2023 RLLR 160
Citation: 2023 RLLR 160
Tribunal: Refugee Protection Division
Date of Decision: December 7, 2023
Panel: Luljeta Caraoshi
Counsel for the Claimant(s): Stacey Margaret Duong
Country: China
RPD Number: TC3-06654
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A
DECISION
[1] This is a decision of the Refugee Protection Division (RPD) in the claim for refugee protection made by XXXX XXXX, who claims to be a citizen of China, and is claiming refugee protection pursuant to sections 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The claimant’s allegations are set out in her Basis of Claim (BOC) form submitted to the board.[2] In summary, the claimant alleges that she will face persecution in China because she is a Falun Gong practitioner.
DETERMINATION
[3] The panel finds the claimant to be a Convention refugee pursuant to section 96 of the IRPA.
ANALYSIS
Identity
[4] According to her Application Summary, the claimant has used the name XXXX XXXX in the past. When asked, the claimant testified that as long as she remembers, she had the current name, but her mother told her that she was given another name when she was born. She testified that all her documents, such as school certificates, her passport, and her ID use her current name.
[5] The panel notes that the claimant submitted a national identity card and her passport with the Canadian visa with the name XXXX XXXX. Her BOC form, her narrative and Application Summary include the name XXXX XXXX. The panel notes that there is a slight variation in the translated version of the Hukou and driver’s license, ‘XXXX XXXX’ instead of ‘XXXX’. Nevertheless, considering the claimant’s testimony, National Identity Card, passport, BOC form and narrative, and the Application Summary, the panel finds that claimant established her personal and national identity as a Chinese citizen, on a balance of probabilities.
Credibility
[6] When a claimant swears that certain facts are true, this creates a presumption that they are
indeed true unless there is valid reason to doubt their veracity. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities. However, the existence of contradictions or inconsistencies in the evidence, including prior statements, can be a valid basis for a finding of lack of credibility.
[7] In assessing the testimony of the claimant, the panel is mindful of the potential difficulties in testifying in a hearing setting with the assistance of an interpreter, the stress of the hearing process, cultural and social factors, that might impact their testimony.
[8] The determinative issue in this claim is the profile of the claimant as a Falun Gong practitioner. The claimant alleges in her BOC that she started to practice Falun Gong after she divorced her husband in XXXX 2022. Therefore, the panel asked about her divorce and her family composition. The panel noted that the Divorce Certificate submitted includes a final paragraph which states “According to this law, for register, the marriage certificate will be issued. After receive this marriage certificate, the couple’s relation will be established”.[3] The panel also noted that the Hukou submitted to the board indicates that XXXX XXXX XXXX is non-relative, however the claimant testified that she is the claimant’s adopted daughter. The Hukou also indicates that her son, XXXX XXXX was born in 2006. According to the divorce agreement, her son was born in the wedlock and the claimant was married in 2010.
[9] The counsel intervened explaining that there is a mistake in the translated version of the divorce certificate and submitted as post hearing disclosure another English version of the divorce certificate. The panel included the new disclosure as evidence. Regarding her daughter, the claimant testified that it is written non-relative because it is how they refer to adoptive children in China. The counsel argues in the written submissions that labeling of the child as ‘non-relative’ is technically correct, as the term is defined as “a person connected by blood or marriage”, and makes reference to the Oxford Languages Dictionary.[4]
[10] The panel raised the credibility concerns about her family composition because the claimant alleges that she started to practice Falun Gong after she was divorced. She also alleges that she was involved in Falun Gong activities such as group practice in Canada after she came to meet her son who is studying in Canada. While the panel still has concerns about the information in her Hukou, the panel has not elaborated further on the above credibility concerns, considering that the determinative issue is forward facing risk due to her alleged profile as a Falun Gong practitioner.
The profile of the claimant as a Falun Gong Practitioner
[11] The claimant came to Canada on XXXX XXXX, 2022, allegedly to visit her son who is studying in Canada. She alleges in her BOC that she planned to return to China in XXXX 2022. She testified that she started to practice Falun Gong with a group. She alleges in her BOC that she enjoys the freedom to practice outside with the fellow practitioners, which she can not do in China, because Falun Gong is banned there.
[12] When asked about her motivation to join Falun Gong, the claimant testified that her friend in China told her about the five exercises and she started to practice because she noted that her friend was happy. She alleges that she practiced only with her friend but not in a group in China because they were afraid.
[13] When asked by the panel, the claimant explained about her daily Falun Gong activities in China and Canada. The claimant testified about the attachments, sending righteous thoughts and the purpose of sending the righteous thoughts.
[14] The panel asked the claimant about exercise 5, Talk 7, the concept of gain and loss, law wheel, cultivation and attachments. The claimant was able to speak about the five exercises, and tried to do the exercise five but was not able to describe with words the movements. She testified that she is able to perform it but does not find it easy to explain. She also tried to demonstrate how she gives righteous thoughts and provided information about law wheel and the lecture four, but she was not able to speak about talk 7. She testified that she reads only one book on Falun Gong, because she still has to understand it better. When asked how she finds reading the theory, she testified that it is not easy to understand, and she needs to read more.
[15] The claimant testified that she does not use social media about her Falun Gong practice, and when asked how she communicates with her fellow practitioners to arrange for the group practice, she responded that she only uses phone. When asked whether she has any communication, such as email, message, or any other communication in social media with fellow practitioners about the date and time of meetings, she reiterated that they only call each other. The claimant testified that she has been in front of the Chinese consulate with other Falun Gong members and provided some photos practicing or holding banners about Falun Gong.
[16] The panel notes that the claimant has basic information about Falun Gong and was willing to demonstrate how she does the exercises. However, Falun Gong is knowledge-based as opposed to being faith-based. It is not sufficient to just perform the five exercises associated with Falun Gong to achieve the goals set out by Master Li.[5] Study and comprehension of the words and ideologies underpinning the practice are necessary. Therefore, the panel expects a claimant who professes to be a practitioner of Falun Gong to be able to describe in some detail its various elements, its foundational ideas, and its precepts. The claimant was not able to explain some theoretical concepts such as enlightenment or cultivation. She was also not able to speak about the main issues discussed in Lecture 7 of Zhuan Falun,[6] which raises credibility concerns about her Falun Gong practice.
[17] The panel considered that the claimant started to learn and practice Falun Gong in XXXX 2022 and she testified that she finds it difficult to understand the theory and needs time to read the book. She stated that she is reading Falun Gong and not any other book. Therefore, while the panel has credibility concerns about her difficulty to respond to questions related with theoretical concepts such as cultivation or enlightenment and was not able to identify the main issues discussed in lecture 7 of Zhuan Falun, the panel acknowledges that she had some basic knowledge of Falun Gong. She was able to speak about righteous thoughts and their objective, about Truth, Compassion and Forbearance, karma and how the karma is manifested in a person, attachments and the importance of getting rid of attachments, the five exercises and demonstrated a willingness to perform exercise five when asked, or to demonstrate how the righteous thoughts are sent. The panel finds her knowledge, on a balance of probabilities, commensurate with the period of time she has been involved with Falun Gong and consistent with her testimony that she finds the theory difficult and reads Falun Gong, to understand better the theory.
[18] The panel further notes that while it still has some credibility concerns, the standard of finding is that of a balance of probabilities, therefore the panel finds that the claimant established, within the required standard of a balance of probabilities, that she is a Falun Gong practitioner.
[19] The claimant does not allege of any harm suffered in China, but that she would be harmed, should she practice Falun Gong in China. The refugee determination is a forward-looking assessment. Therefore, the panel considered the allegation that the claimant would face risk should she return and practice Falun Gong in China. The claimant testified that it is important for her to practice, but she can not practice freely because Falun Gong is not allowed in China. Considering her profile as a Falun Gong practitioner and the country conditions about the risks faced by Falun Gong practitioners, the panel finds that she established her subjective fear.
