Date:
20120531
Docket:
IMM-7565-11
Citation:
2012 FC 671
Toronto, Ontario, May 31 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
|
|
YU KUN LIN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
MOSLEY J.
[1]
The
applicant, a citizen of China, claimed refugee protection based on a fear of persecution
because of his Roman Catholic faith. He seeks judicial review of the decision of
the Immigration and Refugee Board, Refugee Protection Division (the “Board”) which
determined that he is not a Convention refugee or person in need of protection.
[2]
For
the reasons that follow, the application is dismissed.
[3]
The
applicant is from Fujian Province. He claimed that he began attending house
church services and distributing pamphlets about Catholicism in May 2008. A
year later he learned that agents of the Public Security Bureau (the “PSB”) had
been to his house looking for him. He was dismissed from his school for participating
in illegal religious activities. Enlisting the aid of a smuggler, he fled China
in September 2009 and came to Canada to claim protection. He was baptized here
in April 2011. His claim was denied on October 3, 2011.
[4]
The
sole issue in this matter is whether the Board’s decision is reasonable. The
decision was based on mixed findings of fact and law and is reviewable on the
reasonableness standard: Dunsmuir v New Brunswick, 2008 SCC 9 at paras
51 and 53.
[5]
The
applicant submits that the Board erred in its consideration of the documentary
evidence and points to certain documents from the record which contain
statements that are not consistent with the Board’s findings, including,
specifically, a letter from the China Aid Association regarding the persecution
of Christians in China. In my view, however, it was reasonable for the Board
not to mention this letter as the Board had already accepted evidence of some
persecution and referenced other evidence to the same effect from the China Aid
Association.
[6]
The
applicant relies on findings by this Court that Catholics are at risk of
persecution in Fujian Province, citing Liang v Canada (Minister of
Citizenship and Immigration), 2011 FC 65 at paragraphs 2 and 3, and Liu
v Canada (Minister of Citizenship and Immigration), 2010 FC 135 at paragraphs
12 and 13.
[7]
He
further contends that the Board erred by failing to consider forms of
persecution other than arrest, including restrictions on religious freedom. He
notes that this Court has interpreted religious freedom broadly, including in Chen
v Canada (Minister of Citizenship and Immigration), 1997 CarswellNat 171,
where the Court found a reviewable error when the Board focused on the chances
of a particular claimant being singled out for arrest rather than looking at the
“continuing system of sanctions in China against those who practice
unauthorized religions.”
[8]
Finally,
the applicant submits that the Board unreasonably found that the PSB would have
left a summons if they were really looking for him, citing reports in the
National Documentation Package that state that there is no consistent policy
and that police procedures vary from one region to the next.
[9]
As
the respondent has pointed out, Liang, above, does not stand for the
broad proposition that all Catholics in Fujian are at risk. Rather, each
refugee claimant must provide sufficient credible evidence to establish a risk
of persecution: He v Canada (Minister of Citizenship and Immigration),
2011 FC 1199 at paras 15-18; and Yu v Canada (Minister of Citizenship and
Immigration), 2010 FC 310 at para 22.
[10]
The
Board drew a negative inference from the lack of a summons in part because the
applicant claimed that the PSB had visited his home nine times. Considering the
evidence on the uneven enforcement practice of the PSB, this may have been
unreasonable (see Weng
v Canada (Minister of Citizenship and Immigration), 2011 FC 422 at
paras 16-18).
However, this one inference was not determinative and is not sufficient to
render the entire decision unreasonable.
[11]
The
Board was cognizant of the mixed evidence relating to the treatment of
Catholics in China. It acknowledged that there is “sporadic” persecution of
underground Catholic churches, but found that the risk varied significantly
from one province to another.
[12]
Turning
to the Fujian province specifically, the Board noted the conflicting evidence
about the treatment of Christians there, but preferred the evidence of the Hong
Kong Christian Council as the Council provided details from personal
experiences; the Council highlighted Fujian as one of the most tolerant
provinces in China with respect to unregistered Christian groups.
[13]
The
Board’s finding that, to the extent that there is persecution in Fujian
province, it is the bishops and priests who are being persecuted rather than
congregants with as low of a profile as the applicant was reasonably based on
the evidence. The conclusion that the evidence did not disclose a risk of
persecution or a risk of torture or to the applicant’s life, and that the
applicant would be free to worship in the Catholic congregation of his choosing
was within the range of defensible outcomes justified on the facts and the law.
[14]
The
applicant proposes that I certify the following question as a serious question
of general application:
Where there is evidence that indicates that the
applicant would not be able to freely practice their religion, does this
restriction amount to persecution?
[15]
As
stated in Canada (Minister of Citizenship and Immigration) v Zazai, 2004
FCA 89 at paragraph 11, the threshold for certifying a question is whether
there is a serious question of general importance which would be dispositive of
an appeal.
[16]
In
my view, the proposed question has already been answered by the jurisprudence
(see Chen, above) and would not be dispositive of an appeal in this
matter. The tribunal found on the evidence that the applicant would be free to
worship in the Catholic congregation of his choosing despite the concern
expressed by the applicant in his evidence.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. the
application for judicial review is dismissed;
2. no
question is certified.
“Richard
G. Mosley”
Email this Content