Date: 20091216
Docket: IMM-3037-09
Citation: 2009 FC 1276
Ottawa, Ontario, December 16, 2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
SHAODAN LIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
concerns an application brought by Shaodan Lin (the “Applicant”) pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act for judicial
review of a decision by a panel of the Refugee Protection Division of the
Immigration and Refugee Board (the “Panel”) dated May 13, 2009 that determined
that the Applicant was not a convention refugee and was not a person in need of
protection.
Background
[2]
The
Applicant is a citizen of China
who claims that she participated in an underground Christian church in China
from the summer of 2006 until her arrival in Canada. The Applicant came to Canada with the assistance of
a smuggler on September 17, 2007 and made a claim for refugee protection on September
18, 2007, in Vancouver.
[3]
The
Applicant claims that she faces persecution in China because she belonged to an unauthorized
underground church. Upon entry into Canada she stated that she had lost her
employment in China as a kindergarten
teacher because she affirmed God’s existence in her classroom when questioned
by her students about where the world came from. She states that on September
2, 2007, the Chinese police entered her aunt’s home were meetings of the small
congregation were being held. The Applicant further alleges that her aunt was
arrested and that she herself was being sought by the police because of her
association with the underground church.
[4]
The
Applicant subsequently submitted a letter purportedly from her employer and
dated July 30, 2007 confirming that she had been dismissed for her Christian
activities. She also produced another letter purportedly from her father’s
employer dated October 15, 2007 in which it is stated that her farther had loss
his employment because of the Applicant’s Christian activities. A purported
police summons to the Applicant ordering her to report for questioning on
September 10, 2007 was also produced. Finally, a certificate of baptism from
the Rosewood Baptist Church was produced certifying
that the Applicant has been baptized in Toronto on December 21, 2008.
The decision
under review
[5]
A
hearing was held before the Panel by way of videoconference on March 12th,
2009 and a decision rejecting the Applicant’s claim was issued dated May 13,
2009.
[6]
The
decision stands on four pages, much of it comprised of the reproduction of the
Applicant’s port of entry interview held on September 18, 2007 shortly after
her arrival in Canada. The salient aspects of
the decision are reproduced below almost in their entirety.
[7]
Based
on the transcript of the port of entry interview, the Panel found that the
Applicant was not credible and had concocted the allegations of persecution in
order to enter Canada. The relevant
paragraphs of the Panel’s decision are the following:
[7]
The panel does not find the claimant’s testimony credible for reason that the
claimant gave inconsistent and evasive answers and had no satisfactory
explanation for discrepancies between her Personal Information Form (PIF)
narrative, her testimony and her statements in her port of entry interview with
an Immigration Officer on September 18, 2007.
[8]
The following questions and answers are recorded in the claimant’s Port of
Entry interview:
Q:
Have you tried to come to Canada before?
A:
Yes
Q:
When?
A:
Feb-Mar 2007
Q:
How?
A:
Get married to local people and my intention was to come to Canada
Q:
Is that the person you are married to?
A:
Yes, I don’t know him I just married him to come to Canada
Q:
How much did you pay him to come to Canada?
A:
$10,000 USD
[9]
The panel notes that the Minister filed a Disclosure on February 23, 2009 which
included CAIPS notes regarding the claimant’s attempt to immigrate to Canada as a sponsored spouse. The panel accepts the Minister’s
submission that this document shows that the claimant was involved in a
non-bona fide, bad faith marriage in order to obtain status in Canada. In answer to PIF question 19(a) (Did you apply for a visa
to Canada?) the claimant ticked off the box
stating ‘No’. The claimant offered no satisfactory explanation for this
discrepancy when it was specifically put to her. The panel also accepts the
Minister’s submission that a check on their computer systems revealed that no
appeal was filed against the visa officer’s refusal of the sponsorship application.
