. As well as where and how often you meet to discuss your faith and share your experiences.

[6]       In addition, you spoke about accessing the Church’s websites and YouTube to watch different types of singing and skits about the Church of Almighty God which you would not be able to do in China. You also had a support witness, [XXX] (ph) who said she met you when you first came to Canada. She came to Canada in 2016 and has been a member of the Church of Almighty God in Canada since that time. She was granted refugee status in Canada having also claimed on the basis of her religion. She meets together with you and others twice a week to discuss the faith and share your experiences. You also preach in public together by getting friendly with people who will talk to you and then broaching the subject of God.

[7]       The Panel finds on a balance of probabilities that you were and are a practicing Christian. Practicing in the Church of Almighty God who holds views that have been outlawed in China.

[8]       On an objective basis, it is known from page 5 of Section 12.1 of the National Documentation Package for China, the NDP. Namely, the 2018 U.S. State Department report that the Chinese government considers the Church of Almighty God to be an evil cult. In addition, counsel filed additional country documentation. Namely an excerpt from Bitter Winter. It states that in October 2018, in Anhui province where the claimant lived, the provincial authorities launched an arrest operation of believers that belonged to the Church of Almighty God in multiple cities. Calculations put the number of members arrested in a two-week span at more than 100. And more than 500 left their homes and went into hiding.

[9]       Finally, in Section 12.3 of the NDP it was reported at page 24 of the 2018 Annual Report on Chinese Government Persecution of Churches and Christians in Mainland China that a meeting was held in Jiangsu province to promote the sinicization of Christianity. Making it clear that that means changing Christianity in China to Chinese Christianity. Amnesty International also reported at Section 2.2, page 4 of the NDP that in June, the State Council passed the revised regulations on religious affairs to come into effect on the 1st of February 2018. It codified far-reaching State control over every aspect of religious practice. And extended power to authorities at all levels of the government to monitor, control and potentially punish religious practice.

[10]     I find that you would not be able to practice Christianity in the Church of Almighty God freely in China without fear of repercussions. As such, I find that you have established an objective basis for your fear of persecution on a balance of probabilities.

[11]     In summary, I find that you have a well-founded fear of persecution. I find that China is enforcing the law against unauthorized religious practice. And does not sanction churches that are not registered which includes the Church of Almighty God.

[12]     As such, I find that there is no state protection available to you. I have also considered if there’s an internal flight alternative for you. I find that there is no internal flight alternative. Again, because the Chinese government is the agent of persecution and exists in all parts of the country. Therefore, it is not safe anywhere for you.

[13]     Based on the totality of the evidence, I find that you are a Convention refugee because of a serious possibility of persecution. And I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries China

2020 RLLR 132

Citation: 2020 RLLR 132
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2020
Panel: Suraj Balakrishnan
Counsel for the Claimant(s): Carla Sturdy
Country: China
RPD Number: TB9-09017
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000103-000106

DECISION

[1]       MEMBER: This is a decision for [XXX] claim for refugee protection.

[2]       You are claiming to be a citizen of China and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have considered all of the evidence including your testimony and the other evidence in the case and I am ready to render my decision orally.

[4]       I find that you are a Convention refugee on the grounds of being a Falun Gong practitioner for the following reasons.

[5]       The specifics of your claim are set out in the narrative of your Basis of Claim form as amended.

[6]       You allege the following:

[7]       You are a citizen of China and you fear persecution from Chinese authorities because you are a Falun Gong practitioner.

[8]       You allege that if you return the Chinese authorities will persecute you.

[9]       You allege that there is no state protection for you or an internal flight alternative.

[10]     Your personal identity as a citizen of China has been established by your testimony and the supporting documents file in the exhibits including a certified true copy of your Chinese passport.

[11]     I find that on a balance of probabilities that identity and country of reference have been established.

[12]     I find that there is a link between the harms that you fear and the Convention ground of particular social group.

[13]     This claim will therefore be assessed under Section 96.

[14]     The test under Section 96 is whether there is a serious possibility of persecution should you return to China and I have found that you have met that test.

[15]     When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary.

[16]     You have been entirely consistent and credible in your evidence.

[17]     The claimant demonstrated a solid understanding of, and commitment to, Falun Gong practice and philosophy.

[18]     There have been no relevant contradictions or omissions that would go to the core of your claim.

[19]     In terms of your general credibility, I have found you to be a credible witness and I therefore believe what you have alleged in your oral testimony and your Basis of Claim form as amended.

