Date: 20101115
Docket: IMM-1052-10
Citation: 2010 FC 1141
Ottawa, Ontario, November 15,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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YUN JUAN WANG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under s. 72(1) of the Immigration and Refugee Protection Act
(IRPA) for a judicial review of the negative decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated January 28,
2010, where it was determined that the applicant is not a Convention refugee
and is not a person in need of protection.
[2]
The application for
judicial review shall be allowed for the following reasons.
[3]
The applicant is a
citizen of the People’s Republic of China (China), who fears persecution based
on her attendance at an underground house church and her Christian faith.
[4]
The Board looked at
the country documentation and concluded that no arrest warrant was outstanding
for the applicant and therefore the Public Security Bureau (PSB) was not
looking for her.
[5]
The Board determined
that there was no persuasive information suggesting that religious persecution
is present in the applicant's province of Fujian for groups that are small as the claimant's. It
then came to the conclusion that no raid occurred and the PSB did not arrest
three members of the applicant's church.
[6]
The Board also found
that the applicant was a genuine Christian, and that she would be able to
practice her faith in her house church or in a registered church without fear
of persecution.
[7]
The assessment of evidence and the weight
to be given to it are questions of fact that are within the expertise of the
Board. They are accordingly reviewable under the standard of review of reasonableness:
Dunsmuir v. New
Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339; Ali v. Canada
(Citizenship and Immigration),
2008 FC 1274, [2008] F.C.J. No. 1589 (QL). In applying this standard, the Court
cannot substitute its own appreciation unless reviewable errors are
demonstrated.
[8]
The applicant's
argument that the Board applied boilerplate reasoning to her claim and did not
properly determine the case on its merits, cannot be accepted. It is true that
the Board rendered a decision in another case two days after the applicant’s
and that portion of both decisions is identical. The facts in both cases were
quite similar. Both applicants were from for Fujian
province and claimed persecution on their religious beliefs. The documentation
submitted was also very similar. This submission in itself is not sufficient to
overturn the decision.
[9]
The applicant submits
that the Board erred in finding that the applicant was not being sought by the
PSB in China given that no summons had been issued
for the applicant. The Board at para. 5 of its decision relied on a quote that
indicates:
…
it is very common in China for the police authorities to leave a
summons or subpoena with family members (or possibly close friends, though that
is probably less common), instructing them to pass it along to the person named
on the summons. The person accepting the summons would be expected to sign an
acknowledgment of receipt. This is not actually the proper procedure, but it
happens all the time, especially in cases where the person on the summons is
not easily locatable …
[10]
The applicant further
submits that the documentation as a whole supports the fact that there is great
variability and arbitrariness in law enforcement procedures in China that the leaving of a summons is not actually the proper
procedure. The applicants therefore argue that the Board misconstrued the
evidence and had no evidentiary basis for its conclusion.
[11]
Even if the Court
would assume that the applicants' submissions on this point is valid, and if it
was the only error committed by the Board, the Court would not overturn the
decision on that error only (Jiang v. Canada (Citizenship and Immigration),
2008 FC 775, [2008] F.C.J. No. 979 (QL)).
[12]
Having said that, the
Court agrees with the applicants that there is a contradiction between
paragraphs 13 and 8 of the decision. On one hand, the Board states at paragraph
13:
…
Having found her to be a genuine Christian and given the context of documentary
evidence concerning Fujian province, she would be able to practice
Christianity in her house church without fear of persecution if she returns to
her home. …
On
the other hand, at paragraph 8, the Board states:
…
In other areas, house church meetings of more than a handful of family members
and friends are not permitted. House churches often encounter difficulties
when there [sic] membership grows, …
The
evidence shows that the applicant's house church had grown from a few members
to 28.
[13]
Freedom of religion was
central to the applicant’s claim and therefore the Court's intervention is warranted
here.
[14]
The Court is also of
the opinion that the Board’s determination that the applicant could also practice
Christianity in the registered church in China without any doctrinal constraints on the
practice of a genuine Christian was unreasonable (para. 16 of the decision).
[15]
Important documentation
to the contrary, restrictions and obligations on members of registered church
in China were either ignored or not analyzed by the Board (see Tribunal's
Record pages 70-71, 108, 112, 192, 196, 727).
[16]
No question for certification
was submitted and none arises.
JUDGMENT
THIS COURT
ORDERS that this application for judicial review
be allowed. The matter is remitted back to a differently constituted Board for
redetermination. No question is certified.
“Michel
Beaudry”
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