Date: 20110630
Docket: IMM-6475-10
Citation: 2011 FC 811
Toronto, Ontario, June 30,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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YONG HANG 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
[1]
Yong
Hang Yang seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board which found that he was neither a
Convention refugee nor a person in need of protection.
[2]
The
Board found that Mr. Yang’s story regarding his alleged involvement with a “House Church” in China to be
totally lacking in credibility. It did accept that he was now a practicing
Christian, but found that he could practice his faith in Fujian province.
[3]
Mr. Yang asserts that
he was denied a fair hearing by the Board as it referred to documentary
evidence that was not properly before it at the time of the hearing, without
giving him an opportunity to respond. He further submits that the Board erred
in finding that he would not face a serious possibility of persecution in China.
[4]
For
the reasons that
follow, I find that Mr. Yang
was not denied
procedural fairness as a result of the Board’s treatment of the documentary
evidence. I am also satisfied that the Board did not err in its assessment of
the risk faced by Mr. Yang should he return to China.
Background
[5]
Mr. Yang is a 38-year old man from Fujian province, China. Prior to leaving China, Mr.
Yang was employed
as a construction worker. He arrived in Canada on May 29, 2008, and made a claim for
refugee protection.
[6]
Mr. Yang states that he was first
introduced to Christianity in the spring of 2008 through a close friend. His
friend invited Mr. Yang to attend an unregistered
house church. Mr. Yang did not go to church with his
friend right away, because he knew that house churches were illegal in China. A few days later, Mr. Yang agreed to go with his friend. The service
was held in a house and was attended by 10 people. Mr. Yang subsequently volunteered his services as a
construction worker to the church and did renovations to the houses that were
used by the church.
[7]
On
April 27, 2008, Mr. Yang was
unable to go to church because he had to finish some urgent work. He claims
that he received a call from a church member who told him that the church had
been raided by Public Security Bureau officers. Some of the members escaped,
but the pastor and Mr. Yang’s friend had been arrested. The caller advised Mr.
Yang to go into hiding.
[8]
Mr. Yang went to his
aunt’s house to hide. Later that night, Mr. Yang’s wife called him and told him
that the PSB had come to their home looking for him. The officers had
interrogated Mr. Yang’s wife about his illegal religious activities and his
assistance in renovating the house churches. The PSB returned to the home several
times in search of Mr. Yang.
[9]
Mr. Yang believed
that he could no longer stay safely in China, and came to Canada with the assistance of an agent. Upon his arrival in Toronto, Mr. Yang joined a Protestant church,
and was baptized on September 27, 2008.
The Board’s Decision
[10]
The Board found Mr.
Yang’s story of what occurred in China not to be credible. There were
inconsistencies in his evidence that lead the Board to conclude that he had
failed to establish a credible factual basis for his claim.
[11]
The
Board also rejected Mr. Yang’s
sur place claim. Although it accepted that he is now a practicing
Christian in Toronto, it did not find that Mr. Yang would
face a serious possibility of persecution were he to return to Fujian province. The Board noted that Fujian has the most liberal
policies regarding religious practice in all of China,
especially with respect to Protestant Christianity. The Board further found
that there was little evidence of persecution of ordinary house church members
in Fujian province.
Analysis
The Board’s Use of New
Evidence
[12]
Mr. Yang submits
that the Board
committed a breach of natural justice and procedural fairness by relying on a
document that was released almost two and a half months after his hearing. This
document was not disclosed to Mr. Yang at any point prior to the release of the
Panel’s decision, and he was given no opportunity to respond to this evidence.
[13]
Mr. Yang’s hearing before the RPD took place on
April 12, 2010. In its decision, the Board referred to the 30 June 2010 version
of Response to Information Request (RIR) CHN103500.E from the National
Documentary Package (30 July 2010) entitled: “Situation of Protestants and
treatment by authorities, particularly in Fujian and Guangdong” (2005 – May
2010). The document is an updated version of the RIR CHN100387.E, dated 7
September 2005, which was contained in the 17 March 2010 National Documentation
Package that was before the Board at the time of Mr. Yang’s refugee hearing.
