Date:
20140115
Docket:
IMM-9603-12
Citation:
2014 FC 44
Ottawa, Ontario,
January 15, 2014
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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XIN TONG 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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act] for judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [RPD or the
Board] dated 23 August 2012 [Decision], which refused the Applicant’s
application to be deemed a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of the People’s Republic of China who came to Canada in July 2010 with the help of a smuggler. He filed a refugee claim upon his arrival,
alleging he had been subjected to persecution in Fujian province for his
participation in a Christian house church.
[3]
The
Applicant says that he was introduced to Christianity by a friend in February
2007, and began attending a small underground house church in March 2007. He says
that on 1 July 2010, this house church was raided by the Public Security Bureau
[PSB], but that he and other members were able to escape due to a warning from church
members who were acting as lookouts. Rather than going home, the Applicant says
he hid at a relative’s house, and the next day fled to a friend’s house in
another city. He says the PSB went to his home on 2 July 2010 to arrest him,
that his friend and other church members were arrested, and that the PSB
returned to his home looking for him on 9 July 2010. He decided to leave China, leaving his wife and family behind, and arrived in Canada on 25 July 2010. He says he later
learned that the PSB came looking for him again on 15 July 2010 and 2 August
2010, and that they have been to his home a total of eight times, the most
recent in February 2012.
[4]
The
Applicant’s refugee claim was heard on 9 February 2012, and the Decision
refusing his claim was issued on 23 August 2012.
DECISION UNDER
REVIEW
[5]
The
RPD accepted that the Applicant was a practising Christian in China, and that he continues to be a practising Christian in Canada, but did not accept his
allegations that his house church was raided, that members of the church were
arrested in the wake of that raid, or that the PSB has continued to look for
him. The Board found that, on a balance of probabilities, he could return to Fujian province and practise his religion freely. These findings were based on documentary
evidence regarding the conditions faced by Christians in Fujian province, which
the RPD preferred to the Applicant’s testimony.
[6]
The
RPD found that, although unregistered churches such as the one the Applicant
attended are illegal, the documentary evidence shows that there are millions of
Christians in China attending illegal underground churches. The Board noted
that there are continuing reports of abuse and harassment of Christians in
several Chinese provinces, but that the overall number of such incidents has
declined, and “Christians in China in general are able to have more space to
express their faith and to have a much wider range of diverse expressions
during the past few years” (Reasons and Decision [Reasons] at para 23). The
Board noted evidence that “the treatment of unregistered Protestants may vary
depending on their location and the tolerance of local authorities”, and
“[o]fficials have wide latitude in interpreting what constitutes ‘normal
religious activities’”: Research Directorate, Immigration and Refugee Board of
Canada, Responses to Information [RIRs], CHN103500.E, quoted in Reasons at para
22.
[7]
With
specific reference to the Applicant’s province of Fujian, the Board found that
there were no recent reports that this province was a site of arrest, detention
or church closures. There were large numbers of unregistered house churches in Fujian, some of which held meetings on the premises of the state-sanctioned Protestant
church organization, the Three-Self-Patriotic Movement [TPSM]. The documentary
evidence indicated that Christians who attended illegal underground churches in
Fujian in small groups were not persecuted by the PSB.
[8]
The
RPD observed that there was one report of the detention of a staff member of a
Protestant church in Fujian province and the closure of three church sites.
However, this did not involve the detention or questioning of parishioners,
including those involved in evangelism. The reason for the arrest and closures
was not clear, nor was it known whether the detained individual was released
after questioning. The Board found there was insufficient evidence that other
churches or persons were persecuted in Fujian province.
[9]
The
Board also noted evidence that house churches have an unclear status, being
neither banned nor fully approved, and that “[a]s long as they avoid
neighbourly confrontation and keep their congregations below a certain size
(usually about 25) the Protestant ones are mostly tolerated”: Home Office UK
Border Agency, quoted in Reasons at para 28. Since the Applicant attended a
Protestant house church of 25 members in Fujian province, the Board found that,
on a balance of probabilities, its members would not be persecuted by
government authorities.
