Docket: IMM-8099-14
Citation:
2015 FC 1031
Ottawa, Ontario, August 31, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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SHUYUAN ZHANG
AND
ZHISHAN ZHU
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act], of a decision of the Refugee Appeal Division of the
Immigration and Refugee Board [RAD], made on November 20, 2014, which confirmed
the decision of the Refugee Protection Division [RPD] that the applicants were
not Convention refugees or a persons in need of protection pursuant to sections
96 and 97 of the Act.
[2]
The application for judicial review is allowed
for two reasons: the RAD’s determination that the RPD did not breach procedural
fairness by identifying the issues, yet basing its decision on an issue not
identified, is not reasonable; and, the RAD breached its duty of procedural
fairness by relying on more recent evidence of country conditions included in
the National Documentation Package [NDP] which was not available at the time
the applicants perfected their appeal to the RAD and which included additional
information, which the applicants should have had an opportunity to address. As
a result, the RAD must reconsider the appeal.
Background
[3]
The applicants, a husband and wife from Guangxi
province in China, claimed that they would be persecuted in China due to their
Christianity, that the one-child policy had violated the female applicant’s
right to reproduce and that the male applicant, a former police officer, feared
retaliation from corrupt police and criminals he had apprehended.
The RPD Decision
[4]
The RPD found that the applicants had
established their practice of Christianity in Canada, but did not find their
other claims to be credible, noting their other travel, failure to seek
protection in other countries and re-availment to China.
[5]
The RPD accepted that the applicants are
Christians and considered the possibility that the applicants would be
persecuted if they returned to China and practiced Christianity in an
unregistered church. The RPD referred to the country condition documentary
evidence, particularly with respect to Guangxi province, noting that the
applicants last resided there.
[6]
The RPD reviewed the documentary evidence and
concluded that the applicants would not incur punishment for participating in
religious activities and attending a house church in Guangxi province if they
chose to do so.
[7]
The applicants appealed to the RAD and argued
that: the RPD breached procedural fairness because it did not identify the
issue of whether the applicants face risk in Guangxi as an issue to be addressed
and, therefore, the applicants did not adduce evidence of the risk they would
face; that new evidence about the risk to the applicants in Guangxi should be
accepted pursuant to paragraph110(4)(c) of the Act because they could not
reasonably have been expected to provide this evidence to the RPD; and, on the basis
of the new evidence, the RAD should find an objective basis for their
subjective fear of persecution based on religion.
The RAD Decision Under Review
[8]
The RAD first reviewed the jurisprudence
regarding the standard of review and indicated it would apply Huruglica v
Canada (Minister of Citizenship and Immigration), 2014 FC 799, [2014] 4 FCR
811, review all aspects of the RPD’s decision and come to an independent
assessment of the applicants’ refugee claims, but would defer to the RPD where
the RPD enjoyed a particular advantage in reaching a conclusion.
[9]
The RAD found that there was no breach of
procedural fairness by the RPD in assessing the applicants’ risk of persecution
in Guangxi where they had previously resided. The RAD explained that it is fair
to presume that, should the claim fail, the applicants would return to the
place from which they departed and that the RPD had analyzed the possible risk
of the applicants’ return in accordance with section 97 of the Act.
[10]
The RAD also rejected the applicants’ argument
that that RPD breached procedural fairness by assessing the risk to the
applicants upon their return because the RPD did not identify objective risk as
an issue to be determined. The RAD noted that the applicants had ample
opportunity to object to this line of questioning and could have requested to
make written post-hearing submissions or asked for an adjournment to prepare to
address the issue.
[11]
Regardless, the RAD reiterated that the RPD
simply assessed the safety of the applicants last known residence in China,
looking forward, as it was a reasonable assumption that this is where they
would return.
[12]
The RAD then assessed the admissibility of new
evidence submitted on appeal noting the requirements of subsection 110(4) of
the Act and the factors identified in Raza Syed Masood v Canada (Minister of
Citizenship and Immigration), 2007 FCA 385 at paras 13-14, 289 DLR (4th)
675 which are credibility, relevance, newness and materiality. The RAD found
that none of the new documents met the test under subsection 110(4), because
the majority were readily and easily available prior to the hearing, two had
been provided to the RAD and one had no verifiable source.
