Date: 20120515
Docket: IMM-7359-11
Citation: 2012 FC 586
Toronto, Ontario, May 15, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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LIHUA SU
JUN BIN YANG
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Applicants
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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 ORDER AND ORDER
[1]
In
December 2010, the Applicant Lihua Su, and her young son, both citizens of
China, fled their home in Guangdong Province in China and claimed refugee
protection in Canada. The claim is based on the Applicant’s evidence as the
principal claimant that she is a Christian and, because of this religious
identity, if she is required to return to China she will suffer more than a
mere possibility of persecution under s. 96 of the IRPA, or probable
risk under s. 97 of the IRPA.
[2]
In
the decision under review the Refugee Protection Division (RPD) accepted the
Applicant’s evidence that she is a Christian. However, the RPD denied the
Applicant’s claim on a determination that, as a matter of fact, if the
Applicant and her son return to their home in Guangdong, the objective risk
claimed under both s. 96 and s. 97 cannot be established.
[3]
The
RPD’s determination is based on the opinion that, while there is evidence of
persecution of Christians in Guangdong, the risk of persecution is low for
persons described as “lay” Christians. Whether this opinion is sustainable
depends on the quality of the RPD’s analysis of the evidence on the record with
respect to the current conditions of persecution facing Christians in
Guangdong. For the reasons that follow I find that the analysis is made in
reviewable error because it neglects to address key elements of the evidence.
[4]
The
RPD’s analysis of the most current in-country evidence available at the time
the decision under review was made focussed on the 2010 China Aid Association
Report which is named in the Immigration and Refugee Board’s document index as
Item 12.10. The precise evidence of acts of persecution in Guangdong noted in
the document for the period January 2010 to December 2010 are stated as
follows:
[5]
The
RPD provides the following analysis of the information provided in the 2010
China Aid Association Report:
[…] This report very
specifically notes the arrests and incidents of persecution of Christians in
China from January 2010 to December 2010. This report states that during 2010,
the number of Christians persecuted in all of China was 3,343 and that the
number of Christians arrested and detained was 556. Further, the report
indicates that only 6 individuals were ‘sentenced’ following detention, a
significant drop from 23 individuals a year prior. The panel notes the figures
pertaining to the total number of Christians persecuted are somewhat
misleading. The statistics for the province of Guangdong indicates 233 people
were ‘persecuted’. Closer examination reveals that four of the incidents
involve Pastor Wang Dao and the Liangren church which held its services in a
park in Guangzhou
City. Two of these incidents
indicate more than 100 individuals were involved. A third incident indicates
more than ten individuals were involved. This brings the total for the four
events to 212 individuals. The manner in which these incidents are reported
suggest that these incidents [are] likely the same congregants.
[…]
The 2010 China Aid Association
document identified that the pastor of the Liangren Church continues to be
harassed by authorizes [sic] and has been interrogated several
times over the past two years and that he was criminally detained and beaten.
This report suggests that the pastor was accused of “sedition” for having
posted articles on the Internet. The report also suggests that the pastor is
being harassed because of his intention to hold a large outdoor service. In any
event, there is no indication that any lay persons were arrested or have ever
been arrested in connection with Liangren church. The panel takes note that the
Liangren church is distinctive in its profile from other underground churches
in China in terms of its size and the confrontational actions of its pastor.
[…]
The panel has considered that
the China Aid Association (CAA) and its president, Bob Fu, have stated in its
report that they have not documented all cases of persecution and religious
repression which has occurred in every province in China, including Guangdong and Fujian. However, the panel notes again that
there has been no persuasive evidence of recent arrests or incidents of
persecution of lay Christians in Guangdong province in any of the documentation
regarding religious persecution in China.
[Emphasis added]
[Footnotes removed]
(Decision, paras. 16, 18, and
21)
[6]
On
the evidence considered, the conclusion reached by the RPD is fully described
as follows:
The panel recognizes that even
if the evidence speaks of some harm that would qualify as serious, the Refugee
Protection Division must consider whether there is a serious possibility that
the harm will actually come to pass. A statute which outlaws the claimant’s
conduct or characteristic may be in existence, and it may provide for
unconscionably severe punishment for that conduct or characteristic, but this
does not necessarily mean there is a serious possibility that the punishment will
be inflicted on the claimant. The Supreme Court has emphasized that, in a determination
as to whether the claimant’s fear is objectively well-founded, the relevant
factors include the laws in the claimant’s homeland, together with the manner
in which they are applied. In this connection, the Court cited the UNHCR”
Enforcement measures may vary
from area to area within a country, and if this is the case, “the
reasonableness of a fear of persecution depends, inter alia, on the practices
of the relevant local authority”. A pattern of non-enforcement might imply that
there is less than a serious possibility.
