Date: 20110608
Docket: IMM-6200-10
Citation: 2011 FC 654
Ottawa, Ontario, June 8,
2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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XI SHUN ZHANG
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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]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated September 23,
2010, concluding that the applicant is not a Convention refugee or person in
need of protection pursuant to sections 96 or 97 of the Immigration and Refugee
Protection Act,
S.C. 2001, c.27 (the Act) because the applicant was not credible and did not
face a serious possibility of persecution or a risk to his life or of cruel and
unusual treatment or punishment in his hometown in China.
FACTS
Background
[2]
The
applicant is a 57-year-old citizen of China from Fujian Province. He
arrived in Canada on May 13,
2009. The applicant claimed refugee protection on the basis that he fears
persecution in Fujian on religious grounds because he is a practicing
Christian.
[3]
The
applicant stated that he first attended a church service at the suggestion of
his childhood friend, Jun Lin, as a means of overcoming depression and drinking
problems that he developed following a failed attempt to start a business. He
first attended a service on April 6, 2008, and stated that he immediately became
enthralled. Thereafter, he attended services every week. The applicant stated
that the church was “underground” with practices not sanctioned by the Chinese
government. As a result, the church took numerous precautions in order to
ensure its secrecy and the safety of its attendees.
[4]
On
April 19, 2009, officers from the Public Security Bureau (PSB) raided the
church service that the applicant was attending. He escaped before their
arrival, “thanks” to a warning from a lookout. The applicant fled to a
relative’s home, afraid to return to his own home. As he hid, his wife informed
him that PSB officers had visited his home looking for him. The applicant
stated that the officers continued to visit his home and tell his wife that he
had to face the consequences of having violated the law. As a result, the
applicant and his wife decided that he could not return home. He decided to
flee the country.
[5]
The
applicant managed to borrow $46,000 from relatives in order to pay a smuggler
to get him a fake passport and fly to Canada, where he arrived in
May 13, 2009. Since his arrival, his wife reports that Chinese authorities
continue to look for him at his home.
Decision under review
[6]
On
September 23, 2010, the Board rejected the applicant’s claim. The Board
summarized its principal finding at paragraph 4 of its decision:
¶4. There
were credibility issues with respect to the unregistered service being raided
and whether the authorities are interested in the claimant.
[7]
In
particular, the Board found that the fact that the applicant was unable to
produce any documentary evidence that the police were searching for him was
fatal to his claim. The Board recognized that the documentary evidence revealed
that summons or arrest warrants were not always left for suspects, but found
that the weight of the documentary evidence indicated that the police were
likely to have left some sort of summons at the applicant’s home:
¶7. Although
the documentary evidence is mixed, it is reasonable to conclude that the
authorities have concluded some investigation which gives rise to them stating
that he was identified as a member of an underground church. Further, given
that the authorities have allegedly continue [sic] to inquire about the
claimant, it is reasonable to expect, given the documentary evidence, that an
arrest warrant or summons would have been left with the claimant’s family.
[8]
In
addition, the Board found that the applicant failed to show that any
persecution of underground churches was occurring in the applicant’s home province of Fujian. The Board
reviewed the documentary evidence regarding the persecution of the estimated 50
to 70 million Christians associated with underground churches in China. The Board
found that although smaller “house churches” like the one attended by the
applicant do not officially need to register with the government, local
officials nevertheless do disrupt home worship meetings. The Board found that
the treatment of such underground churches is varied, with many urban
underground churches limiting the size of their membership to avoid harassment,
while those in rural areas could be quite large. The Board found that the
police are more likely to target larger underground churches with stronger
community and international connections. The Board recognized that the
documentation indicates that members of unregistered churches face harassment
and harsh punishment, including mistreatment and torture in custody, in some
parts of China.
[9]
With
regard to the applicant’s province of Fujian, the Board found that
the evidence revealed that east coast provinces like Fujian have fewer
reported incidents of persecution, but that this could indicate either that
they are “more open” or that there are simply fewer reports made of the
incidents that occur. The Board recognized that in 2006 a church in Fujian province was
demolished, although there is no evidence as to why.
[10]
The
Board held, however, that because evidence of persecution incidents in areas
more remote than Fujian province was available, the absence of such information
regarding persecution in Fujian province indicating that such persecution
was not occurring in that province:
¶11. The panel is mindful of the
caveat that the number of persecution incidents is likely to be much higher
because of censorship in communications and even considered the possibility
that not all information is available to commentators. Considering all these
factors, the panel concludes that since there is a significant amount of
information detailing very specific examples from areas much more remote and
difficult to access than Fujian, which includes not only egregious examples of
persecution such as arrests but also other forms of persecution such as fines,
short term detentions, confiscation of materials, etc., that it is reasonable
for the panel to expect to see 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. The documentary evidence persuades the panel, based on a balance of
probabilities, that the claimant’s unregistered house church was not raided and
further supports the determination that the authorities are not seeking the
claimant.
