Date: 20100225
Docket: IMM-1819-09
Citation: 2010 FC 222
Ottawa, Ontario, February 25,
2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
DONG JIANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and the
Tribunal’s findings
[1]
Dong
Jiang is a citizen of China from Fujian. He
challenges the March 13, 2009 decision of a member of the Refugee
Protection Division (the tribunal) rejecting his claim to be a Convention
Refugee and to be a person in need of protection.
[2]
His
claim has two foundations:
1) A
sur place claim on the basis he became a Christian in Canada after
arriving here on November 10, 2007. He asserts, if he were to return to
China, he would practice Christianity by attending an underground Protestant Church. He attends
Sunday worship and a Saturday evening Bible class at a Pentecostal Church.
2)
His second claim relates to political opinion based on his refusal to pay
extortion money to officials from the Industry and Commerce Bureau (ICB) after
he at the age of 18 and a friend/partner opened a hardware store in June
2006. The ICB officials, it is alleged, came to the store in April 2007
asking for a payment of a quality inspection fee otherwise the store would be shut
down. The payment was made. In mid May 2007, the ICB officials returned
with a demand for more money; it was refused the next day. On May 30, 2007,
the ICB officials returned. Mr. Jiang was absent but his partner was seriously
beaten. Mr. Jiang reported the incident to the Public Security Bureau (PSB) to
be told nothing could be done because it was a ICB matter. In June 2007,
the ICB again came to the store. Neither partner was there but an employee Mr.
Wang was. The ICB accused the partners of having a fake business licence. They
searched the store and the warehouse and found what they said were bad quality
products. The officials called the police to have the partners arrested. The
partners went in hiding; Mr. Jiang fled to Canada.
[3]
The
applicant’s credibility was a major factor in the tribunal’s determination in
respect of both claims, but especially, the political opinion claim. As will be
seen, in respect of the sur place claim, the tribunal’s finding rested mostly
on its analysis on the documentary evidence but also on his credibility connected
to his lack of his knowledge of the Christian faith.
[4]
Counsel
for the applicant raises three issues in this judicial review application:
1)
A
misconception of the notion of religious persecution.
2)
Unreasonable
findings of fact related to credibility based either on a misstatement of the
evidence or made in a perverse or capricious manner.
3)
Bias
on the part of the tribunal.
The tribunal’s decision
(1) The sur place claim
(a) The documentary evidence
[5]
The
tribunal ruled if the applicant “returns to Fujian, where he
hails from, he will not face a serious possibility of persecution” finding:
[15] […] The documentary evidence
indicates that the treatment of Protestants by the Chinese government varies
from one region of China to another. It also varies
between urban and rural areas. As stated in section 12.9 of the National Documentary
Package, enforcement of religious regulations are stricter in urban areas,
such as in Beijing and Shanghai, while in the rural areas and in the south of
China, such as in Fujian, there is less scrutiny and interference in unofficial
church activity. [Emphasis mine.]
[6]
Adding
that:
[16] The provinces of Fujian and Guangdong have the most
liberal policies toward religion in all of China, especially concerning Christianity.
Local authorities usually tolerate activities of unregistered Christian groups.
There are a number of unregistered churches, along with Bible schools,
fellowships and even missionaries that have been allowed to operate in the Fujian for years.
[17] There are some reports of
religious persecution of house church leaders, but nothing against ordinary
members. Although house church members may at times be arrested, they
are released shortly after interrogation.
[18] Of the arrests in other
regions of China, the documentary evidence
reveals that all were leaders, teachers, and pastors. Most of these
arrests occurred in Hubei, Henan, Xingjian, and Jilin. Fujian is not mentioned as a place where
Protestants are arrested for attending house churches. [Emphasis mine.]
[7]
The
tribunal indicated it had examined the applicant’s documentary evidence to see
if it contained evidence that conflicted with the evidence found in the
National Documentary Package concluding “no document that indicates that
regular members of a house church have ever been arrested or detained in the
Fujian” and it found no document which stated “that Christian Ministers had
ever been arrested, convicted or tortured in Fujian”, emphasizing:
[20] This is significant. All of
the claimant’s documents come from Christian sources which track the repression
of Christians in China. These sources point out incidents of
Christians being arrested, incarcerated, sent to re-education through labour
camps and tortured by the Chinese authorities for practicing unauthorized forms
of Christianity. Claimant’s documentary evidence comes from such sources
as The Center for Religious Freedom, The Voice of the Martyrs Canada, persecution.net/news/china83,
ReligionNewsBlog.com, Friends of Falun Gong USA, Christianity today and ChristiansUnite.com.
