Date: 20010517
Docket: IMM-3277-00
Neutral citation: 2001 FCT 500
BETWEEN:
BI LIAN CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Bi Lian Chen (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") made on May 30, 2000. In its decision, the Board determined that the Applicant is not a Convention Refugee.
FACTS
[2] The Applicant is a citizen of China and claims Convention refugee status on the basis of a well-founded fear of persecution by the Government of China because of her religion.
[3] The Applicant claims to be an adherent of the Tian Dao religion. She described this religion as being composed of five religions that is Buddhism, Daoism, Christianity, Islam and a "new" religion, possibly Confucianism.[1] She claims to have been introduced to this religion in April 1998. She alleges that, following a distribution of pamphlets on behalf of this religion in June 1999, there was an arrest of a co-believer by the Public Security Bureau (the "PSB"). She says that the PSB had left a summons for her and were searching for her.
[4] The Applicant says that she fears for her safety and her ability to freely practice her religion if she is forced to return to China.
[5] The Board made a negative finding on the credibility of the Applicant, primarily on the basis of her demeanour during her hearing. The Board concluded that there was a lack of reliable information upon which to reach a positive determination on the Applicant's claim for Convention refugee status.
ISSUES
[6] The Applicant raises two issues in this application. First, she alleges that the Board erred in placing too much emphasis on her demeanour during the hearing. Second, she says that the Board erred in failing to assess whether she is, in fact, a Tian Dao believer.
APPLICANT'S SUBMISSIONS
[7] The Applicant argues that the Board erred in relying primarily on her demeanour during the hearing, to justify its conclusion that she lacked credibility. Alternatively, she submits that the Board erred in law by failing to state its conclusions as to whether or not she was an adherent of the Tian Dao religion.
[8] According to the Applicant, this is a reviewable error because the basis of her claim for Convention refugee status is persecution on the ground of religion. In the absence of a finding that she was a believer of the Tian Dao religion, the Applicant argues that the Board failed to properly weigh the evidence and reach a finding of fact which was a pre-requisite to assessing her claim of fear of persecution.
RESPONDENT'S SUBMISSIONS
[9] The Respondent take the position that the Board committed no error of law, that it assessed the Applicant's credibility on proper factors, including demeanour, and reached a reasonable conclusion which should be maintained by this Court.
[10] Furthermore, the Respondent argues that the Board's conclusion with respect to the Applicant's overall lack of credibility invites the inference that the Board rejected the Applicant's claim to be a believer of the Tian Dao religion, even though it made no concrete finding about the Applicant's belief in that religion.
[11] The Respondent cites and relies on the decision of Justice Teitelbaum in Yu v. Canada (The Minister of Citizenship and Immigration), [1998] F.C.J. No. 1043 to support this argument.
ANALYSIS
[12] It is well-established that assessment of credibility is part of the mandate assigned to the Board in its determination of claims for Convention refugee status and that demeanor is a factor that can be assessed in making credibility findings; see Mostajelin v. Canada, [1993] F.C.J. No. 28 and Wen v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 907.
[13] However, in my opinion, judicial deference to findings of credibility cannot serve to excuse the failure of a Board to clearly express itself on primary findings of fact. In this regard, I refer to the decision of Justice Rothstein in Chong v. Canada (Minister of Citizenship and Immigration) F.C.T.D., IMM-3438-97) at paragraph 4 where the learned Judge said as follows:
While I am reluctant to interfere with a decision based on a credibility determination, I am not satisfied that in this case the panel addressed and dealt with the primary issue before it. See Wang v. Canada (Minister of Citizenship and Immigration) (22 December 1997), Toronto IMM-250-97 (F.C.T.D.). In an abundance of caution, I think that this judicial review must be allowed and the matter remitted to a different panel for redetermination. The new panel should include in its determination whether it believes the applicant was a practicing Roman Catholic in China and if so, whether this presented any difficulty for him amounting to persecution and whether he has a well-founded fear of persecution in China as a result.
[14] Counsel for the Respondent argues that this decision is contrary to that of Justice Teitelbaum in Yu, supra, and urges me to follow Yu. I disagree.
[15] In my opinion, it is reasonable to expect that a Board will clearly express itself on primary issues arising from a claim for Convention refugee status. Here the Board could not conclude that the Applicant held a well-founded fear of persecution on religious grounds unless it found that she was a member of the religion in question. The Board failed to address this "primary issue" in its reasons.
[16] In the result, while recognizing the role of a Board in assessing credibility, I conclude that this Board erred by failing to address the primary issue before it, that is the well-foundedness of the Applicant's fear of persecution on the ground of religion.
[17] The application for judicial review is allowed and the matter is remitted to a different panel for redetermination, in accordance with these reasons.
[18] No question for certification was submitted.
ORDER
[19] The application for judicial review is allowed and the matter is remitted to a different panel for redetermination, in accordance with the reasons.
[20] No question for certification was submitted.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
May 17, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3277-00
STYLE OF CAUSE: BI LIAN CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, MAY 16, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, MAY 17, 2001
APPEARANCES BY: Ms. Vania Campana
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Lewis & Associates
290 Gerrard Street East
Toronto, Ontario
M5A 2G4
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010517
Docket: IMM-3277-00
Between:
BI LIAN CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
[1] Tribunal Record, pp. 176-177
Email this Content