Docket: IMM-4437-11
Citation: 2012 FC 157
Ottawa, Ontario, February 6, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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SHOU GUI LIN
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 8 June 2011 (Decision), which refused the Applicant’s application to be
deemed a Convention refugee or a person in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of the People’s Republic of China (PRC) who
says he is a Christian. He is from Fujian province and says that
he attended an underground house church there with his parents. He has also attended
two Pentecostal churches in Canada and, on 15 February 2011, he married a
permanent resident of Canada. He has a daughter, born in Canada, who
lives with him and his wife in Toronto.
[3]
On
7 October 2007, the Applicant says that his parents attended a service at their
underground church; he did not attend because he had to work. Later that
evening, a church member’s mother telephoned him and told him his mother and father
had been arrested when the Public Security Bureau (PSB) raided their church.
The Applicant went to the PSB station where his parents were detained to try
and bail them out. He knew his parents would not inform on him, so he thought
he would be safe. When the Applicant was at the station, PSB officers detained
him for three days, interrogated him, and accused him of being a Christian.
[4]
On
11 October 2007, the Applicant was released by the PSB who demanded he pay
100,000 Yuan bail for his parents. The Applicant paid the bail money, but he
and his parents were required to report to the PSB weekly, on Sundays. The
Applicant obeyed the order to report and says that on some occasions when he
reported he was interrogated and was sometimes required to report again during
the week. The Applicant says he could not get a job because of the reporting
requirement.
[5]
After
they were released, the Applicant and his parents continued to practise
Christianity in their home, but they no longer attended services at their
underground church. Together, they decided that the Applicant should leave the
PRC. While preparations were being made for him to leave, the Applicant stopped
reporting to the PSB. Though PSB members came to their home looking for him,
the Applicant’s parents said they did not know where he was.
[6]
The
Applicant engaged a smuggler and fled the PRC in January 2008. He travelled
first to Dubai, then to Israel. From
Israel, the Applicant came to Canada, where he arrived in Toronto on 22
January 2008. He claimed protection on 25 January 2008.
[7]
The
Applicant says that, at the end of February 2008, he learned that his parents
had gone into hiding from the PSB. In May 2008, he learned that they were arrested
at the border between Vietnam and the PRC. His father
was sentenced to three years’ imprisonment and his mother was sentenced to a three-and-one-half
year imprisonment. He says they are both currently held in the Baisha Prison in
Fu Zhou City, in the PRC.
[8]
To
support his claim for protection, the Applicant provided the RPD with a receipt
for transportation costs for his parents from the border where they were
arrested, dated 21 May 2008, a Notice of Arrest regarding his parents, dated 16
May 2008, and two visiting cards from Baisha Prison showing visits between the
Applicant’s sister and his father and mother, both dated 10 December 2008. The
Applicant also provided the RPD with his Resident Identity Card (RIC),
Household Register Card (Hukou), a detention release card for him dated 11
October 2007, and detention release cards for his parents dated 12 October
2007. He also provided a letter from the Reverend David Ko, pastor of the
Living Stone Assembly – a Christian church in Scarborough, Ontario – which
confirms that the Applicant regularly attended that church. Finally, the
Applicant provided the RPD with a baptism certificate which showed that he had
been baptised on 27 September 2008.
[9]
The
RPD conducted a hearing into the Applicant’s claim on 13 May 2010, at which the
Applicant’s counsel objected to the quality of interpretation. The RPD granted
counsel’s request for an audit of the translation and a de novo hearing.
The de novo hearing was conducted on 24 February 2011 before a different
RPD member. The Applicant, his lawyer, and an interpreter were present at this
hearing. The hearing ran out of time and the RPD adjourned it to 24 May 2011.
After the hearing was completed, the RPD considered the claim and made its Decision
on 8 June 2011. The RPD found that the Applicant is neither a Convention
refugee nor a person in need of protection and gave him notice of the Decision
on 9 June 2011.
DECISION
UNDER REVIEW
[10]
The
RPD determined that the Applicant is not a Convention refugee or a person in
need of protection because he is not at risk of persecution in Fujian province.
The RPD found that he had not established a serious possibility of persecution
or a risk to his life or of cruel and unusual treatment or punishment if he
were returned to the PRC.
[11]
The
RPD reviewed the Applicant’s story of his and his parents’ arrest, detention,
bail, and requirement to report. It noted his allegation that he could not
secure employment because the reporting requirement interfered with his ability
to work.
