Federal Court Decisions

     IMM-1433-96

BETWEEN:

     SHUN GUAN CHEN,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

LUTFY J.:

     The Convention Refugee Determination Division ("the Tribunal") of the Immigration and Refugee Board determined that the applicant is not a Convention refugee. The Tribunal was not satisfied that the applicant had established an objectively valid basis for his fear of persecution for reasons of religion should he return to China. It is this determination which is under judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2.

     The applicant has been a practising Christian since late 1989. While in China, he attended church services no more than monthly because of fear that the Public Security Bureau ("PSB") would be more likely to discover the existence of these private religious services if they were held more frequently. Since his arrival in Canada, the applicant has continued to attend church regularly. The applicant also practises his religion at home with private prayers. He refused to attend the state-sponsored Patriotic Church because, in the words of his Personal Information Form, he "...refused to let the government control [his] soul."

     By December 1991, the applicant had recruited eight new members, increasing the total membership of his prayer group to approximately twenty persons. Occasionally, the services were held in the applicant's home which was situated directly above his business premises.

     In December 1991, a clandestine service of the applicant's church group was raided by the PSB. The owner of the house in which the service was being held was arrested and sentenced to three years' imprisonment. It was subsequent to this incident that the applicant's church group of twenty was divided into two smaller groups with more frequent changes of location for the services.

     In December 1994, the PSB raided a Christmas service in the applicant's premises. The participants in the church service, other than one elderly practitioner who apparently was arrested by the PSB, were able to escape.

     It was after this second incident that the applicant decided to flee China. He arrived in Canada in March 1995 when he immediately sought refugee status.

     The Tribunal found that as recently as 1994, Chinese authorities continued harassing unapproved religions by raiding and closing a number of unregistered churches and briefly detaining church leaders and Christian lay persons. The Tribunal also found some evidence that the authorities have increasingly used short-term detentions, rather than long prison terms in dealing with unauthorized religious activities.

     The Tribunal generally accepted the veracity of the applicant's evidence concerning his belief in Christianity and his participation in the church services leading up to the incident of December 1994. However, the Tribunal did not believe the applicant's testimony concerning: (a) his hiding in the residence of a relative subsequent to the raid of December 1994 and until March 1995; (b) his inability to determine whether the elderly person arrested in the December 1994 raid or any other participant in that church service had been prosecuted by the PSB; and (c) the authenticity of the summons produced by the applicant to establish that he would be liable to prosecution were he to return to China.

     The Tribunal's assessment of the applicant's credibility was mixed. His adoption of Christianity and the incidents concerning the P.S.B. raids were believed. He was not found credible concerning the events after the December 1994 raid. The Tribunal went on to conclude as follows:

While the panel accepts that state officials raided an unregistered church service in the claimant's premises in December 1994, we do not believe that the fact that the services were held on his premises poses any special threat to the claimant given the apparent widespread holding of services in the claimant's area. We believe the claimant may be liable to a short detention, fine, or re-education term as a worse case scenario should he return to China at the present time given the relatively benign treatment of much higher profile church leaders and lay persons in 1994 mentioned in the documentary evidence.

     ...

The panel acknowledges that the concept of "religious freedom" in China does not have the same quality of practice which Canada and other democratic countries experience; however, there is insufficient evidence to show that the policies of the Chinese government relevant to religion -- such as the requirement to register religious bodies according to the five recognized religions and the requirement that they follow and obey the leadership of the state -- are persecutory in nature. Furthermore, the panel finds that the claimant's profile as a practising Christian is not one of a religious leader or a lay leader who is likely to be harassed, intimidated or arrested. The panel finds that the claimant's activities as a practising Christian in China do not support such a profile.

(emphasis added)

     In my view, it is inconsistent for the Tribunal to have found that the applicant "...may be liable to a short detention, fine, or re-education term..." and yet conclude that his "...profile as a practising Christian is not one of a religious leader or lay leader who is likely to be harassed, intimidated or arrested". This inconsistency in turn led the Tribunal to more than one error in law as a result of which this application for judicial review must be granted.

