Date: 20120524
Docket: IMM-6988-11
Citation: 2012 FC 595
Ottawa, Ontario, this 24th
day of May 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Hai Long JIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
On
October 11, 2011, Hai Long Jin (the “applicant”) filed the present application for judicial
review of the decision of Walter Kawun, member of the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”). The Board dismissed the applicant’s claim for refugee
protection, concluding that the applicant was not a Convention refugee or a
person in need of protection under sections 96 and 97 of the Act.
[2]
The
applicant is a citizen of China.
In 2009, he began to regularly attend an unregistered church in China, having been introduced
to Christianity by a friend. On November 29, 2009, the church was allegedly
raided by the Public Security Bureau (the “PSB”) and three members were
arrested. On November 30, 2009, the PSB supposedly came to the applicant’s home
to arrest him. Consequently, the applicant left for Canada. On December 22, 2009,
the applicant arrived in Canada and claimed refugee
status two days later. The applicant joined the Full Gospel Young Church in Toronto and was baptized on
August 1, 2010.
[3]
The
issues raised by the present application for judicial review can properly be
summarized as follow and dealt with in the following order:
1.
Did the Board err in fact, basing its decision on erroneous findings of fact
made in a perverse or capricious manner or without regard to the evidence
before it, specifically:
i.
Did the Board err in
failing to consider the documentary evidence regarding the applicant’s
religious devotion in Canada?
ii.
Did the Board err in
its assessment of the applicant’s credibility?
iii.
Did the Board err in
its assessment of the applicant’s religious knowledge?
2.
Did the Board err in law in its assessment of the applicant’s sur place
claim?
[4]
The
applicable standard of review to the Board’s findings of fact, credibility and
its assessment of the evidence is reasonableness (Yin v. Minister of
Citizenship and Immigration, 2010 FC 544 at para 22 [Yin]; Song
v. Minister of Citizenship and Immigration, 2008 FC 1321 at para 24; Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190 [Dunsmuir]; Aguebor v. Minister of Employment and
Immigration (1993), 160 N.R. 315 at para 4). This same standard applies to
the Board’s assessment of the applicant’s knowledge of the Christian faith and
the genuineness of his belief, being findings of fact (Huang v. Minister of
Citizenship and Immigration, 2008 FC 346 at para 7 [Huang]; Chen
v. Minister of Citizenship and Immigration, 2008 FC 1168 at para 13 [Chen]).
Thus, this Court must determine whether the Board’s findings fall within the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and law”, being justified, transparent and intelligible (Dunsmuir,
above at para 47).
[5]
The
identification of the proper test for a sur place refugee claim by the
Board is a question of law to be reviewed based on a standard of correctness (Ejtehadian
v. Minister of Citizenship and Immigration, 2007 FC 158 at para 12 [Etjehadian]).
Whereas the Board’s application of the test to the facts at hand is reviewable
based on reasonableness, being a mixed question of fact and law (Chen, above
at para 10).
* * * * * * * *
1. Did the Board err in fact,
basing its decision on erroneous findings of fact made in a perverse or
capricious manner or without regard to the evidence before it?
i. Did the Board err in
failing to consider the documentary evidence regarding the applicant’s
religious devotion in Canada?
[6]
The
applicant argues that the Board erred in its assessment of the documentary
evidence attesting to the applicant’s religious practice in Canada by focusing on what the
documents do not say, as opposed to what they do indicate. Rather, the letters
from the applicant’s pastor, a fellow church member and his mother indicate the
sincerity of the applicant’s religious beliefs. By failing to give these
documents any weight, the Board erred, making its decision in complete
disregard of the evidence.
[7]
The
respondent asserts that the applicant is incorrect: the Board did consider these
documents, but chose to give them little weight, seeing as they did not
establish the genuineness of his religious conviction. The Board did not
dismiss them solely based on a lack of credibility. I agree.
[8]
The
Board did not ignore the evidence before it. Rather, the Board specifically
mentioned the applicant’s baptismal certificate and the letters, explaining why
it gave them little weight, unlike in Yin, above, where the evidence was
completely ignored by the Board and not even mentioned (at paragraphs 89-90).
As per its duty, the Board clearly explained in its decision that the documents
do not prove the genuineness of his belief, while attesting to his church
involvement. The letters were considered for what they said, as suggested by Mahmud
v. Canada (Minister of
Citizenship and Immigration) (1999), 167 F.T.R. 309 at para 11 and relied on
by the applicant: they speak of the applicant’s participation but do not help
demonstrate the genuineness of his religious convictions.
[9]
Thus,
the Board’s consideration of the documents was reasonable: “[a] board or
tribunal may discount the weight of a letter if it fails to address vital
aspects of the claim” (J.E.P.G. v. Minister of Citizenship and Immigration,
2011 FC 744 at para 8).
ii. Did the
Board err in its assessment of the applicant’s credibility?
[10]
Upon
reviewing the evidence, I find that the Board’s credibility finding is
reasonable, such findings being entitled to a high degree of deference (Ghanuom
v. Minister of Citizenship and Immigration, 2011 FC 947 at para 16 [Ghanuom]).
This Court cannot merely substitute its opinion for that of the Board. It is
the Board that had the benefit of seeing and hearing the applicant’s testimony
and that possesses a level of expertise (Ghanuom, above at para 16
citing Cepeda-Gutierrez v. Minister of Citizenship and Immigration
(1998), 157 F.T.R. 35). Thereby, the Board as a specialized tribunal has
complete jurisdiction to determine the plausibility of the applicant’s
testimony and draw the necessary inferences (Jones v. Minister of
Citizenship and Immigration, 2006 FC 405 at para 8 [Jones]).
[11]
Morever,
the Board considered the applicant’s explanation as to his omission, but chose
to reject it, as outlined in its decision, as it was permitted to do (Jones,
above at para 27). The Board also clearly explained why it did not consider the
applicant credible, having omitted to mention a significant fact in his
Personal Information Form (“PIF”) (see Armson v. Canada (Minister of Employment
and Immigration),
[1989] F.C.J. No. 800 (F.C.A.) (QL), 101 N.R. 372) and Dong v. Minister of
Citizenship and Immigration, 2010 FC 55 at para 15 [Dong]). The
applicant had the obligation to include all relevant facts in his PIF and it is
insufficient for the applicant to claim that his oral testimony was an
elaboration (Sanchez v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 536 (F.C.) (QL) at paragraph 9; Basseghi v. Canada (Minister
of Citizenship and Immigration), [1994] F.C.J. No. 1867 at para 33
(F.C.T.D.) (QL)). The applicant’s failure to mention the existence of an arrest
warrant in his PIF is a significant event that should have initially been
mentioned. Thus, the Board’s negative inference was justified.
iii. Did the
Board err in its assessment of the applicant’s religious knowledge?
[12]
The
applicant contends that the Board erred in its assessment of his knowledge of
Christianity, applying the wrong test for such an assessment cannot be based on
a “quiz-show” examination.
[13]
Inversely,
the respondent asserts that there is no bar to questioning an applicant as to
his knowledge of a religion. Each case has to be determined on its own facts
and the Board found the applicant did not know the basic elements of
Christianity. Therefore, it was reasonable for the Board to conclude that
someone who supposedly reads the Bible every day would have a greater
understanding of the basic precepts of the Christian faith. The questions put
to the applicant were not trivial nor unreasonably sophisticated. Rather, the
questions the applicant could answer did not reflect a good understanding of
Christianity.
[14]
In
response to the applicant’s reliance on Syndicat Northcrest v. Amselem,
[2004] 2 S.C.R. 551 [Amselem], the respondent notes that Amselem
addressed the determination of constituent practices of a specific religion,
whereas the case before us is about whether the applicant possessed a basic
understanding of Christianity. The Supreme Court of Canada held that religion
is based on the sincerity of an individual’s belief. Thus, courts are allowed
to inquire into the sincerity of these religious beliefs. I agree with the
respondent’s position.
[15]
Amselem, above, deals with
freedom of religion and the subjectivity of religious beliefs. Thus, the
Supreme Court of Canada held that it is not the objectivity of the religious
beliefs that matters, nor their validity, but rather the sincerity of the
applicant’s religious beliefs (at para 43). Here, the Board needed to assess
the genuineness of the applicant’s religious convictions. The questions asked
by the Board were not to gage the correctness of his beliefs, but rather to
determine whether the applicant understood the basic tenants of Christianity.
Unlike in Zhu v. Minister of Citizenship and Immigration, 2008 FC 1066 [Zhu],
the Court was not assessing the sophistication of the applicant’s belief: the
Board did not accept that the applicant was a genuine Christian (at para 13).
Moreover, Mr. Justice Russell Zinn in Zhu specifically stated that the
sincerity of the applicant’s religious conviction can be assessed with regards
to his familiarity with the dogma or creed invoked (at para 17).
[16]
Furthermore,
the Board’s standard of knowledge of Christianity was not unrealistically high,
nor did it focus solely on a few points of misunderstanding (compare with Huang,
above at paragraphs 10-11 and Dong, above at paragraphs 20-21).
Thus, the Board did not engage in a microscopic analysis.
[17]
Considering
the questions put to the applicant and his answers, the Board’s conclusion as
to a lack of genuineness of his religious conviction falls within the range of
possible, acceptable outcomes which is defensible in respect of the facts and
law (Dunsmuir, above at para 47).
2. Did the
Board err in law in its assessment of the applicant’s sur place claim?
[18]
Lastly,
the applicant argues that the Board further erred in its assessment of the
applicant’s sur place claim, failing to apply the proper test and
confounding its findings with regards to the applicant’s religious practice in
China and in Canada, as in Yin, above.
[19]
Every
case must turn to its own facts (Chen, above at para 25). In addressing
a sur place refugee claim, the fact that an applicant was not actually a
practicing Christian in China does not mean that he is not a sincere practicing
Christian in Canada (Yin, above at para 94). Thereby, the Board had to
consider the applicant’s religious practice in Canada, which it did, explicitly addressing the
documents previously discussed, as stated in Ejtehadian, above at
paragraph 11:
.
. . credible evidence of a claimant’s activities while in Canada that are likely to substantiate any potential harm upon
return must be expressly considered by the IRB even if the motivation behind
the activities is non-genuine . . .
[20]
The
Board did not apply the wrong legal test, nor did it focus on the applicant’s
motives for converting to Christianity. Rather, it considered whether the
applicant was a genuine Christian likely to be persecuted in China due to his beliefs.
Since the applicant was not considered to be a genuine practicing Christian,
the Board need not consider whether the applicant would be at risk of religious
persecution in China. Thereby, this is not a
case where the applicant’s religious activities in Canada might give rise to
negative reaction on the part of Chinese authorities if forced to return to
China (see Girmaeyesus v. Minister of Citizenship and Immigration, 2010
FC 53 at para 28). Furthermore, the respondent is right in that it would be
absurd to grant a sur place claim every time a pastor provides a letter
attesting to an applicant’s membership in his church.
[21]
Therefore,
the applicant has not established that the intervention of this Court is
warranted.
* * * * * * * *
[22]
For
these reasons, the present application for judicial review is dismissed.
[23]
There
is no question for certification.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada determining that the applicant is not a Convention
refugee or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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