Identity
[12]
The
PRD found that the Applicant had established his identity by certified true
copies of his passport and RIC.
Analysis
[13]
The
RPD focussed on the credibility of the Applicant’s allegations of risk of harm
in the PRC. It acknowledged that the Applicant may have faced difficulties at
the hearing from cultural factors, the hearing room atmosphere, and the RPD’s
questioning but the RPD said that it had taken all these potential difficulties
into account when reaching its Decision.
[14]
The
RPD found that the documentary evidence before it did not support the
Applicant’s story. Although he had knowledge of Christianity and had produced a
letter from Rev. Ko, the documents he submitted only showed that he had
participated in church activities; they did not show his motivation, so the RPD
gave them little weight.
[15]
The
RPD found that the Applicant’s testimony was not supported by documentary
evidence on Fujian province but
it also made the following finding:
[The]
panel finds that a church in Fujian province would be discovered and that [the
Applicant] would be detained for three days and his parents would have been
sentenced to prison terms of three and three and a half years respectively.
[16]
The
RPD said that it was guided by the country condition documents before it. After
noting that the Applicant was from Fujian province, it found that
the IRB’s Response to Information Request (RIR) CHN100386.E – Situation of
Catholics and treatment by authorities, particularly in Fujian and Guangdong (2001 –
2005)
established that Fujian and Guangdong provinces have the most
liberal policy on religion of all the provinces in the PRC. It also found that,
though arrests were documented in regions around Fujian, there was
no documentary evidence of recent arrests of Christians in Fujian. Further,
had there been arrests of Christians in Fujian, the RPD
found that they would have been documented. The RPD noted that in Nen Mei Lin
v Canada (Minister of
Citizenship and Immigration) IMM-5425-08, Justice Paul Crampton upheld
a similar finding by the RPD.
[17]
Based
on a 2009 report from the United States Department of State, the 2009
International Religious Freedom Report, the RPD also found that the
situation in Fujian province
does not reflect the situation in other provinces where ordinary Christians
were arrested. The RPD also noted a report from the United Kingdom Home Office,
which said that prayer meetings and Bible studies among families and close
friends do not need to register with the authorities.
[18]
The
RPD found that the risk to the Applicant was low and that he would be able to
practise his religion in any church in Fujian province. It
found there was no serious possibility that he would be persecuted for practising
Christianity. The RPD noted my decision in Yang v Canada (Minister of
Citizenship and Immigration) 2010 FC 1274, where I held that it was
reasonable for the RPD to conclude that incidents of persecution would be
documented. The RPD also considered a decision from the Australian Refugee
Review Tribunal, which the Applicant had submitted, but found that case was
distinguishable and that the documents before it were not the same as those
before the Australian tribunal.
Applicant’s
Documents
[19]
The
RPD also considered the documents the Applicant had submitted but found that
the Notice of Arrest, visiting cards, detention release certificates, and bail
receipts did not support his story. These documents, the RPD found, did not
enhance the plausibility of the raid on his house church and his parents’
detention and prison sentences.
[20]
The
RPD adopted the following passage from RIR CHN103134.E - The
manufacture, procurement, distribution and use of fraudulent documents,
including passports, Hukou, resident identity cards and summonses in Guangdong
and Fujian in particular (2005 - May 2009) as its
reasons for rejecting the Applicant’s documents:
In 12 June 2009 correspondence, a professor of law at George Washington University Law School, who
specializes in the Chinese legal system, stated that “just about any document
can be forged in China, and many are.” A 2007 briefing paper published by the Economist
Intelligence Unit (EIU) indicates that a United States (US)
consular official based in southern China reported that fake passports in China
are rare, while the ability to screen other documents is inhibited by “widespread
fraud” (Sept. 2007, 18). According to the official, “'you can't trust any
[personal] documents in China'," and the market for fraudulent documents is rapidly
expanding (EIU Sept. 2007, 18). The official further
indicated that documents are assumed to be fraudulent unless proven otherwise,
and that the verification of documents is a "labour-intensive and
time-consuming process" (ibid.). A 2009 Vancouver Sun article
reports that it is possible to "buy any kind of document you want" in
China (19 Mar. 2009).
