Docket: IMM-5918-11
Citation: 2012 FC 510
Ottawa, Ontario, May 2, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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YU CHEN
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 22 July 2011 (Decision), which refused the Applicant’s application to be
deemed a Convention refugee or a person in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 22-year-old citizen of the Peoples’ Republic of China (PRC).
Before he came to Canada, he lived in Liaoning Province in the PRC.
The Applicant seeks protection in Canada on the basis of the
persecution he says he will suffer in the PRC because he is a Christian.
[3]
In
2008, the Applicant witnessed one of his co-workers lose a leg in an industrial
accident and he fell into depression as a result. He says that his best friend,
Guang Yao Zhao (Zhao), shared Christianity with him in early 2009, and that this
helped him to cope with the trauma of the accident. After he converted to
Christianity, the Applicant says he began attending an unregistered underground
Christian church in January 2009.
[4]
On
10 May 2009, agents of the Public Security Bureau (PSB) raided the Applicant’s
church. He says that, before the raid began, a lookout notified the church
leader that the PSB agents were closing in on them. The Applicant and several
others escaped because they had planned an escape-route before the meeting.
After his escape, the Applicant says he went into hiding at the house of his
maternal uncle.
[5]
After
he went into hiding, PSB agents went looking for the Applicant at his parents’
home on 12 May 2009. The agents said the Applicant was involved in illegal
religious activities and that they had arrested other members of his church,
and had evidence against him. After this event, the Applicant and his parents
decided together that he should flee the PRC. He hired a smuggler and travelled
first to Tokyo and then to Toronto. He arrived
in Canada on 14
September 2009 and claimed protection on 22 October 2009.
[6]
Before
the RPD heard his claim, the Applicant provided several documents as evidence.
He gave the RPD his Resident Identity Card (RIC), Household Registration
Booklet (Hukou), a Graduation Certificate, and an Employee ID card. He also
submitted a letter from the Pentecostal church he attended in Canada, a Baptism
Certificate, and several photos of him participating in church activities.
[7]
The
RPD heard the Applicant’s claim on 17 June 2011. At the hearing, the Applicant,
his legal counsel, and an interpreter were present. The RPD considered his
claim and, on 22 July 2011, rejected it. The RPD notified the Applicant of the
Decision on 12 August 2011.
DECISION
UNDER REVIEW
[8]
The
RPD denied the Applicant’s claim for protection because it found he was not a
Christian and he did not face a risk of persecution in the PRC.
Credibility
[9]
The
RPD focussed its analysis on the Applicant’s credibility. After reviewing a
number of inconsistencies between his oral testimony and his Personal
Information Form (PIF), the RPD found that he was not a credible witness.
[10]
The
RPD noted that the Applicant has 12 years of formal education and may have
faced difficulties at the hearing from cultural factors, the hearing room
atmosphere, and the stress of oral questioning. It said it had taken these
factors into account when assessing his credibility.
[11]
In
his PIF, the Applicant wrote that his friend Zhao, who had been a Christian for
a year, had shared the gospel with him in January 2009. At the hearing, the
Applicant said that Zhao had not told him about Christianity sooner for fear he
would unintentionally tell someone else. The RPD asked the Applicant why Zhao
trusted him more in 2009 than in 2008, and he said that his friend saw he was
depressed and wanted to help him. The RPD found this explanation was not
credible because it would be reasonable to expect Zhao to have confidence in
him, and it is every Christian’s duty to spread the Gospel.
[12]
The
Applicant also wrote in an amendment to his PIF that Zhao told him about the
underground church on the second occasion when they talked about Christianity.
However, at the hearing and in his unamended PIF, the Applicant said he learned
about the underground church the first time Zhao and he talked about
Christianity. Although the Applicant explained this discrepancy by saying he
was told about the church the first time and about the whole process of the
service the second time, the RPD rejected this explanation. The RPD noted that
the Applicant confirmed he was told about the church the first time, but also
amended his PIF to say it was the second time. From these inconsistencies, the
RPD drew a negative inference.
[13]
The
RPD asked the Applicant what he understood God to be when his friend first told
him about Christianity. He answered that he had not believed in God before, but
he trusted Zhao and so believed what he said. The Applicant also said that he
did not know if God was human or a god, but Zhao told him the story of the lost
sheep, so he began to understand the truth. He said he came to believe that all
will be saved, regardless of what wrong things have been done. The RPD said the
Applicant was unable to describe his concept of God when he learned about Christianity,
and so it drew a negative inference.
