Date: 20100105
Docket: IMM-1850-09
Citation: 2010 FC 8
Ottawa, Ontario, January 5,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
XIA FENG SHI
(a.k.a. XIAFENG SHI)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is a citizen of the People’s Republic of China who came to Canada in May 2007 on a study permit and
subsequently claimed refugee protection. While he was born in the Fujian Province, the Applicant lived in
Shanghai before coming to Canada. His claim was based on his
fear of persecution on religious grounds. The Applicant claimed to be a member of
a house church, in Shanghai, China, where he practised
Christianity for the two years prior to his arrival in Canada. After the Applicant’s arrival in Canada, he was told that his church
group had been discovered and raided.
[2]
In a
decision dated March 13, 2009, a panel of the Immigration and Refugee Board,
Refugee Protection Division (the Board) rejected the Applicant’s claim.
Although the Board found that the Applicant practised Christianity as a member
of a house church and that he continued to practise his religion in Canada, the Board was not persuaded
that the Applicant’s house church was or would be discovered and raided. In
addition, the Board appears to have concluded that the Applicant could practise
Christianity in a registered Church.
[3]
The
Applicant seeks judicial review of this decision.
[4]
There is
no question that the Board’s decision is entitled to considerable deference.
Nevertheless, even a standard of reasonableness requires “justification,
transparency and intelligibility within the decision-making process” (Dunsmuir
v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 47).
[5]
The
determinative issue is whether the Board’s conclusion that the Applicant’s
small, home‑based church would not have been raided was reasonable. For
the reasons that follow, I am not satisfied that the decision demonstrates the
necessary elements of a reasonable decision. Accordingly, the application for
judicial review will be allowed.
[6]
As noted
above, the Board, without any credibility concerns, accepted that the Applicant
was practising Christianity as a member of a house church in China and that he continued his practice of
Christianity in Canada. The Board then turned to a
consideration of whether it was credible that the Applicant’s church would have
been discovered and raided. In this analysis, the Board considered the size of
the church and the non-leadership role of the Applicant.
[7]
With
respect to the size of the church, the following paragraph contains the essence
of the Board’s analysis:
The claimant testified that he was a
member of a house church with a maximum of 14 members. The panel finds that on
a balance of probabilities, a house church with this size membership would not
have been raided. Documentation indicates that the treatment of house churches
varies regionally. Although enforcement of religious regulations is stricter
in urban areas such as Shanghai, according to the United
States Department of State, urban house churches are generally limited to
meetings of a few dozen members or less. The documentary evidence indicates
that small prayer meetings and Bible study groups held among friends and family
in homes are not subject to raids. [Emphasis added.]
[8]
The
meaning of the reference to Shanghai in this paragraph is unclear.
Did the Board mean that, except for Shanghai,
small, home-based churches are tolerated? Or, did the Board mean that, even
though enforcement of regulations is stricter in large urban centres, small,
home-based worship groups are tolerated in Shanghai? If the first possible interpretation is
correct, the Board has misapprehended the Applicant’s claim that he was
worshiping in and would return to Shanghai
– and not elsewhere, where religious tolerance may be greater. This would be a
serious factual error. Since it is always important to read a decision in its
entirety, I turn to the balance of the decision to see if, indeed, the Board
understood that the Applicant’s church was in Shanghai and not elsewhere in China.
[9]
Throughout
the decision, there are only a few references to Shanghai. In the summary of allegations (at page 1
of the decision), the Board notes that the Applicant was living in Shanghai. The analysis of the question
of whether the Applicant was practising Christianity as a member of a house
church makes no explicit reference to Shanghai.
The only other reference to Shanghai is at page 4 of the decision
where the Board states that: “Meetings were held in four different locations in
Shanghai”.
[10]
On the
other hand, the decision contains an explicit reference to the Fujian Province. At page 5 of the
decision, the Board states that:
The documentary evidence is seen as
reliable, probative and details information so as to provide the panel with a
thorough understanding of the situation of Protestants in Fujian Province. [Emphasis added]
[11]
The
Respondent submits that the Board’s reference to the Fujian Province was a simple error and that
the balance of the decision reflects the Board’s analysis of the situation in Shanghai. I am not persuaded that this
was a simple slip of the pen. Contrary to the assertions of the Respondent, the
balance of the decision is not entirely clear as to whether the Board’s mind
was directed to Shanghai or to the Fujian Province. This problem is particularly
serious in this case because the documentary evidence appears to show that the
authorities in the Fujian Province are more tolerant of
Christian underground churches than elsewhere in China.
[12]
The
foregoing error indicates a lack of care in the handling of this case that
makes me doubt the presence of the required “justification, transparency and
intelligibility within the decision-making process”. There are also other
concerns in the Board’s decision that could justify this Court’s intervention
in the present case. There is no need here to elaborate on other concerns,
since one serious error is sufficient to allow the judicial review; however, I
will briefly illustrate another weakness of the Board’s decision.
[13]
In my
view, the decision reflects a selective use of the documentary evidence. For
instance, relying on the U.S. Department of State Report on religious freedom
in China for 2007, the Board stated,
at page 3 of its decision: “The documentary evidence indicates that small
prayer meetings and Bible study groups held among friends and family in homes
are not subject to raids.” If we go back to the documentary source, this statement
seems to be taken out of context. Indeed, in the same U.S. Department of State
Report, it is written at page 5:
…although prayer meetings and Bible study
groups held among friends and family in homes are legal and do not require
registration. SARA [State Administration for Religious Affairs] has not publicly
defined the terms “family and friends.” House churches report that local
authorities frequently disrupted meetings of friends and family in private
homes and arrested participants on the grounds that they were participating in
illegal gatherings.
[14]
The
uncertainty regarding the area of China considered by the Board to evaluate the
Applicant’s case, along with the problems in the treatment of evidence, are
errors serious enough to allow this judicial review.
[15]
Neither
party proposed a question for certification. None will be certified
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is allowed, the decision of the Board is
quashed and the matter is sent back to the Board for re-determination by a
differently-constituted panel of the Board; and
2.
no
question of general importance is certified
“Judith
A. Snider”
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