Date: 20090311
Docket: IMM-2670-08
Citation: 2009 FC 254
Ottawa, Ontario, March 11, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MEI
HUA LIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mei
Hua Lin is a citizen of China. She sought refugee protection in Canada
on the basis of allegations that she had been persecuted for practising her
faith as a Christian and that she would be at further risk of persecution if
she were to return to China. The Immigration and Refugee Board (Board)
denied her claim in a decision rendered in Vancouver on May 20,
2008 and it is from that decision that Ms. Lin brings this application for
judicial review.
I. Background
[2]
Ms.
Lin came to Canada from Fujian Province. She is
married and is the mother of a seven-year-old son. Her husband and child remain
in China. She has
four years of formal education and her reading and writing skills are marginal.
[3]
It
was not until 2006 that Ms. Lin began to attend a local underground Protestant
church. She said she had been troubled by a dire prophecy concerning her son,
related by a local fortune-teller to her father-in-law. Apparently her exposure
to Christian teachings brought her some comfort.
[4]
Ms.
Lin’s introduction to Christianity was through a friend who had been attending
the local underground church. Ms. Lin was told that the practice was illegal
but that she ought not to worry because a lookout was always posted during
church services.
[4]
[5]
Ms.
Lin told the Board that on August 26, 2006 her church was raided by the PSB
(police). She was in the backyard at the time of the raid and, during the
ensuing commotion, she and several other members of the church escaped from the
area.
[6]
Ms.
Lin did not return home. She said that her husband told her the police had been
by the house looking for her. She was also told that five members of the church
had been arrested. With the assistance of her husband and a “snakehead”, Ms.
Lin made her way to Vancouver. She now lives in Toronto where she is
an active member of a Protestant congregation.
[7]
Ms.
Lin testified that she speaks with her husband every month. He has told her
that the police visit him every couple of months enquiring about her
whereabouts. At the time of the Board hearing in February 2008 she understood
that the five members of the church who had been arrested were still in
custody. She stated that a similar fate awaited her if she returned home.
The Board’s
Decision
[8]
The
Board found that Ms. Lin’s claim to a well-founded fear of persecution in China was not
credible. It also found that her evidence was not consistent with the objective
country documentation. There is, though, nothing in the decision which
identifies any concern with Ms. Lin’s evidence concerning the police raid on
her church or the initial arrest of five of the congregants.
[9]
The
Board also found, on a balance of probabilities, that the authorities were no
longer seeking Ms. Lin and that they would not have any interest in her if she
were to return home. This finding was based on the Board’s assessment of the
country condition evidence, which indicated that the arrest of Christian
practitioners was a fairly rare phenomenon. Some of that evidence suggested
that a degree of official tolerance or indifference was beginning to emerge in China as the
number of practising Christians increased. This led the Board to find that the
likelihood of Ms. Lin being persecuted amounted to no more than a mere
possibility.
[10]
The
Board summed up its analysis of its credibility finding in the following
passage:
The same report notes that the
claimant’s home province of Fujian, together with Guangdong, has “the most liberal policy
on religion in China, especially Christianity.” It
was pointed out that, where arrests have been made, it is groups such as The
Shouters and the Eastern Lightening (which are considered “heretical” by many
Christians) that have been targeted. I cannot reconcile the claimant’s
allegation that five of the attendees at her small church are still under
arrest with objective country documents which suggest that, if mere church
members are detained it is likely that they would be released quickly.
[Footnotes omitted]
II. Issues
[11]
Was
the Board’s credibility analysis reasonable?
III. Analysis
[12]
The
Board’s credibility analysis involves a weighing and selection of evidence and
attracts a standard of review of reasonableness: see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47; Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No. 515 at
para. 15.
[13]
There
are significant problems with the Board’s approach to the issue of the
well-foundedness of Ms. Lin’s fear of persecution. The decision contains no
specific findings as to the truthfulness of her account of the police raid on
her church and the initial arrest of five of the congregants. Clearly the Board
doubted that those arrested were “still under arrest”, but it drew that
inference from country condition reports which indicated that where mere church
members are detained they are typically released quickly. This, of course,
suggests that the Board did not consider that the arrest and relatively brief
incarceration of Christians in China amounted to a form of religious
persecution. If that was the Board’s view, it was wrong.
[14]
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.
[15]
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.
[16]
I
am satisfied that the Board’s decision in this case is unreasonable for the
reasons given above. The Board’s decision is, therefore, set aside. Ms. Lin’s
claim must be reconsidered on the merits by a differently constituted panel of
the Board.
[17]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that
this application for judicial review is allowed with the matter remitted for
re-determination by a differently constituted panel of the Board.
“ R. L. Barnes ”
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