Date: 20100106
Docket: IMM-369-09
Citation: 2010 FC 9
Ottawa, Ontario, January
6, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ZHI
JUN ZHANG
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Immigration and Refugee Board’s Refugee Protection Division
(RPD or Board), dated December 2, 2008, wherein the applicant was determined to
be neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Act.
[2]
The
applicant seeks an order pursuant to subsection 18.1(3) of the Federal Courts
Act:
1. Declaring
the applicant to be a Convention refugee;
2. In
the alternative, an order remitting the matter to the Immigration and Refugee
Board with directions;
3. In
the further alternative, an order remitting the matter to a different panel of
the Immigration and Refugee Board for a hearing de novo.
Background
[3]
Zhi
Jun Zhang (the applicant) claims that it was on the behest of a friend that he
joined an underground church in China. The applicant is a citizen
of the Peoples Republic of China. He claims
refugee protection because he fears persecution because he is a member of an
underground Christian church in China.
[4]
The
applicant arrived in Canada on August 20, 2006 on a student visa to
attend Hanson International
Academy. While in
Canada, the applicant kept in contact with his friend in China and apprised
of his religious activity. In October of 2006 the applicant began including
prayer pamphlets in the letters to his friend.
[5]
The
applicant claims that while in Canada, his parents were visited by the Public
Security Bureau (PSB) regarding his involvement in the underground church. The
PSB told his parents that he was wanted for arrest and that he must return to China to report to
the PSB office.
[6]
The
applicant applied for refugee protection on February 12, 2007 on the basis that
because he attended an illegal church in China and sent
religious materials to China, the applicant feared arrest, imprisonment
and that he would not be able to practice his Christian faith freely and
openly.
[7]
It
is alleged by the applicant that two fellow believers have been arrested since
he left China and the PSB continue to visit his parents regarding his
activities in Canada and his
return date to China.
Board’s Decision
[8]
The
Board began its decision by reviewing the evidence presented by the applicant
in written and oral submissions. It was noted that the applicant attended the
underground house church in China six or seven times between June 2006 and his
August 20, 2006 departure for Canada. The Board found that the applicant’s
knowledge was consistent with someone who has attended services in Canada for the past
two years. Further, the Board noted that a letter from Reverend Ko of the
Living Water Assembly in Toronto indicated that the
applicant had been baptized on March 17, 2007. The Board concluded that based
on this evidence, on a balance of probabilities, the applicant was a practicing
Christian in Canada and that
most of his knowledge was acquired after his arrival in Canada.
[9]
The
Board found that the key question in determining whether the applicant was a
Convention refugee or a person in need of protection was whether the applicant,
as a member in an underground Christian house church, would face a serious
possibility of being persecuted, arrested and/or imprisoned by authorities in China. The Board
found that the applicant had not satisfied the burden of establishing a serious
possibility of this happening.
[10]
The
Board was dubious of the allegation that individuals attending underground
churches were subject to persecution. The Board pointed to documentary evidence
that indicated that prayer meetings and study groups among family and friends
were not subject to raids unless they grew in size, attempted to converge with
other church groups, and/or sought more permanent facilities. A membership of
ten in the underground church that the applicant attended six or seven times
was not consistent with a situation that would attract the attention of the
PSB; the applicant did not describe himself as a church leader or prominent
Christian which are factors that have been identified in documentary evidence
as attracting persecution by the PSB. Further, the applicant did not provide
any evidence of the membership growing or moving to different locations.
[11]
In
regards to the religious material that the applicant sent to his friend, the
Board stated that there was no evidence presented that indicated that the PSB
had confiscated the materials and no evidence such as receipts that these documents
were ever sent.
[12]
The
Board then turned to the issue of whether the applicant would be able to
practice his religion without risk of persecution in China and
particularly the issue of whether the applicant would be able to practice his
religion freely in registered churches. The Board found that the applicant had
not provided any direct evidence to verify that the applicant would have to
place the state above God in a registered church. The applicant’s statement
that this information came from a friend who he trusted was insufficient to the
Board. The Board goes on to acknowledge that there is reference to this issue
in the documentary evidence but finds that it is “not supported by any solid
evidence”. The Board stated that the assertion that “reports” found that
registered churches being constrained by the state was insufficient proof if
the source of those reports was not provided.
Issues
[13]
The
issues are as follows:
1. What
is the standard of review?
2. Did
the Board err in basing its decision on erroneous findings of fact and err in
finding that the applicant should not be considered a person in need of
protection under section 97 of IRPA?