A 2005 Jane's Intelligence Review report suggests that
Chinese and South Asian groups are "key players" in human smuggling
and that providing forged documents is a "basic requirement" in this
market (1 Feb. 2005). According to the report, migrants from China travel to Thailand
as tourists using authentic passports and are provided with forged documents in
Bangkok (Jane's
Intelligence Review 1 Feb. 2005). The article further states that illegal
migrants from China use altered Singaporean or Japanese passports due to visa-waiver
provisions for travel to the US and the European
Union (ibid.). A 2007 report written by the US National
Institute of Justice (NIJ) indicates that Chinese nationals who are smuggled
into Taiwan use fake IDs to acquire Taiwanese passports for travel to the US
(Jan. 2007, 26). Agence France Presse indicates that an immigration ring in Spain was dismantled and
over 50 Chinese nationals were arrested on suspicion of helping with the
illegal entry of Chinese citizens, who were provided with fake documents (30
Mar. 2009).
[21]
The
RPD concluded that, based on all the evidence before it, its cumulative
findings, and its negative inferences, the Applicant had not established his
claim.
STATUTORY
PROVISIONS
[22]
The
following provisions of the Act are applicable in this proceeding:
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries;
[…]
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
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96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
[...]
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou le
risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux
ou de santé adéquats.
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ISSUES
[23]
The
Applicant raises the following issues:
a.
Whether
the RPD’s negative credibility finding was reasonable;
b.
Whether
the RPD’s conclusion on the risk he faced was reasonable.
STANDARD
OF REVIEW
[24]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008
SCC 9, held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis.
[25]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Wu v Canada (Minister of
Citizenship and Immigration) 2009 FC 929, Justice Michael Kelen held at
paragraph 17 that the standard of review on a credibility determination is
reasonableness. Justice Richard Mosley made a similar finding in Mejia v Canada (Minister of
Citizenship and Immigration) 2011 FC 851 at paragraph 7. The standard of
review on the first issue is reasonableness.
[26]
In
Sarmis v Canada (Minister of Citizenship and Immigration) 2004 FC 110,
at paragraph 11, Justice Michel Beaudry held that the standard of review
on the assessment of persecution was patent unreasonableness. Also, in Butt
v Canada (Minister of Citizenship and Immigration) 2010 FC 28, Justice Yvon
Pinard held at paragraphs 6 and 7 that the standard of review applicable to the
RPD’s assessment of whether a claimant met the qualifications of section 96 of
the Act was reasonableness. The standard of review on the second issue is
reasonableness.
[27]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59. Put another way, the Court should intervene only if the Decision
was unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The
Applicant
The
RPD’s Credibility Finding Was Unreasonable
[28]
The
Applicant says that, when it found he was not credible, the RPD based its
finding solely on the National Documentation Package before it. He says that
the RPD did not consider his testimony that he is a Christian or the documents
he submitted to show that he is a Christian. The RPD failed to make a
determination that he is or is not a Christian, which renders the Decision
unreasonable. The Applicant points to the RPD’s statement that
The
panel finds that a church in Fujian province would be discovered and that he
would be detained for three days and his parents would have been sentenced to
prison terms of three and three and a half years respectively.
[29]
Even
if this statement was meant to be a negative inference, it is not clear what
the RPD’s finding was on his Christian faith or what it based that finding, if
any, on.
[30]
The
RPD also refused to actually consider the documents that the Applicant
submitted to support his story of arrest, detention, and bail. Though the RPD’s
National Documentation Package (NDP) contained evidence pointing to the
availability of fraudulent documents in the PRC, this does not mean that every
document from the PRC is fraudulent. At minimum, the RPD was required to consider
the possibility that the documents the Applicant submitted were genuine, which
it failed to do. When it relied solely on the NDP to assess the credibility of
his story and his Christianity, the RPD acted unreasonably.
The RPD’s Conclusion on
Risk was Unreasonable
[31]
The
Applicant also argues that the RPD’s conclusion on the risk he faces on return
to the PRC, although it was based on information in the NDP, did not take into
account relevant country condition documents he submitted. He points to a 2009
letter from Bob Fu, President of the China Aid Association (China Aid). This
letter says, in part, that
It
is naïve and incorrect to assume that house churches are able to operate
without any risk or problems in Guangdong and Fujian province. My sources and history tell me
otherwise.
[32]
The
RPD was bound to consider the documents the Applicant submitted which went
against its conclusions.
