2023 RLLR 69
Citation: 2023 RLLR 69
Tribunal: Refugee Protection Division
Date of Decision: November 10, 2023
Panel: Tyler Nicholson
Counsel for the Claimant(s): Amro Hayek
Country: China
RPD Number: TC2-25329
Associated RPD Number(s): TC2-25342, TC2-25354, TC2-25361
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
[1] The claimants XXXX XXXX XXXX XXXX (hereafter the “male claimant”), XXXX XXXX XXXX XXXX (hereafter the “female claimant”), and the minor claimants XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX purport to be stateless Palestinian refugees. They have claimed refugee status pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the Act).[1]
[2] The male claimant acted as the designated representative for the minor claimants. He confirmed his knowledge of his responsibilities in this regard prior to the hearing.
ALLEGATIONS
[3] The claimants’ allegations are set out in their Basis of Claim forms (BOCs) and a subsequent amendment.[2] They allege they are at risk of persecution in Saudi Arabia and China due to their Palestinian ethnicity, their religious beliefs as Sunni Muslims, and their political beliefs as opponents of the Hamas movement.
[4] The male claimant originally lived in Saudi Arabia, but started to live primarily in the People’s Republic of China starting from 2004, with the female claimant joining him in 2008 and the family renewing their residency in Saudi Arabia on an annual basis. During the 2010s the claimants eventually stopped renewing the status of the minor claimants and would journey to Saudi Arabia annually to renew the male claimant’s status. They found increasing discrimination in China due to their ethnicity and religious practices.
[5] The COVID-19 pandemic created a chaotic set of circumstances for the family starting in XXXX of 2020 after they were refused re-entry to China despite having a valid residency permit until XXXX of 2020, which resulted in the claimants temporarily living in Malaysia while attempting to return to China and attempting to maintain status in Saudi Arabia while simultaneously attempting to arrange residence with all three embassies. Their Saudi status was renewed for shorter and shorter periods, until by XXXX 2022 it was only being renewed weekly. The claimants attempted to live in Egypt, as is sometimes permitted by the claimants’ status, but discovered they would need a sponsor to obtain a work permit or schooling.
[6] The claimants arrived in the United States in XXXX of 2022 and entered Canada irregularly in XXXX of 2022, applying for refugee protection on arrival.
DETERMINATION
[7] The panel concludes that the claimants are Convention refugees.
ANALYSIS
[8] The panel was provided with true copies of the claimants’ Egyptian issued Travel Documents for Palestinian Refugees[3] as well as other identity documents from the People’s Republic of China and Saudi Arabia.[4]
[9] The panel finds that the documents, and the testimony of the claimants, are sufficient to establish their identities on a balance of probabilities.
COUNTRIES OF FORMER HABITUAL RESIDENCE
[10] The claimants are stateless Palestinians. Statelessness per se does not give rise to a claim for refugee status.
[11] The panel must consider countries where the claimant had “former habitual residence,” which implies a situation where a stateless person was admitted to a country with a view to enjoying a period of continuing residence for some duration. The claimants do not have to be legally able to return to a country of former habitual residence. The claimants must have established a significant period of de facto residence in the country in question. To have a successful claim, the claimants must establish that they face a s. 96 or s. 97 risk in at least one country of former habitual residence, and that they are unable to safely return to any other.[5]
[12] The Federal Court of Appeal established that a broad and liberal approach must be taken when assessing a proposed country of former habitual residence: there is no minimum period of residence required in that country, the analysis should not be unduly restrictive, the claimant does not need to be able to legally return, and the claimant must have established some significant period of de facto residence there.[6]
[13] The claimants lived at times in Saudi Arabia and returned annually to update their residency. The panel finds that Saudi Arabia is a country of former habitual residence for all the claimants.
[14] The claimants lived for many years in the People’s Republic of China on valid residency permits, the male claimant starting in 2004 and the female claimant starting in 2020. The minor claimants can speak Chinese, and the claimants made many attempts to re-enter the country during the COVID-19 pandemic. The panel finds that the claimants have established China as a country of former habitual residence.
[15] The claimants did live in Malaysia for some time during the COIVD-19 pandemic, but the panel finds that the claimants were there while attempting to re-enter China rather than to establish permanent residence, given the claimants had to obtain multiple tourist visas. The panel finds Malaysia is not a country of former habitual residence.
[16] The panel likewise finds Egypt was not a country of former habitual residence given the short temporary residency of under three months the claimants had there.
[17] The claimants have also never entered Gaza or established a period of de facto residence there.[7] The panel finds that this means the Palestinian Territories cannot be a country of former habitual residence.
[18] In summary, all of the claimants have two countries of former habitual residence, Saudi Arabia and the People’s Republic of China.
NEXUS
[19] The panel found the claimants established a nexus with regard to China due to their religious beliefs as Muslims and their ethnicity as Palestinians.
CREDIBILITY
[20] The panel found the claimants generally credible, and found that they addressed the minor issues in their testimony clearly, with mostly credible descriptions of the issues they faced.
[21] They also provided adequate documentary evidence of their travel issues and of their residence in the above-named countries, including residency permits, documentation of meetings and -emails with embassies, and employment documentation.[8] These documents corroborated their well-drafted BOC narrative and their clear testimony.
[22] The panel had some issues with regard to the male claimant’s description of angering a Hamas supporter named XXXX in China, which apparently made him an enemy of Hamas in Gaza. The panel found that while XXXX may have existed, the speculation of the male claimant that he would be arrested in Palestine because of issues arising from their friendship ending over the male claimant’s opinion of Hamas were exaggerated.
[23] However, the panel found that this exaggeration was not sufficient to rebut the presumption of credibility.
