Docket: IMM-4507-15
Citation:
2016 FC 702
Ottawa, Ontario, June 23, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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ZHAOHUI 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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JUDGMENT AND REASONS
[1]
This is an application by the Applicant, Zhaohui
Chen, for judicial review of a decision dated August 20, 2015 [the Decision] of
a Senior Immigration Officer of the Pre-Removal Risk Assessment Unit of
Citizenship and Immigration Canada [the Officer], rejecting the Applicant’s
Pre-Removal Risk Assessment [PRRA] application.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant is a citizen of China who entered
Canada on November 19, 2007, having been sponsored as a permanent resident by
his step-mother. On January 10, 2012, he was convicted of manslaughter and
sentenced to five years imprisonment. He was therefore found to be inadmissible
to Canada under section 36(1)(a) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA] on November 13, 2012, and a deportation order was
issued against him.
[4]
The Applicant initiated a PRRA application on
January 27, 2014, claiming he would be persecuted in China for being a Baptist
Christian. He also claimed that he would face retribution from the family of
the manslaughter victim who reside in China. He further argued that he would be
at risk of double jeopardy because China allows for the re-prosecution of
crimes committed outside of China by Chinese nationals, even if the person has
already been convicted, sentenced and released.
[5]
A negative PRRA decision was rendered on June
12, 2014. The Applicant sought judicial review of this decision, which was
allowed in Chen v Canada (Minister of Citizenship and Immigration), 2015
FC 771. Justice Zinn found that there was a breach of procedural fairness
because the officer had independently accessed and relied on information
relating to the risk of double jeopardy in China, without giving the Applicant
an opportunity to address it. As a result, the decision was referred back for
determination by another officer, which is the decision currently under review.
II.
Impugned Decision
[6]
In the Decision, the Officer observed that the
Applicant is inadmissible under section 36(1)(a) of IRPA and, as a result,
would conduct an assessment only on the grounds prescribed by section 97 of
IRPA, not on section 96 grounds related to Convention refugee status.
[7]
The Officer accepted that the Applicant is a
Baptist Christian and noted that the assessment of personalized risk under
section 97 grounds includes any risks arising out of his profile as a Baptist
Christian. The Officer then reviewed the evidence relating to freedom of
religion in China and found that the Applicant would not face a section 97 risk
if he is returned to China.
[8]
The Officer noted that the United States
Department of State reports that freedom of religion exists in China, but is
severely restricted by the Chinese government, and cited a report of the
Australian Refugee Review Tribunal [RRT], which explained that the Baptist
denomination was abolished in China in the 1950s. The RRT reported that some of
the abolished denominations remain visible, but, in general, the old
denominations have disappeared. The RRT noted that although unregistered
churches are formally illegal in China, they can be distinguished from other
religious and spiritual groups that are banned as “evil
cults”. The Officer identified that the Baptist faith is not on the list
of banned religions.
[9]
The Officer observed that both the RRT and the
Immigration and Refugee Board report the Chinese government’s treatment of
unregistered church members to vary between regions and that, according to the
RRT, the Applicant’s region in China, Fujian, is a centre of Christian activity
where, despite occasional crackdowns, the local authorities are generally
tolerant towards unregistered Christian groups. However, the Officer found that
the documentary evidence provided by the Applicant also demonstrated that there
are some restrictions on religious freedom in Fujian, referring to evidence
that house churches in Fujian face the constant and fearful risk of being
closed down and having their members punished.
[10]
Based on the evidence, the Officer accepted that
religious freedom is severely restricted in China but found that enforcement of
laws against unregistered churches varies from region to region. While there
are restrictions, occasional crackdowns and harassment in Fujian, it is one of
the most tolerant regions. The Officer also accepted that negative consequences
include harassment, intimidation, property destruction and arrest but found
that house church leaders are targeted for the most severe punishment. While
ordinary underground church members can easily become targets of official
crackdowns, the Officer concluded that most cases of serious harm involved
church leaders and that religious leaders, activists and members of groups that
are identified as cults by the Chinese government are at higher risk of
detention and harassment than ordinary members. As a result, the Officer found
that the Applicant would not be at a personalized risk of torture, risk to
life, or risk of cruel and unusual treatment or punishment because of his
profile as a Christian if he is returned to China.
[11]
The Officer also addressed whether the Applicant
would be at risk of re-prosecution for his crimes or at risk at the hands of
the family of the manslaughter victim who reside in China and rejected these
grounds. However, nothing more need be said about these grounds, as they are
not the basis for the arguments raised by the Applicant in this judicial
review.
III.
Issue and Standard of Review
[12]
The Applicant raises one issue, whether the
Officer erred by limiting his analysis under section 97 to physical harm and
failing to consider whether the suppression of one’s religious identity
constitutes “cruel and unusual treatment”.
[13]
The Applicant suggests that this issue could be
characterized as an error of law, reviewable on a standard of correctness, but
acknowledges that Dunsmuir v New Brunswick, 2008 SCC 9 may require that
a standard of reasonableness be applied. I conclude that the standard of review
typically applicable to PRRA decisions is reasonableness (Thamotharampillai
v Canada (Minister of Citizenship and Immigration), 2016 FC 352 at para 18;
Belaroui v Canada (Minister of Citizenship and Immigration), 2015 FC 863
at paras 9-10; Wang v Canada (Minister of Citizenship and Immigration),
2010 FC 799 at para 11) and that the issue raised by the Applicant does not warrant
departure from that standard.
IV.
Positions of the Parties
A.
Applicant’s Submissions
[14]
The Applicant’s position is that the Officer’s
failure to consider whether a violation of religious freedom, the suppression
of religious identity, constitutes cruel and unusual treatment is an error of
law. He argues that the forced suppression of one’s religious identity through
legal prohibitions, even if they do not lead practitioners to be arrested or
attacked, represents cruel and unusual treatment.
[15]
The Applicant cites R v Big M Drug Mart Ltd,
[1985] 1 S.C.R. 295 [Big M Drug Mart]; Loyola High School v Quebec
(Attorney General), 2015 SCC 12; and Fosu v Canada (Minister of
Employment and Immigration) (1994), 90 FTR 182 as support for the
proposition that freedom of religion requires a person to be able to openly
practice his or her faith without fear of reprisals. He analogizes the
circumstances in the present case to VS v Canada (Minister of Citizenship
and Immigration), 2015 FC 1150 [VS], where the forced suppression of
one’s sexual identity was found to constitute persecutory treatment.
[16]
Although the Applicant acknowledges that
persecutory treatment is generally considered under section 96 of IRPA, he submits
that the Officer failed to consider the overlapping nature of sections 96 and
97 and therefore, when recourse to section 96 is not available, whether this
persecution constitutes cruel and unusual treatment pursuant to section 97. He
argues that, in AB v Canada (Minister of Citizenship and Immigration),
2009 FC 640 [AB], Justice Zinn held that what constitutes “cruel and unusual treatment” may be more expansive
than what constitutes persecution. In that case, the Court found that an
officer’s conclusion that the discrimination faced by homosexuals in Guyana was
not cruel and unusual treatment was unreasonable in light of his finding that
persecution could have been established.
[17]
The Applicant refers to case law considering the
Canadian Charter of Rights and Freedoms [the Charter] to support his
position that cruel and unusual treatment refers to acts which would “outrage standards of decency” (R v Smith,
[1987] 1 S.C.R. 1045 at para 7), are “simply unacceptable”
(United States v Allard, [1987] 1 S.C.R. 564 at 572), would “shock the conscience” (United States v Burns,
2001 SCC 7 at para 68; Kindler v Canada (Minister of Justice), [1991] 2
SCR 779 at 850 [Kindler]) or would violate the “Canadian
sense of what is fair and right” (Kindler at 850). He argues
that state sanctioned oppression of a religious group, even if it does not lead
to the likelihood on a balance of probabilities of physical harm, would shock
the conscience of Canadians and violates principles of fundamental justice in
Canada.
B.
Respondent’s Submissions
[18]
The Respondent’s position is that the Officer
properly conducted a restricted PRRA based only on section 97. The Applicant
was precluded from consideration of whether he would face a serious possibility
of persecution in China under section 96 because of his inadmissibility for
serious criminality and sentence of over two years’ imprisonment (pursuant to sections
112(3) and 113(e)(i) of IRPA). The Officer was only considering whether the
Applicant would face a personalized danger of torture or a risk to his life or
of cruel and unusual treatment or punishment under section 97.
[19]
The Respondent submits that the Officer’s
findings under section 97 were reasonable. The Officer considered the
documentary evidence relating to restrictions on religious freedom in China, to
draw conclusions on the Applicant’s section 97 risk, and was alive to the
restrictions but found that enforcement of rules relating to such restrictions varies
between regions. The Respondent argues that the fact Christians continue to
practice at unregistered churches and the fact that the treatment of Christians
varies from region to region distinguishes the Applicant’s circumstances from
cases relating to individuals who are forced to hide their sexual orientation.
