2023 RLLR 259

Citation: 2023 RLLR 259
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Alexander Olson
Counsel for the Claimant(s): Jane G. Rukaria
Country: China
RPD Number: VC3-04452
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A

 

DECISION 

 

[1]                   This is the decision of the Refugee Protection Division of the Immigration and Refugee Board in the claim for protection made by XXXX XXXX, who claims to be a citizen of Kyrgyzstan and China, and who is seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the IRPA).[1]

 

ADMINISTRATIVE MATTERS

[2]                   An updated version of the national documentation package (NDP) for China, dated October 31, 2023, was issued post hearing. Under the Policy on National Documentation Packages in Refugee Determination Proceedings,[2] general principle II outlines that the RPD will consider the most recent NDP in support of assessing forward-looking risk. I have compared the relevant documents that were used in reviewing this claim with the older version of the NDP and note that the new NDP contains essentially the same information as the older version. Thus, I will be employing the newer version of the NDP for China for the purposes of assessing this claim.[3]

ALLEGATIONS

[3]                   The claimant is a 27-year-old citizen of Kyrgyzstan and China whose allegations, as set out in his Basis of Claim (BOC) form[4] and during his testimony at the hearing, can be summarized as follows.

[4]                   The claimant fears persecution from Chinese authorities, as a result of his Kyrgyz ethnicity, Muslim religion, and imputed political opinion as a Kyrgyz man who left China to study abroad and did not return to China as requested by Chinese state actors. He also fears persecution from Kyrgyz authorities, who he alleges will hand him over to Chinese state actors. In testimony, the claimant also raised persecution at the hands of Kyrgyz society as a person originally from China.

[5]                   The claimant states that he was born in Xinjiang, China, and is a non-practicing Muslim and is of Kyrgyz ethnicity. He also states that he spent significant time after 2014 in Kyrgyzstan, studying there, and becoming a citizen of said country in 2021.

[6]                   The claimant states that in 2016 there was a suicide bombing of the Chinese embassy in Kyrgyzstan, and the bomber was of Uyghur background. In the aftermath of this attack, the Chinese government sent its citizens who had visited Kyrgyzstan in 2016, to concentration camps in Xinjiang. Two of the claimant’s relatives were sent to concentration camps in China for this very reason and he remains unaware of their fate or if they are still alive.

[7]                   In 2017, the claimant returned to China to visit his family, and was detained by the Chinese authorities shortly after his arrival. The police who detained him interrogated him about his activities in Kyrgyzstan and if he knew anything about minorities from Xinjiang who were in Kyrgyzstan and what their activities were. After XXXX XXXX, he was released but ordered to report to the police station daily and his passport was not returned to him.

[8]                   During this time in Xinjiang, he witnessed people being arbitrarily arrested and sent to concentration camps.

[9]                   After two months of daily reporting to the police station, a sympathetic Uyghur police officer gave the claimant his passport back on the condition that the claimant agree to return to China once he finished his studies. The claimant, upon receipt of his passport, booked a flight to Kyrgyzstan and returned there in XXXX of 2017.

[10]                   The claimant states that many Chinese nationals studying in Kyrgyzstan, who were of Uyghur or Kyrgyz ethnicity, were being asked to return to China by their parents who were under duress from the Chinese government. Once they returned, they were sent to concentration camps. The claimant had a girlfriend to whom this happened.

[11]                   In XXXX of 2019, the claimant attended a karaoke bar with a cousin and a group of Han Chinese individuals attacked them and threw them out of the bar. When the claimant threatened legal action against the attackers, one of them responded that he was from the Chinese embassy.

[12]                   The day after the assault, he went to a police station to report the incident. However, a man arrived at the station and told the claimant he knew he had family in Urumqi, was originally from XXXX, and that if he did not apologize and withdraw his complaint, his family could be harmed in China. The claimant ultimately agreed to withdraw his complaint and answered periodic phone calls from the Chinese embassy that inquired about his activities until the XXXX of 2020.

