Date: 20100517
Docket: IMM-3129-09
Citation: 2010 FC 544
Ottawa, Ontario, May 17, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
LIPENG
YIN
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated May 14, 2009 (Decision), which refused the Applicant’s
application to be deemed a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 26-year-old citizen of the People’s Republic of China (China). He began attending a
Christian church while studying in Canada on a student visa.
[3]
The
Applicant returned to China in December, 2006 to
visit his ailing grandmother. While in China, the Applicant attended a registered church,
which he decided was closely connected to the Communist party. The Applicant
left this church to attend an underground church. The underground church was allegedly
raided by the Public Security Bureau (PSB) in March, 2007. The Applicant says
he was beaten by police officers and taken to the police station. At the police
station, he says he was beaten again, interrogated and detained. The Applicant
was made to sign a letter of regret before his parents were able to use their
connections to pay to have him released. After his release from prison, the
Applicant says he obtained medical treatment for his injuries.
[4]
The
Applicant returned to Canada in April, 2007. He
filed for refugee protection on October 17, 2007.
DECISION UNDER REVIEW
[5]
The
RPD held that the central issue in the Applicant’s claim was credibility. The
RPD did not find the claimant to be a credible witness with regard to his story
of having fears related to his membership in an underground Christian church
and his fear of arrest and punishment at the hands of the PSB in China.
[6]
The
Applicant alleged that he required medical treatment for the injuries he
sustained during the beating. He provided a document dated March 17, 2006 for
treatment he received at a clinic on March 11, 2006, and explained that he
received the document when he left the clinic. The RPD found that “to the naked
eye, the month and year on the document appear[ed] to have been altered, in
that the numbers in the date appear to [have been] erased and replaced and
[were] also darker in appearance.” The Applicant had no explanation for this
alteration. Furthermore, the RPD found that a translation of the medical
document showed that the date on the document was March 17, 2006 instead of
March 17, 2007. No explanation was provided for this, nor did the Applicant
dispute the translation.
[7]
The
RPD drew negative inferences from date discrepancies between the document and
the translation as well as the alteration on the dates of the original
document. The RPD did not believe counsel’s suggestion that these alterations
could have been made by the “physician author.” The RPD determined, on a
balance of probabilities, that the date on the document had been altered to
bolster the Applicant’s evidence. As such, the RPD accorded little weight to
the document.
[8]
The
RPD also found it unreasonable that the staff and physician at the hospital would
not inquire how the Applicant had sustained the injuries described in the
medical report if they were as extensive as the Applicant alleged.
[9]
The
RPD also drew a negative inference from the Applicant’s delay in claiming
refugee status. It found
on a balance of probabilities, that the
claimant did not claim for protection at the earliest opportunity because he
did not fear for his life. Neither is the fact that the claimant was living in Canada, without legal status and in
danger of deportation, consistent with his alleged subjective fear.
[10]
The
Applicant further failed to include in his Personal Information Form (PIF) that
the police had given a list of names to customs agents so he would not again be
able to enter China. The RPD drew a
negative inference from this “significant omission in his PIF.”
[11]
In
summary, the RPD determined as follows:
Based on the analysis and the cumulative
effect of the negative inferences and findings, as well as the claimant’s
inability to provide reasonable explanations, in addition to the claimant’s
delay in claiming for refugee protection, that the claimant is not, nor has
ever been, a member of an underground Christian church in China, nor was he
arrested, detained and beaten by the PSB because of his underground religious
activities.
[12]
While
the Applicant provided a baptism certificate and a letter from his church in
Canada, the RPD gave this evidence no weight with regard to the claimant’s
allegations that the PSB in China
arrested and beat him and are continuing to look for him. While the RPD
accepted that the Applicant had knowledge of Christianity, it found that – based
on its finding of credibility – he likely acquired such knowledge in Canada to bolster a
manufactured refugee claim and not because he is committed to Christianity. In
fact, the RPD determined that “since finding that [he] is not a member of an
underground Christian church in China, I further find that he is not a
Christian in Canada.”
[13]
The
RPD then determined that the Applicant could, on a balance of probabilities,
return to China without fear of
persecution. Indeed, it determined that “if the claimant wishes to become a
Christian and practise this religion in China…he can do so freely in a registered church.” Furthermore,
the RPD determined that “there is evidence that house churches are discouraged
but increasingly tolerated.”
[14]
The
RPD rejected the Applicant’s allegation that he could not attend a registered
church because registered churches in China are controlled by the government and put the Communist
party above God. Rather, the RPD found that “the Bible used in both registered
and unregistered Christian churches…are the same.” As a result, the RPD
determined that “the claimant could find a patriotic church and he could attend
with the doctrine he alleges he believes in, given that the Bibles used in both
the underground and registered churches…are similar.”
