2024 RLLR 19

Citation: 2024 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: August 30, 2024
Panel: Olachi Nwachukwu
Counsel for the Claimant(s): Phillip J.L. Trotter
Country: China
RPD Number: TC3-16514
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A

DECISION

[1]                   MEMBER: These are the reasons for the decision in the refugee claim of XXXX XXXX, the claimant, who claims to be a citizen of China and is seeking protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. The Panel has considered your testimony and the other evidence in the case and is ready to render its decision orally.

[2]                   Your allegations are set out in your Basis of Claim form found in Exhibit 2, and amendment to your narrative found in Exhibit 6 and further explained in your oral testimony today. In summary, you allege a fear of persecution in China at the hands of the Chinese government on account of your Tibetan ethnicity, Buddhist religion, and political opinion against the Chinese government persecution of Tibetans. You also allege that as a foreign — registered (inaudible) and Indian, you fear persecution at the hands of the Indian authorities who arrested you and assaulted you for your political opinion in promotion of a free Tibet, and threatening you with removal to Tibet, where you would be at risk of persecution and harm at the hands of the Chinese government.

[3]                   With regards to your identity, it is essential to establish one’s identity in determination of a refugee claim. The burden of establishing identity rest upon the claimant. With respect to your identity and the country of reference, the Panel turned its mind to your identity documents submitted to the Board. These documents include your Indian Identity Certificate, Indian foreigner’s registration, and your Tibetan Green Book which indicates that your place of origin is Tibet.

[4]                   The Panel observes that your Identity Certificate, IC, issued by the Government of India, valid from XXXX 2019 to XXXX 2029, which is issued in lieu of a passport for the sole purpose of providing an identity document, and your Indian registration certificate, RC, valid from 2018 to 2023, indicated that your place of birth was Ladakh in India. The Panel turned its mind to the NDP for India in Item 3.1, which states that section 3(1)(a) of the Indian Citizenship Act, as amended in 2019, states that every person born in India is a citizen by birth if born on or after the 26th of January 1950, but before the first day of July 1987.

[5]                   When the Panel put this to you, you told the Panel that you were not born in Ladakh, India, as indicated in your ID document, and that you were born in Tibet in a tent with no birth certificate or documentation of your birth, and you were not aware of the reason it is stated so in your Indian ID documents.

[6]                   You also provided the Board an affidavit from your father, dated XXXX 2024, where he attested that you were indeed born in a tent in Tibet in the year 1984 while your family were making their way to India. The Panel accepts your explanation as reasonable as this is well documented in the objective document in the NDP for China in Item 13.7, which states that it is impossible to state how many Tibetans in India remain unregistered or have RCs that were issued based on inaccurate information and/or bribes, other than that, there are still some and they are very vulnerable.

[7]                   Some Indian officials will accept bribes when a Tibetan is unable to provide a birth certificate. It is reportedly common for Tibetans to acquire an RC based on false information, most typically, a representation that the Tibetan was born in India.

[8]                   Item 13.7 continues to say that there are conflicting reports about the ease with which one can obtain an IC based on false documents, such as falsely obtained RC and birth certificate. One (1) Tibetan official noted that many people have ICs based on false documents, but unless someone files a complaint against them, which is very unlikely, the authorities accept them as genuine. She noted that it is common practice to lie about being born in India in order to get a birth certificate, an RC, and then an IC.

[9]                   Item 13.7 continues to state that RCs reflect the foreign status of Tibetans living in India, and grant Tibetan refugees the right to reside temporarily in India. The RC does not give its holder the legal right to reside permanently in India. RC must be renewed every six (6) months to five (5) years, and their renewal is at the discretion of Indian authorities. As the RC must be renewed on a regular basis, if the claimant were unable to renew her RC, she would be subject to fines, detention, and even deportation to China.

[10]                   Item 13.7 continues, in addition to the temporary nature of your status, Indians Foreigner’s Act and Registration of Foreigners Act impose burdensome travel restrictions in Tibetans, especially for those who need to travel to sell their handmade goods to make a living. If they do not register, they are subject to fines and even imprisonment.

[11]                   Item 3.1 of the China NDP, Article 4 of the Chinese Nationality Law states that any person born in China whose parents are both Chinese nationals or one (1) of whose parents is a Chinese national shall have Chinese nationality. Because you do not have a citizenship in India, you will be considered a Chinese national by the Chinese government because your parents were born in Tibet.

[12]                   In view of your testimony, documents in support, and objective evidence, the Panel finds on a balance of probabilities that you have established that you were born in Tibet, and you do not have citizenship rights or rights like nationals in India, and that you would therefore be considered a citizen of China. Accordingly, the Panel finds that your identity is established, and that China is the sole country of reference.

[13]                   As the Panel has found China to be the sole country of reference, it finds it unnecessary to consider your claim against India, and it makes no finding in that regard.

[14]                   In terms of nexus, the Panel finds that there is a link between your fear of persecution and a Convention ground of ethnicity, as you are a Chinese Tibetan. Ethnicity also intersects with your religion as a Buddhist and as a devout follower of the Dalai Lama, and your political opinion opposing the Chinese government. Therefore, your claim is assessed under section 96 of the IRPA.

[15]                   In assessing credibility, the Panel is cognizant of the difficulties that you may face in establishing your refugee claim, specifically social and cultural factors, as well as the milieu of the virtual hearing environment. Furthermore, in assessing the credibility of the evidence that you have presented in support of your refugee claim, the Panel is guided by the principles established in the Federal Court of Appeal’s decision of Maldonado.