[24] The claimants have established that they are stateless Palestinians and that they were forced to involuntarily leave China and Saudi Arabia.
[25] The panel also finds that the claimants have established that they are currently unable to reside legally in Saudi Arabia.
SUBJECTIVE BASIS
[26] The panel finds that the claimants have credibly testified that they would be afraid of the consequences of trying to return to China due to recent changes that are noted in the Objective Basis section.
[27] While the panel found that the claimants did not adequately explain not claiming protection in the United States, the panel found that this did not, in and of itself, establish a lack of subjective fear, given their short stay there.
[28] The claimants have established that they have a subjective fear of persecution.
OBJECTIVE BASIS
[29] The claimants described a worsening climate in China due to their religion, including warnings given to the family Imam regarding mentioning events in Northern China and schools cancelling Halal meals for the minor claimants and banning the minor claimants from praying.
[30] The government of China allows for what it defines as “normal” religious practices, allowing practice of Islam as a named religion but under the auspices of a “patriotic religious association.[9]” The Australian Department of Foreign Affairs and Trade states that Muslims face increasing amounts of hate speech and are not able to practice their religion freely, summarizing that they face a moderate risk of societal discrimiantion.[10]
[31] China has engaged in a systematic campaign against Uyghur Muslims in Xinjiang province, which includes what neutral authorities describe as concentration and re-education camps and direct harassment of religious figures.[11]
[32] More relevant to the claimants, the government has launched a program outside of Xinjiang to promote the “Sinicizaiton” of Islam, which has included projects to remove Arabic style domes and minarets from mosques in China in Shanghai and Beijing[12] with a stated intent to remove “Saudi and Arabic influence”; a local official stated that this was an “[…] unstoppable general trend. It’s been ordered by the central government. No one can stop it.[13]”
[33] The Australian DFAT states that:
“The plan outlines a ‘uniquely Chinese Islam’ (as distinct from Arabic expressions of Islam), and warns against trends of ‘generalisation of the concept of halal’, emulation of ‘foreign clothing styles’, and imitation of ‘foreign styles of mosque architecture’. This can mean the removal of Arabic script from religious buildings, banning religious clothing, banning the call to prayer, restricting distribution of the Quran and closing non-registered mosques. Penalties may include prison terms of up to three years.[14]“
[34] While the claimants are not Ugyhars, the panel finds that the claimants’ Palestinian ethnicity and practice of Islam would be generally defined as broadly Arabic and, due to these recent government policies regarding Islam, they would also not likely be considered as “acceptable” to authorities as the better-integrated Hui Muslims native to China.
[35] More likely than not, their existence and faith as ethnic Palestinian Muslims would be seen in China as being effectively contrary to promoted government policy, which would be dangerous in an authoritarian communist state that objective evidence indicates is taking further measures against their faith.
[36] Given the intersectionality of their ethnic and religious identity, the panel finds the claimants would face a serious possibility of discrimination amounting to persecution if they were to return to China due to their profiles.
STATE PROTECTION
[37] The state is presumed able to provide adequate protection to its citizens. Therefore, claimants have the duty to seek state protection before seeking protection in Canada. However, in certain circumstances, it would be objectively unreasonable to expect a claimant to do so. Furthermore, the protection available to a claimant may not be adequate given their specific circumstances.
[38] With regard to China, the panel must consider that the state is the prospective agent of persecution, the claimants would have linguistic issues with local police, and most importantly, well documented objective evidence indicates that those with contrary religious practices are sometimes tortured and arbitrarily detained,[15] police are politically motivated and generally act with impunity,[16] and that there is a lack of judicial independence.[17]
[39] Given this, and the above noted concerns of political authorities regarding non-official practice of Islam, the panel finds that approaching authorities to obtain protection would be unreasonable.
[40] The panel finds that the claimants have rebutted the presumption that adequate state protection exists for them in China.
INTERNAL FLIGHT ALTERNATIVE
[41] The panel finds that, given the above noted objective evidence that the issues the claimants would face in China are the result of national policies, that they would face the described issues anywhere in China.
[42] The panel finds that the claimants would not have an IFA in all of China.
CONCLUSION
[43] Even though the claimants have not established that they can return to China, Thabet is clear that the panel is to consider possible persecution in every country of former habitual residence in its determination. Applying the architecture, the panel finds that the claimants face a serious possibly of persecution in China.
[44] The panel also finds that the claimants cannot, at this time, legally return to Saudi Arabia.
[45] This means that the claimants face s. 96 harm in one country of former habitual residence and cannot enter their second one.
[46] Given this, the panel must accept their claims as Convention refugees and accept their claims.
(signed) Tyler Nicholson
November 10, 2023
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
[2] Exhibits 2.1, 2.2, 2.3, and 2.4, amendment at Exhibit 5.
[3] Exhibit 1.
[4] Exhibit 5.
[5] Thabet v. M.C.I., [1998] 4 FC 21 (F.C.A.).
[6] Maarouf v. Canada, [1994] 1 F.C.R. 723 (F.C.A).
[7] Exhibit 2.1, narrative, paragraph 4.
[8] Exhibit 5.
[9] Exhibit 3.2, 12.1 at page 1
[10] Exhibit 3.2, 1.10 at 3.51-3.52
[11] Exhibit 3.2, 1.10 3.1-3.11 and 12.37
[12] Exhibit 3.2, 12.1 at page 38.
[13] Exhibit 3.2, 12.1 at page 39.
[14] Exhibit 3.2, 1.10 at 3.49
[15] Exhibit 3.2, 1.10 at 4.1-4.14
[16] Exhibit 3.2, 1.10 at 4.15-4.21
[17] Exhibit 3.2, 1.10 at 5.1-5.10