Date: 20040402
Docket: IMM-5783-03
Citation: 2004 FC 515
BETWEEN:
AHEMAITI NAJIMIDING
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Did the Refugee Protection Division of the Immigration and Refugee Board act in a perverse or capricious manner or without regard for the material before it in holding that Mr. Najimiding was not born a Christian in China. If it did not, then the finding of its Panel that he is not a refugee or otherwise in need of international protection should stand. However, if it did, Mr. Najimiding is entitled to a new hearing.
[2] There are legislative and judicial constraints on the superintending power of this Court over Federal Boards and Tribunals. In addition to the language of section 18.1 of the Federal Courts Act, R.S.C. 1985, c. I-2, as amended, to which I have just referred, a pragmatic and functional approach to judicial review will allow the Court to determine the deference to be given to the Board or Tribunal in question. There are three standards of review: correctness, reasonablesness simpliciter and patent unreasonableness. Mr. Najimiding's application was dismissed because he was found not to be credible. That finding was one of fact and must stand unless patently unreasonable (2003 SCC 20">Law Society of New Brunswick v. Ryan, 2003 SCC 20 and 2003 SCC 19">Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
[3] One reason courts in appeal or in judicial review are reluctant to interfere with findings of fact, is that the trier of fact had the great advantage of seeing the witnesses. The authorities were recently reviewed in Mehrdadian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1342.
[4] Although I have reviewed the Board's decision and the material before it with these cautionary precepts constantly before me, the only possible conclusion to draw is that it based its decision on erroneous findings of fact made in a perverse or capricious manner and without regard for the material before. Many findings were patently unreasonable.
BACKGROUND
[5] Mr. Najimiding was 20 years old at the time of his hearing. He is ethnically Uyghur and was born in the Xinjiang Uyghur autonomous region of China. Family tradition had it that they were part of a small group who were converted to Christianity by Swedish missionaries in the 1930s. This activity was greatly resented by the Muslim majority in Xinjiang Uyghur, the missionaries were driven out, and many Christians were killed. Mr. Najimiding's family, and other remaining Christians, went underground and he was moved to another area of the province where he was raised by his grandfather.
[6] He always considered himself a Christian although he could not say whether or not he was baptized. Certainly he had no baptismal certificate as there were no churches in the area. He was not baptized in Church until he came to Canada.
[7] He left Xinjiang Uyghur in order to study Mandarin. He acted on his suspicions that his teacher was a Christian. She then invited him to attend weekly bible study. He also, to some extent, evangelized a few Uyghur schoolmates. He was involved in translating some articles on Christianity into Uyghur.
[8] He then came to Canada where he learned that three of his schoolmates had been arrested, beaten and persecuted by the Chinese police. Some Muslim members of the Uyghur community in Montreal may have learned that he attended a Christian church here, considered him a traitor. Coincidence or not, his parents' house in his hometown was vandalized. He then sought protection here.
REASONS TO DISBELIEVE
[9] I will deal with the reasons given by the Panel for doubting Mr. Najimiding was born a Christian, or even that he studied in Beijing, in the order in which they appear in the decision.
[10] To begin with, Mr. Najimiding, and his parents and siblings, all have typically Muslim names. Mr. Najimiding's exclamation was that he was born in a Muslim province where no Christian names were available. The Uyghur culture and language were influenced by the Arabs and the Turks. The Panel "reminded" him that in both Turkey and the Middle East, it is common for Christians to have Christian names. He responded that his name was given to him by his parents. The Panel said "this does not help establishing that he belonged to the Christian faith while living in his homeland." This is patently wrong. Whatever names may be available in Turkey and in the Middle East are neither here nor there. Mr. Najimiding said he belonged to a Christian sect which was in hiding. One would hardly draw attention to one's child by giving him a Christian name.
[11] The claimant had filed a letter from the Uyghur American Association. The Panel took this letter as being filed to support the proposition that he was a Christian and to set forth the problems faced by Christians in his home province. The Panel completely missed the point of the letter. The author of the letter assumed that the claimant was indeed a Christian. However, the only purpose the letter could possibly have served in evidence was as a country-condition report. The Panel was completely unjustified in using the letter to support its doubt that the claimant followed the Christian faith in his homeland.
[12] The Panel's discussion of whether Mr. Najimiding was baptized by his grandfather, why he was not baptized in Beijing, and why he was only baptized in Church in Canada are without merit.