[15]
Based
on the cumulative findings and negative inferences, the RPD found that the
Applicant’s claim was not made in good faith. The RPD then cited a Refugee
Status Appeal case from New
Zealand to
find that “if there is no good faith requirement in the sur place
situation, it places in the hands of the claimant for refugee status the means
of unilaterally determining the grant to him or her of refugee status.”
ISSUES
[16]
The
issues raised by the Applicant can be summarized as follows:
1. Whether the
Applicant’s right to natural justice or procedural fairness was breached;
2. Whether the
RPD erred in its consideration of the evidence before it;
3. Whether the
RPD breached the Applicant’s rights under the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (U.K.), 1982, c. 11;
4. Whether the
RPD applied the correct legal test in considering the Applicant’s conversion;
5. Whether the
RPD erred in its credibility findings;
6. Whether there
is a reasonable apprehension of bias.
STATUTORY PROVISIONS
[17]
The following
provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD
OF REVIEW
[18]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[19]
The
Applicant has brought issues to the Court regarding procedural fairness for
which correctness is the appropriate standard. See Weekes (Litigation Guardian) v. Canada (Minister of Citizenship and
Immigration), 2008 FC
293, 71 Imm. L.R. (3d) 4 and Dunsmuir, above. Accordingly, correctness
will be the standard of review in considering whether the RPD erred in
providing inadequate reasons and by relying on international jurisprudence.
[20]
Correctness is also
the appropriate standard when considering whether the RPD exceeded its
jurisdiction. See Dunsmuir, above. Similarly, whether the RPD
applied the correct legal test is to be considered on a standard of
correctness. See Golesorkhi v. Canada (Minister of Citizenship and
Immigration), 2008 FC 511, [2008] F.C.J. No. 637 at paragraph 8, and Dunsmuir,
above.
[21]
The Applicant has also alleged a reasonable apprehension of bias.
The existence of a reasonable apprehension of bias is reviewable on a standard
of correctness. See Dhaliwal v. Canada (Minister of
Citizenship and Immigration), 2010 FC 7, [2010] F.C.J. No. 12 at paragraph
27.
[22]
Whether
the RPD erred in its consideration of the evidence before it is an issue of
fact. As such, it is to be considered on a standard of reasonableness. See Dunsmuir,
above, at paragraph 51. Reasonableness is also the correct standard in
considering whether the RPD erred in its finding of credibility. See Aguierre
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] F.C.J. No. 732.
[23]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
Breach of
Natural Justice and Procedural Fairness
Inadequate
Reasons
[24]
The
Applicant submits that the reasons of the RPD are inadequate. As stated by R
v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, reasons should not be
unintelligible and thus incapable of proper judicial scrutiny on appeal. The
Applicant contends that this is the problem in the present case.
[25]
The
RPD also erred in ignoring the evidence before it and by failing to address
this evidence in its reasons. The reasons of the RPD ought to set out the
findings of fact and must address the major points in issue. See Thalang v.
Canada (Minister of Citizenship and Immigration), 2007 FC 743, [2007]
F.C.J. No. 1002 at paragraph 15.
[26]
In
the present case, the RPD erred in failing to explain why the Applicant could
freely worship in state-run churches when it has been determined that others
cannot. Indeed, the RPD ignored the “avalanche” of documentary evidence which
demonstrates that no free worship is allowed in patriotic churches.
Reliance on
International Jurisprudence
[27]
The
Applicant contends that the RPD erred in relying on a New Zealand Refugee Status
Appeal case without prior notice to his counsel. The RPD’s reliance on this
decision resulted in an unfair hearing which constitutes a breach of procedural
fairness and natural justice. The Applicant suggests this is similar to the
case of Osadolor v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 87, in which it was
determined that “the panel erred in its decision…by reliance upon an unreported
decision in an earlier case, to which it had not provided opportunity for the
applicant to comment.” See Osalador, above, at paragraph 7.
Exceeded Jurisdiction
[28]
The
RPD exceeded its jurisdiction in finding that the Applicant would be “free” to
worship in “state-run” and “patriotic” churches. The Applicant suggests that
“this type of minute analysis of religious orthodoxy…constitutes a
jurisdictional error.”
