Date: 20110119
Docket: IMM-2400-10
Citation: 2011 FC 65
Toronto, Ontario, January 19, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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LI XIAN LIANG
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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
I. Overview
[1]
The
Applicant is recognized as a genuine practising Christian from the Fujian
province in China.
[2]
The
destruction of house churches in the Fujian province is evidence, in
and of itself, that the Chinese authorities do not allow Christians to practice
their faith freely. Freedom of religion encompasses the ability to espouse
one’s faith publicly, in a manner, individually or collectively, chosen in as
much as not to interfere with the fundamental rights of others. By destroying
house churches, the Chinese government is infringing on that right in a
persecutory manner.
[3]
While
there may not have been any reports of Christians being arrested in the Fujian, reports of
persecution of house churches in the Fujian do exist: the
destruction of house churches in that province have been reported. The China
Aid Association considered a reliable, reputable source by the Board, itself,
has had it reported as such. (page 106 at paragraph 3 of the Tribunal (Board)
Record.)
[4]
In
connection with the size of the Applicant’s house church group, the evidence
relied upon is clearly qualified as the Board, itself, acknowledges in its
reasons, the local Religious Affairs Bureaus (RABs) do disrupt home worship
meetings, claiming that participants disturb neighbours, or social order or
belong to an evil cult.
[5]
Further,
the information that groups under forty do not have to register is derived from
the State Administration for Religious Affairs or the China Christian
Council, itself, both Chinese government bodies. The U.S. State
Department International Religious Freedom Report clearly indicates this
rule is not followed because as it states there are many reports to the effect that
the RABs disrupt home worship meetings.
[6]
Thus,
it would appear to be difficult to discern Chinese policy as to where, when and
which church-group-gathering will be targeted next (whether church groups of
over 40 members or less than 40 members are at risk). That leaves church-group-gatherings
in a continuous, unrelenting quandary as to their risk.
II. Introduction
[7]
This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001 c. 27 (IRPA), for judicial review of a decision
of the Refugee Protection Division of the Immigration and Refugee Board (Board),
dated April 8, 2010, wherein it was determined that the Applicant was not a
Convention refugee or a person in need of protection.
III. Facts
[8]
The
Applicant’s claim for refugee protection was based upon her participation in an
underground church in China and her continuing practice of Christianity in Canada.
[9]
The
Applicant, Ms. Li Xian Liang, began attending an underground church in March
2007. The church was raided by the Public Security Bureau (PSB) in October 2007.
The PSB sought the Applicant. Several members of the church were sentenced to
jail and 15 were sentenced to labour re-education camps.
IV. Issues
[10]
(1)
On a balance of probabilities was the panel’s finding that the PSB had not
sought the Applicant reasonable as no summons/warrant had been left at her
home?
(2)
Was the panel’s finding that the Applicant could return to the Fujian province to
continue to practice in an unregistered church and not face more than a mere
possibility of persecution considered reasonable?
V. Analysis
Issue 1: On a balance of probabilities
was the panel’s finding that the PSB had not sought the Applicant reasonable as
no summons/warrant had been left at her home?
[11]
The
Board found that on a balance of probabilities the PSB was not looking for the
Applicant because no warrant/summons had been left at her home.
[12]
According
to the documentary evidence, the Applicant’s testimony that no warrant/summons
was left at her home, could have very well occurred. Negative findings of
credibility could very well lack reasonableness where documentary evidence clearly
indicates that which an applicant says occurred, could in fact have occurred.
[13]
The
documentary evidence indicated that it is not usual procedure to leave a
summons/warrant with any other person other than the person to whom it is
issued. Thus, the PSB in this case appears to have followed usual procedure.
[14]
The
documentary evidence also stated the procedures followed by the PSB vary from
region to region; and, in most instances, routine procedures or rules give way
to norms of the region. Therefore, if the norm in the Applicant’s region is for
the PSB not to leave a summons/warrant for anyone other than the person who is
named, then presumably that norm is followed regardless of how many times the
PSB visits the Applicant’s home or how many people in the Applicant’s house
church would have been arrested and sentenced.
Issue 2: Was the panel’s finding that
the Applicant could return to the Fujian province to continue to practice in an
unregistered church and not face more than a mere possibility of persecution
considered reasonable?
[15]
The
Board found that the evidence did not support that the Applicant has good
grounds for fearing persecution in an unregistered house church. In making this
finding, the Board reviews the documentary evidence on the Fujian and focuses
particularly on reports of arrests of unregistered Christians in the Fujian and
finds that there are no reports of arrests of unregistered Christians in the Fujian. The Board
also focused on the size of the Applicant’s church, twenty – thirty members,
and found that a church of that size did not need to register.
[16]
While
there may not have been any reports of Christians being arrested in the Fujian, reports of
persecution of house churches in the Fujian do exist: the destruction
of house churches in that province have been reported. The China Aid
Association considered a reliable, reputable source by the Board, itself, has
had it reported as such. (page 106 at paragraph 3 of the Tribunal (Board)
Record.)
