Citation: 2021 RLLR 95
Tribunal: Refugee Protection Division
Date of Decision: July 22, 2021
Panel: Robert Bafaro
Counsel for the Claimant(s): Daniel Martan Woods
Country: Hong Kong Special Administrative Region, China
RPD Number: TC1-01408
Associated RPD Number(s): N/A
ATIP Number: A-2022-01778
ATIP Pages: N/A
DECISION
[1] MEMBER: Now ready to give my decision. These are the reasons for the decision in the claim of XXXX XXXX XXXX, who claims to be a citizen of Hong Kong Special Administrative Region, SAR, People’s Republic of China, and is claiming refugee protection pursuant to s. 96 and 96 of the Immigration and Refugee Protection Act.
[2] The allegations that form the basis for this refugee claim are set out in the claimant’s Basis of Claim form and narrative, which is in evidence before me at Exhibit number 2. The claimant’s allegations are also contained in the claimant’s testimony, which he gave here this afternoon in response to a series of questions which I asked and posed to the claimant.
[3] The claimant also provided a supplementary narrative, which is part of Exhibit 4, to further elaborate and explain the basis for his refugee claim, and that is found at page 57 and 58 of the materials at Exhibit 4.
[4] In summary, the claimant is alleging a fear of persecution by the People’s Republic of China because of his pro-democracy activism during the Umbrella Movement in Hong Kong in 2014 and also because of his pro-democracy and anti-government activities here in Canada. The claimant alleged that he has been attending protests, demonstrations, regularly every year, there are many people showing up, hundreds at least on average, speaking out against the national security law against Hong Kong government’s implementation of this law, complaining and criticizing the Chinese Communist Party and its interference in the affairs of Hong Kong. He has been attending — he alleges he has been attending protests where people wave flags, calling for the independence of Hong Kong and condemning Hong Kong and the Chinese Communist Party for its repressive measures and excessive force used against pro-democracy activists in Hong Kong.
[5] The claimant alleged that although he did participate in the Umbrella Movement protests, he was providing more or less logistical support, he was not in the front lines, he was not a public speaker at those protests or demonstrations, that he was providing more of kind of logistical support, water, towels, so to help protestors who were in need of assistance, if there was tear gas, they could wipe their eyes. So he was essentially providing them with support but not on the front lines. He was kind of working behind the scenes to support the protestors, and he alleged that he was not arrested during these protests and that his activism or his anti-government activism or pro-democracy activism, for the most part, has taken place here in Canada, where there have been many groups getting together in parks, outside of government buildings, outside of shopping malls, where they have been expressing their opinions against the national security law, condemning the Hong Kong police, condemning the Chinese government for its interference in Hong Kong affairs and trying to raise awareness in the public eye about how, essentially, life in Hong Kong has unravelled to such a degree that there is no longer any freedom of expression, freedom of the press, or freedom of assembly, and that as the claimant said in his own testimony, the situation is pretty dire and has become very much hopeless.
[6] So, those are the main allegations that form the basis for this refugee claim. The determinative issue, as I outlined at the beginning of the hearing, was the claimant’s credibility. In the Canadian refugee law, it is — there is a presumption that if a claimant gives sworn testimony, it is presumed that everything the claimant said was true unless there is persuasive evidence to the contrary. I find that in this case, based on the claimant’s testimony, there was no — and all of the evidence before me, there was no persuasive evidence to the contrary. I find that there were no major contradictions or inconsistencies or omissions in his evidence or testimony or between his testimony and other evidence before me. The claimant’s testimony here this afternoon was to a great extent consistent with the detailed allegations set out in his Basis of Claim form narrative at Exhibit 2 and the supplementary narrative he provided at Exhibit 4.
[7] I found the claimant testified in a very straightforward manner, I did not find that he tried to exaggerate or embellish his evidence, even though, clearly, he had the opportunity to do so. For instance, he could have said that he was involved in many more demonstrations throughout the years in Hong Kong and he could have said he was arrested multiple times in Hong Kong, but he did not. He — I found that his testimony had the ring of truth because, in fact, he downplayed his activism in Hong Kong during the Umbrella Movement, saying he was not in the front lines, he was not actually a speaker, so he could have exaggerated and said those things, but he did not, and I think that speaks volumes in terms of establishing his credibility.