Applicant’s Written
Submissions
[14]
The
applicant submits that the standard of review for decisions of the Board as a
whole is subject to the standard of patent unreasonableness. Correctness is to
be applied to questions of law. The applicant cites Divsalar v. Canada
(Minister of Citizenship and Immigration) 2002 FCT 653 for the notion that
“[t]he court is often just as capable as the Board in deciding whether a
particular scenario or series of events described by the applicant might
reasonably have occurred”, cited from Kapita v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1074.
[15]
The
applicant begins with credibility issues. The applicant notes that there were
no negative findings on the applicant’s general credibility. Further, the Board
found that the applicant’s testimony was consistent with someone who is a
practicing Christian.
[16]
The
applicant submits that the Board was compelled to find in favour of the
applicant when it decided that there would be no risk to the applicant after
attending unregistered churches in China and after he
disseminated by mail Christian literature. When there is no issue of
credibility, “the benefit lies with the Applicant” (see Maldonado v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at 305. The
documentary evidence varies greatly from one locality to another however the
government’s general perception on unregulated religious groups is such that
they target any challenge to their authority. The Board made a selective
reading of the documentation that failed to address this fact. Further, the
applicant should not be doubted on his allegations that authorities in his area
are targeting members of unregistered churches. It is erroneous for the Board
to find the applicant believable from a credibility perspective but also rejects
his statements based on lack of solid evidence. Or in the alternative, the
Board erred when it placed more weight on documentary evidence that they found
problematic insofar as providing substance to the allegations and then found
that little weight could be given to the applicant.
[17]
The
Board failed to acknowledge facts presented by the applicant, namely: the risk
faced by the applicant because he went to three different churches in China,
because he mailed Christian material to China from Canada
and because the church the applicant belonged to in Toronto has forged a
link with underground churches in China.
[18]
The
applicant then was critical of the Board’s findings on a lack of solid evidence
or in other words, “making findings that are without evidentiary basis” (see Zhou
v. Canada (Minister of
Citizenship and Immigration), IMM-3502-05, 25 January 2006 as per Madam
Justice Snider). The applicant stated that the Board’s treatment of the matter
of the materials sent to China was erroneous as it ignores evidence. The
applicant quotes the Department of State Country Report on Human Rights, China, issued
March 11, 2008:
By law, only government approved
publishing houses were permitted to print books…[i]ndividuals who attempted to
publish without government approval faced imprisonment, fines, confiscation of
their books and other sanctions.
[19]
The
fact is that the Chinese government’s censorship is not perfect and they may
have missed the materials sent, however, this does not mean that the
authorities might not find the materials in the future. The Board “minimizes
the applicant’s conduct” and the seriousness of the consequences in China.
[20]
The
Board notes that the leaders of the underground churches are more readily
persecuted but fails to acknowledge that documentary evidence such as the US
State Department Report, states that members are targeted equally with leaders.
[21]
The
applicant then turns to the Board’s finding that the applicant can practice his
religion at a state run church. It was irrational for the Board to find that
there was not solid evidence that state run churches did not put the government
over God because the statement made by the applicant can be true whether the
applicant experienced it or not. It does not change the fact of the applicant’s
statement.
[22]
The
principle beliefs of the applicant is what “one must look at” (see Zhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1066 and Syndicat Northcrest
v. Amselem, 2004 SCC 47). The applicant’s belief was that the state run Patriotic Church
violated his religious convictions.
[23]
The
Board’s reasoning is also completely irrational and unfounded when it suggests
that the documentary reports are unsubstantiated. The material referenced is a
summary of several documents from a wide variety of sources, called the RIR and
including such documents as the US Department of State Religious Freedom Report
and US Congressional Committee Reports.
[24]
The
material referenced states that the registered churches are constrained from
making doctrinal statements; something the applicant sought to avoid by going to
an underground church.
[25]
The
inferences made were not based on evidence as the significant and relevant
parts of the claim are internally logical and that there is a connection
between the activities of the applicant and the perception of the authorities
towards the applicant and supporting country documentation. Where
implausibility findings and inferences make up most of the reasons, a decision
cannot stand. Inferences drawn must be reasonably said to exist.
[26]
In
regards to section 97 factors and whether the applicant would be at risk if
returned to China, the Board
fails to address the evidence appropriately says the applicant. The Board had
an obligation to do a section 97 risk analysis in its reasons and failed to do
so. The Board did not make adverse credibility findings and then failed to
provide a coherent analysis of risk. The decision should fail for this reason.
Board guidelines suggest that a section 97 analysis is essential even if the
claim is rejected under section 96 of IRPA.
