Date:
20121121
Docket:
IMM-8601-11
Citation:
2012 FC 1350
Ottawa, Ontario,
November 21, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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YANNI YANG
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 28 October 2011 (Decision), which refused the Applicant’s application to
be deemed a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 41-year-old citizen of the People’s Republic of China (China) from Guangdong province. She is a Protestant Christian and fears persecution in China for her religious beliefs. She also fears forced sterilization at the hands of
government officials due to China’s One Child Policy. The Applicant came to Canada in December 2009, and claimed refugee protection upon arrival.
PIF Narrative
[3]
In
May 2006, the Applicant found out she was pregnant with her second child. The
Applicant was afraid that government officials would find out about her
pregnancy and force her to have an abortion, as this pregnancy was in violation
of the One Child Policy. The Applicant went to stay at her cousin’s house and
did not show up for her IUD check up scheduled for 31 May 2006.
[4]
On
1 June 2006, birth control officials went to the Applicant’s home looking for
her and asking why she did not attend her appointment. On 3 June 2006, they
came to her home again, and then again on 5 June 2006. On 5 June, they said
that the Applicant must be pregnant, and that she had to attend at the hospital
for an abortion on 21 June 2006.
[5]
The
Applicant did not show up for her scheduled abortion and stayed in hiding at
her cousin’s house. On 26 June 2006, birth control officials went to the
Applicant’s home and said that if she or her husband were caught they may face
sterilization. The Applicant’s husband feared sterilization, and made a refugee
claim in Canada on 24 July 2006. His claim was rejected on 1 October 2008.
[6]
On
23 December 2006, the Applicant gave birth to her second daughter. Due to
medical problems following the birth of her daughter, the Applicant was not
sterilized right away. The Applicant was fined 30,000 RMB for violating the One
Child Policy, and was required to attend future check ups.
[7]
After
the Applicant’s second child was born, she started feeling very weak and had
little energy. She was taking medicine for her post-delivery health problems,
but it was not helping very much. In January 2009, the Applicant’s friend Xi
Cai Huang told the Applicant about how she had turned to Christianity because
she believed Jesus Christ had cured her of irregular periods, which she had
suffered for years. Xi Cai Huang believed her recovery was due to the prayers
of her Christian friends, as well as her own prayers. She told the Applicant
her friends would be willing to pray for her, and encouraged the Applicant to
give Christianity a try. The Applicant became involved in Christian prayer
groups in mid-January 2009.
[8]
The
Applicant first went to an underground Christian church on 22 March 2009. She
knew the church was illegal, but at that point it had never had any problems.
The Applicant participated in services once a week and met Pastor Guo on a
couple of occasions. She was scheduled to be baptised six months after joining
the church.
[9]
On
19 July 2009, the Applicant was at a church service when a member received a
call that the Public Security Bureau (PSB) was on their way to the church.
Everyone left and the Applicant went to a friend’s house to hide. The Applicant
was never personally seen by PSB officials, but she came to hear that they knew
she was a member of an underground church and that they wanted to arrest her.
[10]
On
20 July 2009, PSB officials showed up at the Applicant’s house to arrest her.
The Applicant was hiding at her friend’s house, but they searched her home and
asked her parents-in-law many questions about the church and her whereabouts.
On 22 July 2009, the Applicant heard that Xi Cai Huang and the host of the
gathering had been caught in the raid. They were both sentenced to serve time
in prison.
[11]
The
PSB showed up again at the Applicant’s home to arrest her on 26 July 2009. They
said that the Applicant had violated religious regulations and had attempted to
disturb the social order, and that they planned to continue pursuing her. The
Applicant knew she could not return home and decided she must leave China. She hired a smuggler who provided her with documents and accompanied her to Canada.
[12]
In
mid-August 2009, the PSB went to the Applicant’s mother’s home looking for her.