[13]
The RAD then assessed the applicants’ claim of
persecution in China as practicing Christians on the basis of the testimony and
documentary evidence from the RPD.
[14]
The RAD reviewed the applicants’ evidence and
testimony regarding their Christianity. The Board noted that there are between
40 and 90 million practicing Christians in China, between 20 and 40 million
practice at state-sanctioned churches, and the remainder practice in sanctioned
or house churches. The Board acknowledged that some leaders of house churches
face persecution and possible imprisonment and that members of house churches
may be harassed by the Public Security Bureau [PSB]. The Board noted that the
applicants were not interested in attending a house church.
[15]
The RAD acknowledged that the RPD had found that
the applicants were practicing Christians in Canada. The RAD noted that the evidence
from the NDP indicates that simple worshipers at house churches in China do not
generally face persecution. The RAD noted that there is variation in the
treatment of unregistered religious groups by the authorities; unregistered
church groups face sporadic police harassment, which usually does not extend
beyond fines, brief detentions or orders to disband, but there are local
variations in implementing regulations. The RAD also noted that several factors
affect the treatment of house churches and their members. The RAD concluded
that there was insufficient evidence to show that the applicants would face
persecution in China as Christians.
The Issues
[16]
On judicial review the applicants argue: the RAD
erred in determining that the RPD did not breach procedural fairness by
considering the risk upon return to Guangxi and the country condition
documents; the RAD erred in not admitting new evidence given that the evidence
addressed the country conditions in Guangxi and the applicants had no previous
indication this would be an issue and had, therefore, not provided this
evidence to the RAD; the RAD breached procedural fairness by relying on the
most recent NDP, which was not available at the time the applicants perfected
their appeal to the RAD and which the RAD did not bring to their attention to
permit submissions to be made; and, the RAD erred in its assessment of the
persecution of Christians in China.
Did the RAD err in finding that the RPD did not breach
procedural fairness?
The Applicants’ Submissions
[17]
The applicants submit that the RAD misunderstood
their submissions. The RPD had not, at any point in the hearing, indicated that
the treatment of Christians in China and Guangxi province was an issue to be
addressed. The RPD stated that the issues were credibility, identity, religious
identity and subjective fear.
[18]
The applicants note that they identified these
issues as the relevant issues in their post-hearing submissions to the RPD. In
addition, in their submissions to the RAD they stated that the RPD had identified
these particular issues.
[19]
The applicants point out that there was no
opportunity for them to address the issue of objective risk and the country
condition evidence regarding Guangxi province, contrary to the RAD’s
suggestion, because the RPD did not pose any questions to the applicants on
this issue. Nor did the RPD indicate that other issues would be considered upon
receipt of the applicants post-hearing submissions. The applicants submit that
they did not know the issue was “on the table”.
[20]
The applicants note that, customarily, the RPD
will identify the relevant issues to be addressed to permit the submissions to
be focussed. Alternatively, as the hearing progresses, the RPD will indicate
that certain issues no longer need to be addressed. Neither occurred in the
present case.
[21]
The applicants note that, although the
definition of refugee protection must be met and there are fundamental issues
to be addressed in most refugee claims, not every issue needs to be addressed
in every claim. For example, credibility is not an issue in every refugee
claim. The applicants submit that in Velauthar v Canada (Minister of
Employment and Immigration) (1992), 141 NR 239, 141 NR 239 (FCA) [Velauthar],
the Court of Appeal found that it was a breach of natural justice to decide the
case on the basis of credibility where the RPD had not indicated credibility
was an issue. In other cases, an applicant need only establish that they meet a
particular profile and need not establish with objective evidence that they
will be persecuted. For example, where the persecution of a particular social
group in a country is widely documented and acknowledged, a refugee claimant
need only establish that they are a member of the persecuted group.
[22]
In the present case, the applicants focused on
the issues identified by the RPD, including their personal religious identity
and presumed that because the Board did not identify the risk to Christians in
Guangxi, this did not need to be addressed – in other words, it was presumed
that if the applicants established they were Christians, their risk would be
accepted.
