Date: 20050216
Docket: IMM-2217-04
Citation: 2005 FC 249
Toronto, Ontario, February 16th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
YONG ZHE JIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of adecision of the Refugee Protection Division ("RPD") dated January 28, 2004, wherein the Applicant's claim for refugee protection under s.96 and s.97 of the Immigration and Refugee Protection Act (the "IRPA") was rejected.
[2] The Applicant is a male citizen of China who claims a well-founded fear of persecution on the ground of religion in China from the PSB, being the police under the Chinese Ministry of Public Security and its local-level security bureaus. The Applicant makes his claim as a member of the Tian Dao, also known as the Yiguandao or Tiandao Jiao, religion.
[3] In its decision, the RPD rejected the Applicant's claim on a negative credibility finding, and also on a finding that there is insufficient proof of risk of persecution to members of the Tian Dao religion in China. In particular, the following two passages from the RPD's decision provide the reasons for rejection:
The documentary evidence before the panel clearly indicates that the practice of religions in the world is a relevant issue for international human rights organizations. In light of this evidence, the panel finds that there is a lack of documentary evidence to support the claimant's claim that members of the Tian Dao religion are detained, tortured and imprisoned. A research consultant from Human Rights Watch's Asia Division, who specializes in "control of state religion" stated that he had no knowledge of any reports of mistreatment of Tian Dao practitioners and added that such reports would have come to his attention. (Footnote: Exhibit R-1, Response to Information Request, No. CHN37199.E, September 12, 2001) [Emphasis added]
(RPD Decision, p. 4)
...
The panel finds that the lack of documentation supporting allegations of recent persecutory acts of Tian Dao practitioners, combined with the above credibility issues, seriously tainted the claimant's claim and impugned his credibility.
The panel also considered whether the claimant was a person in need of protection pursuant to sections 97(1)(a) and 97(1)(b) of IRPA. The claimant stated his fear relating to his alleged membership in the Tian Dao religion. His evidence regarding this issue was found not to be credible. Indeed, relevant implausibilities in his evidence impugned his credibility.
(RPD Decision, p. 9)
[4] In my opinion, with respect to the findings just quoted, the RPD failed to discharge its obligation to consider the totality of the evidence in reaching proper findings under s.96 and s.97 of the IRPA.
[5] On the Tribunal Record ("the Record") in the present case, there is ample evidence tending to prove that members of the Tian Dao religion suffer more than a mere possibility of persecution in China. Of particular importance is an October 1999 statement as follows:
According to the professor, the first explicit proscription of Tian Dao by a Chinese government was in 1946, and the sect remains illegal. In Taiwan, the ban was lifted in 1987. In general there has been a relaxation in the Chinese government's attitude to religion since 1980, but Tian Dao, as a non-recognized "heterodox sect," has been excluded from this increased tolerance. The professor is not aware of any change in the Chinese government's attitude to Tian Dao in recent years.
(Tribunal Record, p. 172)
In addition, an April 2001 statement is as follows:
A doctorate candidate of History at UCLA, who will be granted his PhD in June 2001 and commence a teaching position at Washington University in St. Louis, Missouri, in August 2001, provided contextual information that might be useful with regards to the Yiguan Dao sect in China. The doctoral candidate, who specializes in Chinese popular religions, including the Yiguan Dao, has carried out extensive fieldwork in northern China, stated the following in 4 April 2001 correspondence:
Yiguandao was an extremely large and influential organization in China during the 1930s and 1940s. In 1951 it was outlawed and subjected to an intense campaign of propaganda along with arrests and "reeducation" of leaders. This campaign was very successful, and what few believers remained associated with the sect were driven deep underground. The campaign was repeated in 1957 and again during the 1960s, but the sect has been so completely discredited in 1951, that later campaigns were little more than show trials.
Even with the relative opening of religious freedom in China, Yiguandao remains a universal villain within the Chinese press. The sect remains very illegal and, given the intensity of past government propaganda against it, is not likely to be accepted by the PRC government anytime soon. Until the recent (1999) campaign against Falungong, which was overtly modeled on the 1951 push against Yiguandao, many religious groups could exist quietly, with the implicit acceptance of local authorities. Even under these circumstances, Yiguandao was not likely to gain any sort of acceptance. However, with the increased scrutiny of local religion, Yiguandao would certainly not be able to exist openly. If any believers do exist in Guangdong and Fujian, they are likely to have learned the faith secretly and relatively recently from Taiwanese businessmen or tourists, who have been known to proselytize in the PRC.