[20]
The Respondent relies on Kheloufi v Canada
(Minister of Citizenship and Immigration), 2013 FC 481 [Kheloufi], in
which Justice Gagné held that the analysis,
in the context of a refugee claim or PRRA application, is not whether the laws
of a given country would be considered compliant with the Charter.
[21]
In response to the Applicant’s position that there
is an overlap between sections 96 and 97 of IRPA, the Respondent argues that the
two provisions enshrine different international commitments by Canada and involve
different thresholds of risk. The Officer considered the various risks alleged
by the Applicant and applied the proper test in concluding that those
allegations did not on the balance of probabilities establish a section 97 risk.
V.
Analysis
[22]
In oral argument, the Applicant’s counsel
explained his position that this application is not about the substantive
content that should be assigned to the term “cruel and
unusual treatment” for purposes of the application of section 97 of IPRA
to cases involving alleged suppression of religious identity. Rather, his
principal argument is that this was a risk raised by the Applicant which the
Officer failed to consider. My decision to allow this application is based on a
conclusion that the Applicant is correct in this latter assertion, that the
Officer failed to analyze a particular risk arising out of the Applicant’s
profile as a Baptist Christian.
[23]
The Respondent submits that this argument was
not put to the Officer, who therefore cannot be expected to have considered it.
However, my view is that the issue now raised by the Applicant on this
application was raised by the Applicant before the Officer.
[24]
In support of the PRRA, the Applicant’s counsel resubmitted
and relied on the written submissions that had been made on his earlier PRRA.
In that document, the opening paragraph under the heading “Freedom of Religion” as a basis of risk states the
following:
The applicant is a devout Baptist Christian.
As part of his religious activity he has a duty to spread the word of god and
proselytize. Given that Baptist churches are not recognized as official
churches in China, if he were to return he would be forced to attend illegal ‘house
churches’ or to not practice his faith at all. The inability to participate
freely in the chosen religion is a form of persecution. Participation
solely through underground illegal Churches raises a risk to his life and
well-being. Documentary evidence shows that individuals participating in Chinese
Churches have been incarcerated, jailed, sent to reeducation camps. (emphasis
added)
[25]
The final paragraphs of the submissions on this
basis of risk conclude as follows:
The inability to openly practice his
faith is a clear act of persecution in and of itself. The Officer’s focus
should not simply be on the risk of violence and incarceration, but the
analysis must question whether on a balance of probabilities the applicant will
be able to practice his religion openly.
It is clear that the very existence of
state laws against non-sanctioned religious groups drives such groups
underground and is an act of persecution.
Furthermore there is clear evidence that the imprisonment of regular
parishioners is becoming much more prevalent and that the ability to express
one’s religious identity is becoming even more difficult. (emphasis added)
[26]
Finally, the conclusion of these submissions
states as follows:
The documentary evidence clearly indicates a
worsening situation for Protestants in China that do not belong to a state
sanctioned Church. The applicant is clearly a devout member of his Baptist
congregation, and participates in many Church activities. Based on the
evidence the Officer must determine whether on a balance of probabilities he
will be able to openly practice his religion, including proselytizing without
state interference. It is our submissions that if returned he would face
serious persecution based on religion. (emphasis added)
[27]
These key paragraphs in the Applicant’s written
submissions identify his argument, that the very existence of laws restricting
religious freedom represents an act of persecution, and that the Applicant is
asking the Officer to consider not just risks of violence and incarceration but
also of limitations to his ability to practice his religion openly, which the
Applicant also describes as ability to express one’s religious identity.
[28]
The Respondent argues that these paragraphs are
all framed in terms of “persecution”, not “cruel and unusual treatment”. The Applicant responds
that he was using the term “persecution”
generically, not in support of an argument based on section 96 of IRPA, and
notes the paragraph in the conclusion of his submissions to refer to a
determination on a balance of probabilities, which is the standard applicable
to section 97 grounds. I agree with the Applicant on this point, particularly
as the Officer was conducting a restricted PRRA considering only section 97. These
submissions clearly relate to the Officer’s determination whether, on a balance
of probabilities, the Applicant will face a risk of torture, risk to life, or
risk of cruel and unusual treatment or punishment if returned to China.