[14]
The
RPD also asked the Applicant to describe a typical service at his church. He
said that the believers would pray, read and hear about the Bible, pray
together, and recite the Apostles Creed. He also said they would arrange the
next meeting place. Later in the hearing, the Applicant said that he had acted
as a lookout once; he also explained the lookouts’ role and said a lookout was
appointed near the end of meetings. The RPD noted that, when he first described
a typical service, he had not mentioned how or when lookouts were appointed.
From this omission, the RPD drew a negative inference, saying it was reasonable
to expect the Applicant to mention lookouts when he talked about arranging the
next venue.
[15]
When the RPD asked him about the raid on his
church, the Applicant first said that the lookout alerted the leader when the
believers were discussing the story of the calming of the storm. In his PIF, he
wrote that the call came in while they were sharing testimonials. When pressed
on this inconsistency at the hearing, he said that they had just finished
sharing their testimonials and were about to discuss the story. The RPD said he
had not mentioned testimonials the first time he described the service. It rejected
his explanation and drew a further negative inference; the RPD found the raid
had never occurred.
[16]
The Applicant said that, when the PSB raided his
church, the leader told the believers that the venue was surrounded. He also
said that they went out the back of the building as provided by their escape
plan. The escape plan called for the believers to escape out the back door of
the building if the PSB came from the front, or the front door if the PSB came
from the back. He said that if the building was surrounded they were to force
their way out through the door with fewer PSB agents. He also said that the
building could not be surrounded because of its location. He later said that
some believers were to flee, while those who stayed behind were to pretend that
it was an ordinary, non-religious, gathering.
[17]
The RPD found the Applicant’s account of the
raid and escape plan were implausible. It said that, if the PSB saw some
believers fleeing, the agents could not reasonably be expected to believe that
an ordinary social gathering was taking place. The Applicant’s testimony on
this point was confusing and evolving, so the RPD drew an additional negative
inference.
[18]
When he described his flight from the church
after the raid, the Applicant said that he handed his Bible to the leader. He
also said that the leader told everyone to hand their Bibles to her when the
lookout called. He further said that not everyone gave the leader their Bibles,
and she told them to put the Bibles on a desk because she could not hold them
all. The Applicant then testified that he handed the leader his Bible and she
put it on the desk right away. The RPD found that this aspect of his testimony
also evolved, so it drew a further negative inference.
[19]
The Applicant also said the escape plan included
handing over the Bibles. The RPD drew a negative inference from his failure to
mention handing over bibles when he described the plan earlier in the hearing.
[20]
The Applicant said that he had told his parents
about Christianity once and they believed what he said, but the RPD found that
this was implausible. It was not plausible that his parents became Christians
after hearing about Christianity from their son once. The RPD also found that
his parents would have acted on their beliefs if they actually became
Christians. They did not act on their beliefs, so the Applicant’s story was not
credible.
[21]
In Orelien v Canada (Minister of Employment and Immigration), [1991] FCJ 1158 (FCA) (QL) the
Federal Court of Appeal held at paragraph 20 that “one cannot be satisfied that
the evidence is credible or trustworthy unless satisfied that it is probably
so, not just possibly so.” The RPD also noted that testimony from a witness
does not have to be accepted simply because it is not uncontradicted. Further,
the RPD is entitled to make reasonable findings based on implausiblities,
common sense, and rationality. Based on all of its negative inferences, the RPD
found that the Applicant had not attended an underground church in the PRC and
was not wanted by the PSB.
Sur
Place claim
[22]
After
examining the Applicant’s credibility, the RPD analysed whether the Applicant
was a genuine Christian in Canada and whether he would be at risk if he were
returned to the PRC.
[23]
The
RPD pointed out that there is a requirement of good faith on the part of
refugee claimants and that claimants who manipulate circumstances to create a
real chance of persecution show a lack of good faith. The RPD found that the
Applicant had not made his claim in good faith.
[24]
The
RPD found that the Applicant had joined a Christian church in Canada solely to
support a fraudulent refugee claim. It based this finding on its previous
findings that he was not a practising Christian in the PRC and had not made his
claim in good faith. In coming to this conclusion, the RPD also tested the
Applicant’s knowledge of Christianity. It found that he did not have the
knowledge to be expected of a person with a grade twelve education and who had
practised Christianity for two years. The RPD found that the Applicant did not
believe in the resurrection of the body – a Christian concept. He also said at
the hearing that the soul, but not the body, would be in heaven at the end of
the world. The RPD pointed out that the New Testament says that, at the end of
the world, the dead will rise again.
