Ottawa, Ontario, this 1st day of June, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated May 31, 2004, wherein it was determined that the applicant is neither a Convention refugee nor a person in need of protection.
[2] The applicant seeks an order of certiorari quashing the decision of the Board and an order of mandamus compelling the Board to grant a new hearing.
Background
[3] The applicant, Ming Guan Yu (the "applicant") is a citizen of China who was born in Fujian Province.
[4] The applicant became a Christian in July 2002. After that he attended regular services in different members' homes. He alleged that was necessary as the services were illegal.
[5] The applicant alleged that on June 8, 2003 the Public Security Bureau ("PSB") raided one of their meetings. The applicant managed to escape and went into hiding at a relative's home. The PSB arrested two members of the church.
[6] The applicant alleged that while he was in hiding, the PSB went to his house to arrest him. They continued to search for him on a number of occasions. The applicant was afraid to be arrested and jailed so he left China. His claim for Convention refugee status on the basis of religious persecution was dismissed by the Board.
Reasons of the Board
I find the claim fails because objective documentation indicates that "underground churches" in Fujian Province are able to operate quite openly.
. . .
I also accept that the claimant goes to a Christian church in Canada and he is a Christian. He was knowledgeable about Christianity and able to discuss various aspects of it easily.
The objective documentation generally notes the Chinese Government has increased its crackdown on underground or house churches in many areas. However, that documentation indicates the situation is different in Fujian Province.
The UK Home Office Assessment October 2003 cites Fujian Province as an area in which house churches are tolerated.
In Fujian Province, the situation differs from the main areas of anti-Christian activity. Registered and unregistered churches operate side by side: unregistered churches are not very "underground". For example, two groups, True Jesus church and Little Flock church groups operate openly, the former with a large prominent church building in Fuzhou. Unregistered churches in Fujian are reported to be in contact with the Three Self Patriotic Movement and the CCC [Chinese Christian Council]. [3u] There is reportedly much evidence of the construction of new church buildings in Fuzhou, in response to a current rapid growth in religious adherence.
Dr. Burton found churches openly flourishing in Fujian.
[Fujian and Guangdong are] very open. Very liberal and open. Fujian has all sorts of Churches going on . . . Guangdong is the same. I was thinking more of the northern provinces like Qinghai or you know, Gansu. [In] some of these places there might be instances of harassment, but in the south . . . the government doesn't see any reason to get themselves involved in things for which there's no benefit.
The claimant's church was small and only had nine people. It had no name and, according to the claimant, was not affiliated with any other religions or churches. Thus, there is no evidence that his group was one of the religious "cults"that have been identified for persecution. His church group appears to not have had any prominence in the community. It was just a small, private group of people in Fujian Province who got together to sing, pray and discuss religion. Based on the country documentation, I find, on a balance of probabilities, the authorities in Fujian Province would not suppress or raid this group of people for this type of religious activity. I prefer the evidence of the objective country documents to that of the claimant regarding the persecution of "house" or underground churches in Fujian Province.
CONCLUSION
Based on the country documentation I find, on a balance of probabilities, the claimant's story that the PSB raided their "house church" and want to arrest him is not credible. . . .
[7] Issue
Did the Board err in its determination that the applicant is neither a Convention refugee nor a person in need of protection?
Applicant's Submissions
[8] The applicant submitted that the two short excerpts referred to in the Board's reasons are not representative of the documentation before the Board. A review of all the documentation regarding religious persecution in China demonstrates that there is no consistent policy throughout the country generally or local regions specifically. In light of the overall evidence which clearly endorses government sponsored persecutory actions, it is a clear error of law for the Board to sift through such evidence seeking out evidence that supports the view that no persecution exists.
[9] The applicant submitted that sources other than those cited by the Board illustrate the level of ongoing religious persecution in China.
[10] The U.S. Department of State Report for 2002 stated in part:
Throughout the year, the Government continued a national "strike hard" campaign against crime, characterized by round-ups of suspects who were sometimes sentenced in sports arenas in front of thousands of spectators.¼ Some dissidents, "separatists", and underground church members were targeted. . . .
