Hng v. Canada (Minister of Citizenship and Immigration), 2005 FC 231

                                                                                                                                  Date: 20050211

                                                                                                                      Docket: IMM-4843-04

                                                                                                                        Citation: 2005 FC 231

BETWEEN:

                                                             KOK CHUNG HNG

                                                                     (a.k.a. NG)

                                                                 SIEW MEE NG

                                                                                                                                           Applicants

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

de MONTIGNY J.

[1]                This is an application for judicial review from a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated May 5, 2004, dismissing the refugee claim of Kok Chung Hng (a.k.a. Ng) and Siew Mee Ng (the applicants).

BACKGROUND

[2]                The male applicant, Mr. Hng, is 29 years old. He is of Chinese origin, Buddhist religion and a citizen of Malaysia. The female applicant, Ms. Ng, is 24 years old; like the applicant, she is of Chinese origin and a citizen of Malaysia, but she recently converted (on January 14, 2002) to the Islamic religion. They met in late 1998.

[3]                This conversion appears to be the source of all the problems encountered by the male and female applicant before their departure from Malaysia. Apparently, they were unable to marry, as the laws and culture of that state prohibited marriage between a Muslim and a non-Muslim; what is more, it is practically impossible for a Muslim (even a recent convert) to renounce the Muslim faith.

[4]                On February 28, 2002, the applicant maintained that he was attacked by at least five men from the Muslim religion, who threatened him with more severe reprisals if he did not cease seeing the female applicant, unless he himself converted to Islam. The male applicant's house was also ransacked by the religious authorities and the police on March 20 of that year.

[5]                The female applicant was subject to pressure to change her identity, leave her family and dress like Muslims. The religious authorities allegedly impressed on her that the Islamic law (Sharia) could be used against her if she continued to insult Islam by seeing the applicant. When she complained to the police, she was told that the laws of the country would never allow her to marry the male applicant. Finally, when the latter's house was ransacked, she was taken before the Islamic court, which imposed a fine on her and warned her that next time she was likely to go to prison.

[6]                The two applicants decided to leave Malaysia after these incidents. They arrived in Canada on April 4, 2002, and made their refugee claims on the following May 5.

IMPUGNED DECISION

[7]                In a lengthy decision, the Board determined that the applicants were not Convention refugees or persons in need of protection. Essentially, the Board based its decision on the applicants' lack of credibility.

[8]                The Board considered at length the applicants' testimony and the statements they had made to the immigration officer on their arrival in Canada, as well as the various versions of their Personal Information Forms (PIF).

[9]                In the case of the male applicant, the Board found inter alia that: (1) the male and female applicants were still not married over a year after arriving in Canada, though they fled from their country for that very reason; (2) in the first version of his PIF the male applicant did not refer to the mistreatment he suffered nor to the ransacking of his house, and only added this information a few months prior to the hearing before the Board; (3) the male applicant could produce no document establishing the refusal of the authorities to authorize his marriage to the female applicant; (4) the two applicants could have entered into a civil marriage. In short, the Board said that in its view the male applicant did not answer frankly and constantly changed his version of the facts in response to the questions put to him.

[10]            The Board attached no greater weight to the female applicant's conversion, and so attributed no evidentiary value to an Islamic identity card. Among the reasons given by the Board for doubting the female applicant's credibility we may note: (1) the fact she was not likely to be ignorant of the country's religious laws and of their impact on the relationship she might have with a Buddhist after her conversion to Islam; (2) the fact that she made the decision to convert without discussing it with the male applicant, who was expected to return home two days later; (3) the ambiguity surrounding the possibility of a civil marriage; (4) the absence of any document indicating that she lost her employment because of her conversion to Islam; (5) the female applicant's contention that the Religious Department was waiting about 20 newly converted individuals to be assembled before requiring her to take orientation courses, which is not consistent with the immediacy of this measure, as the panel knew from other cases involving Malaysian refugees; (6) the relative clemency of the Islamic court, which only imposed on her a fine of RM 500, in view of the seriousness of the acts alleged against her and the warning which she had already been given; in this regard, it was further noted that the female applicant was unable to provide evidence that she actually paid such a fine. In short, the Board considered that the female applicant was exaggerating in order to improve her story, lacked frankness in her replies and repeatedly contradicted herself.

[11]            It should be noted that the Board expressly mentioned in its reasons that it considered the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, but, in view of the female applicant's lack of credibility, did not find them applicable in the circumstances.