[13]                   The claimant’s cousin, in 2020, told him that they could make money helping XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Kyrgyzstan. The claimant also alleges that a family friend, who was of Han ethnicity, visited him in Kyrgyzstan and informed the claimant that Chinese police go to Kyrgyzstan and have a quota of people they must return to China each month and that if they do not meet the quota, they will randomly arrest students.

[14]                   The claimant fears that police in Kyrgyzstan will arrest him and turn him over to Chinese authorities should Chinese authorities demand this handover. He also states that he knew from the news that Kazakhstan, Tajikistan, Turkey, and Saudi Arabia had been handing over Uyghurs to the Chinese authorities.

[15]                   The claimant also testified that he has been threatened in Kyrgyzstan by ethnic Kyrgyz who view him as a Chinese émigré and that state officials have demanded bribes from him and discriminated against him.

[16]                   The claimant left Kyrgyzstan on XXXX XXXX, 2022 to study at XXXX XXXX in the United States with a student visa. While at said XXXX, he encountered an individual from China who questioned him about his opinion on arrests in Xinjiang. He also states that he found out that China has a lot of connections with said school, and so he decided to leave for Canada.

[17]                   The claimant left for Canada on XXXX XXXX, 2022 with a visitor visa. He made his refugee claim in Canada on April 17, 2023.

[18]                   Police from Urumqi (the city his family lived in in Xinjiang) continue to call the claimant’s parents and ask when he will return to China, having inquired as recently as XXXX 2023.

DETERMINATION

[19]                   I find that the claimant faces a serious possibility of persecution if he returns to China for reason of his imputed political opinion as an ethnic Kyrgyz individual who has failed to return to China after studying abroad, as requested by state actors. I also find that he faces a serious possibility of persecution if he returns to Kyrgyzstan by reason of his nationality as a Chinese‑born individual, holding Chinese citizenship there. I find that the claimant is a Convention refugee pursuant to s. 96 of the IRPA.

ANALYSIS

Identity

[20]                   On a balance of probabilities, I find that the claimant has established his personal and national identity as a citizen of China and of Kyrgyzstan, by the documentary evidence on file, including a certified true copy of their Chinese and Kyrgyzstani passports, which can be found in exhibit 1.

[21]                   I note that the spelling of the claimant’s name differs considerably between his passports (the Kyrgyzstani passport is for XXXX XXXX and the Chinese passport is for XXXX XXXX XXXX). I asked the claimant why the names were so different. He responded that the Chinese language cannot accurately transliterate the sounds from the Turkic language for his Kyrgyzstani name. I find, on a balance of probabilities, that this is a reasonable explanation and I accept it. I find that the passports are for the same individual and I have no concerns about the claimant’s identity.

 

Countries of Reference

[22]                   There are two countries of reference in this claim: Kyrgyzstan and China. The claimant was born in China, from which he derived his Chinese citizenship and passport. As an ethnic Kyrgyz, he obtained citizenship in Kyrgyzstan in 2019, and also received a passport from said country. I will be assessing the claimant’s subjective fear and well-founded fear for both countries in this decision.

[23]                   I find that the claimant still holds Chinese citizenship. I note that in the National Documentation Package (NDP) tab 3.1, the nationality law of the People’s Republic of China, states that China does not allow its citizens to have dual citizenship. In particular, article 3 and article 9 of said law note that Chinese citizens lose their Chinese nationality if they obtain citizenship from another country.[5] I asked the claimant, in the hearing, how it was possible for him to still hold Chinese citizenship if he had recently obtained citizenship in Kyrgyzstan. The claimant responded that he can be arrested by Chinese authorities for the act of obtaining dual citizenship and that he can only legally renounce his Chinese citizenship by returning to China.

