Date: 20091125
Docket: IMM-1674-09
Citation: 2009 FC 1210
Ottawa, Ontario, November 25, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
GUO
HENG ZHOU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the decision made by Stephen Rudin, a Member
of the Refugee Protection Division (“RPD”), dated March 11, 2009. The RPD
determined that the applicant does not face a serious possibility of
persecution based on his Christianity and is neither a Convention refugee nor a
person in need of protection within the meaning of ss. 96 or 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).
I. FACTS
[2]
The applicant,
a citizen of China, was a farmer in the
Guangdong province before coming to Canada.
After his father and his mother passed away in 2003 and 2006 respectively, the
applicant was sad and was questioning the meaning of life. A friend introduced
him to Christianity in April 2006.
[3]
In May
2006, the applicant joined the house church his friend belonged to, and began
to attend services on Sundays with a group of eleven others. He was told by his
friend that the house church was illegal, but was given assurances that
precautions were in place to avoid the house church’s discovery. The group read
the Bible, discussed it, and prayed silently. There was no singing or religious
symbols at these services.
[4]
On
November 22, 2006, the applicant alleges that he received a phone call from his
friend telling him that the Public Security Bureau (“PSB”) had approached two
members of his house church while they were preaching. His friend managed to
escape because he was a lookout, but the two individuals had been arrested.
[5]
The
applicant went into hiding at the suggestion of his friend. While in hiding,
his uncle who lives next door informed him that the PSB came to look for him a
number of times, inquired regarding his whereabouts, searched his house but had
left no summons.
[6]
Feeling
that he was no longer safe in China, the applicant arranged with
a smuggler to come to Canada. He arrived in Canada on January 1, 2007 and
applied for refugee protection on January 4, 2007. He joined the Living Stone Assembly Church upon arrival, and was
baptized on April 7, 2007. He claims that the PSB has made 10 to 15 visits to
his house between November 2006 and October 2008, and continues to do so.
II. THE IMPUGNED DECISION
[7]
The RPD
Member accepted that the applicant was a practicing Christian as a member of a
house church in China and that he continued his
practice in Canada. However, he found that the
applicant did not face a serious possibility of being persecuted should he
return to China. He determined, on a balance
of probabilities, that the applicant would not be prevented from practising his
religion at a registered church if he were to return to China, that his house
church was not discovered, and that the PSB would not continue to search for
him.
[8]
The RPD
Member began by noting that the applicant had no religious background, knew
that the house church was illegal when he joined, and was aware of the
potential consequences of discovery. The applicant was also aware that a
registered church existed but did not consider attending because the church was
located too far from his house. The other reason raised by the applicant for
not attending a registered church was that he was told it conflicted with his
church’s values and beliefs. However, he did not investigate the alleged
contradictions himself.
[9]
The RPD
Member then acknowledged the existence of persecution towards house churches in
China and relied in particular on
the report of the China Aid Association, according to which there has been an
increase in persecution of house churches in 2007. According to this report,
there are four main targets of persecution: house church leaders, house
churches in urban areas, Christian publications and foreign Christians and
missionaries living and working in China.
[10]
The RPD
Member also referred to the Hong Kong Christian Council, which stated that the
province of Guangdong (where the applicant lived)
has “the most liberal policy on religion in China, especially on Christianity”. The
Executive Secretary of that association is reported to have met with local
authorities and to have expressed the view that they usually tolerate
activities of unregistered Christian groups, except if they have links with
groups from outside China. He further indicated that
those who have been targeted or arrested are considered “heretical” by many
Christians. The RPD Member preferred the Hong Kong Christian Council’s evidence
to that of the more critical organization called Human Rights in China, because
the Executive Secretary of the Hong Kong Christian Council provided details and
personal knowledge, and because his assessment that the enforcement of
religious regulations is stricter in urban areas than in rural areas is
corroborated by the documentation.
[11]
The RPD
Member then explained that religious persecution of Protestant house churches
varies significantly from region to region, and depends on factors such as: whether
there are close links with the West; evangelization; membership growth to
become large-scale congregations; arrangements for regular use of facilities; whether
an individual is a leader; and whether it is a rural or urban area. Based on
the fact that the documentation presented originates from a large number of
different commentators ranging from foreigners living in China, religious
organizations and non-governmental organizations, as well as activists around
the country, the panel concluded that it was reasonable to expect that there
would be persuasive evidence of house churches being raided and individuals
being arrested if such actions indeed occur.
[12]
The RPD
Member recognized the existence of information on religious persecution in
China, but concluded that it is not a serious possibility in the applicant’s
case, because he was just a member and did not hold any leadership role, because
the meetings were held among friends and family in homes, because the group is
small and has not forged links with the West, and because the group is located
in a province which has one of the most liberal policy on religion in China.
[13]
Finally, the
RPD Member referred to the documentation according to which state authorities
interfere in doctrinal decisions in registered churches, but found that there
was no solid evidence supporting such an assertion.
[14]
For all of
these reasons, the RPD Member concluded that in the particular circumstances of
the applicant, the documentary evidence did not support that there is a serious
possibility that he would be persecuted because of his religious belief, even
if the RPD Member accepted that persecution of Christians does exist in China. In coming to this conclusion, the RPD
Member placed more weight on the documentary evidence than on the applicant’s
testimony, as the documentary evidence is gathered from a variety of sources
that do not have a personal interest in the outcome of this case.
III. ISSUES
[15]
Counsel
for the applicant raised a number of issues with respect to the decision of the
Board. However, they all can be summarized in the following question: Did the
Board err in its assessment of the evidence, and more particularly, in its
finding that the applicant would not be subject to persecution upon being
returned to China?
IV. ANALYSIS
[16]
It is by
now well-established that the assessment of evidence and the weight to be given
to each piece of evidence are questions of fact that are within the expertise
of the RPD Member. They are accordingly reviewable under the standard of
reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9; Canada (Minister of Citizenship and
Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12; Ali v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1274, [2008] F.C.J. No. 1589. In applying this standard, the Court
cannot substitute its own appreciation of the appropriate solution to that of
the tribunal.
[17]
The
applicant first argues that there is a contradiction between a finding where
the panel determines that the applicant took various precautions to avoid the
PSB and yet concludes later that the PSB did not raid the gathering and are not
seeking the applicant. I have to agree with the respondent that these two
findings are not contradictory. Indeed, taking precautions in fear that
something might happen does not mean that it will necessarily happen.
[18]
The
applicant stated in his evidence that there were no religious symbols because,
as the applicant acknowledged, the home was not a church. The group had never
had any problems with the authorities before, and it had been operating since
early 2005. The evidence of the applicant in both his Personal Information Form
(PIF) and his oral testimony regarding the November 22, 2006 incident was that
the group was not raided. Although the group had subjective fear and took
precautions, there was no objective evidence to support this fear. The fact
that the PSB might have been concerned with people preaching publicly and
arrested them as a result had nothing to do with their involvement with a house
church. Moreover, the applicant had no personal involvement with the arrest of
these two persons, and his uncle would not tell him why the PSB was looking for
him. There were no warrants or summons left for him. There was, therefore, no
factual basis for the alleged contradiction.
[19]
The RPD Member
accepted that there was some religious persecution in China. But in light of the particular
circumstances of the applicant, the RPD Member found that the documentary
evidence did not support a serious possibility that he would be persecuted for
his religious beliefs. This is not a case where the documentary evidence was
preferred to the applicant’s evidence without providing any reasons. It is well
established that when a tribunal prefers the documentary evidence over an
applicant’s testimony, it must clearly explain why:
In this case, the Board never explicitly
states that it found the Applicant’s testimony not credible, but it does reject
his account of the raid on the house church, the existence of a warrant for his
arrest, and his testimony that three other members have been sentenced to
imprisonment for their membership in the house church and /or participation in
its activities. Its stated reasons for rejecting the Applicant’s evidence is
that it prefers the documentary evidence as not having “a personal interest in
the outcome of the hearing” (Board decision, p. 5). While this is a purported
“reason” for rejecting the Applicant’s evidence, it is one that this Court has
repeatedly found to constitute a reviewable error.
