Date: 20241209

Docket: IMM-7001-23

Citation: 2024 FC 1989

Ottawa, Ontario, December 9, 2024

PRESENT: The Honourable Madam Justice Aylen

JUDGMENT AND REASONS

[1] The Applicant, a citizen of China, claims to fear persecution at the hands of the Chinese authorities, including the Public Security Bureau [PSB], based on his beliefs as a Guanyin Famen [GYFM] practitioner. He seeks judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada dated May 24, 2023, which dismissed his appeal and confirmed the decision of the Refugee Protection Division [RPD], albeit for different reasons. The RAD found that the Applicant is neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27.

[2] The Applicant asserts that the RAD erred in finding that he can freely practice his genuine GYFM faith in China, which renders its determination that the Applicant would not face a serious possibility of persecution in China unreasonable.

[3] For the reasons that follow, I find that the Applicant has not demonstrated that the RAD’s decision was unreasonable. Accordingly, the application for judicial review shall be dismissed.

I. Background

[4] The Applicant, an 82-year-old citizen of China, was introduced to the GYFM practice through his niece in early 2019, who thought it might assist him with his inability to sleep. He was at first hesitant of the practice, as his niece told him that it was banned in China, but she assured him that she could teach him herself and that he could follow the practice privately at home. In May 2019, the Applicant decided to join his niece’s small GYFM group.

[5] In September 2019, the Applicant travelled to Canada to visit his daughters and continued his GYFM practice.

[6] In March 2020, while still in Canada, the Applicant’s niece told him that her GYFM group was planning on depositing leaflets to promote GYFM and vegetarianism. However, shortly thereafter, he learned from his niece’s husband that she had been forced into hiding as one of the members of her GYFM group had been detained by the PSB. The husband advised the Applicant not to return to China. In April 2020, his niece’s husband informed the Applicant that the PSB came to their home looking for her and accusing her of being a GYFM practitioner. The PSB returned to his niece’s home again in June 2020.

[7] In August 2020, the Applicant made a refugee claim. In his Basis of Claim [BOC], the Applicant stated that he was unable to freely practice GYFM in China as doing so placed him at significant risk of arrest, detention and abuse. At the time that he submitted his BOC, his niece remained in hiding.

[8] In October 2022, the RPD refused the Applicant’s refugee application, finding insufficient credible evidence to establish the central allegations of his claim. The RPD found the Applicant’s demonstrated knowledge of GYFM was insufficient to establish the sincerity of his religious belief and noted several inconsistencies in his evidence. The RPD concluded that his daughter’s testimony before the RPD, together with the documentary evidence, were insufficient to overcome the RPD’s serious credibility concerns. The Applicant appealed the RPD’s decision to the RAD.

[9] In May 2023, the RAD confirmed the RPD’s decision, albeit for different reasons, and reversed many of the findings made by the RPD. The RAD reviewed the RPD’s assessment of the Applicant’s credibility and found that the Applicant is, in fact, a genuine GYFM practitioner and that his religious belief is sincere.

[10] The RAD considered whether any of the objective country condition evidence supported a finding that the Applicant would face a serious forward-looking risk. After acknowledging that the country condition evidence was mixed, the RAD found that there was not a serious possibility the Applicant would face a forward-looking risk of persecution or harm in China on account of his faith. The Applicant is not a leader in the GYFM movement, nor does he run any businesses, whether in association with GYFM or independent of the movement. Given the Applicant’s profile, the RAD did not believe he would come to the attention of public authorities in China on account of his GYFM practice.

II. Issues and Standard of Review

[11] The sole issue for determination is whether the RAD’s decision that the Applicant does not face a serious forward-looking risk of persecution in China on account of his identity as a GYFM practitioner was reasonable.

[12] The parties agree and I concur that the applicable standard of review is reasonableness. When reviewing for reasonableness, the Court must take a “reasons first” approach and determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified [see Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 8]. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker [see Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 15, 85]. The Court will intervene only if it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency [see Adeniji-Adele v Canada (Minister of Citizenship and Immigration), 2020 FC 418 at para 11].

III. Analysis

[13] The Applicant asserts that the RAD’s decision is unreasonable as it erred in finding that the Applicant can freely practice his GYFM faith in China. Specifically, the Applicant asserts that: (a) the RAD selectively relied on country condition evidence without addressing important contradictory and more recent evidence; and (b) the RAD’s decision is based on an unduly limited conception of the right to religious freedom, where a person subjected to laws that criminalize their religious practice and identity will not face a persecutory infringement of their religion unless the person is actually punished under those laws.

[14] Turning to the first asserted error, the Applicant argues the RAD’s finding that the Applicant can practice his GYFM faith in China is irreconcilable with the uncontested fact that GYFM is outlawed in China. The RAD acknowledged this much in its decision. However, despite the criminal prohibition against practicing GYFM in China, the RAD found that the Applicant can practice his faith without facing a serious risk of persecution because “the most recent evidence” indicates that Chinese authorities target GYFM leaders who engage in business activities, as opposed to regular practitioners of the faith.