[29]
It is also clear that the Officer did not
consider the Applicant’s arguments that Chinese law’s suppression of his
religious identity or religious freedom represents a basis of risk to the
Applicant against which he should be protected under section 97. Indeed, I did
not understand the Respondent to be disputing this point, as the Respondent’s
argument was that the Officer was not required to consider this risk because it
had not been raised.
[30]
The Officer’s conclusion was that the Applicant
had not demonstrated on a balance of probabilities that he fits the profile of
church or religious leader, activist, or cult member, and found that he would
not be at a personalised risk of torture, risk to life, or a risk of cruel and
unusual punishment. I read this finding to be a result of the Officer’s
analysis that the Applicant was not exposed to the risk of serious harm and
higher risk of detention and harassment that, at least in Fujian, are more
likely to be faced only by church leaders, activities and cult members. However,
the Officer did not consider whether the lesser risk of harassment and
detention, or the lesser harm, to which ordinary house church members are
exposed in Fujian, or indeed the very existence of laws restricting religious
freedom, still represents a restriction on religious freedom that constitutes
cruel and unusual treatment.
[31]
I note that the Respondent has cited a number of
authorities where the rejection of claims for Convention refugee status and
protection, asserted by applicants who would be returning to Fujian, has been upheld
by this Court. However, those decisions involved conclusions, based on the
documentary evidence considered in each case, as to particularly minimal impact
upon Christians in Fujian. For instance:
A.
In Li v Canada (Minister of Citizenship and
Immigration), 2011 FC 941 at para 39, the Court noted that the Refugee
Protection Division [RPD] found no reliable document that indicated that
regular members of a house church have ever been arrested or detained in Fujian
or otherwise had their chosen form of worship impeded in any significant way.
At paragraphs 39 to 50, Justice Russell considered the documentary evidence
before the RPD and found that its conclusions were within the acceptable range.
In doing so, the Court considered at paragraphs 44 to 46 Justice Shore’s conclusion
in Liang v Canada (Minister of
Citizenship and Immigration),
2011 FC 65, that the destruction of house churches in Fujian may constitute
evidence that the Chinese authorities are interfering with fundamental religious
rights in Fujian in a persecutory manner, but distinguished that case based on
the way the RPD had assessed the evidence before it;
B.
In He v Canada (Minister of Citizenship and
Immigration), 2014 FC 44 at para 48, Justice Russell upheld the RPD’s rejection
of the applicant’s claim, on the basis of evidence that, generally speaking,
proselytizing was tolerated in Fujian provided it is not in the public domain
and that, in some places, even open-air evangelism is allowed;
C.
In He v Canada (Minister of Citizenship and
Immigration), 2013 FC 362 at paras 39 to 41, Justice de Montigny noted that
the RPD officer chose to give little weight to documents referring to the
closure of house churches in Fujian. The Court agreed with the applicant that
he should not have to hide his religion to avoid persecution but found that it
was not unreasonable for the officer to conclude that, if religious persecution
was prevalent in Fujian, it would have been documented;
D.
In Chen v Canada (Minister of Citizenship and
Immigration), 2013 FC 928, Justice Gleason upheld the RPD’s rejection of
the applicant’s claim, concluding it was reasonable in light of the evidence before
the RPD. The Court’s analysis at paragraph 11 was as follows:
[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.
E.
In Yu v Canada (Minister of Citizenship and
Immigration), 2010 FC 310, Justice Zinn upheld the RPD’s rejection of the applicant’s
claim, noting at paragraph 33 that the RPD’s weighing of the documentary
evidence was not unreasonable. That documentary evidence was referred to at
paragraph 32 of the decision as supporting an inference that no raids upon
house churches in Fujian had occurred.
[32]
While the Officer’s conclusions in the case at
hand include the relative degree of religious freedom in Fujian, the Officer
nevertheless also accepted that there are restrictions on religious freedom in
Fujian and occasional crackdowns on churches there. In my view, the findings in
the Decision do not reflect as high a level of religious tolerance in Fujian as
the findings that were being considered in the cases cited above, and certainly
not as high a tolerance as would be necessary to conclude that the Applicant’s
argument, that he would face suppression of his religious freedom and identity
constituting cruel and unusual treatment, is without enough merit to be
considered.
[33]
As to the merits of that argument, I repeat my
concurrence with the Applicant’s position that this application is not about
the substantive content that should be assigned to the term “cruel and unusual treatment” for purposes of the
application of section 97 of IPRA to cases involving alleged suppression of
religious identity. I will observe only that, depending on the factual context,
I consider the Applicant’s position to be sufficiently arguable to merit being
considered by the Officer.
