Date:
20140226
Docket:
IMM-11931-12
Citation:
2014 FC 180
Ottawa, Ontario,
February 26, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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JING SHOU JIANG
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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 decision of Stephen E. Rudin, a member of the
Refugee Protection Division of the Immigration and Refugee Protection Board
[the Board], pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The Board dismissed the
Applicant’s claim for refugee protection, concluding that he was not a
convention refugee or person in need of protection under sections 96 and 97 of
the Act.
I. Issue
[2]
The
issue raised in the present application is as follows:
A. Was
the Board’s decision unreasonable in its assessment of the risk faced by the
Applicant for practising Christianity in Fujian Province?
II. Background
[3]
The
Applicant is a citizen of the People’s Republic of China. He lived in the Fujian Province. He alleges that in May, 2009, he was introduced to Christianity. In June,
2009, he started attending an illegal house church and started spreading the
gospel in China to close friends and relatives. Despite security measures, the
church was discovered by China’s Public Security Bureau [PSB] on April 4, 2010.
[4]
The
Applicant alleges that after his church was discovered, he went into hiding at
the home of his aunt. According to the Applicant’s wife, the PSB searched his
home, confiscated his resident identity card, and left a summons. In addition,
the Applicant alleges that his wife told him that three members of his church
had been arrested, and that the PSB had returned to his home, hoping to arrest
the Applicant.
[5]
The
Applicant left China with the assistance of a smuggler and applied for refugee
protection in Canada on May 26, 2010.
[6]
The
Board found that the Applicant did not have a well-founded fear of persecution
or harm should he be returned to Fujian in the People’s Republic of China.
[7]
While
accepting the Applicant’s identity and the fact that he is a Christian, the
Board found that the Applicant’s allegations were not credible.
[8]
The
Board cites documentary evidence from the years 2005-2010 to conclude that
there are no recent reports of arrests of Christians in Fujian for Christian
activities. The only report of government interference with Christian religious
activity in Fujian is from the China Aid Association’s 2010 Annual Report,
which states that ten people were persecuted. This report does not detail the
extent of their persecution. The Board asserts that if, as the Applicant
alleges, three members were arrested and sentenced, international observers,
such as the China Aid Association, would likely report them, as areas far more
remote than Fujian have been the subject of such reports. As a result, the
Board found that the Applicant would be able to practice his religion in any
church in Fujian if he was to return.
[9]
The
Board also found that the Applicant would be able to proselytize in the manner
that he desires. Citing the Executive Secretary of the Hong Kong Christian
Council, the Board concludes that as long as proselytizing does not occur in a
public place, it is tolerated. In addition, given that the Applicant’s activity
occurs in Fujian, the Board found that he would be able to proselytize without
persecution.
[10]
Finally,
the Board gave the summons and jail visiting card produced by the Applicant to
support his arrest little weight, as fraudulent documents are easily available
in China and the Applicant would be aware of the availability of such
documents, as he testified that he travelled to Canada on a fraudulent
Singaporean passport.
[11]
Owing
to these reasons, the Board held that the Applicant had not satisfied his
burden of establishing that there was a serious possibility that he would be
persecuted or personally subjected to a risk to his life or a risk of cruel and
unusual treatment or a danger of torture upon his return to China.
III. Standard of Review
[12]
The
applicable standard of review is the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 47; Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12).
IV. Analysis
[13]
The
Respondent argues that it was open for the Board to ascribe low weight to the
summons and jail visiting card based on the availability of fraudulent
documents in China (Aleshkina v Canada (Minister of Citizenship and
Immigration), 2002 FCT 589, at paras 13-14; Jing v Canada (Minister of
Citizenship and Immigration), 2012 FC 609, at para 17).
[14]
The
Respondent also argues that it was reasonable to conclude that if such
persecution had occurred in China, it would have been documented (Nen Mei
Lin v Canada (Minister of Citizenship and Immigration (4 February 2010), Toronto, IMM-5425-12 (FCTD)).
[15]
I
find the Board’s decision was unreasonable.
[16]
The
Board assigned low weight to the Applicant’s jail visiting card and summons
solely because of the easy availability of fraudulent documents in China and
the presumption that the Applicant was aware of this. This faulty reasoning
suggests absurd results: that a document produced by the Applicant, even if
valid, should be rejected as inauthentic; alternately, this reasoning suggests
that the Board is free to arbitrarily choose which evidence to accept and which
to reject.
[17]
Here
the Board accepted the Applicant’s identity documents but rejected the summons
and jail visiting card. This arbitrary and inconsistent reasoning is not justifiable
on the Dunsmuir standard of reasonableness.
[18]
The
Applicant’s citation of Lin v Canada, (Minister of Citizenship and
Immigration), 2012 FC 157, at para 55, which also involved a case of
religious persecution in the Fujian Province. In Lin, Justice James
Russell concluded:
I am concerned that the RPD does not seem to have
looked at the documents the Applicant submitted at all. The RPD must analyze
all of the evidence before and weigh the positive against the negative…It may
be that fraudulent documents are widely available in the PRC. However, this
does not mean that every document that comes out of the PRC is necessarily
fraudulent. The RPD was obliged to examine and weigh the actual documents in
front of it, rather than simply rejecting them out of hand.
[19]
In
contrast, the cases cited by the Respondent are distinguishable or
inapplicable.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application is allowed and the matter is referred back to a differently
constituted Board for reconsideration;
2.
No
question for certification.
"Michael D.
Manson"
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