Date: 20090611
Docket: IMM-5505-08
Citation: 2009 FC 603
Ottawa, Ontario, June 11, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SHUFENG
WANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Immigration and Refugee Board’s Refugee Protection Division
(RPD or Board), dated December 2, 2008, wherein the applicant was determined to
be neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Act.
[2]
The
applicant seeks an order pursuant to paragraph 18.1(3)(b) of the Federal
Courts Act setting aside the decision of the Board, rejecting the
applicant’s claim and referring the matter back to a differently constituted
Board for determination in accordance with such directions as the Court considers
appropriate.
Background
[3]
Shufeng
Wang (the applicant) is a citizen of the Peoples Republic of China. He claims
refugee protection because he fears persecution because he is a Christian and
was a member of an underground Christian church in China.
[4]
The
applicant and his friend bought a business together in March 2005, in which the
applicant invested all his family savings. Within two months, the business
failed and he lost everything. His wife was very upset with him, and he became
depressed and suicidal.
[5]
The
applicant’s friend, Mr. Zhidong Zhang, came to visit and spread the Gospel to
applicant. The applicant began to believe in the teachings that Mr. Zhang
shared with him, and shortly thereafter started to attend the underground
church with Mr. Zhang in June 2005. He was baptized by Pastor Jinrui Sun in
February 2006.
[6]
The
applicant came to Canada on September 17, 2006 for the International
Congress of Traditional Medicine. In October 2006 he received a call from his
wife that the police in China came to his home to search it and
threatened her to call him back to China and turn himself in.
The applicant also heard from his wife that the underground church was raided
and his Pastor and two members were arrested. The applicant subsequently made his
claim for refugee status on October 17, 2006.
Board’s Decision
[7]
The
Board rejected the applicant’s claim for refugee protection. Although the
applicant is a Christian, he did not satisfy the Board that there would be a
serious possibility that he would be persecuted, or that he would be subject to
a danger of torture or a risk to his life, or a risk of cruel and unusual
treatment or punishment by any authority in China.
[8]
The
Board found that the applicant was credible, and that the applicant was a practicing
Christian in China, and continues his practice of Christianity in Canada.
[9]
The
Board found that although persecution of Christians in China does exist,
the applicant’s subjective fear is not supported by the documentary evidence.
The Board found that mere members of house churches are not targeted. Rather,
the Board found that the documentary evidence supports his finding that it is
mainly leaders and pastors of churches that are subject to persecution.
[10]
The
Board also found that the applicant did not provide any evidence to support his
claim that attending a registered state church would put the Chinese Government
and the Communist Party above God.
[11]
The
Board found that there is not an impediment to the applicant practicing his
religion in the Patriotic church, and no evidence that he would face
persecution if he did so.
Issues
[12]
The
applicant raises the following issues:
1. In
determining that the applicant was a genuine practising Christian in China but
that his fear of persecution in that country was not objectively supported by
the documentary evidence, did the Board err in basing its decision on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it?
2. In
finding that there was no impediment to the applicant being able to practise
his faith freely in the government sanctioned church (Patriotic Church), did the
Board err in basing its decision on an erroneous finding of fact that it made
in a perverse or capricious manner or without regard for the material before
it?
[13]
I
would rephrase the issues as follows:
1. What is the standard
of review?
2. Did the Board err in
basing its decision on erroneous findings of fact: that his fear of persecution
was not supported by the evidence; and that he would be able to practice his
faith freely in the Patriotic Church?
Applicant’s Submissions
[14]
The
applicant submits that the Board erred by making two determinative erroneous
findings of fact that are not supported by the documentary evidence.
[15]
The
Board made selective use of the documentary evidence by disregarding portions
of the evidence that supported the applicant’s claim.
[16]
Relying
on selective documents and portions of documents, the Board found that the
arrests made by police in China were concentrated on church leaders and
prominent members, not ordinary members such as the applicant.
[17]
The
Board failed to mention why it did not rely on or consider the contradictory
evidence:
Ordinary underground church members can
also easily become targets of official crackdowns. Once a person has been
rounded up in a church raid, he will be known to local officials, who will also
mark him as a recidivist if he pops up in future raids. Leaders require
followers, and if ordinary Christians are too intimidated to turn up for
religious gatherings, the leaders can’t accomplish much. So where Christianity
is regarded as a problem, ordinary practitioners are considered an integral
part of the problem.
[18]
The
applicant submits that the Board misconstrued the evidence before it. The Board
cited the US Department of State: International Religions Freedom Report
2007, to say that house church leaders are the focus for arrests. However,
in the same document the evidence states:
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.
[19]
The
Board also erroneously found that the applicant would be able to practice his
faith at the Patriotic Church in China. This
finding is contrary to the evidence before the Board in the Response to
Information Request No. CHN102494.E.
[20]
The
applicant relies on the finding in Song v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 1668, wherein Mr. Justice
Russell found, on similar facts, that the Board erred by making erroneous
findings of fact regarding the ability of that applicant to practice his
religion freely in China. At paragraph 71, Mr. Justice Russell states:
The
Board asserts that "[t]here is no evidence that registered church members
are constrained from practicing their religion freely." Yet there was
ample evidence before the Board that religion is not practiced freely within
registered churches in China and that members of underground churches
are persecuted. This is not a question of a mixed bag of contrary evidence that
has to be weighed and assessed by the Board. A China Aid article cited by the
applicant makes it clear that "the state is the heard of the Church"
and that "religious messages are to be made 'compatible with
socialism.'" This means that "Pastors are discouraged from preaching
about Jesus' divinity, miracles or resurrection, so that believers and
non-believers can be united together to build a prosperous Socialist
China":
As
a result, more and more believers abandoned TSPM churches and began meeting in
their homes. Most Christians are now in house churches. They preach, worship
and evangelize, risking the loss of jobs and homes, arrest, imprisonment,
torture and death....
Respondent’s Submissions
[21]
The
respondent submits that according to Florea v. Canada (Minister of
Employment and Immigration) [1993] F.C.J. No. 598 (C.A.); Ortiz v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 1163; and Ali
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 242, the
Board is presumed to have taken all of the evidence into consideration, whether
or not all the evidence has been cited in the reasons. The Board does not err
by failing to refer to all of the evidence.
[22]
The
Board reviewed and accepted the applicant’s subjective fear of persecution; the
Board also accepted that the persecution of Christians does exist in China. However,
the Board did not conclude that there was any source in the documentary
evidence to provide support of a serious possibility of an objective fear of
persecution.
[23]
The
respondent submits that the Board did not err when it found that the applicant
did not provide any evidence that he would not be able to practice his faith
because the Patriotic Church
places the government above God. The respondent quotes from the report cited by
the applicant that:
[i]nformation on whether the Chinese Patriotic Churches
(either Catholic or Protestant) pledge their loyalty to the Chinese Communist
Party first, as opposed to God or Jesus, could not be found among the sources
consulted by the Research Directorate.
Analysis and Decision
[24]
Issue
1
What is the standard of
review?
The standard of review for a
decision based on fact finding is reasonableness. As I stated
in Diaz v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 1543 “[F]actual
findings attract a high standard of deference”. In numerous pre-Dunsmuir decisions, this Court has held that the
appropriate standard of review was patent unreasonableness (Soosaipillai v. Canada (Minister of Citizenship and Immigration), [2007]
F.C.J. No. 1349), which has collapsed to the standard of reasonableness” as in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9.
[25]
Mr.
Justice Blanchard in Thamotharem v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 8 at paragraph 16, found that
findings related to the risk of persecution and country conditions are subject
to the standard of patent unreasonableness. He quotes the Supreme Court of Canada in Mugesera
v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 100:
On
questions of fact, the reviewing court can intervene only if it considers that
the IAD "based its decision or order on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it" (Federal
Court Act, s. 18.1(4)(d)). The IAD is entitled to base its decision on
evidence adduced in the proceedings which it considers credible and trustworthy
in the circumstances: s. 69.4(3) of the Immigration Act. Its findings are entitled to great
deference by the reviewing court. Indeed, the FCA itself has held that the standard of review as regards issues
of credibility and relevance of evidence is patent unreasonableness: Aguebor
v. Minister of Employment & Immigration
(1993), 160 N.R. 315, at paragraph 4.
In Dunsmuir above, the Supreme Court
taught that if there is adequate jurisprudence determining the standard of
review, then no analysis is required. Dunsmuir above, also
reduced the three standards of review into two standards: reasonableness and
correctness.
[26]
Therefore,
in this case, on matters of the Board’s findings of fact with regard to the
risk of persecution and country conditions, the appropriate standard of review
is reasonableness.
[27]
The
Supreme Court stated in Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, at paragraph 59:
There
might be more than one reasonable outcome. However, as long as the process
and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.
[28]
Issue
2
Did the Board err in basing
its decision on erroneous findings of fact: that his fear of persecution was
not supported by the evidence; and that he would be able to practice his faith
freely in the Patriotic Church?
I agree with Mr. Justice
Russell on this issue. There are factual similarities to Song above, to
the extent that the same conclusions can be drawn. The Board has clearly made
erroneous findings of fact, with complete disregard to the documentary evidence
before him.
[29]
The
quote cited above by the respondent, is contrasted by the sentence prior to that
particular statement. The report states that the Chinese government has in fact
cut off contact between the clergy of the Catholic Church and the Vatican. This proves
the statement following that the information regarding the Chinese Patriotic
Churches is not available. Furthermore, the statement following the sentence
cited above by the respondent, the Response to Information Request No.
CHN102494.E states:
According
to the US International Religious Freedom
Report 2006, in certain areas of China, the relationship between registered and
unregistered churches is "tense" (US 15 Sept. 2006, Sec. 3). The
report notes that, for example, divisions are thought to exist within and
between the official Protestant church and unregistered house churches concerning
issues related to doctrine
[30] The respondent is
reading the reports as selectively as the Board did. As such, I do not accept
this argument and I reject the Board’s findings as unreasonable given the
conflicting documentary evidence. The Board was compelled to address the conflicting
evidence and it did not (see Flores v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 565).
[31]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for redetermination.
[32]
Neither party wished
to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The following provisions of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 are pertinent.
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96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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