Date:
20120815
Docket:
IMM-8521-11
Citation:
2012 FC 998
Ottawa, Ontario,
August 15, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board [RPD or the Board], dated October
27, 2011, in which the Board dismissed the applicant’s claims under section 96
and subsection 97(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA or the Act].
[2]
The
applicant is a citizen of the People’s Republic of China from Shijiazhuang, Hebei province and claims that he was a member of an underground Christian house church
that was raided by the Public Security Bureau [PSB] in 2010. He alleges that he
went into hiding following the raid and that while in hiding learned both that
members of the PSB had gone to his home looking for him and that other members
of his congregation had been arrested. The applicant fled China on July 18, 2010, with the help of a smuggler, and sought protection in Canada. He asserts that he has since learned that the PSB has returned to his home multiple
times and filed a letter with the RPD from his mother that purports to confirm
these visits.
[3]
Once
in Canada, the applicant joined a Pentecostal church (the Living Stone Assembly
in Scarborough, Ontario) and claims to be a practicing Christian. The applicant
filed with the RPD a copy of a letter from the pastor of his church, attesting
to the applicant’s regular church attendance, a baptismal certificate and
several photographs of the applicant participating in church-related
activities. He claims that by virtue of his beliefs, he would be subject to
risk if returned to China.
The RPD’s
Decision
[4]
The
Board determined that there was no credible basis for the applicant’s claim
and, as a result, that he was neither a Convention refugee nor a person in need
of protection. The credibility finding centred on the fact that the applicant
had made a failed attempt to obtain a student visa in 2009, well before the
applicant’s alleged conversion to Christianity and the alleged raid on his
house church. In his testimony before the Board, the applicant denied any
knowledge of the student visa application, despite the fact that the visa file
contained a picture of him, his passport number and date of birth. The student
visa file also contained fraudulent documentation regarding the applicant’s
parents’ occupations and assets as well as details regarding the applicant’s
background that were completely at odds with those he provided in connection
with his refugee claim.
[5]
The
Board discovered the fraudulent student visa application somewhat fortuitously:
during the hearing, the member noted a cryptic reference in the file to a
previous denial of a student visa and asked the applicant about it. The
applicant claimed to have no knowledge of any such application. During an
adjournment of the hearing, the Board member called the Canada Border Services
Agency. The Agency provided copies of the Field Operations Support System,
commonly referred to as “FOSS”, notes to the member that confirmed
the existence of the applicant’s earlier student visa application. When the
hearing resumed, the applicant continued to deny any knowledge of the
application. The RPD then adjourned the hearing for several weeks to obtain
copies of all the documents associated with the 2009 application and to allow
the applicant time to review them. Upon resumption of the hearing, the
applicant confirmed that the 2009 fraudulent student visa application contained
his photograph, the same passport number and expiry date as on his passport and
also set out his correct date of birth. However, he continued to deny that he
had any knowledge of the application. The Board did not believe him.
[6]
During
the hearing, the Board member questioned the applicant about his knowledge of
Christianity, and the applicant was able to provide answers to many of the
questions about the basic tenets of the Christian faith. However, he could not
remember the date of Easter in 2010. In the decision, the RPD found this
omission to be significant, as Easter that year had fallen the week before the
alleged raid. The Board reasoned in this regard that if the applicant had
really been a consistent church-goer in China, as he claimed, he ought to have
been able to recall that Easter Sunday was just a week before his church had
been raided.
[7]
In
light of these facts, the Board determined that the applicant was not a
practicing Christian in China, that the alleged raid on his house church did
not occur and that none of his fellow alleged church members had been arrested
or incarcerated. In so finding, the Board accorded little weight to a “Jail
Visiting Card” or letter from the claimant’s mother, purporting to confirm that
the PSB had been at her home looking for the applicant. The Board determined
that the first document was not genuine and gave little weight to the letter
from the applicant’s mother because his parents had been complicit in his
earlier fraudulent student visa application.