They went again at the end of August 2009, early October 2009, and 28 December
2009. The last time birth control officials looked for the Applicant and her
husband was on 2 November 2009. The Applicant fears she will be detained, tortured,
or jailed if caught by the PSB authorities, or forcibly sterilized if found by
the birth control officials.
Documentary Evidence
[13]
The
Applicant submitted numerous documents pertaining to conditions in China for Christians. A China Aid Association (CAA) Annual Report discussed some incidents
that occurred in Guangdong province. It specified that Pastor Wang Dao was
assaulted and detained, and that his wife and daughter were called in for
questioning. It also stated that there were churches that were forced to close
during the Asian Games, that one church was forced to meet outdoors, and that a
delegate to the Lausanne congress was barred from leaving the country.
[14]
The
U.S. Department of State Report dated 17 November 2010 says that faith-based
charities must register with the local religious affairs bureau, which often
requires affiliation with one of the five patriotic religious associations. If
a group is not registered it is not permitted to openly raise funds, hire
employees, open bank accounts, or own property. If a religious group is
registered, the government supports social service work performed by it. An
example of such is the Amity Foundation, a state-approved,
Protestant-affiliated registered group which helped to rebuild villages
affected by the 2008 earthquake in the Sichuan Province.
[15]
The
RPD considered the Applicant’s claim and rejected it on 28 October 2011.
DECSION
UNDER REVIEW
[16]
The
RPD rejected the Applicant’s claim because she did not face a risk of
persecution in China for her religious beliefs, nor did she face a risk of
forced sterilization.
Forced Sterilization
[17]
The
RPD found the Applicant was not a credible witness about her fear of
sterilization by family planning officials in China, and that she is not being
sought for sterilization.
[18]
The
RPD accepted the Applicant’s evidence about her medical conditions that
prevented sterilization in 2006. It noted that the Applicant submitted an
amendment to her PIF which said that family planning officials started
attending at her home again in 2010, requesting that she be sterilized. The RPD
found it implausible that these officials would wait three years to again
approach the Applicant for sterilization, and drew a negative inference from
the implausibility.
[19]
The
RPD considered the documentary evidence regarding China’s One Child Policy and
found that the predominant approach is to impose a social compensation fine for
an out-of-plan birth. This is consistent with the Applicant’s evidence that she
paid 30,000 RMB after the birth of her second child. Further, the gender
imbalance in China has become a significant concern, especially in Guangdong province. The policy in Guangdong is that if the first child is a girl, the
parents are able to have another child. Both the Applicant’s children are female.
Further, there is no evidence of forced sterilization in Guangzhou City, where the Applicant is from. The RPD noted that there is a range of documentary evidence
on the subject, and there have been mixed messages concerning government policy
and action regarding the One Child Policy. However, the RPD was persuaded by
the totality of the evidence, and found on a balance of probabilities, that the
Applicant is not at risk of forced sterilization by family planning officials.
Persecution
based on the Applicant’s Christianity
[20]
The
RPD found the Applicant was a genuine Christian, but that she was not a
credible witness about the persecution she claims to have faced in China based on her religious beliefs. The RPD found she would be able to practise Christianity
in Guangdong province without a serious possibility that she would be
persecuted for doing so.
[21]
The
documentary materials indicate that Guangdong province is tolerant towards
practicing Christians. On 14 June 2010, an official from the Hong Kong Christian
Council said that Chinese authorities are tolerant toward Christians, including
those who practise in unregistered groups. Although Christians had been
arrested in China between 2005 and 2010, none of the arrests recorded were in Guangdong Province. The U.S. Department of State Report dated 17 November 2010 specifically
reviews arrests of Christians and incidents of persecution, and no mention is
made of any incidents in Guangdong province. The ChinaAid Association’s Annual
Report of Persecution by the Government on Christian House Churches within
Mainland China also said there were no incidents in Guongdong province in
2010. This document describes incidents involving the closing of churches, but
is clear that no one was arrested or abused in these incidents.