[33]
The
Applicant also says that the RPD failed to consider evidence in the NDP which
deals specifically with the risk in Fujian province. RIR
CHN103500.E – Situation of Protestants and treatment by authorities,
particularly in Fujian and Guangdong (2005 – May
2010)
quotes a letter sent to the Immigration and Refugee Board’s Research Directorate,
which says that
With specific reference to the provinces Fujian and Guangdong, it is absolutely
incorrect to find that there is religious freedom in these provinces. […] [T]he
persecution may come and go and not be totally predictable, but it is always
present. Even the very threat of a government crackdown is a method of
persecution. The house churches in Fujian and Guangdong, like all of China, face the constant
and fearful risk of being closed and its members punished. Certainly, these
provinces do not enjoy religious freedom while all other parts of China do not.
[34]
The
Applicant also refers to Liang v Canada (Minister of Citizenship and
Immigration) 2011 FC 65, where Justice Michel Shore held at paragraph 2
that
The
destruction of house churches in the Fujian
province is evidence, in and of itself, that the Chinese authorities do not
allow Christians to practice their faith freely. Freedom of religion
encompasses the ability to espouse one's faith publicly, in a manner,
individually or collectively, chosen in as much as not to interfere with the
fundamental rights of others. By destroying house churches, the Chinese
government is infringing on that right in a persecutory manner.
[35]
It
was an error for the RPD to rely on the lack of evidence of arrests in Fujian without
looking at the whole picture before it. The Applicant relies on Liu v Canada (Minister of
Citizenship and Immigration) 2010 FC 135, where Justice James O’Reilly
held at paragraph 13 that
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.
[36]
The
documentary evidence the Applicant submitted suggested a forward-looking risk
of persecution, so it was unreasonable for the RPD to conclude otherwise based
only on the NDP.
The
Respondent
The
RPD’s Conclusion on Credibility was Reasonable
[37]
The
Respondent argues that the RPD’s conclusion that the Applicant’s story was not
credible was supported by the preponderance of the evidence before it. The
Respondent also says that the evidence the Applicant submitted was insufficient
to establish a risk of persecution or harm in Fujian province.
[38]
In
Zaree v Canada (Minister of Citizenship and Immigration) 2011 FC 889,
Justice Luc Martineau said at paragraph 6 that
It
goes without saying that assessing the claimant's credibility is at the heart
of the panel's expertise and that the Court owes substantial deference to such
determinations (Zheng v. Canada (Minister of Citizenship and Immigration), 2007 FC 673 at paragraph
1).
[39]
Based
on Zaree, the Respondent says that the Court should defer to the RPD’s conclusions
on regarding credibility.
No Serious Possibility
of Persecution
[40]
When
it concluded that the risk the Applicant faced in Fujian province was
low, the RPD preferred some pieces of evidence over others. Awolaja v Canada
(Minister of Citizenship and Immigration) 2010 FC 1240, Singh v Canada
(Minister of Citizenship and Immigration) 2002 FCT 1013, and Zhou v
Canada (Minister of Employment and Immigration), [1994] FCJ No 1087 all
establish that the RPD is justified in preferring reliable, independent
evidence over a claimant’s oral testimony. In this case, the RPD made five
findings based on independent documentary evidence which demonstrated the risk
the Applicant faced in Fujian Province:
a.
There
were no reports of arrests of Christians in Fujian;
b.
The
situation in Fujian does not
reflect the situation in other provinces;
c.
Fujian
and Guangdong have the
most liberal policy on religion, including Christianity;
d.
Most
unregistered churches in the PRC no longer operate in secret;
e.
50
to 70 million Christians in the PRC practise without sanction.
[41]
At
the hearing, the Applicant was given an opportunity to address the contrary
documentary evidence, but he only reiterated his position that what he said had
happened to him actually had occurred. The documentary evidence was detailed
with respect to the location of persecution in the PRC, so it was reasonable
for the RPD to conclude that arrests or persecution in Fujian would be
documented. This approach has been approved by the Court in several cases (see Li
v Canada (Minister of
Citizenship and Immigration) 2011 FC 941, Wang v Canada (Minister of
Citizenship and Immigration) 2011 FC 636, and Yang, above).
[42]
Although
the RPD’s statement at paragraph 8 of the Decision is confusing, the confusion
results only from a typographical error. Looking at the Decision as a whole,
the RPD’s reasons are clear and reasonable.