[21] The claimant’s documentary
evidence corroborates the documentary evidence found in the National
Documentary Package. If one is merely a regular church member of an underground
Protestant House Church in Fujian, there is less than a mere
possibility that such a member would face a serious possibility of persecution.
If the claimant had resided in other Chinese provinces, such as Jiangsu, Hubei, Henan Zhejiang, Sichuan, Xinjiang, Jilin and Anhui or in China’s Inner Mongolia Autonomous Region a
different finding may have been reached. In those provinces, the claimant has
found documentary evidence indicating that ordinary Christians and their
leaders have suffered for practicing Christianity in the way they wish to
practice it.” [Emphasis mine.]
[8]
It
remarked only two articles provided by the applicant “even mention Fujian”
with one article published by the Voice of the Martyrs “states that a
newly built church in Fujian was destroyed in July 2007”. It stated no
reasons were given why the church was destroyed other than for security reasons
remarking: “It is impossible to ascertain what the security reasons are from
the one article”; and: “Further, it does not indicate that any church member
was arrested or harmed when the church was destroyed.” As to the other
article, the RPD said it reported a well-known Christian activist living in
Australia mailed his
sister Christian materials and books to disseminate in China. The
activist’s sister was arrested and charged with subversion of state power [just
before the 2008 Olympic Games]. The tribunal said: “The applicant provided no
further information to indicate whether that person is still incarcerated.”
[9]
It
concluded: “Without more, I can only observe that the claimant has put into the
documentary evidence only one example of only one person who has been
arrested and charged with a crime in connection with Christianity in Fujian from 1995 to
2008.”
It noted the person who was arrested just before the Olympic Games was “no mere
regular member of an underground church and that her family are well-known
Christian activists”. [Adding]: “If Miss Songping, a well-known activist who
received Christian mail close to the time of China’s Olympic games, is the only
person documented from Fujian to be arrested for an action associated with her
Christian practice, I find that the claimant will not face a serious
possibility of persecution by attending an underground Protestant House Church
when he returns to China.”
[10]
The
tribunal then made the following finding in respect of section 97 of IRPA:
[26] The claimant has not alleged
that he faces a risk to life or cruel and unusual treatment or punishment in
connection to his Christian faith in China.
For this reason, I find that on a balance of probabilities, he does not face
such a risk in China.
(b) The applicant’s credibility
[11]
The
tribunal’s credibility finding is expressed in the following brief paragraph:
[27] In addition to the above, I
also find that the claimant was not credible. I do not find that the claimant
is a Christian who will attend any church in China. The thrust of the claimant’s testimony
is that he wants to practice a particular form of Christianity without
hindrance in China. And yet, after allegedly
attending weekly study and prayer services at a Pentecostal Church for 14 months, the claimant
has not mastered the most basic concepts of his form of Christianity. The
claimant could not answer definitely the question: What happens to someone
after they die if they have not, in this life, accepted Jesus Christ as their
Saviour. If the claimant does not know and truly believe the answer to this
most basic question for Pentecostal Christians, I find that the claimant is
not a Christian on a balance of probabilities. I do not believe that the
claimant will be attending any church in China; he hasn’t inculcated Pentecostal
theology. Either he hasn’t attended church and weekly study sessions or he has
not opened himself up to the lessons he should have learned and accepted.
Either way I do not find it credible that the claimant is a Christian. [Emphasis mine.]
(2) The political claim
[12]
I
need not summarize the tribunal’s findings on the political claim since in oral
argument counsel for the applicant did not address this issue.
(3) The Bias claim
[13]
In
her reasons, the tribunal touched upon the “application for recusal” alleging
her questioning and conduct would lead to an apprehension of bias. The tribunal
quoted the well known test for the establishment of a reasonable apprehension
of bias stated in Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369 “is whether an informed person, viewing the matter
realistically and practically and having thought the matter through would
conclude that the decision-maker would decide fairly or not.” [Adding:] “Therefore,
the test is whether such an informed person would conclude that the Panel was
going to decide unfairly against the applicant based on my questioning and
conduct toward the claimant.”