[13] After commenting about Mr. Najimiding's praying at home as there was no church or pastor, and the need of the family to be secretive, the Panel said it could not understand how the family was able to keep its faith a secret. In its words:
If the Panel was to believe that his forefather's were Christians and his own evidence (video cassettes) on how the Swedes spread Christianity originally... then it fails to understand how he and his family were able to keep their faith a secret to the extent that no one knew it in the area.
Apart from being an absolute non-sequitur, this can only mean that the Panel did not believe there were Swedish missionaries in Xinjiang Uyghur in the 1930s. Is the Panel suggesting that the video cassette is nothing more than an historical hoax and that the Swedish lady of a certain age reminiscing about her missionary parents was a paid actress?
[14] There was some discussion of the form of Bible available in China. Mr. Najimiding said that they used a combined Old and New Testament. He said he did not know about the He He Ben Bible. The Panel seems to have misdirected itself into thinking that the He He Ben Bible was a version, such as the King James version, of the Bible. During the hearing the interpreter said that He He simply meant "combined". How can this impeach Mr. Najimiding's credibility?
[15] His intuition that his teacher in Beijing was a Christian was also criticized. He had said that she had showed love towards the students and would add sayings of the Lord. He mentioned that when someone sneezed she would say "May God bless you". This led the Panel to say:
When told that it could not be unique to a Christian, the Panel is a Muslim and it is incumbent on him by tradition to exactly say the saying, he responded that he could feel the difference being born in Xiajiang and her actions and impressions. He was adjusting his testimony. Uttering of such verses does not confirm one to be a Christian.
[16] He was not adjusting his testimony at all. Mr. Najimiding's point was that his teacher was Han Chinese, most of whom are atheists and follow the Communist policies of the government. He said it was very unusual in China for people to say "God Bless you" unless they had a particular faith. The point was that he suspected her of being a person of faith. He suspected her of being a Christian. Perhaps somebody else would have suspected her of being Muslim or Buddhist. However, this led to a line of inquiry in which she confirmed she was a Christian.
[17] Mr. Najimiding was also criticized for coming of age, for having the courage to give witness publicly. It simply will not do to use this courage as a basis of attacking credibility.
[18] The Panel says that Mr. Najimiding did not establish that he had been in Beijing and studied there. His explanation that he did not have school records is that he did not graduate. However, he produced photographs from his school showing his teacher and his classmates. One of the early problems with interpretation was that the interpreter did not want to continue because she herself had attended that very school!
[19] Not only is it to be presumed that a claimant is telling the truth (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), there is not a shred of evidence to justify the Panel's refusal to believe Mr. Najimiding. A patently unreasonable error is one based on an absence of any evidence capable of supporting the decision. There are many such errors (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 at pages 340, 341, and Mehrdadian, supra).
[20] The Panel's finding of lack of credibility derives from the drawing of inferences. There is no reason to suppose, on the facts of this case, that the Panel had specialized knowledge and personal experience which would give it particular insight in assessing the claimant. The Panel erred in using its own religious and cultural experiences outside China in concluding that Mr. Najimiding lacked credibility. A case on point is the decision of Teitelbaum J. in Mama v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1515 (QL). Although the panel in that case was criticized for drawing on its own personal experiences, the finding was not disturbed as it was not apparent that it had "virtually founded its decision in a capricious manner". The decision in this case was capricious.
[21] Even absent specialized knowledge, a panel should not be quick to apply North American logic and reasoning to a claimant's behaviour. Consideration should be given to his or her age, cultural background and previous social experience (R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] FCT 116, per Martineau J., at paragraph 12).
[22] For all these reasons judicial review is granted and the matter referred back to a differently constituted panel.
"Sean Harrington"
Judge
Ottawa, Ontario
April 2, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5783-03
STYLE OF CAUSE: AHEMAITI NAJIMIDING
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MARCH 24, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: APRIL 2, 2004
APPEARANCES:
Diane Nancy Doray FOR APPLICANT
Sébatien DaSylva FOR RESPONDENT
SOLICITORS OF RECORD:
Diane Nancy Doray FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General for Canada
Date: 20040402
Docket: IMM-5783-03
Montreal, Quebec, this 2nd day of April, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
AHEMAITI NAJIMIDING
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
In accordance with the reasons given therefor, this application for judicial review is hereby granted. The decision of the Refugee Protection Division of the Immigration and Refugee Board, dated 8 July 2003 is quashed, and the matter shall be sent back to the Board for redetermination by a differently-constituted panel.
"Sean Harrington"
Judge
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