2024 RLLR 27
Citation: 2024 RLLR 27
Tribunal: Refugee Protection Division
Date of Decision: November 21, 2024
Panel: Raajveer Puri
Counsel for the Claimant(s): Rishat Tonyaz
Country: China
RPD Number: TC3-37680
Associated RPD Number(s): TC3-37684, TC3-37685, TC3-51137
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
SUMMARY OF YOUR CLAIMS
[1] XXXX XXXX, XXXX XXXX, XXXX XXXX, XXXX XXXX claim to be citizens of China. The principal claimant is XXXX XXXX XXXX XXXX XXXX and XXXX XXXX are her children and are minor claimants. XXXX XXXX is the principal claimant’s brother.
[2] The principal claimant was appointed the designated representative for both minor claimants.
[3] You have asked for Canada’s protection. You allege that Chinese state authorities will torture, harm, and kill you due to your profiles as ethnic Uyghurs.
IDENTITY
You proved who you are and where you are from
[4] You have established your identities on a balance of probabilities as Chinese nationals and ethnic Uyghurs. This means I believe it’s more likely than not that you are who you say you are. You established this through your testimony and documents, specifically: your passports and resident ID card.
Japan Is Not a Country Of Reference
[5] I note that all the claimants were residents of Japan prior to their arrival in Canada and the minor claimants were born in Japan. However, Japan does not constitute a country of reference as Japanese citizenship is by descent only: at least one parent must be a citizen of Japan.[1] As the adult claimants are both Chinese nationals and the father is also a Chinese national, the minor claimants do not have access to Japanese citizenship by virtue of being born there.
Article 1E is Not Applicable
[6] I note that the claimants have lived in Japan for at least 5 years as temporary residents. They testified that while in Japan, they held temporary status either as a student or a worker, which had to be renewed periodically and did not provide rights similar to that of permanent residents. The minor claimants were dependents. As a result, they never obtained permanent residence in Japan. Furthermore, the principal claimant’s husband was unable to obtain permanent residency due to his temporary work permit durations as well, which had to be renewed annually. Therefore, I find the nature of their status in Japan was transitory and not permanent.
[7] Given the claimants’ maintained temporary resident status throughout their stay in Japan, I find that Article 1E is not applicable for their stay in Japan because they never held permanent resident status nor did their temporary status give them rights that were equal to or similar to that of permanent residents.
[8] Therefore, I find that China is the only country of reference for the claimants and Exclusion 1E does not apply.
Convention Refugees
Your fear is linked to one of the grounds of persecution in the Refugee Convention
[9] There is a link between what you fear and one of the five the protection grounds listed in the Refugee Convention. Specifically, I find that your claim is connected to your: ethnicity as Uyghurs.
[10] Since your claim is linked to a protected ground, I must determine whether you face a serious possibility of persecution in China.
[11] Despite some issues, you proved important parts of your refugee claims
[12] I find that it is more likely than not that what you say happened to you in China did happen. Your testimony was straightforward and detailed. You testified about the challenges and persecution you faced in China and how conditions have deteriorated since 2016 for the worse. You also shared how agents of the Chinese government began to target you all in Japan via phone call threats and conversation that seemed to suggest they knew all your personal details. This was often accompanied by threats to harm your parents who still lived in China. Your testimony was detailed, spontaneous, and responsive to my questions. I have no reason to doubt the credibility of your testimony and give significant weight to it in establishing your identities as Uyghurs and the related harassment you faced in Japan. Except where noted below, there were no important omissions or inconsistencies in your testimonies. On a balance of probabilities, I find that you are all Uyghurs who are being targeted by Chinese state authorities.
[13] You all failed to make a claim for protection during your time in Japan and the principal claimant and her children returned to China in 2016.
[14] The principal claimant returned to China in 2016 from Japan. They explained the situation in China for Uyghurs deteriorated after their 2016 visit. I find the issue of re-availment has been reasonably explained as their fear of returning to China further crystalized after this visit.
[15] The claimants did not claim asylum in Japan because of the very low acceptance rates and their hopes of conditions improving in China. However, contrary to their hopes, the conditions deteriorated for Uyghurs in China since their departure in 2016. As the situation deteriorated in China, they still had temporary status in Japan and were relatively comfortable until 2021, when they started receiving calls from Chinese authorities. Their personal experience of being monitored in Japan by Chinese authorities was consistent with the downward trajectory of country conditions getting worse. They began to not feel safe in Japan where they only had temporary status and were now being targeted by Chinese authorities too.
[16] Failure to claim alone by itself is rarely determinative of a claim. Given the claimants’ above explanation, I find these concerns about their failure to claim in Japan do not significantly undermine their subjective fear or credibility.
[17] I have thought about these concerns along with the rest of your otherwise credible testimony. I find that the credible evidence you provided outweighs these concerns.
[18] Your claims are supported by your personal documents, including: identity documents for each of the claimants, a letter of support from the XXXX XXXX XXXX of Canada substantiating the claimants’ ethnicity as Uyghurs, and country conditions documentation showing the persecution of Uyghur people in China. I have no reason to doubt the authenticity of these documents and give them significant weight in establishing your profiles as Uyghur people.
