Date: 20100120
Docket: IMM-3499-09
Citation: 2010 FC 55
Ottawa, Ontario, January 20,
2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
YI
SHENG DONG
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated April 22, 2009 concluding that the applicant,
a Chinese citizen, is not a Convention refugee or a person in need of
protection pursuant
to sections 96 and 97 of the Immigration and Refugee Protection Act
(IRPA), S.C. 2001, c. 27 because of his Christian religion.
FACTS
Background
[2]
The
twenty-three (23) year old applicant is a citizen of China. He left China and arrived
in Canada on December
17, 2007 and claimed refugee status on January 3, 2008.
[3]
The
applicant is an electronics store clerk with a high school diploma who resided
with his Buddhist parents before coming to Canada. His claim
is as follows. In or about December 2006 a colleague introduced the then
atheist applicant to Christianity. The applicant was moved by the teachings of
Christianity and began to attend a small underground church on February 11,
2007. The applicant participated in church services for several months and on
September 16, 2007 was baptized by the church’s pastor. On November 25, 2007
the service was interrupted as a result of raid by the Public Safety Bureau
(PSB). The applicant and several other members allegedly escaped through a
window.
[4]
The
applicant fled by train to a friend’s house in Jinan city, China. From there
he learned that the PSB arrested two members of his church and paid bi-weekly
visits to his parents’ house in search of him. The applicant decided to flee China with the
help of a smuggler. He arrived in Canada on December 17, 2007
and claimed refugee status on January 3, 2008, seeking protection
because of a well founded fear of persecution for his Christian religious beliefs.
The applicant’s refugee claim was heard on May 26, 2009 and decided on June 3,
2009.
Decision under review
[5]
The
Board concluded that the applicant was not a convention refugee or a person in
need of protection.
[6]
The
Board found the applicant to be not credible. It based this finding on an
inconsistency in the applicant’s story, an unreasonably low level of knowledge
of Christianity, and a number of inconsistencies arising from his time in Canada.
[7]
The
Board identified an inconsistency between the responses the applicant gave in
an interview with Citizenship and Immigration Canada (CIC) when he made his
refugee claim, his Personal Information Form (PIF), and his viva voce testimony
before the Board. On February 4, 2008 the applicant told CIC that there were
“over ten” members in his underground church. On February 26, 2008 the
applicant stated on his PIF that there were 8 members. The answer changed to
“ten” during oral testimony. The applicant explained that he was nervous during
the CIC interview and the translator ignored his instructions when in fact the
total number of members at the church consisted of ten baptized members plus
two non-baptized members. The Board found that the applicant failed to adequately
explain the inconsistencies in the number alleged, which ranged from as low as “eight”
in the PIF to “ten plus two” at the CIC interview and “ten” at his testimony.
The inconsistency with respect to a central and simple aspect of the
applicant’s claim and the lack of an adequate explanation led the Board to draw
an adverse inference with regard to the applicant’s credibility.
[8]
In
his testimony the applicant provided evidence that he has been attending Living
Water Assembly church since March 8, 2008 and was baptized on March 22, 2008.
The Board found the applicant’s knowledge of Christianity was less then
reasonably expected in the circumstances. The Board made the following
determinations with respect to the applicant’s lack of Christian
knowledge at paragraph 20 of its reasons:
¶20 …The
Panel draws a negative inference in regard to the claimant’s identity as a
practising Christian given his inability to easily describe the core elements
of the Christian faith, particularly his omission of any reference to Jesus
Christ, his inability to easily identify Christmas or the Christian sacraments
and his belief that the Apostle’s Creed is located in the Old Testament…
[Emphasis added]
[9]
The
Board found the applicant’s testimony with respect to the circumstances
surrounding his second baptism on March 22, 2008 to lack credibility. The
claimant initially testified that he participated in a three month preparatory
class prior to his second baptism. When Board asked how it was possible for the
applicant to attend a three month long preparatory class when he joined the
Church only 20 days prior to his baptism the applicant changed his story and
claimed that that he was allowed to be baptized more quickly in light of his previous
baptism. The applicant later conceded that he never attended a single preparatory
class.
