Date: 20100308
Docket: IMM-5442-08
Citation: 2010 FC 262
Ottawa, Ontario, March 8,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
DAI LE CHEN
(a.k.a. DAILE
CHEN)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of the decision (the decision) of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated November 20,
2008, wherein the Board determined that the Applicant is neither a convention
refugee nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27.
[2]
Based
on the reasons below, the application is allowed.
I. Background
[3]
The
Applicant is a 24 year old male citizen of China. The
Applicant’s claim is based on a fear of persecution as a result of his
involvement in an illegal underground church. The Applicant came to Canada in September
2006 to study. In December 2006, he made a refugee claim.
[4]
The
Applicant claims he was involved in an underground house church for five months
prior to coming to Canada. He joined the church as he was having
difficulty with a colleague. According to the Applicant, the church had 8
members, no pastor, and no fixed location for its meetings. In December
2006, while in Canada, the Applicant stated that he learned from his parents
that the church had been raided, four members detained, and a summons left for
the Applicant from the Public Security Bureau (PSB) providing, among other
things, that the Applicant was involved in illegal house church activities. The
Applicant subsequently made a refugee claim in Canada.
[5]
The
Board determined that the Applicant was not a refugee as he did not satisfy the
burden of establishing a serious possibility that he would be persecuted if
returned to China. The Board
determined that the Applicant is a practicing Christian in Canada but did not
practice Christianity in an underground church in China. The Board
concluded that that the Applicant’s subjective fear was not supported by the
objective evidence. The Board stated on page 5 of the reasons that “The panel
finds that the claimant could return to Fujian Province and practice
Christianity without a reasonable fear of being arrested and jailed.”
II. Standard
of Review
[6]
The
issues addressed in this matter will be assessed on a standard of
reasonableness (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1
S.C.R. 339).
[7]
As
set out in Dunsmuir, above, and Khosa, above, reasonableness
requires the existence of justification, transparency, and intelligibility in
the decision-making process. It is also concerned with whether the decision falls
within a range of acceptable outcomes that are defensible in respect of the
facts and law.
III. Issue
[8]
The
Applicant set out the issue to be determined thus: whether the Board erred in
finding that the Applicant is neither a Convention refugee nor a person in need
of protection while finding that the Applicant is a practicing Christian
without considering the summons?
[9]
The
evidence before the Board was the Applicant’s oral testimony, his Personal
Information Form, and documentary disclosure from both the claimant and the Refugee
Protection Division. The summons allegedly left for the Applicant was before
the Board.
[10]
The
only specific reference to the summons in the reasons is in a footnote on page
1. This footnote is part of the Board’s review of the allegations. In its
review, the Board noted that a summons, that required the claimant to report to
the Public Security Bureau on a specific date, had been left with the
claimant’s parents.
[11]
On
page 4 of the reasons the Board concluded that “…a house church of the size
attended by the Applicant in Fujian Province would not be
raided by the PSB nor would the claimant be arrested or sent to jail.” The
Board stated that it came to this conclusion based on the documentary evidence,
and that the Board had placed greater evidentiary weight on this evidence
because it provided information from a number of independent sources with no
vested interest in the outcome of the proceedings.
[12]
The
Applicant argues that the Panel erred by ignoring the summons. The Applicant submits
that the summons was an important document and is evidence which does not
support the Board’s findings that the Applicant has no reasonable fear of being
arrested or jailed. Consequently, the failure of the Board to meaningfully consider
the summons in its written reasons cannot withstand judicial scrutiny.
[13]
The
Respondent argues that the Board stated that it considered the totality of the
Applicant’s evidence and specifically identified the summons in its reasons by
way of a footnote. They highlight the fact that the Board preferred evidence
that prayer meetings and Bible study groups held among friends and family in
house churches tend to encounter difficulties only when the membership grows
and the church arranges for regular facilities. The Board also relied on
documentary evidence that the Applicant’s home province, Fujian, was one of
the more liberal with regard to Christian practices.
[14]
It
is well understood that the Court is to demonstrate significant deference to
the Board’s assessment of the evidence (see Camara v. Canada (Minister of
Citizenship and Immigration), 2008 FC 362; [2008] F.C.J. No. 442
at paragraph 12). In addition, the Board is not required to make reference to
each item of documentary evidence or summarize all the documentary evidence
introduced (see Florea v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 598 (F.C.A.)).
