Date: 20120504
Docket: IMM-6214-11
Citation: 2012 FC 545
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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DAN NI 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 ORDER AND
ORDER
[1]
The
Applicant, a citizen of China, claims refugee protection in Canada as a
Christian because of subjective and objective fear that should she be required
to return to China she will suffer more than a mere possibility of persecution
under s. 96 of the IRPA, or probable risk under s. 97. The present
Application concerns the rejection of her claim on what is argued by the
Applicant to be contentious findings made by the Refugee Protection Division
member concerned, Mr. L. Favreau.
[2]
A
summary of the Applicant’s claim is stated in the decision as follows:
The claimant alleges that in 2009 she was
introduced into Christianity by her boyfriend. She began attending underground
church services June 7, 2009 and attended regularly thereafter. On October 12,
2009, the claimant was not in attendance at her regular church services because
she was required to work. While at work, she received a telephone call from her
boyfriend advising her that the underground church was raided by the Public
Security Bureau (PSB). The claimant immediately went into hiding. She
subsequently learned that three members of her house church had been arrested
and that the PSB attended her home to arrest her. Fearing she would be
arrested, the claimant used the services of a smuggler to leave China for
Canada where she filed for refugee protection.
(Decision, para. 2)
[3]
At
the opening of the analysis of the evidence, the Member states that:
The determinative issue in
this claim is the credibility of the claimant’s oral and documentary evidence
in regard to her identity as a Christian. In this regard, the panel finds the
claimant is not a credible witness.
In my opinion, three central findings that
the Member identified as relating to the Applicant’s credibility are made in
reviewable error. Each is addressed below under the heading framed by the
Member in the decision rendered.
I. Arrest of
Fellow Church Members and Pursuit of Claimant by the PSB
[4]
On
this issue the Member finds as follows:
The claimant alleges that three of her
fellow church members were arrested and each received multi-year sentences. The
claimant's testimony in this regard runs counter to the country condition
documents that will be demonstrated later in these reasons with the analysis of
the Situation of Christians in Fujian Province. In this regard, the
panel draws a negative inference.
The claimant also alleges that the PSB
have attended her home on numerous occasions with the intent of arresting her.
The claimant
testified that on the first occasion, the
PSB also searched her home. She also alleges that the PSB attended her home 3
days later and showed her parents a warrant for her arrest. Country Condition documents
indicate that a summons is generally left with or shown to family
members when the police want someone to come to their headquarters. In
addition, the summons is the documentary basis for the subsequent issuance of
an arrest warrant if the person in whom they are interested does not respond to
the summons. The documentary evidence states in part:
An arrest warrant can only be
obtained with the approval of county level and above public security organs
upon the presentation of an “application for Arrest-Summons”. The application
will state clearly and support with credible evidence that a crime has been
committed, the person to be arrested-summoned for interrogation has been
connected to the crime, and the suspect is not likely to appear voluntarily or
that a summons for interrogation has been executed with no success.
The claimant has testified
that the second time the PSB showed up at her house they showed a warrant to
her family. According to the claimant’s allegation, the PSB would not have
known that she was not at her residence when they attended. If a warrant was
issued as the claimant has alleged, then according to the country documents,
the PSB would have had to provide credible evidence that the claimant was not
going to attend voluntarily. Furthermore, the claimant has not alleged that a
summons was left for her at her home. It does not seem plausible that the
PSB would be able to provide that credible evidence given that they had not yet
determined if the claimant was at home. In this regard, the panel draws
a negative inference.
The panel prefers the evidence
of the China country documentation in regard to the issuance of arrest warrants
as this information is provided by unbiased, independent sources with no
interest in the outcome of any particular refugee claim.
The notes that the claimant has provided
any persuasive evidence to support her allegation that she is being pursued by
the PSB. The only evidence she has provided is her testimony and the
allegations she has made in her Personal Information Form (PIF).
(Decision, paras. 5 – 9)
[5]
Thus,
in the passage quoted the Member makes a negative credibility finding based on
an implausibility finding based on what is understood to be a general
practice of the PSB in China. In my opinion, this finding does not conform
to the law and constitutes a reviewable error. The law with respect to the
making of implausibility findings is very clear. Implausibility findings are
required to follow a rigorous standard of proof as set out in the following
passages from the decision in Vodics v Minister of Citizenship and
Immigration, 2005 FC 783 at paragraphs 10 - 11:
With respect to making negative
credibility findings in general, and implausibility
findings in particular, Justice Muldoon in Valtchev v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1131, [at paragraph 7] states
the standard to be followed:
The tribunal adverts to the principle
from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a
refugee claimant swears to the truth of certain allegations, a presumption is
created that those allegations are true unless there are reasons to doubt their
truthfulness. But the tribunal does not apply the Maldonado principle to this
applicant, and repeatedly disregards his testimony, holding that much of it
appears to it to be implausible. Additionally, the tribunal often substitutes
its own version of events without evidence to support its conclusions.
