Date: 20100512
Docket: IMM-5052-09
Citation: 2010
FC 524
Toronto, Ontario, May 12, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
lianyue zhong
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a rejection of the Applicant’s claim for
protection based on his fear of return to China as a Roman Catholic.
[2]
In its
decision the Refugee Protection Division (RPD) noted contradictions between the
Applicant’s PIF and his oral testimony. The Applicant based his claim on being
a member of an underground Roman Catholic Church. The contradictions arose
with respect to the particulars of the Applicant’s evidence on details such as:
whether church services were held inside or outside, whether the Applicant knew
the priest’s actual name, how often the priest attended, and whether the
Applicant knew at the time he first started attending church that it was
illegal. With respect to these contradictions, the RPD made the following statements:
[6] […] I was unable to adequately
clarify these contradictions at the hearing as the claimant was not well and
was unable to continue. The hearing was adjourned to another date. However,
on that date, though the claimant appeared, he was completely unresponsive and
was unable to testify. His daughter, Guixia Zhong, was appointed as his
Designated Representative at this time.
[7] I have considered the above
noted contradictions in the claimant’s testimony and the fact that he has not
provided a reasonable explanation for any of these contradictions due to his
medical state, which is noted in two medical reports submitted. I also note
that the claimant has provided a baptismal certificate, issued by Rev. Paul
Son, from his church in China. I have considered this
baptismal certificate and I do not find it plausible that an underground church
or the priest who presides over an underground church would provide any written
documentation regarding activities of that church, considering the serious
consequences of being discovered. Having considered this implausibility, as
well as the claimant’s statement at the hearing that the church met outside in
a courtyard and that while he was attending the church, he was not aware that
this was an illegal organization, I find, on a balance of probabilities, that
the church the claimant attended in China was not an illegal underground Roman
Catholic church. I further find, on a balance of probabilities, that the church
the claimant attended in China was a legal organization and
was therefore not raided by the Chinese authorities.
[3]
Quite
apart from the issue of due process related to the Applicant’s inability to
“adequately clarify” the contradictions due to his illness, the RPD found that
“the claimant was not a credible witness” (Decision, p. 5). With respect to
this global finding, and considering the implausibility findings also made, in
my opinion, it was illogical for the RPD to determine that the Applicant is a Roman
Catholic who attended a legal church that was not raided by the Chinese
authorities. The importance of this determination has an impact in the
decision under review which, I find, in my opinion, works an injustice:
[10] I have considered whether the claimant
can return to China and practice his faith
there. I have found that the church he attended in China was not an illegal organization and was
not raided by the authorities as alleged. I further find, on a balance of
probabilities, that if he were to return to China, he would legally be able to practice
his religion at that church.
[4]
The RPD’s
negative credibility findings do not conform to the law which is well
established: the RPD is under a duty to give its reasons for casting
doubt upon a claimant’s credibility in clear and unmistakable terms with clear
reference to the evidence (Hilo v. Canada (M.E.I.) (1991), 15 Imm. L.R.
(2d) 199 (F.C.A.); and (Leung v. Canada (M.E.I.) (1994), 81 F.T.R. 303
at paragraph 14). In my
opinion, the RPD did not meet this standard in the decision rendered, and, as a
result, I find that the decision is made in reviewable error.
ORDER
THIS COURT ORDERS that:
The decision under review is
set aside, and the matter is referred back to a differently constituted panel
for re-determination.
There is no question to certify.
“Douglas
R. Campbell”
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