Date: 20120518
Docket: IMM-8334-11
Citation: 2012 FC 610
Ottawa, Ontario, May 18, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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LIAN ZHI WANG and KAIXIANG XU
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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 JUDGMENT AND
JUDGMENT
[1]
The
applicants seek judicial review of a decision of Senior Immigration Officer M.
Beauregard (Officer), dated September 20, 2011, refusing the applicants’
Pre-Removal Risk Assessment (PRRA) application pursuant to section 112 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that
follow, the application is granted.
Facts
[2]
The
applicants, Lian Zhi Wang (principal applicant) and her son, Kaixang Xu, are
both citizens of China. The principal
applicant states that she started practicing Christianity due to the
encouragement of a friend, Ms. Hong Zhou, after she was passed over for a
promotion and lost her job the following year. She started attending three
underground churches every week.
[3]
On
May 13, 2007, one of the churches she was attending was raided. The principal
applicant managed to escape and hid in her uncle’s home. She states that the
Public Security Bureau (PSB) visited her home and advised her husband that they
were looking for her. She also states that her son was suspended from school
on May 24, 2007 as a result of this incident. The principal applicant took her
son and fled to Canada and continues to attend
church here. She states that her husband was fired from his job for her
religious activities after she left and that her husband has subsequently
disappeared and her only remaining contact in China, Ms. Zhou, has been unable
to locate him.
[4]
On
September 21, 2007, the applicants made their refugee claim. The Refugee
Protection Division (RPD) rejected their claims, finding the principal
applicant’s evidence not credible. The RPD did not believe that the principal
applicant attended a house church in China that was raided by the PSB, or that she was a
genuine practicing Christian. The applicants made their PRRA application on
December 16, 2010.
Decision Under Review
[5]
The Officer
reviewed the applicants’ allegations and the RPD’s decision. The Officer noted
that the applicants submitted evidence in support of their PRRA application but
found that some of that evidence, a letter from the Chinese Alliance Church of
Toronto, some photographs and their baptismal certificates, could not be
considered because it predated the RPD decision. The Officer further found
that a more recent letter from the Chinese Alliance Church of Toronto could not
be considered because it simply reiterated the content of the earlier letter.
[6]
Turning
to the evidence that could be considered the Officer gave no weight to a letter from Ms. Zhou which advised that
members of the prayer group are still harassed, that while the applicant’s
husband hasn’t been found, she is continuing efforts to locate him. The Officer
noted that the letter was neither an original document nor was an affidavit
submitted. The Officer also noted the absence of any warrants, subpoenas or
notice of suspension from the school. Thus, since the letter repeated the
story the RPD found not credible and no corroborating evidence was presented,
the Officer gave this document no weight.
[7]
Having
rejected the principal applicant’s allegations of persecution in China the Officer went on to
consider whether the applicants were at risk due to practicing Christianity
since arriving in Canada. In support of this
allegation the Officer noted the applicants submitted past Federal Court
decisions finding no religious freedom in China and general documentation
recounting persecution of Christians in China, particularly in the applicants’ province of Guangdong.
[8]
The
Officer found that certain issues persist in terms of religious freedom but
that nonetheless, Christianity is growing in China. The Officer noted that Protestant house
churches are not prohibited but public religious services are prohibited unless
affiliated with a patriotic religious association. The Officer quoted from
some of the documentary evidence finding that millions of people in China practice Christianity
and some have observed more tolerance from authorities. The Officer further
noted evidence that Guangdong was recognized as a
province that tolerates the practice of house churches. The Officer therefore
concluded:
Although
I am not questioning the fact that the applicant is currently a practicing
Christian, it seems that millions of people share the same Christian faith as
the applicant in China despite Chinese government control,
which varies from one region to the next. Although some Christians are still
the target of repression and persecution, Chinese authorities more specifically
target people in leadership positions in prohibited churches. Ms. Wang did not
indicate or show that she held this type of position in her church or
participated in activities in Canada which would result in her being targeted
or being of particular interest to Chinese authorities if she returned to
China.
[9]
The
application was therefore refused.
Standard of Review and Issue
[10]
The
issue raised by this application is whether the Officer’s decision was
reasonable: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190.