A tribunal may make adverse findings of
credibility based on the implausibility
of an applicant's story provided the inferences drawn can be reasonably said to
exist. However, plausibility findings should be made only in the clearest of
cases, i.e., if the facts as presented are outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that the
events could not have happened in the manner asserted by the claimant. A
tribunal must be careful when rendering a decision based on a lack of
plausibility because refugee claimants come from diverse cultures, and actions
which appear implausible when judged from Canadian standards might be plausible
when considered from within the claimant's milieu. [see L. Waldman, Immigration
Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[Emphasis added]
It is not difficult to understand that,
to be fair to a person who swears to tell the truth, concrete reasons supported
by cogent evidence must exist before the person is disbelieved. Let us be
clear. To say that someone is not credible is to say that they are lying.
Therefore, to be fair, a decision-maker must be able to articulate why he or
she is suspicious of the sworn testimony, and, unless this can be done,
suspicion cannot be applied in reaching a conclusion. The benefit of any
unsupported doubt must go to the person giving the evidence.
[6]
Counsel
for the Applicant adds confirmation to the finding just made by arguing that
the Member did not refer to all the available evidence in establishing the
general practice which is relied upon to make the implausibility finding:
In support of its finding that
the applicant would have received a summons before an arrest warrant, the panel
cites a section of CHN42444.E. The panel fails to cite the following paragraph
which occurs immediately after the one it cited:
However, in 21 April 2004 correspondence
with the Research Directorate, the associate professor further noted that while
procedural laws in China are expected to be uniformly implemented and concerted
efforts have been made by the Ministry of Public Security to improve policing
standards, in practice the “PSB [Public Security Bureau] has yet to arrive as a
rule of law institution.” According to the associate professor, there can be
substantial regional variances in law enforcement, in which some differences
are written into policies, but “in most instances rule of the book gives way to
norms in the street” (21 Apr. 2004).
The panel uses this
documentary evidence selectively to support its conclusion.
[Emphasis added]
(Applicant’s
Memorandum of Argument, para. 16)
[7]
With
respect to Counsel for the Applicant’s confirmation, Counsel for the Respondent
replies:
The Board was entitled to draw a negative
inference from a lack of information in the documentation that might reasonably
be expected to be mentioned in the circumstances.
(Respondent’s Memorandum of Argument,
para. 9)
I reject this argument for two reasons. First, I
find that there is no lack of information on the record about the practice of
the PSB: it is variable. And second, the obligation on the Member to consider
all the evidence in reaching such an important finding does not conform to the
general law on fact finding:
However, the more important the evidence
that is not mentioned specifically and analyzed in the agency's reasons, the
more willing a court may be to infer from the silence that the agency made an
erroneous finding of fact "without regard to the evidence": Bains
v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency's burden of explanation increases with the
relevance of the evidence in question to the disputed facts. Thus, a blanket
statement that the agency has considered all the evidence will not suffice when
the evidence omitted from any discussion in the reasons appears squarely to
contradict the agency's finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
(Cepeda-Gutierrez v. Canada (Minister
of Citizenship & Immigration), [1998] F.C.J. No. 1425, at para. 7)
II. Identity
as a Christian
[8]
On
this topic, the Member provides an opinion on two issues: whether the Applicant
has requisite knowledge of Christian doctrine to prove she is a Christian; and
whether the Applicant’s claim in made in good faith.
A. Knowledge
of Christian Doctrine
[9]
A
critical passage in the Member’s analysis on this issue is as follows:
The claimant was asked a number of
questions concerning her religious knowledge. While she was able to demonstrate
some knowledge, it was clear however, that she did not have a deep or
meaningful understanding. The claimant was asked about the Holy Trinity. She
described the Holy Trinity as the Holy Father, Jesus and the Holy Spirit. She
was asked if Jesus was God. She responded that he was not God but the son of
God. She was asked if the Holy Spirit was God. After some hesitation and
repeating of the question several times, the claimant responded that the Holy
Spirit was God. The claimant failure to understand that Jesus is God is very
troublesome. A fundamental belief of Christianity is that Jesus is God. In this
regard, the panel draws a negative inference. The claimant was asked to
explain the Holy Trinity. The claimant responded by saying that Jesus Christ is
the creator of mankind and the world and that Jesus, his son, was sent to earth
to save mankind. The claimant correctly identified the Holy Spirit as the
protector of mankind. The claimant's testimony that Jesus Christ is the creator
of mankind and the world is inaccurate. A fundamental belief of Christians is
that God, described as God the Father or God the Creator within the Holy
Trinity, is the creator of the world and mankind. The panel draws a negative
inference from the claimant's failure to know this fundamental belief. In
addition, it is clear that the claimant does not know that the Holy Trinity is
a concept of three divine persons in one. This too is a fundamental belief of
Christianity and the panel draws a negative inference from the claimant's
failure to know this.