[8] The claimant not only just relied on his own testimony to establish his claim, but he also provided documentation which I find corroborates core elements of his refugee claim. So, for instance, at Exhibit 4, he provided many photographs, social media postings, photographs of himself in a parking lot in Scarborough holding up a sign, calling for the independence of Hong Kong and on social media platforms such as Twitter, Facebook, WhatsApp, WeChat, as the claimant said, he shared a lot of information and sometimes he would put in his own editorial comments about what he was posting, but to a large extent, he was sharing information that was critical of the national security law that was condemning the Chinese government for its interference in Hong Kong affairs and this is reflected in the many social media posts that are part of the claimant’s evidence in Exhibit 4.
[9] The claimant also provided some documents, which I find is a very good indicator and a strong indicator of what might happen to him if he goes back to China. As the claimant said, after having been involved in all of these activities here in Canada against the Chinese government, these protests, these demonstrations, these group gatherings, sharing these critical — these anti-government commentary on social media, he actually received threats via social media and he has actually provided the social media postings that the claimant referred to in his testimony and they are a part of Exhibit 4 and specifically, there is a couple of postings on Facebook where they essentially say that the — threaten the claimant and say that he should stop posting fake news about — against China, and that if he does not, there is going to be consequences.
[10] The claimant also provided photographs of the many protests and demonstrations that he has been attending with other people that are Hong Kongers that are supporting the cause of Hong Kong, and there is many photographs of him in front of the old city hall, in front of the criminal — old criminal courts here in downtown Toronto, in Markham, in Scarborough, Pacific — outside Pacific Mall, of demonstrations calling for a free Hong Kong, calling for the independence of Hong Kong and telling the Chinese authorities to stop persecuting Hong Kongers.
[11] The claimant also provided his Hong Kong passport and his permanent residence identity card, which I find establishes, on a balance of probabilities, that he is who he claims to be, that he is a resident of Hong Kong, that that is where he was born and raised and that is where he — and it is with respect to China that he is still recognized as a citizen and of no other country. So, the claimant’s personal and national identity was established to my satisfaction on a balance of probabilities.
[12] And some of these other photographs that, again, demonstrate the high level of activism of the claimant and the many demonstrations and protests he attended here in Toronto are found at Exhibit 12 and then there is further photographic evidence at Exhibit 13 and there are photographs of the claimant himself, in fact, attending a protest just the other day, very recent photographs of protests at XXXX XXXX XXXX XXXX XXXX XXXX XXXX, where there is a pretty large number of people assembled and it is clear that this is like a — some kind of a commemoration or peaceful kind of protest or to commemorate what has been happening in Hong Kong, they are all wearing t-shirts to commemorate the cause in Hong Kong.
[13] So, in light of all of this evidence, I find that the claimant has established that he does have a valid subjective fear of persecution in Hong Kong. I also find that he — his subjective fear in Hong Kong at the hands of the Hong Kong police, at the hands of the Chinese authorities, since the national security law was passed in 2020, that his fear of persecution in the country is objectively well-founded. I find that there is a reasonable chance, a serious possibility that he would face persecution if he returned to the country based on his political opinions and his political activities against the government of Hong Kong. And I find that the claimant is a Convention refugee pursuant to s. 96, as there exists a serious possibility of persecution should he return to Hong Kong, China, on account of his political opinion.
[14] Clearly, I find that there is also a nexus between his subjective fear and one of the grounds set out in s. 96, under the 1951 Convention, that being the ground of political opinion. Considering that I find that the claimant is a credible witness and that he testified credibly coupled with the documentary evidence that he provided as well as the country documentation in evidence, which is before me, I find that the claimant has established a future risk of persecution should he return to the country, and I find that he faces a serious possibility of arrest, detention and — or even worse, state violence.
[15] Now, one of the reasons why I find that the claimant’s fear of persecution in Hong Kong is objectively well-founded and why I find that he has good grounds to fear persecution in Hong Kong has to do with the fact that he has been here in Canada since 2015, he has been involved in all these different anti-government groups, been attending all these protests, speaking out against the government on social media by sharing these posts, going to demonstrations where flags are being raised, calling for the independence of Hong Kong, that these activities are more likely than not have come to the attention of the authorities. And even in the evidence, which is before me here this afternoon, there is a very strong indication that the authorities in China already know about what the claimant has been doing here in Canada, he has received threats via social media telling him to stop spreading fake news about the Chinese government and that if he does not stop doing this, there is going to be consequences.