[8]
After
determining that the applicant had not been a practicing Christian in China, the Board went on to assess the applicant’s sur place claim, or his claim to have
acquired refugee status through his adherence to Christianity in Canada. In assessing this claim, the Board first purported to cite from James Hathaway’s The
Law of Refugee Status (Toronto: Butterworths, 1991), claiming that
Hathaway wrote that “an individual who as a stratagem deliberately manipulates
circumstances to create a real chance persecution, which did not exist, cannot
be said to belong to this category [i.e. of those who can legitimately advance
a sur place refugee claim]” (decision at para 40. As is discussed below,
however, this citation is not from The Law of Refugee Status. However,
as is also discussed below, this does not impact the reasonableness of the
Board’s decision.
[9]
The
Board determined that, in light of its credibility findings, the claimant had
joined a Christian church in Canada only for the purpose of supporting a
fraudulent refugee claim. It afforded little or no weight to the pastor’s
letter, certificate of baptism and church photos filed by the applicant. The
Board then determined that the applicant was not a genuine Christian, stating
as follows at paragraph 41 of the decision:
The panel finds, on a balance of probabilities, and
in the context of findings noted above, that the claimant joined a Christian
church in Canada only for the purpose of supporting a fraudulent refugee claim.
In the context as noted above, and on the basis of the totality of the evidence
disclosed the panel finds that the claimant is not a genuine practicing
Christian and never was, nor would he be perceived to be in China. I do not
believe that, if he returned to China, he would engage in any Christian
practice.
[10]
The
RPD therefore dismissed the applicant’s claim, finding the applicant had not
satisfied the burden of establishing a serious possibility that he would be
persecuted or subjected to risk to his life, risk of cruel and unusual
treatment or punishment or danger of torture if returned to China.
Issues
[11]
The
applicant argues that the RPD’s decision should be set aside because its
credibility findings were unreasonable. He contends in this regard that the
application for a study permit outside of Canada is insufficient to impugn his
credibility and that the Board’s reliance on his inability to remember the date
of Easter is unreasonable. In support of the latter point, the applicant claims
that this finding constitutes an improper reliance on “religious trivia”, which
should result in the decision’s being set aside as was done in Wang v Canada
(Minister of Citizenship and Immigration),2011 FC 1030 at para 13, 206 ACWS
(3d) 800; Dong v Canada (Minister of Citizenship and Immigration), 2010
FC 55 at para 20, [2010] FCJ No 54 and Wu v Canada (Minister of Citizenship
and Immigration), 2009 FC 929 at para 22, [2009] FCJ No 1143. The
applicant also argues that the Board failed to properly consider evidence of
the genuineness of his religious beliefs and practices and that it was improper
for the Board to have considered his motive in joining and participating in the
activities of the Living Stone Assembly because the presence or absence of a
good faith motive for engaging in activities that may give rise to a sur
place claim is irrelevant to the assessment of the validity of such a claim
under Canadian law.
[12]
The
respondent, on the other hand, submits that it was reasonable for the Board to
draw a negative inference from the applicant’s student visa application and
from the applicant’s inability to remember the date of Easter. On this point,
counsel asserts that the RPD’s determination turns not on the inability of the
applicant to remember the date of Easter as being indicative of his lack of
knowledge of Christianity, but rather on his inability to situate the alleged
raid with reference to Easter Sunday, which he ought to have been able to
remember if he were a regular church-goer, as he claimed. Based on these facts,
the respondent asserts that is was reasonable for the Board to find that the
applicant had not been attending a house church in China. The respondent also
argues that the Board did not place an improper reliance on the applicant’s
motives and that the Board’s finding that the applicant had not demonstrated
that he was a genuine Christian in Canada is reasonable in light of the
applicant’s lack of credibility and the lack of other evidence about sincerity
of his beliefs. The respondent notes in this regard that it was not
unreasonable for the Board to accord little weight to the pastor’s letter, photographs
and baptismal certificate filed by the applicant.
[13]
In
light of the foregoing, four issues arise in this matter:
1. What
standard of review is applicable to the errors the applicant alleges were made
by the RPD;
2. Were
the Board’s credibility findings reasonable;
3. Did
the Board err in considering the applicant’s motive for joining the Living
Stone Assembly church; and
4. Was
the Board’s assessment of the lack of sincerity of the applicant’s adherence to
Christianity reasonable?
What standard of
review is applicable to the errors the applicant alleges the RPD made?
[14]
The
reasonableness standard is applicable to each of the alleged errors. It is
well-established that credibility findings, as matters of fact, are reviewable
on the reasonableness standard (Aguebor v Canada (Minister of Employment and
Immigration) (1993), 160 NR 315, [1993] FCJ No 732 (CA) at para 4; Singh
v Canada (Minister of Employment and Immigration) (1994), 169 NR 107,
[1994] FCJ No 486 (CA) at para 3; and Cetinkaya v Canada (Minister of
Citizenship and Immigration), 2012 FC 8 at para 17, [2012] FCJ No 13). The
question concerning the consideration of the applicant’s motives for practicing
Christianity in Canada and concerning the reasonableness of the RPD’s decision
are intertwined: the lack of good faith motive was an important consideration
of the RPD in determining that the applicant’s beliefs were not sincere. The
Board’s determinations on these issues involve matters of mixed fact and law
and are reviewable on the reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51, [2008] 1 S.C.R. 190 [Dunsmuir], see also Xin
Cai Hou (a.k.a. Xincai Hou) v. The Minister of Citizenship and Immigration),
2012 FC 933).
[15]
The
reasonableness standard is an exacting one and requires the reviewing court
afford deference to a tribunal’s decision; a court cannot intervene unless it
is satisfied that the reasons of a tribunal are not justified, transparent or
intelligible and that the result does not fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
at para 47). In applying this deferential standard, it matters not whether
the reviewing court agrees with a tribunal’s conclusion, would have reached a
different result or might have reasoned differently. So long as the reasons are
understandable and the result is one that is rational and supportable in light
of the facts and the applicable law, a court should not overturn an inferior
tribunal’s decision under the reasonableness standard of review.
Were the Board’s
credibility findings reasonable?
[16]
As
noted, the
applicant alleges that it was unreasonable for the Board to have determined
that the applicant made a fraudulent student visa application in 2009 and that
the Board’s reliance on the applicant’s inability to remember the date of
Easter in 2010 was unreasonable. In my view, neither of these submissions has
merit.
[17]
Insofar
as concerns the fraudulent student visa application, the visa file contained
the applicant’s picture, passport number and date the passport was issued. The
applicant was unable to offer any explanation as to how these details and his
picture came to be in the student visa file. In the absence of any such
explanation, the Board drew the obvious conclusion, namely, that the applicant
was complicit in making the application, which is accordingly a reasonable
finding. Moreover, the fact that the applicant had made an earlier fraudulent
attempt to enter Canada taints his refugee claim as it shows that he was willing
to employ dishonesty in an effort to gain admittance to the country. Once
again, the obvious inference to be drawn from this fact is that a similar
motive is behind his refugee claim. It was accordingly reasonable for the Board
to rely on this factor as a significant reason for disbelieving the applicant’s
claims regarding what occurred in China and for finding the applicant to not be
a sincere Christian.
[18]
Insofar
as concerns the reliance on the applicant’s inability to remember the date of
Easter in 2010, the submission of the respondent is convincing. The Board did
not find the inability to remember to be indicative of a lack of knowledge of
the tenets of Christianity but, rather, found that it undercut the applicant’s
claim that his church was raided. As the RPD noted in its decision, Easter is
one of the key celebrations of the Christian religion, and it is not believable
that a new adherent to the religion would not remember the proximity of Easter
to an event as significant as the raid of his church, if he had in fact
attended that church on a weekly basis as he claimed. Moreover, when questioned
about these issues, the applicant obfuscated and backtracked regarding how
frequently his pastor attended church. It was accordingly reasonable for the RPD
to determine the applicant’s inability to remember Easter to be a factor in
support of a negative inference regarding his credibility.
[19]
Thus,
neither of the reasons asserted by the applicant for setting aside the RPD’s
credibility determinations bears weight.
Did
the Board err in considering the applicant’s motive for joining the Living
Stone Assembly
church?
[20]
Contrary
to what the applicant asserts, the case law recognises that motive for engaging
in a religious practice in Canada may be considered by the RPD in an
appropriate case. However, a finding that a claimant was motivated to practice
a religion in Canada to buttress a fraudulent refugee claim cannot be used, in
and of itself, as a basis to reject the claim. Rather, the finding that the
claimant has been motivated by a desire to buttress his or her refugee claim is
one factor that may be considered by the RPD in assessing the sincerity of a
claimant’s religious beliefs.
[21]
The
sincerity of those beliefs will be an issue in cases, like the present, where
continuing the religious practice in the country of origin might place the
claimant at risk. If the beliefs are not genuine, then there is no risk, as a
claimant would not likely practice his or her newly-acquired religion in the
country of origin if adherence to the religion is motivated solely by a desire
to support a refugee claim. On the other hand, there may well be situations
where a claimant might initially have been motivated to join a religion due to
these types of motivations, but along the route, may have developed faith and
become a true adherent of the religion. This appears to be what occurred in Ejtehadian
v Canada (Minister of Citizenship and Immigration), 2007 FC 158 [Ejtehadian],
where the claimant was found to have originally began practicing Christianity
to fuel his refugee claim, but later went on to become a priest in the Mormon
church.
[22]
The
starting point for the discussion of the notion of a sur place claim in
Canadian law is the decision of the Federal Court of Appeal in Ghazizadeh v
Canada (Minister of Employment and Immigration), [1993] FCJ No 465, 154 NR
236, where the Court held that the “… concept of a refugee ‘sur place’ requires
an assessment of the situation in the applicant’s country of origin after he or
she has left it”. The Court accordingly set aside the decision of the Board,
which had focused on the fact that the applicant had obtained an exit visa from
Iran, as opposed to the risk that subsequent events in the country had
created for him if he returned.
[23]
This
Court has assessed the requirements of religion-based sur place claims
in a series of recent cases. The first of these, Ejtehadian, arose
in the context of a claimant who became a Christian after he left Iran. The Board dismissed his claim because it determined that his conversion was not
genuine, finding that he had become a Christian in order to obtain a means of
remaining in Canada and claiming refugee status. Importantly, in that case,
unlike the present, there was evidence before the Board that apostates were
persecuted and executed in Iran and thus that the mere fact of apostasy (as
opposed to ongoing practice of religion) might have founded the basis for
persecution. In addition, it appears that the claimant underwent a conversion
experience and became a sincere practitioner because, as noted, he went on to
join the priesthood in the Mormon faith. Justice Blanchard overturned the RPD’s
decision, noting that the Board had misarticulated the test in a sur place
claim and held that on the facts of that case “[i]n assessing the Applicant’s
risks of return, in the context of a sur-place claim, it is necessary to
consider the credible evidence of [the applicant’s] activities while in Canada,
independently from his motives for conversion”.
[24]
In
a series of recent cases involving claimants from China, this Court has applied
the holding in Ejtehadian and held that the Board cannot reject a sur
place claim due to lack of credibility or improper motive but, rather, must
assess the genuineness of the applicant’s religious practice to determine if he
or she will be at risk if returned to the country of origin (see Jin v Canada
(Minister of Citizenship and Immigration), 2012 FC 595, [2012] FCJ No 677 [Jin]; El Aoudie v
Canada (Minister of Citizenship and Immigration), 2012 FC
450, [2012] FCJ
No 487 [El Aoudie]; Hannoon v Canada (Minister of Citizenship and
Immigration), 2012 FC
448, [2012] FCJ
No 480 [Hannoon]; Jia v Canada
(Minister of Citizenship and Immigration), 2012 FC
444, [2012] FCJ
No 463; Huang
v Canada (Minister of Citizenship and Immigration), 2012 FC 205 [Huang];
Wang v Canada (Minister of Citizenship and Immigration), 2011 FC 614 [Wang];
Yin v Canada (Minister of Citizenship and Immigration), 2010 FC 544 [Yin];
Chen v Canada (Minister of Citizenship and Immigration), 2009 FC 677,
[2009] FCJ No 1391 [Chen]). In many of those cases, the RPD’s holdings
were set aside because no analysis was undertaken of the genuineness of the
applicant’s religious practice and the RPD simply rejected the claims out of
hand based purely on improper motive (see El Aoudie, Hannoon, Yin, Chen). In
Jin and Wang, on the other hand, the Board noted the questionable
motive for conversion but then went on to assess the genuineness of the
applicant’s conversion and found it to be lacking. The Board based its findings
on the claimants’ lack of credibility, the fact that they had fabricated
stories about being Christians in China and their lack of knowledge of the details
of the religion they claimed to practice. Because the claimants were found to
not be genuine practitioners, the RPD held they would not have practiced if
returned to China and thus were determined to face no risk.
[25]
Thus,
the assertion that “an individual who as a strategy deliberately manipulates
circumstances to create a real chance of persecution which did not exist cannot
be said to belong to” the category of sur place refugee claimants (which
the RPD misattributed to James Hathaway, as noted above in para 8), does not
reflect the law in Canada. Nor does it reflect Professor Hathaway’s views on
the issue.
[26]
As
Justice Zinn noted in Huang (cited above at
para 24),
far from taking the position a bad faith motive invalidates a refugee claim,
Mr. Hatahaway instead endorses the analysis set out above. He writes in this
regard:
It does not follow, however, that all persons
whose activities abroad are not genuinely demonstrative of oppositional
political opinion are outside the refugee definition. Even when it is evident
that the voluntary statement or action was fraudulent in that it was prompted
primarily by an intention to secure asylum, the consequential imputation to the
claimant of a negative political opinion by authorities in her home state may
nonetheless bring her within the scope of the Convention definition. Since
refugee law is fundamentally concerned with the provision of protection against
unconscionable state action, an assessment should be made of any potential harm
to be faced upon return because of the fact of the non-genuine political
activity engaged in while abroad.
This issue is most poignantly raised when it is
alleged that the fact of having made an unfounded asylum claim may per se
give rise to a serious risk of persecution. While these cases provide perhaps
the most obvious potential for “bootstrapping”, there must nonetheless be a
clear acknowledgment and assessment of any risk to basic human rights upon
return which may follow from the state’s imputation of an unacceptable
political opinion to the claimant. The mere fact that the claimant might suffer
some form of penalty may not be sufficiently serious to constitute persecution,
but there are clearly situations where the consequence of return may be said to
give rise to a well-founded fear of persecution. For example, in Slawomir
Krzystof Hubicki evidence was adduced that under then-prevailing Polish
criminal law, the claimant would face imprisonment of up to eight years because
he had made a refugee claim in Canada. In such situations, the basis of claim
is not the fraudulent activity or assertion itself, but is rather the political
opinion or disloyalty imputed to the claimant by her state. Where such an
imputation exits, the gravity of consequential harm and other definitional
criteria should be assessed to determine whether refugee status is warranted.
[27]
In
light of the foregoing, the mere fact that the Board considered and relied on
the applicant’s motive for joining the Living Stone Assembly and practicing in
its activities does not invalidate its decision. Rather, the question which
must be answered by me in this application is whether the RPD reached a
reasonable conclusion in determining that the applicant is not a genuine
Christian.