[20]     These claims were corroborated through a support letter from a fellow practitioner as well as photos of the claimant participating in Falun Gong practice and a rally in support of Falun Gong practitioners.

[21]     There’s no reason for me to cast any doubt on the veracity of these documents and as such I place good weight on them to support your allegations and claim.

[22]     Specifically, you established on a balance of probabilities that you are a Falun Gong practitioner and that Chinese authorities warned you against being a Falun Gong practitioner.

[23]     I therefore find that your subjective fear is established by your credible testimony and I believe what you have alleged on a balance of probabilities.

[24]     The documentary evidence confirms that Chinese authorities have pursued nationwide sanctions against Falun Gong practitioners since 1999.

[25]     Amnesty International describes the state’s actions as a long-term campaign with intimidation and persecution.

[26]     The documentary evidence states that the Chinese government has carried out an unprecedented campaign against practitioners including detaining a large number of believers and abusing them in detention.

[27]     The documentary evidence states that Falun Gong adherents in China face harassment, imprisonment, and torture.

[28]     The campaign against Falun Gong has been characterized as brutal and systemic persecution; the systemic process of imprisonment without trial, escalating torture, and the murder of thousands of innocent people.

[29]     The Chinese government views Falun Gong as being an enemy of mankind and confirms the existence of re-education facilities in order to rid people who practise Falun Gong – of the obsession with what they allege to be a cult.

[30]     Based on the credible evidence provided by you with respect to your Falun Gong activities both in China and in Canada as well as the country documentation on file, I find that your fear of persecution in China at the hands of the Chinese government is objectively well-founded.

[31]     It is state authorities who have outlawed the practice of Falun Gong whom you fear. I therefore find it objectively unreasonable for you to seek the protection of the state.

[32]     I further find that the agent of persecution is the state and they are in control over the whole state.

[33]     So, I find that there is a serious possibility of persecution throughout the country and that there is no internal flight alternative for you.

[34]     Based on the foregoing analysis, and considering the totality of the evidence before me, I conclude that you are Convention refugee because you face a serious possibility of persecution in China.

[35]     I accept your claim.

———- REASONS CONCLUDED ———-

Categories
All Countries China

2020 RLLR 128

Citation: 2020 RLLR 128
Tribunal: Refugee Protection Division
Date of Decision: January 16, 2020
Panel: A. Casimiro
Counsel for the Claimant(s): Stacey Margaret Duong
Country: China
RPD Number: TB8-33095
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000077-000083

REASONS FOR DECISION

[1]       [XXX] (“the Claimant’) makes a claim for refugee protection pursuant to s. 96 and s. 97(1) of the Immigration and Refugee Protection Act (“IRPA”).

ALLEGATIONS

[2]       The Claimant’s allegations are fully set out in his Basis of Claim form[1] and in his testimony. He alleges that he is a citizen of the People’s Republic of China and that he fears persecution by the Chinese government because he is a Falun Gong practitioner.

[3]       One of the Claimant’s co-workers died as a result of a workplace accident. The Claimant became very sad and started to develop sleeping problems. He had nightmares and dreamed about his co-worker. As a result, the Claimant woke up feeling very exhausted and depressed. He was suffering from right arm pain and was diagnosed with a shoulder muscle spasm. A friend learned about his health situation and introduced him to Falun Gong.

[4]       His friend told him that Falun Gong could help him. He explained to him the basic principles of Falun Gong, and he urged him to give it a try.

[5]       His friend agreed to teach him privately and he began to learn from him on [XXX] 2017. He experienced improvements for his condition after about two months of practicing Falun Gong with his friend.

[6]       The Claimant then decided to join the group practice with his friend on [XXX] 2017. He went to practice with the group once a week. However, the group experienced a problem on [XXX] 2018.

[7]       They found out that two members from another group of practitioners in their town were arrested by the police (“PSB”). As a result, the group suspended their practice. All the members were advised to go into hiding.

[8]       The Claimant went to hide at his wife’s cousin’s place. While in hiding, the Claimant discussed the situation with his family. The family decided that the Claimant should leave China for safety. The Claimant then used the services of a smuggler to help him get out of China.

[9]       The smuggler flew with the Claimant from Beijing to Toronto on [XXX] 2018.

[10]     After arriving in Canada, the Claimant hoped to return back to China, if the situation improved. However, he learned from his wife that the PSB came to his home to look for him. They asked his wife for his whereabouts.

