Docket: IMM-6066-11
Citation: 2012 FC 578
Ottawa, Ontario, May 15,
2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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XIAO FAN WU
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act] for judicial review of the
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated August 10, 2011, which refused the applicant’s
claim to be deemed a Convention refugee or a person in need of protection under
sections 96 and 97 of the Act.
[2]
The applicant seeks an order setting aside the decision and
remitting the matter for redetermination by a differently constituted panel of
the Board.
Factual Background
[3]
Ms.
Xiao Fan Wu (the applicant) is a fifty (50) year old citizen of the People’s
Republic of China. The applicant
lived in Enping
City, Guangdong Province,
where she worked as a farmer. The applicant seeks protection in Canada as she
fears persecution in China due to her religious beliefs and her
activities with an illegal underground church.
[4]
The
applicant submits that she was first drawn to Christianity after suffering
through several set-backs, including failed business ventures and failed
relationships. In November of 2008, the applicant met an old friend and former
schoolmate, Zheng Liu, in the market, who informed the applicant of her
religious beliefs and adherence to the Christian faith.
[5]
Subsequently,
the applicant alleges that she met regularly with her friend and the two
discussed Christianity together. On December 20, 2009, the applicant was
invited by her friend to attend an underground church. Though the applicant
knew underground churches to be illegal, her friend assured her that safety
precautions were taken to avoid detection.
[6]
In
February of 2010, the applicant shared her faith with another friend, A Jiao,
and invited her to the church.
[7]
On
August 22, 2010, the applicant was baptized by Pastor Chen with the underground
church.
[8]
On
November 20, 2010, the applicant asserts that while she was out, she received a
call from her brother informing her that the Public Security Bureau (PSB) had
discovered the underground church and had arrested other church members. The
applicant alleges that her brother had also informed her that the PSB had
searched their home and had demanded that the applicant report to them as soon
as possible.
[9]
After
learning of the arrests, the applicant fled to Guangzhou and went
into hiding. The applicant then sought the services of a smuggler in order to
travel to Canada. The
applicant left China on January 7, 2011 and arrived in Canada the next
day. The applicant then filed for refugee status on January 12, 2011.
[10]
Since
her arrival in Canada, the applicant submits that she has been
attending the Living Water Assembly, Pentecostal Christian Church, since
February 6, 2011. The applicant alleges that she attends church every week and
submits that she was baptized by Reverend David Ko on April 23, 2011.
Furthermore, the applicant maintains that since her arrival in Canada, the PSB
have continued their efforts to search for her in China and have
searched for her on eight (8) separate occasions.
[11]
The
applicant’s refugee claim was heard by the Board on July 4, 2011.
Decision under Review
[12]
In
its decision, the Board’s central focus was the credibility of the applicant
and the risk of persecution encountered by Christians in the province of
Guangdong, China.
[13]
On
the issue of the applicant’s credibility, the Board noted that several of the
applicant’s allegations contradicted the documentary evidence. The Board noted
that though the applicant testified that some of her fellow believers had been
arrested, she was not able to provide details regarding the number of
individuals arrested or regarding the sentences they received. The Board deemed
two main aspects of the applicant’s testimony to be implausible: 1) that the
PSB had never left a summons or warrant with the applicant’s family; and 2)
that the PSB had never threatened the applicant’s parents or removed access to
any services in the course of their eight visits to her family home. Moreover,
the Board concluded that the applicant had failed to establish the genuineness
of her belief in Christianity and gave little evidentiary weight to the
documentary evidence submitted by the applicant in this regard.
[14]
With
respect to the issue of the risk of persecution, the Board found that in light
of the documentation on the country conditions in China, the
applicant could return to China and practice her faith freely and openly
and that there was
no serious possibility that the applicant would be persecuted as a Christian.
After reviewing the documentary materials and recent case law from the Federal
Court, the Board noted that while there was evidence of interference with
Christian practices in other parts of China, there was little evidence of such interference
in the province
of Guangdong.
Issues
[15]
The
issues are the following:
i.
Did the
Board err in its evaluation of the credibility of the applicant?
ii.
Did the
Board err in its assessment
of the risk of persecution faced by Christians in the Guangdong province?
Statutory Provisions
[16]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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Refugee Protection, Convention Refugees and Persons
in Need of Protection
Convention refugee
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; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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Notions d’asile, de réfugié et
de personne à protéger
Définition de « réfugié »
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;
b) soit, si elle n’a
pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
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.