[17]
The
destruction of house churches in the Fujian is evidence, in and of
itself, that the Chinese authorities do not allow Christians to practice their
faith freely. Freedom of religion encompasses the ability to espouse one’s
faith publicly, in a manner, individually or collectively, chosen in as much as
not to interfere with the fundamental rights of others. By destroying house
churches, the Chinese government is infringing on that right in a persecutory
manner.
[18]
Given
the evidence of the destruction of houses of worship in the Fujian province,
the Applicant does have substantial grounds to fear persecution if she chooses
to freely exercise her right to freely practice her religion.
[19]
In
connection with the size of the Applicant’s house church group, the evidence
relied upon is clearly qualified as the Board acknowledges, itself, in its
reasons, that local RABs do disrupt home worship meetings claiming that
participants disturb neighbours, or social order or belong to an evil cult.
[20]
Further,
the information that groups under forty do not have to register is derived from
the State Administration for Religious Affairs or the China Christian
Council, itself, both Chinese government bodies. The U.S. State
Department International Religious Freedom Report clearly indicates this
rule is not followed because as it states there are many reports to the effect that
the RABs disrupt home worship meetings.
[21]
In
its own decision in respect of the Applicant, the Board-Panel, itself, stated
the following:
[10] Documentation reveals that there is
a large discrepancy in the treatment of house churches (Exhibit R/A-1, item
12.5, Information Request CHN102492.E.). In some parts of the country,
unregistered house churches with hundreds of members meet openly with the full
knowledge of local authorities who characterize the meetings as informal
gatherings to pray, sing and study the Bible. In other areas, house church
meetings of more than a handful of family members and friends are not
permitted. House churches often encounter difficulties when there membership
grows, when they arrange for the regular use of facilities for the specific
purposes of conducting religious activities or when they forge links with other
unregistered groups or with coreligionists overseas. Meetings of unregistered
Protestants in small cities and rural areas may number in the hundreds (Exhibit
R/A-1, item 2.3, p. 65). Documentation (Ibid) also highlights, “Protestant
Christians who worshiped outside of government-approved venues or in their
homes continue to face detention and abuse, especially for attempting to meet
in large groups, traveling within and outside of the country for religious
meetings, and otherwise holding peaceful religious assemblies in unregistered
venues.” The documentation (Exhibit R/A-1, item 2.3, p. 66) also reported that
unregistered religious groups experienced the most abuses and harassment in
Anhui, Hebei, Henan, Shanxi, and Xinjiang provinces.
[11] With respect to the situation of
religious persecution within the claimant’s province of Fujian, there is no persuasive information
suggesting that religious persecution is occurring for groups that are as small
as the claimant’s. Although a number of different commentators have reported on
the issue of religious persecution in China, one in particular, China Aid
Association (CAA), stands out as being a significant source of up-to-date
reporting and detailed accounts of harassment and repression of Protestant
house churches in China (Exhibit R/A-1, item 12.4, Information Request
CHN102491.E, item 12.5, Information Request CHN102492.E and item 12.7,
Information Request CHN102494.E). The report identifies four main targets of
persecution: House church leaders, house churches in urban areas, Christian
publications and foreign Christians and missionaries living and working in China. With respect to the claimant’s
particular circumstances, she testified that 22 members were arrested and long
term prison sentences were imposed on the pastor and four others. Fifteen
received re-education through labour for two and a half years and two had to
pay fines. This is an example of an egregious situation where persons were
arrested and would reasonably be expected to appear in reports dealing with religious
persecution, not only from CAA but amongst the multitude of different resources
which strive to inform the world of religious repression in China. Commentators have stated that the
Chinese government has a “less antagonistic” attitude towards unregistered Protestants
than it does towards unregistered Catholics, though it fears “house” churches
may act as a cover for dissidents (Exhibit R/A-1, item 12.9, Information
Request CHN100387.E). What is clear to the panel is that in China, religious persecution of Protestant
“house churches” does occur, however, it is not general in nature. Such factors
as whether there are close links with the West, evangelisation, membership
growth to become large-scale congregations, arrangements for regular use of facilities,
whether an individual is a leader, rural or urban areas and location within
China are all factors to consider.
[12] The panel is mindful of the caveat
that the number of persecution incidents is likely to be much higher because of
censorship in communications (Exhibit R/A-1, item 12.10) and even considered
the possibility that not all information is available to commentators. It
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, 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 in Fujian province.
[13] Counsel provided documentation
(Exhibit C-4, item 133, p. 445) from a determination made by an Australian
Tribunal where a citizen from Fujian was found to have protection
rights. The panel is not bound by the decision of the Australian panel.
[22]
Thus,
it was unreasonable for the Board to rely on the size of the Applicant’s
group to find that she does not have good grounds to fear persecution should
she return to China and practice
in an underground church. It is clear that the Chinese authorities continue
to raid churches regardless of their size.
VI. Conclusion
[23]
Therefore,
for all the above reasons, the application for judicial review is allowed and
the matter is remitted for re-determination by a differently constituted panel.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be allowed and
the matter be remitted for re-determination by a differently constituted panel.
No certified question raised.
“Michel M.J. Shore”
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