Date: 20020917
Docket: IMM-358-02
Neutral citation: 2002 FCT 954
Ottawa, Ontario, Tuesday the 17th day of September 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
XIU QING SHI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] A single error is said to have been made by the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") when it considered Ms. Shi's claim to status as a Convention refugee. That error is said to be in rejecting her baptismal certificate, which was said to be independent and objective evidence of Ms. Shi's Christian faith, without offering to her an opportunity to clarify apparent deficiencies or inconsistencies in the document. The effect of the error is said to vitiate the decision because it prevented the CRDD from examining Ms. Shi's sur place claim.
[2] Ms. Shi claims status as a Convention refugee alleging a well-founded fear of persecution due to her Christian religion. She says that as a result of her religious proselytizing in Fujian province in the People's Republic of China, she lost her job at a school where she was completing the one-month practicum required in order to obtain her teacher's diploma.
[3] Ms. Shi's claim was denied by the CRDD because her testimony was not believed and because the CRDD was not satisfied that she had established the objective basis for her alleged fear of persecution.
[4] Ms. Shi's testimony was found to be incredible based upon inconsistencies with respect to her educational history and work history. The CRDD found her testimony that she endorsed Christianity in her classroom not to be credible because she was a student on a practicum and was thus under supervision.
[5] The CRDD found it implausible that a teacher in China would be permitted to meet with students in their own dormitory rooms outside of school hours. Ms. Shi gave conflicting testimony as to the rules teachers were to follow. The CRDD also found it to be implausible that the police continued to actively seek Ms. Shi for a crime as minor as handing out Christian publications, given the large number of Christians in her home province of Fujian.
[6] The CRDD noted that Ms. Shi encountered no difficulty obtaining a changed hukau and that she travelled out of China on her own passport without difficulty. The documentary evidence before the CRDD indicated that frontier guards would likely have checked Ms. Shi's passport against their computer records.
[7] The CRDD noted the culminating incident was described in Ms. Shi's personal information form simply as "On April 2, 2000, the church organized various activities". In oral testimony the incident was described as handing out pamphlets in the street which encouraged people to become Christians.
[8] The CRDD drew a negative inference from the fact that Ms. Shi was not baptized in China. It rejected her explanation that no good and proper time to be baptized had arisen because a baptism would not be undertaken for just one person. The CRDD rejected the explanation because it found it to be unreasonable that Ms. Shi could not find an occasion on which to be baptized during her two years in China after her conversion in circumstances where she was allegedly so fervent a believer that she was willing to practise and proselytize despite the risk it represented to her career.
[9] The CRDD noted that Ms. Shi could not articulate anything about her faith which compelled her to proselytize with her students, and that she only vaguely described her beliefs as "believing in Jesus" and that He saved her and she will go to heaven.
[10] The baptismal certificate tendered in evidence before the CRDD was given no weight because the name of the pastor who signed it was illegible and the certificate was silent as to the address for the church and its denomination.
[11] It is admitted that the signature of the pastor is illegible and the certificate is silent as to address and denomination.
[12] In my view, for the reasons that follow, the CRDD did not commit a reviewable error in giving no weight to the baptismal certificate.
[13] As the above discussion of its decision reflects, the CRDD did not believe Ms. Shi's testimony, and gave ample reasons for finding her allegations not to be credible. I am satisfied from reading the reasons of the CRDD as a whole that in finding that Ms. Shi is not a Christian, the CRDD relied upon the totality of the evidence before it. That conclusion was not based simply upon rejection of the baptismal certificate.
[14] In substance, the CRDD found it implausible that Ms. Shi would wait nearly two years after her conversion, during which time she was allegedly seeking conversions in others, to become baptized. This was a finding open to the CRDD on the evidence.
[15] Ms. Shi's counsel sought and obtained from Ms. Shi her explanation as to why she waited so long after her conversion to be baptized. Thus, she was afforded the opportunity to address the CRDD's concern in this regard. Ms. Shi's claim was not enhanced by her inability to describe her beliefs other than in vague terms.
[16] As to the specific error alleged, Ms. Shi was asked about the denomination of the church and was unable to answer.
[17] I am not satisfied that the CRDD committed a reviewable error by failing to ask Ms. Shi to comment upon the illegible signature of the pastor or the lack of an address of the church because those things were self-evident on the face of the document. Their presence or absence, go to how the document is to be weighed. The CRDD is not obliged to provide a running commentary on whether it finds evidence persuasive or unpersuasive.
[18] To the extent that it is argued that in rejecting the baptismal certificate the CRDD was prevented from considering the sur place claim, the certificate was relevant only to whether Ms. Shi was a Christian. It was not by itself relevant to the issue of whether she was a proselytizing Christian.
[19] However, the CRDD did consider whether simply following a Christian religion in Ms. Shi's home province in China would give rise to a well-founded fear of persecution. The documents before the CRDD established that Protestantism is one of the five officially recognized religions in China (and Ms. Shi testified that she was Protestant). The CRDD concluded that the objective documentary material before it did not establish that simply following a Christian religion would put one at odds with the state so as to give rise to an objective fear of persecution. This finding is not challenged.
[20] It follows that even if the CRDD had believed that Ms. Shi had converted to Christianity and had been baptized in Canada, there would not be an objective basis for a fear of persecution based on simple adherence to a Christian religion. There was therefore no basis for a sur place claim based solely on baptism and following a Christian religion.
[21] For these reasons, the application for judicial review is dismissed.
[22] The applicant sought certification of the following question:
When a Tribunal's decision is based in part on a negative assessment of documentary evidence where the Applicant was not offered an opportunity to clarify it's apparent deficiencies or inconsistencies, must there be a new hearing since the Court is not entitled to substitute its own assessment of the evidence had that error not been made, or, are their circumstances where such an error in the assessment of the evidence will not impugn the decision rendered?
[23] The Minister opposes certification of the question on the ground that the law is well established that the tribunal is obliged to provide a meaningful opportunity to be heard, and that this case turns simply upon whether as a matter of fact that duty was met. Therefore, the decision is said to be so fact specific that the case is not appropriate for certification.
[24] I agree. Moreover, with respect to whether an error in the assessment of evidence will impugn the decision, I believe the law is well settled in decisions such as Patel v. Canada (Minister of Citizenship and Immigration), 2002 F.C.A. 55; Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at page 228 and Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.).
[25] Therefore, no question will be certified.
ORDER
[26] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson" _____________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-358-02
STYLE OF CAUSE: Xiu Qing Shi v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 29, 2002
REASONS FOR ORDER : DAWSON J.
DATED: September 17, 2002
APPEARANCES:
Douglas Cannon FOR APPLICANT
Sandra Weafer FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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