Charter Breaches
[29]
The
Applicant also argues that the RPD breached his right to freedom of religion, since
“every individual [is] free to hold and to manifest whatever beliefs and
opinions his or her conscience dictates.” See R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, [1985] S.C.J. No. 17 at paragraph 123 (QL). Moreover, the
Supreme Court has held that the definition of religious practices for the
purpose of section 2(a) should be broadly interpreted. See Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551. According to the Supreme
Court, “courts should avoid judicially interpreting and thus determining,
either explicitly or implicitly, the content of a subjective understanding of
religious requirement, ‘obligation’, precept, ‘commandment’, custom or ritual.”
See Amselem, above, at paragraph 50.
[30]
The
Applicant contends that, based on paragraphs 51-52 of Amselem, he only
has to show the “sincerity of [his] belief which implies an honesty of [his]
belief, and the inquiry into sincerity of belief should be as limited as
possible.”
[31]
The
Applicant submits that the RPD also breached his section 15 Charter rights
by “discount[ing] other forms of Christian worship.”
[32]
The
evidence before the RPD demonstrates that China does not
recognize freedom of religion outside of the state-controlled system in which
all churches are required to register. The RPD erred in ignoring this evidence
and in concluding that the Applicant would be free to practise his religion in China.
[33]
Since
the RPD’s Decision discriminates against the Applicant as a Chinese Christian,
the Applicant also suggests that his section 7 Charter rights to life,
liberty and security of the person have been violated.
Consideration
of Evidence
[34]
In
considering the plausibility of the Applicant’s attending a state-sanctioned
church, the RPD made an error similar to that which was canvassed in Zhu v.
Canada, 2008 FC 1066, [2008] F.C.J. No. 1341. In Zhu, the applicant
stated that she did not want to attend a state-sanctioned church because it did
not place God first. The Court held that the “church fails to follow one of her
principal beliefs. This is the conviction that should have been analyzed by the
Board.” See Zhu, above, at paragraph 14. Such an assessment should also have
been made in the case at hand.
[35]
Furthermore,
in this case, as in Song v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1321, [2008] F.C.J. No. 1668, the
approach taken by the RPD is “consistent with its speculative findings that
disregard highly material evidence put forward by the Applicant.” See Song
at paragraph 70.
Failure to
consider specific factors
[36]
The
Applicant further contends that the error committed by the RPD with regard to his
sur place claim was similar to that considered in the case of Ejtehadian
v. Canada (Minister of Citizenship and Immigration), 2007 FC 158, [2007]
F.C.J. No. 214 in which the Court determined in paragraph 11 that
even if the Applicant’s motives for
conversion are not genuine…the consequential imputation of apostasy to the
Applicant by the authorities in Iran
may nonetheless be sufficient to bring him within the scope of the convention
definition.
[37]
This
has also been considered in the Chinese Christian context in which the Court has
found that “whether the applicant is a sincere practitioner or not, a relevant
consideration under subsection 97(1) was the potential risk to life or risk of
cruel and unusual treatment or punishment, in view of his perceived involvement
in Falun Gong through his activities in Canada.” See He v. Canada (Minister of
Citizenship and Immigration), 2009 FC 502, [2009] F.C.J. No. 637 at
paragraph 19. Indeed, the RPD erred in failing to properly consider this factor.
Wrong Legal
Test
[38]
The
RPD further erred in applying the wrong legal test with regard to the
Applicant’s conversion. As determined by the Court in Jiang v. Canada
(Minister of Citizenship and Immigration), 2008 FC 635, [2008] F.C.J. No.
808 at paragraph 15,
This Court has consistently held that
even when the Board has determined that an Applicant’s claim of religious
persecution in his country of origin is not credible either because he was
found not to have been a member of the particular religious group, or because
he was found not to be persecuted, the Board still must determine either
implicitly or explicitly whether he is now in fact a member of that group and
whether he would face persecution upon [his] return.
[39]
The
Court in Jiang, above, at paragraph 22, further considered a finding of
a lack of credibility and determined that
where there is evidence before the Board
regarding an Applicant’s Canadian religious involvement, in order for the
Board’s conclusion that an applicant is not currently a good faith member of a
particular religious group to be reasonable, the Board must address this
pertinent evidence and indicate why it was not found to be relevant or
trustworthy.
Implausibility
Findings
[40]
The
RPD determined that the Applicant’s conduct, as well as that of the Chinese
officials, was “unreasonable” or “implausible.” The Applicant likens the case
at hand to that of Giron v. Canada (Minister of Employment
and Immigration), 143 N.R. 238, [1992] F.C.J. No. 481 in which the Federal
Court of Appeal held that the Board
chose to base its finding of lack of
credibility…on the implausibility of the claimant’s account in the light of
extrinsic criteria such as rationality, common sense, and judicial knowledge,
all of which involve the drawing of inferences, which triers of fact are in
little, if any, better position than others to draw.
