Date:
20120704
Docket:
IMM-8012-11
Citation:
2012 FC 849
Ottawa, Ontario, July
4, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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XIAOHONG YANG
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated
October 12, 2011, which found that the applicant was neither a Convention
refugee nor a person in need of protection pursuant to sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow the application is dismissed.
Facts
[2]
The
applicant, Xiaohang Yang, is a citizen of China. She states that she was
introduced to Catholicism by a friend after she was hospitalized due to a head
injury. She began attending an underground Catholic house church regularly.
[3]
The
applicant states that on May 17, 2009, her church was raided by the Public
Security Bureau (PSB). Having arrived late that evening she escaped arrest and
went to hide at her aunt’s house. While in hiding the applicant learned that
the PSB had come looking for her and that three fellow church members had been
arrested. The applicant left China with the aid of an agent and arrived in Canada on September 14, 2009. She made her refugee claim on October 6, 2009. She
subsequently learned that the three church members who had been arrested were
sentenced to three years’ imprisonment in China.
[4]
The
Board had concerns as to the applicant’s credibility and found that the
applicant was neither a Convention refugee, nor a person in need of protection.
The Board found that the applicant was not a genuine Christian and that even
if she were she would not face a risk of persecution upon return to her home province of Fujian.
Credibility
[5]
The
Board made several negative credibility findings based on discrepancies in the
applicant’s oral and written evidence, or inconsistencies between her testimony
and the documentary evidence. These findings included:
a.
The
applicant gave different dates in her written and oral testimony as to when the
PSB came looking for her at her family’s house, and also gave discrepant
testimony on this point at different times during the hearing.
b.
The
applicant omitted from her written narrative several dates regarding when the
PSB was looking for her.
c.
The
summons presented by the applicant as evidence did not conform with
descriptions and examples of that kind of document from the documentary
evidence: it did not include the applicant’s age, gender or address; it did not
include acknowledgment of receipt; and it was a summons for questioning rather
than an arrest summons, which would not have been issued in the circumstances
if the applicant’s testimony were true.
d.
The
documentary evidence suggested that the arrest and sentence to three years’
imprisonment of three Catholic practitioners would have been reported by interested
organizations, and therefore the lack of any report suggested this did not
actually occur. The applicant had a United States visa dated June 3, 2009, but
did not leave China until she obtained a visa to Canada months later. The
Board drew a negative inference from her delay in leaving China and did not accept the explanation that she left all the plans to the agent.
[6]
As
a result of all these findings the Board concluded that the applicant was not
credible, she did not practice Christianity in China, and the raid by the PSB
did not occur. The Board also found that the claim had not been made in good
faith and the applicant was only attending a church in Canada to bolster her fraudulent refugee claim. The Board found that the applicant was not a genuine
practicing Roman Catholic and would not be perceived as such in China.
[7]
In
the alternative, the Board found that even if the applicant were a genuine
Christian, she had not established a serious possibility of persecution if she
were to return to Fujian. The Board reviewed the documentary evidence
regarding treatment of Catholics in China, particularly in Fujian. Some
evidence suggested that province is more tolerant than others, while other
evidence suggested the opposite.
[8]
The
applicant’s claim was therefore refused.
Standard of Review and Issue
[9]
This
application raises the following issues:
a. Was
the Board’s analysis of credibility reasonable?
b. Did
the Board err in imposing a good faith requirement?
c. Was
the Board’s finding that Christians in Fujian are not at risk reasonable?
Analysis
Was the Board’s analysis of
credibility reasonable?
[10]
The
Board found the applicant not to be a credible witness and therefore did not
believe that she was a Christian either in China or Canada, or that the alleged
raid by the PSB had occurred. These findings, if reasonable, were
determinative of the applicant’s refugee claim and therefore any other errors
could not result in the decision being set aside. In my view, these findings
were reasonably open to the Board and therefore the application must be
dismissed.
[11]
The
applicant argues that the Board focused on details that did not go to the heart
of the claim and therefore it erred by conducting a microscopic examination of
the evidence: Attakora v Canada (Minister of Employment and Immigration)
(1989), 99 NR 168 (FCA). However, the Board’s findings related to her
testimony about the PSB searching for the applicant following the raid and her
allegation that three of her fellow church members were arrested and sentenced
to three years’ imprisonment. These facts were both central to her claim and
material to the legal analysis. The Board found that the applicant’s evidence
on those facts either contradicted itself, or was inconsistent with the
documentary evidence. These findings were reasonably open to the Board.
[12]
The
applicant also argues that the Board unreasonably rejected the PSB summons
because there was evidence before the Board that the practice of the PSB varies
by region, and also because the samples relied on by the Board were outdated. The
Board considered the applicant’s submission regarding regional variation but
nonetheless found that the omissions in the summons were enough to find, on a
balance of probabilities, that it was not an authentic document.
[13]
The
applicant also submits that the Board ignored her explanation for her delay in
leaving China. Namely, that her agent had her passport and made all the travel
plans. However, the Board considered that explanation in the decision but did
not consider it to reasonably explain her failure to flee China when she had a valid visa to the United States. The applicant’s argument amounts to a request
for this Court to step into the role of the Board and reach a different
conclusion, a step which is not open to the Court.
Did the Board err in imposing a
good faith requirement?
[14]
I
agree with the applicant that the Board erroneously stated that there is a “good
faith” requirement in Canadian refugee law. The sources relied upon by the
Board in support of such a requirement (the New Zealand Refugee Status Appeals
Authority and a James Hathaway text) are over 15 years old and are not specific
to Canadian law.
[15]
As
stated in Ghasemian v Canada (Minister of Citizenship and Immigration),
2003 FC 1266, there is no good faith requirement for sur place refugee
claims. On the contrary, even where a claimant converts for an opportunistic
reason, he or she is still entitled to protection if he or she can establish a
well-founded fear of persecution on a Convention ground. The decision in Ghasemian
states in part:
[29] Mrs. Ghasemian says that the Board also erred
when it looked at her motive for conversion and applied the wrong test by
rejecting her claim on the basis that it was not made in good faith i.e. she
did not convert for a purely religious motive. She relies on the decision of
the English Court of Appeal in Danian v. Secretary of State for the Home
Department, [1999] E.W.J. No. 5459 online: QL.
[30] In that case, the English Court of Appeal
found that even though Mr. Danian's "refugee sur place" claim was
based on outspoken political opinions, allegedly made for the sole purpose of
supporting his claim, the tribunal still had the obligation to determine
whether he would face persecution if returned to his country of origin.
[31] Although the decision in Danian, above,
is not binding on this Court, I find its reasoning quite persuasive and agree
that opportunistic claimants are still protected under the Convention if they
can establish a genuine and well-founded fear of persecution for a Convention
ground.
[32] I note, however, that in Danian, above,
the Court also said that the fact that a claimant has manipulated his or her
situation in order to make a refugee claim may still be relevant to the issue
of credibility.
[33] Obviously, this may have a significant impact
on a claimant's ability to establish the existence of a subjective fear of
persecution if the only evidence in that respect is his or her testimony.
[16]
Thus,
according to this decision, the question of whether a claimant’s conversion was
in good faith is relevant to the claimant’s credibility, but the decision-maker
must still consider whether the claimant has a well-founded fear of persecution
based on a Convention ground.
[17]
Similar
reasoning was also applied in Ejtehadian v Canada (Minister of Citizenship
and Immigration), 2007 FC 158:
[10] The IRB articulated its understanding of how
it must conduct its assessment of a refugee sur-place claim. At page 4
of its reasons the IRB wrote:
As a sur-place claim, the panel must examine
the claimant’s motives, which led to the decision to convert. There is no doubt
that the claimant since his arrival in Canada has become a member of the Mormon
Church. Was this conversion a legitimate conversion, as the claimant alleges,
or was it simply as a means to remain in Canada and claim refugee status?
[11] The IRB’s articulation of the test in a sur-place
claim is incorrect. In a refugee sur-place claim, 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: Mbokoso v. Canada (Minister
of Citizenship and Immigration, [1999] F.C.J. No. 1806 (QL). The IRB’s
negative decision is based on a finding that the Applicant’s conversion is not
genuine, and “nothing more than an alternative means to remain in Canada and claim refugee status.” The IRB accepted that the Applicant had converted and
that he was even ordained as a priest in the Mormon faith. The IRB also
accepted the documentary evidence to the effect that apostates are persecuted
in Iran. In assessing the Applicant’s risks of return, in the context of a sur-place
claim, it is necessary to consider the credible evidence of his activities
while in Canada, independently from his motives for conversion. Even if the
Applicant’s motives for conversion are not genuine, as found by the IRB here,
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. See Ghasemian v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1266, at paragraphs 21-23, and Ngongo c. Canada (M.C.I.), [1999] A.C. F. No 1627 (C.F.) (QL).
[18]
In
both these cases, because the claimants were from Iran where apostasy is a
crime, the mere fact that they converted, whatever their motives, created a
risk of persecution. In the case under review, the applicant is only at risk
if she is a genuine practicing Christian, which was the question the Board
considered in its analysis.
[19]
I
therefore agree with the applicant that the Board erred by referring to a “good
faith” requirement for sur place refugee claims and its decision would
be unreasonable if it had been made on that basis. However, the Board’s
reasons as a whole can be interpreted as finding, based on numerous credibility
concerns, that the applicant is not a genuine Christian. In other words, the
Board did not reject the claim because the applicant converted for an
illegitimate purpose; rather, the Board rejected the claim because she never
really converted, but rather attended a church in Canada to support her refugee
claim. In my view, therefore, the Board’s error was not material to its
conclusion and this aspect of its decision is reasonable.
Was the Board’s finding that
Christians in Fujian are not at risk reasonable?
[20]
Because
the Board reasonably concluded that the applicant was not a genuine practicing
Christian any alleged errors in its determination regarding risk to Christians
in Fujian could not have affected the outcome. These arguments therefore need
not be considered and the application must be dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application
for judicial review be and is hereby dismissed. No question for certification
has been proposed and none arises.
"Donald
J. Rennie"
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