Was the Board’s assessment of the
lack of sincerity of the applicant’s adherence to Christianity reasonable?
[28]
As
noted, the reasonableness standard of review is an exacting one and prevents a
court from substituting its opinion for that of the RPD. As I have already
stated, so long as the tribunal’s reasons are understandable and the result is
one that is rational and supportable in light of the facts and the applicable
law, a court should not overturn an inferior tribunal’s decision under the
reasonableness standard of review. Application of this test to the RPD’s
determination that the applicant’s beliefs were insincere leads to the
conclusion that the decision must be maintained because the reasons the RPD
offered were understandable and the result it reached is supportable in light
of the facts and applicable law.
[29]
More
particularly, the burden of establishing the sincerity of his beliefs rested
with the applicant. The Board’s determination that he had not discharged this
burden was based on its assessment of the applicant’s credibility: the fact
that he had obviously fabricated a story about what occurred in China, had lied during his testimony before the Board and had offered no convincing proof of a
conversion experience in Canada. Apart from the pastor’s letter, the baptismal
certificate and the photographs, there was no other evidence offered by the
applicant to support his claim to be a true Christian. The Board was in no way
obliged to accept these documents as proof of the sincerity of the applicant’s
religious beliefs, especially in light of the applicant’s lack of credibility
and earlier fraudulent attempt to enter Canada. In this regard, I endorse the
comment of Justice Pinard in Jin (cited above at para 24) at para 20,
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.
[30]
The
applicant argues that his case is distinguishable from Jin and Wang
(cited above at para 24) because there, unlike here, the claimants’ knowledge
of the religion they claimed to adhere to was found to be lacking. No such
finding was made by the Board in this case, and, indeed, the panel member
expressed himself satisfied with the applicant’s knowledge of Christianity
during his questioning of the applicant at the hearing. Counsel argues that in
the absence of lack of knowledge of Christianity, it was unreasonable for the
Board to find him not to be a sincere Christian because that finding, in
effect, is based on nothing more than the applicant’s improper motive in
joining the Living Stone Assembly church.
[31]
I
disagree and find the attempt to distinguish the decisions in Jin and Wang
to be unconvincing. While, as noted above, the motive and sincerity
findings made by the Board in this case are intertwined, the Board’s
determination that the applicant lacked sincerity was additionally premised on
the Board’s assessment of the applicant’s credibility, the fact that he lied
under oath and offered no convincing evidence to explain why his practice of
Christianity in Canada should be viewed any differently from his fraudulent
claim to have practiced Christianity in China. In light of these factors, the
Board’s conclusion was reasonable.
[32]
Where,
as here, a claimant’s assertion to have been the victim of religious
persecution abroad is found to be a fabrication, it is completely reasonable
for the RPD to require a much higher degree of proof of the sincerity of the
applicant’s beliefs and practice in support of a sur place claim than
might be required where the mere fact of apostasy might lead to persecution or
where the Board believes the claimant to have been the victim of religious
persecution abroad. Otherwise, it would be far too easy to succeed in a
fraudulent claim: a dishonest applicant would need only to join a church and
study the religion to advance a sur place claim. Proof of joining a
church and knowledge of its precepts, however, does not equate to proof that
the individual would be at risk if returned to his or her country of origin. In
the context of a country such as China, where persecution is practiced against
Christians not for apostasy but for the practice of their religion, the
claimant must satisfy the RPD that he or she will continue to practice his or
her faith in China. On the facts of this case, the Board’s determination that
the applicant was unlikely to do so was completely reasonable. The Board
offered understandable reasons that were grounded in the facts before it.
[33]
For
these reasons, none of the grounds advanced for setting aside the Board’s
decision has merit. Accordingly, this application for judicial review will be
dismissed.
[34]
No
question for certification under section 74 of IRPA was presented and none
arises in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is certified; and
3.
There
is no order as to costs.
"Mary J.L.
Gleason"
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