Date:
20130411
Docket:
IMM-1807-12
Citation:
2013 FC 362
Montréal,
Quebec, April 11, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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LE HE
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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]
Mr.
Le He (the Applicant) seeks judicial review of the decision of Daniel G.
McSweeney (the Officer), a member of the Refugee Protection Division of the
Immigration and Refugee Board (the Board), dated January 25, 2012, and signed
February 1, 2012. In his decision, the Officer determined that the Applicant is
neither a Convention refugee nor a person in need of protection. The Applicant
seeks an order quashing the Board’s decision and remitting the matter back for
re‑determination by a differently constituted panel.
[2]
The
Applicant is a citizen of the People’s Republic of China (PRC) who claims to
have a well-founded fear of persecution in China at the hands of the Public
Security Bureau (PSB) due to his Christian religion and membership in an
underground church in the Fujian province. The Board found that there was
insufficient evidence to support the Applicant’s allegations that his house
church was raided or that the PSB was looking for him. The Board also found
that the documentary evidence did not support an argument that the Applicant
would be at risk of persecution in the Fujian province.
[3]
For
the reasons set out below, I find that the Officer’s decision was reasonable
and the application should be dismissed.
Facts
[4]
The
Applicant was born in China on December 26, 1989. He is a Chinese citizen from
the Fujian province who began attending an underground Protestant house church
in China on June 1, 2008. He continued to attend church over the next few
months and claims to have been baptized in China on December 25, 2008.
[5]
The
Applicant came to Canada on a student visa on May 30, 2009 and, according to a
letter from Reverend David Ko dated July 24, 2011, joined the Living Stone
Assembly on June 7, 2009. As the Applicant had no baptismal certificate, he was
baptized for a second time on September 19, 2009, at the recommendation of
Reverend Ko.
[6]
The
Applicant alleges that his house church in China was raided on November 15,
2009. He learned of the raid the next day from his parents. On November 20,
2009, the PSB visited the Applicant’s parents’ home looking for him. When
informed the Applicant was studying abroad, the PSB allegedly asked that he
report to them upon his return to China. The PSB visited again on December 18,
2009 with a similar message.
[7]
The
Applicant submitted a claim for refugee protection only a few days after the
first alleged visit, on November 23, 2009.
[8]
The
PSB allegedly came to the Applicant’s home with an arrest warrant on February
23, 2010. His parents informed him of this visit at the end of February. In
total, the Applicant’s parents advised him that the PSB had visited their home
up to 7 times by the time of the interview, only showing the arrest warrant to
the parents and never leaving a copy.
[9]
The
Applicant states that the organizer of his house church and another member were
arrested after the raid and each sentenced on May 20, 2010, to more than two
years in prison.
[10]
A
hearing scheduled for August 19, 2011 was adjourned due to the Applicant’s
illness. On November 4, 2011, a second hearing was adjourned to permit the
Applicant to seek counsel after his initial counsel withdrew due to a perceived
conflict of interest. A full hearing before the Board took place on December
20, 2011 and the Board issued reasons rejecting the claim on January 25, 2012.
Decision under
review
[11]
The
Officer found, on a balance of probabilities, that the Applicant is not a
Convention refugee or a person in need of protection. The Officer based this
finding on his conclusion that the Applicant is not a wanted person in China
and that, given the lack of evidence of persecution of Protestant church
members after 2006, the authorities in Fujian are not interested in persecuting
underground Protestant church members. The Officer held that the Applicant’s
fear of persecution upon return to China is not well-founded and that he will
be “free to worship as he sees fit”. As a result, he concludes that the
Applicant would not face a serious possibility of persecution should he return
to China, nor would he be personally subject to a risk to his life, or a risk
of cruel or unusual treatment or punishment, or a danger, believed on
substantial grounds to exist, of torture.