[15] The Applicant further argues that while the RAD stated that “the most recent evidence” indicates that the Chinese government targets GYFM leaders who own businesses, this purportedly “recent” information actually emanates from a Response to Information Request [RIR] prepared in 2015. The Applicant asserts that the RAD failed to mention that the up-to-date country condition documents contain contradictory information on this issue. In particular, a report prepared by the United Kingdom Home Office in 2021 discusses the treatment of banned Xie Jiao (“evil cults”) like GYFM in China. According to this report, GYFM is one of twenty groups on the Xie Jiao list of “evil cults,” and one of eleven groups listed as “dangerous.” The report goes on to explicitly address whether regular “evil cult” members are targeted by the Chinese authorities, and the Applicant asserts that it concludes that members may actually be treated more harshly than leaders. The Applicant alleges that the RAD’s finding was made without regard to this evidence and that it was not open to the RAD to selectively rely on outdated information without addressing the more recent and contradictory evidence.

[16] I reject the Applicant’s assertions. A review of the RAD’s reasons reveals that the RAD examined the country condition evidence in its entirety, including more recent and contradictory evidence. In that regard, the RAD explicitly stated, “I acknowledge the country evidence is mixed” and then went on to explain why, given the mixed evidence, it found that the Applicant would not be at risk in China. The decision demonstrates an awareness and consideration of recent information from both 2021 and 2022, in addition to the 2015 RIR.

[17] The RAD acknowledged that there is objective documentary evidence demonstrating that the Chinese government has persecuted GYFM members. However, it also noted that the Applicant’s specific circumstances did not suggest he would be at risk of being targeted for persecutory treatment, or that he would be unable to practice his religion freely if he returned to China. The RAD noted that “the most recent information about interactions between China’s government and participants in the movement show that authorities have targeted leaders in the movement, rather than regular practitioners. Those persons were targeted for their business activities. No participants in the movement appear to have been targeted by China for disseminating information about GYFM since 2012.” The RAD’s conclusion that the most recent evidence indicated that the Chinese government is targeting GYFM leaders who own businesses (as opposed to regular practitioners) emanates from not only the RIR, but also a 2022 Report from the Dui Hua Foundation.

[18] Moreover, contrary to the Applicant’s assertion, the RAD expressly considered the July 2021 report from the United Kingdom Home Office. While the RAD did not cite the excerpt upon which the Applicant relies (paragraph 6.3.5), I do not accept that the excerpt contradicts the RAD’s determination that no members have been targeted since 2012, or that those members who have been targeted are leaders who own businesses. At best, paragraph 6.3.5 of the July 2021 report suggests that it is unclear whether members and leaders of all designated evil cults (and not specific to GYFM) are treated differently. As such, I find that the RAD was not required to expressly address this portion of the July 2021 report in its reasons.

[19] I am satisfied that the RAD reasonably considered the contradictory evidence before it and provided intelligible, transparent and justified reasons for its conclusion that there was insufficient evidence to establish that the Applicant would face a serious possibility of persecution in China as a GYFM practitioner.

[20] Turning to the second asserted error, the Applicant asserts that the RAD’s decision is based on an unduly limited conception of the right to religious freedom. The Applicant asserts that the RAD’s approach is patently inconsistent with the concept of religious freedom, as this Court has repeatedly recognized that religious freedom entails far more than simply the right to be free from arrests and detention, and includes the right to worship freely and openly. The Applicant asserts that the RAD appears to have operated under the misguided belief that a person subjected to laws that criminalize their religious practice and identity will not face a persecutory infringement on their religion unless the person is actually punished under those laws. The Applicant cites various cases to support this assertion, including Fosu v Canada (Ministre de l’Emploi et de l’Immigration) (1994), 90 F.T.R. 182, Dong v Canada (Citizenship and Immigration), 2010 FC 575, Zhang v Canada (Citizenship and Immigration), 2009 FC 1198 and Chen v Canada (Citizenship and Immigration), 2020 FC 907.

[21] I agree with the Applicant that religious freedom entails more than simply the right to be free from arrest and detention, and includes the right to worship freely and openly. The “freely and openly” standard requires a consideration as to whether a refugee claimant has been subjectively constrained from practicing their religion in the manner that they choose [see Tran v Canada (Citizenship and Immigration), 2024 FC 1118 at para 32]. For example, in Yang v Canada (Citizenship and Immigration), 2015 FC 650, the Court concluded that the applicants, who were Chinese Roman Catholics, were able to practice in an underground church and that this did not constitute a violation of the “freely and openly” standard.

[22] However, I do not accept the Applicant’s assertion that the RAD “operated under the misguided belief that a person subjected to laws that criminalize their religious practice and identity will not face a persecutory infringement on his/here [sic] religion unless the person is actually punished under those laws.” The RAD’s finding does not necessitate that the Applicant be punished by law to establish a serious risk of persecution. Rather, the RAD’s finding concerned whether the evidence established that China is interested in targeting GYFM practitioners, posing a forward-looking risk of harm or persecution to the Applicant. Contrary to the Applicant’s characterization, it is an important contextual factor that the law does not appear to have been enforced against GYFM practitioners since 2012. The Applicant failed to present credible evidence that he would be subjectively constrained from practicing his religion if he returned to China and, unlike much of the jurisprudence cited by the Applicant, the RAD’s decision does not adopt a chain of reasoning requiring the Applicant to practice GYFM secretly or in private. The RAD relied upon objective evidence describing the profile of GYFM practitioners most subject to persecution, none of which applied to the Applicant’s personal profile as a regular practitioner.

[23] As the Applicant has failed to demonstrate that the decision was unreasonable, the application for judicial review shall be dismissed.

[24] Neither party proposed a question for certification and I agree that none arises.

JUDGMENT in IMM-7001-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. There is no question for certification.

“Mandy Aylen”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: