Date: 20101210
Docket: IMM-1530-10
Citation: 2010 FC 1274
Ottawa, Ontario, December
10, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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YAN SI YANG
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 24 February 2010 (Decision), which refused the Applicant’s application to
be deemed a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of the People’s Republic of China. She lived
and worked in Guangzhou City in her native province of Guangdong prior to
coming to Canada. In May
2007, she joined a house church comprised of nine other Christians. Together
they would recite and discuss Bible passages, give witness and pray. In the
approximately ten months of her attendance at this church, a pastor visited the
church only once.
[3]
The
Applicant claims that, on 23 March 2008, the Public Security Bureau (PSB) raided the
house church. She was able to escape before the police arrived at the church
but was forced to go into hiding. She later learned that two other members of
the church had been arrested. While still in hiding, the Applicant’s husband
told her that the PSB had come to their home with plans to arrest her for her
illegal religious activities. The Applicant claims that the PSB returned to
her home repeatedly and also searched for her at the homes of other family
members. Feeling that she would never be safe in China, she fled. Her
husband has told her that the PSB continues to search for her and that the two
arrested church members are still in detention.
[4]
The
Applicant arrived in Canada and claimed refugee status on 8 May 2008. She
appeared before the RPD on 15 February 2010. She was represented by
counsel and an interpreter was present. The RPD rejected her claim in a
Decision dated 24 February 2010. This is the Decision under review.
DECISION UNDER REVIEW
[5]
The
RPD stated that the
determinative issue in this application was the lack of credibility of the
claimant’s Personal Information Narrative and her oral evidence. Although the
RPD accepted that the Applicant’s Christian beliefs were genuine, it found that
her oral evidence regarding the raid on the house church and the PSB’s subsequent
search for her was not believable.
[6]
The
RPD found that, based on its review of the documentary evidence as a whole, and
bearing in mind the Applicant’s description of her house church, the Applicant
“would be able to practice her religion in any church if she were to return to
her home in Guangdong province in China and that there is not a serious
possibility that she would be persecuted for doing so.”
[7]
The
RPD relied on a 2005
report from the Executive Secretary of the Hong Kong Christian Council which
noted that, along with Fujian Province, Guangdong Province has
“the most liberal policy on religion in China, especially
on Christianity,” and that authorities usually tolerate the activities of
unregistered churches, some of which have been functioning for years. The most
recent U.S. Department of State International Freedom of Religion Report (DOS
Report) observed that most Christian groups in China are
unregistered, that they continue to expand and that they no longer operate in strict
secrecy but carry out public activities. The RPD noted that the documentary
evidence on the arrest and persecution of Christians between 2005 and 2008
reported no such incidents for Guangdong. The RPD found that,
on the balance of probabilities, if there had been arrests and persecution,
they would have been reported.
[8]
The
RPD also noted contradictory evidence. For example, according to the Annual
Report of Persecution by the Government on Christian Churches within Mainland
China, a pastor was interrogated and property was confiscated from the Liangren Church in Guangdong in 2008; it
was not known why the church was raided or what subsequently occurred. Also,
the China Aid Association stated that Christian persecution and religious
repression occur in all parts of China, including Guangdong, and that
the Association has not documented all cases of persecution. Nonetheless, the
RPD found that the situation in Guangdong does not reflect what
is happening in many other provinces of China and that no
lay Christians have been persecuted there in recent years. Therefore, the
claimant, as a lay Christian, could very likely practise her religion safely in
Guangdong.
[9]
The
RPD concluded that the Applicant was neither a Convention refugee nor a person
in need of protection and that, for this reason, her claim should be rejected.
ISSUE
[10]
Did
the RPD err in its
treatment of the evidence?
STATUTORY PROVISIONS
[11]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear
of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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[12]
The Supreme
Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[13]
At issue is the treatment of the evidence. In considering whether the RPD
ignored material evidence or incorrectly dismissed the probative value of
certain documents, the Court should apply a standard of reasonableness. See Dunsmuir,
above, at paragraphs 51 and 53.
[14]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir,
above, at paragraph 47. Put another way, the Court should intervene
only if the Decision was unreasonable in the sense that it falls outside the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and law.”
ARGUMENT
The
Applicant
Absence
of Documentary Evidence of Persecution Does Not Equate With the Absence of
Persecution
[15]
The Applicant
contends that simply because the documentary evidence does not report
persecution does not mean that persecution never takes place, particularly
under a state regime that is devoted to the suppression of such evidence. See Lin
v. Canada (Minister of Citizenship and Immigration, 2009 FC 254. It is
unreasonable for the RPD to expect that every instance of
persecution would be reported.