[10]
The
Board relied upon the Federal Court of Appeal’s decision in Sheikh v. Canada
(MEI), [1990] 3 F.C. 238 (F.C.A.), per Justice MacGuigan at paragraph 8, in
concluding that the cumulative effect of the applicant’s negative credibility
findings was to leave the Board without any credible and trustworthy evidence
upon which to base a determination that the claimant is a Convention refugee.
The applicant’s claim for refugee status was therefore dismissed.
LEGISLATION
[11]
Section
96 of IRPA grants protection to Convention refugees:
|
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.
|
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.
|
[12]
Section
97 of IRPA grants to protection to certain categories of persons:
|
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.
|
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.
|
ISSUES
[13]
While the applicant has raised a number of issues, the
Court has concluded that this case turns on whether the credibility finding of
the Board was reasonably open to it with respect to two important material
findings:
1. the claimant’s identity as a
practicing Christian based on his Christian knowledge; and
2. the applicant’s description of
the number of members in the unregistered house church he attended in China.
STANDARD OF REVIEW
[14]
In Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R.
1, the Supreme Court of Canada held at paragraph 62 that the first step in conducting a
standard of review analysis is to “ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of (deference) to be
accorded with regard to a particular category of question”: see also Khosa
v. Canada (MCI),
2009 SCC 12, per Justice Binnie at paragraph 53.
[15]
In
the past, I held that the standard of review for credibility findings of the
Board was patent unreasonableness: Chen v. Canada (MCI), 2002 FCT 1194, 118
A.C.W.S. (3d) 700, at paragraph 4; Gonzalez v. Canada (MCI), 2008 FC
128, 164 A.C.W.S. (3d) 674, at paragraph 13; Penghui Wu v. Canada (MCI),
2009 FC 929 at paragraph 15. Before a credibility finding of the Board is set
aside, one of the following criteria must be established:
1. the
Board did not provide valid reasons for finding that an applicant lacked credibility;
2. the
inferences drawn by the Board are based on implausibility findings that in the
view of the Court are simply not plausible;
3. the
decision was based on inferences that were not supported by the evidence; or,
4. the
credibility finding was based on a finding of fact that was perverse, capricious,
or without regard to the evidence.
[16]
As
a result of Dunsmuir, it is clear that the standard of patent
unreasonableness has been eliminated, and that reviewing courts must focus on
only two standards of review, those of reasonableness and correctness.
[17]
Implausibility and credibility determinations are factual
in nature. The post-Dunsmuir jurisprudence has held that the appropriate
standard of review applicable to credibility and plausibility assessments is
that of reasonableness with a high level of curial deference: Saleem v.
Canada (MCI), [2008] F.C.J. No. 482, 2008 FC 389 at paragraph 13; Malveda
v. Canada (MCI), [2008] F.C.J. No. 527, 2008 FC 447 at paragraphs 17-20; Khokhar
v. Canada (MCI), [2008] F.C.J. No. 571, 2008 FC 449 at paragraphs 17-20. The
standard of review is therefore reasonableness with a high level of deference
to the Board’s findings.
ANALYSIS
Issue No.1: Did the Board err in assessing
the claimant’s
identity as a practicing Christian based on his Christian knowledge?
[18]
The
applicant submits that the Board unreasonably assessed the applicant’s identity
as a practicing Christian based on the level of his knowledge of Christianity
and the Bible.
[19]
The
respondent submits that the Board reasonably found that the applicant’s
unfamiliarity of basic elements of Christianity weakened his claim he was an
active member of the Christian faith, especially given the significant period
of study that was undertaken in China and later in Canada.
[20]
In assessing a claimant’s knowledge of Christianity, the
Board should not adopt an
unrealistically high standard of knowledge or focus on a “few points of
error or misunderstandings to a level which reached the microscopic analysis”: Attakora
v. Canada (Minister of Employment and Immigration) (F.C.A.),
(1989), 99 N.R. 168, [1989] F.C.J. No. 444 (QL), and subsequent
cases: Huang v. Canada (MCI), 2008 FC 346, 69 Imm. L.R. (3d) 286, per Justice
Mosley at paragraph 10; Chen v. Canada (MCI), 2007 FC 270, 155 A.C.W.S.