[22]
There
is reference to Pastor Dao of the Liangren church in Guangdong province in
several of the documents submitted. These documents state that the church
continues to be harassed by the authorities, and Pastor Dao has been arrested
and interrogated several times. The materials suggest there is heightened
interest in Pastor Dao because he aims to hold large services in public places.
Thus, the incidents with Pastor Dao and the Liangren church are distinguishable
from other underground churches which hold services in private settings. The
PSB has also only ever been interested in Pastor Dao, and no one else from the
Liangren church has been arrested.
[23]
The
RPD found the lack of information about any arrests or other forms of
persecution of Christians in Guangdong was significant and convincing. On a
balance of probabilities, had there been incidents of persecution of Christians
in Guangdong there would have been some documentation of it by reliable
sources. Although practising Christianity in an unregistered church is unlawful
in China, the RPD noted that most Christian groups, the majority of which are
unregistered, no longer operate in strict secrecy. In fact, many of them openly
disseminate information and carry out social service work.
[24]
The
British Home Office Report notes that underground churches tended to have
problems when membership grew, facilities were arranged for regular use, or
links were formed with other groups. This does not apply to the Applicant’s
church, which had 20 members and a pastor that came to the church two or three
times a year. The RPD found on a balance of probabilities that the Applicant’s
house church was never raided, and that she is not wanted by PSB authorities.
If she returned to Guangdong province, the Applicant would be able to practise
Christianity and would not face a risk of persecution for doing so.
[25]
The
RPD cited the Federal Court decisions in Yang v Canada (Minister of
Citizenship and Immigration), 2010 FC 1274 and Lin v Canada
(Minister of Citizenship and Immigration), 2009 FC 254 [Lin]
as authority for its position that, based on the detail of the documentation
available regarding arrests of Christians in China it is reasonable to conclude
that had persecution of members of underground churches occurred in Guangdong
it would have been documented. The RPD also noted Jiang v Canada (Minister
of Citizenship and Immigration), 2010 FC 222, which found that the
documentary evidence concerning Fujian province indicates that people are
generally allowed to practice their religion freely, as well as Yao v Canada
(Minister of Citizenship and Immigration), 2011 FC 902, where
Justice John O’Keefe found that the RPD’s decision based upon insufficient
details about the destruction of home churches was reasonable.
Conclusion
[26]
The
RPD found that, based on the totality of the evidence, the Applicant had not
established that she faced a serious possibility of persecution or a risk to
her life, a risk of cruel and unusual treatment or punishment, or a risk of
torture. The RPD denied her claim for protection.
ISSUES
[27]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD’s finding that the Applicant’s underground church was not raided and
she was not sought by the PSB was reasonable;
b.
Whether
the RPD’s finding the Applicant could freely practise Christianity in Guangdong was reasonable.
STANDARD
OF REVIEW
[28]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[29]
The
standard of review applicable to the two issues in this case is reasonableness.
It is well established that the standard of review applicable to the RPD’s
findings on credibility is reasonableness. See Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (FCA); Elmi v Canada (Minister of Citizenship and Immigration) 2008 FC 773, at para 21, and Wu v Canada (Minister of Citizenship and Immigration) 2009 FC 929, at para 17. It is also
well established that the standard of review applicable to a risk finding is
reasonableness. See Sarmis v Canada (Minister of Citizenship and
Immigration), 2004 FC 110, at para 11; S.A.H. v Canada (Minister of Citizenship and Immigration), 2011 FC 613; and Qiu v. Canada (Minister of Citizenship and Immigration), 2009 FC 605 at para 17.
Further, the standard of review applicable to all of the RPD’s findings of fact
is reasonableness (Dunsmuir, above, at para 53).
[30]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
para 47, and Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUTORY PROVISIONS
[31]
The
following provisions of the Act are applicable in this proceeding:
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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,
(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;
[…]
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
[…]
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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:
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;
[…]
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.
