Docket: IMM-6248-13
Citation:
2015 FC 315
Toronto, Ontario, March 12, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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JIE CAO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application by Jie Cao [the
Applicant] for leave to commence an application for judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of the Refugee Protection Division [RPD] dated August
29, 2013, which held that the Applicant was neither a Convention refugee nor a
person in need of protection within the meaning of sections 96 and 97 of IRPA.
II.
Facts
[2]
The Applicant is a citizen of Tianjin City [Ti anjin], People’s Republic of China [China].
[3]
The Applicant claimed to have been introduced to
Christianity by a friend in October 2009 when he was invited to attend an
underground Christian house. He was later baptised by a visiting pastor on June
20, 2010.
[4]
The Public Safety Bureau [PSB] is said to have raided
the underground church service on November 21, 2010. The Applicant went into
hiding at a cousin’s house. The Applicant claimed that the PSB was looking for
him and that they went to his home and his brother’s home looking for him. The
Applicant further stated that the PSB went to his house on November 25, 2010,
and left a summons for him to surrender. The Applicant therefore decided to
find an agent to leave China before being discovered.
[5]
He arrived in Canada on February 25, 2011, and
made a refugee claim. The RPD determined, on August 29, 2013, that the
Applicant was neither a Convention refugee nor a person in need of protection.
This is the decision under review.
III.
Impugned Decision
[6]
The identity of the Applicant is not of issue.
[7]
The RPD first stated that the credibility of the
Applicant is undermined because of a lack of credible evidence provided
regarding his reasons for wanting to travel to Brazil in 2007. The RPD also found
that the credibility of the Applicant is damaged because he came out from
hiding in order to get married on February 21, 2011, where he had to use his
Resident Identity Card [RIC] number. By referring to country documents, the RPD
explained that the PSB uses a database called Operation Golden Shield to track
criminal fugitive in China using RIC numbers. The Applicant would therefore
have been tracked by the PSB at that time. The RPD also found it implausible that
the Applicant got married by the civil authorities on February 21, 2011, when
he had been a fugitive since November 23, 2010. The RPD stated that approaching
the civil authorities would have placed him at risk of detention. The RPD also
found it implausible that the Applicant’s agent bribed the exit control officer
at the airport in order to leave China since this agent can easily be traced by
the authorities.
[8]
The RPD further determined that the Applicant’s
knowledge of his church group was deficient and that the Applicant’s baptism in
Canada was only for show in order to add to his refugee claim. The
Applicant’s evidence is also contrary to the documentary evidence of the
situation in Tianjin. The RPD thus concluded that the Applicant’s testimony
that the PSB raided his underground church, that the PSB detained several
members of his church and that he is being pursued by the PSB not credible. The
RPD also did not find the Applicant to be a genuine Christian. The RPD further
concluded that the Applicant joined a Christian church in Canada to support his fraudulent refugee claim.
[9]
As for the situation of Christians in Tianjin, the RPD concluded, based on documentary evidence, that the authorities’ response
to underground church activities in this city is different than in other
provinces within China, where, in other provinces, proselytizing is suppressed
and arrests and incidents of persecution of ordinary Christians do happen. Tianjin, on the other hand, has one of the more liberal policies on religion in China. The RPD further wrote that the documentary evidence presented does not contain any
mentions of recent arrests of lay Christians in Tianjin.
[10]
The RPD therefore determined that the Applicant
was not a credible witness and was not sought after by the PSB based on his
underground church activities in China. The RPD further stated that there is no
serious possibility that the Applicant would be persecuted for practicing
Christianity in China if he wished to do so.
IV.
Parties’ Submissions
[11]
The Applicant submits that the RPD made unreasonable
credibility findings based on speculation and a misapprehension of the
documentary evidence, specifically with regards to the Applicant’s travel plans
to Brazil four years prior to his refugee claim and with regards to the use of
his passport to leave China by bribing the exit control officer. The Applicant
further argues that the RPD erred in its reliance on the Operation Golden
Shield nation-wide system in China used to track individuals. The Respondent
retorts by arguing that the RPD’s finding regarding the Applicant’s lack of
credibility based on his attempt to leave China to be grounded in the evidence.
The Respondent further submits that the Applicant misapprehended the evidence
regarding Operation Golden Shield and that such a system exists nation-wide in China.
[12]
The Applicant also argues that the RPD made an
unreasonable finding with regards to his documentary evidence, namely by not
assessing the arrest summons left for him at his parents’ home and simply
declaring it fraudulent. The Respondent states, however, that the documentary
evidence before the RPD explains that fraudulent documents are widely available
in China. In light of this evidence and based on other credibility findings,
the RPD’s conclusion on this point is reasonable.
[13]
The Applicant further submits that the RPD
failed to determine that the Applicant was a genuine Christian in Canada and at the time of the hearing. The RPD further failed to recognize that a
prohibition against carrying out religious activities in public can constitute
religious persecution. The Respondent is however of the opinion that it was
reasonable for the RPD to evaluate the Applicant’s religious practice in Canada in light of the finding that he was not a genuine Christian in China. Also, the RPD’s
conclusion that the evidence did not demonstrate a serious possibility of
persecution of lay members of Christian house churches in Tianjin is reasonable.
V.
Issues
[14]
I have reviewed the parties’ submissions and
respective records and formulate the issues as follows:
- Are the RPD’s credibility findings reasonable?
- Did the RPD make an unreasonable finding with respect to the
Applicant’s arrest summons?
- Is the RPD’s conclusion of the Applicant’s religious identity
reasonable?
- Is the RPD’s
conclusion of the risk of religious persecution in Tianjin reasonable?
VI.
Standard of Review
[15]
The RPD’s assessment of the Applicant’s
credibility is highly factual in nature (Chen v Canada (Minister of
Citizenship and Immigration), 2009 FC 677 [Chen]). This Court will
therefore apply the reasonableness standard to the RPD’s credibility determinations
(Wei v Canada (Minister of Citizenship and Immigration), 2010 FC 694 at
para 13; Chen, above at para 14). The other three issues raised above
are questions where the legal issues cannot be easily separated from the
factual issues, the reasonableness standard therefore also applies (Jing v Canada (Minister of Citizenship and Immigration), 2012 FC 609 at para 9 [Jing]).
This Court shall only intervene if it concludes that the decision is
unreasonable and falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 47).
VII.
Analysis
A.
Are the RPD’s credibility findings reasonable?
[16]
The determination of the credibility of the
Applicant is at the heart of the RPD’s jurisdiction (Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 7 [Lubana]).
Credibility determinations by the RPD are therefore afforded deference (Rahal
v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at paras 27
and 31 [Rahal]). This Court will only intervene if the RPD “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” (Khakh v Canada (Minister of Citizenship and
Immigration), [1996] FCJ No 980, 116 FTR 310 at para 6 [Khakh]; Rahal,
above at para 35; Lubana, above at para 8).
[17]
In the case at bar, the Applicant’s first
argument concerns the RPD’s negative credibility inference from his testimony
regarding the visitor visa he obtained for Brazil in September 2007, about four
years prior to his refugee claim. The Applicant argues that the RPD’s reliance
on this point was erroneous as this matter is peripheral to his refugee claim.
I agree. It was improper for the RPD to derive a negative credibility inference
on this matter, which was irrelevant and peripheral to his refugee claim (Lubana,
above at para 11). The RPD’s conclusion of this point is thus unreasonable.
That being said, this does not, on its own, render the entire decision
unreasonable as it will be seen.
[18]
The Applicant, at the hearing, testified that
one person had been arrested after the church raid. He claims that it is his
wife who informed him of the arrest. He also testified that the arrested person
was in fact his “introducer” to the underground church (Certified Tribunal
Record [CTR] pages 709-711). However, his Personal Information Form [PIF]
states that “Till now, I still don’t know who have been
arrested” (Applicant’s Record [AR] page 46 at para 12). It was
reasonable for the RPD to draw a negative credibility inference from this
contradiction.
[19]
Also, the Applicant’s submission that the RPD
based its decision on “speculation, impermissible
inferences and a misappropriation of the documentary evidence before” is
not persuasive. The RPD is indeed entitled to make determinations on common
sense and rationality (Jing, above at para 15). The RPD’s assessment of
the Applicant’s credibility, based on the use of his passport at the airport
when leaving the country, his decision to come out of hiding to get married
before the civil authorities using his RIC and the precautions (to have in
order to ensure church activities) that the Applicant forgot to mention to the
RPD but remembered when the RPD proposed them to him, is reasonable and
supported by the documentary evidence contained in the Certified Tribunal
Record. For example, the documentary evidence demonstrates that RICs are used
to obtain a marriage license and contain information such as the card holder’s
name, date of birth, residential address, photo, gender, nationality, and more
(CTR page 121). Moreover, the documentary evidence also demonstrates that the
national computer network, referred to as Operation Golden Shield, used by the
PSB is used to track, among other things, passport exit and entry (CTR page
140) (Hao v Canada (Minister of Citizenship and Immigration), 2015 FC
119 at para 15 [Hao]). The RPD’s credibility determinations on these
questions are thus reasonable.
B.
Did the RPD make an unreasonable finding with
respect to the Applicant’s arrest summons?
[20]
Contrary to the Applicant’s argument, the RPD’s
decision that the arrest summons submitted by the Applicant is fraudulent and
to afford it no weight is reasonable (Jing, above at para 17). The RPD
considered the document and concluded that it is fraudulent based on the lack
of credibility of the Applicant and on the evidence of the abundance of
fraudulent documents in China (AR page 18 at paras 49-50). I further agree with
the Respondent that the case law cited by the Applicant, Yin v Canada (Minister of Citizenship and Immigration), 2010 FC 544 does not help the
Applicant’s case. Indeed, in this decision, this Court determined that the RPD
had not evaluated the evidence put forward by the Applicant and discounted
other evidence submitted by the Applicant. This is not the case here. In the
case at bar, the RPD assessed the documents presented by the Applicant, such as
the arrest summons, and other documents, such as his baptismal certificate,
church letter and photos (AR page 19 at paras 48-52). The RPD did not disregard
the arrest summons, or any other document, but rather analysed them in the
context of the Applicant’s refugee claim. The intervention of this Court on
this matter is not warranted.