The Respondent’s Submissions
[23]
The respondent submits that the objective risk
faced by refugee claimants is always an issue and the country conditions are
the context to determine the risk. The NDP is always disclosed prior to a
refugee hearing and this puts the issue of objective country conditions “on the
table”.
[24]
The applicants received the NDP and were
represented by counsel, who was aware of the relevance of country conditions to
the determination of their claims. The NDP reveals that the treatment of Christians
in China varies by region.
[25]
The respondent argues that unless an issue is
“taken off the table” it cannot be assumed that the issue will not be
considered. In the present case, the applicants alleged that they were
Christians and they would be persecuted as a result of practicing their
religion. This requires the RPD to first determine if they are Christians and
then to determine whether this will put them at risk. In other words, the
country conditions are “part and parcel” of the assessment of their risk.
[26]
The onus is on the applicants to prove that they
are at risk in China because of their identity as Christians – the onus is not
on the RAD or the RPD to prove that the applicants are not refugees. The
applicants did not provide any objective evidence to establish that they would
be at risk upon return to Guangxi.
The RAD’s finding that the RPD did not breach procedural
fairness is not reasonable
[27]
The recording of the RPD hearing reveals that at
the outset of the hearing, the member explained that she would address: the
applicants’ personal and religious identities; the applicants’ credibility;
and, the applicants’ subjective fear, including their delay in leaving, re-availment
and delay in making their claims for refugee protection. The RPD did not
indicate that it would also address the objective evidence regarding
persecution of Christians in China, more particularly Guangxi.
[28]
The RAD found that the issue of objective risk
was a given in any claim of persecution and that the RPD was not required to
identify the issue.
[29]
I agree that in some circumstances the RPD would
not need to state an issue that would be otherwise obvious due to the nature of
the claim. However, the question is whether it was obvious that the objective
risk to Christians in China, particularly Guangxi, would be an issue in this
case, where several specific issues were identified, but objective risk was
not.
[30]
In this case, the RAD erred in not considering
whether the RPD’s identification of specific issues and silence on the issue of
objective risk led the applicants to reasonably presume or expect that
objective risk would not be addressed. The RAD’s conclusion that the applicants
could have objected to questions, asked for an adjournment to prepare to make
submissions or address the issue in post hearing submissions is based on a
misapprehension of the applicants’ submissions to the RAD. As the applicants
point out, the RPD identified particular issues and there was no line of
questioning to alert them to the issue of objective risk. The applicants
reiterated the issues that the RPD had identified in their post-hearing
submissions and focussed only on those specific issues. Again, the RPD did not
let the applicants know that objective risk was also an issue.
[31]
In Velauthar, the RPD had indicated that
the only issue was whether the claimants were persecuted on a Convention
ground, invited submissions on that issue, and then decided the claim on the
basis of credibility. The Court of Appeal found “a gross denial of natural
justice “and noted that “the Appellants were denied the
opportunity to know and answer the case against them by a deliberate decision
of the presiding member in which his colleague acquiesced.”
[32]
In other cases cited by the applicants, the
Board had not indicated that credibility was an issue and this denied the
claimant the opportunity to make submissions (for example, Butt v Canada
(Minister of Citizenship and Immigration), 145 FTR 122, [1998] FCJ No 325 (QL),
(FCTD); Rodriguez v Canada (Minister of Citizenship and Immigration),
[1995] FCJ No 77 (QL), 52 ACWS (3d) 1307 (FCTD); Chitravelu v Canada
(Minister of Citizenship and Immigration), 2005 FC 331, 137 ACWS (3d)
1202).
[33]
In Kaldeen v Canada (Minister of Citizenship
and Immigration), [1996] FCJ No 1033 (QL), 64 ACWS (3d) 1190 (FCTD) [Kaldeen],
a claimant was advised at the outset of the hearing that the only issue was the
existence of an internal flight alternative, but the Board decided on the basis
of state protection. The Court found a breach of procedural fairness noting:
[7] The Federal Court of Appeal has stated
that when a tribunal makes an undertaking or gives instructions to an applicant
with respect to the issues before it, it is bound by those undertakings [Velauthar
v. M.E.I. (1992), 141 N.R. 239 (F.C.A.)]. Further, in Diljeet Kaur v.