[11]     His wife also learned that the group’s leader was arrested. The PSB returned to their home and left a summons for the Claimant.  The PSB also went to the homes of his close relatives to look for him.

[12]     As a result, the Claimant made a claim for refugee protection. Since arriving in Canada, he also joined a Falun Gong group.

[13]     The PSB continues to look for the Claimant in China. He fears arrest, detention and abuse if he is to return to China on account of his Falun Gong practice. The Claimant also wishes to continue practicing Falun Gong freely, which is something he could not do in China.

DETERMINATION

[14]     The panel finds that the Claimant is a Convention refugee, as he has a well-founded fear of persecution on the basis of his membership in a particular social group as a Falun Gong practitioner.

ANALYSIS

Identity

[15]     The Claimant explained that the smuggler took his passport upon arriving in Canada as he still owed money at that time. The Claimant to this date, had failed to pay the remaining balance owing to the smuggler. He did attempt to recover his passport by trying to contact the smuggler through a relative, however they had lost contact with the smuggler. To date, he had not secured the return of his passport. However, based on his original Resident Identity card and Hukou, which were presented at the hearing and which are contained in Exhibit 6, the panel finds that the Claimant is a citizen of China and he is who he says he is on a balance of probabilities.

Credibility

[16]     The Claimant’s testimony regarding his introduction to Falun Gong, his Falun Gong practice in China, as well as his Falun Gong practice in Canada were consistent with his other evidence.

[17]     He testified that his initial hope was to return to China but after he found out from his wife that the PSB came to his home to look for him, he knew that he can no longer return to China. He testified that the PSB left a summons for him as per Exhibit 6. He also testified about the continued interest of the authorities in him back in China.

[18]     The panel notes that the Claimant claims to be a Falun Gong practitioner since [XXX] 2017. The Claimant testified that Falun Gong is a dual cultivation system. He testified about how Karma in our body creates illness and how Falun Gong could help transform Karma into Virtue (black substance transformed into white substance).

[19]     He testified about the concept of attachments and getting rid of personal attachments. He described how his friend showed him the Falun Gong exercises. He testified about some of the challenges he faced when learning the exercises. He testified that there is a total of five exercises. In the course of his testimony, he identified the first and second exercises.

[20]     He elaborated on how Karma is accumulated and how to get rid of its effects. He testified about the principles of Truthfulness, Compassion and Forbearance and how he applies these to his daily life. He talked about increasing one’s mind/nature.

[21]     He talked about Master Li Hongzhi and the Zhuan Falun. He testified about how his group in China had no access to the Zhuan Falun but instead utilized photocopies as part of their study. He also identified other books that are important to Falun Gong practitioners.

[22]     The Claimant also testified about his Falun Gong practice here in Canada. He testified about how he was introduced to a group of practitioners in Canada. The Claimant continues to practice the exercises at the park, he also attends a group to study the Zhuan Falun and he also distributes Falun Gong materials.

[23]     The Claimant’s profile as a Falun Gong practitioner was also supported by a number of photos depicting his practice in Canada and two letters from fellow practitioners.[2] The panel notes that the photographs appear to have been taken at numerous locations and times.

[24]     Similarly, the panel asked him why he continues to practice Falun Gong despite recovering from his health issues. He testified that practicing Falun Gong is a lifelong commitment and that one doesn’t stop practicing just because one gets/feels better.

[25]     The panel finds on a balance of probabilities that the Claimant is a genuine Falun Gong practitioner. He has a genuine desire and plans to continue his practice of Falun Gong into the future.

Well-Founded Fear of Persecution

[26]     The documentary evidence is clear that Falun Gong practitioners face persecution in China. Falun Gong is banned as an illegal group in China and the country conditions evidence is consistent in its reports that Falun Gong practitioners face arrest and even torture, according to several credible sources.[3]

[27]     Exhibit 3, Item 1.7 which is the United Kingdom’s Operational Guidance Note, discusses that Falun Gong practitioners over the years have been tortured, harassed, arbitrarily detained, imprisoned, and have faced other serious restrictions on their right to freedom of expression.

[28]     It explains that the Falun Gong movement has been outlawed in China, and the State regards it as an evil cult. Falun Gong practitioners have reportedly been subjected to detention, ill­ treatment, and it states that the risk of ill-treatment escalates significantly when a practitioner engages in activities that are reasonably likely to bring them to the notice of authorities. This includes the public practice of Falun Gong exercises, recruitment of new members, and dissemination of Falun Gong information. The risk of ill-treatment also increases when a person ignores a warning against continuing Falun Gong activity.