[Emphasis added]
(Decision, para. 15)
[10]
In
Zhang v Minister of Citizenship and Immigration, IMM-2216-11 (2012 FC
503), for reasons which I incorporate by reference into the present decision, I
have made the following finding at paragraph 16:
Thus, the presumption that a
person swears to be of a certain religious faith cannot be rebutted simply on
the basis of his or her knowledge of that religion. First, religious knowledge
cannot be equated to faith. And second, the quality and quantity of religious
knowledge necessary to prove faith is unverifiable. Therefore, a finding of
implausibility that a certain person is not of a certain faith because he or she
does not meet a certain subjective standard set by a decision-maker is
indefensible as a matter of fact.
[11]
The
danger of engaging in the practice of questioning on religion to determine
whether a person is an adherent to the religion claimed is made strikingly
clear in the decision under review. In my opinion, it is remarkably unfair for
the Member to have engaged the Applicant in a debate on Christian theology as
to whether Jesus is the Son of God or God, and to then make a negative
credibility finding because the Applicant’s understanding does not conform with
what the Member understands is a fundamental belief of Christianity. First,
there is no evidence on the record to support the Member’s understanding, and
second, differences of opinion, however found, about the interpretation of
religious dogma cannot be the basis of finding someone is lying.
[12]
Also
in the decision in Zhang, on the basis of an analysis of the test
respecting the making of implausibility findings as expressed in Vodics
as quoted above which I incorporate by reference into the present decision, I
have made the following finding at paragraph 20:
[…] Adapting the test to the
making of implausibility findings with respect to religious questioning
requires an RPD member to follow a three-part process: from evidence on the record find what might reasonably be expected
by way of a response to a discrete question; fairly obtain an applicant’s
answer; and finally, conclude whether the answer conforms with what might be
reasonably suspected. The key feature of the test is establishing what answer
might be reasonably expected. This feature requires that a credible and
verifiable evidentiary basis for the expectation has been established and
known.
[13]
Since
the Member did not adhere to the law with respect to the making of
implausibility findings on the issue presently under consideration, I find that
the decision under review is made in error of law.
B. The
Relevance of Good Faith
[14]
The
finding of law made by the Member on this issue is as follows:
Having found that the claimant was not a Christian in China, the
panel must consider whether the claimant is a genuine practicing Christian in
this country. There is a requirement for 'good faith' in making a refugee
claim. In this regard, R.P.G. Haines, the Chairman of a refugee status appeal
panel and A.G. Wang Heed, a member of the United Nations High Commission for
Refugees stated in part:
If there is no good faith requirement in
the sur place situation, it places in the hands of the appellant for refugee
status the means of unilaterally determining the grant to him or her of refugee
status.
In this regard the panel cites the
following from James Hathaway's The Law of Refugee Status with regard to
"sur place" claims: An individual who as a stratagem deliberately
manipulates circumstances to create a real chance of persecution, which did not
exist, cannot be said to belong to this category/The panel finds, on a balance
of probabilities that this claim has not been made in good faith.
Having found that the claimant was not a
genuine practicing Christian in China and having found that this claim has not
been made in good faith, 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 evidence disclosed
and in the context of the claimant's knowledge of Christianity, the panel finds
that the claimant is not a genuine practicing Christian, nor would she be
perceived to be in China.
[Footnote omitted]
(Decision, paras. 19 – 20)
[15]
In
Hu v Minister of Citizenship and Immigration, IMM-6232-11 (2012 FC
544), for reasons which I incorporate by reference into the present decision, I
have made the following finding at paragraph 14 with respect to exactly the
same statement of the law by the Member as quoted above:
[…] The passages disclose that
by disbelieving the Applicant’s evidence with respect to what occurred in
China, the Member understood that, as a matter of law, a concept of “good
faith” was engaged which allowed the dismissal of the Applicant’s sur place
claim as a Christian in Canada. I find that the passages disclose an erroneous
finding of law. In my opinion, the Member’s statement that the “good faith”
finding is made in the context of other negative findings does not diminish the
application and impact of the erroneous finding of law.
