Date: 20100223
Docket: IMM-3279-09
Citation: 2010 FC 205
Ottawa, Ontario, February 23,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
LI
LI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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 negative decision of the Refugee Protection Division of the Immigration
and Refugee Board (Board), dated May 26, 2009 (Decision), which refused the
Applicant’s application to be deemed a Convention refugee or 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 (China). After ending her
relationship with her boyfriend the previous month, the Applicant accepted
Christianity in May, 2005. She began to attend an underground church in June,
2005, and was baptized in March, 2006.
[3]
The
Applicant alleges that her church was raided in January, 2007. The Applicant
fled the church and went to hide in a friend’s house. News came to the
Applicant that four members of her church had been arrested. In January, 2007,
the Public Security Bureau (PSB) went to the Applicant’s house to find her.
[4]
The
Applicant arranged to come to Canada for fear of being arrested. She alleges the PSB has been to
her home on several occasions to try to arrest her since her departure from China.
DECISION UNDER REVIEW
[5]
The
determinative issue in the Applicant’s hearing was credibility. Despite a
finding that the Applicant was indeed Christian, the Board determined that the
Applicant’s account of her membership in an underground church and the pursuit by
PSB agents was not credible.
[6]
The
Board concluded that the Applicant was not being sought by the PSB on account
of her religious activities in China. Furthermore, the Board found that there
was not a serious possibility of persecution should the Applicant return to her
home province of Fujian.
[7]
The
Board acknowledged the Applicant’s “adequate knowledge” of Christianity and
also accepted the letter from the Applicant’s church in Canada confirming
her faith. Thus, it determined that on a balance of probabilities, she is a Christian.
[8]
However,
the Board determined the Applicant lacked credibility for the following reasons:
a. The
Applicant’s lack of concern prior to attending an illegal underground church,
considering the serious consequences of being caught and the church’s need for
a security plan;
b. The fact that
it took several questions before the Applicant admitted that she felt a “bit
nervous” about breaking the law, although she claimed to have never done so
before, and the fact that her parents disapproved of her decision;
c. The
Applicant’s lack of emotion in discussing the alleged recent PSB raid on her
church, as compared to the emotion she displayed when speaking of her break-up with
her boyfriend, which occurred years before.
[9]
Furthermore,
the Board determined that, prior to attending the house church, the Applicant
did not know of the illegality of attending the church, despite her claim to
the contrary.
[10]
The
Board considered documentary evidence and found that the Applicant’s province of
Fujian, along with
the province of Guangdong,
has the “most liberal policy on religion in China, especially
on Christianity.” While the Board noted that there were arrests of Christians
documented in 2005-2008, none of the arrests were noted as having occurred in Fujian province.
[11]
Furthermore,
while there were “house church crackdowns” in 2005, none of these crackdowns
were reported in the documentary evidence as having occurred in the Applicant’s
province; nor did the documentary evidence support a finding of Christians
being arrested in Fujian province in 2006 and 2007. The only mention of arrests
made in Fujian province was
in 2002.
[12]
The
Board determined that, if there had been arrests in Fujian province
after 2002, such arrests would have been documented. According to the Board,
“the situation in Fujian province does not reflect what is happening in
many other provinces where there have been arrests of ordinary Christians.”
[13]
The
Board also considered the Applicant’s house church in the context of the documentary
evidence and found that: a) prayer meetings and Bible study groups are legal
and need not be registered; and b) house churches are more likely to have
problems when membership is growing, where the group arranges for the use of
facilities, or where the church forges links with other groups. There was no
evidence that the Applicant’s group had done any of these things.
[14]
The
Board determined, on a balance of probabilities, that “the house church the
claimant attended was never raided by the authorities and consequently, the
claimant was not wanted by the PSB.” As such, the Applicant could practise her
religion in an unregistered church if she was to return to Fujian province.
ISSUES
[15]
The
issues on the application can be summarized as follows:
1.
Whether
the Board erred in its adverse finding of credibility;
2.
Whether
the Board erred in its assessment of the evidence which resulted in an
unreasonable conclusion with regard to the risk of persecution faced by the
Applicant.
STATUTORY PROVISIONS
[16]
The
following provisions of the Act are applicable in these proceedings:
|
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.
|
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.
|
STANDARD
OF REVIEW
[17]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 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.
[18]
The
determination of credibility is within the expertise of the Board. For this
reason, credibility findings attract a standard of reasonableness on review. See
Aguirre v. Canada (Minister of Citizenship and
Immigration), 2008 FC
571, [2008] F.C.J. No. 732 at paragraph 14.