[16]
Moreover,
the RPD’s assertion that there is freedom of religion in Guangdong is not
supported by the documentary evidence. The RPD has
misapprehended the evidence. See
Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3
F.C. 605 (F.C.A.) at paragraph 4.
[17]
The
Applicant further contends that the RPD’s treatment of the
evidence from the Annual Report of Persecution by the Government on
Christian Churches within Mainland China is “microscopic and unreasonable.”
The RPD’s comments that it was not known why this particular church and its
pastor were targeted reflect, in the Applicant’s view, an attempt to qualify solid
evidence of persecution in Guangdong. This attempt is later
repeated, when the RPD modifies its earlier statement that there was
no evidence of persecution of Christians to say that there was no evidence of persecution
of “lay” Christians. Such a qualification signals the RPD’s implicit acceptance
that reports of non-laity persecutions do exist and, in consequence,
demonstrates that the RPD’s finding that there is freedom of
religion in Guangdong is a
misapprehension of the evidence. The Applicant submits that the U.S. DOS Report’s
statement that underground churches no longer operate in “strict secrecy” is
interpreted by the RPD to mean “open.”
[18]
Such
an interpretation is contradicted by the same report, which notes that house
churches encountered difficulties when their membership grew, when they forged
links with other groups or when they arranged for regular use of facilities for
their religious activities. Moreover, the report’s observation that U.S. officials in
China are encouraging greater religious freedom in Guangdong demonstrates
that there is a need for such encouragement, contrary to the RPD’s finding.
[19]
Finally,
the RPD’s conclusion that the Applicant would be able to practise her religion
“in any church” in Guangdong contradicts documentary and oral evidence that
Christians such as the Applicant must be careful to abide by certain
restrictions, which deprives them of religious freedom. See Fosu v. Canada
(Minister of Employment and Immigration) (1994), 90 F.T.R. 182 (Fosu).
[20]
The Applicant submits
that the RPD’s failure to recognize the absence of
religious freedom in Guangdong taints the Decision. Therefore, the
matter should be sent back for re-determination by a differently constituted
panel.
The Respondent
Decision Is Reasonable
[21]
The Respondent
contends that the Applicant’s arguments amount to a request for this Court to
re-weigh the evidence, which would be contrary to the Supreme Court’s decision in
Canada (Minister of Citizenship
and Immigration) v. Khosa,
2009 SCC 12. The RPD’s assessment of the evidence and its
findings on credibility are deserving of deference.
[22]
Simply because the
Applicant’s oral evidence was uncontradicted at the hearing does not mean that
the RPD must accept it. See Aguebor v. Canada
(Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). Similarly, it was open to
the RPD to accept the documentary evidence that
unregistered churches, such as the one attended by the Applicant, were permitted
to operate with no interference and to reject the Applicant’s evidence that her
particular underground church was raided. It was also reasonable for the RPD to
assume that, had such persecution taken place in Guangdong,
it would have been reported. See Lin v. Canada (Minister of Citizenship and
Immigration), 2010 FC
108 at paragraph 28. The onus is on the Applicant to prove the objective
element of a well-founded fear of persecution.
[23]
The RPD observed that
there is a difference between persecuting a member of the clergy and persecuting
a lay person. The circumstances and risks of the latter cannot be equated with
those of the former. See Jiang v. Canada
(Minister of Citizenship and Immigration), 2010 FC 222 at paragraphs 28-29, 35. The RPD
was reasonable in finding that, in the absence of reported arrests or
persecution in Guangdong Province, the Applicant was not constrained
in how she
practised her religion. See Fosu, above, at paragraph 5.
Respondent’s Further Memorandum
[24]
The
Respondent submits that, in its assessment of country conditions and in its
subsequent finding that the Applicant would be able to practise her religion in
any church in Guangdong, the RPD considered all
relevant documentation. It made explicit reference to contradictory country condition
documentation, and it noted that religious freedom varies throughout China. The Decision was
reasonable. The Applicant may disagree with how the RPD weighed the evidence,
but this is a matter within the RPD’s discretion. See Brar v. Canada (Minister of Employment
and Immigration),
[1986] F.C.J. No. 346 (C.A.).
[25]
The
Applicant mischaracterizes the RPD’s findings when she states that the Decision
declares freedom of religion to exist in Guangdong. She then relies on that mischaracterization to
argue that the existence of evidence that a pastor had been interrogated in Guangdong Province demonstrates
that the RPD misapprehended the evidence in general. However, the Respondent
contends that the RPD’s assessment focussed properly on the Applicant’s individual
circumstances and found that she would be able to practise her religion in Guangdong without a serious
possibility of persecution.