Canada (M.E.I.)., Noël J. determined that once the tribunal indicated to
the applicant that certain evidence was not necessary, "it was no longer
open to the Board to rule against the Applicant on the basis that her evidence
was not supported by corroborative testimony". Two other Federal Court
Trial decisions followed Velauthar [Rodriguez v. Canada (Minister of
Citizenship and Immigration) (January 19, 1995) Action No. IMM-2770-94
(F.C.T.D.), [1995] F.C.J. No. 77, and Perera v. Canada (Minister of
Employment and Immigration) (1994), 82 F.T.R. 318 (F.C.T.D.)]. In both of
those cases, it was found that it was not open to the Board to give an
Applicant the impression that only certain issues would be dealt with and then
make a ruling on a different issue.
[34]
In Okwagbe v Canada (Minister of Citizenship
and Immigration), 2012 FC 792, [2012] FCJ No 816 (QL) [Okwagbe], the
RPD indicated that internal flight alternative was an issue at the hearing, but
later indicated, in response to a question from the claimant’s counsel, that
delay in claiming protection was the “only thing [the
claimant] had to get past”:
[7] When the applicant has not made
submissions on an issue because the tribunal directly indicates that no such
submissions are required, or where the tribunal indirectly indicates that no
such submissions are required, then the applicant is denied natural justice if
the tribunal makes its ruling based on that issue: Velauthar v Canada
(Minister of Employment and Immigration), [1992] FCJ No 425; Rodriguez v
Canada (Minister of Citizenship and Immigration), [1995] FCJ No 77; Butt
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 325.
[35]
The jurisprudence establishes that where the RPD
indicates that an issue does not need to be addressed, it is a breach of
procedural fairness for the RPD to rely on that issue as a basis for its
decision. This would extend to where the RPD directly or indirectly provides
such an indication (Okwagbe) and where the RPD gives the impression that
only particular issues will be dealt with (Kaldeen).
[36]
In the present case, the RPD specifically or
directly identified several issues and did not directly indicate that objective
evidence of risk was not an issue. As noted above, the RPD identified the
applicants’ personal and religious identities, credibility and subjective fear,
including their delay in leaving, re-availment and delay in making their claims
for refugee protection as the issues to be addressed.
[37]
Although the NDP was disclosed to the
applicants, which could be argued to have put the country conditions “on the
table,” the NDP may be relied on for other purposes beyond assessing objective
risk.
[38]
The RAD did not consider the jurisprudence and
did not consider, in the circumstances of this case, whether the RPD gave the
impression that only particular issues would need to be addressed and, by
implication, that other issues would not need to be addressed.
Did the RAD err in not admitting new evidence?
[39]
The applicants argue that the RAD erred in
rejecting their new evidence on the basis that it could have been provided to
the RPD. They argue that they could not reasonably have been expected to
provide evidence of the risk they would face upon return as Christians to
Guangxi because this issue was not identified by the RPD. The applicants note
that the RAD’s failure to recognize the breach of procedural fairness by the
RPD is linked to its rejection of the new evidence.
[40]
The applicants describe the new evidence as
including reports of the detention of Christian kindergarten teachers,
expulsion of pastors, ransacking of homes looking for Bibles, and the arrest
and detention of three house church members. The applicants submit that their
testimony before the RPD indicated that they wanted to practice their religion
free of state control and this new evidence established a basis for their fear.
[41]
The admission of the new evidence is linked to
the RAD’s finding that the RPD did not breach procedural fairness. Due to the
finding that the RAD erred in its consideration of whether the RPD breached
procedural fairness, the admission of new evidence will also need to be
reconsidered.
Did the RAD breach procedural fairness by considering
evidence in the October 2014 NDP that was not available at the time the
applicants perfected their appeal and which was not brought to the attention of
the applicants?
The Applicants’ Submissions
[42]
The applicants submit that the RAD made findings
based on the NDP on China dated October 2014 and which was not available at the
time the applicants perfected their appeal. In particular, the RAD relied on
document 12.6 of the NDP on China. As a result, the applicants were prevented
from making submissions on this information.