[24]                   I note that counsel provided an article from RadioFreeEurope, “China’s Other New Security Concern – Its Ethnic Kyrgyz,” which states that ethnic Kyrgyz from China, who have subsequently obtained Kyrgyzstani citizenship, have been detained up re-entering China for not properly rescinding their Chinese citizenship.[6]

[25]                   I find, on a balance of probabilities, that the claimant’s testimony and the article supplied by counsel establish that, despite the existence of China’s citizenship law cited in NDP tab 3.1, that Chinese citizenship is not automatically renounced upon obtaining citizenship from a second country, and thus the claimant remains, in the eyes of China, a citizen of said country. Therefore, I find that he has two countries of reference and I will assess risks in both in this decision.

 

Nexus

[26]                   In order to satisfy the definition of a “Convention refugee” found in section 96 of the IRPA, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group or political opinion. With respect to his claim against China, I find that there is a nexus between the harms that the claimant fears and the Convention ground of imputed political opinion as an individual of Kyrgyz ethnicity who has left China to study abroad, had other relatives imprisoned in China, and failed to return to China as requested by the authorities there. Concerning the claimant’s claim against Kyrgyzstan, I find that there is a nexus to his particular social group as a Chinese-born Kyrgyz individual who emigrated to Kyrgyzstan and experiences discrimination from ethnic Kyrgyz who perceive Chinese nationals negatively. This claim will therefore be assessed pursuant to s. 96 of the IRPA.

Credibility and Findings of Fact

[27]                   Testimony provided under oath is presumed to be truthful unless there is reason to doubt its veracity.[7] The presumption of truthfulness does not apply to inferences or speculation.

[28]                   The claimant testified in a straightforward manner that was consistent with all of the other documents on file, including his BOC form and his narrative, and he was able to answer my questions in full and provided the details that were requested of him. There were no relevant inconsistencies or contradictions in his testimony. Nor did I find any inconsistencies or contradictions between the claimant’s testimony and the documentary evidence on file.

[29]                   In support of his claim, the claimant submitted documentary evidence including, but not limited to: 

·      a photo of the claimant with a black eye;

·      admission statement and a receipt from XXXX XXXX; 

·      a receipt for the TOEFL exam; 

·      Chinese retirement documents stating that the claimant’s parents are ethnic Kyrgyz; articles describing how ethnic Kyrgyz individuals have been tricked into returning to China and then sent to concentration camps; 

·      articles concerning how ethnic Kyrgyz, Kazakhs, and Uyghurs are being targeted by Chinese state actors in Xinjiang; 

·      articles concerning how certain countries are deporting people to China; 

·      articles concerning how the Chinese state maintains a mass surveillance system globally; 

·      articles concerning how the Chinese state has created secret overseas police stations; 

·      articles discussing how XXXX XXXX in the United States has ties to the Chinese state;[8] 

·      articles concerning attitudes towards China and Chinese émigrés in Kyrgyzstan; 

·      and articles concerning how Chinese state actors improperly utilize Interpol to enable the extradition of political dissidents to China from abroad.

[30]                   I found the claimant’s testimony about the treatment he received at the hands of Chinese state actors, including his detention, release, and subsequent contact between state actors and his parents, to be credible. The claimant testified that, when he visited his family in China for a few days after the first year of his studies in Kyrgyzstan, he was summoned to a Chinese police station. He testified that he was detained for XXXX XXXX by police in China, that they questioned him about his knowledge of criticism of the Chinese government among those he knew in Kyrgyzstan and if he had participated in any terrorist activities. They also said that it was likely he would have to go to a camp in Xinjiang for a month. Afterwards he was released but had to agree to return to China after his studies abroad. The claimant also described how his parents have been contacted several times by Chinese state actors and how his parents have assured them that he will return once he completes his studies. I accept the claimant’s testimony that he was detained by police in China, interrogated by Chinese state actors, and that Chinese authorities are asking his family about when he will return.

