Date: 20091120
Docket: IMM-1391-09
Citation: 2009 FC 1198
Ottawa, Ontario, November 20, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
BAO YU ZHANG
(A.K.A. BAOYU ZHANG)
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the decision made by Stephen Rudin, a Member
of the Refugee Protection Division (“RPD”), dated February 24, 2009. The RPD
determined that the applicant does not face a serious possibility of
persecution based on her Christianity and is neither a Convention refugee nor a
person in need of protection within the meaning of ss. 96 or 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).
[2]
At the end
of the hearing, I indicated that the application was granted. Here are my
reasons to so find.
FACTS
[3]
The
applicant is a 55 year old citizen of China
who fears persecution based on her religion. The applicant claimed that she
began attending a house church on June 6, 2004, at the suggestion of a friend,
as a result of the death of the applicant’s father. After attending a few
meetings, she learned from her friend that the house church was illegal.
Nevertheless, she continued to attend the underground church until she came to Canada on a visitor’s visa in April
2006 to see her daughter.
[4]
The
applicant had planned to remain in Canada
for six months, but then applied for and was granted an extension of her
visitor’s visa to help her daughter move into a new property.
[5]
The
applicant filed letters establishing that she has been an active member of the
Living Stone Assembly in Canada since June 2006, and that she
was baptized on December 25, 2006.
[6]
On
December 4, 2006 the applicant claims that while still in Canada, she had a phone conversation
with her sister in China who informed her that the
house church she used to attend was discovered and that all members had been
arrested in November 2006. The applicant further alleged that the Public
Security Bureau (“PSB”) had visited her family three times that week wanting to
know her whereabouts, and they left a house arrest summons.
[7]
After
learning this information, the applicant claims that she was scared and
realized she could not go back to China.
Therefore, she made an application for refugee protection on December 12,
2006. The applicant also alleges that the PSB continues to inquire about her
and is putting a lot of pressure on her husband to convince her to return to China.
THE IMPUGNED DECISION
[8]
The RPD
Member accepted that the applicant was practising Christianity as a member of a
house church in China, and that she continued her practice in Canada.
[9]
However,
he found that the applicant had not satisfied the burden of establishing a
serious possibility of persecution if she returned to China, or that she would be subjected
personally to a danger of torture or a risk to her life or a risk of cruel and
unusual treatment or punishment by any authority in China. To come to that conclusion, Member
Rudin relied on country documentation according to which the treatment of house
churches varies regionally. Even in those areas where house churches with
small number of members only are permitted, he noted that these unofficial
churches encounter difficulties when their membership grows, when they arrange
to use regular facilities for conducting the specific religious activities,
when they forge links with other unregistered or overseas groups, or when they
attempt to meet in large groups and travel within and outside the country for
religious meetings.
[10]
The RPD
Member also mentions the Annual Report of Persecution by the Government on
Christian House Churches within Mainland China January-December 2007,
published by an American ONG, according to which only 6 people in the applicant’s
province of Anhui were arrested in 2007, all of them being either leader or
missionaries.
[11]
On the
basis of that documentation, the RPD Member found it implausible that all nine
members of the applicant’s church group had been arrested. Not only was the
church membership limited, but the applicant testified that she was not aware
of any outside affiliations with other underground churches or churches outside
of China. Moreover, the applicant did
not describe herself in any way as a leader. Accordingly, the RPD Member
preferred the documentary evidence to the applicant’s testimony and found that,
on a balance of probabilities, the house church would not be raided by the PSB,
nor would the applicant be subject to arrest and imprisonment, and could return
to China to practice her religion.
ISSUES
[12]
The
applicant raised two issues:
a. Did the RPD err in failing to
assess the summons in evidence?
b. Did the RPD err in finding
that the applicant would not face a serious possibility of persecution should
she return to China?
ANALYSIS
[13]
The
assessment of the evidence is clearly a matter within the mandate and expertise
of the RPD, and to that extent, the findings of the Member deserve a high
degree of deference from this Court. The Member was entitled to decide adversely
with respect to the applicant’s credibility, on the basis of the implausibility
of her story when viewed in light of the documentary evidence. This Court will
not substitute its decision for that of a tribunal, except if the decision
being challenged is based on an erroneous finding of fact, made in a perverse
or capricious manner or without regard for the material before it.