Given the intensity of pressure against the sect, I would rather be surprised to see any sort of Yiguandao remaining in Fujian or Guandong [sic] at all, except, as mentioned, in the context of relatively recent missionization from Taiwan. Even this would have to be very deep underground. The sect was traditionally strongest in North China, and it certainly does not exist there today. I have seen Chinese government reports (Fandong huidaomen jieshao, Qunzhong chubanshe, 1985) that mention fears of a revival of Yiguandao in remote inland provinces, but nothing specifically relating to Fujian or Guangdong.
Unfortunately, I do not have any data concerning arrests or detainment because these figures are rarely released by the Chinese government, and because Yiguandao has such notoriety in the PRC that such arrests would likely be conducted in secret.
[Emphasis added]
(Tribunal Record, p. 179)
[6] However, in its decision, the RPD chose to place emphasis only on the following passage from the Record which is the footnoted reference used in the above quoted paragraph from page 4 of the RPD's decision:
On the issue of treatment of Tian Dao practitioners in mainland China, a research consultant with Human Rights Watch's Asia division who specializes in control of state religion, stated in 5 September 2001 correspondence, that he had no knowledge of any reports of mistreatment of Tian Dao practitioners and added that such reports would have come to his attention. Attempts to obtain information from Amnesty International's International Secretariat in London were unsuccessful within the time constraints. Please note that CHN36541.E of 6 April 2001, CHN34826.E of 1 July 2000, CHN34370.E of 8 May 2000, CHN32887.E of 14 October 1999, CHN29913.E of 24 August 1998, CHN26564.E of 30 April 1997 address the issue of treatment of Tian Dao (Yiguandao, various spellings) practitioners.
(Tribunal Record, p. 174)
In addition, as some support for the evidentiary conclusion reached, the RPD made passing reference to two decisions of this Court where the record before the RPD, in those cases, was found not to contain sufficient documentary evidence to establish that the followers of the Tian Dao religion are being persecuted in China: Sun v. Canada (Minister of Citizenship and Immigration), (F.C.T.D. no. IMM-2529-01), O'Keefe J., April 30, 2002; and Gao v. Canada (Minister of Citizenship and Immigration), (F.C.T.D. no. IMM-65-02), Layden-Stevenson J., October 31, 2002. In my opinion, this is certainly not the case in the present Application.
[7] It is important to note that, on the unrefuted evidence on the Record in the present case, at least some six months after the Applicant arrived in Canada and made his claim for refugee protection, he became a member of a Tian Dao Temple in Toronto (Tribunal Record, p. 76 and p. 270B). With respect to this fact, the RPD provided no detailed analysis of a prospective possibility of persecution under s.96, or prospective probability of risk under s.97, should the Applicant return to China. In addition to this failure, I have two concerns about the RPD's decision which require comment.
[8] A single quoted passage from the Record that there are no recent complaints must be taken in context with the unrefuted evidence that the Tian Dao religion is illegal in China. On this basis, it is not difficult to understand that, if a religion is illegal, there might very well be more than a mere possibility of persecution against its members in China. Moreover, the fact that no recent reports exist does not prove lack of persecution. As the Tian Dao is understood to be a secret religion, it might very well be that the lack of reports is evidence that it has been successful in maintaining secrecy, or, as noted in the April 2001 statement as quoted above, reports might not be forthcoming from the authorities. That is, the lack of reports does not conclusively negate the evidence going to the possibility of persecution or the probability of risk.
[9] In my opinion, the lack of attention to prospective considerations under s.96 and s.97, on the Record in the present case, renders the decision as patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2217-04
STYLE OF CAUSE: YONG ZHE JIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 15, 2005
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: FEBRUARY 16, 2005
APPEARANCES BY:
Nadine Tobin
FOR THE APPLICANT
Martin Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lewis & Associates
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT