Date: 20080923
Docket: IMM-589-08
Citation: 2008 FC 1066
Ottawa, Ontario, September 23, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
QIAO
YING ZHU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Is
it reasonable to find that a Christian from China may satisfy
her beliefs by attending a state-sanctioned Church because of the low level of
her religious sophistication?
BACKGROUND
[2]
This
is an application for judicial review of the decision of the Immigration and Refugee
Board of Canada, Refugee Protection Division (RPD) dated January 21, 2008,
which determined that the Applicant was neither a Convention refugee nor a
person in need of protection.
[3]
The
Applicant is a 32-year-old Chinese national from Fuzhou city, in Jiangxi province.
She arrived in Canada on August 1, 2006 and immediately claimed
refugee protection. Both her husband and her 10 year old son are still in China. Her formal
education is very limited and she is illiterate.
[4]
The
Applicant claimed that she joined the congregation of an illegal house-church
in early May 2006, after being forced to undergo an abortion pursuant to
Chinese family planning regulations. This caused her to question the meaning
of life and a friend introduced her to the church. She had only been involved
with the church for a period of about a month before it was raided and service
broken up by agents of the Public Security Bureau (PSB) on May 28, 2006. She fled
and went into hiding at a relative's home during which time she learned that
PBS agents had gone to her home and interrogated family members with regards to
her whereabouts. She also learned that five members of the congregation had
been arrested.
[5]
At
the hearing of her claim on October 2, 2007, the Applicant testified that she
had no prior knowledge of Christianity before she was introduced to the
congregation of the house-church. She stated that her attachment to the house-church
rather than one of the registered, i.e. state sanctioned churches rests on her
belief that the latter put the government first whereas her congregation puts
Jesus Christ first. Her knowledge of the Gospel stems from what she has
absorbed from sermons and prayers in the brief period of her attendance at the
church. Over the course of her involvement with the house-church she was able
to attend only four services prior to the alleged raid by the PBS.
[6]
In
its decision, the RPD discounted aspects of the claimant's story, finding that
her testimony was not altogether credible, primarily on the basis of
significant discrepancies in the story she recounted to the immigration
authorities at the point of entry and her later testimony at the hearing and in
the PIF narrative. On account of these discrepancies and omissions, the RPD
found on the balance of probabilities that the alleged raid of the house-church
was a fabrication. However, it did accept the Applicant's embrace of
Christianity to be genuine and stated that “she much enjoyed her short
religious experience in China prior to leaving her country". On
this basis and having accepted the truthfulness of her stated desire to attend
an underground church, the RPD proceeded to analyze the validity of her claim,
notwithstanding its misgivings about the veracity of her testimony in other
respects.
[7]
In
its analysis, the RPD noted that five religions are recognized by the Chinese
government. It cited documentary evidence that the liturgy and rites of the
state sanctioned Protestant churches are comparable to those of Western
churches and gave little weight to one documentary source that claimed that key
Protestant doctrines are suppressed and opposed by state-sponsored churches.
[8]
After
canvassing the documentary evidence, the RPD determined that the Applicant’s
understanding of Christianity was not sophisticated enough that her religious
needs could not be met within the framework of the state-sanctioned church
structure, her convictions being limited to a belief in God and a belief in the
role of Jesus as Saviour. Accordingly, it found that there was no basis for
her to fear persecution in China. Specifically the RPD comments:
Religion, per se, is widely
recognized as a fundamental right. Each of its manifestations (Muslim,
Catholic, Protestant, etc.) is comprised of core beliefs. That is not to say
that every aspect of any religion is “fundamental" to it such that it
enjoys the protection of the Convention. … The proposition posed by the
claimant's counsel which extends the fundamental nature or religion to such
things as the choice of going to particular house as opposed to registered
church or the choice of a specific pastor is not persuasive with regard to this
specific claimant's particular religious belief arising from her brief exposure
to Christianity and her level of religious sophistication.
[9]
The
RPD also observed that laws which require the registration of churches are not
conclusive of religious persecution and it notes that even in Canada any denomination
which wishes to hold land in its name or conduct business must register as a
legal entity. It concludes that provided such laws do not prevent the practice
of core religious beliefs then those laws do not violate fundamental religious
beliefs.