Han v. Canada (Minister of Citizenship and
Immigration),
2009 FC 978, [2009] F.C.J. No. 1186, at para. 21. See also: Chavarria v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1166, [2005]
F.C.J. No. 2173; Lin v. Canada (Minister of Citizenship and
Immigration),
2009 FC 254, [2009] F.C.J. No. 320.
[20]
In the
case at bar, the RPD Member explained its choice by the indirect source of the
applicant’s story, the absence of objective evidence, and because the situation
of the applicant did not correlate with the factors found in the documentation
that would put him at risk. The applicant had no leadership role, his
description of the church group meeting was consistent with Bible study groups
among friends and family that need not register, the group was small and no
forged links with the West, and the group was located in a province with a
liberal policy on religion. Thus, it cannot be said that the RPD Member offered
no explanation for preferring the documentary evidence to the testimony of the
applicant, however credible he was.
[21]
More
problematic is the finding that the applicant would not be prevented from
practicing his religion at a registered church. This finding is peculiar since
the panel noted in its reasons that the applicant would not want to practise at
the state church because it is against his religious beliefs. It is not
entirely clear what to make of this finding. Is the RPD’s statement meant to
imply that the applicant can attend the state church because there is no
doctrinal distinction between it and the underground church? Or does it
reflect a view that the applicant should practice his religion at state
sponsored churches despite his beliefs that these official churches do not
accurately reflect the Christian teachings? In either instance, the RPD’s
finding is seriously flawed.
[22]
The RPD
Member reviewed the documentary evidence with respect to the doctrinal
differences between the state church and the applicant’s underground church,
and came to the conclusion that there was no evidence of state interference. He
found:
The documentation with respect to whether
the registered church puts the CCP [Chinese Communist Party] above God makes
reference to interference in doctrinal decisions in registered churches. However,
no solid evidence supports this assertion. The article refers to “reports” but
provides no source information. It notes that protestant leaders “are
reportedly” not allowed to preach about the second coming of Christ or the Day
of Judgement, but provides no sources in support of that statement. The article
further notes that a former head of the Protestant Patriotic Association has
been campaigning for “theological reconstruction” which opposes Christian
beliefs, including justification by faith, the reliability of the Bible, and
the primacy of faith in Jesus as the sole path to salvation. However, there is
no evidence that this individual’s views represent government action, planned
or implemented.
Certified Tribunal Record, p. 10.
[23]
However,
there is clear evidence not only of theological differences between the
official churches and the underground churches, but also of state controls
registered churches in many ways. The U.S. Department of States International
Religious Freedom Report on China (2007) indicates, for example, that “[M]any
unregistered evangelical Protestant groups refused to register or affiliate
with the TSPM/CCC [Three-Self Patriotic Movement/Chinese Christian Council]
because they have theological differences with the TSPM/CCC” and that “[U]nregistered
groups also frequently did not affiliate with one of the PRAs [Patriotic
Religious Associations] for fear that doing so would allow government
authorities to control sermon content” (CTR., at p. 65). This report, it is
worth noting, has been termed reliable because if originates from a reliable
third party source.
[24]
Similarly,
we find in a Response to Information Request (CHN 102494.E, 27 April 2007) that
is included in the Board’s own documentary package that “[R]egistered religious
groups are required to provide the government with the names and contract
information of their leaders and members” (CTR, at p. 101).
[25]
The RPD cannot
simply ignore this documentary evidence. It was clearly relevant to the issue
the Board had to decide, which contradicted its findings. It is trite law that
“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"”: Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 at para. 17.