[25]
At
the hearing, the RPD also asked the Applicant about the Bible. He said that the
Old Testament dealt with God’s covenant with the Jews and that a covenant was
conduct, control, or a benchmark for conduct. The RPD found that the Applicant
had memorized some of the Old Testament’s contents which he did not understand.
[26]
When
the RPD asked the Applicant about the New Testament, he said it included
Corinthians I and II and Job. Because Job is actually a book in the Old
Testament, the RPD pressed him on this answer; he said it might be in the Old
Testament and that he had made a mistake. When asked what Corinthians I and II
are about, the Applicant said that he did not know because he does not
understand many things and needs to study the meaning of the Bible more. The
RPD found that if he had read Corinthians he would remember it. The RPD also
found that if he was reading the Bible every day, as he said he was, he would
be familiar with the other books in the New Testament.
[27]
The
RPD asked the Applicant what holy days his church in Canada celebrated
and he listed several days, including Passover. The RPD noted that this is not
a holy day in the Pentecostal Church and that he had not
mentioned Good Friday, which is a holy day in that church. The Applicant also
said that Pentecost was a holy day, but he did not know where the story of
Pentecost occurred in the Bible. The RPD found that he should have known where
this story occurred because he attended a Pentecostal church where Pentecost
had been celebrated the week before the hearing.
[28]
The
RPD also found that the Applicant did not have a clear concept of the Trinity.
Although he knew that the Trinity consists of the Father, the Son, and the Holy
Spirit, he did not know all three existed eternally. The Applicant said that
before Jesus was born he was a star in the sky. The RPD said this was clearly
wrong and if the Applicant had read the Gospel of John he would have known this
was incorrect.
[29]
Although
the Applicant provided a letter from the pastor of his church in Canada and a
baptism certificate from the same church, the RPD gave little weight to these
documents because he lacked knowledge of Christianity and there was no
indication of how the pastor had monitored his attendance. The RPD also said
that these documents did not show the Applicant’s motivation for attending
church and for being baptised. Based on the conclusion that the Applicant was
not a member of an underground church in the PRC, and that the PSB is not
pursuing him, the RPD found that the Applicant had engaged in religious
activities in Canada to
manufacture a false refugee claim.
Risk in Liaoning Province
[30]
In
the alternative to its finding that the Applicant was not a genuine Christian,
the RPD analysed the risk to him in Liaoning province if he returned
to the PRC and became a genuine practising Christian.
[31]
The
RPD noted that the Executive Secretary of the Hong Kong Christian Council said
on 14 June 2010 that authorities in the PRC demonstrate a high degree of
tolerance towards unregistered Christian groups. The RPD relied on its own
Request for Information (RIR) CHN103501.E – Situation of Catholics and
treatment by authorities, particularly in Fujian and Guangdong. The RPD
also found that RIR CHN102492.E – Reports of raids on Protestant house churches;
frequency and location of raids establishes that although incidents of
persecution in the PRC were recorded between 2005 and 2009, none of the
recorded incidents of persecution were in Liaoning Province. The RPD
found that there was no persuasive, recent evidence of persecution in Liaoning Province and
that if persecution had occurred in Liaoning it would have been
documented.
[32]
The
RPD then examined the Applicant’s description of his house church and its
location in a province where there was no persuasive evidence of arrests or
persecution. The RPD examined a report from the United States’ Department
of State, the International Religious Freedom Report 2009, which
indicated that unregistered groups have expanded in the PRC and many do not
practise in secret. The RPD concluded that the Applicant would be able to
practise Christianity in the church of his choosing in the PRC without risk of
persecution. The RPD said that it was guided by this Court’s decisions in Yu
v Canada (Minister of Citizenship and Immigration) 2010 FC 310 and Li v
Canada (Minister of Citizenship and Immigration) 2010 FC 205.
[33]
The
RPD concluded that the Applicant had not established a serious possibility that
he would be persecuted or that he faced a risk to his life or of cruel and unusual
treatment or punishment if he were returned to the PRC. He also did not face a
risk of torture on return. On this basis, the RPD denied the Applicant’s claim
for protection.
