Date: 20100526
Docket: IMM-5203-09
Citation: 2010 FC 575
Toronto, Ontario, May 26, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
FENG
ZHU DONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
It
may well be that Ms. Dong was not even in China when she
alleges she was persecuted by the authorities for being a member of an
underground Christian church. She may well have been in Peru. However,
the decision of the presiding member of the Refugee Protection Division of the
Immigration and Refugee Board is so rife with error, speculation and
conclusions without analysis that this application for judicial review must be
granted.
[2]
According
to Ms. Dong, after completing high school in 2005, including three years of
English classes, she was unable to find employment. For all intents and
purposes, she sat around her parents’ house for the next two years reading
books. The following year, after becoming widowed, her aunt joined an
underground church and after a number of months spread the gospel to her niece,
Ms. Dong.
[3]
The
applicant joined the church, which after a short while was raided. She escaped
and, with the aid of a smuggler, made it to Toronto where she
claimed refugee status.
[4]
The
member found that she was not credible, and that in any event she was not in
need of protection.
[5]
He
found it impossible to believe that a person with twelve years of formal
education could not find a job in China. However, no analysis
of the job market was carried out.
[6]
Ms.
Dong did not bring with her any documentation showing that she actually had
been in China after
December 2005. The Panel did not believe that a person of her status would not
have left, and brought with her, a paper trail.
[7]
She
failed to mention in her Personal Information Statement (PIF) that she had had
a boyfriend and that they had broken up. It seems that claimants can never get
it quite right. A negative finding of credibility followed. The PIF cautions
claimants to stick to the essentials. Who would have thought that an earlier broken
romance was relevant to this claim?
[8]
The
Member thought that the aunt should have spread the gospel earlier than she
did. The answer, which had to be surmise, was that the aunt wanted to have a
better understanding of Christianity before talking about it. Why should a
negative inference be drawn from what someone else did?
[9]
There
was some legitimate issue, and confusion, concerning Ms. Dong’s real Chinese
passport, and counterfeit Hong Kong passport, but not
enough to dismiss the claim.
[10]
On
arrival in Toronto, she gave a
written statement in which she said that the authorities had come to her
parents’ house to arrest her on the Tuesday following the church raid which
occurred the second Sunday in December. In the Intake Notes the officer said
she had claimed the authorities had come to her house on the Sunday itself.
Obviously she would not have deliberately given two contradictory statements at
the same time. The proper conclusion is that the Intake Notes are incomplete.
[11]
The
Member was certainly on to something when analyzing her trip from Changle,
People’s Republic of China, to Toronto. According to her PIF,
she left Changle on 20 December 2007 and arrived in Canada on 25 December
2007. The flight to Toronto was her fourth flight. Her testimony was that
she had used her Chinese passport on the first flight and thereafter her fake Hong Kong passport.
The Panel assumed that the first stop was Hong Kong. There is no basis in the
record to support this outright speculation. In any event, according to the
PIF, she spent overnight at the first destination, overnight at the second
destination, arrived at the third destination 22 December and only left for Canada on 25
December. The information from the authorities at the airport at Toronto is that she
had arrived on a flight from Lima, Peru.
[12]
The
Member found it unbelievable that she had no idea where she was on four flights
over a period of five days. I also find it hard to believe, but no questioning
was carried out, i.e. did she remain at the airports? Did she stay at a hotel,
what airlines were flown, what happened to her boarding passes and ticket
stubs, what kind of food did she eat, what was the ambient temperature, and so
on?
[13]
All
this led the Member to conclude that she was not a member of an underground
church in Fujian
Province, as she
claims.
[14]
However
the Member went on to analyze Ms. Dong’s knowledge of Christianity. He conceded
she had a good knowledge thereof but said she was confused with respect to the
commandment to honour thy father and thy mother: since they were opposed to her
joining an underground church, she should not have done so. It would seem that
Ms. Dong had a better knowledge of Christianity than the Member. A true
believer, while respecting and honouring his or her parents, must follow the
way, the truth and the light.
[15]
The
Member analyzed a great deal of documentation with respect to arrests of
Christians and reports of house-church crackdowns. No arrests were noted as
being in Fujian Province.
Although reference was made to reports of house-church crackdowns in a number
of provinces, the Member did not mention Fujian, although
there is reference to that very fact in the Board’s own Responses to
Information Requests of 22 June 2007.
[16]
The
Member further went on to say that if the claimant returned to China, she could
attend the Government’s sponsored Patriotic churches. She would find the same
bible and the same beliefs in God and Jesus Christ. She would be able to attend
the Patriotic church without fear of arrest or detention. This statement
reflects a fundamental misconception of freedom of religion, one of the grounds
for protection cited in the United Nations Convention and found in Section 96
of the Immigration and Refugee Protection Act. One is entitled to select
one’s own place of worship, and one’s sect.
[17]
The
Member seems to be of the impression that a religious adherent is not subject
to persecution if only her place of worship is destroyed, but she is not
subject to arrest. Freedom of religion includes the right to go public, the
right to spread the gospel, the right to bear witness. As Mr. Justice Denault
stated in Fosu v. Canada (Minister of Employment
and Immigration), 90 F.T.R. 182, 27 Imm. L.R. (2d) 95, basing himself on the
Handbook of Procedures and Criteria for Determining Refugee Status, United
Nations High Commissioner for Refugees:
It appeared from a careful analysis of the evidence and the
decision in the case at bar that this Court should intervene. I feel that the
Refugee Division unduly limited the concept of religious practice, confining it
to "praying to God or studying the Bible". The fact is that the right
to freedom of religion also includes the freedom to demonstrate one's religion
or belief in public or in private by teaching, practice, worship and the
performance of rites. As a corollary to this statement, it seems that
persecution of the practice of religion can take various forms, such as a
prohibition on worshipping in public or private, giving or receiving religious
instruction or, the implementation of serious discriminatory policies against
persons on account of the practice of their religion. In the case at bar I feel
that the prohibition made against Jehovah's Witnesses meeting to practise their
religion could amount to persecution. That is precisely what the Refugee
Division had to analyze.
[18]
For
all these reasons, judicial review shall be granted and the matter referred
back for re-determination. There is no serious question of general importance
to certify.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
judicial review is granted.
2.
The
matter is referred back to another Panel of the Refugee Protection Division of
the Immigration and Refugee Board for re-determination in light of these
reasons.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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