[14]
The
respondent submits that this
was simply a typographical error, and that the Board inadvertently cited the
newer version of the document. Moreover, the respondent points out that Mr.
Yang has not pointed to statements in this newer document that were not in the earlier
version.
[15]
Where
an issue of procedural fairness arises, the task for the reviewing Court is to
determine whether the process followed by the decision-maker satisfied the
level of fairness required in all of the circumstances: see Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339,
at para. 43.
[16]
It
is a breach of procedural
fairness for a decision-maker to base his or her decision on evidence that was
not properly before the Board, without giving the applicant an opportunity to
respond: Muthusamy v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 1333, 50 A.C.W.S. (3d) 475 at para. 2; Bonilla v. Canada (Minister of Citizenship and
Immigration), 2010 FC
889, [2010] F.C.J. No. 1106.
[17]
However,
it is clear that reference to the June 2010 document was merely a typographical
error on the part of the Board. The reference in question describes the
document as being part of the March 17, 2010 National Documentation package.
This is obviously an error, as a document from June of 2010 would not have been
in existence in March of that year.
[18]
Moreover,
a close reading of the
Board’s decision and the 2005 and 2010 RIR’s reveals that the statements in the
Board’s decision about the treatment of Protestants by the Chinese government,
particularly in Fujian province, were derived, almost verbatim, from the 2005
RIR, even though they were attributed to the 2010 document.
[19]
That what the Board
had before it was the 2005 document is further confirmed by the fact that it is
the 2005 document and not the 2010 document that is contained in the Certified
Tribunal Record.
[20]
Although the Board
did err in the way that the document was cited, I am satisfied that the
document actually relied upon by the Board was in fact the 2005 RIR, with the
result that there was no breach of procedural fairness in this case.
The Board’s Assessment of Risk
[21]
While
the Board found that Mr.
Yang was not credible in relation to his claims of persecution in China, it accepted that he is now a practicing Christian. The
Board found, however, that he would not face a serious possibility of
persecution if he were to return to China.
[22]
Mr. Yang submits that
the Board erred in its consideration of risk because it only considered the
risk that he would face if he were to practice his religion as a mere member of
an underground house church, without considering that he could be at risk if he
were to choose to proselytize or become a church leader.
[23]
The Board was
required to consider the risk faced by an individual with the profile of the
applicant. There was no evidence before the Board that Mr. Yang’s understanding
of his religious obligations required him to proselytize, nor was there any
evidence that he aspired to a leadership position within his church. As a
consequence, the risk that he would face if he were returned to China had to be assessed on the basis that he would be a mere
member of a house church.
[24]
The
Board found that Mr. Yang would
not face a serious possibility of persecution if he were to worship in a small
unregistered house church. In coming to this conclusion, the Board examined the
country condition information before it, observing that there was little
evidence that Protestant Christians were persecuted in Fujian province.
[25]
The Board
acknowledged the existence of documents in the record that referred to the
closure of house churches in Fujian province, and explained why it chose to
give them little weight. This distinguishes this case from the situation that
faced the Court in Liang v. Canada (Minister of Citizenship and
Immigration), 2011 FC 65,
[2011] F.C.J. No. 74, where this evidence did not appear to have been
considered by the Board.
[26]
As a consequence, I
am satisfied that the Board’s finding that Mr. Yang would not face a serious
possibility of persecution should he return to China is
reasonable.
Conclusion
[27]
For these
reasons, the application for judicial review is dismissed.
Certification
[28]
Neither
party has suggested a
question for certification, and none arises here.
JUDGMENT
THIS COURT
ORDERS AND ADJUDES that:
- This application
for judicial review is dismissed.
- No serious question
of general importance is certified.
“Anne Mactavish”
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