. . . In some areas, authorities made strong efforts to control the activities of unapproved Catholic and Protestant churches; religious services were broken up and church leaders or adherents were harassed, and at times, find, detained, beaten and tortured. At year's end, some religious adherents remained in prison because of their religious activities. . . .
Overall government respect for religious freedoms remained poor, and crackdowns against unregistered groups, including underground Protestant and Catholic groups, Muslim Uighurs and Tibetan Buddhists continued. . . .
Some Protestant house church groups reported that after December 2001 State Council Work Conference on Religion, police raids on worship services increased, resulting in greater numbers of detentions. On February 5, Huang Aiping, Li Wulong, and Ji Qingjun were sentenced to 7 years in prison for "using a cult organization to violate the law"in Xiamen, Fujian Province. . . .
[11] The International Religious Freedom Report October 7, 2000 stated in part:
In February 2002, Freedom House published secret documents purportedly issued by the Government between 1999 and 2001. The documents outlined the Government's intent to repress religious expression outside of government control, and to use harsh criminal penalties in a systematic effort to eliminate unregistered religious groups.
. . . During the period covered by this report, the Government continued its general crackdown on unregistered churches, temples and mosques. Police closed underground mosques, temples, and seminaries, as well as some Catholic churches and Protestant "house churches", . . .
Customs officials continued to monitor for the "smuggling" of Bibles and other religious materials into the country¼. There have been credible reports that the authorities sometimes confiscate Bibles in raids on house churches.
In some areas, security authorities used threats, demolition of unregistered property, extortion of "fines", interrogation, detention, and at times beatings and torture to harass unofficial religious figures and followers.
Offences related to membership in unapproved religious groups are classified as crimes of disturbing the social order. According to the Law Yearbook of China, arrests for disturbing the social order increased from 76,500 persons to more than 90,000 persons between 1998 and 1999 the most recent figures available . . .
Local authorities also use an administrative process to punish members of unregistered religious groups. Citizens may be sentenced by a non-judicial panel of police and local authorities to up to 3 years in prison-like facilities called reeducation-through-labor camps. Many religious detainees and prisoners were held in such facilities during the period covered by this report. . . .
[12] The applicant submitted that while it was within the Board's jurisdiction to consider the objective evidence, when the majority of the evidence supports the applicant's position, it is open to the Court to conclude that the Board either misconstrued or ignored evidence before it and thereby reached a finding contrary to the evidence (see Perez v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 753).
[13] The applicant submitted that while there are some documents that suggest there is a more lax policy in Fujian Province, there are other documents that indicated the opposite. The Board erred in applying an overly microscopic analysis of the objective evidence in seeking to find instances that contradicted the applicant's evidence. The applicant further submitted that when the documents contradict each other, the Board ought to give the benefit of the doubt to the applicant (see Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302).
Respondent's Submissions
[14] The respondent submitted that a review of the Board's reasons demonstrated that the Board's assessment of the documentary evidence was balanced and fair. The Board considered highly probative and specifically relevant documentary evidence having regard to his specific profile as a Christian belonging to an underground church in Fujian Province.
[15] None of the documentary evidence referred to by the applicant established that Christians belonging to small underground churches in Fujian Province are being subjected to systemic, persistent or widespread human rights abuses at the hands of the PSB.
[16] The respondent submitted that the applicant is in essence arguing that the Board should have given more weight to the documents which were favourable to his case. It is not the proper role of the Court to substitute its own conclusions as to how documentary evidence ought to have been weighed (see Legault v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 457).
[17] The respondent submitted that it is open to the Board to rely on some evidence and not others if there is conflicting evidence. As long as the Board's findings are rationally based on the material before it, as in this case, the Court should not interfere with the ultimate result (see Tawfik v. Canada (1993), 26 Imm L.R. (2d) 148 (F.C.T.D.)). As the Board took into account the particular circumstances of the applicant and the overall country documentation, the Board's determination was reasonably open to it.