[43]
The applicants acknowledge that they did not
have an opportunity to compare the previously available document. Although the
previous document, dated June 2007, is listed in the previous NDP, it was not
included in that package. The applicants submit that because the recent version
provides adverse information relating to their claim of risk of persecution,
there was a duty on the RAD to give notice that it would consider the more
recent version. The updated information was relied on by the Board in its
decision to dismiss the appeal and, as a result, the applicants were
prejudiced.
[44]
The applicants point to the jurisprudence which
has found that it is a breach of procedural fairness for the RPD to rely on
earlier or later versions of a NDP. In Roy v Canada (Minister of Citizenship
and Immigration), 2013 FC 768, [2013] FCJ No 815 (QL) [Roy] and Zheng
v Canada (Minister of Citizenship and Immigration), 2011 FC 1359, [2011]
FCJ No 1659 (QL) [Zheng], the RPD relied on an older NDP. In Buri v
Canada (Minister of Citizenship and Immigration), 2014 FC 45, [2014] FCJ No
47 (QL), the RPD relied on the 2011 version rather than the 2010 version of the
NDP regarding country conditions for Roma in Hungary. The Court noted that
while not significantly different, the more recent version included initiatives
not previously mentioned.
The Respondent’s Submissions
[45]
The respondent submits that the applicants have
not identified how the information in the updated NDP varies from that
available in the NDP at the time they filed the appeal or how they have been
prejudiced.
[46]
The respondent also submits that because the RAD
provides a written appeal in most cases, not a rehearing, publicly available
information on country conditions that post-dated the filing of the appeal does
not need to be disclosed to an appellant unless it is novel, significant or
discloses a change in general country conditions that may affect the decision (Mancia
v Canada (Minister of Citizenship and Immigration), [1998] 3 FC 461 (FCA) [Mancia]).
[47]
The respondent adds that although the RAD
considered the updated NDP, this package includes documents that were
previously available. However, the respondent agrees that the predecessor of
document 12.6 regarding, “Treatment of “ordinary” Christian house church members
by the Public Safety Bureau (PSB) (2005-2007)” was not on the record for
comparison purposes.
The RAD breached its duty of procedural fairness
[48]
Document 12.6 of the NDP on China was updated
extensively between the March 14, 2014 version, available when the appeal was
perfected, and the October 31, 2014 version, relied on by the RAD. Although the
October 31, 2014 version refers to reports published between 2010 and 2013, it
also refers to reports published after July 2014, the date at which the applicants
perfected their appeal.
[49]
In Zheng, the RPD relied on an older
version of the NDP, when an updated version, less favourable to the Board’s
position, existed, but was not disclosed to the applicant. Justice Mosley found
that document disclosure is important for procedural fairness as it gives the
applicant an opportunity to properly respond to the Board’s concerns (at para
10) and concluded:
[13] In the circumstances, I find that the
Board’s reliance on the earlier document constituted a breach of procedural
fairness. I am unable to agree with the respondent that the 2010 changes to the
document are so trivial that I should find that the decision maker would have
reached the same conclusion notwithstanding the breach.
[50]
In Mancia, the Court of Appeal considered
whether a post-claims determination officer was required to disclose the
documents that he relied on that were published after the appellant had filed
his written submissions, all of which were in the public domain. The Court of
Appeal noted that the considerations in determining whether documentary
evidence available in the public domain must be disclosed to a claimant
include: the nature of the proceeding and the rules under which the
decision-maker is acting, the context of the proceeding, and the nature of the
documents at issue in such proceedings.
[51]
The Court of Appeal answered the certified
question noting that each case should be decided according to its own
circumstances and:
(a) with respect to documents relied upon
from public sources in relation to general country conditions which were
available and accessible when the applicant made his submissions, fairness does
not require disclosure in advance of a determination;
(b) where the documents became available and
accessible after the applicant filed his submissions, fairness requires
disclosure where they are novel, significant and evidence changes in the
general country conditions that may affect the decision.
