Date: 20100331
Docket: IMM-907-09
Citation: 2010 FC 349
Ottawa, Ontario, March 31, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
YUQIANG
CAO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
concerns an application brought by Yu Qiang Cao (a.k.a. Yuqiang Cao) (the
“Applicant”) pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act for judicial review of a decision by a panel of the Refugee
Protection Division of the Immigration and Refugee Board (the “Panel”) dated
February 9, 2009 and bearing RDP file number TA5-05671 that determined that the
Applicant was not a convention refugee and was not a person in need of
protection because of his religious beliefs as a member of a Christian house
church.
[2]
For
the reasons set out below, this application shall be denied.
Background
[3]
The
Applicant is a citizen of the People’s Republic of China. He claims
he has a well-founded fear of persecution should he be returned to his country
of citizenship by reason of his religious beliefs as a member of a Christian house
church. He also claims to be a person in need of protection in light of the
risks he faces in China because of his beliefs.
[4]
The
Applicant arrived in Canada as an international student on December
22, 2004. He filed for refugee protection on April 21, 2005.
[5]
The
Applicant states that he became a Christian in March of 2004 and participated
in church services in China in a small house congregation. After
coming to Canada on a student
visa, he attended church services. He asserts that in April of 2005 his father
informed him that police authorities searched his home in China following
accusations concerning the Applicant’s involvement in illegal religious
activities and in spreading illegal religious rumours to China. He also
learnt that three members of his church in China had been
arrested.
[6]
His
claim was first rejected by the Immigration and Refugee Board (Refugee
Division) on June 27, 2006. However that decision was quashed by Justice Hughes
on November 1, 2007 and remitted back to another panel for reconsideration.
[7]
A
new Panel heard the matter on January 7, 2009, and in a decision dated February
6, 2009, again rejected the claim.
The Decision under
Review
[8]
The
Panel found that the Applicant was a Christian and could have attended an
underground church in the People’s Republic of China. However,
the Panel did not find credible the Applicant’s testimony that his small house church
in China had been
raided based on the circumstances of this church and on the documentary
evidence before the Panel. The Panel also found that a receipt submitted by the
Applicant for items seized by the Public Security Bureau to be fraudulent.
[9]
The
Panel noted that the Applicant had indicated that his house church in Guangdong province did
not discuss the overthrow of the Chinese government, did not embarrass the government
or the Chinese Communist party in any way, and was not associated with any
foreign churches, nor published any materials. The Applicant had also indicated
that his house church had eight members. The Panel noted that country
documentation indicated that small house churches do not need to register and
thus are not considered illegal in the People’s Republic of China, and are in
any event for the most part tolerated. Consequently, the Panel thus found that
the testimony of the Applicant that there were raids on his house church not to
be credible.
[10]
The
Panel further reviewed the country documentation to conclude that the Applicant
could return to the People’s Republic of China and practice
Christianity freely, considering the vast and increasing numbers of Chinese
citizens now doing so without fear of persecution.
[11]
The
Panel thus concluded that the claim had not been made in good faith.
Position of the parties
[12]
The
Applicant is self-represented and submitted an Application record, including an
affidavit and a written memorandum of argument. However, the Court file indicates
that the registered mail envelope containing the notice of the hearing on the
merits of this application was refused. The hearing notice was subsequently
sent to the Applicant by regular mail to his address of record. The Applicant
was not present at the hearing on this application held in Toronto on March 25,
2010, though the Court delayed the hearing for 45 minutes in order to provide
the Applicant an additional opportunity to make his presence known. The hearing
was thus finally held without the Applicant. In reaching this decision, I have
reviewed and taken into account the Applicant’s affidavit and written
memorandum of argument submitted into the Court record.
[13]
The
Applicant’s principal argument is that the documentary evidence does not
support the Panel’s finding that small house churches are legal in China, but
rather indicates that in some parts of China small house
churches are simply tolerated. The Applicant adds that the Panel failed to
consider substantial documentary evidence establishing that the persecution of
Christians in China is ongoing
and actually increasing. To support these arguments, the Applicant refers to
various reports.
[14]
The
Applicant also challenges the Panel’s finding that the receipt he submitted was
forged, since the Panel came to this conclusion principally on the basis of the
fact the document was handwritten and on the assumption that fraudulent
documents were common in China. The Applicant asserts that the Panel acted
improperly in so finding.