[…]
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ARGUMENTS
The Applicant
[32]
The
RPD based its finding that the Applicant’s church was not raided and that she
is not wanted by the PSB on a review of documentary evidence that discloses an
increasing level of tolerance for the practice of Christianity in China. The
Applicant submits that the RPD had an obligation to make a specific finding
regarding her personal evidence, and that it was not enough for its finding to
be based solely on country conditions materials.
[33]
In
Lin, above, Justice Robert Barnes said at paras 14-15:
The Board’s observation that it could not reconcile
this part of Ms. Lin's evidence with the country condition evidence also
represents an error of logic. Although the country condition evidence disclosed
an increasing level of tolerance for the practice of Christianity in China, that evidence also recognized that the approach taken was uneven and was based on
the attitudes of the local authorities. The Board had before it a significant
body of evidence indicating that extremely harsh treatment was meted out from
time to time to Christian practitioners throughout China. It was thus an error
for the Board to say that Ms. Lin’s account could not be reconciled with the
country condition evidence, because some of that evidence was consistent with
her risk narrative.
For the Board to fairly rely upon general evidence
of a diminished risk of religious persecution in China it was critically
important to make specific findings about the truthfulness of Ms. Lin’s account
of the police raid on her church. That is so because the generalized risk
facing Christians in China had to be assessed against her particular profile
including her past experiences with the authorities. It was not enough for the
Board to find that the instances of persecution of individual Christian
congregants are now fairly rare if the authorities in her community were of a
persecutory persuasion as evidenced by their earlier behaviour directed at Ms.
Lin and the others in her church. Her situation may well have been one of
increased risk thus taking her case outside of the statistical norm in China, and it was an error for the Board not to have conclusively resolved that point. It
was also not a complete answer to Ms. Lin’s alleged predicament to find that the
local authorities would no longer be interested in her. What the Board needed
to ask itself was whether, in her unique situation, she would be at risk of
persecution if she returned home and resumed her religious practices.
[34]
The
Applicant submits the RPD committed the same error in this case as in Lin.
The Applicant also points to paras 5-7 of the decision in Jin v Canada (Minister of Citizenship and Immigration), 2009 FC 1052 to support her
position:
As a result, the RPD dismissed the Applicant’s claim
on the basis of an implausibility finding; it was implausible that the raid
occurred as claimed by the Applicant. To support this finding the RPD made the
following statement:
Documentation reveals that the
treatment of house churches varies regionally. The documentary evidence
indicates that Prayer meetings and Bible study groups held among fiends and
family in homes are not subject to raids. House churches experience difficulty
when their membership grows and the claimant testified that the membership of
the house church he attended never exceeded eleven members.
The claimant testified the
although he had recruited a new believer to the house church, he described
himself as a member of the church, testified that he played no leadership role
and that services were never held in his home. The documentary evidence
indicates that although members have been arrested, the police have
concentrated on the arrest and punishment of church leaders and prominent
Christians. In 2006 PSB officials detained leaders of house churches for
extended periods of time, while releasing members shortly after interrogating
them on the spot. There was also a reported decline in the number of arrests of
house church Christians in China in 2006 compared with the previous year. Of the
documented arrests of house church Christians, the majority were leaders.
(RPD Decision, pp. 3 - 4)
The standard for making a implausibility finding is
stated by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and
Immigration), [2001] F.C.J. No. 1131 (Fed. T.D.), at paragraph 7:
A
tribunal may make adverse findings of credibility based on the implausibility
of an applicant’s story provided the inferences drawn can be reasonably said to
exist. However, implausibility findings should be made only in the clearest of
cases, i.e., if the facts as presented are outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that the
events could not have happened in the manner asserted by the claimant. A tribunal
must be careful when rendering a decision based on a lack of plausibility
because refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant’s milieu.