[10]
In the circumstances the panel finds that the evidence indicates that once the
bad faith marriage did not work for the claimant, and she was given notice of
the visa officer’s refusal letter in January 2008, the claimant found a
smuggler (“snakehead” referred to in the PIF) and concocted the allegations of
persecution to be used after she arrived in Canada.
[8]
Concerning
the objective basis for persecution, the Panel refers again to the port of
entry interview and concludes that the police summons and the loss of the
Applicant’s kindergarten job as a result of her Christian activities all fall short
of providing an objective basis that can support a finding of a well-founded
fear of persecution:
[11]
The following sequence of questions and answers in the claimant’s Port of Entry
was put to the claimant at the hearing:
Q:
How did you get your new passport?
A:
The old one expired and I applied for a new one.
Q:
How did you get a new passport if the police were after you?
A:
Because the police do not want to arrest me, they want to check up on me.
Q:
How can you be scared of them if you don’t know why they are coming?
A:
They just came to check up on me
Q:
So you are really not scared of them?
A:
I don’t know why they keep coming I think they are looking for evidence
Q:
What evidence?
A:
Evidence of the illegal meeting
Q:
Why are you running when you don’t even know why they are coming to your house?
A:
I told them it was an illegal meeting. It was just my aunt and some people from
the church.
[12]
In her testimony, the claimant confirms the above answers. The only other piece
of evidence regarding the Public Security Bureau’s interest in the claimant is
the “Order of Summon” issued by Fu Zhou City Public Security Bureau. This
document required that the claimant “must attend to Gu Shan Police Station for
question at 10 am on September 10th of 2007 with this summon.”
[13]
The only other consequence suffered by the claimant as a result of her
Christian activities was the loss of her kindergarten job, which she attributed
to possible complaints by the parents of her students.
[14]
The panel finds that the totality of this evidence falls well short of
providing an objective basis that can support a finding of well-founded fear of
persecution.
Positions of
the parties
[9]
The
Applicant argues that the Panel made no determination on her identity as a
Christian and therefore committed a reviewable error based on Chen v. Canada (Minister of Citizenship
and Immigration),
2002 FCT 480; [2002] F.C.J. No. 647 (QL). Further, the Panel took no account of
her baptismal certificate in Canada and no account of the country conditions documentation. In
a nutshell, the Applicant argues that the Panel made a negative credibility
finding based on her prior application for residency in Canada, and denied the
refugee claim essentially on this basis without considering the risks she could
encounter in China as a practicing
Christian.
[10]
The
Respondent answers that the Panel did indeed recognize that the Applicant was a
Christian when the decision is read as a whole and particularly in paragraph 13
thereof reproduced above, and therefore did make a determination as to her
identity as a Christian. The Respondent adds that having so determined the
Applicant’s religious identity, the Panel found there was insufficient evidence
submitted to it to support the allegation of persecution. Furthermore, having
found that the Applicant was not credible, the Panel was not required to review
the country conditions.
Standard of
review
[11]
The
applicable standard of review to refugee determination decisions of the Panel based
on issues of credibility and assessment of evidence has consistently been held
to that of reasonableness: see, among other decisions, Aguebor v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 732; [1993] 160
N.R. 315; Wang v. Canada (Minister of Citizenship and Immigration), 2008
FC 1153; [2008] F.C.J. No. 1433 at para. 4. As noted in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at
paragraphs 57 and 62, it is not required in every case to determine the proper
standard of review when such standard has been satisfactorily determined by jurisprudence.
I will therefore proceed to this judicial review of the decision of the Panel
on a standard of reasonableness.
