Date: 20100305
Docket: IMM-3627-09
Citation: 2010 FC 258
Ottawa, Ontario, March 05, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
YU
JING CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada, dated June
30, 2009, wherein it was determined that the applicant was not a Convention
refugee and not a person in need of protection. These are my reasons for
determining that the application must be allowed and the matter reconsidered by
a differently constituted panel.
Background
[2]
Yu
Jing Chen, the applicant, a Chinese citizen and a permanent resident of Ecuador, entered Canada on a student
visa on June 27, 2007.
[3]
The
applicant’s family left China in January 2004 and moved to Ecuador to begin a
new life. The applicant’s parents owned a restaurant in Guayaquil.
[4]
Turning
to the Christian faith to help her mourn the death of her younger brother in
2005, the applicant became a practising Christian and attended church regularly
in Ecuador.
[5]
Working
at her parents’ restaurant after school hours, a lieutenant of the Guayaquil
Police named Miguel Junio showed up regularly to harass the applicant and
allegedly attempted to sexually assault her on her birthday on March 7, 2007.
Rejected by the applicant, the lieutenant continued to harass the applicant and
her family at the restaurant and sent other officers to make trouble in the
restaurant.
[6]
The
applicant claimed refugee status in Canada in October 2007
alleging that she feared the Ecuadorian police officer who attempted to
sexually assault her. The applicant also claimed that she could not return to
her country of citizenship, China, because the Chinese Communist Party has
forbidden any true Christian worship.
[7]
The
applicant’s claim for refugee status against China was partly
based on her past alleged attendance of services at patriotic
(registered/state) churches in China.
[8]
At
the time of her claim, the applicant stated that the Ecuadorian police officer
continued to pose a threat to her family at the restaurant in Guayaquil and that the
officer said that he would kill the applicant if he was to find her.
[9]
Since
her arrival in Canada, the applicant attends church services at the Toronto Chinese Alliance Church.
Decision Under Review
[10]
The
panel member found that the determinative issue in regard to the applicant’s
claim was the credibility of the claimant’s oral testimony and Personal
Information Form (PIF) narrative concerning her assertion that she is unable to
practice her Christian faith in China. According to the
applicant, as has been asserted in a number of similar cases, the patriotic
church services in China acknowledge the Communist Party before God at
the beginning of a service, and this is “not Christian”.
[11]
The
panel found, on a balance of probabilities, that the applicant was not a credible
witness regarding her claimed attendance at a patriotic church in China. It was
found that the applicant’s story of attending patriotic church services was an
invention to support her claim for refugee protection.
[12]
Based
on the totality of the evidence available to the panel, including documentary
evidence, it was found on the balance of probabilities that the applicant can
practice Christianity in a registered/patriotic church in China without any
doctrinal constraint on the practice of a genuine Christian.
[13]
The
panel further rejected the applicant’s assertion that she would not practice
her religion in patriotic or registered churches in accordance with the basic
foundational doctrines of the faith embraced throughout the world.
[14]
Having
found that the applicant has invented her experience of attending churches in
China and waited more than five months after her arrival in Toronto before
joining a church, the panel was of the view that, on the balance of
probabilities, this was not a “good faith” claim.
[15]
On
the basis of the cumulative findings and negative inferences, the panel found
that the applicant had not satisfied her burden of establishing a serious
possibility that she would be persecuted or that she would be personally
subjected to a risk to her life or a risk of cruel and unusual treatment or
punishment or a risk of torture by any authority in the People’s Republic of
China.
Issues
[16]
The
sole issue is whether the panel erred in deciding that the applicant was not a
Convention refugee or a person in need of protection due to negative
credibility findings.
Analysis
[17]
Since
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, it
has been held that a panel’s decision concerning questions of fact and
credibility are reviewable upon the standard of reasonableness: Sukhu v.
Canada (Minister of Citizenship and Immigration), 2008 FC 427, [2008]
F.C.J. No. 515; see also Navarro v. Canada (Minister of Citizenship and
Immigration), 2008 FC 358, [2008] F.C.J. No. 463, at paras. 11-15.
[18]
The
panel’s credibility analysis is central to its role as a trier of fact. As
such, these findings are to be given significant deference by the reviewing
Court. The panel’s credibility findings should stand unless its reasoning
process was flawed and the resulting decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law: Dunsmuir, above, at para. 47.
[19]
In
this case, as in others where a similar claim has been advanced, the approach
taken by the panel with respect to religious freedom and persecution for
religious reasons is fundamentally flawed. Having accepted the applicant’s
evidence that she was a Christian, the panel focused excessively on its negative
credibility findings and provided no analysis addressing whether the
applicant’s religion would put her at risk if she were returned to China: Zhu v. Canada (Minister
of Citizenship and Immigration), 2008 FC 1066, [2008] F.C.J. No.
