Date: 20100201
Docket: IMM-641-09
Citation: 2010 FC 108
Ottawa, Ontario, February 1, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
CHAO HUI LIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review,
pursuant to s. 72 of the Immigration and Refugee Protection Act, R.S.C.
2001, c. 27, of a decision by the Refugee Protection Division of the
Immigration and Refugee Board. The Board determined that Chao Hui Lin was
neither a Convention refugee nor a person in need of protection within the
meaning of the Act. The determinative issue was the objective basis for the
applicant’s fear of persecution.
[2]
Notwithstanding his counsel’s able submission, I
am of the view that the Board committed no reviewable error, and based on the
record before it that its decision was reasonable.
BACKGROUND
[3]
Chao Hui Lin is a
citizen of the People’s Republic of China. At the relevant time for this application, Mr. Lin resided in the
Fujian Province of China, but his job as a sailor took him
overseas.
[4]
Mr. Lin states that he joined an underground
Christian house church on December 18, 2005. He attended this church regularly
until early February 2006 when he left to join his ship. The church was
composed of Mr. Lin and nine other members. Though services were held every
Sunday, they would only be led by a pastor a few times per year.
[5]
On February 16, 2006, Mr. Lin left China on a ship that landed in Canada on April 22, 2006. Mr. Lin states
that he phoned his family in China on April 26, 2006, and that they informed him that his church had
been raided by the Public Security Bureau (PSB) and that the PSB was looking to
arrest him. Mr. Lin left his ship and made a sur place refugee claim on
May 4, 2006.
[6]
On December 9, 2008, the Board rejected Mr.
Lin’s refugee claim.
[7]
The Board accepted that the applicant was a
Christian, and that he attended an underground Christian church. Nonetheless,
the Board concluded that the applicant was neither a Convention refugee nor a
person in need of protection. The determinative issue was whether the
applicant’s claim was objectively well-founded.
[8]
The Board began by noting a discrepancy between
the applicant’s screening interview and his personal information form regarding
the date that his church was raided by the PSB. The Board rejected the
applicant’s explanation that this discrepancy resulted from an interpretation
error, and drew a negative credibility inference as a result.
[9]
The Board made a second negative credibility
inference on the grounds that if the applicant was truly sought by the PSB, it
was implausible that the PSB would not have contacted the applicant’s ship and
had him held on board until the ship returned to China.
[10]
The Board also found his evidence that there was
a raid by the PSB on his underground Christian church not to be credible. The
Board reasoned that given the well documented reports of religious persecution
in other provinces in China, it was unreasonable for the applicant to not have
produced documentary evidence demonstrating religious persecution in his home
province, Fujian Province.
[11]
The Board further held that the documentary
evidence suggested certain characteristics of illegal house churches increased
their chance of being raided by the PSB, and that the applicant’s house church
lacked these characteristics. The Board also noted the lack of documentary
evidence corroborating the applicant’s allegation that his house church had
been raided.
[12]
The Board stated that the applicant’s “claim has
not been made in good faith”. The Board determined, based:
on a balance of probabilities and based on the totality of the
evidence and country documentation, that the claimant has failed to satisfy the
burden of establishing a serious possibility that he would be subjected
personally to a risk to his life or to a risk of cruel and unusual treatment or
punishment or to a danger of torture by any authority in the People’s Republic
of China.
[13]
Consequently, the Board concluded that the
applicant was neither a Convention refugee nor a person in need of protection,
and rejected his claim.
ISSUES
[14]
The applicant raises a number of issues with
respect to the Board’s decision, which I would describe as follows:
1.
Whether the Board erred in failing
to consider what would happen to the applicant if he were to return to China;
2.
Whether the Board failed to
address the applicant’s evidence of the raid on his church;
3.
Whether the Board erred in its analysis of the
documentary evidence; and
4.
Whether the Board breached the applicant’s right
to procedural fairness in failing to alert him on the screening form that an
issue before it was the consistency between his allegations and the documentary
evidence.
ANALYSIS
Whether the Board erred in
failing to consider what would happen to the applicant
if he were to return to China.
[15]
The applicant submits that “even where the panel
finds that the applicant was not a member of a house church (not the case here)
it is still necessary for the panel to consider what would happen to the
applicant if he were to return to China at this time.” The applicant relies on
Huang v. Canada (Minister of Citizenship and Immigration), 2008 FC 132
and Li v. Canada (Minister of Citizenship and Immigration), 2008 FC 266 which followed it.
