Date: 20120210
Docket: IMM-3396-11
Citation: 2012 FC 205
Ottawa, Ontario,
February 10, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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XIAO FANG HUANG
XUE LI SU (A MINOR)
YONG QI SU (A MINOR)
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Applicants
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and
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THE
MINISTER OF CITIZENSHIP AND IMMIRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The principal applicant, Xiao Fang Huang, and
her two minor children, the other applicants, are asking the Court to set aside
the decision of the Refugee Protection Division of the Immigration and Refugee
Board dated May 6, 2011, that found that the applicants are not refugees or
persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
For the reasons that follow, their application
is granted.
Background
[3]
The applicants are citizens of China. The principal applicant
says that she and her son were diagnosed with anaemia in February 2007. She
was worried for their health. In February 2008 a friend introduced her to
Christianity, and told her that she would be blessed and protected if she
believed in God. The principal applicant began praying on her own, and later
that month she attended a service for the first time at her friend’s house
church and she attended services regularly thereafter.
[4]
She says that on August 17, 2008, when attending a service it was
learned that the Public Security Bureau (PSB) was on its way. The principal
applicant escaped and went into hiding. Her husband told her that the PSB had
gone to their home and interrogated him, and had confiscated some of her
photographs. The principal applicant also learned that two of the members of
the church, including her friend had been arrested.
[5]
The principal applicant was afraid for her and her children’s
safety, and used the services of a smuggler to travel to Canada. She states
that after leaving China, she learned that her husband was fired from his job,
and that her friend was sentenced to a term of three years’ imprisonment.
[6]
In an amended Personal Information Form (PIF) submitted before
the second day of the Board’s hearing, the principal applicant alleged that she
also feared personal harm due to her violation of China’s family planning
policy. Her mother told her about a woman in their village who had been
forcibly sterilized because she had two children.
[7]
The Board found that the determinative issues
were the identity of the principal applicant as a Christian, and the
well-foundedness of her fear of being forcibly sterilized.
Fear
of Sterilization
[8]
The Board noted the principal applicant’s
allegation that a woman in her village was sterilized without her consent; however,
it found that her fear was not supported by any documentary evidence, and was inconsistent
with the evidence before the Board.
[9]
The Board found that in the principal applicant’s
home province, Guangdong, the
preponderance of the evidence indicated that violation of the family planning
policy resulted in a fine, rather than forced sterilization. The Board noted
that it found no specific reports of forced sterilization in 2002-2005 in Guangdong. The Board found that the
requirement to pay a fine could not be considered persecution for the purposes
of a refugee claim.
[10]
The Board found that the principal applicant had
not presented any persuasive evidence that the policies in Guangdong had changed. It found that her
fear was speculative, based on a story about a woman in her village and concluded
her fear of sterilization was not supported by objective evidence.
Christianity
[11]
The Board found it implausible that the PSB
would attend the principal applicant’s home looking for her on 18 occasions,
since there was no evidence she played any role within her church. The Board
also found inconsistencies in her testimony about seized photos which the principal
applicant claimed were photos of other church members. The Board found that claim
to be inconsistent with her testimony that the church took many security
precautions to protect members’ identities. The Board also rejected the
explanation for how the PSB could know which of her photos were of church
members, and rejected her explanation for not asking her husband to destroy the
photos.
[12]
The Board drew a negative inference from the principal
applicant’s testimony that the PSB had not left a summons or warrant on any of
their alleged visits to her home, which the Board found inconsistent with the
country condition documents.
[13]
Because of these inconsistencies, the Board
found that the raid on the principal applicant’s church and the seizure of the
photos had not occurred, and furthermore that the documents adduced to
corroborate these claims (a seized items certificate, and a notice of
termination proving her husband was fired), were fraudulent.
[14]
The Board found, in light of these negative
credibility findings, that the principal applicant’s claim to have practiced
Christianity in China was not
credible.
[15]
The Board then considered whether the principal applicant
was a genuine practicing Christian in Canada. The Board referred to the ‘good faith’ principle in making a
refugee claim which it stated stands for the proposition that a refugee claim
cannot succeed if the individual who was not otherwise at risk, deliberately
manipulates his or her circumstances to create a risk of persecution. The
Board found that the principal applicant’s claim was not made in good faith.