I find that the RPD’s implausibity finding does not
meet the Valtchev standard because, on the evidence on the record, the
conduct the Applicant experienced in China could be expected on a balance of
probabilities. That is, the Applicant’s house church experience does occur at
various times and places and it is not only church leaders that are persecuted
by arrest and detention. As a result, in my opinion, the RPD was in error to
find that that “the documentary evidence does not support that there is a
serious possibility that [the Applicant] would be persecuted because of his
religious belief.” (RPD Decision, pp. 4 - 5).
[35]
The
Applicant submits that the RPD’s conclusions were erroneous in her case because
it failed to make a specific credibility finding concerning the evidence of the
raid on her church, and because the RPD rejected the Applicant’s evidence based
solely on incompatibility with the country condition materials. There were
incidents of persecution of Christians in Guangdong, and it was unreasonable
for the RPD to reject the Applicant’s evidence on this basis.
[36]
The
RPD also found that the Applicant could freely practise her faith in a church
of her choosing and would not face more than a mere possibility of persecution
for doing so. The Applicant submits that in reaching this finding the RPD
relied on outdated evidence from both the China Aid Association (CAA) and the
U.S. Department of State International Religious Freedom report. There were
more recent versions of these reports before the RPD which were not considered.
[37]
The
most recent CAA document stated that, in Guangdong, Pastor Wang Dao was
assaulted and detained, and his family was called in for questioning. It also
said that many churches were forced to close during the Asian Games. This
evidence contradicts the level of tolerance the RPD says exists in Guangdong.
[38]
The
Decision also cited the U.S. Department of State Report as saying that
unregistered churches no longer operate in strict secrecy, and that many
unregistered churches carry out a variety of social service work. However, this
information was from an earlier version of the report, and the version that was
dated 17 November 2010 and that was before the RPD stated that “religious
groups not affiliated with an official patriotic religious association reported
difficulties registering as nongovernmental organizations (NGOs) or performing
social service work.” The Applicant submits that not only did the RPD rely on
outdated information, the newer version of the report actually conflicts with
the information upon which the RPD relied.
[39]
To
bolster her point, the Applicant points to paras 9-11 of the decision in Zheng
v Canada (Minister of Citizenship and Immigration), 2011 FC 1359 [Zheng]:
Here, the Board relied upon a document, dated
September 7, 2005, that was not disclosed to the applicant and was not found in
the Board's national information request package for claims based on religious
persecution in China. The document in question was the source of the Board's findings
regarding the treatment of underground churches in the applicant’s home
province. However, the document had been removed from the information package
and replaced by an updated version dated June 30, 2010. References to Fujian
having a liberal policy on the practise of Christianity had been removed in the
updated document based on more recent reports which indicated that such a
conclusion would be misguided.
As indicated in Bokhari, above, at paragraphs
23-24 and Mancia v. Canada (Minister of Citizenship and Immigration), [1998]
3 F.C. 461 (Fed. C.A.) at paragraph 16, document disclosure is important for
procedural fairness as it gives the applicant an opportunity to properly
respond to the Board's concerns. See also May v. Ferndale Institution,
2005 SCC 82 (S.C.C.), at paragraph 92.
Here, the Board’s concerns related primarily to the
treatment of Christians in the applicant’s home province. The earlier document
presented a more favourable view of the situation in that province than later
information reflected in the 2010 document would support.
[40]
The
Applicant submits that, as in the Zheng decision, the outdated
information that the RPD relied upon painted a more positive picture than
actually exists. The documents before the RPD indicated there were numerous
restrictions on unregistered churches, and the individuals who practised in
those churches were not able to declare their religious beliefs openly. It also
stated that the government limited the distribution of bibles and that a
prerequisite for a faith based charity obtaining registration is sponsorship by
the local religious affairs bureau.