The RPD did
not Ignore Evidence
[43]
Although
the Applicant has asserted that the RPD ignored the letter from Mr. Fu, the RPD
clearly alluded to this letter in the Decision. As the RPD said at paragraph 15
of the Decision, China Aid, “stated in its report and letters that they have
not documented all cases of persecution and religious repression occurring in
every province in China, including Guangdong and Fujian.” The RPD
explained how the evidence from China Aid did not contradict its finding on
risk. Further, this letter did not directly refute its conclusion, so the RPD
was not required to address it specifically. The Respondent points to Zhang
v Canada (Minister of
Citizenship and Immigration) IMM-3500-11 (unreported) where Justice
Robert Barnes said at page 3 that
The
Board did not say that there was no risk of religious persecution for Roman
Catholics in Fujian province. The Board simply observed that
there was no specific evidence of recent arrests or incidents of persecution in
that part of China. The country condition evidence relied
upon by Ms. Zhang does not contradict that conclusion. The China Aid letter
dated February 21, 2009 and the Board’s Response to Information Request from
July 2010 said nothing about arrests or other forms of persecution in that part
of China and there was, accordingly, no need to refer to those documents: see Yang
v Canada (MCI), 2010 FC 1274 at paras 39-40
[44]
The
Respondent also relies on Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No 598 for the proposition that the
RPD is presumed to have considered all the evidence before it. He says that
this presumption applies to RIR CHN103500.E, which the Applicant says that the
RPD ignored. The Respondent also notes that the passage from this document,
which the Applicant has highlighted in his argument, is from the Director of
China Aid and simply reiterates the information in the China Aid letter the RPD
explicitly referred to and rejected in the Decision.
[45]
Although
the Applicant relies on Liang, above, to show that Christians in Fujian
province are at risk of persecution, the Respondent points to He v Canada
(Minister of Citizenship and Immigration) 2011 FC 1199, where Justice David
Near held at paragraph 14 that
The
Respondent contends that the Applicant's reliance on Liang, above, is
misplaced. Subsequent jurisprudence considering Liang has stressed that
each case depends on its own facts and how they are assessed by the Board (see
for example Li v Canada (Minister of Citizenship and
Immigration),
2011 FC 941, 2011 CarswellNat 2977 at para 47; Yang, above). It cannot
be taken as a broad precedent for all Chinese applicants claiming persecution
on religious grounds when the issue was whether sufficient weight was given to
specific information on underground churches.
[46]
The
facts in this case are different from those in Liang, so it was
reasonable for the RPD to conclude that the risk the Applicant faced was low.
The RPD reasonably focussed on the documentary evidence which demonstrated the
risk faced by Christians in Fujian province.
Documents on Arrests not
Credible
[47]
The
Respondent notes that the RPD’s assessment of the evidence before it is to be
given significant deference by the Court. This deference includes findings on
the credibility of documents. When examining documents, it is acceptable for
the RPD to rely on its knowledge of the availability of fraudulent documents to
assess credibility. As Justice Near held in Lin v Canada (Minister of
Citizenship and Immigration) 2010 FC 183 at paragraph 21,
While
there is no presumption of fraud if no further evidence of a document's
authenticity is produced, the Board is entitled to rely upon its knowledge regarding
the availability of forged documents in a particular region to question their
probative value (see Gasparyan v. Canada (Minister of Citizenship &
Immigration), [2003] F.C.J. No. 1103, 2003 FC 863 (F.C.) at paragraph 7).
The onus is on the applicant to justify his claim for refugee status and
provide the appropriate documentation (see Wang v. Canada (Minister of Citizenship
& Immigration),
[2001] F.C.J. No. 911, 2001 FCT 590 (Fed. T.D.) at paragraph 21; Gasparyan,
above, at paragraph 9). Therefore, the Board's decision in this area will be
shown deference and considered reasonable.
[48]
In
the present case, the RPD based its conclusion that the documents the Applicant
had submitted to prove his story were fraudulent on three facts:
a.
Any
document can be forged in the PRC;
b.
Documents
from the PRC cannot be trusted and are assumed to be fraudulent;
c.
Any
document in can be purchased in the PRC.
[49]
These
facts formed a reasonable basis for the RPD to find that the Applicant’s
documents were fraudulent, so the RPD’s findings should not be disturbed.
Insufficient Evidence of
Personal Risk
[50]
The
only evidence before the RPD which showed the risk of persecution the Applicant
faced in Fujian province was
a detention certificate from Fu Zhou city which said that the case against him
had been dismissed. At the hearing, the Applicant testified that this meant he was
free to leave, but still had to report to the PSB every week. When the RPD
asked the Applicant how he knew the PSB was still looking for him, he said that
his sister had told him, but he was unable to produce a document or summons for
his arrest. The evidence he provided to demonstrate the risk he faced in Fujian province was
insufficient, so the RPD’s conclusion that the Applicant did not face a serious
possibility of persecution was reasonable.