It made this determination based on its finding that the principal applicant
was not a genuine practicing Christian in China, and had joined the Christian church in Canada only to support a fraudulent refugee claim.
[16]
The Board found, in the alternative, that there
was no serious possibility that the principal applicant would be persecuted as
a Christian if she returned to China. The Board noted evidence that unregistered Christian groups are
generally tolerated in Guangdong. While there was evidence of interference with Christian practices
in other parts of China, the Board found little evidence of such in Guangdong.
[17]
The Board noted one incident of a raid on a
church in Guangdong in December
2008, but also noted that there were no arrests or prison sentences resulting
from this raid. The Board found that none of the other incidents of arrests of
Christians in recent years occurred in Guangdong. The Board found, relying on Nen Mei Lin v Canada (Minister of Citizenship and
Immigration), 2010 FC 470, that it is reasonable to
expect, if there was a serious possibility of persecution, that it would be
documented.
[18]
The Board therefore found that the principal applicant
would not face persecution as a Christian in Guangdong, or be personally subject to a risk to her life or a risk of cruel
and unusual treatment or punishment or a danger of torture.
[19]
The Board concluded that, since the minor
applicants’ claims were based on the principal applicant’s allegations, they
too were not Convention refugees or persons in need of protection. The Board
therefore rejected all of the applicants’ claims.
Issues
[20]
The applicants submit the following issues are raised:
1.
Did the Board err in its assessment of the family planning aspect of the
claim, by failing to consider the most recent relevant evidence on point and
instead making its finding based on outdated evidence?
2.
Did the Board err in its assessment of the principal applicant’s
religious identity by imposing a “good faith” requirement contrary to refugee
law and case law?
3.
Did the Board err by failing to make any findings regarding the minor
applicants’ religious identities?
4.
Did the Board err in its assessment of the risk faced by practicing
Christians in the Guangdong province?
Analysis
[21]
The standard of review of all issues, save the
second, is reasonableness. The question of whether the Board applied the
correct test for the sur place element of the claim is reviewable on a
standard of correctness, but the application of that test to the facts is
reviewable on a standard of reasonableness.
1. Relying
on Outdated Evidence Relating to Family Planning
[22]
I agree with the applicants that on the face of
the record the Board based its conclusion that the principal applicant did not
face a risk of sterilization on outdated evidence. The Board referred only to
documentary evidence from 2005 and earlier; however, there was more recent,
relevant evidence of the risk of sterilization in Guangdong that was before the
Board, specifically Response to Information Request CHN103502, China: Family
planning laws, enforcement and exceptions; reports of forced abortions or
sterilization of men and women particularly in the provinces of Guangdong and
Fujian (2007 - May 2010). This document refers to a campaign in Guangdong in April 2010 to sterilize almost
10,000 people who had violated the family planning rules. This evidence was
highlighted in the applicants’ written submissions to the Board, but was not
addressed by the Board.
[23]
I agree with the respondent that the Board is presumed to have
weighed and considered all the evidence unless the contrary is shown: Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ
No 598 (CA). However, as was held in Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35 [Cepeda-Gutierrez],
the failure to refer to highly relevant and reliable evidence that contradicts
the Board’s conclusion is a reviewable error. In this case, the Board’s
analysis of the risk of forced sterilization was limited to documentary
evidence from 2005 and earlier. The Board stated at paragraph 13 of its
reasons: “In regard to specific incidents of forced abortions or sterilizations
in Guangdong province, none could be found in reports from sources consulted by
the IRB Research Directorate.” However, as the evidence the applicants rely
upon contains specific reference to recent incidents of sterilization in Guangdong
and is directly contrary to the Board’s finding, it was necessary for the Board
to specifically address it. As it did not, that is a reviewable error.
[24]
I do not accept the respondent’s characterization of this more
recent evidence as “some isolated incidents.” The report contains evidence of
very recent large-scale forced sterilization in the applicants’ home province.
This cannot reasonably be characterized as being a series of isolated incidents
– it appears to be a systematic government initiative.
