Docket: IMM-4301-11
Citation: 2012 FC 148
Ottawa, Ontario, February 3,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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XICAI HE
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Applicant
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and
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MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of a decision, dated April 15, 2011, of a
Pre-Removal Risk Assessment officer (PRRA Officer) of Citizenship and Immigration
Canada. For the reasons that follow the application is granted.
Facts
[2]
The
applicant is a Chinese Christian who attended a house church in China. Before
the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board)
he claimed
that while on business in Vancouver in January 2007, his family informed him
that he was wanted by the Public Service Bureau (PSB) in China for
participation in illegal religious activities. On that basis he made a claim
for refugee protection on February 13, 2007.
[3]
The
applicant’s refugee claim was rejected on March 3, 2009. The Board did not believe that he
was a citizen of the People’s Republic of China. As a result of this
conclusion the Board did not consider the merits of his claim. The applicant’s
application for leave for judicial review to the Federal Court was dismissed on
July 24, 2009.
[4]
The
applicant then filed a PRRA application. The PRRA Officer accepted that the
applicant was in fact a Chinese citizen and went on to consider the substance
of his claims of harassment and persecution under sections 96 and 97 of Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA).
[5]
The
PRRA Officer believed the applicant to be a practicing Christian but found that
the applicant had failed to provide sufficiently personalized evidence of the
risks he would face in China. Specifically, the Officer concluded that the
applicant had not put forth “objective documentary evidence to support that his
profile in China is similar to those that currently face a danger of torture,
or a risk to life, or of cruel and unusual treatment or punishment in that
country.” The PRRA Officer further concluded that “the evidence before [him]
does not support that the Chinese authorities are aware [that the applicant is
a practicing Christian]”.
Issue
[6]
The
applicant raises two issues, both of which invite scrutiny of the reasons given
by the PRRA Officer:
a. Did the PRRA Officer
fail to give reasons for his finding that there was no evidence that the
Chinese were aware of the applicant or had an interest in him?
b. Did the PRRA Officer
fail to differentiate between the practice of religion within and outside of
registered churches as well as fail to consider evidence of the limitations
placed on the practice of religion in China either within or outside of the state
sanctioned churches?
[7]
I
find that there is only one issue to be addressed: whether the PRRA Officer’s
decision made clear the basis for his decision, and whether this decision was
reasonable.
Analysis
Does the PRRA Officer’s decision make
clear the basis for his decision, and was this decision reasonable?
[8]
The
adequacy of reasons is not a separate basis for judicial review nor a question
of procedural fairness. Rather, reasons must be read organically with the record
before the decision maker as part of the reasonableness review. In conducting
the review the guiding principle is deference and a decision is not to be
overturned simply because the reasons provided are not as fulsome as the
reviewing court may have desired: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14, 16,
18, 21-22.
[9]
The applicant
cites two problems with the PRRA Officer’s decision: a lack of reasons for the Officer’s
finding that there was no evidence that the Chinese were aware of the applicant
or had an interest in him; and, secondly that the Officer failed to
differentiate between the practice of religion within and outside of registered
churches or consider evidence of the limitations placed on the practice of
religion in China outside of the state sanctioned churches.
[10]
This
application will be granted on the latter argument only. The PRRA Officer’s
decision and treatment of the risks and limitations for practicing outside of
registered or state sanctioned churches does not withstand scrutiny. The PRRA
Officer did not differentiate between the practice of religion within a
registered and non-registered church.
[11]
It
will generally be presumed that a decision-maker has taken into consideration
all of the evidence before him or her: Florea v Canada (MEI), [1993]
FCJ No 598; Pak v Canada (MCI), 2011 FC 381 at para 41. As Justice
Abella stated in Newfoundland and Labrador Nurses’ Union, at para 16: “A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion.”
[12]
However,
in Zhu
v Canada (Citizenship and Immigration), 2008 FC 1066 Justice
Russel Zinn of this Court held that it was a reviewable error not to take into
account the doctrinal differences between the state sanctioned churches and
unregistered churches:
Secondly, the RPD overlooks the principal conviction the
Applicant articulated that the state-sanctioned church is beholden to
government, whereas the underground church places God first. This was her
stated reason for not wishing to attend a state-sanctioned church. That
church fails to follow one of her principal beliefs. This is the
conviction that should have been analyzed by the Board; it is entirely
irrelevant whether state-sanctioned churches embrace conventional Protestant
teachings.
[13]
The
PRRA Officer did not assess the risk as it was put before him, namely as a
Christian practicing in an underground church. It was thus unreasonable for
him to conclude on the basis of the evidence before him that the applicant had
not “provided objective documentary evidence to support that his profile in
China is similar to those persons that currently face a danger of torture, or
risk to life, or of cruel and unusual treatment or punishment in that country.”
[14]
All
of the evidence upon which the Officer relied, some of which spoke of
increasing religious tolerance, was in respect of state sanctioned churches.
This case is, thus both on its facts and in respect of the error which warrants
the decision being set aside, similar to that in Yin v Canada
(Citizenship and Immigration), 2010 FC 544, wherein Justice James Russell
addressed the failure of the Board to consider the distinction between state
sanctioned churches and unregistered churches:
The RPD’s findings in this regard are unreasonable and rife
with error. There was ample evidence before the RPD that religion is not
practised freely within registered churches, and that the members of
unregistered churches may be persecuted. Indeed, there was specific evidence
before the RPD with regard to the differences between the religious practices
in registered churches versus those in unregistered churches, which could
entice believers to turn to unregistered churches in order to freely practise
their faith.
[15]
The
application for judicial review is granted. The matter is referred
back to Citizenship
and Immigration Canada for reconsideration before a different PRRA officer.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted. The matter is referred back to Citizenship and
Immigration Canada for reconsideration before a different Pre-Removal Risk
Assessment officer. No question for certification has been proposed and the Court
finds that none arises.
"Donald
J. Rennie"
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