[15]
The
Applicant submits that it is a reviewable error for the Board to disregard
relevant evidence (see Avila v. Canada (Minister of Citizenship and
Immigration), 2006 FC 359; 295 F.T.R. 35) and that this duty
increases with the relevance of the evidence in question to the disputed facts
(see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
157 F.T.R. 35; 1998 CanLII 8667 (F.C.T.D.). At paragraphs 15-17 of Cepeda-Gutierrez,
above, Justice John Evens stated:
[15] The Court may infer
that the administrative agency under review made the erroneous finding of fact
"without regard to the evidence" from the agency's failure to mention
in its reasons some evidence before it that was relevant to the finding, and
pointed to a different conclusion from that reached by the agency. Just as a
court will only defer to an agency's interpretation of its constituent statute
if it provides reasons for its conclusion, so a court will be reluctant to
defer to an agency's factual determinations in the absence of express findings,
and an analysis of the evidence that shows how the agency reached its result.
[16] On the other hand, the reasons
given by administrative agencies are not to be read hypercritically by a court
(Medina v. Canada (Minister of Employment and
Immigration)
(1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to
every piece of evidence that they received that is contrary to their finding,
and to explain how they dealt with it (see, for example, Hassan v. Canada
(Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
That would be far too onerous a burden to impose upon administrative decision-makers
who may be struggling with a heavy case-load and inadequate resources. A
statement by the agency in its reasons for decision that, in making its
findings, it considered all the evidence before it, will often suffice to
assure the parties, and a reviewing court, that the agency directed itself to
the totality of the evidence when making its findings of fact.
[17] However, the more
important the evidence that is not mentioned specifically and analyzed in the
agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[Emphasis added]
[16]
In
Mahanandan v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 1228; 49 A.C.W.S. (3d) 1292
(F.C.A.), the applicants argued that the Board failed to consider adequately,
or at all, the objective basis of their fear, including considerable
documentary evidence. At paragraph 8, Chief Justice Julius A. Isaac stated:
[8] We agree. Where, as
here, documentary evidence of the kind in issue here is received in evidence at
a hearing which could conceivably affect the Board's appreciation of an
Appellant's claim to be a Convention refugee, it seems to us that the Board is
required to go beyond a bare acknowledgment of its having been received and to
indicate, in its reasons, the impact, if any, that such evidence had upon the
Applicant's claim. As I have already said, the Board failed to do so in this
case. This, in our view was a fatal omission, as a result of which the decision
cannot stand.
[17]
In
this case, I agree with the Respondent that the Board did mention the summons
in a footnote on page 1 of its reasons. This mention was a “bare
acknowledgement” of the summons being received. The Board also stated that it
had considered the evidence as a whole but preferred its documentary evidence
because it provided information from a number of independent sources.
[18]
However,
the mention of the summons in the footnote or the “blanket statement” with
regard to the evidence will not suffice in this case. The summons squarely
contradicted the Board’s finding of fact that “…a house church of the size
attended by the Applicant in Fujian Province would not be raided by
the PSB nor would the claimant be arrested or sent to jail.” The summons was
highly relevant to the facts in dispute and therefore the Board had an
increased “burden of explanation” with regard to the weight given to it.
[19]
This
case is similar to Zhang v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1198; [2009] F.C.J. No.
1492. In Zhang, above, Justice Yves de Montigny held that the Board’s
failure to review a summons’s amounted to a reviewable error. Justice de
Montigny stated that the summons was an important piece of evidence in the
Applicant’s claim and that the Board had an obligation to assess the summons
and to give reasons for either accepting it or rejecting it as credible
corroborating evidence (see paragraphs 13-17).
[20]
In
this case, the Board did mention the summons specifically, but did not analyze
it in the reasons. While the Board’s assessment of the evidence is within their
areas of expertise and it is not required to reference each piece of evidence
introduced, it was not reasonable for the Board to not directly address how it
treated this specific piece of evidence.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is allowed and the decision is set aside and
the application is referred back for consideration by a differently constituted
panel;
2.
there
is no order as to costs.
“ D.
G. Near ”
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