Protecting Religious Freedom for Chinese Christians

There are frequent stories about people being persecuted for their religious beliefs.  Usually these stories occur somewhere else in the world and we feel that our government and court system have little to do with them.  The truth; however, is that the Canadian courts weigh in weekly on these type of issues through appeals from the Refugee Protection Division of the Immigration and Refugee Board. 

Canada is respected around the world for our tolerance of different religious beliefs. It is this very reputation that results in applications from immigrants from around the globe.  In particular, religious persecution is a common ground for refugee status. 

As an example, three such cases came before the Canadian courts in the last few weeks concerning Christians from China.  [1]   All three individuals claimed that if they were returned to China, they would face persecution as a result of their Christian faith. Each individual had been denied their claim for refugee status in Canada by the Refugee Protection Division and were appealing to the courts to overturn these decisions.  They told stories about practicing their faith in China where the government would raid house churches and arrest people. 

Naturally, just because you come from a country with a poor record of human rights does not mean that a claim to faith is sufficient to justify refugee protection.  The Refugee Division must determine that your faith is legitimate.  This introduces an interesting predicament when we put our decision makers in the position of determining the sincerity of one's personal religious convictions.  Nevertheless, this is exactly what the judges were asked to do. 

Of the three recent cases, only one had her case sent back for reconsideration.  The other two individuals were denied refugee status.  In addition to questioning the applicants on the sincerity of their belief, the Court engaged in an analysis of the likelihood to face real persecution.  What is clear here is that the test to prove that the fear is "well-founded" can be a high bar to meet.   For example, even though the Board had evidence that house churches were being raided in China, they did not find evidence that the churches were being raided in the specific area where the claimants had come from or held that it was unlikely that the claimant's specific church was likely to be raided.    

Whether or not you agree with the Court's assessment, their analysis of what constitutes freedom of religion is interesting.  In the case of Chen v. Canada (Citizenship and Immigration), 2010 FC 258 (CanLII), the Court considered an earlier decision, quoting:

I feel that the Refugee Division unduly limited the concept of religious practice, confining it to "praying to God or studying the Bible". The fact is that the right to freedom of religion also includes the freedom to demonstrate one's religion or belief in public or in private by teaching, practice, worship and the performance of rites. As a corollary to this statement, it seems that persecution of the practice of religion can take various forms, such as a prohibition on worshipping in public or private, giving or receiving religious instruction or, the implementation of serious discriminatory policies against persons on account of the practice of their religion.[2]

The Court commented:

If the applicant is to hide and take precautions not to be seen when practising her religion at an underground church, if she is returned to China (having rejected registered churches), it is difficult to see how the panel justified its finding that Ms. Chen would be free from persecution

The decision in this case was thus overturned and the case was sent back to the Refugee Protection Division. 

What is commendable is that, through the Courts, we as Canadians are prepared to say that the practice of one's faith in private is not sufficient freedom.  The nature of true religious freedom is the ability to practice one's belief in the public realm.  This principle is important enough to protect even when the discrimination happens beyond our borders.  This is something every Canadian, regardless of their belief or background, can be proud of.

 

 


 

[1] Chen v. Canada (Citizenship and Immigration), 2010 FC 258 (CanLII), Li v. Canada (Citizenship and Immigration), 2010 FC 205 (CanLII) and Yu v. Canada (Citizenship and Immigration), 2010 FC 310 (CanLII)

 [2] from Fosu v. Canada (Minister of Employment and Immigration), (1994), 90 F.T.R. 182, [1994] F.C.J. No. 1813, at para. 5

 

This article was written by Meghan A. Maddigan, a lawyer who practices in charity law at the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other charity law matters, please contact us at 604-864-8877.