[16] The — there is evidence in the National Documentation Package, and, I mean, this is a matter public knowledge, it is very well-known that the Chinese government, the Communist Party of China, that they spy on their nationals who are living abroad, they engage in espionage, they use sophisticated software to monitor and keep people under surveillance in order to suppress political dissent, and the objective country information supports this. I was reading in a report, it is the Department of State report on Hong Kong, item 2.1 in the NDP, and it says activists claim that the SAR increasingly used legal tools such as denial of bail and pursuing minor charges to detain pro-democracy figures. In one such case, the courts denied Jimmy Li (ph) bail for fraud charges, which is a civil offence. While in custody, security forces charged Li with foreign collusion under the national security legislation, a provision that is not well-defined, and then it goes on to say that the government of China is actually carrying out politically motivated reprisals against individuals who are not even inside the country, that are outside the country. It goes on to say that the national security law is not restricted to the Hong Kong area or its residence, but instead, claims jurisdiction over any individual regardless of location deemed to be engaging in one of the four criminal activities under the national security law. Suasions, subversion, terrorist activities or collusion with a foreign country or external elements to endanger national security.
[17] In August, the national security forces reportedly issued warrants for six individuals, all residing abroad, one of whom had foreign citizenship and had resided outside of Hong Kong in mainland China for more than 20 years. Although reported in state-controlled media, the government refused to acknowledge the existence of the warrants. So, this is a good example of how the authority of the Chinese Communist Party extends even beyond the borders and territory of China and how they even monitor the activities of people that are outside the country and will engage in extra-judicial, a type of measures, in order to make these people be silent, to stop speaking out against the government and which, in this case, according to this report, suggests they are issuing warrants in absensia, when the person is not even in the country, calling for that person’s arrest when they come back, so they can be prosecuted under the national security law.
[18] And then it goes on to say that the law — there is a section in the Department of State report — deals with unlawful interference, with privacy, family, home or correspondence, and it says the law prohibits such actions, but there were reports that the Hong Kong government failed to respect these prohibitions, including credible reports that Chinese central government security services and the Beijing mandated office for safeguarding national security monitored pro-democracy and human rights activists and journalists in Hong Kong.
[19] There is also — I also looked at a report, it is item 1.11 in the NDP, and it is a report on how the Chinese government treats its critics and how it treats people that engage in anti-government activity. And it basically confirms what the claimant has been saying, is that even though he is many miles away from China and he is here in Canada, and he has been participating in all of these anti-government activities, the Chinese government already knows about it and in this particular passage that I am going to read, it is clear that the government of China, the Communist Party of China, has the knowledge, the know-how, the technical expertise to be able to do that, and in this report, 1.11, and it is s. 8 that deals with internet, social media and bloggers. It says the Chinese government maintains a sophisticated censorship apparatus, including both automated mechanisms and human monitors to block online criticism of individuals, policies or events considered integral to the one-party system. Several social media and communication apps are inaccessible from inside China without circumvention tools and a crackdown on those tools was underway during the reporting period, websites and social media accounts are subject to deletion or closure at the request of Chinese censorship authorities, and internet companies are required to monitor and delete problematic content or face punishment. The cyber-security law passed during the reporting period requires network operators to immediately stop transmission of banned content, and what is interesting about this report that I have read is the claimant himself testified that he was using an app on his phone to communicate with people. This is the We app, which is a Chinese app, and he said that all of a sudden, without any warning, to his surprise, all of the content from his WeChat app had been deleted and it seems more likely than not that this is the work of the Chinese government, and — because they have the technical ability to do this and they regularly monitor online activities of people they consider to be a threat or they consider to be dissidents or anti-government.
[20] And it goes on to say that with the rise of the internet, while the rise of the internet has created a non-traditional space for expression of political opinion in China, authorities have developed and applied increasingly sophisticated methods to limit online expressions of dissent. Chinese security apparatus invests heavily in monitoring controlling the internet with many foreign websites, including Facebook, Twitter, Google, and many foreign media sites blocked. Recent regulations have also cracked down on the use of virtual private networks, a means by which Chinese citizens and companies have gained access to banned sites by rooting their searches through a foreign server. And then it goes on to talk about, again, how powerful the security apparatus of the Chinese Communist Party is and how far it can extend. It goes on to say that the law states that the freedom of — freedom and privacy of correspondence of citizens are protected by law, but authorities often did not respect the privacy of citizens. In fact, the government passed new civil codes scheduled to enter into force on January 1st, 2021, that introduces articles on the right to privacy and personal information protection. Although the law requires warrants before officers can search premises, officials frequently ignore this requirement. The PSB, the Public Security Bureau, and prosecutors are authorized to issue search warrants on their own authority without judicial review. There continue to be reports of cases of forced entry by police officers.