ISSUES
[34]
The
Applicant raises the following issues:
a.
Whether
the RPD’s assessment of his religious identity in the PRC was reasonable;
b.
Whether
the RPD’s assessment of his religious identity in Canada was
reasonable;
c.
Whether
the RPD’s assessment of the risk the Applicant faces in Liaoning Province was
reasonable.
STANDARD OF
REVIEW
[35]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of
review analysis need not be conducted in every instance. Instead, where the
standard of review applicable to a particular question before the court is
well-settled by past jurisprudence, the reviewing court may adopt that standard
of review. Only where this search proves fruitless must the reviewing court
undertake a consideration of the four factors comprising the standard of review
analysis.
[36]
In
Aleziri v Canada (Minister of Citizenship and Immigration) 2009 FC 38,
Justice Maurice Lagacé held that the standard of review with respect to the
findings of religious identity and risk in a sur place claim was
reasonableness (see paragraphs 11 and 16). Further, in Cao v Canada (Minister of
Citizenship and Immigration) 2010 FC 349, Justice Robert Mainville held
that the standard of review on the question of a claimant’s religious identity
was reasonableness (see paragraphs 17, 19 and 20). The standard of review with
respect to the first two issues is reasonableness.
[37]
In Sarmis v Canada (Minister of Citizenship and Immigration) 2004 FC
110, at paragraph 11, Justice Michel Beaudry held that the standard of review
on the risk of persecution was patent unreasonableness. Justice David Near made
a similar finding at paragraph 9 in S.A.H. v Canada (Minister of Citizenship and Immigration) 2011 FC 613.
The standard of review on the third issue is reasonableness.
[38]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls outside
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and law.”
STATUTORY
PROVISIONS
[39]
The
following provisions of the Act are applicable in this proceeding:
|
Convention refugee
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
[…]
Person in Need of Protection
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
[…]
|
Définition de «
réfugié »
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;
[…]
Personne à protéger
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.
[…]
|
ARGUMENTS
The Applicant
Christian
Identity in the PRC
Introduction
to Christianity
[40]
The
Applicant says that, when it found he was not a Christian in the PRC, the RPD
unreasonably relied on its own beliefs about how Christians should think and
act. In doing so, the RPD engaged in speculative reasoning, which this Court
has said is unacceptable. The RPD correctly said that the Applicant’s oral
testimony about when Zhao told him about the underground church was
inconsistent with his PIF. However, the RPD failed to link this inconsistency
with his Christian faith. The RPD did not say whether the negative inference it
drew from this inconsistency was in relation to the Applicant’s identity, his
PIF, or some other issue. In Diaz v Canada (Minister of
Citizenship and Immigration) 2008 FC 1243, Justice John O’Keefe held
at paragraph 16 that
It is trite law
that all critical findings
made by the Board must be supported with
a clear evidentiary basis. Failure to lay out a clear and specific evidentiary
basis is patently unreasonable and renders each of the findings to nothing more
than sheer speculation […].
[41]
Since
the RPD failed to give clear reasons for rejecting the Applicant’s evidence,
the Decision must be returned for reconsideration.
Underground
Church
Service
[42]
It
is improper for the RPD to draw negative inferences from omissions in
testimony. The RPD drew a negative inference from the Applicant’s failure to
mention the appointment of lookouts when he was asked to describe the typical
service at his underground church in the PRC. He points to Mensah v Canada (Minister of
Employment and Immigration), [1989] FCJ No 1038 (FCA), where the Federal
Court of Appeal said that
This seems to us, at first blush, to be a classic case of “Catch
22”, from which it is impossible for the applicant to extricate himself: if he
gives as few details at his hearing as at his examination under oath, his claim
fails for lack of precision; if he gives more, it fails for lack of
credibility.
[43]
The
Applicant also notes that Justice Beaudry held at paragraphs 29 to 31 of Li
v Canada (Minister of
Citizenship and Immigration) 2006 FC 868 that
The
applicant’s omission to mention his father’s loss of employment in his PIF was
certainly not helpful to his claim, but this kind of omission should not be
fatal to his claim in the same way that a direct contradiction would be. It is
further interesting to note that the Board does not comment on the credibility
of the substance of the applicant’s allegation.
Furthermore,
while the applicant did apparently failed [sic] to include his addresses
in Shanghai
and in Guangdong province, he did mention that he fled there in his PIF.
Again, the
Board relied on a technical omission rather than a contradiction to justify its
adverse credibility finding, and failed to explicitly come to a finding
regarding the credibility of his allegation of having fled to Shanghai and Guangdong.
[44]
The
RPD also erred by basing a negative inference on its own standard of behaviour.
The RPD made a speculative finding when it found that the Applicant should have
mentioned the lookout’s appointment in his description of the underground
church service. This is the same error the RPD made with respect to the
inconsistency it identified in his testimony about when Zhao told him about the
underground church. Mahmood v Canada (Minister of
Citizenship and Immigration) 2005 FC 1526 cautions against this kind of
error.
[45]
When
it drew a negative inference from the Applicant’s failure to mention the
appointment of lookouts, the RPD was overzealous and microscopic in its
evaluation of the evidence. The Federal Court of Appeal cautioned against this
kind of error in Attakora v Canada (Minister of Employment
and Immigration), [1989] FCJ No 444, when it held that
I have mentioned the Board’s zeal to find instances of
contradiction in the applicant's testimony. While the Board’s task is a
difficult one, it should not be over-vigilant in its microscopic examination of
the evidence of persons who, like the present applicant, testify through an
interpreter and tell tales of horror in whose objective reality there is reason
to believe.
[46]
The Applicant says his testimony about a typical
underground church service in the PRC was otherwise consistent, so the
inconsistency in his testimony on this narrow point about lookouts should not
have led the RPD to a negative inference about his overall credibility.
Bibles
[47]
The
RPD also unreasonably drew a negative inference from his failure to mention how
Bibles were to be dealt in his description of the escape plan. Just as it was
unreasonable for the RPD to draw a negative inference from his failure to
mention the appointment of lookouts, it was also unreasonable for the RPD to
draw a negative inference from his failure to describe the plan for the Bibles.
Spreading the Gospel
[48]
The
RPD’s treatment of the Applicant’s testimony about sharing Christianity with
his parents was also unreasonable. The RPD did not consider how this testimony
established his religious identity. Although the RPD found that it was
implausible that the Applicant’s parents would convert to Christianity after
being told once, the RPD did not draw any conclusions about the Applicant’s
beliefs from this evidence. The RPD also unreasonably based its assessment of
this testimony on speculative assumptions about how his parents would act on
their beliefs if they had actually converted to Christianity.
Sur Place Claim
[49]
Even
if the RPD’s findings with respect to his Christianity in the PRC are
reasonable, they are irrelevant to his refugee claim. The only thing that
mattered to his claim for protection was his religious identity in Canada and the RPD
unreasonably analysed this aspect of his claim.
[50]
The
RPD unreasonably based its assessment of his Christianity in Canada on its
finding that he was not a Christian in the PRC. What mattered, however, was
whether he was a Christian at the time of the hearing. The RPD’s statement that
Having found that the [Applicant] is not
a genuine practicing Christian in China [sic] and having found that his
claim has not been made in good faith, I find on a balance of probabilities,
and in the context of findings noted above, that the [Applicant] joined a
Christian church in Canada only for the purpose of supporting a fraudulent
refugee claim.
[51]
When
it failed to consider his sur place claim independently of its
assessment of his Christianity in the PRC, the RPD acted unreasonably.
Knowledge of
Christianity
[52]
The
RPD’s assessment of his Christian faith in Canada was also
unreasonable because it did not analyse whether his faith was genuine through
questioning or by looking at the documentary evidence which was before it.
Instead, the RPD looked at what he knew about Christianity and the Bible. In Wu
v Canada (Minister of
Citizenship and Immigration) 2009 FC 929, at paragraph 22, Justice
Michael Kelen held that
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.
[53]
In
this case, the RPD’s conclusion that the Applicant was not a genuine Christian
was not open to it because he demonstrated a reasonable level of knowledge
about Christianity.
Documents
Submitted
[54]
When
the RPD assigned little weight to the Applicant’s Baptism Certificate and the
letter from his pastor in Canada, it acted contrary to the presumption of
truth which the RPD is obligated to apply to claimants’ documents and
testimony. The conclusion that these documents did not reveal his motivation is
also contrary to the RPD’s own documents. The screening form the RPD gave the Applicant
before the hearing directed him to provide documents showing religious
activities. If these documents were of little value in showing his religious
identity, then it was pointless for the RPD to demand the Applicant produce
them.