[14]
The
tribunal mentioned to three objections raised by counsel:
[45] Counsel averred that my line of
questioning on a religious issue was repetitive after the claimant had already
answered the questions. He stated that I should not have asked the claimant
questions about the extent of corruption in China. Finally during the hearing itself,
counsel objected to my stopping counsel from answering a question that I had
posed to the claimant.
[15]
She
addressed the three points. First, she indicated: “In assessing credibility
about whether one has converted to Christianity, a panel member must ask
probing questions in order to come to a conclusion as to whether the claimant
is a Christian or whether the claimant is using religion as a pretext. Here,
the claimant averred in his Personal Information Form and in his testimony that
he could only attend one type of church in China because
of his theological beliefs. An understanding of the claimant’s beliefs was
thus an essential part of the hearing.”
[16]
She
noted counsel for the applicant’s submission that she repeatedly asked the claimant
the same question about his beliefs about heaven and hell. The tribunal stated
the record did not indicate this but rather “the record indicates that counsel
himself volunteered the claimant answered the questions reluctantly and not
definitely. She concluded that it was because the claimant was reluctant to
answer she had to probe to find out whether he had a definitive answer in order
to understand what he was really saying on the issue.
[17]
The
tribunal stressed once again it was for dogmatic theological reasons “this
claimant does not want to belong to one church over another in China” [and] “I
had to ascertain whether theology was of real significance to the claimant or
was a pretext.”
[18]
On
the questions she asked about corruption in China, she stated:
“Of course a panel can ask such questions. Such questions are invitations for
the claimant to describe what he knows and believes about his country. This is
critical to an understanding of a claimant’s subjective fear.”
[19]
She
dealt with one last objection on whether it was proper to ask the applicant
whether the payment he paid to the ICB was extortion or a legitimate fine. Her
answer was: “Whether such a payment is extortion or a fine is the heart of
refugee determination. Is such a fine a legitimate prosecution or an improper
expression of persecution? This line of questioning does not evidence bias.”
The Applicant’s
submissions
(1) The sur place claim
[20]
Counsel
for the applicant submits the tribunal committed a fatal error by finding lack
of evidence of arrest means no persecution. He points to paragraphs 19, 20 and
21 of the tribunal’s decision. He argues this cannot be right because
persecution may exist without arrest and detention citing Justice de Montigny’s
decision in Zhou v. Canada (Minister of Citizenship and
Immigration), 2009 FC
1210, [2009] F.C.J. No. 1502.
[21]
He
further argues that nowhere does the documentary evidence say there is no
religious persecution in Fujian.
[22]
His
second major argument concerns the tribunal’s statement at paragraph 26 of its
reasons where it notes the applicant has not alleged section 97 risks in
connection to his Christian faith in China. He points to page 9 of
the PIF (CTR, page 134) where he checked yes to the section 97 risks. He
further submits examining the tribunal’s decision at paragraph 28 illustrates
the confusion in the tribunal’s mind because in its discussion on political
opinion the tribunal mentions the section 97 risks there. There is no basis, in
his submissions, for the tribunal to have carved out the religious element from
the political claim; the PIF was general and covered both claims.
[23]
His
third argument relates to the applicant’s Christian identity: Is he a
Christian? He turns to paragraph 27 of the tribunal’s reasons where the
tribunal makes a credibility finding based on his inability to answer
definitively the basic question: “What happens to someone after they die if
they have not accepted Jesus Christ as their Saviour? Counsel submits the
tribunal misapprehended the evidence – got it wrong because he did answer at
making reference to page 108 of the CTR where the answer is: “They would go to
hell.”
(2) The Bias claim
[24]
He
argues a review of the transcript evidences the tribunal had a closed mind.
This is shown by the comments he made during his questioning of the applicant’s
Christian knowledge and the comments he made when counsel objected. The
impression he left was that counsel was irrelevant, a nuisance; he also
displayed anger at being interrupted. Furthermore, his persistent questioning
on the issue of what happens to non-believers when they die and asking the
applicant what will happen to his parents when they died was insensitive and
showed the tribunal was more interested in impeaching the applicant than
finding whether he was a true Christian; it was in his submission an illicit
way to get to his religious knowledge.
[25]
Counsel
also argued bias was also evident in some unfair questions put to the applicant
causing unnecessary altercation between counsel and the tribunal.
The Respondent’s
submissions
[26]
What
is important to keep in mind is the applicant had to show objectively if
returned to China he would be
at risk of persecution – he had to establish a forward looking well founded
fear.
