Date:
20121015
Docket:
IMM-9100-11
Citation:
2012 FC 1200
Ottawa, Ontario,
October 15, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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BIZHU LIN
JIAHAO ZHANG (a
minor)
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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
I. Introduction
[1]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board (the Board), rendered on August 30, 2011, wherein the Board
determined that Ms. Bizhu Lin and her minor child, Jiahao Zhang (together the
Applicants), are not Convention refugees or persons in need of protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA].
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicants are citizens of the People’s Republic of China. They resided in the Province of Fujian.
[4]
In
July 2008, Ms. Lin’s thyroid gland was ablated. At the same time, her boyfriend
left her. Consequently, she became very distraught with her situation.
[5]
Ms.
Lin’s friend, Jin Hua Chen, introduced her to Roman Catholicism and took her to
an underground church. She attended the church for the first time on October
26, 2008, and continued thereafter until it was raided by the Public Security
Bureau [PSB] on February 14, 2010. Ms. Lin was able to escape to her relatives’
home.
[6]
She
subsequently learned that the PSB had been to her house and that she was
accused of being involved in an illegal underground church. She also found out
that two members of her congregation had been arrested. She left China with her son and arrived in Canada on April 7, 2010.
[7]
Ms.
Lin eventually learned that the PSB had issued a warrant for her arrest. Ms.
Lin alleges that she is still wanted by the PSB. No arrest warrant was given by
the PSB to Ms. Lin’s family members.
III. Legislation
[8]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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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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
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Personne à protéger
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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
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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 :
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(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
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b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
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(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(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,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(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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Person in need of protection
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Personne à protéger
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(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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(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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IV. Issues
and standard of review
A. Issues
1. Did
the Board err in determining that the Applicants were not credible?
2. Did
the Board err in its assessment of the Applicants' sur place claim?
B. Standard
of review
[9]
A
credibility finding is a question of fact that is reviewable on a standard of
reasonableness (see Lawal v Canada (Minister of
Citizenship and Immigration), 2010 FC 558, [2010] FCJ No 673 at para 11). The assessment of the evidence regarding the Applicant's sur place claim is reviewable on a standard of reasonableness (see Li v Canada (Minister of Citizenship and Immigration),
2011 FC 941 at para 15; Aleziri v Canada (Minister of Citizenship and
Immigration), 2009 FC 38 at para 11). Therefore, the Court must
determine “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 47 [Dunsmuir]).
V. Parties’
submissions
A. Applicants’
submissions
[10]
The
Applicants allege that the Board erred in determining that the PSB would have
left an arrest warrant with Ms. Lin’s brother while looking for her. In their
memorandum of facts and law, the Applicants refer to items 9.1 and 9.3 of the
Immigration Refugee Board of Canada [IRB]’s National Documentation Package,
which read as follows:
“[I]n practice the “PSB [Public Security Bureau] has
yet to arrive as a rule of law institution”. According to the associate
professor, there can be substantial regional variances in law enforcement, in
which some differences are written into policies . . . ” (application record,
affidavit of Owen Dobson-Smith, Exhibit B, Item 9.1, Response to Information
Requests CHN42444.E)
“[D]ue to “wide administrative discretion throughout
the country”, there are discrepancies between legislation and its
implementation in China . . .
. . .
[I]nterpreting Chinese police as a “monolithic
entity”, or judging police activities as uniform, is a misconception, arguing
that “national policy and priorities are not equally shared locally. . . . ”
. . . In terms of actual practice, however, arrest
procedures differ from locale to locale, having to conform to local customs
reflecting indigenous circumstances.” (application record, affidavit of Owen
Dobson-Smith, Exhibit C, Item 9.1, Response to Information Requests
CHN103401.E)
[11]
The
Applicants submit that the Board’s decision does not conform to its own
documentary evidence regarding criminal procedures in China. They claim that the Board’s finding regarding the warrant is based on speculation
and is not grounded on the evidence adduced before it.
[12]
The
Applicants refer the Court to Liang v Canada (Minister of Citizenship and
Immigration), 2011 FC 65 at paras 11-14 [Liang], where it is stated
that:
[11] The Board found that on a balance of
probabilities the PSB was not looking for the Applicant because no
warrant/summons had been left at her home.
[12] According to the documentary evidence, the Applicant's
testimony that no warrant/summons was left at her home, could have very well
occurred. Negative findings of credibility could very well lack reasonableness
where documentary evidence clearly indicates that which an applicant says
occurred, could in fact have occurred.
[13] The documentary evidence indicated that it is not usual
procedure to leave a summons/warrant with any other person other than the
person to whom it is issued. Thus, the PSB in this case appears to have
followed usual procedure.
[14] The documentary evidence also stated the procedures
followed by the PSB vary from region to region; and, in most instances, routine
procedures or rules give way to norms of the region. Therefore, if the norm in
the Applicant's region is for the PSB not to leave a summons/warrant for anyone
other than the person who is named, then presumably that norm is followed
regardless of how many times the PSB visits the Applicant's home or how many
people in the Applicant's house church would have been arrested and sentenced.
