Date:
20130417
Docket:
IMM-2910-12
Citation:
2013 FC 383
Ottawa, Ontario,
April 17, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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QING QUAN LUO
HUI XIN LIANG
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Applicants
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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]
In
2010, Mr Qing Quan Luo and his spouse, Ms Hui Xin Liang, left China and claimed refugee protection in Canada. They based their claim on a fear of religious
persecution as members of an underground Christian church in Guangzhou. They
maintain that the Public Security Bureau (PSB) in China raided their church,
arrested some of their fellow congregants, and are now seeking their arrest.
They also contend that they face repercussions for having violated China’s one-child policy.
[2]
A
panel of the Immigration and Refugee Board considered the applicants’ evidence
and concluded that their fear of religious persecution was not supported by
credible evidence. It also found that the applicants’ fear of family planning
officials in China was unsupported by documentary evidence. Therefore, the
Board rejected their claims.
[3]
The
applicants argue that the Board’s assessment of their credibility was
unreasonable and that the Board ignored important evidence relating to the
enforcement of China’s one-child policy. They ask me to quash the Board’s
decision and order another panel of the Board to reconsider their claims.
[4]
I
agree that the Board’s credibility assessment in respect of the applicants’
claims of religious persecution was unreasonable. I will, therefore, allow the
applicants’ application for judicial review on that basis. It is unnecessary to
consider whether the Board erred in respect of the applicants’ fear of family
planning officials.
[5]
The
sole issue, therefore, is whether the Board’s credibility assessment was
unreasonable.
II. The Board’s treatment
of the evidence
[6]
The
Board began its analysis with a general finding that the applicants’ version of
events contradicted the available documentary evidence. It undertook to
elaborate on that conclusion later in its reasons.
[7]
In
addition, the Board expressed a number of specific concerns with respect to the
applicants’ claim that they were being sought by the PSB:
• The
applicants maintained that the PSB showed Mr Luo’s parents an arrest warrant,
but documentary evidence suggests that the PSB relies on arrest warrants only
when there are grounds for believing that the suspects will not respond to a
summons. The PSB had no such grounds here.
• Normally,
a summons is left with family members, so it is likely that the PSB would have
left a summons with Mr Luo’s parents before resorting to an arrest warrant.
• It
is possible to obtain copies of warrants or summonses issued by the PSB but the
applicants failed to do so.
• The
applicants stated that the PSB searched their home but they could not produce a
copy of the search warrant. Since the PSB had provided an arrest warrant, it
would probably have produced a search warrant as well.
[8]
Based
on these findings, as well as its overall conclusion that the applicants’
version of events in China was inconsistent with the documentary evidence, the
Board found that the applicants’ claims were neither plausible nor credible. In
particular, it found that the “alleged raid on the claimants’ house church did
not occur”.
III. Was the Board’s
treatment of the evidence unreasonable?
[9]
In
its reasons, the Board undertook (twice) to explain how the applicants’ claim
of religious persecution in Guandong Province was inconsistent with the
documentary evidence. It never did so. As a result, the Board never analyzed
the documentary evidence, some of which clearly supported the applicants’
claims. In particular, a 2009 report by the China Aid Association referred to a
raid by Chinese authorities on a house church in Guangzhou.
[10]
Even
if the Board’s negative inferences described above were well-founded, it still
had an obligation to consider the documentary evidence on which the applicants
relied, especially those portions of it that contradicted the Board’s ultimate
conclusion. Clearly, the Board itself was aware of this duty as it twice
referred to the required analysis in its reasons. However, that analysis was
never carried out.
[11]
Accordingly,
the Board’s conclusion that the applicants’ version of events could not be
believed was unreasonable.
IV. Conclusion and
Disposition
[12]
In
the absence of a proper analysis of the documentary evidence, the Board’s
conclusion that the applicants’ evidence was implausible and unbelievable did
not represent a defensible outcome. It was unreasonable. I must, therefore,
allow this application for judicial review and order a new hearing before a
different panel of the Board. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed and a new hearing is ordered before
a different panel of the Board.
2.
No
question of general importance is stated.
“James w. O’Reilly”
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