[19]
The
issue of whether the Board erred in its assessment of the facts and evidence is
a fact-based question. As such, it will attract a standard of reasonableness
upon review. See Dunsmuir at paragraph 51.
[20]
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”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene 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.”
ARGUMENTS
The Applicant
[21]
The
Board determined that, contrary to her claim, the Applicant was unaware of the
illegality of attending the underground church prior to her attendance. The
laws of China make it clear that attendance at an
unregistered church is illegal. Therefore, it was unreasonable for the Board to
determine that the Applicant would believe otherwise. Moreover, the Applicant
explained to the Board why she attended the church despite knowing that
attendance was illegal. First, she placed reliance on her friend’s assurances
that even though the church was unregistered it had not encountered any
problems in the past. Second, precautions were taken to ensure the safety of
those in attendance. As such, the Board’s finding that the Applicant was not
aware that attendance at the church was illegal is not reasonable.
Evidence
[22]
Despite
its fairly detailed review of the documentary evidence, the Board failed to
cite the evidence in the 2007 Annual Report of Persecution by the Government on
Christian House Churches within Mainland China (Report of Persecution) which
determined that “there were also reports of house churches being destroyed in
the provinces of Jilin and Fujian.”
[23]
The
Applicant submits that this evidence is pertinent because it is evidence of
persecution of unregistered Christians in Fujian province. Furthermore,
this Report was from January of 2007, which was exactly when the Applicant
claims the raid on her church occurred. This evidence was directly on point in
considering whether or not the Applicant’s church had been raided. Furthermore,
it directly counters the Board’s finding that the Applicant could practise her
religion in Fujian without
facing a serious possibility of persecution.
[24]
Thus,
it can be concluded that this evidence was either ignored or disregarded by the
Board in making its determination as to the credibility of the Applicant’s
story. See Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425. The Board chose to
rely on portions of the Report to come to the opposite conclusion, but ignored
the evidence directly on point with regard to the persecution of unregistered
Christians in Fujian.
The
Applicant’s Ability to Practise Christianity in China
[25]
After
a review of the documentary evidence, the Board determined that the Applicant
would be able to practise her religion in an unregistered church in Fujian without
facing a serious possibility of persecution. This determination was made without
full consideration of the evidence, such as the destruction of house churches
in Fujian, as stated
in the Report.
[26]
The
Board erred in determining that the Applicant would be able to practise in an
unregistered church upon her return without facing a serious risk of
persecution. This error was compounded by the Board’s additional error in
presuming that all incidents of persecution in China are listed
in the Report, which is contrary to what is stated in the Report itself. The Report
states that it contains likely only a fraction of the incidents of persecution
that have actually occurred in China.
[27]
The
Board also relied on the documentary evidence that prayer and bible study meetings
among friends and family were legal in China and need not
be registered. The Applicant’s group is clearly distinguishable from a prayer
meeting or a bible study, since the church had a pastor that attended on
occasion to administer Holy Communion and perform baptisms. It is difficult to
reconcile the Board’s description of the Applicant’s group as a prayer meeting
or bible study group with the description provided by the Applicant. The
Chinese authorities would most likely consider her group to be an unregistered
church instead of a prayer meeting or bible study group. The Board erred by
failing to consider pertinent aspects of the Applicant’s evidence when
characterizing the Applicant’s group. See Cepeda-Gutierrez.
[28]
The
Board erred further in relying on the U.S. Department of State 2008 Human
Rights Report: China (U.S. Department of State Report) which stated
that unregistered groups are more likely to encounter difficulties when their
membership is large or when they create links with other groups. While the
Board took this evidence to be determinative that the Applicant’s church would
not experience persecution, the evidence did not state that unregistered groups
that do not have such characteristics do not experience persecution. Rather, this
evidence determined that meetings that consisted of more than a few friends and
family were strictly prohibited in some areas.
[29]
Finally,
the Applicant submits that it was unreasonable for the Board to determine that she
could maintain her religious practices and freedom of religion in China simply
because “from time to time the government in question is not enforcing laws
which infringe one’s freedom of religion.” Indeed, it is unreasonable to have
to undertake an illegal act in order to maintain one’s freedom of religion.
The Respondent
Reasonable
Credibility Findings
[30]
Findings
of credibility are at the core of the specialized jurisdiction of the Board. As
such, the Court should be reluctant to set aside the Board’s findings with
regard to credibility. See Solis v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 372. As long as the
inferences drawn by the Board with regard to the Applicant’s credibility are
not unreasonable, its findings are not open to judicial review. See Aguebor
v. Canada (Minister of
Employment and Immigration), 160 N.R 315, [1993] F.C.J. No. 732.