As has been discussed, the
supporting documentary evidence for the claimant’s home province of Guangdong
indicates the risk of persecution for practicing Christians is low. The panel
has considered the documentary evidence about conditions in Guangdong province
and the claimant’s personal circumstances. The panel finds, on a balance of
probabilities, that the claimant would be able to practice her religion,
worshiping in the Christian congregation of her choosing, if she were to return
to her home in Guangdong province in China and that there is not a serious
possibility that she would be persecuted for doing so.
(Decision, paras. 24 – 25)
[7]
However,
in the analysis of the evidence on the record leading to the conclusion reached
by the RPD, the RPD neglected to address the “November” entry in the 2010 China
Aid Association Report quoted above: “many house churches are forced to close
during the period of the Asian Games in Guangdong”. The RPD
also neglected to address the internet story that details the action taken
against “lay” Christians cited at http://www.chinaaid.org/2010/11/guangzhou-bans-prayer-meetings.html
which reads as follows:
Authorities in the southern
Chinese city of Guangzhou have banned unofficially Protestant “house churches”
from holding meetings, as the city prepares to host the Asian Games later this
week.
Local pastors and their
congregations have been warned not to meet during the 16th Asian
Games, which run from Nov. 12 to 27 [2010], according to rights lawyer and
Protestant house church member Tang Jingling.
“This situation is fairly
widespread among all the house churches I have dealings with,” Tang said.
“[The authorities] have been
seeking out the pastors of these groups and ordering them to stop holding
meetings.”
He said some of the groups had
responded by splitting up into much smaller groups and meeting at locations
which never remain the same.
He said that police had
approached the leaders of his own church group over the ban, which Tang said
was likely to remain until January.
“We have switched to small
group meetings because of this, meeting at a different person’s house each
time,” Tang said.
But he said the churches are
not taking an antagonistic attitude to the Games. “No one is planning to do
anything. However, if you make trouble for people, of course that is going to
cause some antipathy”.
Wang Dao, pastor of the
Guangzhou Liangren church, said that local police had tried to call on him
while he was out of town, and that the order was apparently extended to all
house churches in the entire Pearl River Delta region.
“The day I came to Shanghai on
Oct. 31, some of my brothers and sisters told me that the police had come to my
house to speak to me,” Wang said.
“It’s not just in Guangzhou,
but it includes the whole Pearl River delta areas,” he added.
“I had a text message from a
church in Jiangmen, saying that they had been told to stop their regular
meetings over the period of the Asian Games, for security reasons.”
But he said that Protestant
groups in the region are unlikely to pose much of a security threat.
“There isn’t an issue with
security” he said. “I think it’s just an excuse, so they can undertake a total
crackdown and cleanup of house churches.”
China’s unregistered churches
are under constant fire from the government for operating outside officially
sanctioned religious activities.
Officially an atheist country,
China has an army of officials whose job is to watch over faith-based
activities, which have spread rapidly in the wake of massive social change and
economic uncertainty since economic reforms began 30 years ago.
Party officials are put in
charge of Catholics, Buddhists, Taoists, Muslims, and Protestants. Judaism
isn’t recognized, and worship in unapproved temples, churches, or mosques is
against the law.
In its most recent report on
human rights in China, the U.S. State Department said freedom of religion is
permitted to varying degrees around China.
[8]
I
accept Counsel for the Applicant’s argument that the RPD’s failure to consider
all of the evidence available in the 2010 China Aid Association Report with
respect to the Applicant’s religious identity constitutes a reviewable error.
This is so because the November entry and the internet article contradict the
RPD’s finding, as emphasized above, that there is “no persuasive evidence of
recent arrests or incidents of persecution of lay Christians in Guangdong
province in any of the documentation regarding religious persecution in China”.
[9]
As
a result, I find that the decision under review does not fall within a range
of possible, acceptable outcomes which are defensible in respect of the
facts and law.
ORDER
THIS COURT
ORDERS that:
The decision under review is set aside and the matter is
referred back for redetermination to a differently constituted panel.
There is no
question to certify.
“Douglas
R. Campbell”
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