Analysis
[11]
The
applicants argue that the Officer failed to consider all the evidence, and that
his conclusions are irreconcilable with significant portions of the evidence
before him. I agree with the respondent that most of the applicants’
submissions amount to a request to re-weigh the evidence, which is not the
purview of the Court upon judicial review: El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 9.
[12]
However,
the applicants make two submissions that are more compelling: the first is that
the Officer erred by relying on the fact that 50 million people practice
Christianity in China. This statistic
appears to be relied upon to support the conclusion that the applicants are not
at risk, the logic being that such a large number of people would not practice
Christianity if to do so would place those people at risk. As the applicants
submit, the number of practitioners is itself irrelevant, and furthermore the
context of that statistic matters, in a country as large as China 50 million may be a
relatively small figure. Thus, I agree with the applicants that the Officer
applied a kind of North American logic to this statistical figure and it was
unreasonable to infer from it that the applicants are not at risk: Rahnema v
Canada (Solicitor General), [1993] FCJ No 1431 at para 20.
[13]
The
applicants’ other persuasive argument relates to the Officer’s quotation from a
particular document. The Officer purported to cite Response to Information
Request (RIR) CHN103500, China: Situation of Protestants and treatment by
authorities, particularly in Fujian and Guangdong (2005 - May 2010), to conclude that Guangdong is a more tolerant
province than others. The applicants note, however, that the quotation does
not appear in that document and they cannot determine the source of the
quotation relied on by the Officer.
[14]
Part
of the applicants’ difficulty locating the quotation stems from the fact that,
although the application was submitted entirely in English, the PRRA decision
was rendered in French and then translated (yet another example of the problems
inherent in this practice). The confusion was further compounded by the fact
that “catholiques” was erroneously translated to “Protestants” in the English
version of the decision.
[15]
What
the applicants were not able to figure out is that, while the Officer claims to
be quoting RIR CHN103500, he actually quotes from RIR CHN103501, China:
Situation of Catholics and treatment by authorities, particularly in Fujian and Guangdong (2005 - 2010). Thus, while the Officer
should have been (and evidently thought he was) citing a document about
treatment of Protestants, he was actually citing a document about treatment of
Catholics. The evidence in these respective documents is substantively different.
The English version of the document actually cited by the Officer states:
Information
on the specific situation of Catholics in Guangdong and Fujian provinces was scarce among the sources consulted by the
Research Directorate. However, several sources stated that they believed that
authorities in Guangdong and Fujian
provinces might be more tolerant than those in other Chinese provinces (Hong
Kong Christian Council 14 June 2010; Graduate Student 12 June 2010).
[16]
In
contrast, RIR CHN103500, which discusses treatment of Protestants in Guangdong, and was specifically
emphasized in the applicants’ PRRA submissions, states:
Information
on the specific situations of Protestants in Guangdong and Fujian provinces was scarce among the sources consulted by the
Research Directorate. In the 9 June 2010 telephone interview with the Research
Directorate, the President of the CAA stated that east coast provinces are
generally "more open" with fewer incidents involving Christians
reported to the CAA (CAA 9 June 2010). However, the CAA President also stated
that this did not necessarily mean there were fewer incidents, but rather that
they were not reported (ibid.). In addition, in a letter provided to the
Research Directorate, originally sent to a Canadian asylum lawyer on 3 June
2010, the President stated:
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. (ibid. 3 June 2010)
[17]
The Officer’s
finding that Guangdong was more tolerant than
other provinces was clearly material to his conclusion that the applicants were
not at risk if returned to their home province. The applicants submitted
several pieces of documentary evidence on the treatment of Protestants in Guangdong, particularly
highlighting RIR CHN103500. The Officer did not consider any of the articles
submitted by the applicants and instead of considering RIR CHN103500 he
erroneously considered RIR CHN103501, which is about Catholics.
[18]
Thus,
since the Officer based his finding regarding persecution in Guangdong on evidence that was
irrelevant to the applicants’ circumstances, the Officer’s conclusion was
reached without regard to the evidence and the application should be granted.
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. There is no question for certification.
"Donald
J. Rennie"
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