[18] The respondent submitted that a board is presumed to have considered and weighed all of the evidence tendered into evidence unless the contrary is shown (see Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)). In this case where the Board's finding that there was no objective basis as it relates to Christians in underground churches in Fujian Province does not directly contradict the overall documentary evidence, there was no obligation on the Board to discuss or summarize all of the documentary evidence upon which the applicant relied to support his claim.
Relevant Statutory Provisions
[19] Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:
| 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
. . .
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. |
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;
. . .
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. |
Analysis and Decision
[20] The applicable standard of review for findings as to credibility is patent unreasonableness (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), and N'Sungani v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2142).
[21] The Board decided that although there was a crackdown in underground churches in China, this was generally not the case in Fujian Province. The Board relied on two specific documents, one of which was a transcript of a conference call with Dr. Charles Burton in April 2003.
[22] The applicant made reference to the following statements contained in the International Christian Concern: Asia China Country Report, commencing at page 233 of the tribunal record:
July 18, 2002 - a Roman Catholic catechism class in Fujian Province was raided by police and a nun, 4 chaperones, and 26 children under the age of 18 were arrested and put in the Lianjing County jail. The children and chaperones were released the following day but Sister Chen Mei remains imprisoned (Cardinal Kung Foundation).
January 5, 2002 - Hong Kong based businessman Li Guangqiang was indicted on charges of "using a cult to undermine enforcement of the law". In April of 2000 Li had delivered 17,000 Bibles to a Christian group known as the Shouters. When he attempted to deliver another 16,000 Bibles to them the next month he was arrested and detained in Fujian province. Two leaders of the Shouters were also charged. The group is not registered with the Chinese government and has been labeled as a cult (Washington Post).
August 30, 2000 - An underground Catholic church in Fujian province was raided by police and 24 people were taken into custody. Twenty-two people are still being detained in an undisclosed location.
On 31st May 2001 three men were arrested for transporting annotated Bibles. Yu Zhidu and Lin Xifu, both 42, were accused of "using an evil cult to undermine law enforcement" for transporting 16,280 Bibles to Fuqing city, Fujian Province. After strong US protests, the charges were downgraded to "operating illegal business". On January 28th, 2002 a court in Fuqing sentenced the men to three years imprisonment.
[23] The U.S. Department of State International Religious Freedom Report 2002 - China states in part:
Fujian Province clerics reported that, while there had been no recent signs of a general crackdown against underground Catholics as was seen in 1999 and 2000, the April 2001 detention of two underground priests led to a generalized fear that other detentions might follow. Protestant church members in some parts of the country complained that central government support for local crackdowns on Fujian-based Shouters and Hubei's South China Church had created a sense of intimidation in their communities. . .
Some Protestant house church groups reported that after the December 2001 State Council Work Conference on Religion, police raids on worship services increased, resulting in greater numbers of detentions. On February 5, Huang Aiping, Li Wulong, and Ji Qinguin were sentenced to 7 years in prison for "using a cult organization to violate the law" in Xiamen, Fujian Province. The three were members of the Blood and Water Holy Spirit Full Gospel Preaching Team, which was founded in Taiwan and was banned on the mainland in 1996 as an "illegal infiltration organization." . . .
[24] The Board did not refer to the above incidents in its decision. There is no requirement that the Board mention each and every one of the documents before it. In some cases, however, the Board has a duty to explain why it has not accepted evidence favourable to the applicant's claim. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) Evans J. (as he then was) stated:
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its finding of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[25] In the present case, I am of the view that it was incumbent on the Board to refer to the evidence the applicant claimed favours his case (paragraph 23 of these reasons). The Board did not refer to this evidence. I cannot tell whether the Board would have arrived at the same conclusion it did had it taken note of the contrary evidence. It is up to the Board to decide the applicant's claims, but it should have addressed the evidence which the applicant stated supported his claims. In not doing so, the Board made a reviewable error.
[26] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[27] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
[28] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
J.F.C.
Ottawa, Ontario
June 1, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5578-04
STYLE OF CAUSE: MING GUAN YU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER AND ORDER: O'KEEFE J.
APPEARANCES:
Shelley Levine
Sharon Stewart-Gutherie
SOLICITORS OF RECORD:
Levine Associates
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada