Date: 20110719
Docket: IMM-3673-10
Citation: 2011
FC 902
Ottawa, Ontario,
July 19, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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GONG DAO YAO
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated November 18, 2009 wherein the applicant was determined
not to be a Convention refugee or person in need of protection under sections
96 and 97 of the Act.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
Background
[3]
Gong
Dao Yao (the applicant) is a citizen
of the Peoples Republic of China. He fears persecution because he is a Christian and an alleged
member of an underground Christian church in China.
[4]
The applicant alleges that he
was introduced to Christianity through a friend in 2007 and that he attended an
underground house church in Fujian Province. The
applicant states that in August 2007, the Public Security Bureau (PSB) raided the church. The applicant escaped but alleges that he
was pursued by the PSB and left China to avoid
arrest.
Board’s Decision
[5]
The
Board found that the applicant was not credible with regard to his membership
in an underground church and his pursuit by agents of the PSB.
[6]
The
Board did find, however, that the applicant is a genuine Christian, given his
knowledge of Christianity and corroborative evidence including photographs and
his baptismal certificate. As such, the Board assessed whether there is a
serious possibility that the applicant would be persecuted if he returns to China and
practices Christianity in an unregistered church.
[7]
The Board found that although
persecution of Christians in China does exist, the applicant’s subjective fear is not supported by
the documentary evidence. The applicant has lived and worked all his life in
Fujian Province and the evidence states that Christians in Fujian Province “enjoy one
of the most liberal policies on religious freedom in China.”
[8]
The Board reviewed the evidence
and found that there was no recent evidence of arrests of Christians in Fujian Province.
[9]
The Board noted that house
churches had been destroyed in Fujian Province but gave
this evidence little weight for lack of detail.
[10]
The Board found that
unregistered religious groups continue to expand and no longer operated in
strict secrecy. Many groups carry out public activities and social service
work. The Board also found that prayer and bible groups among friends need not
register and that house churches were more likely to have problems when
membership grew, forged links with other groups or foreign organizations and
that there was no evidence that the applicant’s group did this.
Issues
[11]
The
only issue raised by the applicant was:
Was the Board’s finding that
the applicant could practice his Christian faith which the Board found the
applicant genuinely held, reasonable?
[12]
As
such, the issues are as follows:
1. What is the
appropriate standard of review?
2. Was it reasonable
for the Board to find that the applicant could practice Christianity in Fujian
Province,
China?
Applicant’s Written Submissions
[13]
The
applicant submits that the Board erred in finding that he can practice
Christianity in Fujian Province without persecution.
The Board’s own Request for Information Response (RIR) states that Christian
home churches were destroyed in Fujian Province and this Court has held in Dong v
Canada (Minister of Citizenship and Immigration), 2010 FC
575 that
actions other than arrest may be persecution, including the destruction of
places of worship.
[14]
The
applicant submits that there was wider evidence that the holding of religious
assemblies in unregistered venues results in detention and abuse and that
police and local officials disrupt home worship meetings claiming individuals
belonged to cults.
[15]
The
Board found that the situation in Fujian Province does not
reflect what is happening in other provinces. However, the applicant submits
that nothing in the evidence states that there is no repression of Christians
in Fujian
Province or that
Christians can practice without facing more than a serious possibility of
persecution for doing so. This finding was therefore unreasonable.
Respondent’s Written Submissions
[16]
The
respondent notes that the Board found the applicant not credible that he had
attended an underground church that was raided by the police and that he is
wanted by the PSB for illegal religious activities.
[17]
The
respondent submits that the Board considered the objective evidence and
determined that the applicant is able to practice his faith freely in Fujian Province.
This was a reasonable assessment. This Court has upheld several decisions where
the Board found on the documentary evidence that Christians are free to
practice in Fujian
Province.
[18]
The
Board considered and weighed the evidence of the destruction of home churches
but gave it little weight due to a lack of details about the reason for the
destruction. It is the Board’s prerogative to rely on some evidence over others
and the Court is not to reweigh the documentary evidence.
[19]
The
respondent submits that the Board found that the documentary evidence indicated
that the situation is better in Fujian Province than the rest
of country. The Board considered evidence beyond arrests including the increase
in religious freedom and the expansion of Christian groups.
Analysis and Decision
[20]
Issue
1
What is the appropriate
standard of review?
The issue
here concerns the Board’s assessment
of evidence and the weight to be given to that evidence. These are questions of
fact that are within the Board’s expertise and are thus reviewable under the
reasonableness standard of review (see Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190; Khosa v Canada (Minister of Citizenship and
Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339).
[21]
Issue 2
Was it
reasonable for the Board to find that the applicant could practice Christianity
in Fujian
Province, China?
While the Board did not accept
that the applicant had been part of an underground group and then targeted by
the PSB, it did accept that he is a genuine Christian.
[22]
The
Board considered the documentary evidence concerning Christians in Fujian Province. It
was a reasonable conclusion that Christians may practice relatively freely in
that province compared with the rest of China. This
finding of the Board was based on the evidence before it that:
-
The
reports stating that Christians
in Fujian Province “enjoy one of the most liberal policies on religious
freedom in China.”;
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The
lack of evidence of any arrests of Christians in Fujian Province in recent
years;
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The
general evidence that unregistered religious groups continue to expand and do
not operate in strict secrecy.
[23]
This
Court has held on several occasions that the Board’s finding that Christians
may practice freely in Fujian Province is reasonable.
[24]
For
example, in Jiang v Canada (Minister of
Citizenship and Immigration), 2010
FC 222, Mr. Justice Francois Lemieux
dismissed a review application involving a claimant from Fujian Province stating that “the documentary evidence shows where the
applicant lives there are minimum restraints, people practice generally freely
and those who may be affected unduly do not fit [the applicant's] profile.” (see
also Yu
v Canada (Minister of
Citizenship and Immigration), 2010 FC 310 and Wu v Canada (Minister of
Citizenship and Immigration), 2010 FC 1102).
[25]
The
applicant takes issue with the Board’s treatment of the RIR, CHN102492.E
which states that, “There were also reports
of house churches being destroyed in the provinces of Jilin and Fujian….”.
[26]
The
Board acknowledged this evidence but gave it little weight as evidence of
persecution because:
…no
information was given in this document regarding the reasons for the destruction,
which could have been for reasons other than religious persecution.
[27]
I
accept the applicant’s submission that in Dong above, Mr. Justice Sean Harrington held at
paragraph 17 that the Board erred in finding that “…a
religious adherent is not subject to persecution if only her place of worship
is destroyed, but she is not subject to arrest.” I agree with Mr. Justice
Harrington that actions other than arrest may amount to persecution on the
basis of religious belief. However, the Board’s handling of the documentary
evidence in the case at bar is not the same as in Dong above. Rather, in
the case at bar, the Board found that the details included in the documentary
evidence on the destruction of home churches were not sufficient to found the
refugee claim.
[28]
The
weighing of evidence is within the prerogative of the Board. It is not the role
of this Court to reweigh the evidence (see Legault v Canada (Minister
of Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC 358).
[29]
I
find that the Board’s assessment of the evidence and conclusions based on that
evidence are within the range of possible acceptable outcomes on the facts and
law as per
the standard of reasonableness in Dunsmuir above, at paragraph 47.
[30]
As a
result, the application for judicial review is dismissed.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[32]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72. (1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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.
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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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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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