[31]                   The claimant testified that, after he returned to Kyrgyzstan, he encountered Chinese state actors who assaulted him at a karaoke bar and subsequently one individual who was allegedly connected to the Chinese government threatened the claimant at a Kyrgyz police station when the claimant reported the incident. The claimant stated that the Kyrgyz police, who were present in the station, only agreed to withdraw the claimant’s charges against the Chinese individuals who assaulted him after he apologized over a phone, which one of the Chinese individuals was holding, ostensibly to an individual in China. The claimant also testified that his cousin, who, like the claimant, is a Chinese national living in Kyrgyzstan, has been helping XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Kyrgyzstan. The claimant further testified that his father’s friend informed him that police officers from China have been going to Kyrgyzstan to investigate and take individuals back to China. I accept that the claimant was assaulted by Chinese nationals in Kyrgyzstan and that he has been informed by people that Chinese state actors are active in Kyrgyzstan.

[32]                   The claimant also testified about how he has knowledge of others from his ethnic group who had been detained in China, which I find to be credible. The claimant stated that he knew other people of Kyrgyz ethnicity, including an ex-girlfriend, and two or three relatives of his mother, who were detained in China and sent to concentration camps. He also testified that he knew an individual who fled China after being released from a concentration camp, and that this individual is traumatized and has scars from his time there. I accept the claimant’s testimony that he knows people who have been detained in camps in Xinjiang who are ethnically Kyrgyz and considered Muslim by Chinese state actors.

[33]                   The claimant testified that, as someone who grew up in China, he encountered discrimination in Kyrgyzstan from other Kyrgyz people. The claimant has an accent due to his upbringing in China, which identifies him as noticeably different than other Kyrgyz people in Kyrgyzstan. He testified that, upon learning he was from China, people often spoke to him harshly and physically threatened him in one case. The claimant further testified that, in XXXX, classmates harassed him for money and professors sometimes failed him and said he had to pay money to pass his courses. Further, several study abroad agencies, based in Kyrgyzstan, took his money and failed to provide services in several instances. He also testified that, at government buildings in Kyrgyzstan, sometimes when government employees who were processing his identification saw that he was from China they would be rude and tell him to come back later. He also testified that police asked him for money when he reported his assault to them. I accept, as per the claimant’s testimony, that he experienced discrimination as a Chinese émigré in Kyrgyzstan, both from the general public and from state actors.

 

Failure to Claim at the First Available Opportunity

[34]                   The claimant arrived in the United States, where he spent approximately three months as a student before coming to Canada. I asked the claimant why he did not claim asylum as the first available opportunity in the United States. He testified that he had worked hard to escape Kyrgyzstan with a student visa and became more frightened in the United States when he learned that his XXXX had significant influence from the Chinese government. He also testified that he had a Uyghur friend in the United States who told him that a Canadian government plane had rescued Uyghurs who were going to be deported from Turkey to China and that this information strengthened his resolve to go to Canada. I accept the claimant’s explanation. I also note that the claimant spent little time in the United States before coming to Canada. I do not find that his failure to claim asylum in the United States detracts from his subjective fear or his credibility.

[35]                   Considering the foregoing, I find that the claimant has established his central allegations on a balance of probabilities and has established that he has a subjective fear of returning to China or Kyrgyzstan.

Well-Founded Fear of Persecution

[36]                   When assessing a claim for refugee protection I must look at whether claimants have a well-founded fear of persecution, which involves both a subjective fear element and a forward-facing objective basis for that fear. Based on all the evidence before me, I find, on a balance of probabilities, that both of these elements have been established and that there is a serious possibility of persecution if the claimant returned to either China or Kyrgyzstan.