[41]
A
lack of credibility based on the extrinsic criteria considered in Giron is
less insulated from judicial review than a finding of credibility based on
problems internal to the Applicant’s testimony. See Ye v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 584. As such, the Court
should be willing to intervene with regard to the unreasonable findings made by
the RPD in this case.
[42]
The
RPD further erred in failing to put any alleged contradictions to the Applicant
for explanation. As cited in Malala v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 94, [2001] F.C.J. No. 290 at paragraph 15,
“inconsistencies in the claimant’s evidence from which a board may find a
refugee claimant not credible must be put to the claimant and the claimant
afforded an opportunity to explain the alleged inconsistencies.”
[43]
A
presumption of truth applies to the Applicant’s allegations. See Maldonado
v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302, [1979] F.C.J. No. 248. The
RPD erred in not applying the presumption of truth to the Applicant’s
testimony. Rather,
the RPD
searched for inconsistencies in the Applicant’s evidence to support its
negative finding of credibility. This is clearly erroneous.
[44]
According
to Dong v. Canada (Minister of Citizenship and Immigration), 2006
FC 314, [2006] F.C.J. No. 414 at paragraph 3, jurisprudence teaches that
a tribunal must be careful when rendering
a decision based on a lack of plausibility because refugee claimants come from
diverse cultures, and actions which appear implausible when judged from
Canadian standards might be plausible when considered from within the
claimant’s milieu.
The RPD failed to consider the Applicant’s
culture and norms in making its assessment of his evidence and credibility.
[45]
Moreover,
this Court has held that it is “dangerous to make findings of implausibility
based on evidentiary inferences.” See Chen v. Canada (Minister of
Citizenship and Immigration), 2007 FC 270, [2007] F.C.J. No. 395 at
paragraph 15. Also, the Court in Xu v. Canada (Minister of
Citizenship and Immigration), 2007 FC 274, [2007] F.C.J. No. 397 at
paragraph 17 found that plausibility findings should be made only
in the clearest of cases, such as where
the facts are so far outside the realm of what could reasonably be expected
that it could not happen as described, or where there is documentary or other
evidence which demonstrates that events could not happen as described.
In the case at hand, the RPD erred by
making erroneous findings of plausibility based on evidentiary inferences. The RPD’s errors
were compounded by conducting a microscopic analysis with regard to the
Applicant’s claim.
Perverse and Capricious Credibility
Finding
[46]
The
Applicant submits that the RPD also erred in its assessment of his credibility.
Indeed, the RPD focused on what the documentary evidence did not say and failed
to consider what the documentary evidence did say.
[47]
The
Federal Court has determined that a finding of credibility cannot be made from
a lack of evidence. See Mui v. Canada (Minister of Citizenship and Immigration), 2003 FC 1020, [2003] F.C.J.
No. 1294. As acknowledged by the Court in paragraph 35 of Mui, “while a
failure to offer documentation may be a valid finding of fact, it cannot be
related to the applicant’s credibility, in the absence of evidence to
contradict the allegations.”
[48]
The
Applicant further submits that the Board was inconsistent in its findings of
credibility, making “contradictory findings of negative credibility when the
evidence strongly supports the claim, and positive findings of credibility when
the evidence undermines the claim.” Such a treatment of the evidence has been held
to be an error by the Federal Court of Appeal. According to the Court in Hilo
v. Canada (Minister of Employment
and Immigration),
5 Imm. L.R. (2d) 199, [1991] F.C.J. No. 228, “this selective treatment in
respect of various segments of the appellant’s testimony is not calculated to enhance
one’s confidence in the Board’s assessment of the appellant’s credibility.”
[49]
In
this instance, the RPD made its finding of credibility based on an examination
of the evidence that was perverse and capricious.
Reasonable
Apprehension of Bias
[50]
Finally,
the Applicant contends that the RPD’s Decision shows a reasonable apprehension
of bias. He suggests that the apprehension of bias can be seen in the RPD’s:
a.
Disregard
of relevant jurisprudence;
b.
Disregard
of material evidence;
c.
Findings
of implausibility;
d.
Microscopic
analysis of the evidence; and
e.
Reliance
on foreign jurisprudence without notice to counsel.
The Respondent
Credibility
[51]
The RPD
considered all the evidence before it in determining that the Applicant was not
credible. The Federal Court of Appeal has determined that the RPD is entitled
to make negative findings of credibility so long as the reasons for doing so
are stated in “clear and unmistakable terms.” See Hilo, above. The RPD
explained numerous concerns with the Applicant’s evidence, including
implausibilities, contradictions, as well as delay in making his claim. The RPD
then put these inconsistencies and contradictions to the Applicant for explanation.
However, the Applicant failed to offer a convincing explanation for the
inconsistencies and contradictions.
[52]
The
RPD drew a negative inference from the date discrepancies between the medical
document provided and the translation of the document. It also drew a negative
inference from the visibly altered date on the medical document. The Applicant
failed to provide a credible explanation for this altered date, and the
explanation provided by the Applicant’s counsel was speculative.
[53]
The
RPD drew a further negative inference from the significant omission in the
Applicant’s PIF. The RPD also determined it was implausible that the hospital
staff and physician would not ask the Applicant how he sustained the wounds
listed in the medical report.
[54]
The
RPD also noted the Applicant’s delay in making a refugee claim, and found that
he did not claim refugee status at the earliest opportunity because he did not subjectively
fear for his life.
[55]
The
RPD is entitled to make a determination that an applicant’s testimony is not
credible. As stated by the Court in Sheikh v. Canada (Minister of Employment
and Immigration),
[1990] 3 F.C. 238, [1990] F.C.J. No. 604,
Even
without disbelieving every word an applicant has uttered, a…panel may
reasonably find him so lacking in credibility that it concludes there is no
credible evidence relevant to his claim… In other words, a general finding of a
lack of credibility on the part of an applicant may conceivably extend to all
relevant evidence emanating from his testimony.
[56]
The credibility
findings made by the RPD in this case were clearly based on the evidence
presented by the Applicant. In addition, the RPD’s finding of credibility was
based on central factors of the Applicant’s claim.
Implausibility Findings
[57]
The
Federal Court of Appeal has determined that the RPD has jurisdiction to
determine the plausibility of testimony so long as the inferences drawn by the
RPD are not so unreasonable as to warrant intervention. See Aguebor v. Canada (Minister of Employment
and Immigration),
160 N.R. 315, [1993] F.C.J. No. 732.
[58]
The
RPD’s finding that it was implausible that the staff and physician would not
inquire as to how the Applicant sustained his wounds was reasonable. The RPD’s
finding was open to it, and the fact that more than one conclusion can be drawn
from the same evidence does not warrant judicial intervention.
[59]
The
RPD is not required to accept the Applicant’s testimony simply because it is
not contradicted. Rather, the RPD is entitled to make reasonable findings based
on implausibilities, common sense and rationality. See, for example, Alizadeh
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11; Aguebor,
above; and Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415.
Indeed, the RPD may reject evidence where it is inconsistent with the
probabilities affecting the case as a whole.
[60]
The
Respondent submits that the RPD’s assessment of credibility should not be
disturbed where an oral hearing has been held and where the Board has had the
advantage of seeing and hearing the witness. This is rebuttable if the Court is
satisfied that the Board based its conclusion on irrelevant considerations or
ignored evidence; however, this has not been demonstrated by the Applicant. See
Aguebor, above.
No Presumption of
Truthfulness
[61]
No
presumption of truth arises until an applicant has satisfied the RPD that he is
generally credible. The Respondent contends that a precondition to the
application of the presumption of truthfulness is “an absence of reasons to
doubt the truthfulness of such testimony.” See Maldonado, above and Goshi
v. Canada (Minister of Citizenship and Immigration), 182 F.T.R. 285, [2000]
F.C.J. No. 735. The Applicant failed to establish material aspects of his claim
with credible evidence. As a result, the presumption of truth does not arise in
the case at hand.
The RPD Considered all
the Evidence
[62]
The
Applicant has not demonstrated that the RPD ignored any of the evidence before
it. The Applicant simply disagrees with the RPD’s assessment of the evidence.
However, this assessment is completely within the discretion of the RPD. See Aguebor,
above.
[63]
Furthermore,
the RPD is presumed to have considered all of the evidence before it, whether
or not it indicates having done so in its reasons. The RPD is entitled to give
some documents more weight than others, and it is granted a large amount of
discretion in its assessment. See Florea v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 598; Hassan v. Canada (Minister of Citizenship and Immigration),
147 N.R. 317, [1992] F.C.J. No. 946; Velinova v. Canada (Minister of
Citizenship and Immigration), 2008 FC 268, [2008] F.C.J. No. 340 at paragraph
21. The fact that the RPD did not accept some of the Applicant’s evidence does
not demonstrate that this evidence was ignored or misconstrued.
Sur Place Claim
[64]
The
RPD also determined that the Applicant could return to China without fearing
persecution if he were to decide to continue practising Christianity. The RPD
found that the Applicant could practise his religion at a registered church.
[65]
In
order to be a refugee sur place, the Applicant must show an objective
basis for his subjective fear of prosecution. See Kante v. Canada (Minister of Employment
and Immigration),
[1994] F.C.J. No. 525. The Applicant has not discharged this onus.