[16]
In Huang, Justice O’Reilly observed that
regardless of the Board’s finding as to an applicant’s membership in an
underground church, where there was no definitive finding that the applicant
was not a Christian, it had a duty to consider whether the applicant would face
religious persecution if returned to China
[17]
The applicant here submits that given the Board’s
finding that he was a member of an underground church and a Christian, the Board
had a duty to examine and determine whether he would be persecuted from practicing
his religion if returned. He relies on my decision in Zhu v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1066 at para. 13. It is
submitted that no such analysis was undertaken by the Board.
[18]
The Minister submits that the Board did examine
the applicant’s potential persecution in China, based on the finding that he is a Christian. The Board refers to and
quotes the following passage from an information request in the documentary
disclosure:
… the Executive
Secretary of the Hong Kong Christian Council commented that Fujian and
Guangdong have "the most liberal policy on religion in China, especially
on Christianity" (Executive Secretary 1 Sept. 2005a). In his travels, the
Executive Secretary has met with local authorities who, he said, usually
tolerate activities of unregistered Christian groups (ibid.). While
authorities are of a more tolerant nature in rural areas than in urban centres,
they would usually take steps to discourage religious activity if it had a link
to groups from outside China (ibid.). The Executive Secretary stated that he is
aware of a number of unregistered churches that have been allowed to function
for years (ibid.). Though he has received a few reports
of arrests of Catholic priests in the years 2003 to 2005, the Executive Secretary
noted that overall, Christians in Fujian and Guangdong "enjoy one of the
most liberal polic[ies] on religious freedom in China" (ibid.).
[19]
In addition, the Board made the following
specific findings related to the applicant practising his faith in Fujian:
1.
His underground church had not been raided by
the PSB;
2.
The only mention in the documentary evidence of arrests
of Christians in Fujian was in
2002, when 20 Christians were arrested; and
3.
The applicant’s church was small, consisting of
nine members, with no regular participation of a pastor and thus had none of
the characteristics found in churches targeted by the state.
[20]
It is fair to say that there is no specific
statement or finding in the decision by the Board that the applicant would be
able to practice his religion in Fujian, as he had when he left. However, it is not fair to say that the
Board failed to consider the evidence in this regard. While the preferred
course would be for the Board to specifically state that it finds that the
applicant would suffer no persecution in practising his faith if he returns,
the above statements from the decision coupled with its conclusion of lack of
persecution are sufficient to establish that the Board did turn its mind to the
issue, unlike in Huang, Li and Zhu.
Whether the Board failed to address the applicant’s
evidence of the raid on his church.
[21]
The only evidence before the Board of a raid on
the applicant’s church was his statement to that effect in his PIF and at the
hearing.
[22]
The Board examined the documentary evidence,
including the statements reproduced above that indicated that churches in Fujian of the sort the applicant attended
were generally left alone, and found, “on a balance of probabilities, that if
there were arrests in Fujian
Province there would be some documentation of these arrests.” It further found
that the underground Christian church was not raided by the PSB, as there was
no documentary evidence to indicate it.
[23]
“[W]hen an applicant swears to the truth of
certain allegations, this creates a presumption that those allegations are true
unless there be reason to doubt their truthfulness”: Maldonado v. Canada (Minister of Employment and
Immigration), [1980] 2 F.C. 302 at 305 (C.A.). “The ‘presumption’ that a
claimant's sworn testimony is true is always rebuttable, and, in appropriate
circumstances, may be rebutted by the failure of the documentary evidence
to mention what one would normally expect it to mention” [emphasis added]: Adu
v. Canada
(Minister of Employment and Immigration), [1995]
F.C.J. No. 114 (F.C.A.) (QL) at para. 1. The presumption of truthfulness may
also be rebutted by other negative credibility findings. If the Board has
valid reasons to doubt the truthfulness of a claimant’s allegations it is
“under a duty to give its reasons for casting doubt upon the appellant's
credibility in clear and unmistakable terms”: Hilo v. Canada (Minister of Employment and
Immigration) (1991), 15 Imm. L.R. (2d) 199 at 201 (F.C.A.).