[10]
The
RPD considered a letter from the President of the China Aid Association
indicating that it was “naïve and incorrect to assume that house churches are
able to operate without any risk or problems in… Fujian Province,” and which noted
that there might be underreporting of incidents because of censorship. However,
the Board found that there was significant information regarding areas of China
much more remote than Fujian, and it was reasonable to expect that if groups
like the Applicant’s were being raided and individuals being jailed in that
province, there would be significant documentary evidence of this.
[11]
The
documentary evidence indicated that the treatment of underground church members
depends on local authorities, who have the legislative authority and resources
to implement a wide range of criminal and administrative sanctions against
underground Christians. There was little evidence that officials in Fujian were interested in persecuting underground Protestant Christians.
[12]
While
noting evidence that proselytizing in public is generally prohibited and the
government response to proselytizing varies from place to place, the Board
found that based on the evidence the Applicant would be able to spread the
Gospel to his friends and acquaintances in Fujian province without problems if
he so desired. It found the same with respect to the Applicant’s ability to
engage in social service work as part of a church group, citing evidence of the
increasingly open and public nature of the activities of such groups.
[13]
Based
on all of the evidence, the Board found that the Applicant’s underground church
was not raided as he alleged, that its members were not arrested, and that the
Applicant was not wanted by the PSB. It also found that, on a balance of
probabilities, “the claimant would be free to practice his religion in any
church if he were to return to his home in Fujian province in China and… there is not a serious possibility that he would be persecuted for doing so.” That
is, the Applicant “would be able to return to his home province to practice his
religion s he sees fit.”
[14]
As
such, the RPD found that the Applicant was not a Convention refugee or a person
in need of protection under sections 96 and 97 of the Act.
ISSUES
[15]
The
issue in this application is whether the Board’s Decision that the Applicant is
not a Convention refugee or a person in need of protection under sections 96
and 97 of the Act was unreasonable.
STANDARD OF
REVIEW
[16]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is settled in a satisfactory manner by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless, or where the relevant precedents appear to
be inconsistent with new developments in the common law principles of judicial
review, must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis: Agraira v Canada (Minister of Public
Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[17]
The
Respondent submits that this case relates to the interpretation and assessment
of evidence, which are within the Board’s expertise and attract a standard of
reasonableness: He v Canada (Minister of Citizenship and Immigration),
2010 FC 525 at paras 6-9; Lawal v Canada (Minister of Citizenship and
Immigration), 2010 FC 558 at para 11. I agree.
[18]
It
is well established that the standard of review applicable to the RPD’s risk and
credibility findings is reasonableness: see Qiu v Canada (Minister of
Citizenship and Immigration), 2009 FC 605 at para 17; Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 732 (FCA); Wu v
Canada (Minister of Citizenship and Immigration), 2009 FC 929 at para 17. Further,
the standard of review applicable to all of the RPD’s findings of fact is
reasonableness (Dunsmuir, above, at para 53).
[19]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
para 47, and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUTORY
PROVISIONS
[20]
The
following provisions of the Act are applicable in these proceedings:
Convention
refugee
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
Person
in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui
se trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire,
d’être soumise à la torture au sens de l’article premier de la Convention
contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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ARGUMENT
Applicant
[21]
The
Applicant argues that the Board made no findings about his credibility or the
truthfulness of his account that his underground church was raided and members
of the congregation were later arrested. Since the Board’s findings regarding
these facts were directly contrary to that account, the Applicant says the
Board was required to make an explicit finding on his credibility before
rejecting his claim. In support of this view, he cites Mei Hua Lin v Canada (Minister of Citizenship and Immigration), 2009 FC 254 [Lin], where the
Court stated as follows:
[15] For the Board to fairly rely upon general
evidence of a diminished risk of religious persecution in China it was critically important to make specific findings about the truthfulness of Ms.