[66]
The
RPD did not apply the “credibility of conversion test” to the Applicant’s sur
place claim, as alleged by the Applicant. The RPD’s finding that the
Applicant may have acquired his knowledge of Christianity to bolster a
manufactured refugee claim helped support its finding that the Applicant was
not a Christian in Canada. The Respondent
contends that the Board assessed the sur place claim, as if he was
Christian, on the documentary evidence on Christianity in China. Accordingly, the case
at hand can be distinguished on its facts from the case of Jiang, above,
which was cited by the Applicant.
[67]
The
case at hand is also distinguishable from He, above, since there is no
evidence that people who practise Christianity in Canada would be subject to
persecution in China for their religious activities in Canada, unlike those who
practise Falun Gong.
The Applicant is Free to
Practise his Religion in China
[68]
The
RPD conducted a thorough analysis and determined that the Applicant could
practise Christianity freely as a member of a registered church. The RPD’s Decision
was based on specific evidence before it, including articles from Christian
Science Monitor. It is the RPD’s prerogative to assign weight to the
evidence before it.
[69]
The
RPD also rejected the Applicant’s argument that he could not attend a
registered church because it puts the Communist Party above God. In making this
determination, the RPD weighed the evidence before it and determined that the
Applicant could worship in a patriotic church because the Bibles used by
registered churches were similar to those used in underground churches. This
conclusion was reasonable.
No Charter
Violations
[70]
The
Applicant has not demonstrated that his Charter rights were violated. The
Applicant’s Charter arguments lack a factual foundation. The Respondent
submits that the Charter should not be raised in a factual vacuum. To do
so would trivialize the Charter and inevitably result in ill-considered
opinions. In consideration of a Charter claim, it is vital to have a
solid factual foundation. See, for example, Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086,
[1990] S.C.J. No. 92.
[71]
The
RPD determined that the Applicant failed to provide credible evidence of his
status as a practising Christian. Furthermore, the RPD determined that there
were opportunities for the Applicant to practise Christianity in China. The Respondent submits
that these findings do not affect a Charter right.
[72]
The
RPD found that the Applicant failed to establish that he practised Christianity
while in China. Based on the evidence
before it, the RPD determined that “the claimant is not, nor has he ever been,
a member of an underground Christian church in China, nor was he arrested, detained
and beaten by the PSB because of his underground religious activities in China.” The Applicant’s
allegations of Charter breaches overlook the factual findings made by
the RPD. Furthermore, the Applicant is attempting to assert the application of Charter
rights to the laws of China.
[73]
Similarly,
the Applicant’s allegation that the RPD lacked jurisdiction has no factual
foundation.
Zhu and Song are
Distinguishable
[74]
Although
the Applicant contends that Zhu and Song lend support to his
allegations of errors made by the RPD, the Respondent submits that these cases
are distinguishable.
[75]
In Zhu,
above, the Board determined that the applicant was Christian but that her
understanding of Christianity was “not sophisticated
enough that her religious needs could not be met within the framework of the
state-sanctioned church structure.” The Respondent contends that the
case at hand is distinguishable because the RPD determined that the Applicant
was not a member of an underground church, or a Christian in Canada. Nor did the RPD pass
judgment on the sophistication of the Applicant’s beliefs. Instead, the RPD
acknowledged that the Applicant was attending church in Canada, but determined that he
had not provided sufficient evidence that he was a practising Christian.
[76]
In Song¸
the Court found that the Board had failed to make a determination as to whether
the Applicant was Christian. The Court determined that the Board must undertake
a more extensive analysis of whether the Applicant was at risk of persecution
if he was returned to China. In the case at hand,
the RPD determined that the Applicant was not credible and was not a practising
Christian in Canada. Nevertheless, the RPD
undertook an assessment of his sur place claim and determined that the
Applicant was free to worship in a patriotic church in China.
[77]
The
Respondent contends that the RPD’s findings were reasonable. Furthermore, even
if the Applicant establishes that the RPD erred in determining that the
Applicant could worship at a patriotic church, the finding was “an alternative
claim.” This makes the case at hand distinguishable from Song.
Procedural Fairness and Natural
Justice
[78]
The
RPD’s reference to a refugee appeal from New Zealand does not equate to a breach of natural
justice. In the case at hand, unlike in Pompa, above, and Osadolor,
above, the RPD did not rely on the New Zealand decision to make a finding of fact.
Rather, this case was used as a “similar example of the Board’s conclusions.” Furthermore,
this finding made by the RPD was not determinative. The RPD did not base its Decision
on this finding; rather, the Decision was based on the numerous credibility
concerns.