[11]
The
Board found that the documentation revealed that increasing numbers of Chinese,
between 50 and 70 million individuals, belong to non-state-sanctioned churches,
and that such underground churches are increasingly operating publicly without
being bothered.
[12]
Thus,
while the Board accepted the applicant’s claim that he was a practicing
Christian, it found that he did not face persecution for that reason in Fujian province of China.
LEGISLATION
[13]
Section 96
of the Act, grants protection to Convention refugees:
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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; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country
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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;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte,
ne veut y retourner.
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[14]
Section 97
of the Act grants protection to persons whose removal would subject them
personally to a danger of torture, or to a risk to life, or to a risk of cruel
and unusual treatment or punishment:
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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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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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ISSUES
[15]
The
applicant submits the following two issues:
a.
Was the
Board’s finding that the applicant was not being sought by Chinese authorities unreasonable
because he was unable to provide a warrant or summons documenting that
interest?
b.
Was the
Board’s finding that the applicant could practice his faith in China without facing more than a serious
possibility of persecution reasonable?
STANDARD OF REVIEW
[16]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question”: see also Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, per
Justice Binnie at paragraph 53.
[17]
Credibility
and plausibility determinations, and the Board’s analysis of the evidence are
questions of fact or mixed fact and law and reviewable on a standard of
reasonableness: Wu v. Canada (Citizenship and Immigration), 2009 FC 929,
at paragraph 17; Khokhar v. Canada (Citizenship and Immigration), 2008 FC 449 at paras. 17-20, and Dong
v. Canada (Citizenship and Immigration), 2010 FC 55, at paragraph 17.
[18]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra,
at paragraph 59.
ANALYSIS
Issue 1: Was the Board’s finding that
the applicant was not being sought by Chinese authorities unreasonable because
he was unable to provide a warrant or summons documenting that interest?
[19]
The
applicant submits that the Board was unreasonable in relying upon the
documentary evidence that it cited to find that an arrest warrant or summons
would have been left with the applicant’s family if the authorities were truly
searching for the applicant. The applicant submits that the documentary
evidence cited by the Board itself states that although court documents,
summonses, or notices may be received by an adult member of the suspect’s
household, due to discrepancies between legislation and its implementation in China, this is not
always the procedure chosen by the authorities themselves. The same documentary
evidence indicated that China does not comply with rule of law
standards, and that police do not always comply with the law.
[20]
As
a result, the applicant submits that his testimony that no arrest warrant or summons
was left with his family is not refuted by the evidence. In this case, the
applicant submits that the documentary evidence is entirely consistent with his
testimony and, therefore, could easily have occurred as he described it.
[21]
The
respondent submits that the Board considered the authorities referred to by the
applicant but decided that the balance of probabilities was that the applicant
was not being sought by authorities. The respondent submits that this finding
was reasonably open to the Board.
[22]
The
Board specifically referred to reliable and verifiable evidence in support of
its finding that the applicant was not being sought by Chinese authorities.
This conclusion did not rest on the Board’s assumptions about rational
behaviour. The Board also fully considered evidence that potentially refuted
its ultimate conclusions. The Board recognized that the police do not always
leave summonses or arrest warrants with families. The Board found, however,
that given the number of times the applicant had alleged that his house was
visited, the documentary evidence indicated that the police were likely to have
left something at some point. The evidence before the Board stated:
RESPONSES TO INFORMATION REQUESTS (RIRs)
1 June 2004
China: Circumstances and authorities
responsible for issuing summonses/subpoenas; procedural law; whether summonses
are given to individuals or households; format and appearance; whether legality
can be challenged; punishment for failure to comply with a summons (1998-2004)
Research Directorate, Immigration and
Refugee Board, Ottawa”
…
Furthermore, a Human Rights in
China (HRIC) representative, who is based in New York, provided the following information that
she received from a colleague who is based in Hong Kong and who works as a lawyer
specializing in Chinese law, on a) the service of subpoenas, b) the refusal of
service and c) on witness appearance at trials:
a) Article 81 of the Criminal Procedure
Law (CPL) governs service of process on witnesses. The service of subpoenas,
notices and other procedural documents shall be made upon the addressee
himself. If the addressee is not in, delivery may be made on his behalf to an
adult member of his family or a responsible person of his unit.
…
… it is very common in China for the police authorities to leave a
summons or subpoena with family members (or possibly close friends, though that
is probably less common), instructing them to pass it along to the person named
on the summons. The person accepting the summons would be expected to sign an
acknowledgement of receipt.
[23]
The
Board may weigh documentary evidence against the applicant’s testimony, and
find that the documentary evidence supports a finding contrary to the
applicant’s testimony.
Issue 2: Was the Board’s
finding that the applicant could practice his faith in China without facing more than a
serious possibility of persecution, reasonable?
