Citation: 2020 RLLR 97
Tribunal: Refugee Protection Division
Date of Decision: February 27, 2020
Panel: S. Seevaratnam
Counsel for the Claimant(s): Constance Nakatsu
Country: Tibet
RPD Number: TB7-24959
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000071-000082
REASONS FOR DECISION
[1] The claimant, [XXX], claims to be a national of Tibet, who is claiming protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ISSUES
[2] The relevant issues at the hearing were exclusion pursuant to Article 1E of the Convention,[2] identity, nationality, credibility, well-founded fear of persecution, state protection, and internal flight alternative.
[3] Matters relating to the applicability of Article 1E are referred to herein as “exclusion issues.” Matters relating to whether or not the claimant has a well-founded fear of persecution within the meaning of the Convention refugee definition are referred to herein as “inclusion” issues.
EXCLUSION PURSUANT TO ARTICLE 1E
[4] Article 1E of the Convention, which has been appended as a schedule to the IRPA, reads as follow:[3]
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
[5] In Shamlou, the Federal Court identified four criteria that this Division should look to in considering Article 1E: the right to return; the right to work; the right to study; and full access to social services.[4]
India
[6] The documentary evidence regarding the residency status afforded to Tibetans born in India is as follows from the Board’s Response to Information Request (RIR):[5]
Under Indian law, anyone born between January 26, 1950 and July 1, 1987 on Indian soil or at least should be, according to the letter of the law, … and as affirmed by the High Court of Delhi, automatically an Indian citizen. This was proved to include Tibetans by a Delhi High Court decision on 22 December 2010. However, there is a large gap between this right, and a person being able to have that right recognized, and to then be able to access the related rights and privileges. Rather than there being a series of simple steps to follow in order to attain citizenship, our research findings show that in practice, Tibetans in India who were born within the correct time period in India are still unable to have their status as citizens officially recognized.
[7] The RIR further indicates that, in practice, it is very difficult for Tibetans to be able to access Indian citizenship for two reasons:[6]
1. The Indian authorities continue to treat Tibetans as foreigners, and
2. There is an unwritten policy of the Central Tibetan Administration to not release No Objection Certificates (NOC).
[8] The claimant’s birthdate removes him from this law since he was born outside of the eligible birthdates and there is no evidence to suggest either of his parents were citizens of India at the time of his birth. Thus, it is not within his control to acquire the citizenship of India.[7]
[9] In addition, the claimant does not have a birth certificate, a matriculation record since he only completed six school grades, or a driver’s licence – all of which are documents which may be utilized to obtain Indian nationality. This evidence is corroborated by the documentary evidence.[8]
[10] A media report from the Tibet Sun corroborates the non-issuance of the NOC. The article states that “[i]n violation of the exile Tibetan charter, the Kashag (Secretariat of the Central Tibetan Administration) has ordered all the Departments under it to stop issuing NOC (no objection certificate) or any letter of support to Tibetans applying for Indian passport.”[9]
[11] Furthermore, the media report finds the following:[10]
Tibetans applying for Indian passport continue to face various forms of discrimination and harassment, and are left with no choice other than appealing in the courts for relief.
The discriminatory practices in processing the applications include imposition of arbitrary rules and ignoring government orders by the Regional Passport Offices (RPOs), and unsubstantiated adverse police verification reports by the local police officers.
[12] Based on the claimant’s evidence and the documentary evidence, there appear to be “significant impediments”[11] to Tibetans obtaining Indian nationality. The Federal Court in paragraph 23 of its decision in Pasang stated that factors such as the level of education, employment, and residence within a Tibetan refugee settlement, must be taken into account.[12]
[13] A Business Standard report from 2018 confirms that “people born between January 26, 1950, and July 1, 1987, need to produce any of the 19 documents, including birth certificate … matriculation certification… “[13] The article concludes that “[e]ven people in the highest echelons of society and the bureaucracy have not proved their citizenship to the right authority.”[14]
[14] In Choezom,[15] the Federal Court judge found as follows:
I find it difficult to accept this conclusion. It is self evident that the Applicant (with respect to the fundamental right of return and the nature of the residence in India) does have the same rights as an Indian citizen. The need for annual RC’s [Registration Certificates], IC’s [Identity Certificates], visas, NORI’s [No Objection for Return to India] and the prohibition to visit certain locations within India are all antithetical to the ‘basic rights of status as nationals’. All of these rights are not permanent and their renewal is at the discretion of the Indian government. It may be changed at any time for political, geopolitical (i.e. the need for good relations with China) or security reasons. The fact that there is no evidence that the Indian government has so far refused to issue RC’s, IC’s, visas or NORI’s does not mean it has given up the right to do so. The Tibetans’ existence in India is thus at the sufferance of the Indian government. As right to stay at sufferance does not amount to ‘the same basic rights of status as nationals’ of India enjoy. In my view the Board erred in concluding that the Applicant falls within the exclusion set out in Article 1(E) of the Refugee Convention.
[15] Having carefully considered the rights afforded to Tibetans in India, the panel finds that the claimant does not fit the criteria established in Shamlou.[16] Therefore, the claimant is not excluded pursuant to Article 1E.[17]
INCLUSION
IDENTITY
[16] The claimant presented a letter from the Samyeling Tibetan Settlement Office (CTA) to establish that he is “a bonafide Tibetan,”[18] who resided at a house within the Samyelling Tibetan Colony in Delhi.[19]
[17] In addition, the claimant provided a letter from the Regional Tibetan Freedom Movement providing his correct date of birth and his Green Book number.[20] A Green Book is issued by the Central Tibetan Administration (the Tibetan government in exile).
[18] The panel noted a discrepancy in the date of birth provided by the claimant at the port of entry,[21] his BOC,[22] and by the Tibetan authority. This discrepancy was put to the claimant and he was provided a reasonable opportunity to explain. He testified that when he was asked by an immigration officer for his date of birth he knew he was born in the year [XXX], however, he was not certain of the month and date. He explained that he never celebrated his birthday. The panel is cognizant of the claimant’s level of education and his loss of contact with his biological mother from a young age and his upbringing by his uncle and his wife. The panel accepts the claimant’s explanation. Furthermore, counsel in her submissions indicated that the Tibetan authority at times keeps more accurate records than the Tibetan families.
[19] The claimant has also provided an affidavit from [XXX], who was his neighbour when they lived within the confines of the Tibetan colony in India.[23] [XXX] was accepted as a Convention refugee and he is a Canadian citizen.[24]
[20] At the hearing, the claimant provided the original letters issued by the Tibetan authority.
[21] Throughout the hearing, the claimant testified fluently in the Tibetan language. The claimant spoke of the unique culture and religion practiced by the people from Tibet. He appeared to have a genuine faith in his religious leader, His Holiness the Dalai Lama.
[22] Accordingly, the panel accepts the claimant’s personal and ethnic identity as a Tibetan.
NATIONALITY
[23] The claimant was born in India to parents of Tibetan ethnicity. As discussed under the exclusion section, the claimant has not acquired Indian nationality.
[24] The claimant testified that he was born in Delhi, India on [XXX],[25] to parents who he believes are Tibetans but he was not certain of their nationality. The claimant testified that he has never met his biological father and he was taken from his biological mother, [XXX],[26] and raised by his uncle, [XXX], since the age of four.[27] He indicated that his uncle did not acquire Indian nationality. He added that his uncle told him that his mother also did not acquire Indian nationality and thus, she remains a Chinese national. The claimant stated that he resided in India throughout his life, until his departure in 2017. The claimant testified that he received education until the sixth grade, where he was taught in the Tibetan and English languages. He believes the school was financed by the Tibetan government in exile. He further stated that he was never a national of India since he was never issued an Indian Resident card or an Indian
Identity certificate. The claimant considers himself to be Tibetan. He believes that given the Chinese occupation of Tibet, his life would be at risk and he fears persecution on religious and racial grounds as a Tibetan who worships his Holiness the Dalai Lama.
[25] According to an official at the Chinese Embassy in Ottawa:[28]
Tibetans who have left Tibet since 1959 and who have not obtained the citizenship of a foreign country are considered to be Chinese citizens. Because China does not recognize dual citizenship, those Tibetans who have acquired a second citizenship are not considered to be Chinese citizens.
In general, children acquire the citizenship of their parents. Like their parents, if the foreign-born children of the above-described Tibetans have not obtained the citizenship of a foreign country, they are considered to be Chinese citizens.
According to a representative of Asia Watch in New York, both the PRC [People’s Republic of China] and the international community consider Tibet to be part of China; therefore, Tibetans are considered to be Chinese citizens… [footnotes omitted]
[26] Accordingly, on a balance of probabilities, based on the information available on his birth and his parents’ nationality, the panel finds that the claimant is a citizen of China. Thus, this is the only country of reference in this claim.
CREDIBILITY
[27] The claimant was a credible and trustworthy witness. His responses were consistent with his level of education. The oral evidence provided by the claimant was consistent with his BOC[29] and is supported by the documentary evidence. The plight of the claimant as a Tibetan is supported by the documentary evidence, which is current and reliable. In addition, the documentary evidence emanates from reputable sources which do not have a vested interest in the merits of this claim.
WELL-FOUNDED FEAR OF PERSECUTION IN CHINA
[28] The claimant regards himself as a Tibetan with a different language and culture from the Chinese. The claimant has never been to China and does not speak the languages. He regards his race and nationality as being Tibetan. He sees himself as a member of a social group, namely Tibetans.
Historical Context
[29] There is overwhelming evidence regarding the 1959 Chinese invasion of Tibet and the Tibetan genocide that followed. The documentary evidence has established that human rights have been violated.[30]
Religions Persecution
[30] The claimant believes in His Holiness the Dalai Lama as his political leader and religious leader. He fears persecution by the government of China due to his religious beliefs.
[31] According to the 2019 United States Commission on International Religious Freedom (USCIRF) Report for China:[31]
…[T]he Chinese government continued to persecute all faiths in an effort to “sinicize” religious belief, a campaign that attempts not only to diminish and erase the independent practice of religion, but also the cultural and linguistic heritage of religious and ethnic communities, particularly Tibetan Buddhists and Uighur Muslims…
[32] The 2019 annual report indicates that “[t]he Chinese government continued to use advanced surveillance technology and other measures to repress Tibetan Buddhists.”[32]
[33] Further, the USCIRF report states that “[i]n 2018, the Chinese government continued to pursue a strategy of forced assimilation and suppression of Tibetan Buddhists throughout Tibet.”[33] The Chinese government restricts and regulates religious practices in Tibet. Monasteries have been destroyed, monks and nuns have been forced to express their opposition to the Dalai Lama, Tibetans found in possession of banned religious books or prayers have been imprisoned. The report further states that “[t]he Chinese government continued to accuse the Dalai Lama of blasphemy and ‘splittism,’ and cracked down on anyone suspected of so-called ‘separatists’ activities.”[34]
[34] Therefore, the panel finds that freedom of religion is denied to the claimant, as a Tibetan, should he be returned to China.
STATE PROTECTION
[35] There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.[35]
[36] The claimant testified that his agent of persecution is the government of China.
[37] According to a November 2016 report by the International Campaign for Tibet and the International Federation for Human Rights (FIDH): “On 1 January 2016, China’s new counter terrorism law came into effect, despite serious concerns voiced by human rights groups regarding the potential for this law to be used to repress religious and ethnic groups.”[36]
[38] This report further states the following:[37]
These laws and other measures are essential components of a comprehensive security architecture being established by the Chinese authorities, encompassing military, political and Party propaganda objectives as well as heightened surveillance and media censorship. The dramatic expansion of the powers of military and police in the People’s Republic of China (PRC) – backed by grass roots propaganda work and electronic surveillance – comes under the general rubric of ‘stability work’, which is political language for the elimination of dissent and enforcement of compliance to Chinese Communist Party policies. Under the leadership of the Chinese Party Secretary and President Xi Jinping, the Chinese government is enforcing a comprehensive legal framework which represents an attempt to legitimize through legislation existing repressive measures designed to intensify control by the CCP [Chinese Community Party] and suppress dissent.
[39] Moreover, “China’s new counter-terrorism law allows for the conflation of domestic protest, dissent or religious activity with international terrorism thus reducing the pressure for governments to resolve both Tibetans’ and Uyghurs’ genuine grievances.”[38]
[40] The Tibetan Center for Human Rights and Democracy’s 2018 annual report states the following:[39]
The arbitrary arrest and detention of peaceful Tibetan protesters and other human rights activists continued unabated. In particular, extended criminal detention preceding arrest has increased, providing more latitude to law enforcement officers to engage in violent interrogation and torture methods to obtain forced confessions. Other forms of illegal detention such as confinement in ‘legal education centers’ have increased after the abolition of Re-education Through Labour camps and the acceleration of political re-education campaigns in many parts of Tibet. Tibetans suspected of criminal offences, particularly those pertaining to political matters, are almost always denied the right to fair trial or a hearing. Very few Tibetans, if any, manage to exercise any rights to a fair trial.
Restrictions on the freedom of peaceful assembly remained severe as Chinese police and paramilitary troops engaged in violent suppression of peaceful protesters calling for the return of the Tibetans’ spiritual leader, His Holiness the Dalai Lama, freedom and human rights.
[41] The same report notes:[40]
Similarly, the right to freedom of religion and belief was subjected to heightened levels of control and restriction, through the enforcement of the revised regulations on religious affairs, the implementation of the campaign against ‘organised crime’ particularly targeting religious institutions and practitioners, and the issuance of local directives to ban Tibetan schoolchildren from participating in religious activities. The policies known as ‘adapting religion to socialism with Chinese characteristics’ and ‘sinicising Tibetan Buddhism’ have led to an increase in compulsory political reeducation campaigns and an erosion of flexibility at the local level to control the religious education of minors, and limitations on informal places of worship.
[42] The NDP[41] and the documentary evidence submitted by the counsel to the claimant[42] makes clear that the state is complicit in the violence committed against members of the Tibetan community. Accordingly, in these circumstances, it is clear and convincing evidence that the state is unable or unwilling to protect the claimant.
[43] Thus, the panel finds that the claimant has met his burden of proof, on a balance of probabilities, and that the presumption of state protection has been rebutted.
INTERNAL FLIGHT ALTERNATIVE (IFA)
[44] The Federal Court of Appeal established a two-part test for assessing an IFA in
Rasaratnam and Thirunavukkarasu:
(1) As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”[43] and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.
(2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances including those particular to the claimant, for him to seek refuge there.[44]
[45] The claimant bears the burden of proof to demonstrate that he would be persecuted on a Convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of China.
[46] The claimant provided credible and consistent sworn viva voce evidence that the agent of persecution is the government of China. The claimant testified that he fears persecution throughout China due to his Tibetan ethnicity.
[47] The documentary evidence indicates that there are obstacles to the freedom of movement for members of the Tibetan community. The Tibetan Center for Human Rights and Democracy’s 2018 annual report states as follows:[45]
The right to freedom of movement includes the right of a person to enter his or her own country. Whether Tibetans are living in other countries as refugees or as citizens of other countries, they have the right to visit or return to Tibet because of the “special ties to or claims” in relation to their homeland. But in some areas of Tibet, Chinese authorities were seen implementing an undeclared policy that barred Tibetan refugees from returning to their hometowns. Although temporary permits to visit family and relatives are still issued selectively to some Tibetan refugees living in India, they are not allowed to move back permanently. A visiting Tibetan refugee from India was told by Chinese authorities in Dowa Township in Rebkong County, Malho (Ch: Huangnan) TAP that a new policy enforced since January 2018 no longer allows returning Tibetans to live permanently in their hometowns. There is no known evidence, either in written or oral form, of such policy promulgated by Chinese authorities. It appears to be one of the numerous ad-hoc measures imposed by local authorities as part of the ‘stability maintenance’ policy. [footnotes omitted]
[48] Having carefully considered the totality of the evidence, the panel finds that there is a serious risk of persecution throughout China. Thus, in the particular circumstances of the claimant, who is of Tibetan, a viable internal flight alternative is unavailable.
CONCLUSION
[49] Having considered the totality of the evidence, the relevant statutory provisions, and jurisprudence, the panel finds that the claimant has demonstrated that there is a reasonable chance he would be persecuted on grounds of race, nationality, and religion, should he be returned to China today. Accordingly, the claimant has a well-founded fear of persecution.
[50] For the above-mentioned reasons, the panel finds the claimant to be a Convention refugee.
[1] The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).
[2] Ibid., Schedule (Subsection 2(1)), Sections E And F Of Article 1 Of The United Nations Convention Relating To The Status Of Refugees, Article 1E.
[3] Ibid.
[4] Shamlou, Pasha v. M.C.I. (F.C.T.D., no. IMM-4967-94), Teitelbaum, November 15, 1995. Reported: Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.), at para 35.
[5] Exhibit 7, Country Condition Documents, p.19, received October 17, 2018.
[6] Ibid.
[7] Williams, Manzi v. M.C.I. (F.C.A., A-241-04), Decary, Letourneau, Nadon, April 12, 2005. Reported: Williams v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 429 (F.C.A.).
[8] Exhibit 7, Country Condition Documents, received October 17, 2018.
[9] Ibid., p.22.
[10] Ibid., p.28.
[11] Tretsetsang, Chime v. M.C.I. (F.C.A., no. A-260-15), Ryer, Webb, Rennie, June 9, 2016, 2016 FCA 175; Yalotsang, Perna v. M.C.I. (F.C., no. IMM-4191-18), Mactavish, May 3, 2019, 2019 FC 563, at para 9.
[12] Exhibit 8, Federal Court Jurisprudence, received February 3, 2020 — which includes: Pasang, Thinley v. M.C.I. (F.C., no. IMM-6585-18), Fothergill, July 10, 2019, 2019 FC 907, at para 23
[13] Exhibit 7, Country Condition Documents, p.33, received October 17, 2018.
[14] Ibid.
[15] Choezom, Tendzin v. M.C.I. (F.C., no. IMM-1420-04), von Finckenstein, September 30, 2004, 2004 FC 1329, at para 14.
[16] Shamlou, supra, footnote 4.
[17] IRPA, supra, footnote 1, Schedule (Subsection 2(1)), Sections E And F Of Article 1 Of The United Nations Convention Relating To The Status Of Refugees, Article 1E.
[18] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.2, received [XXX], 2018.
[19] Ibid.
[20] Ibid., p.3.
[21] Exhibit 1, Package of information from the referring CBSA/CIC, received [XXX], 2017.
[22] Exhibit 2, BOC, response to q.1(c), received [XXX] 2017.
[23] Exhibit 9, Affidavit of [XXX], received [XXX], 2020.
[24] Ibid., para 3.
[25] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.3, received [XXX], 2018.
[26] Exhibit 2, Basis of Claim Form (BOC), response to q.5, received [XXX], 2017.
[27] Exhibit 6, BOC Narrative Amendment and Personal Identity Documents, p.1, received [XXX], 2018.
[28] Exhibit 7, Country Condition Documents, p.38, received [XXX], 2018.
[29] Exhibit 2, BOC, received [XXX], 2017.
[30] Exhibit 3, National Documentation Package (NDP) for China (December 20, 2019).
[31] Ibid., item 12.2, Key Findings
[32] Ibid.
[33] Ibid., Tibetan Buddhists.
[34] Ibid.
[35] Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
[36] Exhibit 3, NDP for China (December 20, 2019), item 13.4, p.3.
[37] Ibid., p.9.
[38] Ibid.
[39] Ibid., item 13.9, Executive Summary.
[40] Ibid.
[41] Exhibit 3, NDP for China (December 20, 2019).
[42] Exhibit 7, Country Condition Documents, received October 17, 2018.
[43] Rasaratnam, Sivaganthan v. M.E.I (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.
[44] Thirunavukkarasu, Sathiyanathan v. M.E.I (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).
[45] Exhibit 3, NDP for China (December 20, 2019), item 13.9, Freedom of Movement.