Adequate Reasons
[79]
The
Applicant has not demonstrated that the RPD’s reasons were unintelligible or
inadequate. Reasons must set out the findings of fact and the principal
evidence on which a decision maker’s findings are based. They must also address
the major points in issue and canvass the relevant evidence. See VIA Rail
Canada Inc. v. Lemonde, [2001] 2 F.C. 25, [2000] F.C.J. No. 1685 at paragraphs
21-22.
[80]
The
reasoning process undertaken in this case makes it clear that the RPD set out
and considered the relevant factors before it. The simple fact that the RPD did
not discuss each piece of evidence before it is not fatal to its Decision. See,
for example, Hassan, above.
[81]
Furthermore,
the Applicant has failed to demonstrate prejudice to his right of judicial
review, as is required to prove the inadequacy of reasons. See Za’rour v. Canada (Minister of Citizenship
and Immigation),
2007 FC 1281, [2007] F.C.J. No. 1647 at paragraph 20.
No Apprehension of Bias
[82]
There
is no evidence and no sustainable assertion of bias in this case. The Applicant
is essentially arguing that a negative finding is sufficient to demonstrate
bias. This is clearly not the case. The RPD’s Decision would not give rise to a
reasonable apprehension of bias in the mind of an informed person, as required
by Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369,
68 D.L.R. (3d) 716.
[83]
While
the Applicant alleges a reasonable apprehension of bias against him, the fact
of the matter is simply that the RPD was not satisfied that the Applicant met
the definition of a Convention refugee or a person in need of protection.
ANALYSIS
[84]
The
Applicant has raised a broad range of issues for review but, in my view, this
matter either stands or falls on the central credibility findings of the RPD.
These findings are:
a.
“The
panel does not find the claimant to be a credible witness with regard to his story
of having fears related to his membership in an underground Christian church
and his fear of arrest and punishment at the hands of the PSB in China”;
b.
“When
the panel considers the claimant’s testimony as a whole, it finds he is not a
credible witness and he has not credible fear of persecution in China”;
c.
“In
summary, I find, based on the analysis and cumulative effect of the negative
inferences and findings, as well as the claimant’s inability to provide
reasonable explanations, in addition to the claimant’s delay in claiming for
refugee protection, that the claimant is not, nor has ever been, a member of an
underground Christian church in China, nor was he arrested, detained and beaten
by the PSB because of his underground religious activities in China”;
d.
“Since
finding that the claimant is not a member of an underground Christian church in
China, I further find that he is not a Christian in Canada. Any
knowledge that the claimant has learned about Christianity, could easily have
been learned here in Canada in order to manufacture this claim.”
[85]
The
RPD’s findings about what the Applicant alleged had occurred in China are
supported by a clear and reasonable assessment of the evidence and the
Applicant’s responses to questions put to him. The Applicant was given every
opportunity to address and explain the problems with his story raised by the
RPD, and the RPD gives clear and reasonable reasons as to why his explanations
are unacceptable.
[86]
This
being the case, the Applicant was reasonably found not to be a credible witness,
and not to have been a practising Christian in China.
[87]
In
the end, then, the reasonableness of the Decision comes down to the RPD’s
treatment of the Applicant’s sur place claim. As I read the Decision,
the Applicant’s evidence about his religious practices in Canada is rejected
by the RPD on the basis of a general negative credibility finding:
Given the panel’s finding that the
claimant is not a credible witness, the panel finds, on a balance of
probabilities, that the claimant has acquired his knowledge of Christianity in
Canada to bolster a manufactured refugee claim and not because he is so
committed to Christianity.
Since finding that the claimant is not a
member of an underground Christian church in China, I further find that he is not a
Christian in Canada. Any knowledge that the claimant has learned about
Christianity, could easily have been learned here in Canada in order to manufacture his claim.
[88]
The
problem here is that it was not just “knowledge” about Christianity that the
Applicant adduced to show that he was a practising Christian in Canada. He
provided his baptism certificate as well as a letter from his Pastor at the Toronto China Bible Church, and a
letter from a friend named Serena Liu. The Pastor said that the Applicant has
been regularly attending the church since May 1, 2006 and that he takes part in
church programs. Serena Liu says that she introduced the Applicant to
Christianity in May, 2006 and that he attends church regularly and is an active
member of the church.
[89]
The
Applicant’s activities at his church in Canada are not addressed by the RPD.
His knowledge of Christianity is referred to and discounted, but the evidence
of his regular attendance and participation in his church since May 2006 is not
specifically addressed. The rationale offered by the RPD is that because the
Applicant was not a member of an underground church in China he is, for
that reason, “not a Christian in Canada.”