[29]     Exhibit 3, Item 2.1 the United States Department of State Report indicates that practitioners of Falun Gong reported systematic torture.

[30]     Exhibit 3, Item 12.2, indicates that the Chinese government has banned Falun Gong and labelled it an “evil cult”. Authorities regularly target Falun Gong practitioners and force them into labour camps. In detention, they suffer sexual assault, torture, violence and organ harvesting.

[31]     Therefore, the Panel finds that the Claimant’s fear is a well-founded one supported by personal and objective evidence.

[32]     The panel finds that the Claimant is a genuine Falun Gong practitioner on a balance of probabilities, and so he would face a serious possibility of persecution if he were to return to China.

State Protection

[33]     As the state is the agent of persecution, adequate state protection would not be available to the Claimant.

Internal Flight Alternative

[34]     Given that the Claimant is a genuine and ongoing Falun Gong practitioner, even if he were to relocate, his risk remains the same as the State’s control exists all over China.   Since the agent of persecution is the state, there is no internal flight alternative for the Claimant, as there is a serious possibility of persecution throughout the country.

CONCLUSION

[35]     For the above reasons, the panel finds that the Claimant is a Convention refugee, as he holds a well-founded fear of persecution on the basis of his membership in a particular social group, as a practitioner of Falun Gong. His claim is therefore accepted.


[1] Exhibit 2.

[2] Exhibit 6.

[3] Exhibit 3, National Documentation Package for China (20 December 2019) Items 2.1, 12.22 and 12.23.

Categories
All Countries China

2020 RLLR 106

Citation: 2020 RLLR 106
Tribunal: Refugee Protection Division
Date of Decision: February 13, 2020
Panel: Jean Buie
Counsel for the Claimant(s): Carla Sturdy
Country: China
RPD Number: TB9-09028
Associated RPD Number(s): TB9-09067
ATIP Number: A-2021-00945
ATIP Pages: 000152-000154

DECISION

[1]       MEMBER: This is the decision in the claims of, I’m sorry if for mispronouncing your name, [XXX]. Can you pronounce your daughter’s name for me, [XXX]?

[2]                   Claimant:       [XXX].

[3]                   Member:        Thank you.

[4]       Citizens of China who seek refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act. This decision is being rendered from the Bench and a written form of the reasons may be edited. I find that you are Convention refugees, I find you have Nexus to the Convention for religion as Christians.

[5]       With respect to the allegations you provided a comprehensive Basis of Claim narrative. To summarize you are a Christian and have been since 2017. You attended an underground church in China weekly since that time. Your church was raided [XXX] 2018 at Sunday service and the leader was taken into custody. The PSB took down your name and threatened you. Your family was called to pick you up and they too were threatened when they arrived.

[6]       On [XXX] 2018, three neighborhood committee officers went to your home and conducted a re-education program. They also threatened that if you attempted to attend church again that there would be severe consequences. Your family attempted to convince you to stop going to church but as you were not willing to do so it was agreed that you and your daughter would leave.

[7]       You engaged the services of a Snakehead, applied for a U.S. visa and left China on [XXX]. You and your daughter flew though Hawaii then Seattle and then drove to the Canadian border. You made your claim shortly after arriving. You fear returning to China because you cannot practice your faith without being targeted by the PSB.

[8]       With respect to your identities, your identities were established by your testimony as well as the documents filed including copies of your passport.

[9]       Your credibility was determinative in your claim and I found you to be a credible witness today.

[10]     While I had some concerns regarding the fact that you lied in the past in an attempt to obtain a Canadian visa, and again in the application for the US visa, as well as to US immigration officials at the interview. I found that these concerns were not determinative given the overall credibility of your testimony and the other evidence you provided.

[11]     You’ve expressed a sincere Christian faith and a commitment to practice, as well as a desire to continue to raise your daughter in the Christian faith. It is an important part of your family life which you could not continue to engage in if were to return to China. This is supported by the documents you filed including your letters of support.

[12]     I found persuasive your testimony with respect to why you could not attend a State sanctioned church. Including that it places State above God which is a violation of the first Commandment, and also the importance of spreading the Gospel for which you stated is a mission given by Christ. And that you continue to engage in spreading the Gospel since coming to Canada.

[13]     Regarding state protection and availability of an internal flight alternative, I find that it is the State authorities whom you fear. You’ve been warned by State officials, have in fact undergone re-education during which you were told if you practiced again you would be severely punished. I accept that you are at heightened risk in the context of the current country conditions given this.