Lin’s account of the police raid on her church. That is so because the
generalized risk facing Christians in China had to be assessed against her
particular profile including her past experiences with the authorities. It was
not enough for the Board to find that the instances of persecution of
individual Christian congregants are now fairly rare if the authorities in her
community were of a persecutory persuasion as evidenced by their earlier
behaviour directed at Ms. Lin and the others in her church. Her situation may
well have been one of increased risk thus taking her case outside of the
statistical norm in China, and it was an error for the Board not to have
conclusively resolved that point…
[22]
The
Applicant says that the documentary evidence before the Board can be reconciled
with his account of his circumstances in China, and that it was therefore an
error in logic for the Board to reject his account without making a finding
about its credibility or truthfulness. In Lin, the Court observed that
while the country condition evidence revealed an increasing level of tolerance
for the practice of Christianity in China, it also showed that the approach was
uneven and based on the attitudes of local authorities, with some Christians
throughout China receiving extremely harsh treatment. The Court found “[i]t was
thus an error for the Board to say that Ms. Lin’s account could not be
reconciled with the country condition evidence, because some of that evidence
was consistent with her risk narrative”: Lin, above, at para 14. The
Applicant argues that the same logic applies in the current case: the evidence
before the Board indicated that the treatment of unregistered Protestants
varied depending on their location and the tolerance of local authorities: see
U.S. Department of State, International Religious Freedom Report 2010: China
(Includes Tibet, Hong Kong, Macau), November 17, 2010 [Religious Freedom
Report 2010], Applicant’s Record at pp.142, 144-145.
[23]
The
Applicant also argues that the Board’s analysis was improperly focused at the provincial
level, whereas the evidence shows that it is local authorities and not
provincial authorities that have the greatest impact on the treatment of
unregistered church members in China. The Board acknowledged that the treatment
of unregistered Protestants may vary depending on their location, and that
local authorities have wide latitude. The authorities in the Applicant’s
location may have been of a particularly persecutory persuasion. It was thus
necessary for the Board to make specific findings about the truthfulness of his
account if it intended to rely on general evidence of a diminished risk of
religious persecution in China in rejecting his claim. Moreover, in light of
the evidence that extremely harsh treatment continues to be meted out to Christians
throughout China from time to time, the Board’s conclusion was unreasonable.
[24]
Furthermore,
there was evidence before the Board of the persecution of Christians in Fujian province – namely the arrest and detention of a staff member of the Fuzhou Lianjiang Church and the closure of three meeting sites – as acknowledged by the
Board in its reasons. The evidence stated that these sites were “sealed without
any legal basis or submitting any government paperwork”: ChinaAid Association, Abduction
and Building Closures in Fujian, October 19, 2010, Applicant’s Record at
137.
[25]
The
Board’s finding that unregistered churches must keep their membership below a
certain level is itself evidence of persecution. The Board found that house
churches have an unclear status, neither banned nor fully approved of, but are
mostly tolerated if they avoid neighbourly confrontation and keep their
congregations below about 25 people. However, the Court found in Fosu v Canada (Minister of Employment and Immigration), [1994] FCJ No 1813 at para 5, 90 FTR
182 (FCTD) that:
… 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 rites. 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. [footnote omitted]
[26]
The
evidence shows that it would be difficult for the Applicant to join a
congregation larger than 25 should he choose to do so, and this is an
interference with his right to worship in public or in private.
[27]
The
Applicant argues that the Board also misapprehended the evidence on a number of
specific points:
a.
The
Board found that the Applicant would be able to spread the Gospel to his
friends and acquaintances in Fujian province if he so desired (Reasons at
para 31), but the documentary evidence showed that “proselytizing in
public, unregistered places of worship, or by foreigners is not permitted” (Religious
Freedom Report 2010, Applicant’s Record at 139), and that proselytizing is
only permitted in state sanctioned religious venues (RIRs, CHN103255.E: China:
Whether proselytizing is legal in China, 27 October 2009, Applicant’s Record at
177);
b.
The
Board quoted evidence that unregistered groups are now operating openly (Reasons
at para 32), but the report cited (Religious Freedom Report 2010) does
not contain the quoted statement, and in fact that report is at odds with the Board’s
findings;
c.
