Date: 20100513
Docket: IMM-4809-09
Citation: 2010 FC 525
Ottawa, Ontario, May 13,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
XIONG
YING HE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for the judicial review of the decision (the decision) of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated August 28, 2009. 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]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant is a citizen of China, from Fujian province,
who claims that if she returns she will be arrested and sent to jail because of
her membership in an unregistered house church. The Applicant claims she joined
the unregistered house church in 2007, that the church was raided by the Public
Security Bureau (PSB), that three of her fellow members were arrested, and that
the authorities visited the Applicant’s home, and the home of her family,
looking for her.
[4]
The
Board found that the Applicant had not been a member of an unregistered Church
in China and that the
authorities were not looking for her. The Board stated it came to this
conclusion based upon the fact that the documentary evidence did not provide
persuasive evidence that Protestant house churches were being raided and
members detained, the inconsistencies in the Applicant’s story, the lack of an
arrest warrant or summons, and negative credibility inferences due to the
presentation of inconsistent documentation.
[5]
The
Board accepted that the Applicant is a regular attendee of a Christian Church
in Canada. At the end
of its reasons, the Board also stated that the Applicant would be able to
practice Christianity in a registered Church in China without any
doctrinal constraints.
II. Issues
and Standard of Review
[6]
The
Applicant argues that the Board erred with regard to its credibility findings,
its assessment of the evidence, and in expressly stating that the Applicant
could attend a state sanctioned Church without compromising her beliefs.
[7]
The
issues raised in this matter relate to the factual findings of the Board and
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; Zhou v. Canada (Minister of
Citizenship and Immigration), [2009] F.C.J. No. 1502; 2009 FC 1210).
[8]
As
set out in Dunsmuir and Khosa, 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. In applying this standard, the Court cannot substitute its own
appreciation of the appropriate solution for that of the tribunal.
[9]
I
also note that the Court is to demonstrate significant deference to Board
decisions with regard to issues of credibility and the assessment of evidence
(see Camara v. Canada (Minister of Citizenship and Immigration), 2008 FC
362; [2008] F.C.J. No. 442 at paragraph 12).
III. Analysis
A. Credibility
[10]
The
Applicant argues that the Board erred in drawing negative credibility
inferences from the birth certificates she provided for her alleged children
and the Board found to be unreliable, and an inconsistency in her testimony
with regard to when the PSB had last visited her home. The Applicant states
that as the birth certificates are not related to the central issue of
religious persecution and therefore the Board erred by failing to deal with the
two issues separately. The Applicant further states the Board’s credibility
findings on this point are unreasonable as she provided an explanation for the
inconsistency with regard to when the PSB had last visited her home.
[11]
The
Board may draw a general credibility inference from specific evidence provided
by the Applicant, such as the birth certificates. Therefore, the Board’s
general negative inference drawn from the unreliable documents provided by the
Applicant was reasonable.
[12]
While
it is open to the Applicant to provide explanations to any inconsistencies,
contradictions and omissions in the evidence, it remains open to the Board to
consider the response and determine whether it was sufficient (see Sinan v. Canada (Minister of
Citizenship and Immigration), 2004 FC 87; [2004] F.C.J. No. 188 at
paragraph 10). On this record, the Board’s credibility determination was
reasonable. I agree that the Board’s reliance on the inconsistency of when the
PSB had last visited the Applicants home was microscopic (see Attakora v. Canada (Minister of
Employment and Immigration), 99 N.R. 168; [1989] F.C.J. No. 444). However,
on a whole, the Board’s credibility decision was reasonable.
[13]
The
Applicant also argues that the Board erred in stating that arrest warrants
would normally be given to a family member in such cases and by using the lack
of an arrest warrant or summons as a partial basis for the decision. The
Applicant cited documentary evidence indicating that procedures are not
standard across the PSB.
[14]
The
Board based its decision on documentary evidence that in many cases warrants or
summons are normally left. It was up to the Applicant to introduce into
evidence all the material to establish that her claim was well-founded and a
lack of relevant documents can be a valid consideration for the purpose of
assessing credibility (see Syed v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 357; 78 A.C.W.S. (3d) 579, see also Sun
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1255; [2008]
F.C.J. No. 1570). In this case the Board’s decision was reasonably open to it.
B. The
Documentary Evidence
[15]
The
Applicant states that the Board erred in its consideration of the documentary
evidence in two ways.
[16]
First,
the Applicant argues that the Board erred in its consideration of the objective
documentary evidence by failing to recognize that lesser forms of persecution,
such as inhibiting the Applicant’s right to practice her religion through fines
and harassment, also fit the definition of persecution.