[13]
The
Applicants affirm that this extract runs counter to the Board’s decision. Thus,
the Board’s finding concerning the arrest warrant is unreasonable.
[14]
The
Applicants also submit that the Board erred in its assessment of the
documentary evidence regarding the persecution of Roman Catholics in Fujian province. According to item 12.8 of the IRB’s National Documentation Package “Fujian
is, alongside Hebei, Zhejiang and Liaoning, one of the provinces where the most
unregistered Catholics are located and that they are "tightly controlled"
by local authorities” (application record, affidavit of Owen Dobson-Smith,
Exhibit D, Item 12.8, Response to Information Requests CHN103401.E).
[15]
The
Applicants rely again on Liang cited above, where the Court found 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
mush 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” (see Liang at para 2).
[16]
The
Board concluded there was limited evidence to support the Applicants’ position.
However, according to the Applicants, the Board’s conclusion is erroneous as it
is based on speculation. “While there may not have any reports of Christians
being arrested in the Fujian [province], reports of persecution of house
churches in the Fujian [province] do exist: the destruction of house churches
in that province have been reported. The China Aid Association considered a
reliable, reputable source by the Board, itself, has had it reported as such”
(see Liang at para 3).
[17]
The
Applicants also rely on Liu v Canada (Minister of Citizenship and
Immigration), 2010 FC 135, more specifically paras 12-13, where the Court
made the following conclusion with respect to the persecution of Christians in Fujian province
[12] In terms of the likelihood of persecution in Fujian province
specifically, the Board correctly noted that the attitude toward Christianity
there appears to be more tolerant than elsewhere in China. Further, small
groups of people praying and studying the Bible were rarely targeted. Still,
the documentary evidence cited by the Board also referred to the fact that:
- unregistered
churches are illegal;
- prayer
meetings are usually allowed but, in some areas, house churches with only a few
members are proscribed;
- officials
sometimes harass unregistered religious groups;
- while there
were no reports of actual arrests or prosecutions of Christians in Fujian province in 2007, those who are persecuted often fail to report their mistreatment.
[13] 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.
[18]
According
to the Applicants, the Board did not assess all of the evidence related to the
risk of persecution in Fujian province. They refer to paragraph 24 where the
Board states there “is mixed information regarding the treatment of Christians
in Fujian province” (see the Board’s decision at para 24).
[19]
The
Applicants also allege that the Board erred in its analysis of their sur
place claim. There is no obligation of good faith and “opportunistic
claimants are still protected under the Convention if they can establish a
genuine and well-founded fear of persecution for a Convention ground” (see Ghasemian
v Canada (Minister of Citizenship and Immigration), 2003 FC 1266 at para
31).
[20]
For
these reasons, the Applicants claim that the Board’s decision is unreasonable.
B. Respondent’s
submissions
[21]
The
Respondent underlines that the Applicants made two contentions that are not
related to the Board’s decision. Firstly, the Board never stated that good
faith is a prerequisite to making a refugee claim. Secondly, the Applicants
allege that the Board only considered the issue of arrest in its analysis of
persecution in the Fujian province. These two allegations, according to the
Respondent, cannot form the basis of a valid claim for judicial review.
[22]
The
Respondent also alleges that the Board’s credibility findings are reasonable as
the Applicants are ignoring the context of the Board’s decision. The Board
expressly concluded that the documentary evidence with respect to the issuance of
warrants is mixed. The Board weighed the evidence in light of the Applicants’
circumstances. As a result of this analysis, the Board reasonably concluded,
based on the country documentation, that the Applicants lacked credibility, according
to the Respondent.
[23]
The
Respondent affirms that “the Board based its decision on documentary evidence
that in many cases warrants or summons are normally left. It was up to the
Applicant to introduce into evidence all the material to establish that her
claim was well-founded and a lack of relevant documents can be a valid
consideration for the purpose of assessing credibility” (see He v Canada
(Minister of Citizenship and Immigration), 2010 FC 525 at para 14).
[24]
As
for the Board’s conclusion concerning the arrests of Ms. Lin’s fellow church
members, the Respondent claims that it is reasonable to expect that these
arrests would be reported given that the members were sentenced to several
years of incarceration. The Respondent relies on Yu v Canada (Minister of
Citizenship and Immigration), 2010 FC 310 at paras 34 and 38 [Yu], wherein
the Court determined that where there is a paucity of documentary evidence
attesting of religious persecution in a given province, there is no evidence of
religious persecution.
[25]
Given
that there is no evidence to demonstrate that Ms. Lin would be persecuted if
she was to attend an underground church in China, the Respondent affirms that
the Board’s decision is reasonable and ultimately determinative of the
Applicants’ application for judicial review.
[26]
The
Respondent finally argues that there is no doubt that the Board did consider
the issue of church members’ arrests in Fujian, particularly in light of the
Applicants’ claim. In the present case, the Applicants failed to adduce
evidence demonstrating that Catholics practicing in unregistered churches are
persecuted in the province of Fujian. According to the Respondent, the Board’s
analysis of the country documentation was thorough analysis and it reasonably
concluded that the Applicants were not credible.