[31]
Negative
decisions with regard to an Applicant’s credibility are properly made where the
tribunal in question provides reasons for its finding of credibility in “clear
and unmistakable terms.” See Hilo v. Canada (Minister of Employment
and Immigration)(1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199.
[32]
In
this case, the Board explained its negative credibility findings in detail,
which stemmed from the Applicant’s lack of concern with regard to breaking the
law. Indeed, the Board noted:
a)
That
it was only after several questions about how she felt that the Applicant
stated that she was a bit nervous about breaking the law;
b)
The
Applicant’s claim that she had never broken the law before;
c)
The
Applicant’s claim that she had disobeyed her parents when they opposed her
attendance at the underground church;
d)
The
Applicant’s initial response that God gave her hope and helped her make the
decision;
e)
The
Applicant’s lack of concern prior to attending the illegal church;
f)
The
serious consequences of being caught in attendance; and
g)
The
fact that the church members believed that a security plan was necessary.
[33]
The
Board also compared the Applicant’s emotional reaction with regard to her 2005
break-up with her boyfriend with her lack of emotion with regard to the more recent
raid on her church and the ensuing chain of events, including: the arrests of
fellow church goers; going into hiding; and an illegal departure from China. The Board
determined that it was implausible that the Applicant would show such strong
emotion with regard to the former instance and display no emotion with regard
to the more recent traumatic chain of events.
[34]
The
Respondent submits that the Board gave a thorough explanation for its negative
finding of credibility in “clear and unmistakeable terms.” Furthermore, its
findings are supported by the evidence before it and are within the range of
possible and acceptable outcomes, as required by Dunsmuir.
Properly
Assessed Evidence
[35]
The
Board undertook a proper examination of the Applicant’s evidence by assessing
it against the country condition documentation. The Board did not ignore any of
the evidence before it. Rather, it referred to several country condition
reports in determining whether there was a serious possibility of the Applicant’s
facing persecution upon her returning to China and continuing to practise
Christianity in an unregistered church.
[36]
For
example, the Board noted that Fujian (the Applicant’s province) and Guangdong
have the most liberal policy in China with regard to
religion, and especially Christianity. It also noted that among the arrests documented
in 2005-2008, none had taken place in Fujian province. Similarly,
the Board noted that in 2007, 788 Christians had been persecuted in China, and 693 had
been arrested and detained, among whom 415 of these individuals were church
leaders.
[37]
In
examining the documentary evidence before the Board, the only mention of the
arrest of Christians in Fujian province was in 2002, in which 20
unregistered Catholics were arrested for attending Catechism class.
[38]
The
Applicant has argued that the Board ignored evidence because it did not cite
the documentary evidence that house churches in Jilin and Fujian were
destroyed. The Applicant is essentially arguing that the Board should have
given more weight to this portion of the country conditions. However, it is the
Board’s prerogative to rely on some evidence over other pieces of evidence where
the evidence is conflicting. It is not the Court’s role to intervene and
reweigh the documentary evidence that was before the Board. See Legault v.
Canada (Minister of Citizenship and Immigration), 2002 FCA 125, 288 N.R.
174.
[39]
Furthermore,
it must be noted that the Applicant alleged that members of her church had been
arrested and that the PSB continues its attempts to arrest her. She has not
alleged that her church has been destroyed as per the documentary evidence.
None of the evidence before the Board supported the Applicant’s claim of
arrests of Christians occurring in the Fujian province
between 2005 and 2008.
[40]
Finally,
the Board also considered that prayer meetings and bible study groups between
friends and families need not be registered. The Board noted the
characteristics of the house churches that are more likely to have problems.
There was no evidence before the Board that the Applicant’s house church had
any of these characteristics, as her group remained small and mainly focused on
bible discussions and prayer. The Board’s characterization of the Applicant’s
group was reasonable.
[41]
The
Applicant has argued that, despite its size and common practices, her unregistered
church is nonetheless open to punishment. This alone is not enough to prove
that there is a more than a mere possibility of persecution. The Applicant’s
arguments are based on mere speculation and do not show a prospective risk of
persecution.
[42]
The
Applicant relies on a portion of the documentation package which states that
“meetings of more than a handful of family members and friends were strictly
proscribed.” However, the beginning of this paragraph says that the handling of
unregistered groups varies in different regions of the country, and that in
some regions “unregistered groups or house churches with hundreds of members
met openly.” This passage must be viewed in the context of the other
documentary evidence which states that the Applicant’s province has the most
liberal policy in China with regard to Christians.
[43]
The
Board’s assessment of documentary evidence was fair and balanced. It considered
all relevant documentary evidence having regard to the Applicant’s profile as a
Christian who practised in a small unregistered church in Fujian province.