[24]
The
applicant submits that the panel erred in finding that the applicant’s church
had not been raided and that the applicant could practice in an underground
church in China. The
applicant submits that the documentary evidence reviewed by the Board
demonstrates that underground churches and their members are regularly
persecuted by Chinese authorities. The applicant cites, in particular, a Response
to Information Request relied on by the Board, in a section not quoted by the
Board, which states:
With
specific reference to the provinces Fujian
and Guangdong, it is absolutely incorrect
to find that there is religious freedom in these provinces. […] [T]he
persecution may come and go and not be totally predictable, but it is always
present. Even the very threat of a government crackdown is a method of
persecution. The house churches in Fujian and Guangdong, like all of China, face the constant and fearful risk of
being closed and its members punished. Certainly, these provinces do not enjoy
religious freedom while all other parts of China do not.
[25]
The
Court finds that the Board was reasonable in concluding, on a balance of
probabilities based on the evidence that the applicant’s church was not raided
and the applicant can continue to practice his religion in an underground
church in Fujian Province. The
evidence that the Board balanced was the applicant’s testimony regarding the
raid and police visits to his home, and the documentary evidence indicating the
frequency and likelihood of police raids on underground churches in the
applicant’s home province of Fujian. Based on a review of
this evidence, the Board found that certain churches were more likely to be
raided than others. In particular, churches in certain areas of the country, churches
that are larger, churches that have international connections, and churches
that evangelize. The Board found no evidence of targeting of churches in Fujian
Province.
[26]
The
Federal Court has dealt with a number of claims similar to those of the
applicant. In the case of Yu v. Canada (Citizenship and Immigration),
2010 FC 310, Justice Zinn considered the interaction between the presumption of
an applicant’s truthfulness and corroborating documentary evidence. I agree
with his comments on the question applicable to the case at bar. Justice Zinn states
that there is nothing unreasonable in a Board’s decision to prefer documentary
evidence to an applicant’s testimony after a careful weighing of the evidence:
¶26. The applicant is correct in asserting that “when an
applicant swears to the truth of certain allegations, this creates a
presumption that those allegations are true unless there be reason to doubt
their truthfulness:” Maldonado v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302 (C.A.). From this it follows that
if the Board has reasons to doubt the overall truthfulness of a
claimant’s evidence it is “under a duty to give its reasons for casting doubt
upon the appellant's credibility in clear and unmistakable terms:”Hilo v. Canada (Minister of
Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.). (emphasis
added)
¶27. In this case, the applicant correctly notes that the Board
made no explicit negative credibility finding regarding his testimony. Rather,
he submits, the Board preferred the documentary evidence and concluded “based
on a balance of probabilities, that the authorities did not raid the
gathering.” He submits that this finding was only open to the Board if it
first provided reasons for finding his evidence to be not credible. I do
not accept the applicant’s submission.
…
¶31. In this case, the only evidence that was
provided to the Board that the applicant’s house church was raided was his own
testimony. There was no corroborative evidence of any sort provided. Although
he had otherwise been found credible, in that the Board accepted his evidence
that he was a Christian and attended a house church in Fujian, there was other
evidence before the Board that brought his evidence of the raid into
question.
¶32. The other evidence was documentary evidence. It was
not directly contradictory of the applicant’s testimony in that it did not say
that no house churches had ever been raided in Fujian Province. That is
hardly surprising as one is unlikely to find a report that something has not
happened because it is events, not non-events, that are
reported. Nonetheless, the documentary evidence does lead to an inference
that no such raid occurred. It leads to this inference, as the Board noted, for
many reasons, including the following:
1. There is a large discrepancy in the treatment of house
churches in China. In some parts of the country house churches with
large memberships meet openly with no objection, while in other areas, house
churches with small memberships are targeted by the authorities.
2. Protestant Christians who attempt to meet in large
groups, or who travel within China and outside China for religious meetings are more likely to be targeted by
authorities.
3. There is documentary information of religious persecution
of house churches and their adherents from many areas of China, including many
remote areas, but there is little such evidence of such persecution in Fujian Province.
4. The evidence of religious persecution in Fujian Province that exists
relates to the Catholic Church.
¶33. In this case, the Board chose to accept the
independent documentary evidence over the applicant’s testimony. It is
evident from a reading of the decision as a whole that it did so because it
preferred the evidence from “a large number of different commentators … none of
whom have a personal interest in the pursuit of an individual claim for
protection” to the applicant’s evidence in support of his own claim for
protection. 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, it did not need to make any explicit
finding that the applicant’s evidence on this point was not credible; it did so
indirectly.
(underlining added)
The underlined parts of Justice Zinn’s
reasons are directly applicable to the case at bar. Justice Zinn thoroughly
assesses the likelihood of a raid on an underground church in Fujian Province.
[27]
The
Court finds that the Board in this case weighed the evidence that was before
it. This Court is not to interfere where the Board’s conclusions are reasonably
open to the Board based on the evidence.
CONCLUSION
[28]
The
Board’s conclusion was reasonably open to it based on the evidence. The Board
could have also reasonably come to the opposite conclusion. This Court cannot
intervene. The application for judicial review is dismissed.
CERTIFIED QUESTION
[29]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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