ISSUE
[10]
The
Applicant contends that the RPD erred in its assessment of the risk of
persecution to her in China by assessing whether her core religious
beliefs would be denied if she returned to that country.
ANALYSIS
[11]
The
RPD accepted the sincerity of the Applicant's profession of faith and her desire
to attend an underground church. Its evaluation of whether or not these
convictions would put the Applicant
at risk of persecution were she returned to
China must be able
to withstand review, and in my view, it does not.
[12]
The
approach taken by the RPD with respect to religious freedom and persecution for
religious reasons is fundamentally flawed. It was flawed because the approach
taken by the RPD was that the Applicant's appreciation of Christian doctrine
was not sophisticated enough for her to have any valid reason to prefer an
underground church to state sanctioned one; hence, it was open to her to
observe her religious beliefs without fear of persecution.
[13]
First,
having found that the Applicant was a Christian, it is not for the RPD to
assess the sophistication of her belief. The question it was required to
address, having accepted her evidence that she was a Christian, was whether
that would put her at risk if she were returned to China
[14]
Secondly,
the RPD overlooks the principal conviction the Applicant articulated that the
state-sanctioned church is beholden to government, whereas the underground
church places God first. This was her stated reason for not wishing to attend
a state-sanctioned church. That church fails to follow one of her principal
beliefs. This is the conviction that should have been analyzed by the Board;
it is entirely irrelevant whether state-sanctioned churches embrace
conventional Protestant teachings.
[15]
The
Applicant relied on the decision of this Court in Fosu v. Canada (Minister of
Employment and Immigration), [1994] 90 F.T.R. 182. In that decision, which
was cited
approvingly by Justice Sharlow in Irripugge v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 29, and more
recently by Justice Phelan in Golesorkhi v. Canada (Minister of Citizenship
and Immigration), 2008 FC 511, it was remarked that persecution of the
practice of religion can include the prohibition of worshiping in private and
that the Board had unduly limited the concept of religious practice by
confining it to prayer and Bible study:
It appeared from a careful analysis of
the evidence and the decision in the case at bar that this Court should
intervene. I feel that the Refugee Division unduly limited the concept of religious
practice, confining it to "praying to God or studying the Bible". The
fact is that the right to freedom of religion also includes the freedom to
demonstrate one's religion or belief in public or in private by teaching,
practice, worship and the performance of rites1.
As a corollary to this statement, it seems that persecution of the practice of
religion can take various forms, such as a prohibition on worshipping in public
or private, giving or receiving religious instruction or, the implementation of
serious discriminatory policies against persons on account of the practice of
their religion. In the case at bar I feel that the prohibition made against
Jehovah's Witnesses meeting to practise their religion could amount to
persecution. That is precisely what the Refugee Division had to analyze.
[16]
This
approach to the notion of religious persecution is consistent with and
complementary to the concept of religious freedom subsequently endorsed by the
Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, where the
Court emphasizes
the subjectivity of religious conviction and includes the germane observation
at paragraph 43 that “claimants
seeking to invoke freedom of religion should not need to prove the objective
validity of their beliefs in that their beliefs are objectively recognized as
valid by other members of the same religion, nor is such an inquiry appropriate
for courts to make”. The Court further observed at paragraph 50 that:
…[T]he State is in no position to be, nor
should it become, the arbiter of religious dogma. Accordingly, courts should
avoid judicially interpreting and thus determining, either explicitly or
implicitly, the
content of a subjective understanding of
religious requirement, "obligation", precept,
"commandment", custom or ritual. Secular judicial determinations of
theological or religious disputes, or of contentious matters of religious
doctrine, unjustifiably entangle the court in the affairs of religion.
[17]
This
is not to suggest that the sincerity of a claimant’s religious conviction cannot
be tested with reference to the claimant's familiarity with the dogma or creed
invoked. In my view, in this case, after accepting the sincerity of the Applicant’s
conviction, the RPD erred when it went on to articulate a rather elaborate
conception of religious freedom which entirely discounts the subjective aspect
of religious belief in holding that the legitimacy of a person's belief can and
should be measured against his or her level of religious sophistication.
[18]
Accordingly,
this decision cannot stand and must be set aside. No question was proposed for
certification and there is none on the facts.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review is allowed and the matter is referred to a different panel of
the Immigration and Refugee Board of Canada, Refugee Protection Division, for
redetermination.
“Russel W. Zinn”
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