Date:
20130813
Docket:
IMM-4350-12
Citation:
2013 FC 866
Ottawa, Ontario,
August 13, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
XIAO DAN ZOU
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a member of the Immigration and Refugee Protection Board of Canada
(the Board) dated April 17, 2012, wherein the applicant was determined to be
neither a Convention refugee within the meaning of section 96 of the Act nor a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant seeks an order of certiorari to quash the
decision of the Board and an order of mandamus compelling the Board to
grant a new hearing.
Background
[3]
The
applicant is a citizen of China. She came to Canada after the Public Security
Bureau (PSB) searched her boyfriend’s home and found bibles and a cross. The
PSB went to her home on February 1, 2010. While there, the PSB searched her
home and questioned her parents.
[4]
On
May 7, 2010, the PSB appeared at her house for the fourth time and showed an
arrest warrant to her parents. Since being in Canada, the applicant has been
informed that on September 22, 2010, her boyfriend was sentenced to two years
and three months at a labour camp for reeducation.
[5]
The
applicant traveled through Bangkok, Paris and possibly Mexico on her way to Canada. She traveled on a passport that was red in colour when making this
journey. She was unaware of any other details relating to this travel document.
[6]
The
applicant alleges that on May 7, 2010, her parents were threatened with arrest
by the PSB if they did not report her whereabouts. No evidence was presented
that they had been arrested.
The Decision
[7]
The
Board noted numerous issues with the applicant’s story. These include:
- The
applicant was unaware why the PSB came to her home;
- The
applicant could not prescribe a motive for why the PSB came to her home;
- The
applicant did not raise the raid on her boyfriend’s home when asked about
the January 30th visit by the PSB to her and her parents’ home.
[8]
Based
on these inconsistencies, the Board concluded that the authorities never
visited the applicant’s home to seek her.
[9]
The
Board then examined the documentary evidence as it relates to Christianity in Fujian Province. The evidence indicates that there are 16 million people affiliated with
the official church and between 50 and 70 million in the non-state sanctioned
churches. The State Administration for Religious Affairs (SARA) states that
friends and family holding meetings at home need not register with the
government.
[10]
The
Board stated that the documentary evidence points to a large discrepancy in the
treatment of house churches. Rurally, hundreds of members may attend without
interference while in urban areas, only a few dozen may attend without interference.
House churches faced more risk if their membership grew and they arranged for
regular use of facilities or forged links with other groups or co-religionists
overseas.
[11]
Documentation
also pointed to the government harassing, detaining, fining, mistreating and
imprisoning members and leaders of unregistered Protestant groups.
[12]
The
Board indicated that the China Aid Association (CAA) is a good source for
reports on persecution of Chinese Christians.
[13]
The
CAA report made reference to an event in 2010 where one individual was detained
and three meeting sites were sealed. The Board member indicated he was unable
to assess the context of the 2010 incident due to the lack of details in the
report.
[14]
The
Board did note that while religious persecution does occur, it is not general
in nature. There are factors that point to an increased likelihood of state
scrutiny and detention. These factors include close ties to the west,
evangelization, membership growth, arrangements for regular use of facilities,
whether there is an individual leader and rural or urban locations.
[15]
The
Board drew an inference from the 50 to 70 million person membership of the
Protestant church that the persecution is minimal.
[16]
The
Board stated that no persuasive evidence was presented that individuals who
have evangelized in Fujian Province have faced persecution. The Board concluded
that the applicant has not satisfied her burden of establishing a serious
possibility that she would be persecuted or that she would be personally
subjected to a risk to her life or a risk of cruel and unusual punishment or
treatment or a risk of torture.
Issues
[17]
The
applicant submits the following issue:
Did the Board err in relying
on documentary evidence regarding the consequences of practicing Christianity
in Fujian Province in preference to the applicant’s written and oral evidence?
[18]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[19]
With
respect to the applicant’s omission of the January 30th incident, the
applicant’s answer was consistent. She stated she was unaware that the January
30th incident was what the Board was asking for. The Board found that the
explanation given was not satisfactory but failed to explain why.