[41]
The
Applicant submits that performance of social service work is a way that an
individual may manifest his or her religious beliefs, and these restrictions interfered
with her right to practise her religion. The restrictions on the distribution
of bibles also interfered with the Applicant’s right to manifest her religious
belief. The Applicant points out that the U.S. Department of State Report said
that house churches loyal to the Vatican are not permitted to openly hold
religious services unless they affiliate with a patriotic religious
association. This document also said that proselytizing in public and in
unregistered places of worship is not permitted. It was held in Irripugge v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 29 (FC) that
being forced to practise one’s religion underground amounts to persecution.
[42]
The
Applicant submits that the RPD did not understand how these restrictions interfered
with her right to declare and disseminate her religious beliefs openly (R v
Big M Drug Mart Ltd, [1985] 1 S.C.R. 295). This was never properly
considered by the RPD, and the Applicant submits that this error rendered the
Decision unreasonable.
The Respondent
[43]
The
RPD found that the Applicant had not established either of her claims based on
persuasive testimony or evidence. The RPD made multiple detailed and specific
findings, including the following:
i.
The
documentary evidence indicates there is a growing tolerance for Christianity in
China;
ii.
The
Applicant alleged that her church in Guangdong was raided and members were
arrested; however, there was no documentation of any arrests in that area;
iii.
There
was no persuasive documentary evidence of any recent arrests or any other form
of persecution of lay Protestant Christians in Guangdong;
iv.
The
evidence indicated that the persecution of the Liangren church in Guangdong province was limited to the harassment of a particular pastor and no lay
Christians were arrested;
v.
The
documentary evidence on the suppression of underground churches in China is mixed, but there is a complete lack of information regarding any instances of arrest or
persecution in Guangdong;
vi.
The
Applicant’s description of her church was not consistent with the type of
church the authorities usually target according to the country condition
documents; i.e. it was not a large church, did not have connections to other
churches, and did not have its own pastor;
vii.
Recent
jurisprudence indicates that, given the significant detail in the documentation
of arrests of Christians in China, it is reasonable for the RPD to conclude
that if an incident of persecution happened in a particular region, it would
have been documented.
[44]
The
RPD found that despite the Applicant’s testimony that her church had been
raided, this likely did not happen as the documentary evidence indicated there
had been no arrests of Christians in Guangdong during the relevant period. The
Applicant did not provide any corroborative evidence, and there was evidence
before the RPD that brought her testimony into question.
[45]
It
was reasonable that the documentary evidence that indicated there had been no
arrests of Christians in Guangdong in recent years led to an inference that no
raid or arrests at the Applicant’s church occurred. The RPD accepted the
documentary evidence over the Applicant’s testimony; there is no reason to say
that this was unreasonable. Having formed the view that the documentary
evidence was stronger and was to be preferred, the RPD did not need to make any
explicit finding that the Applicant’s evidence on this point was not credible;
it did so indirectly (Yu v Canada (Minister of Citizenship and Immigration),
2010 FC 310).
[46]
The
Court has held on many occasions that it is reasonable for the RPD to find that
there is no more than a mere possibility of persecution for Christians
returning to a specific province in China where the documentation attests to a
lack of evidence of arrests or raids on unregistered churches in that province.
See Yang, above, at paras 30, 31, 33; He v Canada (Minister of
Citizenship and Immigration), 2010 FC 525 at paras 24-25; Jiang,
above, at paras 7, 27, 35, 36; Wang v Canada (Minister of Citizenship and
Immigration), 2011 FC 636 at paras 20-22; He v Canada (Minister of Citizenship and Immigration), 2011 FC 1199 at para 16.
[47]
The
Applicant also alleges that the RPD erred by relying on outdated documents in
reaching its Decision. It is true that the RPD relied on certain 2010 documents
when versions from 2011 were available. However, the RPD’s finding was based on
the fact that there have been no documented arrests of Christians in Guangdong in many years; the Applicant did not submit anything that was capable of refuting
this finding. She suggested that the RPD’s findings were inaccurate in this
regard, but did not submit any evidence of arrests of lay practising Christians
in Guangdong.
[48]
The
Applicant suggests that the RPD erred by failing to appreciate the nature of
freedom of religion, and that hindrances such as “difficulties performing
social work” amount to persecution. The Respondent submits there is
insufficient detail in the country condition documents to know whether these
actions would amount to persecution in terms of Convention and Canadian refugee
law, but at any rate the Applicant failed to provide any testimony that she has
been prevented from practising her faith in the manner that she chooses in the
past and how these hindrances might affect her in the future. The country
condition evidence indicated there were no reports of arrests or persecution of
lay Christians in Guangdong province.
[49]
The
Respondent submits it was reasonable for the RPD to find there is no more than
a mere possibility of persecution for a Christian claimant returning to a
specific province in China where the evidence indicates, as it did here, that
there are minimum restraints on Christians practising their religion in that
province (see Yang, above, at para 37; Jiang, above, at paras 29,
35; Wang, above, at para 20; and Qin v Canada (Minister of
Citizenship and Immigration), 2012 FC 9 at paras 68-75). Considering
the findings discussed above, the Respondent submits that the Decision fell
within the range of possible acceptable outcomes, and requests that this
application for judicial review be dismissed.
ANALYSIS
[50]
The
Applicant has not taken issue with the RPD’s findings on the family planning
and sterilization aspect of her claim, so the Court will not review the RPD’s
findings on this point. The Applicant takes issue with the RPD’s handling of
the religious aspects of her claim.
[51]
On
this issue, the Court is faced with a scenario that has come before the RPD and
the Court on many occasions. In essence, the Applicant became a Christian and
attended an underground church. The PSB raided the church and the Applicant
fled and went into hiding. The PSB went to her home and wanted to arrest her
and so she decided to hire a smuggler to help her to come to Canada. The PSB continue to look for her.
[52]
The
Applicant provided no documentary or other corroborative support for this
narrative and she now says that the RPD committed a reviewable error by relying
upon documentary evidence that suggests a lack of persecution in Guangdong
province to disbelieve her narrative and to find that, if she returns home, she
will be able to practise her religion freely in the way that she wishes.
[53]
In
deciding that her house church was not raided and that she is not wanted by the
PSB, the Applicant says that the RPD did not address her specific allegations.
In para 14 of the Decision, however, the RPD makes a clear finding “on a
balance of probabilities, that the house church the claimant attended was never
raided by the authorities and consequently, the claimant is not wanted by the
PSB.” In order to reach this finding, the RPD considers the Applicant’s
evidence, or lack thereof, and weighs it against the documentary evidence to
find that “the situation in Guangdong province does not reflect what is
happening in many other provinces where there have been arrests and persecution
of ordinary Christians” and “on a balance of probabilities, that if there were
recent arrests or incidents of persecution of lay Protestant Christians in
Guangdong province, there would be some documentation of these arrests or incidents
of persecution by reliable sources.” The Court has accepted this line of
reasoning before, so that such a weighing of the evidence is not unreasonable per
se. See Yang, above; and Jiang, above.
[54]
The
Applicant relies upon the decisions in Lin, above, and Jin,
above, which, in my view, are distinguishable from the present case.
[55]
In
Lin, the RPD relied upon general evidence of a diminished risk of
religious persecution in China without looking at what was happening in the
claimant’s community. In the present case, the RPD made it very clear that it
was well aware of the regional differences in China when it came to religious
persecution and that it was firmly focused upon the Applicant’s home province
and community.
[56]
In
Jin, the Court found that the RPD’s implausibility finding did not meet
the standard set in Valtchev v Canada (Minister of Citizenship and
Immigration), 2001 FCT 776. In the present case, given the evidence about Guangdong, and the lack of reports of persecution there for people in the Applicant’s
position, the Applicant’s allegations were “outside the realm of what could
reasonably be expected” and the documentary evidence “demonstrates that the
events could not have happened in the manner asserted by the claimant.” The
objective documentation consulted by the RPD provided a reasonable grounding
for its findings that people such as the Applicant are free to practise their
religion in Guangdong. Hence, the Applicant’s unsubstantiated narrative about
persecution was implausible. As the RPD points out in the Decision, this
reasoning has been endorsed by the Court in Yang, above, and Nen Mei
Lin, above. I cannot say that the Decision was unreasonable in this regard.
[57]
The
Applicant also says that the Decision was unreasonable because, in reaching its
conclusions about the situation in Guangdong province, the RPD overlooked
material evidence that contradicts those conclusions. This evidence involves
Pastor Wao and the Liangren church, the closing of house churches during the
Asian Games in Guangzhou, the June 2007 Response to Information Request about
the forcible closure of house churches in Guangdong in 2006, and the June 2010
Response to Information Request about cases of “persecution” in Guangdong in
2008 and 2009. In my view, this evidence does not contradict the RPD’s findings
about the situation in Guangdong in a way that requires specific mention.
Pastor Wao and the Liangren church are referred to in the Decision and
distinguished from the “lay” situation of the Applicant. It is not clear how
temporary closures during the Asian Games impact the Applicant’s past or future
situation. And no details are provided in the June 2010 Response to Information
Request that suggest a contradiction with the RPD’s general conclusions on the
preponderance of the evidence.
[58]
The
Applicant has also made an attempt to question the reasonableness of the RPD’s
approach by saying that it relied upon outdated documentation, and it failed to
take into account what has happened to Pastor Wang Dao. As just discussed, the
Pastor Dao situation is addressed in the Decision. As for the inaccuracy of the
information upon which the RPD relied, the Applicant has submitted nothing to
suggest that the situation in Guangdong is not as the RPD found it on the
preponderance of the evidence.
[59]
As
regards the future situation and the RPD’s finding “after considering the
documentary evidence noted above, on a balance of probabilities, that the
claimant would be able to practise her religion in any church of her choice 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,” the Applicant raises similar arguments and evidentiary issues to those
referred to above. Once again, the Court does not feel that this conclusion by
the RPD can be considered to fall outside of the Dunsmuir range, given
the preponderance of the evidence.
[60]
The
Applicant also raises a general argument about freedom of religion in Guangdong and says that the RPD should have addressed the possibility that her religious
commitment and practices may evolve in the future, so that she could be
persecuted by the authorities. This argument lacks specifics and invites the
Court to speculate. In any event, it was not an issue which she placed before
the RPD. There was no evidence that she will change the way she practices her
religion in a way that might result in persecution by the authorities. Hence,
it cannot be said that the RPD was unreasonable in not considering this aspect
of the Applicant’s present argument before the Court.
[61]
As
the Respondent points out, the RPD is entitled to prefer documentary evidence
over testimony. In this case, the documentary evidence indicated that there had
been no arrests or incidents of persecution of lay Christians in Guangdong in recent years. This evidence led to the reasonable inference that no raid or
arrests at the Applicant’s church occurred. The RPD chose to accept this
independent documentary evidence over the Applicant’s testimony. Its weighing
of the evidence on this basis cannot be said to be unreasonable. Having formed
the view that the documentary evidence was stronger and was to be preferred,
the RPD did not need to make an explicit finding that the Applicant’s evidence
on this point was not credible, as it did so indirectly. See Yu, above; Zhang,
above; Barua v Canada (Minister of Citizenship and Immigration), 2012 FC
607; and He, above.
[62]
Furthermore,
this Court has held on many occasions that it is reasonable for the RPD to find
that there is no more than a mere possibility of persecution for a Christian
refugee claimant returning to a specific province in China where the
documentation attests to a lack of evidence of arrests or persecution of
Christians in that particular province. See Yang, above and Yu,
above.
[63]
I
can find no reviewable error in the Decision.
[64]
Counsel
agree that there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
Application is dismissed.
2.
There
is no question for certification.
“James Russell”
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