2022 RLLR 122

Citation: 2022 RLLR 122
Tribunal: Refugee Protection Division
Date of Decision: February 14, 2022
Panel: Nicholas Leblanc
Counsel for the Claimant(s): Michael Korman
Country: China
RPD Number: TB8-32653
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A

DECISION

[1]       MEMBER: This is the decision in the claim for refugee protection made by XXXX XXXX. 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.  I have considered your testimony and the other evidence in the case, and I am ready to render my decision orally. 

[2]       For the following reasons, I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act. 

ALLEGATIONS

[3]       Your allegations are fully noted in your Basis of Claim form narrative found at Exhibit 2.  In summary, you allege a fear of persecution at the hands of Chinese authorities, specifically, PSB, due to your membership in the Church of Almighty God. 

IDENTITY

[4]       Your personal identity as a citizen of China has been established by your testimony and the supporting documents filed in the exhibits, namely copies of your resident ID card, your household register, and a photocopy of the biodata page of your passport which was originally taken by the smuggler. I note today you have provided testimony that you now have the passport and you did show me it on the record, these documents can be found at Exhibit 5. 

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

NEXUS

[6]       I find there is a link between what you fear and a Convention ground, namely religion given your membership in the Church of Almighty God. I have therefore assessed your claim under Section 96. 

CREDIBILITY

[7]       I find you to be a credible witness and I therefore believe what you have alleged in support of your claim.  You testified in a straightforward manner and I found no inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. Your testimony regarding the Church of Almighty God I found was heartfelt and spontaneous. You explained the reason that you became interested in joining the church and even your own initial reactions when you were first introduced to it.  Throughout your testimony, you provided natural details about the church and your responses were consistent with the objective evidence and your alleged level of knowledge and experience. In my assessment, I have also considered your level of education and my expectations of your responses. In particular, you have also provided details about your own work spreading the gospel in Canada and about the ways in which your church group in China would meet and precautions that were taken to avoid detection by authorities.  I therefore believe what you have alleged in your oral testimony and your Basis of Claim form and find that you have established your membership with the Church of Almighty God on a balance of probabilities.

[8]       You also provided documents which support your claim such as your hospital discharge form, a social maintenance fee for having a second child, a copy of the detention summons, a letter from the Church of Almighty God in Canada which supports your practice in Canada, and a screenshot from your attendance at Church of Almighty God events over Zoom. I find these documents consistent with your allegations and BOC narrative and find they further support your testimony and credibility.  I note the Minister has intervened in this case and submits that the claimant has made three previous visa applications to the United States and one to Canada and that the one to Canada was not disclosed to Canadian officials.  The Minister further submits that these applications were made at a time when you did not fear persecution and that undermines your credibility. The Minister also argues that you would not have been able to flee China given its rigorous exit controls and the claimant being somewhat of interest to the PSB, you wouldn’t have been able to leave given these controls.  I asked you about these issues and you stated that you used the services of a snakehead in order to get yourself a better chance of leaving China. You further stated that your family experienced a penalty when you had your second child and you were fearful that your wife would suffer a further and more serious penalty given that she was pregnant with your third child. Given your credible testimony, I accept that you filed these applications at a time when you and your wife were about to have a third child. As a result, that alleviates the concerns regarding the visa applications to the United States.

[9]       With respect to the Canadian visa, sorry, I also just want to add, I do note you were forthcoming with this. You did provide this information in your Schedule A and it was not something that was withheld from Canadian authorities.

[10]     With respect to the Canadian visa which you did not disclose, I asked you about this and you told me you have no memory of making this application. You further stated that you informed me, you informed me of the U.S. visas that were rejected and if you knew about the Canadian one, you would have told me.  I do have a hard time with this because the fact is before me, I have a TRV application with your name on it; however, you did state that you did not do it.  With that being said, I do note that you were forthcoming in disclosing your visa applications to the U.S. in your Schedule A when you first   filed your claim for refugee protection, as well as the fear you had with your wife’s pregnancy. Since you were forthcoming with these applications, I do find it reasonable that if you remembered or knew about this Canadian application, you would have stated so.  I make this finding while also considering the credible and forthright testimony you have provided me today. 