[14]
The second
issue raised by the applicant, however, does not relate exclusively to an
assessment of facts. The decision of the RPD is premised on a particular
interpretation of what persecution entails. To that extent, it raises a
question of law to be reviewed against the standard of correctness.
[15]
I agree
with the applicant that the Board erred in failing to consider the summons when
assessing whether she would face persecution should she return to China. The summons is clearly an important
piece of evidence in the applicant’s claim, as it corroborates her story that she
would be arrested upon returning to China.
The RPD had an obligation to assess the summons and to give reasons for either
accepting or rejecting it as credible corroborating evidence.
[16]
It is true
that the Board mentioned it, but only to state in the “Allegations” section
that the PSB had left a summons for the applicant. This was clearly not
sufficient. We are left speculating as to why the Member did not ascribe more
weight to it or nevertheless found that the PSB are not looking for the
applicant and that she would not be subject to arrest and imprisonment upon her
return to China. It is trite law that “the
more important the evidence that is not mentioned specifically and analyzed in
the agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact”: Cepeda-Gutierrez v.
Minister of Citizenship and Immigration (1998), 157 F.T.R. 35, (F.C.T.D.)
at para.17 (see also Bains v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 497.
[17]
This
error is particularly glaring in light of the fact that the applicant was found
credible. This Court determined in Yu v. Canada (Minister of Citizenship and
Immigration),
(1998) 150
F.T.R. 240 (F.C.T.D.)
that the Board’s failure to review a summons amounts to a reviewable error even
when the applicant’s testimony lacks credibility. One would think that such an
error is compounded when the applicant has been found credible and the summons
appears to corroborate her evidence. That error, in and of itself, is
sufficient to render the RPD’s decision unreasonable.
[18]
But there
is more. In its reasons, the RPD Member explicitly accepted the fact that the
applicant is a Christian, and that she practiced her religion at an underground
house church in China prior to coming to Canada. However, the Member found, on a
balance of probabilities, that the house church would not be raided by the PSB
and that the applicant would not be subject to arrest and imprisonment and
could therefore return to China and practice her religion. The
Board based its conclusion mainly on statistics found in one document in
evidence according to which only 6 people were arrested during 2007. This
finding is problematic.
[19]
The RPD
Member’s focus on the number of arrests of Christians as an indicator of the
likelihood of persecution is misplaced and erroneous. The number of arrests of
underground Christians in China may speak to the ability of
church members to stay underground and conceal their activities from the
authorities. But the extent to which underground Christians are able to hide
their activities and avoid detection is irrelevant for the purpose of
determining whether or not they are subject to persecution for their religion,
and unable to freely practice their religion openly and in accordance with
their fundamental belief system. The Court has made it clear that religious
persecution can take any number of forms:
The fact is that the right to freedom of
religion also includes the freedom to demonstrate one’s religion or belief in
public or in private by teaching, practice, worship and the performance of
rites. As a corollary to this statement, it seems that persecution of the
practice of religion can take various forms, such as a prohibition on
worshipping in public or private, giving or receiving religious instruction or,
the implementation of serious discriminatory policies against persons on
account of the practice of their religion.
Fosu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1813; 90
F.T.R. 182, (F.C.T.D.) at para. 5.
[20]
The
case law makes it quite clear that any meaningful restriction on the
applicant’s ability to practice her religion as she wished in her house church,
including a brief period of detention or a fine, would most certainly
constitute religious persecution. The fact that it is illegal to belong to an
unregistered or non state sponsored church in China would therefore tend to support a
finding of religious persecution. I note in this respect that the same report upon
which the Member relied on to say that there are very few arrests in the
province of Anhui (where the applicant comes from) also shows that it is the
province with the second greatest “persecution” of house churches. It appears,
therefore, that there is not necessarily a clear correlation between arrests and
persecution.
[21]
For the
foregoing reasons, I am therefore of the view that the decision of the RPD
ought to be quashed.
ORDER
THIS COURT ORDERS THAT:
- The
application for judicial review is allowed, and the matter is referred back to
a differently constituted panel of the Board for redetermination.
"Yves
de Montigny"
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