[55]
Although
the RPD correctly found that a pastor’s assessment of someone’s religious
beliefs does not displace the RPD as trier of fact, this does not lead to the
conclusion that the letter from the Applicant’s pastor should be given little
weight. The RPD misinterpreted the law in this regard.
[56]
The
RPD also unreasonably allowed its assessment of the Applicant’s religious
identity in the PRC to taint its assessment of his Christianity at the time of
the hearing. Even if he had initially joined the church in Canada to support his
claim, this was not relevant to whether he was a genuine Christian at the time
of the hearing. If the Court accepts this line of reasoning, then it will
preclude the possibility that a person who initially joins a church for
fraudulent purposes could develop a genuine faith which would put him at risk
of persecution. The RPD’s failure to adequately consider the evidence
surrounding the Applicant’s Christianity in Canada means that
the Decision should be returned for reconsideration.
Risk on
Return
[57]
The
RPD’s alternative finding that he would not face a risk of persecution if
returned to the PRC was also unreasonable. The Applicant says that the RPD
ignored a letter from Bob Fu, the President of the China Aid Association. This
letter says that much of the religious repression in the PRC is unreported and
it is incorrect to assume that underground churches can operate freely.
[58]
The
RPD also ignored evidence in its own National Documentation Package (NDP) on
the PRC. The International Religious Freedom Report 2009, above, says
that
Police
and officials of local [Religious Affairs Bureaus] in some areas disrupted home
worship meetings, claiming that participants disturbed neighbors or social
order, or belonged to an “evil religion.” Police sometimes detained for hours
or days worshippers attending such services and prevented further worship
activities.
[59]
The
RPD relied on this report for its conclusion that the Applicant’s risk on
return was low. However, this report shows that there was evidence before the
RPD which shows restrictions on Christian practice in the PRC. The Applicant
points to Fosu v Canada (Minister of Employment
and Immigration), [1994] FCJ No 1813, where Justice Pierre Denault wrote at
paragraph 5 that
The fact is that the right to freedom of religion also includes
the freedom to demonstrate one's religion or belief in public or in private by
teaching, practice, worship and the performance of rites. As a corollary to
this statement, it seems that persecution of the practice of religion can take various
forms, such as a prohibition on worshipping in public or private, giving or
receiving religious instruction or, the implementation of serious
discriminatory policies against persons on account of the practice of their
religion. In the case at bar I feel that the prohibition made against Jehovah’s
Witnesses meeting to practise their religion could amount to persecution. That
is precisely what the Refugee Division had to analyze.
[60]
The
RPD did not appropriately address whether the Applicant could practise
Christianity openly or freely in the PRC.
[61]
The
Applicant also points out that Jin v Canada (Minister of
Citizenship and Immigration) 2005 FC 249 stands for the proposition
that, even if there are no recent reports of persecution, this does not show
that persecution does not occur. When the RPD analysed the risk he faced by
comparing documented incidents of persecution in other areas of the PRC with
the lack of documented incidents in Liaoning Province, it committed a
reviewable error.
The
Respondent
[62]
The
Respondent argues that the Decision is clear, cogent, and comprehensive, and
that the RPD’s findings of fact were open to it on the evidence before it. The
Applicant has not shown that the RPD’s findings were erroneous, perverse, or
capricious. The Decision was reasonable and should stand.
ANALYSIS
[63]
The
Decision rests upon three principal findings:
1.
The
Applicant’s story was not credible, so he could not establish subjective fear:
“I find, on a balance of probabilities, that the claimant did not attend an underground
church in China, and that he
was not being pursued by the PSB on that account”;
2.
The
Applicant was not a genuine Christian in China or in Canada and his
“motives for engaging in religious activities is to manufacture of (sic)
fraudulent refugee claim”;
3.
Alternatively,
“if the claimant decides to become a genuine Christian and practice his faith
upon his return to China” then “on a balance of probabilities… the claimant
would be able to practice his religion in any church if he were to return to
his home in Liaoning province in China and that there is not a serious
possibility that he would be persecuted for doing so.”
[64]
These
grounds are not mutually exclusive or stand-alone alternatives. The RPD
rejected the genuineness of the Applicant’s Christian identity in Canada at
least in part because it found he “was not a member of an underground church in
China, and that he is not being sought by the PSB on that account” so that “the
claimant’s motives for engaging in religious activities is to manufacture of [sic]
fraudulent refugee claim.”