(3d) 929, per
Justice Barnes at paragraph 16.
[21]
In
Penghui Wu, supra, I held at paragraph 22 that determining
whether one is a genuine Christian by way of “trivia” is clearly contrary
to the case law:
¶22 A reading of
the Board’s reasons gives the impression that to be determined to be a Christian
one should be able to retain at least some encyclopaedic knowledge of the Bible
or Jesus’ teaching. One cannot help but have sympathy for claimant who was
struggling to understand and be understood through an interpreter. Determining
whether one is a genuine Christian by way of “trivia” is clearly contrary to
the above case law. This Court has often overturned a Board Member’s decision
as “unfair” and “unreasonable” because the applicant could not answer detailed questions
about the Bible.
[22]
The Court
finds that the Board unreasonably found that the claimant was unable to
demonstrate a reasonable level of Christian knowledge, and for this reason the
applicant was not credible with respect to his refugee claim on the basis of
his Christianity. In fact, the Court finds that the applicant demonstrated a
real knowledge of Christian beliefs, and that this conclusion by the Board was
not reasonably open to it. The applicant was asked several detailed questions
about the Christian religion which he answered correctly. The Board’s finding
on this issue is clearly unreasonable.
Issue No.2: Did the Board engage in a
microscopic examination of the evidence by drawing an adverse credibility
finding from the applicant’s inconsistent
description of the number of members in the unregistered house church he
attended in China?
[23]
The applicant
submits that the Board ignored relevant evidence and engaged in a microscopic
examination of the applicant’s testimony with respect to the stated number of
members in the applicant’s underground church.
[24]
When
seeking to impeach a finding of fact the applicant must show that the finding
of fact was truly erroneous, made capriciously or without regard to the
evidence, and forms the basis of the decision: Rohn and Hass Canada Ltd. v. Canada
(Anti-Dumping Tribunal), [1978] F.C.J. No (QL), 522, 22 N.R. 175
(F.C.A.), per C.J. Jacket at paragraph 5.
[25]
At
issue is an inconsistency in the purported membership of the applicant’s
underground church. The applicant provided a different figure for the number of
members in his underground church on different occasions as his refugee claim
was processed. The figure varies from “over 10” which was given at the initial
refugee claim interview with Citizenship and Immigration Canada (CIC), to “8” which
was written in the PIF, and to “10” which was given by the applicant at the
Board hearing.
[26]
According
to the applicant the inconsistencies resulted from interpretation defects and his
own nervousness. The Board rejected those explanations and drew an adverse
credibility finding from the inconsistencies.
[27]
This
Court has held that the Board should not focus on a few points of error: Attakora, supra.
The result is an impermissible microscopic analysis of the evidence. The
applicant in this case never wavered far from his figure, which was10. At most
the applicant misstated the true figure by two persons. The applicant offered
explanations for the slight variances which the Court will not detail.
[28]
It was unreasonable for the Board to focus on such a minute
detail in light of the applicant’s obvious difficulties with interpretation.
The Court finds that the Board engaged in a microscopic examination of the
applicant’s evidence. The adverse credibility finding which flowed from that
analysis is therefore unreasonable.
CONCLUSION
[29]
The Court
concludes that the Board unreasonably found that the claimant was unable to
demonstrate a reasonable level of Christian knowledge. I reach the same
conclusion with respect to the Board’s microscopic analysis of the applicant’s
testimony. The Board based its adverse credibility inferences on the two
material findings which were made unreasonably. The application for judicial
review is therefore allowed.
[30]
Both
parties advised the Court that this case does not present a question which
ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is allowed, the decision of the Board is set
aside, and this refugee claim is remitted to the Board for redetermination by a
different panel of the Board.
“Michael
A. Kelen”
Email this Content