Date:
20130830
Docket:
IMM-8091-12
Citation:
2013 FC 928
Ottawa, Ontario,
August 30, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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QI GUO CHEN
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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 for judicial review of the July 17, 2012 decision [the decision]
of the Refugee Protection Division of the Immigration and Refugee Board [the
RPD or the Board] finding the applicant to be neither a Convention refugee nor
a person in need of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA].
[2]
The
applicant is a citizen of the People’s Republic of China who resided in Fujian Province before his flight to Canada. He claims to have joined an underground Catholic
house church in China and that it was raided by the Public Security Bureau
[PSB] soon after. He also attended a Catholic church in Canada. The pastor of that parish wrote a letter advising that the applicant had been
attending services, classes and volunteering at the church and that the
applicant would be baptised in April 2012. At the RPD hearing, the applicant
indicated that the baptism had not occurred because he is divorced.
[3]
In
the decision under review, the Board rejected the applicant’s claim, finding
that there was neither a subjective nor an objective basis for the applicant’s
fear of persecution under section 96 of the IRPA and that there was no objective
basis to find him to be at risk under section 97 of the IRPA. More
specifically, while accepting that the applicant might have attended a house
church in China, the RPD did not believe the applicant’s claim that the church
had been raided due to the lack of corroboration for his testimony. In this
regard, the Board placed little weight on the purported PSB summons that the
applicant produced as it lacked an address to which the applicant was to report
and because fraudulent documents are prevalent in China. The RPD also noted
that the objective documentation regarding Fujian did not indicate that there
had been PSB raids of small house church groups.
[4]
The
applicant argues that the Board committed four reviewable errors in its
decision. First, the applicant says that the Board failed to squarely set out
the reasons why it discarded his claim that his house church was raided.
Second, he argues that the Board failed to explicitly find the summons to be
inauthentic and thus erred in affording it no weight. Third, he submits that
there was no basis for the Board to have doubted the authenticity of the
summons as it does show the police station that it was issued from and the
Board engaged in improper speculation in assuming that a Chinese summons would
need to have a reporting address on it. And, fourth, he argues that the Board
erred in finding there would be no risk to the applicant if returned to Fujian as this finding is premised on the assertion that members of house churches are not
subject to arrest, which is an unreasonably narrow understanding of what
activities can constitute religious persecution warranting protection under the
IRPA.
[5]
In
my view, none of these points provides any basis for overturning the Board’s
decision. The standard applicable to review of the decision is reasonableness,
as the impugned findings are all matters of fact or mixed fact and law (Rajadurai
v Canada (Minister of Citizenship and Immigration), 2013 FC 532 at para 23,
228 ACWS (3d) 530; Henguva v Canada (Minister of Citizenship and
Immigration), 2013 FC 483 at para 4, 228 ACWS (3d) 216). The reasonableness
standard is a deferential one that provides that a decision cannot be
overturned if the tribunal’s reasons are transparent, intelligible and
justified and the result falls within the range of permissible alternatives
open in light of the facts and applicable law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
[6]
The
first two alleged errors invite the Court to engage in a microscopic reading of
the decision that is the antithesis of a deferential reasonableness review. The
Supreme Court of Canada has confirmed that such an approach is not warranted
under the reasonableness standard and has indicated that decisions should be
upheld if the reasons allow the litigant and the reviewing court to know why
the decision was reached. In Newfoundland and Labrador Nurses’ Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR
708, Justice Abella, writing for the Court at para 16, put it in the following
way:
Reasons may not include all the arguments, statutory
provisions, jurisprudence or other details the reviewing judge would have
preferred, but that does not impugn the validity of either the reasons or the
result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion […] In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[Citations omitted]
[7]
In
Construction Labour Relations v Driver Iron Inc, 2012 SCC 65, [2012] 3
SCR 405 the Supreme Court similarly stated, at para 3:
The Board did not have to explicitly address all
possible shades of meaning of these provisions. This Court has strongly
emphasized that administrative tribunals do not have to consider and comment
upon every issue raised by the parties in their reasons. For reviewing courts,
the issue remains whether the decision, viewed as a whole in the context of the
record, is reasonable […].
[Citations omitted]
[8]
Here,
with regard to his first two arguments, the applicant is attempting to impugn
the Board’s decision simply for having failed to spell out its findings in more
detail. As noted, it is clear that the Board found the raid to have not
occurred due to problems with the corroborating evidence. In this respect, the
Board stated: “[S]ince there is a lack of evidence before the panel to indicate
that his house church was raided in May 2010, the panel finds that his house
church was not raided and, therefore, he is not wanted by the PSB, nor were any
of its members arrested” (the decision at para 18). Similarly, with regards to
the summons, the Board concluded that it was affording “little weight [to] this
evidence” due to the lack of reporting address and the availability of
fraudulent documents in China (the decision at para 15). These reasons allow
this Court to understand the basis for the Board’s decision and thus the
applicant’s first two arguments must be dismissed.
[9]
In
addition to the reasons just noted, the cases relied upon by the applicant for
his argument that the Board erred in failing to make findings regarding the
alleged raid (namely Wei v Canada (Minister of Citizenship and Immigration),
2013 FC 539, 229 ACWS (3d) 232; Lin v Canada (Minister of Citizenship and
Immigration), 2012 FC 157, 405 FTR 21; Lin v Canada (Minister of
Citizenship and Immigration), 2009 FC 254, 176 ACWS (3d) 500) are further
distinguishable on their facts. In each of those cases, the Board’s credibility
findings were premised only on the objective evidence, at the exclusion of the
applicant’s evidence, or not made at all. In the present case, the Board made a
negative credibility finding regarding whether the raid on the applicant’s
church had occurred, which was premised on a lack of corroboration for the
applicant’s story and a conclusion that the summons presented was inauthentic.
[10]
As
concerns the applicant’s third argument, namely that the Board erred in finding
the lack of a reporting address on the summons to raise doubts about its
authenticity, I find this conclusion to have been reasonably open to the Board,
particularly in light of the large size of Fuzhou City and, more broadly, the
applicant’s inability to provide details regarding the current location or
situation of any of the other individuals allegedly present when the raid
occurred. The case law recognises that the RPD may draw on common sense in
making plausibility determinations (Giron v Canada (Minister of Employment
and Immigration), 143 NR 238 at para 1 (FCA); Zacarias v Canada
(Minister of Citizenship and Immigration), 2012 FC 1155 at para 10, 223
ACWS (3d) 195; Chavarro v Canada (Minister of Citizenship and Immigration),
2010 FC 1119 at paras 30-32, 194 ACWS (3d) 1228). On the deferential
reasonableness standard of review, the Board’s decision to doubt the
authenticity of a purported summons document that lacked an address to report
was reasonable in this context, even if the document did contain the name of
the police station.
[11]
Finally,
while it is true that a refugee claim may be premised on religious persecution
falling short of arrest (see e.g. Zhang v Canada (Minister of Citizenship
and Immigration), 2009 FC 1198, 182 ACWS (3d) 982), contrary to what the
applicant asserts, the Board did not premise its finding only on the lack of
arrest of Christians in Fujian province. Rather, the Board canvassed the
documentation generally and noted that, while the evidence was mixed, there was
little recent evidence of persecution of lay Catholics in Fujian. While certain
reports did indicate general concerns with religious freedoms in Fujian, the Board noted that these reports lacked particulars of the problems faced by
Christians in the Province and, therefore, afforded them minimal weight. The
RPD therefore concluded that the applicant had not established that he would
face any objective risk if returned to Fujian.
[12]
This
determination is a reasonable one in light of the evidence before the Board.
Indeed, as the respondent notes, this Court has recently upheld similar RPD
determinations in several cases (see e.g. Qin v Canada (Minister of
Citizenship and Immigration), 2012 FC 9; He v Canada (Minister of
Citizenship and Immigration), 2011 FC 1199; Wang v Canada (Minister of
Citizenship and Immigration), 2011 FC 636; Yanni Yang v Canada (Minister
of Citizenship and Immigration), 2012 FC 1350; Kai Bin Wei v Canada
(Minister of Citizenship and Immigration), 2012 FC 911; Yan Ping Ke v
Canada (Minister of Citizenship and Immigration), 2012 FC 862; Shoupeng
Wei v Canada (Minister of Citizenship and Immigration), 2012 FC 854; and Yu
Kun Lin v Canada (Minister of Citizenship and Immigration), 2012 FC 671.
[13]
This
application for judicial review will accordingly be dismissed. No question for
certification was submitted under section 74 of the IRPA and none arises in
this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This
application for judicial review is dismissed;
2. No question
of general importance is certified under section 74 of the IRPA; and
3. There is no
order as to costs.
"Mary J.L.
Gleason"
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