[26]
Moreover, the
dismissal of the evidence on the campaign for “theological reconstruction” by
the head of the Protestant Patriotic Association because there is no evidence
that it represents government policy is unfair. Had the applicant been advised
by the panel that it was going to make an issue of whether “theological
reconstructionism” is state policy and was not going to give weight to a
document that is part of the National Documentation Package, he could have
responded by ensuring that the State church’s own declaration of goals was
submitted at the hearing.
[27]
If, on the other
hand, the RPD was of the view that these differences were not significant and would
not prevent the applicant from practicing his religion by joining the official
church, it made a serious mistake. It is not for the Board to determine the
reasonableness of the applicant’s faith and how he should practice it. As the
Supreme Court said in Syndicat Northcrest v. Amselem, 2004 SCC 47,
[2004] S.C.J. No. 46 (at para. 39), “In essence, religion is about freely and
deeply held personal convictions or beliefs connected to an individual’s
spiritual faith and integrally linked to one’s self-definition and spiritual
fulfillment, the practices of which allow individuals to foster a connection
with the divine or with the subject or object of that spiritual faith”.
[28]
It was inappropriate
for the Board to question the genuineness of the applicant’s faith on the
ground that he had no previous religious background, and that he did not
investigate the conflict between Christianity and its practice in official
churches. The applicant was found credible, he continued his practice of
Christianity in Canada, and the authenticity of his beliefs were not a matter
for the Board absent evidence that his conversion to Christianity and his
preference for his unregistered church were somehow dictated by untruthful
motives. As I said in Chen v. Canada
(Minister of Citizenship and Immigration), 2009 FC 677, [2009] F.C.J. No. 1391:
28.
The only thing the Board purported to say on the subject was that if the
applicant wishes to practice his religion in China,
he could do so freely in a registered church “as vast and increasing numbers of
Chinese citizens now do without fear of persecution”. Not only is this finding
inappropriate, but it is also inaccurate. It is not for the Board to dictate
how the applicant should practise his faith. As can be seen from the
documentary evidence (and, in particular, from a Response to Information
Request dated 27 April 2007), some religious groups in China choose to remain
unregistered because registration involves being monitored by the government
and government sometimes interfere in doctrinal decisions of registered
religious groups. It is perfectly legitimate for the applicant to choose not to
join these official churches, if he considers that this is the only way to
remain true to his faith. Various reports indicate that the government of China does not allow the official Catholic Church to recognize
the authority of the Vatican, and denies many central dogmas of the
Catholic faith like the resurrection and the concept of individual salvation. It
was therefore unreasonable for the Board to conclude that the disagreements
between the patriotic church and the underground Christian church were of no
consequence, and to focus on the use of the same Bible to conclude that both
churches are the same, by and large. Not only is the evidence far from
conclusive on this subject, but in matters of faith, personal choices should be
paramount.
See
also: Zhu v. Canada (Minister of Citizenship and
Immigration), 2008 FC
1066, [2008] F.C.J. No. 1341.
[29]
It seems
to me the RPD also erred in equating the possibility of religious persecution
with the risk of being raided, arrested or jailed. This understanding of
religious freedom is quite limitated and does not take into account the public
dimension of this fundamental right. If one has to hide and take precautions
not to be seen when practising his or her religion, at the risk of being
harassed, arrested and convicted, I do not see how he or she can be said to be
free from persecution. As this Court said in Fosu v. Canada (Minister of Employment and
Immigration)
(1994), 90 F.T.R. 182, [1994] F.C.J. No. 1813:
5. 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.
[30]
For the
foregoing reasons, I am of the view that this application for judicial review
ought to be granted. Counsels have not proposed any question for certification,
and none will be certified.
ORDER
THIS COURT ORDERS that this application for judicial
review is granted. No question is certified.
"Yves
de Montigny"
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