[34]
In that regard, I note the Respondent’s reliance
on jurisprudence surrounding the constitutional protection against cruel and
unusual treatment or punishment in section 12 of the Charter, arguing that this
jurisprudence does not support an interpretation of the term “cruel and unusual treatment” that favours the
Applicant’s argument. The Respondent also relied on the decision in Kheloufi,
which considered an argument that a PRRA officer had not fully considered
evidence and arguments related to state coercion of religious minorities. Like
the Applicant in the case at hand, the applicant in Kheloufi relied on
the decision of the Supreme Court of Canada in Big M Drug Mart, on the
right to freedom of religion guaranteed in the Charter. At paragraph 17
of Kheloufi, Justice Gagné stated
as follows:
[17] In the context of a
refugee claim or PRRA application, although this Court has to rely on
international concepts, the question is not whether all the laws of a given
country would pass the test of the Canadian courts and would be considered as
compliant with Canada’s constitution and its Charter of Rights and Freedoms.
Rather the question is whether this applicant faces more than a mere
possibility of persecution, danger of torture, risk to life or risk of cruel
and unusual treatment or punishment in his country, as a result of his
religious beliefs, activities or practices.
[35]
On the other hand, the Applicant also relies on Charter
cases and on parallels with the decisions of this Court considering suppression
of sexual orientation in AB and VS. In my view, those parallels
give rise to credible arguments, although there are also distinguishing factors:
A.
In VS, the officer considering the
applicant’s humanitarian and compassionate application that was under review
had rejected the application on the basis that hardship confronting the
applicant could be managed by the suppression of her sexual identity. Justice
Barnes concluded that this was insensitive and wrong. However, the Decision
under review in the present case is not premised on an assumption that the
Applicant should suppress his religious identify.
B.
In AB, Justice Zinn was considering the meaning
of cruel and unusual treatment under section 97 of IRPA in the context of a
finding by the PRRA officer that the harassment of homosexuals in Guyana could
amount to persecution. There is no comparable finding by the Officer in the
case at hand.
[36]
While the parties’ respective arguments help to
frame the question, as to the extent to which the suppression of religious
freedom or identity may constitute cruel and unusual treatment, in my view the
Court should not weigh any further into this question in the factual vacuum
resulting from the Officer’s failure to consider it in the Decision. While the
Officer has made particular findings surrounding restrictions on religious
freedoms and resulting risks in Fujian, these were not made or applied, nor was
the country condition documentation considered, in the context of the
Applicant’s argument that the suppression of religious freedom or identity may
itself constitute cruel and unusual treatment. This question is one of mixed
fact and law, and a finding on the merits of such an argument should be made
following consideration by a PRRA officer of the country condition
documentation as it relates to this specific argument. Any development of
jurisprudence on such an issue should take place in the context of decisions by
the front line decision-makers with expertise in the consideration and
application of the documentary evidence.
[37]
In conclusion, I am allowing this application on
the basis that the Decision is unreasonable in not addressing an argument
surrounding risk that was advanced by the Applicant.
VI.
Certified Question
[38]
The Applicant submits the following question for
certification as a serious question of general importance:
In considering a PRRA application, does the
officer have an obligation to consider whether risk factors that meet the threshold
of persecution also constitute cruel and unusual treatment as contemplated by
section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27?
[39]
The Respondent opposes certification of the
proposed question.
[40]
Pursuant to section 74(d) of IRPA, an appeal to
the Federal Court of Appeal may be made only if, in rendering judgment, the
Federal Court judge certifies that a serious question of general importance is
involved and states the question. The test for certifying a question is that it
“must (i) be dispositive of the appeal and (ii)
transcend the interests of the immediate parties to the litigation, as well as
contemplate issues of broad significance or general importance” (see Zhang
v Canada (Minister of Citizenship and Immigration), 2013 FCA 168 at para
9).
[41]
I decline to certify the question. The Applicant
has prevailed on this application. Moreover, he has done so on the basis that
the Officer failed to address a particular argument as to risk that had been
raised by the Applicant. My decision does not turn on an analysis of the
parties’ arguments as to the relationship between the section 96 protection
against persecution on Convention grounds and the protection against cruel and
unusual treatment or punishment afforded by section 97. As the basis for my
decision is grounded in the particular facts of this case, it does not raise a
serious question of general importance that transcends the interests of the
parties to this litigation, and the particular question proposed by the
Applicant would not be dispositive of an appeal.
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