[24]
It is submitted that the Board’s logic regarding
a lack of documentary evidence is faulty. It is argued that the limited
documentary record of religious persecution in Fujian Province does not mean
that religious persecution does not occur in that province, particularly in
light of the country conditions as a whole. However, even if I were to accept
that submission, the lack of documentation was not the sole reason on which the
Board rested its conclusion.
[25]
Contrary to the applicant’s submission, the Board did explain
clearly why it doubted the applicant’s testimony. The Board
made two negative credibility findings, supported by reasons, which have gone
unchallenged by the applicant. The Board also relied on a documentary record
which suggested that the applicant’s house church did not display the
characteristics that would increase the likelihood that it would be raided by
the PSB. When the decision is read as a whole, the Board’s conclusion rejecting
the applicant’s evidence is justified, transparent, and intelligible. The
decision cannot be set aside on this basis.
Whether the Board erred in its analysis of the documentary evidence.
[26]
It is submitted that the Board made two errors
with respect to the evidence before it. First, the Board stated that there was
no evidence to indicate that the applicant’s church was raided. The applicant
points to page 58 of the Certified Tribunal Record and the documentary evidence
wherein it is stated that “the Government closed churches in Zhejiang, Jilin, and Fujian Provinces
during the reporting period” as evidence that is directly contrary to the
Board’s assessment. However, that single sentence must be read in the context
of the entire paragraph, and in particular, the preceding sentence which
reads: “Police sometimes closed unregistered places of worship, including
Catholic churches and Protestant house churches with significant memberships,
properties, financial resources, and networks.” It is evident to me that the
reference to church closures in Fujian Province refers to churches of that sort of description and
establishment. As noted by the Board, the applicant’s nine member house church
has none of the listed criteria.
[27]
Second, the Board stated that there was no
evidence of arrests of Christians in Fujian Province. The applicant points to the
report at page 652 of the Certified Tribunal Record which reports on the arrest
of one Christian of Fuzhou District, Fujian, on the eve of the Olympics in July
2008.
[28]
Clearly the Board erred; however, the Court must
ask whether this error is of such a magnitude that its decision might have been
different if it had not been made. I am of the view that the Board’s
determination on the merits would have remained unchanged. The evidence is of one
arrest of the entire population of Fujian Province. Further it appears to have been an arrest related to a
crack-down preceding the Olympics. It is, at best, de minimus evidence
and, in my assessment, more would have been required to show that the decision
would have differed had the error not been made.
[29]
During the applicant’s Reply submission, counsel
also pointed to a Jail Visiting Card at page 649 of the Certified Tribunal
Record. The card permits the family of Jun Lin to visit him in Bai Sha Prison
of Fu Zhou City, Fujian. The document states that he was arrested for “illegal
Christian religious activities” and imprisoned for 3.5 years. The original of
the document was not filed with the Board and the Board makes no reference to
it. I can only conclude that that the Board rejected this as evidence as it
failed to comply with the Board’s procedures. It was given no weight by the
Board and cannot be given any by this Court.
Whether the Board
breached the applicant’s right to procedural fairness in failing to alert him
on the screening form that an issue before it was the consistency between his
allegations and the documentary evidence.
[30]
The applicant was provided before the hearing
with a screening form that contains the heading ‘Issues’, under which are a
number of main issues listed, and also under each of those, subordinate
issues. The main issue box bedside the word ‘Credibility’ was checked. Under
the credibility heading are three other boxes; none were checked. One of those
boxes reads: “Consistency between the Allegations and the Documentary Evidence”
and the applicant submits that since the Board rested so much of its decision
on such inconsistencies, he was denied procedural fairness as he was not
alerted that this was an issue prior to hearing.
[31]
I reject this submission entirely. I accept the
submission of the respondent that when, on this form, a main box is checked,
such as Credibility, but none of the subordinate boxes under that heading are
checked, it puts the applicant on notice that all of the issues in the
unchecked subordinate boxes are at issue. It is only when some of the subordinate
boxes are checked and some not that the applicant is alerted that those unchecked
under the heading are not at issue.
[32]
For the foregoing reasons I dismiss this
application for judicial review. No question was proposed to be certified by
either party.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is dismissed; and
2.
No
question is certified.
“Russel
W. Zinn”
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