[20]
Alternatively,
the applicant submits that the Board contradicted itself in its reasons. The Board
concluded that there is “ … no persuasive evidence that individuals who have
evangelized in Fujian have faced any sort of persecution” despite stating that
“What is clear to the panel is that in China, religious persecution of
Protestant “house churches” does occur, …”.
[21]
The
applicant submits the Board has a duty to provide adequate justification for
rejecting documentary evidence in support of the claims of an applicant. As
well, the applicant submits that an absence of recent persecution does not
prove a lack of persecution.
[22]
The
applicant states that the Board should not have presumed to understand the correlation
between the availability of evidence and the factual prevalence of religious
persecution.
[23]
Finally,
the applicant submits that for the Board to fail to mention and analyze
important evidence is an unreasonable error.
Respondent’s Written Submissions
[24]
The
respondent submits that the standard of review for this decision is
reasonableness. The respondent also states that the Court should not intervene
provided that the decision falls within a range of possible acceptable outcomes
defensible in respect of the facts and law.
[25]
The
respondent further submits that the Board may make reasonable findings based on
common sense and rationality. The applicant’s failure to recollect the events
that allegedly caused her to come to Canada enabled the Board to draw a
reasonable inference of impropriety.
[26]
Alternately,
the respondent submits that the documentary evidence makes no mention of
difficulty in Fujian Province despite making specific mention in other
provinces. As well, it was open to the Board to draw a negative inference from
the omission from her testimony of the reason for the police visit.
Analysis and Decision
[27]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[28]
The
standard of review of a Board’s decision has been determined to be a question
of mixed fact and law reviewable on a reasonableness standard (see Sugiarto
v Canada (Minister of Citizenship and Immigration), 2010 FC 1326 at paragraph
10, [2010] FCJ No 1676).
[29]
Reasonableness
is concerned with “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 47).
[30]
Issue 2
Did the
Board err in rejecting the applicant’s claim?
The facts of the present
case are similar to those repeated by Mr. Justice Russel Zinn in Yu v Canada
(Minister Citizenship and Immigration), 2010 FC 310, [2010] FCJ No 363.
Both cases involve Christian house church members in Fujian Province who fled and alleged that they feared persecution by the PSB. The applicant’s story is
remarkably similar to the story in Yu above. The house church was
raided, the applicant went into hiding and his family was harassed by the PSB
the next day.
[31]
The
Board in Yu above, based the decision on alternative and additional
factors that were not raised in this application. The result however was the
same. Two issues from Yu above, are the same as in this application:
1. Whether the Board
erred in preferring a lack of documentary evidence over the applicant’s
otherwise credible evidence; and
2. Whether the Board
erred by misconstruing evidence and by ignoring relevant evidence in finding
that there are no incidents of arrest in Fujian Province.
[32]
Mr.
Justice Zinn refined these issues and dealt with them as one issue; whether the
Board erred in relying on documentary evidence regarding the consequences of
practicing Christianity in Fujian Province in preference to the applicant’s
evidence without making specific findings about the truthfulness of the
applicant’s account of events.
[33]
It
bears repeating what Mr. Justice Zinn said as it is equally applicable in the
present case (at paragraphs 31 to 33):
31 In
this case, the only evidence that was provided to the Board that the
applicant’s house church was raided was his own testimony. There was no
corroborative evidence of any sort provided. Although he had otherwise been
found credible, in that the Board accepted his evidence that he was a Christian
and attended a house church in Fujian, there was other evidence before the
Board that brought his evidence of the raid into question.
32 The
other evidence was documentary evidence. It was not directly contradictory of
the applicant’s testimony in that it did not say that no house churches had
ever been raided in Fujian Province. That is hardly surprising as one is
unlikely to find a report that something has not happened because it is events,
not non-events, that are reported. Nonetheless, the documentary evidence does
lead to an inference that no such raid occurred. It leads to this inference,
as the Board noted, for many reasons, including the following:
1.