[17]
The
Applicant supports this position with the case of Fosu v. Canada (Minister of
Employment and Immigration), 90 F.T.R. 182; 27 Imm. L.R. (2d) 95. In Fosu,
Justice Pierre Denault found that persecution of the practice of religion can
take various forms, such as a prohibition on worshipping in public or private,
and in that case, the ban of the Applicant practicing his religion in public
had resulted in the prohibition reaching the level of persecution. Another
important finding in Fosu was that the Applicant was credible.
[18]
In
this case, the Applicant was not found to be credible and the Board reasonably
found that the Applicant had not been a member of an illegal house church in China. Therefore,
the Board did not err in not determining if the alleged religious restrictions
rose to the level of persecution.
[19]
Second,
the Applicant argues that the Board erred by relying on objective documentary
evidence and not considering the Applicant’s specific testimony, relying on Lin
v. Canada (Minister of
Citizenship and Immigration), [2009] F.C.J. No. 320; 2009 FC 254. However,
in this case, the Board had made a negative credibility determination against
the Applicant. Therefore, on this record, it was not unreasonable for the Board
to not consider her specific testimony further.
C. Ability
to Practice in a Registered Church
[20]
At
paragraphs 20 to 21, the Board stated that the Applicant could practice
Christianity in the registered churches in China without any
doctrinal constraint on the practice of a genuine Christian. The Applicant
argues that the Board erred by finding that the state does not constrain the
doctrine of registered churches and misconstrued the evidence before it on this
point.
[21]
The
Court has previously addressed this issue. For example, in Zhou, above,
Justice Yves de Montigny found that the Board erred by not considering
contradictory documentary evidence on the ability of Christians to worship in
registered churches. In Song v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1321; 76 Imm. L.R. (3d) 81,
Justice James Russell held that the Board erred and disregarded evidence when
it stated "[t]here is no evidence that registered church members are
constrained from practicing their religion freely" (see paragraphs 71-72).
[22]
However,
for the following reasons the decision of the Board in this matter was
reasonable.
[23]
In
Yu v. Canada (Minister of Citizenship and Immigration), 2010 FC 310;
[2010] F.C.J. No. 363, Justice Russel Zinn dismissed an application for
judicial review even though he found that the Board’s determination that the
Applicant could freely practice in a registered Church was unreasonable. At
paragraph 36, Justice Zinn stated that while the Board erred in its finding
that the applicant could freely practice his religion at a patriotic church in China, it does not
automatically follow that the decision must be set aside.
[24]
While
the Board’s decision with regard to the Applicant’s ability to practice her
religion in a registered church was unreasonable in this case, it does not
undermine the decision as a whole. The Board had previously found that there
was no persuasive evidence that Protestant house churches were being raided and
members detained in the Applicant’s home province of Fujian and that the
authorities were not seeking her for such membership. It flows from this
finding that, on the balance of probabilities, the Applicant would be able to
return to Fujian and practice
her religion.
[25]
Therefore,
the result that there was not a serious possibility that the Applicant would be
persecuted or that she would be subjected personally to a danger of torture or
to a risk to his life, or a risk of cruel and unusual treatment or punishment
should she return to her country of origin was a reasonable conclusion. As
such, the denial of the Applicant’s refugee claim was reasonable and should not
be set aside.
[26]
Each
case is different and is composed of a unique documentary record and one should
be cautious in applying country findings from one decision of this Court to
another (see Yu, above, at paragraph 22). The Court must determine if
the findings that are unreasonable, viewed cumulatively, undermine the decision
as a whole (see Song, above, at paragraph 75).
[27]
Finally,
in Liao v. Canada (Minister of Citizenship and Immigration), 2008 FC
1043; [2008] F.C.J. No. 1326, Justice Max Teitelbaum considered a decision
where the Board found, inter alia, that the Applicant could practice Christianity
in a state church. Deputy Judge Teitelbaum held at paragraph 10:
[10] I agree with the
respondent that there are no findings in the decision of the RPD which are
perverse, capricious or based on a misapprehension of the evidence before it.
The applicant asks this Court to reweigh the evidence and come to an opposite
conclusion. This is a judicial review, not an appeal. The decision of the RPD
was open to it on the evidence before it and I am satisfied that the Court
should not intervene.
[28]
Based
on the Supreme Court’s decisions in Dunsmuir and Khosa, above,
the Board’s decision, on a whole, was reasonable and it is not the role of this
Court to intervene.
[29]
The
parties did not raise an issue for certification and none arose.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1. this application is dismissed;
and
2. there is no order as to costs.
“ D.
G. Near ”
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