Objective Evidence
[20] The objective evidence supports the allegation of the claimant that she will not be able to practice Falun Gong freely should she return to China. The objective country documentation speaks about the persecution of Falun Gong adherents and practitioners in China.[7] The Chinese Communist Party (CCP) has labelled Falun Gong an “evil” cult and it regards it as a threat to social stability, meaning its hegemonic control and rule over the Chinese people.[8]
[21] China criminalizes belonging to Falun Gong and practitioners can be subject to a range of official sanctions including prolonged detention, harsh treatment, loss of employment, being sentenced to attend re-education, etc. Family members are also subject to official sanctions, including children losing access to education.[9]
[22] The objective evidence shows that the Chinese government maintains an extrajudicial security apparatus to eliminate the Falun Gong movement.[10] Sources note that this apparatus is known as the 6-10 office, and that the name refers to the 10 June 1999 “crackdown” against Falun Gong. Australia’s DFAT report indicates that the 6-10 office has reportedly established “transformation through reeducation centers” that compel Falun Gong practitioners to renounce their religious beliefs. Sources in objective evidence indicate that the Chinese Communist Party has used digital surveillance to target movements such as Falun gong and that Falun Gong practitioners face widespread surveillance.[11]
[23] Other sources speak about physical violence, forced drug administration, and other forms of torture used against Falun Gong practitioners in detention. Australia’s DFAT states that Falun
Gong practitioners have reported mistreatment in detention including sleep deprivation,
enforced standing and kneeling for extended hours, nasal feeding, being forced to drink dirty or salty water, shackling and beatings. In its 2020 annual report, Freedom House indicates that Falun Gong “detainees typically face torture aimed at forcing them to abandon their beliefs, sometimes resulting in deaths in custody.”[12]
[24] A report published by the ‘Victims of Communism Memorial Foundation’, an
educational and research NGO dedicated to commemorating victims of communism around the
world “and to pursuing the freedom of those still living under totalitarian regimes” found that
there is evidence that Falun Gong practitioners have been used as a source of organs.[13]
[25] The panel notes that objective evidence speaks about millions of Falun Gong practitioners in China, who can usually practice privately at home without coming to the attention of the authorities. The claimant herself pointed to her friend who has been practicing Falun Gong in practice and has not faced any harm. However, the objective evidence also speaks about the consequences should they become known to authorities, coworkers, or neighbors, such as arrest and forced to re-education camps, general societal discrimination, including discrimination in housing and employment.[14]
[26] Considering the objective evidence, the panel finds, that the claimant’s fear of persecution in China is objectively well-founded.
STATE PROTECTION
[27] States are presumed to be capable of protecting their citizens, unless in a condition of complete breakdown. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence. The panel finds that the Chinese government is the agent of persecution in this case. Given that the state is the agent of persecution, the panel finds that it would be objectively unreasonable for the claimant to seek protection from the state in her circumstances.
INTERNAL FLIGHT ALTERNATIVE
[28] Given that the state is an agent of persecution and has control over the entire country, the panel finds that there is a serious possibility of persecution throughout China and therefore, a viable IFA location does not exist for the claimant.
CONCLUSION
[29] Having considered all of the evidence, the panel concludes that the claimant is a Convention Refugee pursuant to s. 96 of the IRPA because she faces a serious possibility of persecution as a practitioner of Falun Gong. Accordingly, her claim is accepted.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
[2] Exhibit 2, Basis of Claim (BOC) form.
[3] Exhibit 5, See last paragraph of p.14.
[4] Exhibit 7, Counsel’s Written Submissions.
[5] The founder of Falun Gong. Known as Master Li to his followers.
[6] Exhibit 3, Tab. 12.12 – Lecture 7, p.133.
[7] Exhibit 3, Tab 2.1.
[8] Exhibit 3, Tab 2.1, 12.1, 12.9, 12.22, 12.33.
[9] Ibid.
[10] Exhibit 3, Tab 12.5 and 12.22.
[11] Exhibit 3, Tab. 12.5.
[12] Exhibit 3, Tab 2.7.
[13] Exhibit 3, 12.22.
[14] Ibid.