Docket: IMM-818-15
Citation:
2016 FC 15
Ottawa, Ontario, January 8, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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XUEQI LI
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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]
Xueqi Li is a citizen of China. He sought
refugee protection in Canada on the basis of his Catholic faith and his
membership in an “underground house church” in China. The Refugee Protection
Division [the RPD] of the Immigration and Refugee Board determined that Mr. Li
is neither a Convention refugee under s 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA], nor a person in need of
protection as defined by s 97 of the IRPA. Mr. Li has brought an application
for judicial review of that decision pursuant to s 72 of the IRPA.
[2]
For the reasons that follow, I have concluded
that the RPD included many “boilerplate” paragraphs in its decision that did
not correspond to Mr. Li’s personal circumstances. The RPD also engaged in
forms of analysis that have previously been discredited by this Court. The
application for judicial review is therefore allowed.
II.
Background
[3]
Mr. Li is 22 years old and formerly resided in
Guangdong Province in China. His claim for refugee protection was similar to that
made by many other Chinese nationals who seek refugee status in Canada.
[4]
In July 2010, Mr. Li began attending an
underground Catholic church to help him cope with a debilitating personal
problem – in his case, an addiction to Internet games. On May 8, 2011, the
church was raided by the Public Security Bureau [PSB]. Mr. Li managed to escape
and went into hiding.
[5]
Beginning in May 2011, the PSB made regular
visits to Mr. Li’s home and left a Notice of Summons. Mr. Li decided to flee
China with the help of a smuggler. On September 9, 2011, Mr. Li arrived in
Canada via the United States. He made a claim for refugee protection on
September 13, 2011.
III.
The RPD’s Decision
[6]
Like Mr. Li’s refugee claim, the RPD’s reasons
for rejecting it were similar to many other decisions of the RPD that concern
refugee claimants from China.
[7]
The RPD accepted Mr. Li’s identity as a Catholic
but did not accept that he was sought by the PSB in China. The RPD found it
implausible that the PSB would not issue an arrest warrant after visiting his
home more than ten times. The RPD also noted Mr. Li’s testimony that his family
members were living safely in China and were able to perform most normal daily
activities. The RPD found the PSB’s inaction to be inconsistent with the
conventional belief that they are a “ruthless and
fearsome police force”, and that it was reasonable to assume the PSB
would have become “more aggressive in their action to
influence his parents” to convince Mr. Li to surrender. The RPD
determined that documents submitted by Mr. Li in support of his claim were
likely fraudulent. Finally, the RPD found it implausible that Mr. Li would have
been able to leave China using his own passport without being detected by the
authorities.
[8]
Despite its adverse credibility findings, the
RPD also considered Mr. Li’s objective fear of persecution were he to return to
China. The RPD found that he could continue to practise his Catholic faith in
Guangdong Province. According to country condition reports, Guangdong Province
has one of the most liberal policies on religious freedom in China.
IV.
Issues
[9]
Mr. Li raised several issues in support of his
application for judicial review. Two of these are determinative, and they are
closely related. Did the RPD improperly apply “boilerplate” analysis to Mr.
Li’s claim for refugee protection without accounting for his personal
circumstances, and did the RPD engage in forms of analysis that have previously
been discredited by this Court?
V.
Analysis
[10]
Mr. Li’s counsel was able to demonstrate that
the RPD’s analysis regarding the PSB’s presumed tendency to become increasingly
frustrated and aggressive following unsuccessful attempts to locate a person of
interest appears in at least seven other RPD decisions. An adverse inference,
expressed in precisely the same language, is drawn from the failure of the PSB
to issue an arrest warrant in at least thirteen other decisions of the RPD.
Other portions of the decision in this case appear verbatim in numerous
other RPD decisions. These examples resulted from a search of publicly-available
databases. The use of boilerplate paragraphs in RPD decisions is likely to be
more widespread.
[11]
Much of the boilerplate analysis that appears in
the RPD’s decision in this case may be found in other decisions that concerned
refugee claimants who said that they feared persecution as practitioners of
Falun Gong. Mr. Li claims to be a Catholic. While Catholics may also be subject
to persecution in China, the nature and extent of that persecution is
different.