Person in
need of protection
(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
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Personne à protéger
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.
Personne à
protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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Standard of Review
[17]
As
the matter at hand pertains to the Board’s assessment of the applicant’s
credibility and the risk of persecution, the standard of reasonableness applies
as they are both questions pertaining to a determination of facts (Aguebor v
Canada (Minister of Employment and Immigration) (FCA), [1993] FCJ No 732,
160 NR 315; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Lin v Canada (Minister of Citizenship and Immigration),
2012 FC 157, [2012] FCJ No 167). As Justice Frenette reiterated
in the case of Chen v Canada (Minister of Citizenship and Immigration),
2008 FC 1168 at para 11, [2008] FCJ No 1454, “[w]hen the issue involves matters of facts or law applied to facts, a
judicial review is not to be granted if the decision falls within the range of
acceptable assessments of the facts.”
Analysis
i.
Did
the Board err in its evaluation of the credibility of the applicant?
[18]
With
respect to the matter of the genuineness of the applicant’s religious beliefs,
the Court is of the view that the Board assessed the applicant according to an
erroneously high standard of religious knowledge. While on the one hand the
Board acknowledged the applicant’s knowledge of religious matter (Board’s
decision, para 12), on the other hand, it found that the applicant’s inability
to provide more information regarding three (3) specific questions in relation to
the Pentecostal story was fatal and thus, the applicant was not a genuine
Christian and not credible. The Court is of the view that, in the
circumstances, the Board adopted an over vigilant microscopic examination of a
few points and this approach is clearly contrary to the case law of this Court
(Huang v Canada (Minister of Citizenship and Immigration),
2008 FC 346, [2008] FCJ No 452; Wu v Canada (Minister of Citizenship
and Immigration), 2009 FC 929, [2009] FCJ No 1143; Wang v Canada
(Minister of Citizenship and Immigration), 2011 FC 1030, [2011] FCJ No
1291). The Court also observes that the evidence includes a letter from the
pastor of the applicant’s current Pentecostal church and her certificate of
baptism and that the applicant only has three (3) years of formal education.
[19]
Also,
on the issue of summons, the Board found that it would have been reasonable for
the PSB to issue a summons to the applicant. However, the document CHN42444.E
(Tribunal Record, pp. 81-84)that the Board relied upon contains contradictory
information as to when a summons is issued. The Board relied upon certain
portions of the document which supported its findings but ignored other pieces
of information that corroborated the applicant’s allegations (Mui v
Canada (Minister of Citizenship and Immigration),
2003 FC 1020, [2003] FCJ No 1294; Shu v Canada
(Minister of Citizenship and Immigration), 2011 FC 958,
[2011] FCJ No 1174).
[20]
Further,
the Court notes that the Board provided unclear and somewhat contradictory and
speculative statements on the subject of the lack of summons in paragraph 11 of
its decision:
… In addition, the summons is the documentary basis for the
subsequent issuance of an arrest warrant if the person in whom they are
interested does not respond to the summons. Although this policy is not always
implemented, or implemented with consistency, it is reasonable that one would
have been issued in respect of the claimant given that the claimant testified
that the PSB had gone to her home in search of her on eight occasions. …
2) Did the Board err in its assessment of the
risk of persecution faced by Christians in the Guangdong province?
[21]
Finally,
the Board made an unreasonable assessment of the facts regarding freedom of
Christian faith in Guangdong in ignoring conflicting documentary evidence
and failing to address why it did not rely and consider the contradictory
evidence.
[22]
More
particularly, the Board considered the document CHN103500.E (Tribunal Record,
pp. 96-98) which indicated that in Guangdong province, there have been
incidents between 2007 and 2009. Also, the China Aid Association (CAA) report
identifies Christian targets of religious persecution in the Guangdong province
(Tribunal Record, p 192) and makes clear reference to various incidents of
persecution in Guangdong. Yet, the Board held the following at para 16:
“the panel is satisfied that if the claimant were to return back to China, she could
openly and freely practice her faith”. While it was open to the Board to come to
that conclusion, it failed to explain how or why it concluded that the
applicant could openly and freely practice her faith if she were to return to
China despite the incidents noted and recorded in connection with the Guangdong province.
[23]
For all of these reasons, the application
for judicial review will therefore be granted.
[24]
As
neither party has proposed a question for certification, none will be
certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is granted;
2.
The
matter is referred back to the Immigration and Refugee Board to be determined
by a new and different constituted Board;
3.
There
is no question for certification.
“Richard
Boivin”
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