[21] And then finally, it says authorities monitored telephone calls, text messages, faxes, email, instant messaging and other digital communications intended to remain private. Authorities opened and censored domestic and international mail. Security services routinely monitored and entered residences and offices to gain access to computers, telephone, and fax machines. Foreign journalists leaving the country found some of their personal belongings searched, and in some cases, when material deemed politically sensitive was uncovered, the journalists had to sign a statement stating that they would voluntarily leave these documents in the country.
[22] So, when you consider that the claimant has been engaged in these anti-government activities online, which are very heavily monitored by the Chinese government, I think that it is very highly likely that the government already knows about his activities here in Canada and they are keeping an eye on him and that if he goes back to the country, that it is very highly likely that he will be arrested and detained and interrogated and mistreated by the authorities because of his anti-government activities here in Canada, which he has been engaged in since 2015.
[23] Now, the claimant has, in his testimony, often talked about the national security law and how he is against the national security law and how, essentially, it has unravelled the freedoms that used to exist in Hong Kong and has destroyed the democratic fabric which used to exist in Hong Kong when people could openly and freely express their opinions and views on any matter and the — there is a Human Rights Watch report that talks about the national security law and how it has changed the environment in Hong Kong. And it goes on to say Human Rights Watch highlights the criminalization of peaceful speech and activities under the national security law. [24] The national security law punishes four types of activities; suasion, subversion, terrorism and collusion with foreign forces all carrying a maximum sentence of life in prison. Article 35 also states that anyone convicted of crimes under the law will be deprived of the right to run for public office for life. The definitions of these crimes are very broad and vague. Subversion, for example, criminalizes any act that seriously interferes, disrupts, or undermines the functioning of the Chinese of Hong Kong governments, a definition that can readily include peaceful protests. Both the crimes of suasion and subversion make criminal acts that do not involve force or threat or force, meaning that peaceful actions such as speeches, advocating, these ideas can violate the law.
[25] Mainland authorities have long used these vague crimes against people in China for promoting human rights. For example, the late Nobel Peace Prizer — prize winner Liu Ziobo (ph) was sentenced to 11 years in prison for inciting subversion after he organized a joint letter calling for political reforms. The economist Ilham Toti (ph) has been imprisoned for life for separatism because he spoke out for the equal treatment of ethnic Uyghurs. On the basis of this objective country evidence, I find that the claimant’s profile as an anti-government and pro-democracy activist whose activities run counter to the interests of the Communist Party of China, means that he faces a serious possibility of being arrested, charged and detained under the national security law, should he return to Hong Kong, China.
[26] I find that the national security law and its enforcement infringe the claimant’s human rights by criminalizing peaceful speech and activities and that his arrest, detention, and prosecution under the law would amount to persecution for his political opinions. The United States Department of State report reports numerous cases in 2019 of human rights activists charged with subversion of state power or incitement to subvert state power in the mainland China, receiving significant prison sentences. As the national security law entrenches upon the previous degree of autonomy, rule of law, and human rights enjoyed by Hong Kong in the past, I find that the claimant additionally faces a serious possibility of these types of abuses faced by human rights activists in mainland China.
[27] Finally, with respect to the issues of state protection and internal flight, since the agent of persecution in this case very clearly is the state, I find that adequate state protection would not be reasonably forthcoming to the claimant in his particular circumstances.
[28] Finally, I have also considered whether the claimant would have a viable internal flight alternative in any other part of China or Hong Kong. On the evidence before me and given that the agent of persecution is the state, it is the Chinese government, it is the Hong Kong government, and that the state has effective control over the entire territory, both mainland China and Hong Kong, I find that there is a serious possibility — the claimant faces a serious possibility of persecution throughout China and Hong Kong.
[29] For those reasons, I find the claimant does not have a realistic, attainable, or reasonable internal flight alternative anywhere in China.
[30] In light of what I have said already, I conclude that the claimant is a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act, and accordingly, I accept his claim.
[31] I wanted to thank Madam Interpreter for her assistance. Thank you, everybody, for your participation in this hearing. This matter is now concluded.
——————–REASONS CONCLUDED ——————–