The
Board stated that unregistered groups rent space for offices and carry out
social service work, whereas the evidence indicates that unregistered groups
are not permitted to openly raise funds, hire employees, open bank accounts or
own property, and religious groups not affiliated with an official patriotic
religious association have difficulty registering as non-governmental
organizations or performing social service work: Religious Freedom Report
2010, Applicant’s Record at 142-43.
[28]
The
fact that there were not more reports of persecution in Fujian does not necessarily
indicate that Christians in Fujian are free to practise. The Court found in Zhang
v Canada (Minister of Citizenship and Immigration), 2009 FC 1198 at para 19
that the Board’s focus on the number of arrests as an indicator of the
likelihood of persecution was misplaced and erroneous:
… The number of arrests of underground Christians in
China may speak to the ability of church members to stay underground and
conceal their activities from the authorities. But the extent to which
underground Christians are able to hide their activities and avoid detection is
irrelevant for the purpose of determining whether or not they are subject to
persecution for their religion, and unable to freely practice their religion
openly and in accordance with their fundamental belief system.
[29]
The
Applicant argues that the same reasoning can be applied in the present case.
Respondent
[30]
The
Respondent argues that the Applicant provided insufficient credible and
trustworthy evidence in support of his refugee claim, that his testimony was at
odds with the documentary evidence regarding persecution in his home province of Fujian, and that no error of analysis or principle has been demonstrated. As
such, the Decision was reasonable.
[31]
The
Board accepted that the Applicant is a Christian, but found that his house
church had not been raided. The Board preferred the documentary evidence on
this point over the Applicant’s testimony. It was entitled to do so, the
Respondent says, and was under no obligation to make an explicit credibility
finding: Yu v Canada (Minister of Citizenship and Immigration), 2010 FC
310 at para 33 [Yu]; Wei v Canada (Minister of Citizenship and
Immigration), 2012 FC 854 at para 52 [Wei]; He v Canada (Minister
of Citizenship and Immigration), 2012 FC 665 at paras 27-32. The Board explained
why it preferred the documentary evidence when it outlined the characteristics
of the Applicant’s group and noted that they described a profile – a small church
of 25 members in Fujian province – that the evidence showed was mostly
tolerated by authorities.
[32]
The
Applicant essentially disagrees with the weight given to the evidence and is
asking the Court to reweigh it. However, matters of weight are not a ground for
judicial review (He, above, at para 33; Brar v Canada (Minister of
Employment and Immigration), [1986] FCJ No 346 (FCA)), nor is the fact that
more than one reasonable conclusion might possibly be drawn from the evidence: Dunsmuir,
above, at para 47.
[33]
The
Board reasonably found that the PSB did not raid the Applicant’s gathering, the
Respondent says, essentially because his group did not fit the profile of
groups that are targeted. The Board noted reports of house church persecution
in China, but found that these occurred outside of the Applicant’s province of Fujian. There was only one report of a detention of a church staff member in
that province, and that case did not involve the arrest or even questioning of
parishioners. In other words, the Board considered the Applicant’s specific
circumstances and reasonably found that the authorities did not raid the group.
[34]
Moreover,
it was reasonable for the Board to prefer the “silence of the documentary
evidence” regarding the situation of Christians in Fujian province to the
testimony of the Applicant in finding that the Applicant would be able to practise
his faith in China. This Court has previously held that a claimant’s sworn
testimony may be rebutted where the documentary evidence fails to mention what
would normally be expected: Adu v Canada (Minister of Employment and
Immigration), 1995 CarswellNat 2559, 53 ACWS (3d) 158 (FCA); Yu,
above, at para 25. Here, the Board reasonably expected to see persuasive
evidence to support the allegation of Protestant house churches being raided
and parishioners being jailed in Fujian province, and no such evidence was
presented.
[35]
The
Board also reasonably concluded that the Applicant would be able to practise
his religion freely in Fujian, the Respondent says. The Board noted that
country conditions were mixed with respect to the ability to proselytize. It
also noted that the one reported arrest in Fujian province did not involve
parishioners, even those involved in proselytizing, and that there was evidence
of open-air evangelist campaigns that were sanctioned by the local government.
It was open to the Board to prefer the documentary evidence to the Applicant’s
testimony regarding his ability to practise his religion openly in Fujian: Dehghani-Ashkezari v Canada (Minister of Citizenship and Immigration), 2011
FC 809 at paras 22-23.
[36]
It
was the function of the Board to weigh the sometimes conflicting evidence and
determine whether there was more than a mere possibility that the Applicant
would be persecuted based on a Convention ground, or whether, on a balance of
probabilities, he qualified as a protected person under s. 97 of the Act: Wang
v Canada (Minister of Citizenship and Immigration), 2011 FC 636 at paras
23-25. This is exactly what the Board did, the Respondent says, and no error in
its reasoning has been shown.
Applicant’s
Reply
[37]
The
Applicant argues that Yu, above, and He, above, cited by the
Respondent for the proposition that the Board was entitled to prefer the
documentary evidence to the Applicant’s testimony without making an explicit credibility
finding, are distinguishable here. In those cases, the Board had cited evidence
that brought into question the evidence provided by the claimants. In the
present case, there was evidence on the record that was consistent with the
Applicant’s evidence on the repression and persecution of Christians. As in Lin,
above, it was an error in logic for the Board to make the findings it did when
the Applicant’s evidence could be reconciled with the documentary evidence.
[38]
Wei,
above, is also distinguishable, the Applicant argues, because in that case the Board
made very specific findings regarding the credibility of the claimant’s
evidence, which the Board in this case did not do.
[39]
The
Applicant also argues that he is not asking the Court to reweigh the evidence.
Rather, the Board made an error when it implicitly found that the Applicant’s
evidence concerning what transpired in China could not be reconciled with the
documentary evidence, when in fact the two were reconcilable.
[40]
The
Applicant argues that the Board’s finding that he could freely practise his
religion in Fujian, including proselytizing, is simply not consistent with the
evidence. He says it is questionable whether the Board reviewed the documentary
evidence, particularly in light of the erroneous quotation noted above. The
Applicant submits that the Board ignored, disregarded or misconstrued the
evidence on the issue of the free practice of the Christian faith in Fujian.
ANALYSIS
[41]
This
application raises issues that have come before the Court on numerous
occasions. The Applicant presented what has now become a generic narrative
regarding religious persecution in Fujian. The RPD rejected that narrative, as
it has done on many previous occasions, because the documentary evidence on
Fujian reported no material persecution of practising Christians who belong to
small house churches, such as the one described by the Applicant. After a
careful review of the available documentation on Fujian, the RPD found that
“the claimant’s underground church was not raided as he alleges and members
were not arrested and he is not wanted by the PSB.” The RPD repeats this
finding at paragraph 38 of the Decision where it says:
Taking into consideration all of the evidence and
counsel’s submissions, the panel finds that, on a balance of probabilities, the
claimant’s church was not raided, fellow members were not arrested and detained
and he is not being sought by the PSB for his religious activities. …
This aspect of the Decision is
consistent with Nen Mei Lin v Canada (Minister of Citizenship and
Immigration), (February 4, 2010), IMM-5425-08, and Jiang v Canada (Minister of Citizenship and Immigration), 2010 FC 222.
[42]
There
is no explicit credibility finding but, as the above words indicate, the RPD
clearly found that the Applicant’s allegations of past persecution could not be
believed. As in Yu, above, having found that the documentary evidence
was stronger and was to be preferred, the RPD did not need to make an explicit
credibility finding because it is obvious that such a finding was made
indirectly.