[14]     I also find that there is no Internal flight alternative given the State officials are the persons targeting you. I understand that the NDP documents are mixed with respect to the risk in China but for the more recent NDP as noted by your counsel references a change in circumstances, including an increase in the targeting of Christians more recently and this has taken place in your home province. Given your particular circumstances and your previous history with police contact which I found credible, I believe that if you were to return there is more than a mere possibility you would be targeted again, especially given your commitment to spreading the Gospel.

[15]     Similarly, I find the inability for your daughter to be raised in a Christian faith which you testified she has embraced herself, amounts to persecution. As noted by counsel, the country condition documents indicate that minors are specifically forbidden from attending churches or from receiving any religious information. In that respect your choice to raise your daughter in the Christian faith would itself be a risk.

[16]     Based on the evidence that you provided today as well as the country documents, I find your fear of persecution in China to be objectively well founded.

[17]     I conclude that you are both Convention refugees and I accept your claims.

———- REASONS CONCLUDED ———-

Categories
All Countries China

2020 RLLR 80

Citation: 2020 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: October 2, 2020
Panel: Sarah Morgan
Counsel for the Claimant(s): Mary Weng
Country: China
RPD Number: TB9-25891
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000132-000134

DECISION

[1]       MEMBER: This is a decision in the claim of [XXX], citizen of China who seeks refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.  This decision is being rendered from the bench.

Determination:

[2]       I find that you are a Convention refugee based on imputed political opinion as a Falun Gong practitioner.

[3]       To summarize your allegations, you began practicing Falun Gong in [XXX] 2018.  A fellow practitioner was arrested and you were warned to stop practicing Falun Gong.  You were detained by authorities in [XXX] of 2019, forced to attend re-education classes and forced to sign a document repudiating Falun Gong.

[4]       Authorities also stopped paying your pension, and you left China as you feared further detention and ill-treatment from authorities.

Identity:

[5]       Your identity as a Chinese national is established by your passport.

Credibility:

[6]       I did find you to be a credible witness.  I note that you provided great details about your understanding of Falun Gong philosophy and about the purpose of the exercises, and I … I believe you have demonstrated a sol id understanding and commitment to the Falun Gong philosophy based on detailed answers that you gave to my Falun Gong questions.

[7]       I did find credible that your testimony that you were detained and threatened by authorities owing to your practice, as I find you gave spontaneous details about that including the documents that they gave you when they released you from detention.

[8]       I did have a credibility issue with the summons that you provided.  I noted to you the hearing that it … it doesn’t look like the summons that I have examples of, and I don’t find credible that you wanted for arrest when you left China because I … I find, given the extensive surveillance Chinese authorities have that if you were indeed a fugitive from justice that you would not have been permitted to exit China.

[9]       I do find however credible that you are a genuine Falun Gong practitioner.  I note also your activities in Canada. I find you have a sur place claim.

[10]     Also, I note the photograph that’s published by a Canadian newspaper that you are … you’re in that obviously in the newspaper, and the article shows Falun Gong practitioners in Toronto.  And I do find that increases a risk from authorities in China, given that they could be aware of your Falun Gong activities in Canada, given that your … those activities are published in a publication available everywhere.

[11]     Concerning State protection, it is the State that has outlawed the practice of Falun Gong, so I find it objectively unreasonable for you to seek their protection.

[12]     There are many documents before me, those given by your counsel and those found at Exhibit 3 confirming that authorities have pursued sanctions against practitioners since 1999, and those discovered to be practitioners face re-education camps, harassment, removal of benefits, imprisonment, and torture.

[13]     I do find, based on the evidence that you provided as well as the country documents, that your fear of persecution is objectively well-founded.

[14]     As the agent of persecution is the State and Falun Gong is banned throughout the country, I find there is not an internal flight alternative for you.

[15]     I conclude that you are a Convention refugee and I accept your claim.

[16]     Ma’am, I thank you for your testimony today. Counsel, thank you.  Madam Interpreter, I can’t say enough.  Thank you so much. Excellent interpretation.  I understand that the … the issues with having to speak really loudly with a mask to make sure that our claimant was understood and you did an excellent job.  Thank you.

[17]     INTERPRETER: My pleasure really.

[18]     MEMBER: Thank you.  Thank you all.

———- REASONS CONCLUDED ———-

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 sp­, 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