Respondent’s Written Submissions
[27]
The
standard of review is reasonableness (see Kabongo v. Canada (Minister of
Citizenship and Immigration) 2008 FC 348).
[28]
The
Board did not ignore or misconstrue evidence and is presumed to have taken all
the evidence into consideration. The respondent submits that the Board reviewed
all of the evidence regarding persecution of Christian house churches in China. It is not
the case that the Board did not recognize that persecution of Christians does
not exist in China.
[29]
The
respondent disagrees with the applicant on whether the Board made inferences
that were in error. The respondent states that the main thrust of the applicant’s
arguments with regard to evidence is that the Board should have made alternate
inferences than the ones the Board actually made and that the Board engaged in
selective analysis of the evidence. In order for there to have been a reviewable
error, the applicant must demonstrate that the inferences made by the Board are
not supportable in any way on the evidence. Merely arguing that other
inferences should have been made does not meet the standard of review and the
deference afforded the Board (see Sinan v. Canada (Minister of
Citizenship and Immigration), [2004] FC 87 at paragraph 11 and Qasam
v. Canada (Minister of
Citizenship and Immigration), [2002] FCT 1182 at paragraph 46).
[30]
The
respondent relies on Conkova v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 300 for the idea that the issue at
hand is essentially the Board’s treatment of the whole of the evidence as it is
often ambiguous and equivocal and that some elements support the applicant’s
position, others undermine it. The Board has the mandate of making conclusions
based on this often elusive evidence as part of its expertise.
[31]
The
applicant is wrong to suggest that the Board did not make a finding based on
section 97 of IRPA. The Board considered the applicant’s story, personal
circumstances and the documentary evidence as to the persecution of underground
churches. Based on that evidence, it was concluded that the applicant did not
face a risk of torture, risk to life or a risk of cruel and unusual treatment
or punishment if returned to China. There is no merit to the applicant’s
argument in this regard.
Analysis and Decision
[32]
Issue
1
What
is the standard of review?
In Dunsmuir v. New
Brunswick,
2008 SCC 9, the Supreme Court stated that if the standard of review has been
already determined, then no further analysis is required. Dunsmuir above,
also collapsed patent unreasonableness and reasonableness simpliciter
into one standard of review, that of reasonableness.
[33]
In
this case, the applicant raises questions of fact and questions of mixed law
and fact. The former involves the Board's findings based on inferences,
implausibilities and credibility
findings. These findings are highly factual in nature. In numerous pre-Dunsmuir
decisions, this Court has held that the appropriate standard of review was
patent unreasonableness (see Soosaipillai v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 1349, 2007 FC 1040, at
paragraph 9).
[34]
In Malveda
v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 527,
Mr. Justice Russell stated that “the issue of whether or not the Board ignored
relevant evidence is also a factual inquiry and has been reviewed in the past
on a standard of patent unreasonableness” (see also Dannett
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1363,
[2006] F.C.J. No. 1701 (QL) at paragraph 33).
[35]
The final question raised by the applicant involved questions of
mixed law and fact because it is related to the Board’s findings on section 97
of IRPA in relation to the evidence put forward by the applicant. Questions of
law and fact have been established by this Court to be reviewable on the
standard of reasonableness (see Kamilov v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 810).
[36]
Therefore,
the standard of review for all of the issues raised by the applicant is
reasonableness. There have been no pure questions of law raised, which would
warrant a review on the standard of correctness.
[37]
The analysis by this Court is limited to reviewing the Board’s
decision to ascertain whether the decision was made 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).
[38]
The
Supreme Court stated in Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, at paragraph 59:
There
might be more than one reasonable outcome. However, as long as the process
and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.
[39]
Issue
2
Did the Board err in
basing its decision on erroneous findings of fact and err in finding that the
applicant should not be considered a person in need of protection under section
97 of IRPA?
The applicant began with the
premise that when there is no adverse credibility finding, the benefit lies
with the applicant as established in Maldonado above. He then adopted
this premise to the many pieces of evidence before the Board and argues that
because they did not begin with this premise, the findings were in error. The
Board should have looked at each piece of evidence through the lens of what the
applicant said was true if they had found him credible. For the applicant this
was an error that defeats many of the findings of the Board.
[40]
I
do not find fault with the Board’s findings. The applicant is stating what he
himself knows to be true. The Board has not disputed his belief in these
things. What the Board disputes however, is whether his beliefs are an accurate
reflection of the risk of persecution objectively. What I understood the Board
to be stating was that there was no solid evidence to substantiate what the
applicant was claiming. There is a distinction between finding an applicant not
credible and the finding that despite what the applicant knows to be true
himself, the statement claimed does not provide enough evidence to accept a
statement as true on a balance of probabilities. For this reason, I am of the
view that this was not an error of the Board.