     At issue is the fundamental right of freedom of religion. Sanctions such as "a short detention, fine or re-education term" are serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community. These sanctions, in my view, constitute persecution. (Handbook on Procedures and Criteria for Determining Refugee Status, Geneva: Office of the United Nations High Commissioner for Refugees, 1988, paragraph 72).

     The Tribunal noted the growing number of practitioners of unauthorized religions in China despite these penal sanctions. It also found that the applicant was not a religious or lay leader, only a member, even though he had recruited a small number of practitioners. These findings appear to have influenced the Tribunal in concluding that the applicant's profile was not one which objectively justified his well-founded fear of persecution.

     In my view, this conclusion is not consistent with the Tribunal's earlier finding that the applicant may be liable to the penal sanctions "as a worse case scenario". Of equal importance, this conclusion does not appear to take into consideration the statements of Decary J.A. in Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250, 11 Imm. L.R. (2d) 165, at p. 258 (F.C.) that:

(1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;

(2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group which he belonged;

     ...; and

(4) the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his county of origin.

     In Salibian at pp. 258-9 (F.C.), the Court of Appeal also referred with approval to Professor James C. Hathaway's statements in The Law of Refugee Status (Toronto: Butterworths, 1991):

In view of the probative value of the experiences of persons similarly situated to the claimant, it is ironic that courts have shown a marked reluctance to recognize as refugees persons whose apprehension of risk is borne out in the suffering of large number of their fellow citizens. Rather than looking to the fate of other members of the claimant's racial, social, or other group as the best indicator of possible harm, decision-makers have routinely disfranchised refugees whose concerns are based on generalized, group-defined oppression. (at page 90)

     ...

In sum, while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalized oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm in her country, and if that risk is grounded in their civil or political status, then in the absence of effective national protection she is properly considered to be a Convention refugee. (at page 97)

In assessing the objective component of the applicant's well-founded fear of persecution for reasons of religion, the Tribunal ought to have focussed more on the continuing system of sanctions in China against those who practise unauthorized religions than its assessment of the chances of the specific individual being singled out for arrest, detention and re-education.

     Similarly, the applicant was not required to show that he would be "likely" to be harassed, intimidated or arrested. "Likely" connotes probability, a threshold which is higher than that enunciated in the case law. It was open to the Tribunal to conclude that the applicant has "good grounds" if there was "a reasonable chance that persecution would take place if the applicant returned to his country of origin" (Adjei v. Canada (Minister of Employment and Immigration) [1989] 2 F.C. 680, 7 Imm. L.R. (2d) 169 (F.C.A.) at p. 683 (F.C.)). The test in Adjei was approved in Salibian and further commented upon by the Court of Appeal in Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 when Desjardins J.A. stated at 245:

An applicant, according to Adjei, supra, does not have to prove that persecution would be more likely than not. He has to establish "good grounds" or "reasonable chance" for fearing persecution.

"Good grounds" or "reasonable chance" is defined in Adjei as occupying the field between upper and lower limits; it is less than a 50 per cent chance (i.e., a probability), but more than a minimal or mere possibility. There is no intermediate ground: what falls between the two limits is "good grounds".

If the claimant, as the Board said, "may face slightly more than a mere possibility" of persecution, he had crossed the lower limit and had made his case of "good grounds" or a "reasonable chance" for fearing persecution.

     Finally, the Tribunal found the applicant to be credible on the central issues of his practise of Christianity, his hosting of clandestine religious services in his premises and the December 1994 raid by the PSB. The Tribunal also acknowledged that the applicant may be liable to a short detention, fine or re-education term. Having made these findings, the Tribunal was unduly influenced by its negative assessment of the applicant's credibility, concerning the facts subsequent to the December 1994 raid. This negative assessment of credibility was not relevant to the issue of the objective component of the applicant's well-founded fear for reasons of religion because of the Tribunal's findings concerning the events prior to and including the raid of December 1994. (Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.) at 170, paragraph 13.)

     For these reasons, the application for judicial review will be granted. The Tribunal decision will be set aside and remitted for hearing by a differently constituted panel.

                         Allan Lutfy

                         Judge

Ottawa, Ontario

January 31, 1997