[43]
The
rationale for this kind of decision can be found in numerous cases and goes
somewhat as follow:
a. The
Applicant bears the burden of proving that he is subject to a risk of
persecution;
b. The
Applicant’s sworn evidence / testimony should be believed unless there are
reasons for doubting it: Dias Pinzon v Canada (Minister of Citizenship and
Immigration), 2010 FC 1138 at para 5; Konya v Canada (Citizenship and Immigration), 2013 FC 975;
c. Where
there is detailed and reliable country condition evidence that does not support
the Applicant’s account, this may provide a good reason for doubting the
veracity of that account;
d. The
consequence of this is that corroborating evidence is required to show that
events occurred as the Applicant alleges, despite the fact that his account is
out of character with the general pattern revealed by the country condition
evidence;
e. The
fact that the events described by the Applicant do not conform to a general
pattern for the area does not mean that they did not occur, or that the
Applicant is not at risk. Rather, it means that the RPD is entitled to expect
corroborating evidence before believing the Applicant’s account: Konya, above, at para 18;
f. Here,
the Applicant did not provide sufficient reliable corroborating evidence to
overcome the doubts raised by the country condition evidence. The Board found,
on a balance of probabilities, that events did not occur as he described them,
and this was a reasonable conclusion based on the evidence.
[44]
The
RPD’s finding on the Applicant’s failure to establish past persecution is
reasonable. The Federal Court of Appeal has said that a claimant’s sworn
testimony may be rebutted where the documentary evidence fails to mention what one
would normally expect it to mention: Adu, above, at para 1. In this case
the RPD went through the available evidence, acknowledged the problems
experienced by Christians in some areas, and pointed out how any mention of Fujian in that evidence can be distinguished from the Applicant’s case. The RPD found that
based on the information available about areas of China more remote than Fujian, if groups like the Applicant’s were being raided and individuals being jailed in Fujian, there would be significant documentary evidence of this. I cannot say these
findings were unreasonable in any way.
[45]
In
my view, it is only possible to take issue with the RPD’s forward looking
analysis and its conclusion at paragraph 38 of the Decision that “the panel
finds that the claimant would be able to return to his home province to
practice his religion as he sees fit.”
[46]
The
Applicant points to the RPD’s acknowledgement in paragraph 22 of the Decision
that there is evidence that “the treatment of unregistered Protestants within China may vary depending upon their location and on the tolerance of local authorities.
Officials have a wide latitude in interpreting what constitutes ‘normal
religious activities.’” In my view, however, this does not displace the RPD’s
general findings of a lack of evidence of persecution throughout the province of Fujian and the greater leniency that appears to prevail there.
[47]
The
Applicant asks “What if the applicant wanted to join a congregation that
already had 25 members?” There is no evidence that the Applicant wanted to join
a larger congregation or that the exercise of his religious rights would be
thwarted or curtailed if he continued his past religious church practices. The Applicant’s
question is hypothetical. The Applicant was not persecuted in the past because
he wanted to join a larger congregation, and there was no evidence that he
wanted to join a larger congregation if he returned to Fujian. The RPD
specifically found that the Applicant was a Christian and had attended a house
church. There was no convincing evidence to suggest that he could not go back
to Fujian and practise his religion as he had always done. He did not complain that
he had been prevented from proselytizing or doing social work. These matters
are raised now as a hypothetical attack upon the Decision but, as the RPD
points out, there just is not enough evidence to establish that the Applicant
could not go back to “his home province to practice his religion as he sees
fit.”
[48]
The
RPD deals with the freedom to proselytize in paragraph 31 of the Decision and
finds that “the claimant could spread the Gospel to his friends and acquaintances
in Fujian Province if he so desired.” This conclusion was based upon a review
of the evidence which seemed to suggest that the government response to public
proselytizing varied from one administrative unit to the next. However, the
evidence appears to be that, generally speaking, proselytizing is tolerated
provided it is not in the public domain and, in some places, even open-air
evangelism is allowed. The evidence provides a sufficient and intelligible
basis for the RPD’s conclusion.
[49]
As
regards participation in social work, the RPD concludes that “there is
insufficient reliable and trustworthy evidence before it to indicate that the
claimant would not be able to participate in social service activities.” Having
reviewed the evidence in question, I can see that it is possible to disagree
with this conclusion, but I cannot say it falls outside the range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[50]
All
in all, I cannot find a reviewable error with this Decision. In the end, the
RPD went through a weighing exercise of the available evidence. It is possible
to disagree with its conclusions but I do not think it is possible to say that
the Decision was unreasonable.
[51]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is dismissed.
2.
There
is no question for certification.
"James
Russell"