[16]                   In general, the Panel finds you to be credible — a credible witness and believe what you have alleged. There were no inconsistencies in your testimony or contradictions between your testimony and other evidence before the Panel that were not explained. You answered all questions with a sufficient level of detail and spontaneity. You testified in a straightforward and natural manner.

[17]                   You told the Panel how your family fled Tibet in the 1980s after the disappearance of your uncle, who was a XXXX XXXX and who opposed the Chinese government. You described how your family, who were nomads, made their way to the Tibetan settlement in India with their animals and arrived in the dark in 1987.

[18]                   You told the Panel how you settled in India as refugees, and while living in India, your rights were restricted as temporary residents in India. You described how you received your primary and secondary education at Tibetan schools in India. You submitted a senior school certificate which showed that you attended XXXX XXXX XXXX — XXXX XXXX in India, an affidavit from your father attesting that you were born in a tent in Tibet and a recommendation and experience letter from the education director in XXXX XXXX XXXX. The Panel does not have any reason to doubt the authenticity of these documents and gives them full weight.

[19]                   In view of your credible testimony and the documents of support, the Panel finds that you are a genuine Tibetan and you were exiled as a refugee in India. You stated that, while in India, you participated in activities in support of the freedom for Tibet and belonged to groups that advocated for Tibet. You submitted a letter of support from XXXX XXXX XXXX in XXXX, India, stating that you participated in many activities in support of a free Tibet.

[20]                   You described to the Panel how you have continued to engage in activities and promotion of the Tibetan and Buddhist culture, including working as a XXXX in the XXXX XXXX XXXX XXXX XXXX XXXX, where you XXXX XXXX XXXX XXXX XXXX XXXX. You submitted several documents which showed you belong to several Tibetan associations. They include a letter of support from XXXX XXXX XXXX in Ontario, and a letter from the XXXX XXXX XXXX XXXX XXXX. You submitted several photographs that showed you at rallies and protests in support of a free Tibet. You also submitted several photographs which showed you participating in Buddhist religious and cultural activities.

[21]                   The Panel finds on a balance of probabilities that you are a political dissident of the Chinese government and its rule in Tibet, and you are politically active in India and continues to be politically active and have continued to speak in support of a free Tibet.

[22]                   The Panel finds on a balance of probabilities that you have established a subjective fear of returning to China as you would face persecution by Chinese authorities based on your political opinion as a supporter for Tibetan independence.

[23]                   Your subjective fear of persecution by reason of your Tibetan ethnicity is corroborated by the NDP for China. Item 12.1, the objective documentary evidence, demonstrates that Tibetans face a serious possibility of persecution in China based on their ethnicity and religion, which are closely linked. The Chinese occupation of Tibet is notable for its high level of repression, cultural and religious genocide, and state violence. Tibetans face restrictions on their freedom of speech, religion, movement, and assembly not only in the Tibet Autonomous Region, but also in other parts of China.

[24]                   Item 2.1 of the NDP reports that Tibetans in China face, among other things, torture, including cruel, inhuman, and degrading treatment or punishment by the government, arbitrary arrest or detention, political imprisonment, politically motivated reprisal against individuals outside the country, and severe restriction on religious freedom. This effectively placed Tibetan Buddhism under the central government’s control. There are also severe restrictions on freedom of movement and political participation or defence.

[25]                   Item 13.9 and 13.33 also report that repressive laws and regulations enable the widespread and systemic violation of fundamental human rights of Tibetans in China. Tibetans who return to China face detention, beatings, discriminations, including not being able to find employment, and serious persecution at the hands of the Chinese government.

[26]                   Item 2.6 states that, according to its 2023 report, Freedom House indicates that Tibetans are regularly detained or sentenced to prison for verbally expressing support for or sharing images of the Dalai Lama and Tibetan independence, sending information abroad about self-immolation, protests, or the destruction of Buddhist temples and statues, or engaging in other forms of Tibetan cultural expression.

[27]                   Based on the totality of the objective documentary evidence, the Panel finds that you do face prospective risk of persecution or harm at the hands of the Chinese state as a Tibetan who has opposed the state and who may be sent back to Tibet from India as you have no rights of permanent residence in India. The Panel therefore finds that your subjective fear of returning to Tibet on account of your ethnicity, which intersects with your religion and political opinion, is objectively well-founded.

[28]                   In refugee determination, a state is presumed to be capable of protecting its citizen. To rebut this presumption, the claimant must establish on a balance of probability that their state’s protection is inadequate based on clear and convincing evidence. In this case, the Panel finds it would be objectively unreasonable for you to seek the protection of the state in light of the circumstances, as the agent of the — of persecution is the state itself. This includes the reported actions of the Chinese government in discrimination, detaining, and beating Tibetans with profiles such as yours. The Panel therefore finds that you have rebutted the presumption of state protection with clear and convincing evidence, and that state protection would not be available to you in China.

[29]                   In terms of an internal flight alternative, the Panel notes that the agent of persecution in this case is the state. As Item 1.11 of the NDP for China notes, ethnic Tibetans with your profile are regarded as separatist and considered to be opposition to the state.

[30]                   The Panel finds that you would face a serious possibility of persecution throughout China due to being a political dissident of the state and supporter of Tibetan independence. Therefore, the Panel finds there is no viable internal flight alternative for you in China.

[31]                   Therefore, based on the totality of the evidence, the Panel finds you to be a Convention refugee and therefore accepts your claim.

——— REASONS CONCLUDED ———