Date: 20100211
Docket: IMM-1441-09
Citation: 2010 FC 135
Ottawa, Ontario, February 11,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
XIAO
HONG LIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Ms. Xiao Hong Liu sought refugee protection in Canada on grounds of religious persecution
in China. She claims that she
was a member of an underground Christian church and fled after the church was
raided by the Public Security Bureau (PSB). A panel of the Immigration and
Refugee Board disbelieved her account of events and rejected her claim. Ms. Liu
argues that the Board’s analysis of her evidence was faulty and its conclusion
unreasonable. She asks me to order another hearing before a different panel of
the Board.
[2]
I agree with Ms. Liu that the Board’s conclusion
was unreasonable. I will, therefore, grant this application for judicial
review.
II.
Analysis
- The Board’s
decision
[3]
The Board found numerous areas of Ms. Liu’s
testimony that were problematic. First, Ms. Liu had stated that it was not
until her second conversation with a new recruit that she explained that it was
important to keep the unregistered church secret.
[4]
Second, the Board found Ms. Liu’s description of
her escape from the PSB raid on the church “too fortuitous to be true”. Ms. Liu
had said that she left by way of a back door, found her way through the woods,
then hailed a taxi and went to her aunt’s home.
[5]
Third, the Board noted that the PSB often leaves
a summons with the family of a person being sought. The Board felt that if the
PSB was looking for Ms. Liu it would have left a summons with her husband. Yet,
it did not.
[6]
Fourth, Ms. Liu testified that she understood
that state-sanctioned Christian churches were controlled by the Chinese
government. Accordingly, while she could not specifically identify the
differences between the registered and the unregistered churches, she preferred
to attend the latter. However, the Board concluded that government control of
registered churches is limited and that doctrinal differences are few.
Therefore, there is no reason why she could not practice her faith in a state-sanctioned
church.
[7]
Fifth, the Board reviewed the documentary
evidence and found that authorities in Fujian province were among the most
liberal in China. Therefore,
the chances of Ms. Liu’s church coming to the attention of the PSB were
relatively slight.
- Was the Board’s
decision unreasonable?
[8]
I am satisfied that some of the Board’s findings
were unsupported. In my view, these findings rendered the Board’s conclusion
unreasonable.
[9]
For example, it is not clear from the Board’s
reasons why it found Ms. Liu’s description of her escape from the PSB raid “too
fortuitous to be true”. Her testimony was not outlandish or inherently
implausible.
[10]
In addition, while the Board was entitled to
note that the PSB sometimes leaves a summons with a suspect’s family, the fact
that no summons was left with Ms. Liu’s family does not support a conclusion
that she was not being sought. The evidence before the Board was that the PSB’s
practices were uneven.
[11]
Ms. Liu’s understanding that state-sanctioned
Christian churches were controlled by the Chinese government, including in Fujian province, was supported by the
documentary evidence. She testified that these churches place the state’s
interests ahead of God, which she found objectionable and contrary to the Ten
Commandments. On its face, the notion that the state has a role in shaping
church doctrine suggests a lack of religious freedom. Ms. Liu clearly found the
concept of a state-supervised church repugnant. The Board’s finding that she
could practice her religion freely by attending one seems incongruous.
[12]
In terms of the likelihood of persecution in Fujian province specifically, the Board
correctly noted that the attitude toward Christianity there appears to be more
tolerant than elsewhere in China. Further, small groups of people praying and studying the Bible
were rarely targeted. Still, the documentary evidence cited by the Board also
referred to the fact that:
• unregistered
churches are illegal;
• prayer meetings are usually allowed but, in some areas,
house churches with only a few members are proscribed;
• officials sometimes harass unregistered religious groups;
• while there were no reports of actual arrests or
prosecutions of Christians in Fujian province in 2007, those who are persecuted often fail to report
their mistreatment.
[13]
In light of the equivocal nature of the
documentary evidence, it was important that the Board refer to and weigh both
the evidence supporting Ms. Liu’s claim and that which contradicted it. Looking
at the Board’s findings as a whole, I must conclude that its decision was
unreasonable.
III.
Conclusion and Disposition
[14]
In
my view, given its various findings, the Board’s decision falls outside the
range of acceptable outcomes that are defensible both in fact and law. I must,
therefore, allow this application for judicial review and order a new hearing
before a different panel of the Board. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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