Date:
20121116
Docket:
IMM-669-12
Citation:
2012 FC 1324
Ottawa, Ontario,
November 16, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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XUE LIANG CHEN (A.K.A. XUELIANG
CHEN)
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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]
The
applicant is a citizen of the People’s Republic of China from Fujian province.
He left China in 1999, for the United States, where he worked and resided until
2009, when he came to Canada. While in the U.S., the applicant and his
girlfriend had a child. The applicant claims that he converted to Christianity
while residing in the U.S. and that he joined a Pentecostal church in 2008.
[2]
Five
days after arriving in Canada, the applicant made a refugee claim, arguing that
as a Christian he would be at risk if returned to Fujian province in China. He also asserts that by reason of China’s One Child Policy, he would be forcibly
sterilized if returned to China as he and his girlfriend wish to have more
children.
[3]
In
a decision dated January 3, 2012, the Refugee Protection Division of the
Immigration and Refugee Board [the RPD or the Board] rejected his claim,
holding that because the applicant currently only has one child, he was not at
risk of sterilization because he is not currently in violation of China’s One Child Policy. With respect to the potential risk posed to him by reason of
being a Christian, the Board found the applicant’s conversion to be genuine but
held that he would not be at risk if returned to Fujian province. The decision
contains an analysis of the documentary evidence regarding risk to Christians
in Fujian province that is substantially similar to the analyses contained in
other RPD decisions (see e.g. Chen v Canada (Minister of Citizenship and
Immigration), 2012 FC 1218; Liang v Canada (Minister of Citizenship and
Immigration), 2011 FC 65). The Board concluded that the applicant would not
be at risk if returned to Fujian province because the weight of the evidence
indicated that members of small house churches were not subject to persecution
in Fujian. The RPD noted in this regard that “there [was] no persuasive
information suggesting that religious persecution is occurring for groups that
are similar to the claimant’s” (decision at para 9). It also went on to state
that there was no persuasive evidence that “groups such as the claimant’s,
which are small and not required to register, are being raided and individuals
being jailed or facing other forms of persecution in Fujian province” (decision
at para 10).
[4]
There
is a major problem with the Board’s analysis in this regard because, of course,
having converted to Christianity in the United States, the applicant never
belonged to a house church in China and thus there was no evidence before the
Board regarding the size of church the applicant would join if returned to
China or, indeed, regarding what “group” the applicant would join. While the
applicant did imply he would practice his faith in an unregistered church, the documentary
evidence before the Board indicated that there is a considerable variety in
such churches and that those who joined large non-state-sanctioned
congregations might be at risk, depending on the circumstances. As the Board
noted, “[h]ouse churches faced more risks when their membership grew, they
arranged for regular use of facilities for religious activities, or forged
links with other unregistered groups or coreligionists overseas” (decision at
para 9).
[5]
The
Board accordingly failed to assess the applicant’s actual situation and whether
the applicant would need to join a particular type of church in Fujian to be free from risk. As a result, it further failed to consider whether being
required to join a particular type of church and thus practice his faith in a
certain manner might give rise to a valid refugee claim. There is authority
from this Court which holds that limitations on the manner which an individual
practices his or her faith can constitute persecution, depending on the
circumstances. For example, in Zhu v Canada (Minster of Citizenship and
Immigration), 2008 FC 1066, [2008] FCJ No 1341, Justice Zinn held that the
Board erred in finding that the applicant was not subject to persecution
because she could practice in a state-sanctioned church when she preferred to
practice in a non-state sanctioned underground church that she felt placed God
first. (See also, to somewhat similar effect, He v Canada (Minster of
Citizenship and Immigration), 2012 FC 148 (Rennie) [He] and Yin
v Canada (Minster of Citizenship and Immigration), 2010 FC 544 (Russell)
[Yin].) While limitations on the type of congregation as opposed to the
size of a congregation may well be of greater concern, the RPD nonetheless
should have considered whether the possible restrictions the applicant would
face in being able to safely practice his faith in Fujian province might amount
to persecution on the basis of religion. In failing to address this issue, the
RPD erred.
[6]
The
RPD’s decision must therefore be set aside and the matter remitted for
reconsideration so these issues can be addressed by the Board (see Turton v Canada (Minister of Citizenship and Immigration), 2011 FC 1244 at para 101, [2011] FCJ No 1526; He at
para 13; Yin at para 99).
[7]
This
case highlights the dangers inherent in copying country-related analyses from
one decision to the next. While there is nothing inherently improper in the
Board quoting from previous decisions on issues relating to a particular
country, doing so is only appropriate where the previous analysis fits the
situation of the claimant before it in the subsequent case (Cordova v Canada
(Minister of Citizenship and Immigration), 2009 FC 309 at para 24, [2009]
FCJ No 620; Canada (Minister of Citizenship and Immigration) v Abdul,
2009 FC 967 at para 55, [2009] FCJ No 1178). That is not the case here, and the
lack of care in cutting and pasting from a previous award has caused the Board
to commit a reviewable error.
[8]
For
these reasons, this application for judicial review is granted. No question for
certification under section 74 of the Immigration and Refugee Protection Act,
SC
2001, c 27
was
suggested by either party and none arises in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is granted;
2.
The
RPD’s decision is set aside;
3.
The
applicant’s refugee claim is remitted to the RPD for re-determination by a
differently constituted panel of the Board;
4.
No
question of general importance is certified; and
5.
There
is no order as to costs.
"Mary J.L.
Gleason"
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