[12]
Mr. Li relies on this Court’s decision in Velasquez
Sanchez v Canada (Citizenship and Immigration), 2012 FC 1009 at para 19 for
the proposition that the “boilerplate approach”
is contrary to the purpose of providing reasons, “as it
obscures, rather than reveals” the rationale for a decision.
[13]
The use of “boilerplate passages” by the RPD
does not render its decision unreasonable by default. In the words of Justice
Snider, “provided that the “boilerplate” is based on
the documentary evidence and addresses the particular evidence and position of
a claimant, the Board’s repetition of certain passages from other decisions is
not, in and of itself, an error” (Cordova v Canada (Minister of
Citizenship and Immigration), 2009 FC 309 at para 24).
[14]
However, the boilerplate language used by the
RPD in this case did not take into account information contained in the
Responses to Information Requests [RIR] that are relied upon by all parties in
proceedings before the RPD. In particular, the example of a summons found in
the RIR dated July 6, 2010 (Certified Tribunal Record [CTR] at p 107, National
Documentation Package [NDP] for China, October 31, 2014, CHN103401.E, RIR, Item
9.3) does not have any security features of the kind described in para 23 of
the RPD’s decision, raising the question of whether the RPD examined the
document provided by Mr. Li in support of his claim. The translated version of
Mr. Li’s summons inexplicably refers to Falun Gong, rather than Catholicism,
but this apparent discrepancy is never mentioned in the RPD’s decision.
[15]
In Chen v Canada (Minister of Citizenship and
Immigration), 2014 FC 749, a case that concerned an alleged practitioner of
Falun Gong rather than a Catholic, Justice Russell said the following about the
RPD’s speculation regarding the likely behaviour of the PSB:
[53] … the Board’s finding that “it is
reasonable to expect that her family members would have been subjected to some
type of punishment” does not accord with the evidence. The Applicant explained
the repeated visits to her house by the PSB. The country documentation speaks
to a range of treatments of family members, from harassment and random visits
by police to the home, to arbitrary detention and loss of job and state
support, to arrests of family members. There is no evidence that supports the
Board’s contention that, reasonably speaking, the PSB would have done anything
more than the Applicant says they did. The Board again relies upon its own
opinion.
[54] These are plausibility findings and, as
the Court has pointed out many times, such findings are inherently dangerous
and should only be made in the clearest of cases: see Valtchev, above,
at paras 6-8; Giron, above; Leung v Canada (Minister of Employment
and Immigration), [1994] FCJ No 774 at para 15, 81 FTR 303 (TD); Mahmood
v Canada (Minister of Citizenship and Immigration), 2005 FC 1526 at para
16; Ansar v Canada (Minister of Citizenship and Immigration), 2011 FC
1152 at para 17; Jung v Canada (Citizenship and Immigration), 2014 FC
275 at para 74. On the facts of this case, such findings were unreasonable.
[16]
Furthermore, recent country condition reports
indicate that compliance with a summons is generally low, and the issuance of
an arrest warrant is rare (RIR dated July 6, 2010, CTR at p. 106, NDP for
China, October 31, 2014, CHN103401.E, Item 9.3). Yet the RPD, as in previous
decisions, relied on the absence of an arrest warrant to impugn Mr. Li’s
credibility.
[17]
The RPD’s reasons for rejecting the documents
offered by Mr. Li to corroborate his story have also attracted criticism from
this Court. It is well-established that the general availability of fraudulent
documents in China is not sufficient reason to doubt the authenticity of all
documents that emanate from that country (Lin v Canada (Minister of
Citizenship and Immigration), 2012 FC 157 at para 53). Again, the decision
of the RPD in this case repeats this discredited analysis.
[18]
This is sufficient to dispose of the application
for judicial review. Mr. Li’s refugee claim must be returned to the RPD for
reconsideration by a differently-constituted panel.
[19]
I have considerable sympathy for members of the
RPD who, when faced with nearly identical narratives from refugee claimants,
provide nearly identical reasons for rejecting them. One cannot expect members
of the RPD to constantly “reinvent the wheel.” But if members of the RPD wish
to resort to “boilerplate” analysis, then they must take into account the
unique, personal circumstances of the claimant. The analysis must also be
adjusted to reflect evolving country condition reports and the jurisprudence of
this Court.
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