As a result, I find that the decision
presently under review is made in error of law.
III. Situation
of Christians in Fujian Province
[16]
At
paragraph 21 of the decision under review, the Member makes the following
finding:
Having found that the claimant
was not a genuine practicing Christian in China and having found that this
claim has not been made in good faith, 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 evidence disclosed and in the context of the claimant’s
knowledge of Christianity, the panel finds that the claimant is not a genuine
practicing Christian, nor would she be perceived to be in China.
Then at paragraph 22, the Member makes the
following statement:
Notwithstanding the foregoing
determination, in the alternative, the panel has considered whether there is a
serious possibility that the claimant would be persecuted if she returns to
China and chooses to practice Christianity in an unregistered church. The panel
is guided by the Country Condition Documents in evidence. The claimant is from
Fujian province. The panel notes the documentary evidence states that Fujian
and Guangdong have “the most liberal policy on religion in China, especially on
Christianity” (Executive Secretary 1 Sept. 2005a). (ibid.).
[17]
The
Member used the same form of decision making in Hu, which resulted in me
making the following finding at paragraph 17 of the review decision rendered :
The Applicant claims
protection based on his evidence that he is a Christian. The Member disbelieved
him, and used the legal concept of good faith, to dismiss his claim. As found
in paragraph 13 above, the concept of “good faith” has no relevance to the
Applicant’s claim; it is an issue that arises in a claim based on a factual
finding that there is not, and never was, a heart to the claim because it is
based in fraud. But, apart from this error in law, the negative credibility
finding remains a key element of the Member’s decision. The Member found as a
fact that the Applicant “is not a genuine practicing Christian, nor would he
be perceived to be in China”. In my opinion, this statement completely
concludes the determination of the Applicant’s claim; there is nothing more to
say. This is so because there is no fact base upon which to consider the
possibility of persecution or probability of risk to the Applicant should he
return to China. But, nevertheless, the
Member proceeds to conduct an alternative analysis in case the Applicant chooses to continue to practice
Christianity in an unregistered church in China. The statement is illogical: how can the
Applicant continue to practice Christianity when he has been found not
to be a Christian? For these reasons, I find that the Member’s
“notwithstanding” effort is purely hypothetical, and, therefore, irrelevant. […]
[18]
I
repeat this finding in the present reasons to conclude that the Member’s
alternative finding is irrelevant. However, I think it is only fair to address
Counsel for the Applicant’s detailed direct challenge to the Member’s attempt
to establish, on “current” in-country evidence, that the Applicant “would be
able to practice her religion in any church in Fujian province if she were to
return to her home in Fujian province in China and that there is not a serious
possibility that she would be persecuted for doing so” (paragraph 32).
[19]
The
Member’s conclusion is based on a purported evaluation of current evidence of
conditions for Christians in Fujian province. On this evaluation, the Member
found that: there were no mention of arrests of Christians in Fujian in 2007
and 2008; no evidence of recent arrests (paragraph 23 and 24); and if there
were recent arrests of Christians in Fujian province, there would be some
documentation of these arrests (paragraph 26).
[20]
Counsel
for the Applicant’s challenge is as follows:
The panel considers the
situation of Christians in the Fujian province. The panel begins its analysis
by selecting one quote from the documentary evidence about Fujian. That quote
is the following:
Fujian and Guangdong have “the
most liberal policy on religion in China, especially on Christianity” [2005]
The panel footnotes this
citation to item 12.8 of the package, CHN100386.E. In fact, 12.8 of the NDP is not
this I1EFTNFO. Indeed CHN100386.E is not part of the April 2011 package which
was entered into evidence on this case. This information is part of an
earlier package from 30 July 2010 dealing with the situation of Catholics (the
applicant is not Catholic). It was deleted from the package that was before
the Board for this case. This is an error on the part of the Board.