ANALYSIS
The Country Documentation
[44]
The
Applicant says that the Board does a detailed analysis of Christian repression
in China but fails to
refer to evidence of arrests and repression of churches in Fujian province.
[45]
The
Information Request relied upon by the Board for authority that there were no
arrests in Fujan in 2005, 2006, 2007 and 2008 actually mentions that in 2003, a
group of seminarians in Changhe, near Fuzhan (which is in Fujian) were arrested
and that in 2005 Father Lin Daixian, along with nine parishioners and one
seminarian, were arrested when Father Lin Daixian conducted mass in a private
home.
[46]
As
a result, the Board’s statement concerning arrests in Fujian is not
entirely accurate. However, I cannot say that these mistakes are particularly
material to the Applicant’s experiences in 2007 or that they materially qualify
the general statements in the Information Request that Fujian, together with Guangdong, has “the
most liberal policy in China, especially on Christianity.”
[47]
The
Board uses the documentary evidence to assess the plausibility of the
Applicant’s assertion that her church was raided and four members were arrested
in January, 2007. I am not convinced that the arrest of a group of seminarians
in 2003, or the experience of Father Lin Daixian in 2005, materially undermines
the Board’s assessment of whether the Applicant’s account of what happened at
her church in 2007 was believable.
[48]
There
was also evidence before the Board in a 2007 U.S. Department of State Report
that the government closed churches in Fujian, but we do
not know whether such churches correspond to the kind of house church that the
Applicant claimed she belonged to. The same report makes it clear that there is
a significant difference in the way that house churches are treated depending
upon a variety of factors:
In some areas unregistered house churches
with hundreds of members met openly with the knowledge of local authorities. In
other areas house church meetings of more than a handful of family members and
friends were proscribed. House churches could encounter greater difficulties
when their membership grew, when they arranged for the regular use of
facilities for the specific purpose of conducting religious activities, or when
they forged links with other unregistered groups or with coreligionists overseas.
This information is given in a paragraph
dealing with Zhejiang, Jilin, and Fujian Provinces, so that it is
difficult to see what the situation in Fujian is, or whether this information
changes the general picture of tolerance that is used to describe Fujian elsewhere
and upon which the Board relies. So, once again, I cannot say that the
information that the government closed churches in Fujian necessarily
contradicts the Board’s general conclusions or required specific mention.
[49]
The
same can be said of the June 2007 Report of Persecution … on Christian House
Churches, which says that “there were also reports of house churches being
destroyed in the provinces of Jilin and Fujian.” As other
documentation makes clear, much depends on the kind of house church involved
and the activities that take place. It is not possible for me to say that the Board
overlooked information that contradicted its conclusions or that this
particular evidence required specific mention in accordance with the principles
set out in Cepeda-Gutierrez.
[50]
The
same can be said for the Board’s analysis of the size and kind of house church
involved. It is possible to point to references in the documentation which
suggests that even legal house churches and small groups can be raided. However,
it is not clear of the extent to which the information on this issue contained
in the U.S. Department of State International Religious Freedom Report of 2007
applies to the Applicant’s situation in Fujian province, or the extent to which
it contradicts the Board’s general conclusions and should have been
specifically addressed in assessing the plausibility of the Applicant’s
account.
[51]
The
Board’s analysis of what risks the Applicant faces if she returns to Fujian and
practises her religion is based upon the same body of evidence referred to
above. Once again, bearing in mind the kind of church that the Applicant
belonged to, I cannot say that the Board’s analysis of this issue was
unreasonably flawed.
[52]
As
regards the Board’s analysis of the Applicant’s subjective fears, I can see
that there is room for disagreement over the significance of the details relied
upon and the general conclusion that “the activity that the claimant was about
to begin, attending a house church, was not an act which she and the people she
associated with knew to be illegal. However, I cannot say that such a
conclusion falls outside the range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
Conclusions
[53]
The
Applicant raises various points of concern about the way the Board dealt with
the evidence in arriving at his negative credibility finding. I have examined
each point in turn.
[54]
While
it is possible to say that the Board could have taken more note of particular
factors, I do not think it is possible to say that the Board overlooked
evidence that directly contradicted its conclusions so as to render the
Decision unreasonable within the principles enunciated in Cepeda-Guitterez.
[55]
The
points raised by the Applicant go to emphasis and interpretation of evidence
given by the Applicant and the relevant country documentation. In the end, it
all comes down to matters of weight for the Board and not for this Court. See Legault.
Reviewed as a whole, the Decision falls within the range of possible acceptable
outcomes which are defensible in respect of the facts and the law which, in
accordance with Dunsmuir, is all that is required.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is dismissed;
2.
There
is no question for certification.
“James
Russell”
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