Docket: IMM-4961-15
Citation:
2016 FC 742
Ottawa, Ontario, June 30, 2016
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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JIN ZHENG NI
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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 for judicial review of a
decision by a member of the Refugee Appeal Division (RAD) of the Immigration
and Refugee Board of Canada. The RAD decision upheld a decision of the Refugee
Protection Division (RPD) which held that the applicant is neither a Convention
refugee under section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], nor a person in need of protection within the meaning of
section 97 of the IRPA.
[2]
In order to decide this matter, it is not
necessary for me to address the principal assertion by the applicant, which is
that the RAD erred in considering the circumstances of the applicant’s
departure from China. Specifically, the applicant’s principal assertion is that
the RAD erred by stating that the RPD’s negative credibility findings were open
to it, rather than by independently assessing the relevant evidence and
reaching its own conclusion.
[3]
I am satisfied that, even if the RAD’s analysis
in this regard was flawed, there is no argument of any flaw in the RAD’s
conclusions that:
1)
The applicant now chooses to attend a Chinese
Baptist (Protestant) Church rather than the Church of Almighty God (which is
his previous Church, allegedly targeted by Chinese authorities); and
2)
A Protestant in Fujian Province in China may
practise his religion without serious risk.
[4]
It follows from these two conclusions that,
regardless of the circumstances of his departure from China, the applicant does
not now face the risks contemplated in sections 96 and 97 of the IRPA.
[5]
The applicant argues that the RPD’s flawed
credibility findings (which it says the RAD did not independently assess) were
treated as determinative of its decision and polluted its subsequent analysis
of issues such as the applicant’s religious identity and the risks associated
with certain religious practices in China. I am not persuaded that this is the
case. I note also that the RAD’s findings that I find to be determinative for
the purposes of my decision are unchallenged.
[6]
The applicant also argues that I should set aside
the RAD’s decision because it misapplies the standard of review to be applied
by the RAD to the RPD’s decision, as set out in Canada (Citizenship and
Immigration) v Huruglica, 2016 FCA 93, aff’g 2014 FC 299. I am not inclined
to follow the applicant’s suggestion in this regard. Firstly, I am of the view
that any such misapplication was not decisive, and therefore it is not
necessary to deal with the standard of review issue. Secondly, the RAD’s
decision was issued before the Federal Court of Appeal released its decision
modifying the standard of review as described at first instance. Accordingly,
there is little practical value to future deciders in carefully parsing the
RAD’s standard of review analysis.
[7]
The parties agree that this matter does not give
rise to any serious question of general importance.
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