VI. Analysis
1. Did
the Board err in determining that the Applicants were not credible?
[27]
The
Board did not err in determining that Ms. Lin was not credible.
[28]
A
credibility finding is factual in nature. “The jurisprudence is clear in stating
that the Board's credibility and plausibility analysis is central to its role
as trier of facts and that, accordingly, its findings in this regard should be
given significant deference” (see Lin v Canada (Minister of Citizenship and
Immigration), 2008 FC 1052, [2008] FCJ No 1329 at para 13).
[29]
The
Applicants contend that the Board erred in determining that the PSB would have
left a warrant with Ms. Lin’s brother. The Applicants refer to item 9.3 of the
National Documentation Package where it is shown that arrest procedures are
inconsistent throughout China and vary from region to region. They note that
“the documentary evidence indicate[s] that it is not usual procedure to leave a
summons/warrant with any other person other than the person to whom it is issued”
(see Liang at para 13).
[30]
No
evidence was adduced by the Applicants to demonstrate that, in the context of
their claim, the PSB followed common procedures. This distinguishes this case
from the situation in Liang where the Court held that “the norm in the
Applicant's region is for the PSB not to leave a summons/warrant for anyone
other than the person who is named, then presumably that norm is followed
regardless of how many times the PSB visits the Applicant's home or how many
people in the Applicant's house church would have been arrested and sentenced”
(see Liang at para 14). There was no evidence presented to demonstrate
that the PSB does not leave warrants with family members in Fujian province.
The Board reasonably determined that the PSB was not looking for the Applicants
in China.
[31]
The
Court finds that the Board reasonably assessed all of the evidence adduced by
the Applicants concerning the persecution of Catholics in Fujian province. The
Board noted in its decision that “there is mixed information regarding the
treatment of Christians in Fujian province. [However,] [i]n the case of the
Catholic Church, there is information detailing very specific examples from
areas much more remote and difficult to access than Fujian province. There is
even information from Fujian province that indicates to the panel that
information regarding persecutory treatment against members of the Catholic
faith is documented if it has occurred” (see the Board’s decision at paras 24
and 28). In the present case, it was open to the Board to rely on particular
documentary evidence (see Yu cited above at paras 32-33). Even though
some documents were contradictory, the Board reasonably determined that there
was no evidence to show that religious persecutions had occurred in Fujian province. The Board’s assessment on that issue cannot be qualified as unreasonable
or capricious as it falls within the range of possible and acceptable outcomes.
There was no documentary evidence supporting the proposition of raids to
underground churches in Fujian province Therefore, the Board reasonably
concluded there was not a serious possibility that the Applicants would be
persecuted or that they would be subjected personally to a danger of torture or
to a risk to their life, or a risk of cruel and unusual treatment or punishment
should they return to their country of origin.
2.
Did the Board err in its assessment
of the Applicants' sur place claim?
[32]
In
Ejtehadian v Canada (Minister of Citizenship and Immigration), 2007 FC
158 at para 11, Justice Blanchard stated:
[11] . . . In
a refugee sur-place claim, credible evidence of a claimant’s activities
while in Canada that are likely to substantiate any potential harm upon return
must be expressly considered by the IRB even if the motivation behind the
activities is non-genuine: Mbokoso v. Canada (Minister of Citizenship and
Immigration, [1999] F.C.J. No. 1806 (QL). The IRB’s negative decision is
based on a finding that the Applicant’s conversion is not genuine, and “nothing
more than an alternative means to remain in Canada and claim refugee status.”
The IRB accepted that the Applicant had converted and that he was even ordained
as a priest in the Mormon faith. The IRB also accepted the documentary evidence
to the effect that apostates are persecuted in Iran. In assessing the
Applicant’s risks of return, in the context of a sur-place claim, it is
necessary to consider the credible evidence of his activities while in Canada, independently from his motives for conversion. Even if the Applicant’s motives for
conversion are not genuine, as found by the IRB here, the consequential
imputation of apostasy to the Applicant by the authorities in Iran may nonetheless be sufficient to bring him within the scope of the convention
definition.
. .
[33]
According
to Justice Blanchard, the Board should not consider the genuineness of the
Applicant's faith but rather look at the consequences of the Applicant's
beliefs acquired in Canada, based on credible evidence and the possibility of
persecution in his country of origin.
[34]
The
Applicants provided pictures of religious ceremonies and a letter from Reverend
Peter Chin dated November 1, 2011. They also adduced documentary evidence to
demonstrate that Christians are being persecuted in China. However, this Court,
further to a thorough review of the evidence adduced, finds no reviewable error
in the Board’s conclusion that the Applicants failed to meet the burden of
establishing a serious possibility that they would be persecuted or that they
would be personally subjected to a risk to their life or a risk of cruel and
unusual treatment in China.
VII. Conclusion
[35]
This
application for judicial is dismissed. The Board’s conclusion is reasonable as
it “falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law (see Dunsmuir at para 47).
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
This
application for judicial review is dismissed; and
2.
There
is no question of general importance to certify.
"André F.J.
Scott"
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