[27]
She
argued a fair reading of the tribunal’s decision reveals it did not conflate
arrests as the sole badge of persecution. She points to paragraphs 15 and 16 of
the decision where the tribunal found in Fujian there “is
less scrutinity and interference in unofficial church activity”, citing
appropriate documentary evidence. Yes, the tribunal took into account arrests
in paragraphs 17 and 18 for the purpose of demonstrating there is a distinction
between leaders and ordinary members. Paragraph 19 mentions not only arrests
but also convictions, torture and detention and paragraph 20 refers to repression
and re-education. Other paragraphs speak to “suffering from practicing
Christianity in the way they wish to practice it” and “harm””.
[28]
Pointing
to paragraph 23 of the tribunal’s reasons, she argues this is an instance of a
high profile individual to which the applicant cannot be compared as similarly
situated.
[29]
In
sum, counsel for the respondent argues the documentary evidence shows where the
applicant lives there are minimum constraints, people practice generally freely
and those who may be affected unduly do not fit his profile.
[30]
On
the section 97 issue, she submitted the case law states that no separate
analysis is required under section 97 when there is no evidence that would
require it. She further submitted, in the case at hand, the tribunal conducted
a co-mingled analysis under section 96 and as a result a separate review of the
section 97 risks in not required.
[31]
On
the issue of whether the applicant is a Christian, she took the Court to the
transcript at page 107 of the CRT and a reading from that page to page 112
reveals it took a lot of probing to get an answer. The answers were vague. The
finding may have been an error but it was not determinative. In substance, she
submits the majority of the reasons show the applicant did not have a
well-founded fear of persecution if returned to China.
[32]
On
the bias issue, counsel endorsed the reasons of the tribunal for finding it was
not obliged to recuse itself.
Analysis
Standard of Review
[33]
The
tribunal’s conclusions based on findings of fact is reasonableness based on Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 which
findings are owed great deference because of paragraph 18.1(4)d) of the Federal
Courts Act (see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraphs 3 and 46 and Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at paragraph 38).
[34]
The
issue of bias is to be analyzed on the basis of correctness as it is a question
of fairness and natural justice (see Dunsmuir, at paragraph 50).
Conclusions
[35]
This
application for judicial review must be dismissed substantially for the reasons
advanced by counsel for the respondent. The question whether if returned to
China the applicant would be at risk of persecution or at risk of torture or of
cruel and unusual punishment was essentially based on an analysis of the
documentary evidence as expressed in the tribunal’s reasons which should not be
read microscopically (see Boulis
v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875, at page 885).
[36]
A
fair reading of those reasons against a review of the transcript and the
documentary evidence leads me to conclude the tribunal did not equate
persecution to arrest but considered an array of other relevant factors.
[37]
On
the Section 97 risks, the case law which counsel for the respondent submitted (see
Brovina v. Canada
(Minister of Citizenship and Immigration), 2004 FC 635, [2004] F.C.J. No. 77, at paragraph 18; Soleimanian
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1660, [2004] F.C.J. No. 2013,
at paragraphs 21 to 25; Kugaperumal v. Canada (Minister of Citizenship and
Immigration), 2004 FC 881, [2004] F.C.J. No. 1085, at paragraph 17; and, Kulendrarajah
v. Canada (Minister of Citizenship and Immigration), 2004 FC 79, 245
F.T.R. 145, at paragraph 13 support the propositions no separate section 97
analysis was required and in any event such analysis was co-mingled with her
section 96 analysis such that no separate review of the evidence under section
97 was required. I appreciate section 96 risks are evaluated on a different
basis than section 97 risks but here the evidence on both was the same, was
co-mingled and could reasonably support both findings.
[38]
The
finding of the applicant was not a Christian was drawn in error because it did
not take into account all of the evidence in the record. However, this finding
is not determinative because the documentary evidence reasonably established
that Christians of his profile returning to Fujian were not at
risk.
[39]
Lastly,
I dismiss the bias challenge. I read the transcript in its entirety. I agree
with the tribunal’s reasons no well informed individual looking at the matter
practically would consider the tribunal would not deal with the matter fairly.
True, there were clashes but in the end they were resolved in mutual respect. Argument
made in the heat of a proceeding is not a badge of bias if as in this case, the
tribunal accepted most of the objection made by the applicant’s counsel.
[40]
For
these reasons the applicant’s challenge must fail.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review is dismissed. No question of general importance was suggested.
“François
Lemieux”
_____________________________
Judge
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