Analysis
[12]
The
principles applicable to this case have been clearly set out in Jiang v. Canada (Minister of
Citizenship and Immigration), 2008 FC 635; [2008] F.C.J. No. 808 at
paragraph 15:
Case law establishes the obligation
incumbent upon the Board to make a determination on the central element of the
claim. In a line of jurisprudence following Chen v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 480, [2002] F.C.J. No. 647(QL),
this Court has consistently held that even when the Board has determined that
an Applicant's claim of religious persecution in his country of origin is not
credible either because he was found not to have been a member of the
particular religious group, or because he was found not to be persecuted,
the Board still must determine either implicitly or explicitly whether he is
now in fact a member of that group and whether he would face persecution upon
their return (Li v. Canada
(Minister of Citizenship and Immigration), 2008 FC 266, [2008] F.C.J. No. 338
(QL); (Huang v. Canada (Minister
of Citizenship and Immigration), 2008 FC 132, [2008] F.C.J. No. 164
(QL); (Li v. Canada (Minister of
Citizenship and Immigration), 2007 FC 544, [2007] F.C.J. No. 739
(QL); (Lin v. Canada (Minister
of Citizenship and Immigration), 2007 FC 510, [2007] F.C.J. No. 692
(QL); (Liu v. Canada (Minister
of Citizenship and Immigration), 2006 FC 695, [2006] F.C.J. No. 880
(QL); (Yang v. Canada (Minister
of Citizenship and Immigration), 2003 FC 971, [2003] F.C.J. No. 1236
(QL)) [Emphasis added].
[13]
In Huang
v. Canada (Minister of Citizenship and Immigration, 2008 FC 132; [2008]
F.C.J. No. 164, a case bearing some similarity to the one here, Justice
O’Reilly noted the following at paragraph 8:
In
my view, even if the Board's finding that Mr. Huang had not been a member of an
underground church was supported by the evidence, that finding did not justify
a conclusion that Mr. Huang was not entitled to refugee protection. While the
Board speculated that Mr. Huang's general knowledge of Christianity might have
been acquired in Canada in order to substantiate his refugee
claim, it did not make a definitive finding that Mr. Huang was not a genuine
Christian. In my view, therefore, the Board failed to consider whether Mr.
Huang might encounter religious persecution if sent back to China, whether or not he had previously been a member of an
underground church. (See Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 480, [2002] F.C.J. No. 647
(F.C.T.D.) (QL)).
[14]
The Panel
does not appear to have made a finding as to the Applicant’s Christian
practices in China or as to her Christian
convictions in Canada. The Panel does not
appear to have carried out an analysis regarding these matters or made findings
as to the whether the Applicant might encounter
religious persecution if sent back to China.
[15]
The
Respondent argues that the Panel did find that the Applicant is a practicing
Christian in paragraph 13 of its decision where it noted that the Applicant had
loss her kindergarten teaching position because of her beliefs. However that
paragraph simply reiterates the Applicant’s claim, and in it the Panel does not
make a determination as to the Applicant’s beliefs or religion. This paragraph
alone cannot be taken as a determination by the Panel of the central issue at
stake in the case.
[16]
The
Respondent also calls upon this Court to review the country documentation
showing that the treatment of Christians in China has considerably improved. However, it is not
the Court’s role to engage in such an analysis where the Panel has not done so.
It was the Panel’s responsibility to first the review and analyze the country
conditions and to clearly set out in its decision why these conditions do or do
not constitute a threat for the Applicant. That analysis would of course be
itself subject to review before this Court.
[17]
The
issue here is with the intelligibility and justification of the Panel’s
decision. Nowhere in its reasons does the Panel clearly state its position as
to the Applicant’s religious beliefs and practices in China, nowhere does it
review country conditions in China regarding Christians, and nowhere does it
address the current religious beliefs of the Applicant, including the baptismal
certificate supplied by the Applicant.
[18]
Reasonableness
in judicial review principally concerns the existence of justification,
transparency and intelligibility within the decision making process. Dunsmuir,
supra at paragraph 47:
Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law. [Emphasis added]
[19]
For
the foregoing reasons, I find the decision does not meet the standard of
reasonableness set out in Dunsmuir, and consequently the application for
judicial review is allowed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application for judicial review is allowed; and
2. The
matter is returned for a new hearing and re-determination before a different
Panel of the Refugee Protection Division of the Immigration and Refugee Board.
"Robert
M. Mainville"
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