2. “Good
Faith” Requirement
[25]
The applicants submit that the Board erred in
law in its assessment of the sur place aspect of the principal
applicant’s claim by imposing a “good faith” requirement. The Board relied on
two sources. The first is a decision from New Zealand’s Refugee Status Appeals Authority in HB, Refugee Appeal No.
2254/94, September 21, 1994.
The second is James Hathaway, The Law of Refugee Status (Toronto:
Butterworths, 1991).
[26]
They submit, in part, that the sources relied
upon by the Board (the New Zealand Refugee Status Appeals Authority and a James
Hathaway text) are over 15 years old and are not specific to Canadian law.
They also rely on Ghasemian v Canada (Minister of Citizenship and Immigration), 2003 FC 1266 [Ghasemian], at paras 29-31, and submit that
there is no good faith requirement for sur place refugee claims in Canada. On the contrary, they say, even
where a claimant converts for an opportunistic reason, he or she is still
entitled to protection if he or she can establish a well-founded fear of
persecution on a Convention ground.
[27]
The Board’s decision on the good faith
requirement in the decision under review was brief. It is as follows at paras
27 to 30:
Having found that the claimant was not a Christian in China, the panel must consider whether the
claimant is a genuine practicing Christian in this country. There is a
requirement for "good faith" in making a refugee claim. In this
regard, R.P.G. Haines, the Chairman of a refugee status Appeal panel and A.G. Wang
Heed, a member of the United Nations High Commission for Refugees stated in
part:
If there is no good faith requirement in
the sur place situation, it places in the hands of the appellant for refugee
status the means of unilaterally determining the grant to him or her of refugee
status.15
15. Refugee Status Appeals Authority (New
Zeland), Refugee Appeal No. 2254/94, RE: HB September 21, 1994.
(www.
Nzrefugeeappeals.govt.nz/pdfs/ref_199940921_2254.pdf).
In this regard, the panel cites the following from James
Hathaway’s The Law of Refugee Status with regard to "sur place" claims: An individual who as a
stratagem deliberately manipulates circumstances to create a real chance of
persecution which did not exist cannot be said to belong to this category. 16 The panel finds,
on a balance of probabilities that this claim has not been made in good faith.
16.
Hathaway, James, The Law of Refugee Status, (1991).
Having found that the claimant is not a genuine practicing
Christian in China and having found that this claim has not been made in good
faith, the panel finds, on a balance of probabilities, and in the context of
findings noted above, that the claimant joined a Christian church in Canada
only for the purpose of supporting a fraudulent refugee claim.
In the context as noted above, and on the basis of the
totality of evidence disclosed, the panel finds that the claimant is not a
genuine practicing Christian, nor would she be perceived to be in China.
[28]
The respondent made no submissions on the issue
but informed the Court that the question of whether good faith was a
requirement for sur place refugee claims was currently under examination
by the Minister.
[29]
I agree with the applicant that the authorities
cited by the Board are problematic. First, the passage cited as a quotation
from Hathaway’s text is not from that source; it is a passage from the New Zealand decision. Second, Mr.
Hathaway’s view as expressed in his text does not appear to support the Board’s
conclusion. Hathaway states at page 39 that conduct intended to create a risk
of persecution may nonetheless ground a valid refugee claim, because that
conduct will lead a state to impute a negative political opinion or disloyalty
to the claimant:
It does not follow, however, that all persons whose activities
abroad are not genuinely demonstrative of oppositional political opinion are
outside the refugee definition. Even when it is evident that the voluntary
statement or action was fraudulent in that it was prompted primarily by an
intention to secure asylum, the consequential imputation to the claimant of a
negative political opinion by authorities in her home state may nonetheless
bring her within the scope of the Convention definition. Since refugee law is
fundamentally concerned with the provision of protection against unconscionable
state action, an assessment should be made of any potential harm to be faced
upon return because of the fact of the non-genuine political activity engaged
in while abroad.