1341, at paras. 12-13.
[20]
As
in Zhu, above, at paragraph 14, the panel
erred as it did not elaborate on the applicant’s expression of a personal
conviction that she could not practise her faith in a state church as opposed
to an underground church.
[21]
The
panel noted that the documentary evidence regarding doctrinal constraints in China is vague and
without precision. With this vague and imprecise documentation, the panel then
proceeded to conclude that the country documentary evidence is persuasive that
the applicant can practice Christianity in a registered church without any
doctrinal constraint.
[22]
As
Justice de Montigny found in Zhou v. Canada (Minister of Citizenship and
Immigration), 2009 FC 1210, [2009] F.C.J. No. 1502, the panel’s conclusion
that the applicant could practice her religion in a registered church in China is
problematic. Justice de Montigny discussed this concern at paragraph 21 of his
reasons in Zhou:
21 More
problematic is the finding that the applicant would not be prevented from
practicing his religion at a registered church. This finding is peculiar
since the panel noted in its reasons that the applicant would not want to
practise at the state church because it is against his religious beliefs.
It is not entirely clear what to make of this finding. Is the RPD's statement
meant to imply that the applicant can attend the state church because there is
no doctrinal distinction between it and the underground church? Or does it
reflect a view that the applicant should practice his religion at state
sponsored churches despite his beliefs that these official churches do not
accurately reflect the Christian teachings? In either instance, the RPD's
finding is seriously flawed. [My Emphasis]
[23]
The
panel determined that the applicant could practice Christianity in a registered
church in China. As was
found in Zhu and Zhou, above, it is not for the panel to
determine how and where the applicant should practice her faith.
[24]
As the Supreme Court said in Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] S.C.J. No. 46 (at para. 39), "In essence,
religion is about freely and deeply held personal convictions or beliefs
connected to an individual's spiritual faith and integrally linked to one's
self-definition and spiritual fulfillment, the practices of which allow
individuals to foster a connection with the divine or with the subject or object
of that spiritual faith": Zhou, above, at para. 27.
[25]
By
excessively focusing on the applicant’s credibility and by providing no
analysis on whether the applicant’s religion would put her at risk if she were
returned to China, the panel
did not evaluate the important question of religious freedom and did not take
into account the public dimension of this fundamental right. If the applicant
is to hide and take precautions not to be seen when practising her religion at
an underground church, if she is returned to China (having
rejected registered churches), it is difficult to see how the panel justified
its finding that Ms. Chen would be free from persecution.
[26]
While
the panel turned its mind to a comparison of different versions of translated
bibles used by the registered and underground churches, it did not address the
broader consideration of religious freedom. I note that this Court said in Fosu
v. Canada (Minister of
Employment and Immigration), (1994), 90 F.T.R. 182, [1994] F.C.J. No. 1813,
at para. 5:
5 It appeared from a careful analysis of the
evidence and the decision in the case at bar that this Court should intervene.
I feel that the Refugee Division unduly limited the concept of religious
practice, confining it to "praying to God or studying the Bible".
The fact is that the right to freedom of religion also includes the freedom to
demonstrate one's religion or belief in public or in private by teaching,
practice, worship and the performance of rites. As a corollary to this
statement, it seems that persecution of the practice of religion can take
various forms, such as a prohibition on worshipping in public or private,
giving or receiving religious instruction or, the implementation of serious
discriminatory policies against persons on account of the practice of their
religion. In the case at bar I feel that the prohibition made against
Jehovah's Witnesses
meeting to practise their religion could amount to persecution.
That is precisely what the Refugee Division had to analyze. [My Emphasis]
[27]
Recognizing
that the panel had the benefit of hearing the applicant’s evidence directly and
that there are questions regarding the applicant’s credibility in this case, I
find that the panel’s reasoning process was flawed and the resulting decision
fell outside the range of possible, acceptable outcomes which are defensible in
respect of the facts and the law: Dunsmuir, above, at para. 47.
[28]
I
also find that the process adopted by the panel and its outcome does not fit
comfortably with the principles of justification, transparency and
intelligibility. Accordingly, it is open to this Court to intervene: Canada (Citizenship
and Immigration) v. Khosa, [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12, at
para. 59.
[29]
No
questions were proposed for certification.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application
for judicial review is granted and the matter is returned to the Board for
redetermination by a differently constituted panel. There are no questions to
certify.
“Richard
G. Mosley”
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