[26]
Contrary
to what the Applicant has asserted, the RPD did not equate absence of documentary
evidence of persecution with the absence of persecution and, therefore, freedom
of religion. The RPD’s analysis was more sophisticated than this. The
documentary evidence came from multiple sources. Many of them reported ongoing
persecution in the same areas of China. Many of them lacked reports of persecution in Guangdong. The RPD reasonably
concluded that, had persecution been happening in Guangdong, these sources would
have reported it. See Yu v. Canada (Minister of Citizenship and Immigration), 2010 FC 310 at
paragraph 32.
[27]
Finally,
the Respondent challenges the Applicant’s assertion that the U.S. DOS Report is
evidence that the RPD erred in finding that freedom of religion exists in China. First, the RPD does
not rely on the U.S. DOS Report to support such a finding. Second, the RPD
acknowledged that religious freedom is limited in parts of China. Third, the Applicant’s
microscopic analysis loses sight of the general tenor of the documentary
evidence as a whole: that there is no religious persecution in Guangdong. The Applicant disputes
the RPD’s weighing of the evidence. However, the Respondent submits that the
Decision falls within the range of acceptable outcomes as required by Dunsmuir,
above, and therefore is reasonable.
ANALYSIS
[28]
The
RPD appears to accept that the Applicant is a genuine Christian even though it
does not believe that her house church was raided by the PSB. However, the
RPD’s principal finding is that the Applicant “would be able to practice her
religion in any church if she were to return to her home in Guangdong province …
.” Both findings are based upon documentary evidence that does not report
arrests or other persecution of Christians in Guangdong Province even though
it does report such occurrences elsewhere in China.
[29]
The
RPD appears to come to the conclusion that freedom of religion prevails in Guangdong Province, at
least as far as Christians are concerned:
I have considered the claimant’s
description of her house church and considered its location in Guangdong province, where there have
been no reported arrests or incidents of persecution of lay Christians. The
claimant was asked at the hearing by the member what type of the church (sic)
she would go to if she was able to return to China without fear. She replied
that she would like to attend a church where she enjoyed freedom of religion. I
have carefully reviewed the documentary evidence and find, on a balance of
probabilities, that the house church the claimant attended was never raided by
the authorities and consequently, the claimant is not wanted by the PSB. I
find, after considering the documentary evidence noted above, on a balance of
probabilities, that the claimant would be able to practice her religion in any
church if she were to return to her home in Guangdong province in China and
that there is not a serious possibility that she would be persecuted for doing
so.
[30]
The
RPD bases its conclusions concerning religious freedom in Guangdong on the lack
of evidence of arrests or persecution in that province: “I have reviewed all
the documentary evidence submitted and find no evidence of recent arrests or
incidents of persecution of Christians in Guangdong province.”
[31]
So
the reasoning appears to be that the lack of reports on recent arrests or other
persecution in Guangdong means that Christians such as the Applicant are
free to practise their religion there.
[32]
The
Applicant points to a DOS report which speaks of the Consulate General in Guangdong making
“concerted efforts to encourage greater religious freedom in the country ... .”
However, this does not mean, in my view, that the Consulate General in question
was acknowledging a lack of religious freedom in Guangdong Province. Guangdong Province is not “the
country.”
[33]
Generally
speaking, the Applicant says it was unreasonable for the RPD to conclude that a
lack of reports of arrests or other persecution means that the Applicant can
practise her religion as she wishes to practise it in Guangdong. However, in
Nen Mei Lin v. Canada (Minister of Citizenship and Immigration),
(February 4, 2010), IMM-5425-08 at page 3, the Court appears to have found this
a reasonable conclusion in relation to Fujian Province:
“it was reasonable for the Board to conclude that if such persecution had
occurred in Fujian, it would
have been documented.” Also, see Yu, above, at paragraph 32.
[34]
The
Applicant also points out that the RPD appears to have overlooked certain
specific references to persecution in Guangdong as well as general references
to persecution of Christians in China that do not exclude Guangdong.
[35]
First
of all, the CHN100386.E Report which was part of the National Documentation
Package, and part of which is quoted by the RPD, does say that Fujian and
Guangdong have “the most liberal policy on religion in China, especially
in Christianity.” It also says that “Human Rights in China (HRIC) commented in
August 4, 2005 correspondence to the Research Directorate that the treatment of
Christians is poor in southern China, particularly in the rural areas, though
the organization could not elaborate, citing a lack of available information.”
[36]
I
do not think that this general statement invalidates the RPD’s general
conclusion that it can find “no evidence of recent arrests or incidents of
persecution of Christians in Guangdong province,” and I do not
think that this report needed to be specifically referenced by the RPD.