[12]
In
arriving at this conclusion, the Officer broke down his analysis as follows:
i)
Credibility of being wanted in China: The Officer refused the
Applicant’s claim that his church in China was raided and that he is wanted by
the PSB, finding these allegations not credible. In particular, the Officer
found, in light of the documentary evidence, that it was unreasonable that the
PSB would not have left a document with the Applicant’s parents if they had
repeatedly returned to the Applicant’s home. In addition, he found the
Applicant’s failure to provide a letter or affidavit from a friend or family
member attesting to the facts to be unreasonable. Finally, given the lack of
such a letter or affidavit and in light of an analysis of all the documentary
evidence, the Officer found that officials in Fujian are not interested in persecuting
underground Protestant Christians and have not engaged in raids and arrests in
that region, as discussed in relation to the Applicant’s ability to return to China and practice in Fujian.
ii)
Ability to return and practice in Fujian: Based on a review of the
documentary evidence, counsel’s submissions, and a survey of the recent
jurisprudence of the Federal Court, the Officer was not persuaded that
underground Christians face a serious possibility of persecution in Fujian. In a lengthy review of the documentary evidence, the Officer noted only three
incidents involving persecution or policing of underground churches in Fujian province since 2006. Contrasting this with much more specific evidence of
persecution in other provinces and regions of China, particularly “given that
authorities have the legal framework and resources to persecute underground
Protestants if they wish” (Decision, para 25), he found that it would be
reasonable to expect some form of additional objective documentary evidence to
exist were local authorities in Fujian interested in persecuting underground
Protestant Christians. He found that there is a large discrepancy in the
treatment of house churches in China by region or local conditions, that house
churches throughout China are mostly tolerated (grudgingly) if below a certain
size (about 25 people), that persecution is an exception rather than the rule,
that there is no pattern of persecution in Fujian, and that he is not satisfied
that persecution is occurring for groups as small as the Applicant’s
(approximately 10 members).
iii)
Ability to return and spread the gospel in Fujian: The Applicant further
alleged that he has spread the gospel in Canada and could not do this in China. The Officer concluded, however, that the Applicant could “return to Fujian and
worship as he sees fit”, finding that the Applicant’s gospel-spreading
activities in Canada were modest at best (for example, they were directed at
only two people, were unmentioned by Reverend Ko in his list of the Applicant’s
Christian activities in Canada, and the Applicant was unable to indicate where
in the Bible Christians were commanded by Jesus to spread the Gospel) and that
there was no additional evidence regarding this claim.
Issues
[13]
The
Applicant raises the following two issues: (i) Did the Board misconstrue the
evidence regarding the issuance of summonses/warrants in China; and (ii) Did the Board err in finding that the Applicant can return to China and freely practice Christianity in Fujian province?
[14]
While
these two issues overlap, I will nevertheless address them separately below.
Analysis
[15]
The
Applicant does not address the standard of review in relation to his first
issue and suggests that the second issue is reviewable on a reasonableness
standard. The Respondent submits that the reasonableness standard applies to
the decision as a whole.
[16]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190 [Dunsmuir] at para 57, established that where the standard of
review applicable to a particular question before the court is well-settled by
past jurisprudence, a reviewing court may adopt the settled standard of review.
In Qin v Canada (MCI), 2012 FC 9 at paras 33-37, Justice Russell
established that a reasonableness standard applies both to credibility findings
and to mixed questions of fact and law as to whether or not specific acts of
discrimination amount to persecution. The same standards apply here. Plausibility
determinations or the Board’s analysis of the evidence are questions of fact or
mixed fact and law and also reviewable on a standard of reasonableness (Zhan
v Canada (MCI), 2011 FC 654 at para 17).
[17]
When
reviewing a decision for reasonableness, the Court will consider “the existence
of justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47; Khosa v Canada (MCI), 2009 SCC 12, [2009] 1 S.C.R. 339
at para 59).
i) Did the Board
misconstrue the evidence regarding the issuance of summonses/warrants in China?
[18]
The
Applicant argues that the Board erred in finding, without any evidentiary
basis, that a summons/warrant would have been left with the Applicant’s family
if he was wanted by the PSB. Identifying the question as a central element of
the Officer’s assessment of the Applicant’s credibility, the Applicant submits
that an error in this regard is, in and of itself, determinative and a sufficient
ground for review.
[19]
More
particularly, the Applicant takes issue with the Officer’s statement that “…the
documentary evidence indicates that a person who is summoned for arrest or a
family member or neighbour is provided with a duplicate copy of the summons”
(Decision, para 7). He argues that the sole piece of documentary evidence
relied upon in this regard (a Response to Information Request dated June 1,
2004) is out of date and not supportive of the Officer’s finding. The Applicant
points instead to a more recent Response to Information Request of July 6,
2012, according to which there is great variability and arbitrariness in law
enforcement procedures in China and the proper procedure is not to leave
a summons/warrant with family members.
[20]
I
agree with the Respondent that the Applicant is estopped from contesting the
relevancy and currency of the document relied upon by the Officer with respect
to the procedure for issuing summonses/warrants in China, as counsel for the
Applicant referred the Officer to this very document in his submissions,
expressing no reservations as to its currency.
[21]
That
being said, I agree with the Applicant that the Officer appears to have
overlooked other statements in the 2004 document that could support his claim. The
document clearly indicates that the issuance of summons to family members is
not proper procedure, that there is great variability and arbitrariness in law
enforcement procedures in China, and that the PSB has yet to become a rule of
law institution. This conclusion is indeed supported by the information
contained in the more recent 2012 Response to Information Request, according to
which “arrest procedures differ from locale to locale, having to conform to
local customs reflecting indigenous circumstances and […] even the targeted
individual may not receive a copy of the summons without specifically asking
for it.” The Officer’s conclusions and his failure to address this document,
therefore, raise questions as to whether he has fully engaged with this more recent
evidence.
[22]
Had
the Officer’s credibility conclusion been based solely on his finding that the
PSB would leave a document with the Applicant’s parents, it would most probably
be reviewable. However, this is not the case here. While awkwardly worded, the
Officer’s reasons suggest that he was simply seeking some form of corroborating
evidence for the Applicant’s claim, whether a copy of a summons, a letter or
affidavit from friends or family, or supportive documentary evidence in the
country package, and that these forms of evidence would not all be required but
could be presented in the alternative.
[23]
The
burden of proof is ultimately on the Applicant, such that it was not
unreasonable for the Officer to require him to provide some form of
corroborating evidence of his claims regarding the church raid and his wanted
status. In He v Canada (MCI), 2010 FC 525 at para 14, Justice Near
dismissed an argument similar to that of the Applicant, holding as follows:
The Board based its decision on documentary evidence
that in many cases warrants or summons are normally left. It was up to the
Applicant to introduce into evidence all the material to establish that her
claim was well-founded and a lack of relevant documents can be a valid
consideration for the purpose of assessing credibility (see Syed v Canada
(Minister of Citizenship & Immigration), [1998] F.C.J. No. 357, 78
A.C.W.S.(3d) 579 (Fed. T.D.), see also Sun v Canada (Minister of Citizenship
& Immigration), 2008 FC 1255, [2008] F.C.J. No. 1570 (F.C.)). In this
case the Board’s decision was reasonably open to it.
[24]
As
in that case, it was open to the Officer here to require further evidence
supporting the Applicant’s allegations of his wanted status. As stated by
Justice Zinn in Yu v Canada (MCI), 2010 FC 310 at para 28:
A fact finder, when presented
only with the oral testimony of a witness, may find that witness generally not
to be credible. If so, then his evidence will be given little, if any, weight. The
fact finder will want to see or hear other evidence that supports a “fact”
testified to by such a witness, before finding that it is a fact. In short,
where the only evidence of a fact is a statement of a witness who has been
found not to be credible, it is open to the fact finder to say that the fact
has not been proven on a balance of probabilities. (…)
[25]
In
the case at bar, it must be remembered that the Applicant was not in China during the alleged raid. Moreover, the Officer found that there was very little
evidence that small groups of underground practising Christians would suffer
persecution in the Fujian province. Given those circumstances, the Officer was
entitled to question the Applicant’s credibility and to require some
corroborative evidence. Once again, the Board’s main finding was not that a
summons was not produced, but that the Applicant had no proof from China that he was wanted or that his church was raided.
[26]
Not
only was there no corroborative evidence, but no attempt to obtain such
evidence was made. The Applicant does not address the statement in the 2010
Response to Information Request to the effect that “[i]t is possible to obtain
a copy [of an arrest or summons] afterwards by contacting the local Public
Security Bureau and making this request”. In Wei v Canada (MCI), 2012 FC
911, Justice Russell drew a negative inference from the Applicant’s failure to
produce a copy of an alleged PSB warrant, referencing the earlier 2004 Response
to Information Request for the proposition that it is possible to obtain a copy
from the PSB. In the absence of any allegation that it would have been
unreasonable for the Applicant’s family to contact the PSB, the same negative
inference can be drawn here.
[27]
In
light of the foregoing, I am of the view that the Officer’s credibility finding
is entitled to deference and is not unreasonable, despite the fact that he may
have been mistaken in assuming that the PSB would have left a copy of the
summons/warrant with the Applicant’s parents.
ii) Did the Board
err in finding that the Applicant can return to China and freely practice Christianity
in Fujian province?
[28]
The
Applicant submits that the Board’s conclusion that the Applicant can return to Fujian province and freely practice his religion without a serious possibility of facing
persecution for doing so is unreasonable.
[29]
He
argues that this determination was based on an alleged lack of evidence
documenting arrests of Christians in Fujian province and points to two recent
Federal Court decisions (Weng v Canada (MCI), 2011 FC 1483 [Weng]
and Liang v Canada (MCI), 2011 FC 65 [Liang]) as supportive of
his position, as they both pertain to the Fujian region.
[30]
The
Applicant argues that the evidence before the Board in Weng was exactly
the same as that before the Officer in this case, including two letters from
Bob Fu, President of the China Aid Association. With respect to Liang,
the Applicant argues that Justice Shore’s finding that “[g]iven 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” (para 18) is directly applicable
with respect to the existence of persecution in the Fujian province.
[31]
The
Applicant also argues that the country documentation before the Board clearly
established that unregistered churches in China are illegal and that sanctions
may result from membership therein. He cites Mr. Fu’s evidence that “it is
absolutely incorrect to find that there is religious freedom in Fujian province” and that persecution in Fujian is “always present”.
[32]
Counsel
for the Applicant further argues that the Officer erred by suggesting that the
Applicant would not face persecution because of the size and underground nature
of his church. Counsel argues that the Officer has no way of knowing that the
Applicant would join a church sufficiently small to avoid detection or that,
once he had chosen a church, that church wouldn’t grow. It is argued that
restricting the Applicant to membership in a small house church limits his
freedom of religion, an issue also addressed by Justice Shore in Liang
(at para 22). Counsel claims that in light of that decision, it was
unreasonable for the Board to rely in any measure on the size of the
Applicant’s group to find that he does not have good grounds to fear
persecution.
[33]
Counsel
also argues that the Board erred in focusing on raids and arrests as the
principal barometer of religious persecution in Fujian, as these are but one
aspect of persecution and thus constitute an unduly limited understanding of
freedom of religion. Counsel argues that the extent to which underground
Christians are able to hide their activities and avoid detection is irrelevant
for the purposes of determining whether or not they are subject to persecution
or are unable to freely practice their religion, openly and in accordance with
their fundamental beliefs.
[34]
Finally,
counsel for the Applicant argues that the Board erred by considering the
treatment of Christians in Fujian in a vacuum, and that it should have considered
systemic sanctions in China against those who practice unauthorized religions
as opposed to the chances of the Applicant himself being singled out when
assessing the objective component of the Applicant’s well-founded fear of
persecution.
[35]
I
find that the Applicant cannot succeed on any of these arguments for the
following reasons.
[36]
First
of all, it is trite law that each case turns on its own facts. As Justice
Campbell stated in Chen v Canada (MCI), 2012 FC 545, at para 22,
“[b]ecause current evidence is so crucial to support a finding of safety upon
return, in my opinion a determination on evidence in a past decision of the
Court has no precedential value”; see also Yu v Canada (MCI), 2010 FC
310, at para 22.
[37]
Moreover,
the Weng decision can easily be distinguished from the case at bar. In
that case, the Court’s finding that the Board’s decision was unreasonable was
not based solely on the likelihood of persecution in Fujian, but rather
primarily on its finding that the Board arrived at a conclusion regarding the
claimant’s credibility after a simple recital of the facts and testimony
without analysis or reasons. As a result, the Court’s finding that the Board
erred in failing to take into consideration relevant evidence of arrests and
other forms of persecution of house church members in the province of Fujian was just one element of its decision and would not necessarily have been sufficient on
its own to justify overturning the Board’s decision.
[38]
As
for Liang, it is true that Justice Shore found that it was unreasonable
for the Board to
rely on the size of the applicant’s
congregation to establish persecution and that authorities raid churches
regardless of their size. However, as pointed out by the Officer, that finding
has not been uniformly followed by other members of this Court, and Liang has
indeed been distinguished in at least four decisions to date: see Lin v
Canada (MCI), 2012 FC 1200; Wei v Canada (MCI), 2012 FC 911; He v
Canada (MCI), 2011 FC 1199; and Yang v Canada (MCI), 2011 FC 811 [Yang].
[39]
Having
carefully reviewed the evidence and the reasons of the Officer, I am of the
view that it was not unreasonable to take into consideration the fact that the
Applicant’s church had approximately 10 members and was located in a very small
village of 7 to 10 families. I am also in agreement with Justice Mactavish’s
finding in Yang that it is relevant to consider risk in relation to
someone who shares a similar profile to that of an applicant. As in Yang,
there is no evidence here that the Applicant would proselytize or assume a
leadership role, thereby subjecting himself to greater risk. The Applicant
himself indicates that he did not have a fear of the police or any authorities
prior to leaving China (Tribunal Record, p 732). Moreover, the Officer 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 those documents
little weight, contrary to the situation faced by the Court in Liang. In
a nutshell, the Officer’s assessment of the documentary evidence was thorough,
and it is not the role of this Court to reweigh the evidence.
[40]
I
agree with the Applicant that he should not have to hide the practice of his
religion in order to avoid persecution. However, he has not suggested other
forms of persecution that he has suffered or would suffer, and the burden was
on him to establish a serious risk of persecution.
[41]
Finally,
it was not unreasonable for the Officer to conclude that if religious
persecution is prevalent in Fujian it would have been documented, given the
significant amount of information detailing very specific examples of
persecution from areas of China much more remote and difficult to access than
Fujian: see Nen Mei Lin v Canada (MCI), (February 4, 2010), IMM-5425-08, at
p 3. If an internal flight alternative can exist where the alleged persecutor
is a state agent (see Saini v Canada (MCI), [1993] FCJ No 280, 151 NR
239 (FCA)), it is not unreasonable to consider that the Applicant would be safe
from state persecution in a particular region of China, despite abuses that may
occur elsewhere in the country.
Conclusion
[42]
In
light of the above, I find that the Applicant has not succeeded in establishing
that the Officer’s decision was unreasonable, either with respect to the
negative credibility findings (including the issuance of summonses/warrants in
China) or with respect to the Applicant’s ability to return to and practice his
religion in Fujian province. As such, his application must be dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Yves de Montigny”
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