Category: China

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 ———-

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 TB8-14763, and to the Claimant, who is [XXX], [XXX]. The Panel has heard the claim at two sittings, on September 23^rd, 2019 and December 18^th, 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