[65]
In
addition, one of the reasons the RPD says there is no evidence of arrests or
incidents of persecution of Christians in Liaoning province is
because it did not accept his personal narrative of persecution or that the PSB
is looking for him. This led it to conclude that the Applicant is free to
return and practise his religion there.
[66]
As
regards the genuineness of the Applicant’s Christianity in Canada, it is my
view that the RPD committed an error similar to the one Justice Beaudry
described in Wang v Canada (Minister of
Citizenship and Immigration) 2011 FC 1030. In Wang, the RPD
erroneously determined whether the Applicant was a genuine Christian by way of
trivia and without balancing its negative findings against what the Applicant
did know about Christianity:
4 The
Board had several concerns regarding his credibility; especially, it found that
the applicant was never a genuine practicing Roman Catholic. The applicant’s
level of knowledge of the Catholic faith did not commensurate with someone who
had been a Roman Catholic for three years. For example, the Board made note of
the following (Board’s decision, paras 19-28, for a complete list):
a. The
applicant displayed little knowledge of mass;
b. He
was asked about the reading of the Gospel by the priest. The applicant
testified that the previous Sunday's reading was from Exodus. The Board noted
that this was incorrect, as the Gospel is always from the New Testament;
c. He
displayed little knowledge of the Old Testament;
d. He
had little knowledge of the Bible’s characters, such as Mary, Elizabeth and
Mary Magdalene;
e. He
did not know the story of the Good Samaritan;
5 At the resumption of
the hearing, the applicant correctly answered questions pertaining to the
rosary and to the seven sacraments. The Board gave little weight to the
answers, as it concluded that the applicant could have been anticipating the
questions.
[…]
10 Although the applicant
proposes numerous issues to be decided, the Court is of the opinion that the
Board’s negative finding of the applicant’s knowledge of the Roman Catholic
faith is central to the applicant’s dismissal of his claim.
11 In Dong v. Canada (Minister
of Citizenship & Immigration), [2010] A.C.F. no 54, at para 20, the Court
stated:
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.
12 In that case, the Board
drew a negative inference in relation to the applicant’s identity as a
practicing Christian because of his inability to easily describe the core
elements of the Christian faith. The Court held that the Board’s determination
that the applicant was unable to demonstrate a reasonable level of Christian
knowledge, and therefore was not credible, was unreasonable.
13 In the present case,
the Court finds that the Board erred in determining that the applicant was not
a genuine Roman Catholic by holding him to an unreasonably high standard of
religious knowledge. For example, the applicant was asked if the wafer
distributed during Holy Communion represented the body of Jesus or if it was
the body of Jesus. The applicant answered that it represented the body of Jesus
(transcript, Certified Tribunal Record, page 469, line 25). The Board found
this answer to be incorrect. The Board erroneously determined the applicant's
knowledge of the Catholic faith by way of “trivia”. In assessing the applicant’s
knowledge of Christianity, the Board “erroneously expected the answers of the
applicant to questions about his religion to be equivalent to the Board's own
knowledge of that religion” Ullah v. Canada (Minister
of Citizenship and Immigration), [2000] F.C.J. No. 1918, para 11.
14 The applicant was asked
several detailed questions about the Christian religion which he answered
correctly, for example, the procedure of the Holy Communion (Certified Tribunal
Record, page 468, line 45).
[67]
The
RPD committed similar errors in the present case. In addition, the RPD
also based its genuineness finding upon its negative credibility finding, which
I think was unreasonable.
[68]
In
this regard, I agree with the Applicant that, in its credibility analysis, the
RPD engaged in speculation, microscopic analysis and inferences drawn from
omissions in the Applicant’s testimony. This flawed analysis taints the
credibility finding to such an extent as to render the Decision unreasonable.
The RPD also relied on peripheral matters to reject major aspects of the
Applicant’s claim.
[69]
Paragraph
8 of the Decision is typical in this regard:
The claimant testified that the person
who introduced him to Christianity was his best friend. However, the claimant
did not know that his best friend had been a Christian for almost a year before
spreading the Gospel to him. The claimant testified that the reason his friend
did not tell him sooner that he is a Christian is because he was afraid that
the claimant might inadvertently tell someone about it. The claimant was asked
why his friend would trust him more to be discreet in 2009 than before. He
testified that his friend told him about Christianity because he saw that he
was quite depressed and wanted to help him. I find this explanation not
credible since the duty of a Christian is to spread the Gospel and since this
was his best friend, it would be reasonable to expect that his best friend
would spread the Gospel to him and would have sufficient confidence in the
claimant not to disclose fact of his friend’s Christianity.
