Huang—good faith in sur place claims

Huang v. Canada (Citizenship and Immigration), 2012 FC 205 (CanLII)

Judge: Justice Zinn; Date heard: December 1, 2011; Date decided: February 10, 2012;Counsel for Huang: Lindsey K. Weppler; Counsel for Minister: Judy Michaely; Place of Hearing: Toronto, Ontario.

The Applicants were a family consisting of a Chinese woman and her minor children. In February 2007, having become ill, the Applicant became involved in Christianity and began attending a house church. In August 2008, the Applicant went into hiding when she learned that the Public Security Bureau was coming for the congregation. Friends were arrested and the PSB came to her house. She engaged an agent to bring her and her children to Canada. She also claimed on the basis of fear of forcible sterilization, since she had two children.

Justice Zinn found that the RPD had erred in relying on a 2005 document that suggested sterilization was no longer used as punishment for violating family planning laws, when a more recent document (2010) discussed a sterilization campaign in the Applicant’s home region. As always, the RPD may rely on whatever evidence it chooses, but cannot disregard evidence which directly supports the claim without giving a valid reason for doing so (paras. 22-24).

The RPD also erred in finding that the Applicant did not have a sur place claim in Canada, as the RPD found she was practising Christianity in Canada to strengthen her refugee claim. Justice Zinn noted that there was no evidence that her current practise of Christianity was not genuine (paras. 25-32).

Lin—improper rejection of personal documents based on availability of false documents

Lin v. Canada (Citizenship and Immigration), 2012 FC 157 (CanLII)

Judge: Justice Russell; Date heard: January 10, 2012; Date decided: February 6, 2012; Counsel for Lin: Lindsey Weppler, Agent for Jacqueline Lewis; Counsel for Minister: Lucan Gregory; Place of Hearing: Toronto, Ontario.

The applicant was a citizen of China and professed Christian whose claim for protection was denied by the Refugee Protection Division (RPD).

The applicant claimed that in October 2007, he missed a service at the underground church which his family attended. A fellow member’s mother phoned him and told him that his parents had been arrested by the Public Security Bureau during a raid on the church (para. 3). The applicant was confident that his parents would not disclose that he was a member of the church, so he felt safe going to the police station to try to bail his parents out, whereupon he was detained for three days.

He and his parents were originally released upon payment of 100,000 Yuan [about $12,960.00 CDN], and they were under a reporting regime, weekly and sometimes more often. The family continued practicing in their home, and not attending their former underground church. The family decided that the applicant ought to leave China, and he stopped reporting to the PSB. With the assistance of a smuggler, the applicant left China in January 2008 and came to Canada via Dubai and Israel (paras. 4-6).

After the applicant made his claim, he alleged that he had learned that his parents had gone into hiding, and that they were subsequently arrested and were being held in prison (para. 7).

Justice Russell found that the RPD’s reasoning in rejecting the applicant’s documents was faulty. The RPD rejected the documents on the basis that there was evidence that false documents were widely available in China. Justice Russell stated:

The RPD’s reasoning would mean that even genuine documents would not be acceptable. The fact that inauthentic documents are available does not relieve the RPD of the duty to determine whether particular documents presented by a claimant are genuine or not. The Respondent argues that the “fraudulent documents” ground merely supports the RPD’s earlier finding that the Applicant’s evidence is not acceptable because it is not supported by the objective evidence referred to by the RPD. In my view, this would mean that the RPD excluded evidence on the sole basis that it contradicts its own information package, and not because it has any inherent defects. (para. 54)

Justice Russell found that the RPD was obliged to actually look at the documents to determine whether they were fraudulent (para. 55), particularly since it accepted his passport (paras. 56-58).

He—reasonable treatment of evidence on house churches versus state sanctioned churches

He v. Canada (Public Safety and Emergency Preparedness), 2012 FC 148 (CanLII)

Judge: Justice Rennie; Date heard: January 17, 2012; Date decided: February 3, 2012; Counsel for He: Catherine Bruce; Counsel for Minister: Lldiko Erdei; Place of Hearing: Toronto, Ontario.

The applicant was a Chinese citizen and Christian, who attended an (illegal) house church. On a business trip to Canada, he was advised by his family back in China that the Public Security Bureau was looking for him. He made a claim for refugee status in February 2007, and it was denied in March 2009 because the Refugee Protection Division did not believe he was a Chinese citizen, and therefore rejected his claim without considering the merits (paras. 1-2)

The applicant filed a PRRA, and the PRRA officer accepted his identity as a citizen of China (para. 3). The PRRA officer also accepted that the applicant was a practicing Christian, however, the PRRA officer:

…concluded that the applicant had not put forth “objective documentary evidence to support that his profile in China is similar to those that currently face a danger of torture, or a risk to life, or of cruel and unusual treatment or punishment in that country.”  The PRRA Officer further concluded that “the evidence before [him] does not support that the Chinese authorities are aware [that the applicant is a practicing Christian]”. (para. 5)

Justice Rennie relies on a decision of Justice Zinn on similar facts (Zhu v Canada (Citizenship and Immigration), 2008 FC 1066). In that case, Justice Zinn had noted that it was an error “not to take into account the doctrinal differences between the state sanctioned churches and unregistered churches” (para. 12).

The PRRA officer relied on evidence of increasing tolerance towards members of stat-sanctioned churches, but failed to differentiate the fact that the applicant was a member of an illegal house church (paras. 13-14).

Justice Rennie also cited another case on similar facts, a decision of Justice Russell in Yin v Canada (Citizenship and Immigration), 2010 FC 544.

Dual Citizenship Can Be Hazardous To Your Health

Celil's family had given up hope¹
The Globe & Mail reports that Uyghur-Canadian Huseyin Celil is alive--though not particularly well--and made a court appearance in China last week. Celil fled China and was granted Canadian refugee status, and eventually citizenship, but while on a trip to Uzbekistan he was arrested and extradited to China as an alleged terrorist working for the Uyghur separatist movement. Canada's gotten no traction when it comes to diplomatic access.

Chinese officials have repeatedly rejected Canada's contention that Mr. Celil is a Canadian citizen. They even refuse to recognize the name on his Canadian passport. Instead they call him by his Chinese name, Yu Shanjiang, and they insist that he is a terrorist and a Chinese citizen.

Why is that? you may ask. Well, its because of the biggest wrinkle in the whole nationality/protection edifice. It goes something like this: nationality/citizenship has two elements, a) that it is recognized by the state of purported nationalism (in this case, Canada), and b) that it is recognized in international law.² Some countries, like Canada, accept dual citizenship (which is a relatively new idea on the international law front), and some, like China, do not.³

However, there doesn't appear to be a rule in international law that requires states to "give up" their citizens when that citizen obtains foreign citizenship. Some states phrase it logically (e.g., citizens lose their citizenship the minute they take on a foreign citizenship, which is efficient because it protects the state against dual nationals and the person against statelessness or impaired mobility rights), and some phrase it vaguely, like China, and what they really mean is "As far as we a concerned, you are a citizen from now until the day you die, and we will simply disregard any other citizenship you claim to have." Once a person is in the jails of that country, the other state (of actual or secondary nationality, depending on your point of view) cannot do much but put political pressure for access to or release of the prisoner.

This is the same quirk that caused serious delay in Maher Arar's case,⁴ and those of several other Canadian-Syrians. People who disagree with dual nationality may say: well, that's what you get--but the fact is that one cannot get rid of Syrian or Chinese citizenship (or at least, not if the Syrian/Chinese government wants an excuse to hold you). These are not dual citizens, these are forced citizens.

The only upside is that the opinio juris of the international legal community has shifted towards a more flexible definition. Whereas according to the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws stated:

Article 4: A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

The International Legal Commission's Draft Articles on Diplomatic Protection, while not binding, are nevertheless persuasive and offer this far more nuanced approach:

Article 7
Multiple nationality and claim against a State of nationality
A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.

This means that international law would allow Canada to assert its "ownership" or otherwise right of protection over Celil in an international forum (although what forum and on what grounds would depend what treaties are in force between us an China, among other things).

Cold comfort, I'm sure, if China executes him.

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1. Geoffrey York, Globe & Mail Online, 9 Feb 2007.
2. Nottebohm Case (Liechtenstein v Guatemala), [1955] ICJ Reports 4; summarized at the ICJ website. In order for nationality to be recognized at international law, it must have a factual basis: the claimant must have a real and substantial connection to the nation of purported nationality. Of course, this particular case was wrongly decided, in my opinion, because the ICJ rendered the poor man stateless. His birth country didn't consider him a citizen, his country of residence refused to grant him citizenship, and the only country which did grant him legal citizenship was later told that citizenship was null and void. Nice.
3. According to the Nationality Law of the People's Republic of China, Article 3: The People's Republic of China does not recognize dual nationality for any Chinese national. Availible here on the Government of the Hong Kong SAR Immigration site.
4. Althogh the delay only occurred after Canada and the US had merrily sent him on his way to be tortured.