[37]
The
RPD also referred to the Liangren Church incident but
discounted this as not being sufficiently well-documented to allow any
conclusions about whether it was indicative of persecution of Christians in Guangdong. In Jiang
v. Canada (Minister of Citizenship and Immigration) 2010 FC 222, Justice
Lemieux dismissed a review application involving a claimant from Fujian Province
and accepted the Respondent’s argument that “the documentary evidence shows
where the applicant lives there are minimum restraints, people practice
generally freely and those who may be affected unduly do not fit [the applicant’s]
profile.”
[38]
The
documentary evidence in Jiang included information concerning one person
who had been arrested, but the RPD had concluded that only one example of an
arrest in Fujian was not
sufficient evidence that the claimant would face persecution. Much the same can
be said for the situation in the present case in so far as the Liangren Church incident is
concerned.
[39]
The
Applicant also refers to a June 22, 2007 report of raids on Protestant house
churches between 2005 and 2007 (see CHN102492.E in the National Documentation
Package). This report mentions an AsiaNews report of December 12, 2006 which
mentions “forcible closures of house churches ... in Guangdong province ...
.”
[40]
Once
again, bearing in mind the date of this report and other documentation which
speaks of toleration for house churches in Guangdong, I do not think it renders
unreasonable the RPD’s conclusion based upon the evidence as a whole that there
is “no evidence of recent arrests or incidents of persecution of Christians in
Guangdong province.”
[41]
Two
recent decisions of the Court address similar issues to the ones raised in the
present case. First, Justice Crampton in Nen Mei Lin, above, at
page 3, provides guidance that could also, for the most part, be applied to the
present case involving Guangdong:
The
documentary evidence reviewed and explicitly discussed by the Board in its
decision reveals that Christians have continued to be arrested in many areas of
China in recent years. However, in the
documentation before the Board, no mention was made of arrests or any of the
other types of persecution alleged by the Applicant, in her home province of Fujian. Given, the significant detail set
forth in that documentation regarding the dates and locations of those arrests
and the other steps taken to discourage Christian activity in China, it was reasonable for the Board to conclude that if such
persecution had occurred in Fujian, it would have been documented.
The
fact that a very small number of Catholics were arrested in 2002, 2003 and 2005
in Fujian did not render the Board’s decision unreasonable, particularly given
(i) the fact that the Applicant is a protestant; (ii) the increased tolerance
towards Christians in China in recent years that is reflected in the extensive
evidence before the Board; (iii) the fact that that prayer meetings and Bible
study groups among friends and families are legal and do not need to be
registered with the authorities in China; (iv) the undisputed evidence that
“local authorities … usually tolerate activities of unregistered Christian
groups”; and (v) the nature of the Christian activities engaged in by the
Applicant in Canada, which were specifically considered by the Board.
[42]
Second,
Justice Zinn in Yu, above, at paragraphs 31 and 32, provides further
guidance on the facts before me, even though I am dealing with Guangdong and
not Fujian Province:
31. In this
case, the only evidence that was provided to the Board that the applicant’s
house church was raided was his own testimony. There was no corroborative
evidence of any sort provided. Although he had otherwise been found credible,
in that the Board accepted his evidence that he was a Christian and attended a
house church in Fujian, there
was other evidence before the Board that brought his evidence of the raid into
question.
32. The
other evidence was documentary evidence. It was not directly contradictory of
the applicant’s testimony in that it did not say that no house churches had
ever been raided in Fujian
Province. That is hardly surprising as one is unlikely to find a report that
something has not happened because it is events, not non-events, that are
reported. Nonetheless, the documentary evidence does lead to an inference that
no such raid occurred. It leads to this inference, as the Board noted, for
many reasons, including the following:
1. There
is a large discrepancy in the treatment of house churches in China. In some parts of the country house
churches with large memberships meet openly with no objection, while in other
areas, house churches with small memberships are targeted by the authorities.
2. Protestant
Christians who attempt to meet in large groups, or who travel within China and outside China for religious meetings are more likely to be targeted by
authorities.
3. There
is documentary information of religious persecution of house churches and their
adherents from many areas of China, including many remote areas, but there is
little such evidence of such persecution in Fujian Province.
4. The
evidence of religious persecution in Fujian Province that exists relates to the Catholic Church.
[43]
When
read as a whole, I think the RPD is saying that the documentation does not
suggest that the Applicant, if returned to Guangdong, could not
practise her religion freely as she appears to want to practise it. Given the
evidence before the RPD, I cannot say that this conclusion was unreasonable
within the meaning of Dunsmuir.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application is dismissed;
2.
There
is no question for certification.
“James
Russell”
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