[19] Based on the evidence before me, I find you have established, on a balance of probabilities, your profiles as Uyghurs. I find that you all have a subjective fear of persecution, meaning that you genuinely fear being harmed by Chinese state authorities due to your ethnicity as Uyghurs. I find that the credible evidence that goes to the core of your claim outweighs any contrasting evidence.
Your risk is supported by the country conditions evidence
[20] The National Documentation Package (NDP) for China, specifically section 13 on Nationality, Ethnicity, and Race[2], extensively documents evidence of Uyghur persecution in China and supports the claimants’ fear of harm in China as Uyghurs.
[21] NDP Item 1.6[3] reports of ongoing mass arbitrary detention of Uyghurs in China. Item 1.7[4] indicates different levels of freedom apply to different ethnicities in China, with the Uyghurs and Tibetans being offered the least freedom. Since 2017, the government has waged an aggressive campaign in Xinjiang, where as many as one million Uyghurs and other Turkic Muslims have been subjected to political indoctrination in a network of internment camps. The U.N. Human Rights Office, in August 2022, accused China of human rights violations in Xinjiang due to the systematic attack on Uyghurs, including mass detention, torture and cultural persecution.
[22] According to NDP Item 1.10[5], Uyghurs in Xinjiang and in other parts of China face a high risk of official discrimination due to their ethnicity and cultural and religious practices. DFAT assesses that Uyghurs face a moderate risk of societal discrimination. Any Uyghur or family member of any Uyghur who speaks out about their treatment publicly, regardless of their profile, could be subject to further attention by the government.
[23] NDP Item 2.1[6] reports that genocide and crimes against humanity occurred during the year in China against predominantly Muslim Uyghurs. Significant human rights issues were reported including credible reports of: arbitrary or unlawful killings by the government; enforced disappearances by the government; torture by the government; involuntary or coercive medical or psychological practices; harsh and life-threatening prison and detention conditions; arbitrary arrest and detention by the government including, since 2017, of more than one million Uyghurs and members of other predominantly Muslim minority groups in extrajudicial internment camps, prisons, and an additional unknown number subjected to daytime-only “reeducation” training; crimes involving violence targeting members of national, racial, and ethnic minority groups, including Uyghurs. The government did not take credible steps to identify or punish officials who may have committed human rights abuses.
[24] Item 13.22[7] shows that the Chinese government and its agents engaged in acts to intimidate or exact reprisals against individuals outside of the People’s Republic of China (PRC), including against Uyghurs and other ethnic minority group members, religious and spiritual practitioners, dissidents, foreign journalists, and PRC students and faculty members on campuses and in academic institutions. I find this objective evidence is consistent with your testimony about the Chinese state authorities contacting you during your stay in Japan.
[25] I find that the claimants’ profile as Uyghurs and their experience with the Chinese state authorities, especially outside China, is consistent with the objective conditions described above. I therefore find you have established an objective basis for your fear and it is well-founded.
STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE
You are not protected by your state or safe anywhere in China
[26] You have established that if you all return to China you face a risk from state authorities. In the circumstances of your case, this means that there is no adequate state protection available to you all in China because it would be objectively unreasonable for you to seek the protection of the state because they are the agent of persecution and their treatment of Uyghurs is similar through the country. For the same reasons, there is no internal flight alternative because there is nowhere safe for you to go within China, as state authorities are in control of the whole territory and have the capability to harm you anywhere within the country
CONCLUSION: YOUR CLAIMS ARE ACCEPTED
[27] Based on all the evidence and my analysis, I determine that XXXX XXXX, XXXX XXXX, XXXX XXXX, XXXX XXXX face a serious possibility of persecution in China and are Convention refugees. I accept your claims.
——— REASONS CONCLUDED ———
[1] National Documentation Package, Japan, 31 May 2024, tab 3.1: The Nationality Law (amended 2008) . Japan. 1950.
[2] National Documentation Package, China, 31 October 2024, section 13.
[3] National Documentation Package, China, 31 October 2024, tab 1.6: China. The World Factbook. . United States. Central Intelligence Agency. 15 October 2024.
[4] National Documentation Package, China, 31 October 2024, tab 1.7: China. BTI 2024 Country Report. . Bertelsmann Stiftung. March 2024.
[5] National Documentation Package, China, 31 October 2024, tab 1.10: DFAT Country Information Report: People’s Republic of China. Australia. Department of Foreign Affairs and Trade. 22 December 2021.
[6] National Documentation Package, China, 31 October 2024, tab 2.1: China. Country Reports on Human Rights Practices for 2023. . United States. Department of State. 22 April 2024.
[7] National Documentation Package, China, 31 October 2024, tab 13.22: No Space Left to Run: China’s Transnational Repression of Uyghurs. Uyghur Human Rights Project; Oxus Society for Central Asian Affairs. Bradley Jardine et al. 2021.