[90]
This
logic is unreasonably flawed. The Applicant put forward a sur place
claim with evidence to show that he was a practising Christian in Canada. This
evidence is not assessed. The assumption appears to be that because his
experiences in China were not credible then everything he has done in Canada as a
practising Christian is a complete charade. If this is what the RPD felt, then
it needed to explain why the letters from the Applicant’s Pastor and Serena Liu
could reasonably be discounted. The Pastor’s letter is reasonably discounted in
so far as it speaks to events in China, but no mention is made of other parts
of the letter that speak to the Applicant’s activities in Canada. Serena
Liu’s letter is not even mentioned. Hence, the RPD appears to have overlooked
and left out of account evidence that directly contradicts its conclusion that
the Applicant “is not a Christian in Canada.” This is a reviewable error. See Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425.
[91]
If
the RPD intends to say that it considers the Applicant’s practises at his church
in Canada to be a complete charade, then it should have done so clearly with
reasons. Simply to say that because the Applicant was not a member of an
underground Christian church in China he is not, for that
reason, “a Christian in Canada” makes no sense and is unreasonable. Consequently,
such a finding cannot be upheld. See Dunsmuir, above at paragraph 47.
[92]
In
Sheik v. Canada (Minister of Citizenship and Immigration), [1990] 3 F.C.
238, the Federal Court of Appeal determined that “a general finding of a lack
of credibility on the part of an applicant may conceivably extend to all
relevant evidence emanating from his testimony.” In the present case, however,
the issue is different. The RPD entirely overlooked evidence from people who
had observed the Applicant practising Christianity in Canada.
[93]
The
Respondent cites the case of Sellan v. Canada (Minister of Citizenship and
Immigration), 2008 FCA 381 for the proposition that
[w]here the Board makes a general finding that the claimant lacks
credibility, that determination is sufficient to dispose of the claim unless
there is independent and credible documentary evidence in the record capable of
supporting a positive disposition of the claim. The claimant bears the onus of
demonstrating there was such evidence.
[94]
In
the present case, however, the Applicant did adduce independent and credible
evidence from his Pastor and fellow practitioner in Canada – both of
whom had observed the Applicant at church – that supported a positive
disposition of his sur place claim. That evidence was simply overlooked
or discounted because the RPD did not believe the Applicant’s story about what
had happened to him in China. The fact that the Applicant may not have
been a practising Christian in China does not mean he is not a sincere,
practising Christian in Canada, and there was evidence to suggest that he was
which the RPD should have assessed.
[95]
The
RPD appears to have been aware of some problem with its sur place
assessment because it went on to make a finding that the Applicant could, if he
wanted to practise Christianity, freely do so in China.
[96]
In coming to its conclusion, the RPD determined that “there is no
evidence that registered church members are constrained from practising their
religion freely.” The RPD also finds that upon his return to China, the
Applicant “could find a patriotic church and he could attend with the doctrine
he alleges he believes in.” The RPD’s justification for this finding is that
“the Bibles used in both the underground and registered churches with perhaps
possible exceptions, are similar.”
[97]
The RPD’s findings in this regard are unreasonable and rife with error.
There was ample evidence before the RPD that religion is not practised freely
within registered churches, and that the members of unregistered churches may
be persecuted. Indeed, there was specific evidence before the RPD with regard
to the differences between the religious practices in registered churches
versus those in unregistered churches, which could entice believers to turn to
unregistered churches in order to freely practise their faith.
[98]
The documentary evidence before the RPD contained a document whose sole
focus is the examination of the differences between the Chinese Patriotic Church
and unregistered Christian churches. The RPD overlooked this document within
its assessment. The evidence before the RPD showed that the religious
publications, activities and programs of registered churches are monitored by
the government. Furthermore, the evidence stated that there have been reports
that patriotic organizations occasionally interfere in doctrinal decisions of
registered religious groups. Moreover, according to International Religious
Freedom Report 2006, the Chinese government has been found to have demanded
that the clergy of registered religious groups publicly support government
policies.
[99]
There existed clear evidence before the RPD to support the Applicant’s
claim that he could not attend registered churches because they are “controlled
by the government and act as mouth pieces for the government.” The RPD
overlooked this evidence and focused instead on the similarities of the Bibles
used in both churches. The RPD erred in overlooking the documentary evidence
before it which spoke to the potential significant theological and political
differences between the registered and unregistered institutions. The RPD’s
assessment in this regard is beyond the range of reasonable conclusions that
could be drawn from the evidence before it.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The decision is set aside and the matter is returned
for reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
Email this Content