 

China

[37]                   I find that the claimant has a well-founded fear of persecution based on his imputed political opinion as a Kyrgyz man who has studied abroad and failed to return to China as directed by state authorities. The claimant began studying abroad in 2014, before the crackdown against Kyrgyz in western China. His actions attracted suspicion on himself and his family by authorities who detained him as a result. He was detained and threatened with being taken to a concentration camp in Xinjiang. This threat, his past detention by police, and subsequent failure to comply with their demands to return at the conclusion of his studies abroad demonstrates that there is a future prospect of persecution.

[38]                   As per the State Department’s report, since 2017 the Chinese government has conducted mass arbitrary detention of Uyghurs, ethnic Kazakhs, Kyrgyz, and members of other Muslim and ethnic minority groups in Xinjiang.[9] I accept that in China, ethnic Kyrgyz are among those persecuted in the western provinces by state actors, with over a million Uyghurs, Kazakhs, and Kyrgyz arbitrarily detained in concentration camps in which abuse, torture, and death have reportedly occurred.[10] The State Department’s report also notes that many of these unfortunate individuals were recalled to China after studying abroad.[11] I also note that counsel provided articles that further address the Chinese state’s willingness to target Kyrgyz individuals in addition to Uyghurs in Chinese western provinces.[12]

[39]                   NDP tab 13.37 states that Xinjiang officials have created a list of 26 countries, of which Kyrgyzstan is one, and have determined that people who spent time in those countries can be detained and imprisoned due to potential involvement in, or support for, terrorism is Xinjiang. Most of these countries are Muslim majority ones, and there are reports that many people who have spent time in them, or have relatives there, have been detained or imprisoned by Chinese state actors.[13] Further, many of those detained are subject to forcible political indoctrination and forced labour.[14] The claimant and his counsel also provided articles from reputable sources, such as RadioFreeEurope, describing the ordeals of various ethnic Kyrgyz individuals with Chinese citizenship who studied abroad, returned to visit family in China, and were then sent to concentration camps.[15]

[40]                   This evidence makes plain that the human rights situation for ethnic minorities in western China, especially those who have travelled abroad or are considered to be Muslim (such as ethnic Kyrgyz), is dire. The claimant is Kyrgyz, a non-practicing Muslim, and his study in Kyrgyzstan outside of China has made him a target. Authorities expressed suspicion about who the claimant knows outside of China that may hold anti-Chinese government sentiment or be involved in anti-government activity. The Department of State report confirms that “the government continue[s] its concerted efforts to compel Uyghurs studying abroad to return to China, often pressuring relatives in Xinjiang to ask their overseas relatives to return.” As per other sources cited above, I note that this compulsion extends from Uyghurs to other western Chinese ethnic groups that are historically Muslim. In this case, the claimant has been threatened with imprisonment, and his family has been contacted by state actors who want to know when he will come home. Based on the claimant’s detentions and threats and of China’s repression of ethnic minorities and perceived political dissidents in Xinjiang, I find that there is a serious possibility of persecution if the claimant returns to China.

 

Kyrgyzstan – Political opinion

[41]                   The claimant stated that he is afraid that Kyrgyzstan’s authorities will cooperate with requests from Chinese state actors and will accordingly hand over the claimant to Chinese authorities for detention in Xinjiang. The claimant testified to this effect, stating that he was beaten by Chinese nationals in a karaoke bar and accordingly a representative of these individuals threatened the claimant when he reported the incident in a Kyrgyz police station. He further testified that the Kyrgyz police sided with these nationals noting how much these guests contribute financially to Kyrgyzstan’s economy. I accept the claimant’s testimony that this incident occurred. Further, the claimant testified that his cousin is employed by XXXX XXXX XXXX to XXXX XXXX XXXX XXXX in Kyrgyzstan and that his father’s friend informed him that Chinese police have been operating in Kyrgyzstan seeking figures to return to China. I accept this testimony.

[42]                   I note that the NDP has very little information on Kyrgyzstan’s authorities helping Chinese state actors take individuals from Kyrgyzstan to China. I note that Kyrgyzstan’s NDP item 13.2 at paragraph 3.1 states that there is also a risk of extradition of Uyghurs to China where there is currently genocidal activities including forced containment in labour camps.[16] I also note that, as per Kyrgyzstan’s NDP item 2.8, due to the country’s membership in China’s Shanghai Cooperative, there are close relations between Kyrgyzstan and China when it comes to security matters, including working together to apprehend and send Uyghurs back to China.[17] 

[43]                   I also note, as per China’s NDP item 10.12, China’s authorities have gotten around obtaining the consent of other governments to deport wanted political dissidents to China, and have even resorted to kidnapping to do so.[18] I also note that, as per this report issued by Safeguard Defenders, China’s overseas police stations are active in Kyrgyzstan.[19] Indeed, via China’s “Fox Hunt” operations which seek to make political dissidents return to China, over 11,000 people were returned to China between 2014 and 2022.[20] Typically, this means the returnee was pressured by Chinese state actors residing abroad to return to China, although in some cases they were returned via kidnapping by Chinese state actors. China’s NDP item 10.13 also discusses how China has used red notices in INTERPOL to force foreign governments to comply with demands to return political dissidents to China, including members of persecuted ethnic and religious minorities who have fled abroad.[21]

[44]                   I have considered the aforesaid NDP documentation and accept that Chinese state actors utilize various means to compel political dissidents and members of targeted ethnic groups to return to China. I note that ethnic Kyrgyz are not mentioned in these sources (unlike Uyghurs and Kazakhs). I accept the claimant’s testimony that Chinese state actors targeted him in Kyrgyzstan and that Kyrgyz authorities did not help him in this instance in April of 2019. However, I note that the claimant remained there for over two years after this incident and was not subsequently arrested, detained, or approached by Kyrgyzstan’s authorities on behalf of Chinese state actors. Overall, I accept that the claimant genuinely fears this possibility, but I do not find that there is more than a mere possibility that Kyrgyz authorities will arrest the claimant and send him to China for any reason, including his imputed political opinion against the Chinese government.

 

Kyrgyzstan – discrimination amounting to persecution as an émigré from China

[45]                   I find that the claimant has a well-founded fear of persecution based on his nationality as a Chinese man living in Kyrgyzstan with dual citizenship. The claimant moved to China and studied there, experiencing discrimination in the process. Due to his nationality, he was frequently made to pay money to pass his courses and was charged money for services not rendered by service providers. The claimant also experienced demands for bribes from police and service delays from bureaucrats once they learned of his Chinese place of birth and nationality. Finally, the claimant was refused help from police when he was beaten by Chinese nationals and state actors at a karaoke bar. These incidents demonstrate that there is a future prospect of persecution. As the claimant’s fear of persecution is based on his Chinese nationality, his allegations form a nexus to the Convention.

[46]                   I note that the NDP has little evidence concerning this topic. However, the claimant submitted numerous articles concerning treatment of Chinese nationals in Kyrgyzstan which I have considered. One article, “Discussing Sinophobia in Kyrgyzstan,” describing how most of the elite in Kyrgyzstan are pro-China whereas the average person in the country tends to react negatively to the inflow of Chinese migrants in the country.[22] The article also described how many Kyrgyz traders are suspicious of Chinese businesspeople and believe that Kyrgyz politicians are corrupt and in cahoots with Chinese businesspeople.

[47]                   The claimant also submitted an academic thesis “Rising Sinophobia in Kyrgyzstan,” which described China’s important economic influence in Kyrgyzstan and how this influence has led to a perception that the country’s political elite are engaging in corrupt practices to appease China.[23] Further, the thesis provides examples of many Kyrgyzstanis’ resentment of China’s influence there; a resentment that focuses on the growing number of Chinese émigrés in Kyrgyzstan, the country’s significant monetary debt to China, and the import-export ratio that heavily favours China.[24] Accordingly, many Kyrgyzstanis fear that their country may lose sovereignty to China if they are unable to change the economic situation. In the 2010s, there were several violent demonstrations and racist attacks against Chinese people in Kyrgyzstan due to Chinese migration to the country, environmental damage caused by Chinese companies, poor conditions in Chinese-owned businesses, and fear that China was taking Kyrgyzstan’s lands. The protests are frequently large, involving hundreds of individuals, and have led to significant numbers of violent altercations and hospitalizations of Chinese nationals in Kyrgyzstan.

[48]                   In summary, I accept that the claimant has experienced discrimination as a Chinese national in Kyrgyzstan. I also accept, as per counsel’s submitted articles, that Chinese nationals are viewed negatively and subject to discrimination at the hands of much of Kyrgyzstan’s population. I am satisfied that, based on the claimant’s nationality, if the claimant was to return to Kyrgyzstan there is a serious possibility that he would be subjected to violent attacks and persecution from members of the Kyrgyz national majority. Based on all the evidence before me, I find that the claimant has established that he faces a serious possibility of persecution on account of his nationality as a Chinese national.

State Protection

[49]                   States must be presumed capable of protecting their citizens, except in situations where the state is in complete breakdown. To rebut this presumption, the onus is on the claimant to establish, on a balance of probabilities and through clear and convincing evidence, that their state’s protection is inadequate. I note that the more democratic a state, the harder it is to displace this presumption.[25] I find that the claimant has rebutted this presumption.

[50]                   In this case, with respect to China, I do not find that state protection would be reasonably forthcoming to the claimant because it is the state that the claimant fears for its human rights abuses and violations of fundamental freedoms. I find that, in the case of China, the claimant has rebutted the presumption of state protection.

[51]                   With respect to Kyrgyzstan, I do not find that the claimant could seek state protection. The claimant testified that he sought state protection after being assaulted by Chinese nationals at a karaoke bar. In this instance, the claimant testified that the police, upon learning that Chinese nationals and state actors were among those who assaulted the claimant, sided with said nationals and allowed a Chinese state actor to berate the claimant in the middle of the police station. I accept, on a balance of probabilities, that the claimants visited the Kyrgyz police and did not receive protection or assistance from state actors.

[52]                   The objective evidence indicates that Kyrgyzstan, despite some improvements in recent years, remains plagued by corruption. The U.S. Department of State report states that there are credible reports of torture by law enforcement and security services, life-threatening prison conditions, arbitrary arrests, serious problems with the independence of the judiciary, serious government corruption, and crimes involving violence or threats of violence targeting members of minority groups.[26] The judiciary is especially corrupt and bribery typically determines the outcome of court cases.[27] Reports have noted that the country’s political institutions are fragmented and unable to enact recommended policy and administrative changes to reduce corruption.[28] OSAC’s report also notes that police in Kyrgyzstan lack sufficient salaries and equipment and routinely resort to bribery.[29]

[53]                   Therefore, I find, on a balance of probabilities, that state protection in Kyrgyzstan would not be reasonably forthcoming to the claimant.

Internal Flight Alternative

[54]                   I have considered whether the claimant has a viable IFA in either China or Kyrgyzstan, and have concluded that he does not. The IFA test has two prongs. For the first prong, I must be satisfied that there is no serious possibility the claimant would be persecuted or that the claimant would be personally subjected, on a balance of probabilities, to a danger of torture or to a risk to life or a risk of cruel and unusual treatment or punishment in the IFA. For the second prong, I must be satisfied that the conditions in the IFA are such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refuge there. 

[55]                   With respect to the claimant’s refugee claim against China, I do not find that the claimant could live safely elsewhere in the country as he would be unable to hide from the Chinese state which monitors the movement of its citizens extremely closely. I find that the claimant would be persecuted anywhere he went in China and thus there is no viable IFA there.

[56]                   With respect to the claimant’s refugee claim against Kyrgyzstan, I do not find that the claimant could live safely elsewhere in the country as he would be unable to hide from the general population which discriminates against Chinese nationals. I find that the claimant would be persecuted anywhere he went in Kyrgyzstan and thus there is no viable IFA there.

CONCLUSION

[57]                   I find that the claimant is a refugee pursuant to s. 96 of the IRPA and I accept his claim.

 

——— REASONS CONCLUDED ———

 

[1] Immigration and Refugee Protection Act, S.C. 2001.

[2] https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx#5

[3] See Exhibit 8.

[4] See Exhibit 2.

[5] National Documentation Package, China, 31 October 2023, tab 3.1: Nationality Law of the People’s Republic of China. China. 1980.

[6] See Exhibit 5, pages 18-19.

[7] Maldonado [1980] 2.F.C. 302 (C.A.)

[8] See Exhibit 6.

[9] National Documentation Package, China, 31 October 2023, tab 2.1: China. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.

[10] Ibid

[11] Ibid

[12] See exhibit 5.

[13] National Documentation Package, China, 31 October 2023, tab 13.37: Country Policy and Information Note. China: Muslims (including Uyghurs in Xinjiang). Version 2.0. United Kingdom. Home Office. July 2022.

[14] National Documentation Package, China, 31 October 2023, tab 13.37: Country Policy and Information Note. China: Muslims (including Uyghurs in Xinjiang). Version 2.0. United Kingdom. Home Office. July 2022.

[15] See Exhibit 5.

[16] National Documentation Package, Kyrgyzstan, 31 August 2023, tab 13.2: Treatment of the Uyghur [Uighur] minority by society and authorities, including state protection provided to victims of violence and discrimination; Uyghur minority political groups, including activities (2012-2015). Immigration and Refugee Board of Canada. 12 February 2015. KGZ105071.E.

[17] National Documentation Package, Kyrgyzstan, 31 August 2023, tab 2.8: Kyrgystan and China: The Shanghai Cooperation Organization (SCO), including relationship between China and Kyrgyzstan; activities of the organization involving the two countries (2012-2015). Immigration and Refugee Board of Canada. 12 February 2015. ZZZ105073.E.

[18] National Documentation Package, China, 31 October 2023, tab 10.12: Patrol and Persuade: A follow-up investigation to 110 Overseas. Safeguard Defenders. December 2022.

[19] National Documentation Package, China, 31 October 2023, tab 10.12: Patrol and Persuade: A follow-up investigation to 110 Overseas. Safeguard Defenders. December 2022. See page 10.

[20] National Documentation Package, China, 31 October 2023, tab 10.12: Patrol and Persuade: A follow-up investigation to 110 Overseas. Safeguard Defenders. December 2022.

[21] National Documentation Package, China, 31 October 2023, tab 10.13: No Room to Run: China’s expanded mis(use) of INTERPOL since the rise of Xi Jinping. Safeguard Defenders. 2021.

[22] See Exhibit 6.

[23] Exhibit 5.

[24] Exhibit 5, see pages 83-84.

[25] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.

[26] National Documentation Package, Kyrgyzstan, 31 August 2023, tab 2.1: Kyrgyz Republic. Country Reports on Human Rights Practices for 2022. . United States. Department of State. 20 March 2023.

[27] National Documentation Package, Kyrgyzstan, 31 August 2023, tab 7.4: Kyrgyzstan. Overview of corruption and anti-corruption in Central Asia: Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. Transparency International. Krista Lee-Jones. 27 January 2021.

[28] National Documentation Package, Kyrgyzstan, 31 August 2023, tab 7.4: Kyrgyzstan. Overview of corruption and anti-corruption in Central Asia: Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. Transparency International. Krista Lee-Jones. 27 January 2021.

[29] National Documentation Package, Kyrgyzstan, 31 August 2023, tab 7.5: OSAC Country Security Report. Kyrgyzstan. United States. Overseas Security Advisory Council. 28 July 2021.