[41]
In this
issue of the dissemination of materials, I find that the Board’s conclusions
were reasonable and did acknowledge the punitive approach the PRC was taking
towards such materials. The conclusions of the Board were based on the evidence
that, beyond the assertion made by the applicant that the materials were found
and seized by the PSB, there was no other evidence to substantiate this. The
Board did not find an associated risk of persecution based on bare assertions,
on a balance of probabilities. I find this reasonable. Mr. Justice Lemieux
noted in Tan
v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 844:
14 It is
well recognized that a tribunal such as a panel of the Refugee Protection
Division is well suited to draw implausibility findings provided the inferences
drawn are not unreasonable (see Aguebor v. Minister of
Employment and Immigration,
[1993] F.C.J. No. 732 (C.A.)).
[42]
This
is an intelligible conclusion to make given that there were no receipts
provided to prove that the materials were sent and that the applicant took
measures to conceal their contents. While it is plausible for the Board to have
concluded otherwise, that the PSB may have found or may discover the material, they
did not make that finding. Re-weighing this evidence and making conclusions on
it goes beyond the direction this Court has been given in judicial reviews of
this nature.
[43]
The
next issues are in regard to how the Board treated the evidence of whether
members of underground churches were persecuted or whether the targeting
involved higher profile leaders and whether the registered churches placed the
state above God.
[44]
Again,
the applicant made the argument that unless he was found not to be credible,
his statement regarding registered churches which, came from discussions with
his friend, should have been accepted. I am not of the view that the Board had
to accept this on this basis for the reasons I discussed above regarding
credibility.
[45]
I
do not find that the Board erred when it reasoned that the state is not placed
above God based on the applicant’s discussion with his friend. The Board was
not suggesting that the applicant was untruthful but that this was not enough
direct evidence to conclude that this was this case. This is within the Board’s
discretion.
[46]
Second,
the applicant submitted that the Board ignored the documentary evidence and
made irrational conclusions of the documentary evidence in relation to whether
members of underground churches were persecuted and whether the registered
churches placed the state above God.
[47]
I
too find it curious that the Board made conclusions based on this reasoning.
The Board stated that “the article refers to “reports” but provides no source information”.
Essentially, the reports should be substantiated with “reports”. In other
words, the Board did not trust the information provided in the reports and was
not convinced it was based on solid evidence. The Board uses this reasoning to
conclude that on a balance of probabilities, the Chinese Patriotic Church does not
place the government and the Communist Party above God.
[48]
These
reports are used commonly as reliable sources of information on country
conditions and specific risks. In fact, this report was part of a package of
documents on China compiled July
30, 2008 for the Immigration and Refugee Board of Canada: the Board’s own
reports. While there is the caveat on the document that it does not offer
conclusions as to the merit of a particular claim, I do not think that that
satisfies the issue here.
[49]
It
was not the case that this only came up in one of the reports. The June 13,
2007 and April 27, 2007 Response to Information Requests (RIRs), the
International Religious Freedom Report 2007, the Country Reports on Human
Rights Practices 2007, and The Congressional-Executive Commission on China,
amongst others, all made claims that suggested that doctrine in registered
churches is controlled by the state and that members are also sometimes
persecuted alongside leaders.
[50]
I
am of the view that the Board was wrong to dispute the claims in regards to the
documentary evidence on this basis.
[51]
Finally,
the applicant made the argument that his principle beliefs are paramount
quoting Zhu above, and Syndicat above. His beliefs, he submits,
are compromised if forced to attend state run churches. In Zhu above, Mr.
Justice Zinn found that the Board’s conclusion that it was reasonable for the applicant
to attend a state-sanctioned church based on the lack of sophistication of her
beliefs was in error. Attending underground churches was a conviction itself in
accordance with the applicant’s beliefs. And Syndicat above, was a case
decided by the Supreme Court of Canada where the subjectivity of religious
convictions was acknowledged and upheld as the substance of our religious
freedoms under the Canadian Charter of Rights and Freedoms. The premise
was essentially that: one need only have a nexus with a belief that had a
religious quality to it. I agree with the statements of Mr. Justice Zinn.
[52]
For
these reasons, I find the Board’s decision to be unreasonable and it therefore
must be set aside and the matter referred to a different panel of the Board for
redetermination.
[53]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[54]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
|
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.
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.
(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.
|
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.
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.
(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.
|
Email this Content