In fact, there is a much
more recent REFINFO (30 June 2010) right on the subject of the treatment of
Christians in Fujian and Guangdong. It states the following:
Guangdong and Fujian
Information on the specific
situations of Protestants in Guangdong and Fujian provinces was scarce among
the sources consulted by the Research Directorate. In the 9 June 2010 telephone
interview with the Research Directorate, the President of the CAA stated that
east coast provinces are generally “more open” with fewer incidents involving
Christians reported to the CAA (CAA 9 June 2010). However, the CAA President
also stated that this did not necessarily mean there were fewer incidents, but
rather that they were not reported (ibid.). In addition, in a letter
provided to the Research Directorate, originally sent to a Canadian asylum
lawyer on 3 June 2010, the President stated:
With specific reference to the
provinces Fujian and Guangdong, it is absolutely incorrect to find that
there is religious freedom in these provinces. [...] [The persecution may come
and go and not be totally predictable, but it is always present. Even the very
threat of a government crackdown is a method of persecution. The house
churches in Fujian and Guangdong, like all of China, face the constant and
fearful risk of being closed and its members punished. Certainly, these
provinces do not enjoy religious freedom while all other parts of China do not.
(ibid. 3 June 2010) According to annual reports by the CAA, in 2007 there were
two cases of “persecution by authorities involving 4 people in Guangdong province (CAA Feb. 2008, 13),
one incident involving more than 60 people in 2008 (ibid. Jan. 2009, 18) and
eight incidents involving over 300 people in 2009 (ibid. Jan 2010, 22). The CAA
also reports that a house church in Pingtan in Fujian province was demolished in 2006 (ibid.
Jan. 2007, 13).
This part of the documentation
package goes completely without notice or citation by the panel in this case.
This is selective use of documentary evidence.
The RPD considers the most
recent China Aid Association Report from March of 2011. This report states that
more than 10 persons were reliably found to have been persecuted in the Fujian province in 2010. This fact
flies in the face of the panel’s statements that there is no documented
persecution in Fujian. The CAA report also notes that that its information
only pertains to reported incidents and should not be understood as actual
numbers of incidents due to the many problems of obtaining reliable data.
The panel states that there is
no information how these persons were persecuted or why the churches were
sealed, and still insists that it is clear that no one was arrested or
sentenced for underground activities. In so doing, the panel interprets the
report in exactly the way the CAA report expressly states it is NOT to be
interpreted.
In fact the panel again
commits an error on the face of the record in stating that no information is
available in the CAA report about the persecution and that is not even clear if
it is a legal or an illegal church. The CAA report dealing with these
persecutions in the Fujian province contains a direction with a link to a news
report for more information about the raid it refers to. When one accesses this
link the following information is available:
FUJIAN — On the morning of
October 17, 2010, church leaders in Lianjiang County, Fuzhou City sent a text
message asking various churches for prayer and assistance. At 9:30 a.m., Ban
Kezhen, a fellow worker, was taken away by government agents who did not show
identification. Also, three venues that arc used for church gatherings have
been sealed without any legal basis or submitting government paperwork. The
personal website of He Keduan, the church leader, has been restricted.
The panel makes an erroneous
reading of the documentary evidence and draws the conclusion that “if there
were arrests there would be reports of these arrests” which flies directly in
the face of the documentary evidence the Board is considering which states that
its information is limited by the restrictions on reporting like the one noted
in this incident where the church leader’s website was restricted preventing
him from providing further information.
[Emphasis added]
(Applicant’s Memorandum of Argument,
paras. 8 - 15)
[21]
On
the basis of this argument it is easy to find that the Member’s conclusion is
unsupported by current in-country evidence.
[22]
I
have two comments to make about the notion that because there is no evidence of
arrests, there were no arrests. This type of conclusion has been validated in
the following decisions: Yang, Si v Minister of Citizenship and Immigration,
2010 FC 1274; Nen Mel Lin v Minister of Citizenship and Immigration, IMM-5425-08; Jiang v Minister of Citizenship and Immigration,
2010 FC 222; Yao, Gong Sao v Minister of Citizenship and Immigration,
2011 FC 902). My first comment is that reaching such a conclusion depends on a
review of all the available current in-country evidence in a given case.
Because current evidence is so crucial to support a finding of safety upon
return, in my opinion a determination on evidence in a past decision of the
Court has no precedential value. My second comment is that, determining the
possibility of persecution or probability of risk upon return on a narrow
finding about the probability of being arrested for practicing religion,
offends the human dignity and human rights of a claimant. The issue to be
determined is whether upon return a claimant can enjoy religious freedom (see: Zhou,
Guo Heng v MCI, 2009
FC 1210 at para. 29; and Fosu v MCI, [1994] FCJ No 1813,
para. 5).
IV. Result
[23]
For
the reasons provided, I find that the decision under review is not defensible
in respect of the facts and the law.
ORDER
THIS COURT
ORDERS that:
1.
The
decision under review is set aside and the matter is referred back for
redetermination before a differently constituted panel.
2.
There
is no question to certify.
“Douglas R. Campbell”
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