[52]
In Roy, Justice Scott referred to Mancia
and Zheng and found that the RPD’s reliance on a document that was not
disclosed to the applicant and not included in the most recent version of the
NDP constituted a breach of procedural fairness:
[43] Applying the principles outlined above,
the Court finds that that Board’s reliance on the non-disclosed 2009 UK
Operational Guidance Note constituted a breach of procedural fairness.
Furthermore, the Applicant had a right to expect the Board to limit its
analysis to the more recent UK Operational Guidance Note. The Applicant should
not have expected the Board to reference an older, outdated version of the
Note.
[53]
The NDP relied on by the RAD was not publicly
available and accessible when the applicants made their submissions.
[54]
The RAD should consider the most recent
information, given that it is assessing risk on a forward looking basis.
However, where that recent information arises after an applicant has perfected
their appeal and made their submissions and that information is different and
shows a change in the general country conditions, the RAD has a duty to advise
the applicant that it is relying on that information. The issue in the present
case is whether the RAD should have disclosed the October 2014 NDP to the
applicants.
[55]
The RAD relied on and quoted document 12.6 of
the October 31, 2014 NDP to reach its conclusion. In particular, it noted that
members of house churches (as opposed to leaders) do not generally face
persecution, that the majority of unregistered churches are tolerated by the
government and that there is variation in the treatment of unregistered
churches. It noted the factors that influence the treatment of house churches
and their members, which include the province or locality of the church, the
size of the congregation, its activism, and attitudes and preferences of local
officials or the relationship with local officials.
[56]
The comparable section in the earlier March 14,
2014 NDP, document 12.6, is dated June 13, 2007 and titled “Treatment of
“ordinary” Christian house church members by the Public Security Bureau (PSB)
(2005-2007)”. As noted above, it was not included as part of the record of the
applicants or respondent, nor was it physically reproduced as part of the
Certified Tribunal Record, although it is referred to in the list of documents
of the NDP dated March 2014.
[57]
Document 12.6 dated June 2007 is one and a half
pages in length compared to the document 12.6 dated October 2014 with a similar
title (“Treatment of “ordinary” Christian house church members by the Public
Security Bureau (PSB), including treatment of children of house church members
(2009-2014)”), which is more comprehensive at six pages in length.
[58]
The June 2007 document 12.6 indicates that there
were reports of both church leaders and members facing imprisonment, torture,
humiliating treatment, fines withholding of medical treatment and confiscation
of religious materials. In addition, during house church raids both church
leaders and members have been detained. It notes that leaders may be detained
for extended periods while members are released shortly after interrogation. It
also indicates that “[o]rdinary underground church
members can also easily become targets of official crackdowns.” Once a
person has been rounded up in a raid, that person will be known to local
officials and will be considered a recidivist in future raids. It notes that
arrests of house church members were reported in 17 provinces, with the
greatest number in Henan province, Zhejiang province and Xinjiang Autonomous
Region.
[59]
The March 2014 NDP included several Response to
Information Requests and other reports that were accessible to the applicants
and were similar in their overall conclusion to the October 2014 document 12.6,
including that members of house churches are not exposed to the same treatment
as their leaders and that the situation varies by region. However, the October
2014 document 12.6, which is specifically quoted by the RAD, is more detailed –
in particular, in setting out the factors that will influence the treatment of
house church members.
[60]
Whether the more recent information is
sufficiently different, novel and significant is a question of degree. As noted
in Mancia, this requires a case by case assessment. In the present case,
the recent information does show some change in the country condition documents
which appears to minimize the risk the applicants would face, depending on the
application of the factors.
[61]
In the present case, the applicants should have
been provided with an opportunity to make submissions in response to the
information in the October 2014 document 12.6, for example, about how the various
factors influencing the treatment of house church members related to their own
circumstances upon return to Guangxi.
[62]
The RAD’s failure to do so amounted to a breach
of procedural fairness. As a result, the appeal must be remitted to the RAD for
redetermination.
[63]
There is no need to consider the issue of
whether the RAD erred in its assessment of the persecution of Christians in
Guangxi as this will require reconsideration based on the reception of the
submissions in response to the recent country condition documents.
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