[15]
The
minister argues that the Panel’s decision was reasonable, and notes that the
Panel’s decision was based on the lack of evidence of persecution of house
churches in Guangdong province.
The minister noted that none of the Applicant’s material challenged the Panel’s
findings in relation to Guangdong province.
[16]
As
for the credibility findings of the Panel, the minister argues that these were
based on the evidence submitted and were thus reasonable findings in the
circumstances of this case.
Standard of review
[17]
The applicable
standard of review for refugee determination decisions based on issues of
credibility and assessment of evidence has consistently been held to that of
reasonableness: see, among other decisions, Aguebor v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 732 (QL); [1993] 160 N.R.
315; and Wang v. Canada (Minister of Citizenship and Immigration), 2008
FC 1153; [2008] F.C.J. No. 1433 (QL) at para. 4. As noted in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraphs 57 and 62, it is not required in every case to
determine the proper standard of review when such standard has been
satisfactorily determined by jurisprudence. I will therefore proceed to this
judicial review of the decision of the Panel on a standard of reasonableness.
Analysis
[18]
The principles applicable
to this case have been clearly set out in Jiang v. Canada (Minister of
Citizenship and Immigration), 2008 FC 635; [2008] F.C.J. No. 808 (QL) at
paragraph 15:
Case
law establishes the obligation incumbent upon the Board to make a determination
on the central element of the claim. In a line of jurisprudence following Chen
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 480, [2002] F.C.J. No. 647(QL),
this Court has consistently held that even when the Board has determined that
an Applicant's claim of religious persecution in his country of origin is not
credible either because he was found not to have been a member of the
particular religious group, or because he was found not to be persecuted, the
Board still must determine either implicitly or explicitly whether he is now in
fact a member of that group and whether he would face persecution upon their
return (Li v. Canada (Minister of Citizenship and Immigration), 2008 FC 266, [2008] F.C.J. No. 338
(QL); (Huang v. Canada (Minister of Citizenship and Immigration), 2008 FC 132, [2008] F.C.J. No. 164
(QL); (Li v. Canada (Minister of Citizenship and Immigration), 2007 FC 544, [2007] F.C.J. No. 739
(QL); (Lin v. Canada (Minister of Citizenship and Immigration), 2007 FC 510, [2007] F.C.J. No. 692
(QL); (Liu v. Canada (Minister of Citizenship and Immigration), 2006 FC 695, [2006] F.C.J. No. 880
(QL); (Yang v. Canada (Minister of Citizenship and Immigration), 2003 FC 971, [2003] F.C.J. No. 1236
(QL).
[19]
The
Panel in this case did make a finding as to the Applicant’s Christian practices
in China and as to his Christian
convictions in Canada. The Panel also carried
out an analysis and made findings as to the whether
the Applicant might encounter religious persecution if sent back to China.
[20]
It
is trite law that factual findings of administrative tribunals must not be
disturbed on judicial review save exceptional circumstances. This Court must
not revisit the facts or weigh the evidence: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at para. 51 and 53: “Where the question is one of fact, discretion
or policy, deference will usually apply automatically”; Canada (Citizenship and
Immigration) v. Khosa,
[2009] 1 S.C.R. 339, at para. 46: “More generally it is clear from s.
18.1(4)(d) [of the Federal Courts Act] that Parliament intended
administrative fact finding to command a high degree of deference”.
[21]
In
this case the Panel’s credibility findings fall within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law. Indeed it was reasonable
for the Panel to conclude that the receipt submitted by the Applicant was
fraudulent in the circumstances of this case. The fact the document was
entirely handwritten rather than a printed form, the documentary evidence
concerning the prevalence of forged documents in China, and the Panel’s finding as to the lack of
credibility of the Applicant’s claims of persecution all make this specific finding
reasonable in these circumstances.
[22]
Concerning
the conditions for the practice of the Christian faith in small house churches
in China, it is not the function
of this Court to reassesses the available documentation on country conditions.
This Court must rather ensure that the Panel has examined whether the Applicant might encounter religious
persecution if sent back to China, and second, it must also ensure
that the Panel’s conclusions in this regard are reasonable, i.e. fall within a
range of possible, acceptable outcomes which are defensible in respect of the facts
and law.
[23]
In
this case the Panel did carry out the required assessment, and issued
reasonable reasons supporting its findings based on its analysis of the
available documentation.
[24]
Consequently
the application for judicial review is denied.
[25]
No
question was proposed for certification and none is warranted in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review is denied.
"Robert
M. Mainville"
Email this Content