C.
Is the RPD’s conclusion of the Applicant’s
religious identity reasonable?
[21]
Again, I cannot agree with the Applicant that
the RPD failed to perform an analysis of the Applicant’s evidence regarding the
genuineness of his faith and religious convictions. Contrary to the Applicant’s
position, the RPD did assess the letter from his pastor, his baptismal
certificate and the photos submitted by the Applicant, as discussed above, in
its decision (AR page 19 at paras 48-52). The RPD assessed the Applicant’s
religious identity based on the evidence and in light of its credibility
determinations (Jing, above at paras 22-23; Hao, above at paras
17-18; Fang v Canada (Minister of Citizenship and Immigration), 2013 FC
241 at para 27). The RPD’s analysis on this point is thus reasonable. The
Applicant is simply asking this Court to reweigh the evidence, which is not its
role.
D.
Is the RPD’s conclusion of the risk of religious
persecution in Tianjin reasonable?
[22]
I find that the RPD conducted a thorough analysis
of the documentary evidence with regards to the situation of Christians in Tianjin, and did so in a forward-looking manner. The Applicant mainly takes issue with the
RPD’s conclusion on the situation of Christians in Tianjin. This, in and of
itself, cannot render the RPD’s decision unreasonable (Jing, above at
para 27). The Applicant simply offers a different interpretation than the RPD
did. Moreover, the RPD’s analysis is based on its evaluation of various documentary
evidence contained in the record; it did not ignore evidence nor did it
misapprehended the evidence. Indeed, the RPD assessed the evidence by asking
itself if there was a serious possibility that the Applicant would be
persecuted for practicing Christianity in an unregistered church in Tianjin. The RPD completed this analysis independently of its previous findings regarding
the Applicant (AR pages 20-26 at paras 59-76).
[23]
The Applicant also points to a 2010 China Aid
Association’s Annual Report [the Report] in its submissions to suggest that it
is a reliable source of information on the persecution of house churches in China (AR page 155 at paras 42-44). This report specifically mentions Tianjin and that
municipal authorities attempted to tear down Immanuel Church. The Applicant
argues that the RPD attempted to disregard this incident, which renders the RPD’s
decision unreasonable. It so happens that the exact same argument, based on the
exact same document was argued in Qin v Canada (Minister of Citizenship and
Immigration), 2012 FC 9 at para 71. In this case, Justice Russell
explained, in its analysis of the document and the said event that:
[I]n the end, the Applicant can only point
to the 2010 China Aid Report which mentions that in Tianjin some Korean
Christians have been expelled, and that, in Jinghai County, authorities had
attempted to tear down the meeting building of the Immanuel church. The full
context of these events is not given, so that we have no explanation for why
the authorities may have acted as they did and the significance of such action
for general Christian practice in Tianjin. We also do not know whether these
actions would amount to persecution in terms of Convention and Canadian refugee
law. […]
[24]
The same can be said here: the Applicant did not
provide more information with regards to this event. After the evaluation of
the above Report and other documentary evidence presented, the RPD wrote:
[T]he panel considered the documentary
evidence about conditions in Tianjin and the claimant’s personal circumstances.
The panel finds, on balance of probabilities, that the claimant would be able
to practice his alleged religion, worshipping in the Christian congregation of
his choosing, if he were to return to his home in Tianjin in China, and that
there is no serious possibility that he would be persecuted for doing so (AR
page 29 at para 86).
The RPD also evaluated the situation of
Christians in China in general and noted that the religious practice and
tolerance varies widely within the country (AR pages 21-22 at paras 62-64).
[25]
Therefore, contrary to the Applicant’s argument,
the RPD did not unreasonably disregard this evidence. I cannot find any
reviewable error with regards of the RPD’s assessment of the situation of
Christians in Tianjin. The RPD’s conclusion on this point is reasonable, even
more so in light of the reasonable conclusion that it did find, on a balance of
probabilities, that the Applicant did not attend the underground church in
China and was not a practicing Christian (AR page 17 at para 44). The RPD thus considered
the documentary evidence provided and reached reasonable conclusions on the
situation of Christians in Tianjin.
VIII.
Conclusion
[26]
Except for the findings made as the result of
the Applicant’s Brazil visitor’s visa of 2007, I find that all the other
determinations made (such as the credibility findings made, the comments on the
summons, the evaluation on the Applicant’s religious identity and his risk of
religious prosecution in Tianjin, etc.) render this decision reasonable.
[27]
Counsels were invited to submit questions but
none were proposed.
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