[70]
Here
we can see the RPD speculating and setting itself up as an authority on how
best friends and Christians behave in China, and questioning the Applicant’s
testimony by using groundless assumptions based upon no evidence at all. In Mahmood,
above, at paragraph 16, Justice Blanchard said “Plausibility findings should
therefore be made only in the clearest of cases, that is, if the facts as
presented are outside the realm of what could reasonably be expected.” It is
not outside the realm of plausibility for Zhao to have avoided sharing
Christianity with the Applicant until he felt there was a need to do so.
[71]
In
paragraph 11 of the Decision, the RPD draws a negative inference from an
omission in the Applicant’s testimony:
The claimant was asked to describe the
typical service at his church. He listed prayer, reading the Bible, discussing
the Bible, the organizer explaining the Bible, praying together, reciting the
Apostles Creed, and arranging the next venue. Later in the hearing, the
claimant explained the role of the lookout. When asked when the lookouts were
appointed, the claimant answered that the organizer arranges for the lookouts
at the end of the gathering. The claimant had not mentioned appointing lookouts
when asked to describe the gathering or the service, even though he had
mentioned the organizer arranging for the next venue, and then had stated that
there was nothing else. The claimant’s explanation for the omission is that he
believes he mentioned it. The claimant did not, and I draw a negative
inference, as it is reasonable to expect that, when talking with the next
venue, he would have at the same time talked about the appointment of the
lookouts. I draw a negative inference.
[72]
There
is no basis for the conclusion that it would be reasonable to expect the leader
to talk about lookouts when discussing the next venues. In addition, this
hardly seems a material point when assessed in the context of what the
Applicant did say about the rest of the church service. See Li, above,
at paragraph 29. This kind of omission cannot be treated in the same way as a
contradiction.
[73]
The
RPD also doubted the Applicant because he was unable to describe to the RPD’s
satisfaction what his conception of God was when his friend first told him
about Christianity. Bearing in mind the complexities inherent in the Christian
concept of God, it is hardly surprising that a neophyte might have a different
understanding of God than the RPD, so it is no ground at all upon which to
doubt his credibility.
[74]
The
Decision might still be salvageable if the final ground – the Applicant’s
freedom to practise his religion in Liaoning province if he returns
– did not contain a reviewable error. However, in my view, it contains two
reviewable errors that render it unreasonable.
[75]
First,
it is based upon a repeated assertion that the documentary evidence in the
exhibits before the RPD contains no “recent evidence of arrests or incidents of
persecution of Christians in Liaoning province.” This finding
is contradicted by direct evidence contained in the Annual Report of
Persecution by the Government on Christian House Churches within Mainland China
for 2007 which was before the RPD. The entry for Liaoning tells us
that the following person was persecuted, arrested and sentenced to “one year
of education through labor”:
Ms. Gu Changrong from Qidaohe Village, Wandianzi Township, Qingyuan Manchurian Autonomous Cournty
of Fushun City, was arrested for preaching the gospel to the village party
secretary.
[76]
Counsel
for the Applicant referred the RPD to this entry but the RPD did not deal with
it. It is impossible to know whether the RPD overlooked it or did not think it
was material enough to change its general conclusion. Where the basis for the
RPD’s conclusion on risk was the absence of reported incidents of persecution,
this information could have made a difference to the finding the Applicant was
free to practise his religion in his home province.
[77]
Second,
there was evidence before the RPD that some religious persecution in China goes
unreported. So the RPD’s conclusions on this issue would surely have been
entirely different if it had not made unreasonable findings on credibility and
had found that the Applicant’s narrative and assertion that the PSB was looking
for him were believable. If the RPD had believed the Applicant, this would tend
to show that, even though few incidents of persecution are reported in Liaoning province,
persecution actually occurs there. This was material to the risk he faced, so
the RPD’s unreasonable conclusion means the Decision as a whole is
unreasonable.
[78]
All
in all, I think the Decision is unsafe and that it should be returned for
reconsideration.
[79]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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