ISSUES

[12]            The applicants presented various arguments in support of their application for judicial review. However, they can be put under three main headings: (1) Did the Board err in not considering all the reasons given in support of the applicants' claim? (2) Could the Board dismiss the female applicant's Islamic identity card and refuse to assign the slightest evidentiary value to it? (3) Did the Board make flagrant errors in weighing the facts, seeing contradictions where there were none and drawing inferences which were in no way based on the evidence?

PARTIES' POSITIONS

[13]            In his written submissions, counsel for the applicants alleged, first, that the Board completely failed to deal with two of the three reasons supporting their refugee status claim, namely their ethnic origin and in Mr. Hng's case, his religion. He argued that although the Board admitted that Malays of Chinese origin and the Buddhist religion had been the subject of discrimination, it did not consider whether the applicants could have a subjective fear of persecution. However, it is worth noting that at the hearing in this Court, counsel for the applicant did not make this argument and appeared to have withdrawn it.

[14]            On the other hand, counsel for the applicants concentrated at length on the error allegedly made by the Board in refusing to believe in the authenticity of the female applicant's conversion and attaching no value to the Islamic identity card. Referring to the transcript of her testimony before the Board, he argued that she described the process of her conversion in detail and this tended to confirm its credibility. He added that the identity card was apparently an official document, there was no evidence for questioning its authenticity and the Board did not raise any questions about it during the hearing.

[15]            Finally, counsel for the applicants made a considerable effort to show that the determinations made by the Board were based on a misunderstanding of the facts, on contradictions which did not exist and on speculation which was to say the least questionable. In the restricted context of these reasons, it would take too long to deal with each of the applicant's allegations in detail: in the analysis that follows, we will simply review the most significant points.

[16]            The respondent, for his part, argued that the applicants had not been able to establish that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

[17]            As regards the reasons which the Board allegedly failed to consider in assessing the applicants' claim, counsel for the Department argued that it was up to the applicants to show, with supporting evidence, that those reasons (ethnic origin and religion) in fact justified their fear of persecution or of cruel or unusual treatment.

[18]            Finally, counsel for the Department maintained that the applicants only challenged a very small part of the many determinations made by the panel and did not establish that on the evidence as a whole the decision was capricious or without foundation.

ANALYSIS

[19]            The male applicant's arguments that the Board erred in failing to consider race (for both applicants) and religion (for Mr. Chung Hng) in assessing the validity of their refugee status claim may be quickly dismissed. In this regard, the Court essentially adopts the argument put forward by counsel for the respondent in his memorandum, which was not really challenged by the applicants at the hearing.

[20]            First, it is well settled that refugee claimants have the burden of submitting all the evidence they consider necessary and useful to support a claim (Chan v. Canada (M.E.I.), [1995] 3 S.C.R. 593; Ehmann v. Canada (M.C.I.), [2002] F.C.J. No. 137; Madi v. Canada (M.C.I.), [2001] F.C.J. No. 1450; Abilio v. Canada (M.C.I.), [1994] F.C.J. No. 1458; El Jarjouhi v. Canada (M.E.I.), [1994] F.C.J. No. 466). In the case at bar, it is apparent from the transcript of the hearing before the Board and from the Personal Information Forms that the applicants relied exclusively on Ms. Mee Ng's conversion to establish that they feared persecution.

[21]            There is nothing in the evidence to indicate that the applicants were the subject of discrimination on account of their race or religion before Ms. Mee Ng decided to convert, which clearly illustrates how fundamental this reason was to their application. In any event, the Board did not disagree that non-Muslims were discriminated against in Malaysia: that does not mean that the applicants were the subject of persecution solely on that ground. The Handbook on Procedures and Criteria for Determining Refugee Status (Office of the United Nations High Commissioner for Refugees, Geneva, January 1992, paragraph 54) states clearly that discrimination does not automatically mean persecution:

Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.

[22]                        The matter is quite otherwise with regard to the conclusions drawn by the Board on the female applicant's conversion. From the outset, the Board refused to believe the female applicant had really converted to Islam, adding that her Islamic identity card had no evidentiary value. Nevertheless, the Board did not appear to doubt the authenticity of this card during the hearing: what is more, the female applicant described in detail during her testimony the formalities associated with the issuing of the card, and this could only enhance the authenticity of the card.

[23]                        Is is well settled that the Board cannot question the validity of an apparently official document unless it is able to rely on other evidence tending to detract from the authenticity of the document (Ramalingam v. Canada (M.C.I.), [1998] F.C.J. No. 10; Osipenkov v. Canada (M.C.I.), [2003] F.C.J. No. 59; Rasheed v. Canada (M.C.I.), [2004] F.C.J. No. 715).

