Date: 20111213
Docket: IMM-2018-11
Citation: 2011 FC 1410
Ottawa, Ontario, this 13th
day of December 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
YUAN JI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
On
March 21, 2011, Yuan Ji (the “applicant”) filed the present application for judicial
review of the decision of R.S. Garner, member of the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”). The Board determined that the applicant was not a Convention
refugee or a person in need of protection under sections 96 and 97 of the Act.
[2]
The applicant
sought refugee protection under section 96 and subsection 97(1) of the Act by
reason of his fear of persecution for his religious membership in an
underground Christian church in his home province of Fujian, China.
[3]
According
to the applicant, in July 2007, he attended his first underground church
service with a friend in order to counter his addiction to internet gaming.
After his first service, he would have continued to regularly attend these services.
The applicant further alleges that having successfully countered his addiction
and consequently improved his grades, his father took him on a trip. During
this trip in 2008, he visited Canada in July. Prior to returning to China as initially planned
on July 22, 2008, he would have called his mother back home who would have informed
him that the Public Security Bureau (PSB) had come to the house looking for him
due to his illegal house church activities. Consequently, while his father
returned to China as planned, the applicant decided to remain in Canada and claim refugee
status for he allegedly feared for his safety.
* * * * * * *
*
[4]
In
its decision, the Board concluded that the applicant was not a refugee nor a
person in need of protection based on its findings of credibility.
[5]
The
Board began by making various findings of fact supported by the documentary
evidence and explained why it did not consider the applicant to be credible,
before ultimately rejecting his claim.
[6]
The
applicant attacks the Board’s decision due to its findings of fact. These
factual determinations are owed deference (Canada (Minister of
Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 [Khosa]),
particularly with regards to the Board’s assessment of the evidence and
credibility (He v. Minister of Citizenship and Immigration, 2010 FC 525
at para 9 [He]). In reviewing the Board’s findings of fact, this Court
must apply a standard of reasonableness, thereby determining whether the
Board’s findings fall within the “range of possible, acceptable outcomes that are
defensible in respect of the facts and the law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at
para 47 [Dunsmuir]; He at para 8).
* * * * * * *
*
[7]
Firstly,
the applicant claims the Board erred in drawing a negative inference from the
absence of summonses left by the PSB because the documentary evidence states
that this was not usual practice in the applicant’s region: the PSB would not
usually leave summonses with family members.
[8]
In
this regard, the Board concluded that, despite the applicant’s assertion that
the PSB came looking for him 10 to 13 times after its initial visit in July
2008, it is unlikely that the PSB is actually looking for him because no
credible documents were left by the PSB, such as warrants or summonses.
Although certain sources identified by the applicant explain that it is
uncommon for the PSB to leave such documents with family members, the Board
goes on to consider a further document indicating that summonses can be left
with family members. Moreover, the Board doubts the veracity of the applicant’s
Jail Inmate Visitor’s Card that he produced in evidence, claiming his friend
who introduced him to Christianity was, as a result of his religious beliefs,
incarcerated for 36 months. In the Board’s view, if this friend would truly
have been incarcerated because of his membership in the underground church, the
PSB would have left summonses with the applicant’s family.
[9]
While
this Court may have come to a different decision in determining whether the PSB
was actually looking for the applicant, it cannot substitute its own view for
that of the Board’s: the Board’s finding was reasonable. The Board’s finding
was justified, transparent and intelligible (He at para 8; Dunsmuir
at para 47). The Board mentions all the documentary evidence in its reasons,
including the document stating that the PSB does not usually leave summons with
family members, and then concluded that the authorities were most likely not
looking for the applicant. The Board was granted the authority to make such
findings and deference is owed. This same level of deference is owed when
reviewing the Board’s evaluation of the applicant’s religious beliefs.
[10]
Secondly,
the applicant claims that the Board’s conclusion that he was not a genuine
practicing Christian was unreasonable because the Board based its determination
on an assessment of the applicant’s knowledge and not his religious conviction.
[11]
In Syndicat
Northcrest v. Amselem, [2004] 2 S.C.R. 551 [Amselem], religion is
defined as a deeply held personal conviction or belief. It is the sincerity of
the belief that matters, not whether the belief or practice is required in the
opinion of religious officials. Courts are qualified to inquire into this
sincerity as a question of fact (Amselem). Credibility can affect the Court’s
finding of fact: “sincerity of belief simply implies an honesty of belief and
the court’s role is to ensure that the presently asserted belief is in good
faith, neither fictitious nor capricious and that it is not artifice” (Amselem
at paragraphs 51 and 52).
[12]
Moreover,
courts and tribunals must not apply too high a standard in assessing religious
conviction. In Ullah v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1918
(T.D.) (QL), it was not an error for the Board to evaluate an individual’s
level of religious conviction based on the latter’s knowledge of the religion.
Rather, the Board erred in assessing the applicant’s knowledge at a higher
standard than was appropriate, rendering its negative findings of credibility
unreasonable: the Board seemed to have expected the applicant’s answers to
questions of religious practice to be equivalent to the Board’s own knowledge
(at paragraph 11).
[13]
Therefore,
it is not an error for the Board to consider the applicant’s level of knowledge
of Christianity in assessing the sincerity of his religious beliefs. The respondent
believes the Board did not err in its assessment because it considered the applicant’s
submissions and considered his answers to be based on memory, not faith: there
was supposedly no “genuine feeling”. I agree.
[14]
Lastly,
the applicant claims the Board erred in concluding that there was no
possibility of religious persecution in Fujian based on the applicant’s failure to cite at
least one incident of persecution since 2006.
[15]
The
Board did consider the evidence before it, as stated in its reasons, and
explained that it considered evidence to be lacking to prove the applicant’s
fear of persecution because incidents had been documented in other regions of China.
[16]
In Yang
v. Minister of Citizenship and Immigration, 2011 FC 811 [Yang], the
Board concluded there was no fear of persecution, despite the existence of
documents that referred to the closure of house churches in Fujian. The Court found the
Board’s conclusion to be reasonable because it had explained why it chose to
attach little weight to these documents, unlike in Liang v. Minister of
Citizenship and Immigration, 2011 FC 65, where the Board had not considered
the documents at all (Yang at para 25).
[17]
Moreover,
in Lin v. Minister of Citizenship and Immigration, 2010 FC 108 [Lin],
the Board’s conclusion was also reasonable because the lack of documentation
regarding religious persecution in Fujian was not the only basis for the Board’s
conclusion (at para 24). Rather, lack of documentation, combined with the
applicant’s diminished credibility and the documentary evidence describing
characteristics of churches likely to be raided (including size), was
sufficient to support the Board’s finding of fact that there was no risk of persecution
(at para 25).
[18]
As
in Yang, the Board in the case at bar explained why it did not attach
weight to documents regarding house churches and persecution: it wanted
evidence of recent persecution. Even if the Board had failed to consider
evidence of the destruction of a single house church, this one incident alone
would not necessarily have been sufficient to make the Board’s decision
unreasonable (Lin at paragraph 28).
[19]
In
sum, the Board’s decision falls within the “range of possible, acceptable
outcomes that are defensible in respect of the facts and the law” (Dunsmuir
at paragraph 47).
* * * * * * *
*
[20]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[21]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of the Immigration and Refugee Board determining that
the applicant was not a Convention refugee or a person in need of protection
under sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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