There is a large discrepancy in the treatment of house churches in China. In some parts of the country house churches with large memberships meet openly with
no objection, while in other areas, house churches with small memberships are
targeted by the authorities.
2.
Protestant Christians who attempt to meet in large groups, or who travel within
China and outside China for religious meetings are more likely to be targeted
by authorities.
3.
There is documentary information of religious persecution of house churches and
their adherents from many areas of China, including many remote areas, but
there is little such evidence of such persecution in Fujian Province.
4.
The evidence of religious persecution in Fujian Province that exists relates to
the Catholic Church.
33 In
this case, the Board chose to accept the independent documentary evidence over
the applicant’s testimony. It is evident from a reading of the decision as a
whole that it did so because it preferred the evidence from “a large number of
different commentators … none of whom have a personal interest in the pursuit
of an individual claim for protection” to the applicant’s evidence in support
of his own claim for protection. Its weighing of the evidence on this basis
cannot be said to be unreasonable. Having formed the view that the documentary
evidence was stronger and was to be preferred, it did not need to make any explicit
finding that the applicant’s evidence on this point was not credible; it did so
indirectly.
[34]
In the present case, the Board accepted that the applicant is
Christian and that she had established her identity. When asked why the PSB
came to her home, the applicant responded that she did not know. When the Board
proposed to the applicant that the PSB showed up at her parents’ house on
February 1st for no reason, the applicant responded “yes”. It was reasonable
for the Board to draw a negative inference from this series of responses.
[35]
As was the case in Yu above, there were substantial
differences between the PIF and the applicant’s oral testimony (at paragraph
35):
The applicant also challenged the Board’s characterization of his
house church. The Court was specifically directed to the transcript of the
applicant’s oral testimony. However, it is noted that the applicant also
affirmed, under oath, the truth of his Personal Information Form wherein he
provides much greater detail concerning the house church and its ten adherents.
Having reviewed the evidence that was before the Board, I find that its
assessment of the character of the applicant and his house church was
reasonable.
[36]
Mr.
Justice Zinn concludes in Yu above, at paragraphs 37 and 38:
37 It
flowed from the Board’s finding that, on the balance of probabilities, the
applicant’s house church was not raided by the authorities, that “the evidence
does not support that there is a serious possibility for fearing persecution if
the claimant were to practise his religion in an unregistered ‘house church’
with which the claimant was associated prior to coming to Canada.”
38 Therefore,
the result that there was not a serious possibility that the applicant would be
persecuted or that he 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 he return to his country of origin was a reasonable conclusion. As such,
the denial of the applicant’s refugee claim was reasonable and cannot be set
aside.
[37]
Reading
the evidentiary record as a whole, the same conclusion is reasonable here. The
applicant was unable to explain why the PSB came to her parents’ house on
February 1st. This is a major discrepancy since it forms the basis of her PIF
narrative and her claim. Based upon this factor alone, it is reasonable for the
Board to question the veracity of the applicant’s claim.
[38]
As
noted by the Board, there is a large discrepancy in the treatment of house
churches. House churches that do not have large memberships, that do not partner
with churches outside of China and that are not actively preaching in public do
not attract attention from the PSB.
[39]
The
Board member bases his decision on the fact that persecution of Protestant
“house churches” is not general in nature. This is a reasonable conclusion to
reach given the facts of the case. No information was provided with respect to
the size, makeup or external connections of the applicant’s house church. With
regard to the facts and law, it was reasonable to conclude that the applicant
did not face a possibility of persecution. The applicant was inconsistent with
respect to why the PSB was seeking her out and admitted that she did not know
the reason for the visit.
[40]
The
Board’s decision was reasonable as the applicant was inconsistent in her oral
testimony and failed to demonstrate that she faced a reasonable fear of
persecution as a Christian in Fujian Province in China. Reading the decision as
a whole, it is clear that the Board made a decision that falls within a range
of possible acceptable outcomes defensible in respect of the facts and law.
[41]
Because
of my finding, the application for judicial review must be dismissed.
[42]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
|
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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.
|
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
|
Email this Content