ANALYSIS
[51]
A
number of extremely puzzling things are said in this Decision. I find
paragraphs 8 and 22 difficult to understand. Even if I were to accept the
Respondent’s position that paragraph 8 contains nothing more than typographical
errors that require the word “not” to be inserted three times, I still do not
understand why the documents referred to in paragraph 22 “do not enhance the
plausibility of the raid and the subsequent detainment of the claimant and the
sentencing of his parents” other than that they are rejected because fraudulent
documents are readily available in China. I share the Applicant’s concern that,
when read as a whole, the Decision reads as though it is based entirely upon
the RPD’s own information package and the evidence submitted by the Applicant
is never really assessed on its merits.
[52]
I
find the RPD’s treatment of the documentary evidence adduced by the Applicant
to support his story was unreasonable.
[53]
The
Applicant’s story about being detained, interrogated, forced to pay bail money,
and to report to the authorities was central to his claim. To support this
story, he provided several documents, but the RPD rejected them out of hand
because one of the RIRs before it showed that fraudulent documents are readily
available in the PRC. Just because fraudulent documents are readily available
in the PRC does not, for that reason alone, mean that the Applicant’s documents
were fraudulent. As Justice Konrad von Finckenstein said in Cheema v Canada (Minister of
Citizenship and Immigration) 2004 FC 224 at paragraph 7
The documents may well be forgeries, however evidence of
widespread forgery in a country is not, by itself, sufficient to reject foreign
documents as forgeries. As the Respondent noted evidence of widespread forgery
merely demonstrates that false documentation could be available to the
Applicant.
[54]
The
RPD’s reasoning would mean that even genuine documents would not be acceptable.
The fact that inauthentic documents are available does not relieve the RPD of
the duty to determine whether particular documents presented by a claimant are
genuine or not. The Respondent argues that the “fraudulent documents” ground
merely supports the RPD’s earlier finding that the Applicant’s evidence is not
acceptable because it is not supported by the objective evidence referred to by
the RPD. In my view, this would mean that the RPD excluded evidence on the sole
basis that it contradicts its own information package, and not because it has
any inherent defects.
[55]
I
am concerned that the RPD does not seem to have looked at the documents the
Applicant submitted at all. The RPD must analyze all of the evidence before and
weigh the positive against the negative (see Liu, above, at paragraph
13). It may be that fraudulent documents are widely available in the PRC.
However, this does not mean that every document that comes out of the PRC is
necessarily fraudulent. The RPD was obliged to examine and weigh the actual
documents in front of it, rather than simply rejecting them out of hand.
[56]
The
RPD’s unreasonable approach to the documentary evidence the Applicant submitted
becomes clear if one looks at two separate findings that it made about the
Applicant’s documents. At paragraph 4 of the Decision, the RPD
finds that the [Applicant] is a citizen
of the People’s Republic of China. His citizenship is
established by certified true copies of his passport and resident identity
card.
[57]
Later
on in the Decision, the RPD finds that the documents the Applicant submitted to
prove his allegations of arrest and detention are fraudulent and do not support
his story because documents from the PRC are assumed fraudulent, any document
can be forged in the PRC, and verification of documents is difficult. What is
missing from the Decision is any kind of analysis to differentiate the two sets
of documents.
[58]
The
Applicant’s passport and RIC came out of the same PRC as did the documents
which he submitted to prove his story. It may be that the RPD had good reason
for accepting the identity documents while rejecting the other documents, but
the Decision does not clearly disclose the reasons why. There is also nothing
on the record with which the Court can use to supplement the RPD’s reasons (see
Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury
Board)
2011 SCC 62 at paragraph 15). The Applicant and the Court are left wondering
how the RPD arrived at its Decision on the genuineness of his documents, which
renders it unsafe and requires that it be returned for reconsideration.
[59]
The
Applicant’s narrative of arrest and detention was highly material to his claim
for protection. If it is believable, then it brings into doubt the RPD’s
analysis that there is no evidence of the arrest and persecution of Christians
in Fujian to support a
positive determination under section 96. Alternatively, it could show a forward
looking risk of harm under section 97.
[60]
This
issue is so central that it is not necessary to comment upon the other issues
raised. The application for judicial review is allowed and the Decision is
returned for reconsideration by a differently constituted panel of the RPD.
[61]
Counsel
agree that there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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