This issue is most poignantly raised when it is alleged that the
fact of having made an unfounded asylum claim may per se give rise to a
serious risk of persecution. While these cases provide perhaps the most obvious
potential for “bootstrapping”, there must nonetheless be a clear acknowledgment
and assessment of any risk to basic human rights upon return which may follow
from the state's imputation of an unacceptable political opinion to the
claimant. The mere fact that the claimant might suffer some form of penalty may
not be sufficiently serious to constitute persecution, but there are clearly
situations where the consequence of return may be said to give rise to a
well-founded fear of persecution. For example, in Slawomir Krzystof Hubicki evidence
was adduced that under then-prevailing Polish criminal law, the claimant would
face imprisonment of up to eight years because he had made a refugee claim in Canada. In such situations, the basis of
claim is not the fraudulent activity or assertion itself, but is rather the
political opinion or disloyalty imputed to the claimant by her state. Where
such an imputation exits, the gravity of consequential harm and other
definitional criteria should be assessed to determine whether refugee status is
warranted.
[30]
Third, there is jurisprudence of this Court, not
referenced by the Board, which casts doubt on the soundness of its position: Ghasemian,
paras 29 - 33 and Ejtehadian v Canada (Minister of Citizenship and Immigration), 2004 FC 158, paras 10 – 12.
[31]
The question raised as to whether an absence of
good faith vitiates an otherwise founded sur place refugee claim is both
difficult and interesting. However, it does not need to be decided in this
application. I have concluded that the Board’s decision with respect to the sur
place claim is unreasonable, even if good faith is a requirement. I make
this finding because there is no support in the decision or in the record for
the finding the Board made that “the claimant joined a Christian church in Canada only for the purpose of
supporting a fraudulent refugee claim” [emphasis added].
[32]
Even if the principal applicant was not a
Christian in China, there is evidence that she attends a Christian church in Canada and participates in its activities.
Perhaps, like Saul on the road to Damascus, she had a revelation and a spiritual awakening in Canada; perhaps not. However, in order to
arrive at a decision as to the genuineness of her current beliefs some analysis
must be made of the evidence and if her evidence is to be totally discounted,
some justification must be provided for that decision. Here there is none.
The Board merely states the conclusion it has reached and it is impossible for
the Court, on the basis of the record, to ascertain why that conclusion was
reached.
3. Children’s Religious Identity
[33]
The applicants submit that the children’s fear is based on their
inability to practice their religion in China. They began practicing
Christianity with their mother upon arrival in Canada, as corroborated by a
letter from the Reverend at their church. They submit that the Board failed to
assess whether they were genuine Christians, and whether they could freely
practice their religion in China. They submit that the Board was required to
make a finding regarding all the claims, and not just that of the principal
applicant.
[34]
I agree with the respondent that the Board’s conclusion regarding
the risk of persecution for Christians in Guangdong was equally applicable to
the children and therefore was sufficient to determine their claims. It is
only if there was a risk of such persecution that the children’s religious
identity would have to be assessed.
4. Assessment
of Risk to Christians
[35]
The applicants submit that the Board ignored
some of the most pertinent evidence of risk to Christians in Guangdong, contrary to Cepeda-Gutierrez.
Specifically, the Board failed to consider a letter from Bob Fu, President of
the China Aid Association, which, it is said, refuted several of the Board’s
findings. Also ignored, they submit, is a Response to Information Request that
referred specifically to the situation in Guangdong, and which stated in part at page 63 of the Application Record:
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.
[36]
I agree with the respondent that the Board
analyzed the most recent evidence of persecution of Christians, but reasonably concluded that there
was insufficient evidence of such persecution in Guangdong. While there was evidence that ran
contrary to its conclusion, I cannot find that the evidence referred to by the
applicants (two letters by the same person) was so critical that its omission
renders the Board’s conclusion unreasonable.
[37]
Because of the Board’s error in its analysis of the principal
applicant’s risk of forced sterilization and in its analysis of the sur place
refugee claim, the application for judicial review is granted, the decision set
aside and the application remitted back to the Board for re-determination by a
different panel.
[38]
The applicants proposed a question for
certification: “Whether there is a “good faith” requirement for persons
seeking refugee protection based on the grounds of religious persecution under
Canadian law.” In light of the decision I have reached in this application,
the question posed would not be determinative of an appeal and is not a proper
question to be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the decision of the
Refugee Protection Division of the Immigration and Refugee Board dated May 6,
2011, is set aside, and the applicants’ refugee claims are remitted to a
differently constituted Board for determination. No question is certified.
"Russel W. Zinn"
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