[11]     Finally, the Minister refers to documentary evidence indicating very thorough screening procedures at airports and submits that the Chinese authorities efficiently control the exit of citizens and that criminal fugitives are flagged in the computer database which would be inconsistent with the claimant being able to leave the country on his own passport. While I do not dispute the Minister’s evidence, it appears to be based upon either a misunderstanding of the claimant’s evidence or misreading of the documentary evidence as it relates to this case. The claimant never alleged to be arrested in China and instead his evidence indicates that he was questioned about his connection and that he was being investigated but it was not until he was in Canada that he received a summons to appear under Article 82 of the Criminal Procedure Law of Canada, of China, correction.

[12]     For these reasons, it is very plausible that the claimant’s name did not appear in the police net database in XXXX 2018 when he fled China. I further note that refugee determination is a forward looking assessment and having found the claimant to be credible and genuine in regard to his membership and practice in the Church of Almighty God, I therefore find that the claimant has a forward looking risk of persecution and I also find the claimant’s ability to leave China on his own passport does not mean that he is not wanted nor does it mean he is not a member of the Church of Almighty God.  I find the claimant’s credible testimony and the evidence before me to clear up the issues noted in the intervention.  I therefore find that your subjective fear if established by your credible testimony and I believe what you have alleged on a balance of probabilities. 

OBJECTIVE BASIS

[13]     The documentary evidence further supports your position that your fear of persecution is objectively well founded.  The U.S. Department of State’s most recent International and Religious Freedom Report indicates that, while freedom of religion is included in the Chinese constitution, it is limited to so-called normal religious activities  and practice by unregistered religious organizations which is illegal and vulnerable to punitive official action. The same document indicates that, the government exercises state control over Religion and restricts activities  and freedom of religious adherents.  U.S. Convention on International Religious Freedom has classified China as a country of particular concern. The report notes that, the 2018 regulations on religious affairs have effectively banned unauthorized religious teachings and have revved up the CCB’s campaign to sinicize faith by erasing independent practice of religion.  The report notes that, the government raided and closed hundreds of house churches in the east during the reporting year. The same report indicates wide-spread reports of Chinese authorities closing churches, destroying and confiscating bibles and otherwise restricting or interfering in religious activities  and they estimate that five (5) thousand Christians and one (1) thousand church leaders were arrested in 2018 because of their faith and religious practice. 

[14]     The U.S. Department of State Report in 2.1 indicates, there continue to be reports of deaths in custody and that the government tortured, abused, arrested detained, sentenced to prison, and harassed adherents of both registered and unregistered religious groups for activities related to their religious beliefs and practices.

[15]     I do note there is some evidence in the NDP suggesting that there are millions of Christians in China and that many members of unregistered churches do not face harassment from the states, for example a 2014 Response to Information Request highlights variation in the treatment of unregistered groups by local authorities and notes that according to some sources, the majority of unregistered churches are tolerated by the government.  However, I find that the more recent reports in the NDP including the 2019 U.S. Department of State and U.S. Commission on International Religious Freedom Reports indicate widespread and increasingly severe crackdowns and restrictions on unregistered churches throughout China resulting at least in part from the 2018 regulations being implemented. 

[16]     Based on the objective country evidence, I find your fear of persecution is objectively well founded and that you have established that you would face a serious possibility of persecution if you were to return to China. 

STATE PROTECTION

[17]     In terms of state protection, the state is the agent of persecution in the present case so I find you have rebutted the presumption of sate protection and would not have access to it in China. 

INTERNAL FLIGHT ALTERNATIVE

[18]     Given that the state is the agents of persecution, I similarly find that you would face a serious possibility of persecution in all areas of China and do not have a viable Internal Flight Alternative. 

CONCLUSION

[18]     In conclusion, based on the totality of the evidence in your case, I find you are a Convention refugee and I accept your claim.

——— REASONS CONCLUDED ———