[24]                        A careful reading of the Board's reasons does not make it clear whether it was the actual authenticity of the conversion that it doubted, or rather whether it was questioning the female applicant's claim that she was ignorant of the implications of her decision and the consequences that would result. In any case, the inconsistencies, exaggerations and ambiguities allegedly existing in the applicants' testimony and statements appear to this Court to be based too frequently on speculation and do not appear to take into account the explanations which they tried to give.

[25]                        I realize that paragraph 18.2(4)(d) of the Federal Court Act does not authorize this Court to substitute its own view of the evidence for that of the Board. Remember that the board not only had the advantage of seeing and hearing the witnesses, its members also have expertise which this Court does not have when the time comes to make a finding on the situation that exists in a particular country. Accordingly, the Court must examine the findings of the Board with great circumspection, especially when the credibility of the applicants is the fundamental issue (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)).

[26]                        That said, this Court would not be performing the function entrusted to it if it systematically refused to intervene or did not discharge its duty to consider the evidence in depth to ensure that the findings of fact made by the Board were not patently erroneous or unreasonable. As Evans J. noted in Cepeda-Gutierrez v. Canada (M.C.I.), [1998] F.C.J. No. 1425:

The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

[27]                        In the case at bar, after a careful review of the evidence, I have come to the conclusion that this is one of the rare situations in which this Court should intervene and set aside the Board's decision. Although each and every one of the findings of fact made by the Board are not necessarily unreasonable, there are sufficient inferences based purely on speculation that the Court is justified in referring the matter back to the Board for redetermination by a new panel.

[28]                        For example, the female applicant testified at the hearing that she had converted to Islam without knowing all the implications of her action, and in particular without knowing that she would be unable to marry someone from another religion. When the Board could not believe this, she gave two explanations: first, she grew up in a Chinese village, she went to a Chinese school and consequently she had very few contacts with Malays; further, she believed the restrictions on inter-religious marriages applied only to persons of Malay origin and would not apply to her and her boyfriend since they were of Chinese origin. At first sight, these replies do not seem fanciful or contradictory, and there was no good explanation as to why the Board regarded them as evasive replies and doubted their plausibility.

[29]                        Similarly, it was not entirely clear why the Board felt it was unlikely that the government would decide to wait until 20 persons who had recently converted to Islam could be assembled before giving them religious orientation courses: even if the Board had encountered a different practice in other cases, that does not mean that the procedure could not vary from one region to another or at different periods of time.

[30]                        The Board also engaged in improper speculation when it refused to believe that the Islamic court could simply have imposed a fine on the female applicant when she was found with the male applicant at the time his house was ransacked. What basis did the Board have for being surprised by the relative clemency of the Islamic court and questioning the female applicant's testimony? Does the Board have special expertise regarding the way in which Islamic courts apply the Sharia in Malaysia? We must be careful not to apply our standards and our logic to institutions that operate in the context of a different culture and even a different scale of values.

[31]                        It appears from the foregoing that at least some of the findings of fact made by the Board as a basis for concluding that the applicants lacked credibility were based on conjecture and questionable inferences and on the refusal to attach the slightest evidentiary value to an official document, without valid reason. As the impugned decision was based exclusively on the applicants' lack of credibility, I feel that that decision should be set aside and the applicants should have an opportunity to make their arguments to a new panel of the Refugee Protection Division.

Certified true translation

K. A. Harvey

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                           IMM-4843-04

STYLE OF CAUSE:               Kok Chung Hng (a.k.a. Ng), Siew Mee Ng v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                       January 25, 2005

REASONS FOR ORDER BY:          de Montigny J.

DATED:                                              February 11, 2005

APPEARANCES:

Jacques Tamrazo                                   FOR THE APPLICANTS

François Joyal FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jacques Tamrazo                                   FOR THE APPLICANTS

Montréal, Quebec

John H. Sims, Q.C.                               FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

                                                                                                                                  Date: 20050211

                                                                                                                      Docket: IMM-4843-04

OTTAWA, ONTARIO, THE 11th DAY OF FEBRUARY 2005

PRESENT: THE HONOURABLE MR. JUSTICE de MONTIGNY

BETWEEN:

                                                             KOK CHUNG HNG

                                                                     (a.k.a. NG)

                                                                 SIEW MEE NG

                                                                                                                                           Applicants

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                                       ORDER

THE COURT ORDERS that this application for judicial review be allowed, the decision of the Board accordingly set aside and the applicants' record referred back to the Board for redetermination by a new panel of the Refugee Protection Division.

Certified true translation

K. A. Harvey