BACKGROUND
[2]
Mr. Chen
is a 46-year-old citizen of the Fujian
Province, People’s Republic of China (PRC). He is married and has
two children. He came to Canada for business on September 16,
2006 and was scheduled to return on September 23, 2006. He applied for refugee
protection while in Canada on the grounds that he fears
persecution in the PRC due to his religion.
[3]
The
applicant explained in his Personal Information Form (PIF) narrative that he
was introduced to Christianity through a friend in the PRC. He started
attending Sunday services at an underground Christian church on May 15, 2005
and occasionally acted as a look-out. He was baptized in China on April 16, 2006.
[4]
On
September 22, 2006, a day before his visitor visa expired, the applicant called
his wife in the PRC. She told him that his underground church had been
discovered by the Public Security Bureau (PSB) the day before (September 21,
2006) and that two fellow members had been arrested. She also said the PSB had
been to their home looking for him in connection with illegal religious
activities.
[5]
Instead of
returning to China, Mr. Chen remained in Toronto and made a refugee claim on
September 25, 2006. He has remained in Canada ever since and claims that PSB
officials continue to visit his home in China.
[6]
The
applicant says he regularly attends services at the Living Water Assembly Church in Toronto, Ontario. He was baptized there by Reverend
David Ko on December 25, 2006.
[7]
A refugee
hearing was held in Toronto on July 16, 2008. The
applicant was represented by counsel and the language of interpretation was
Mandarin/Chinese. The applicant had difficulty understanding the interpreter
and stated his preference to have interpretation in the Fuzhou dialect. His refugee hearing
was re-scheduled to September 17, 2008, where he was assisted by counsel and
testified through a Fuzhou interpreter.
THE IMPUGNED DECISION
[8]
In a
decision dated October 29, 2008, the Board concluded that the applicant was
neither a Convention refugee nor a person in need of protection. The
determinative issue was his lack of credibility.
[9]
The applicant
indicated in his PIF that the PSB had gone to his home looking for him. At the
hearing, he testified that the PSB had visited his home twenty times since his
underground church was discovered. He also admitted that he was required to
obtain the permission of the Chinese government before he could leave China to
travel to Canada. The Board found it
implausible that the Chinese authorities would go to his home to look for him
if they knew he had not yet returned from Canada. The applicant explained that the PSB
went to his home to threaten his wife so that he would turn himself in. When
the applicant was asked why he didn’t say this initially, the applicant replied
that he was not asked. The Board drew a negative inference from the
contradiction in the applicant’s evidence and, on a balance of probabilities,
found that the PSB did not go to the applicant’s home in China to look for him, nor did they threaten
his wife.
[10]
The Board
also found it unreasonable that the applicant would risk arrest by attending a
service at an underground church a week prior to his trip to Canada for what he described as a
“profitable business opportunity”. The applicant replied that such a risk was
not a factor because he believed in Jesus and that was the only thing on his
mind.
[11]
At the
hearing, the applicant was asked if it was a coincidence that his underground
church was discovered by the PSB two days before his visitor visa to Canada expired and that the PSB went
to his home looking for him the day his visa expired. The only explanation the
applicant could offer was “that was what happened”. On a balance of
probabilities, the Board found the coincidence implausible.
[12]
The Board
referred to the documents tendered in support of the applicant’s claim, namely
a letter from Reverend Ko confirming his attendance at church since September
24, 2006 and a copy of his baptismal certificate. The Board also recognized
the applicant’s basic knowledge of Christianity. While the Board accepted the
fact that the applicant attended a Christian church in Canada, she found, on a balance of
probabilities, that the applicant acquired his knowledge of Christianity in Canada to bolster a manufactured
claim, and not because he is committed to Christianity. The Board determined
that the applicant’s claim was not made in good faith.
[13]
Having
concluded that the applicant is not, nor has he ever been, a member of an
underground Christian church in the PRC and is not a genuine Christian in Canada, the Board found that the
applicant could return to the PRC without fear of persecution. The Board also
determined that if the applicant wanted to become a Christian and practice his
faith in the PRC, he could do so freely in a registered church. The Board
cited documentary evidence in support of this finding.
[14]
The Board
also noted the applicant’s claim that the PSB visits to his home in the PRC
have had an adverse effect on his family. The applicant says his children, who
are university students, are burdened because they have to work after school to
support themselves and his wife is ill. The Board said it is common practice
for students from every country to work while attending school.
THE ISSUES
[15]
This
application for judicial review raises two issues:
a. Did the Board err in its
assessment of the applicant’s credibility?
b. Did the Board err in its
determination that the applicant was not, and is not now, a Christian and is
therefore not at risk if returned to China?
ANALYSIS
[16]
In Dunsmuir
v. New
Brunswick,
2008 SCC 9, the Supreme Court held that a standard of review analysis need not
be conducted in every instance. Where the standard of review applicable to the
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard.
[17]
The
central issue at bar relates to the Board’s credibility findings. Recent
jurisprudence suggests that such findings of fact attract a standard of
reasonableness: see, for ex., Sun v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1255, at para. 3; Chen v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1168, at para. 12.
[18]
When
reviewing a decision on the standard of reasonableness, the analysis must 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 (Dunsmuir, supra, at para. 47).
[19]
I agree
with the applicant that some of the Board’s credibility findings are
unreasonable. For example, the Board cast doubt on the applicant’s credibility
because of his inconsistent statements as to the PSB’s attempts to locate him.
In his PIF, the applicant stated that the PSB had been looking for him, but he
testified at the refugee hearing that the PSB had been to his home to threaten
his wife so that he would turn himself in twenty times since his underground
church was discovered.
[20]
In my
view, the information added by the applicant at his hearing is not inconsistent
with the narrative in his PIF, but is new evidence that was not available when
he wrote his PIF. Based on my reading of the transcript, the way in which the
Board put these statements to the applicant was unfair. It appears to me that
the applicant provided a logical explanation for what the Board deemed a
discrepancy. As such, I consider the Board’s finding on this point
unreasonable.
[21]
The same
is true for the Board’s finding that it made no sense for the applicant to
attend a service at his underground church a week prior to his trip to Canada for what he considered a
“profitable business opportunity”. The applicant’s explanation for so doing,
that he had to carry on with his beliefs regardless of the consequences he
could face, was perfectly reasonable from his point of view. His explanation
was certainly not outside the realm of what committed believers can reasonably
be expected to do in the face of adversity. Indeed, it is almost insulting to
suggest that a potential personal profit from a business trip to Canada should have impinged on his
faith.
[22]
That being
said, I am satisfied that the Board’s other credibility findings are reasonable
and supported by the evidence. This is true, for example, of the Board’s
conclusion that it is implausible the PSB would continue to visit his home
(twenty times since the underground church was discovered) if they knew that he
had not yet returned from Canada. Even more troubling was the
fact that the PSB discovered the applicant’s underground church two days before
his visitor visa to Canada expired, or that the PSB
looked for him at his home the same day his visa expired. Yet, the applicant’s
only explanation was “that was what happened”. This was clearly not a very
compelling explanation, and the Board could reasonably conclude, on a balance
of probabilities, that this coincidence was implausible.
[23]
As already
mentioned, the role of this Court is not to re-weigh the evidence and
substitute its own view. While I may not agree with every inference reached by
the Board, and despite the fact that some of its conclusions are clearly
unreasonable, I am not prepared to find that her decision, read as a whole, is
unreasonable or not supported by the evidence.
[24]
It is true
that in some cases, an unreasonable mistake may cause a break in the chain of
arguments and cast doubt upon the ultimate result: see, for ex., Song v.
Canada (Minister of Citizenship and
Immigration),
2008 FC 1321. Nonetheless, this is not such a case. The unreasonable findings
here are not such that they trump the other findings, or are so intimately
connected to them that they undermine their cogency. For these reasons, I am
not prepared to quash the decision and to send it back for redetermination on
that basis alone.
[25]
However,
the second issue raised by the applicant is more serious. The Board accepted
that the applicant attends a Christian church in Canada, but concluded he is not a genuine
Christian. The Board said the witness lacked credibility, and as such,
concluded that he acquired his knowledge of Christianity in Canada to bolster a manufactured
refugee claim and not because he is committed to Christianity. Here is what
the Board said on that matter:
The claimant provided to the
panel a letter dated January 27, 2008, from a pastor in Canada and an updated letter dated
June 30, 2008, confirming his attendance at church beginning on September 24,
2006. The claimant stated that he had asked the Pastor for the letter to
support his claim for refugee protection. The claimant provided to the panel a
baptismal certificate dated December 25, 2006 from his church in Canada. The claimant was able to
answer basic questions about Christianity. I accept that the claimant attends
a Christian church in Canada. It is open to the panel to
find that the claimant is a Convention refugee because he would be unable to
practice his Christianity if he returns to China. However, given the panel’s finding
that the claimant is not a credible witness, the panel finds, on a balance of
probabilities, that the claimant has acquired his knowledge of Christianity in Canada to bolster a manufactured
refugee claim, and not because he is so committed to Christianity.
[26]
This
finding is questionable as it falls far short of explaining why the Board does
not believe that the applicant is not a genuine Christian. The Board could
reasonably come to the conclusion, based on the applicant’s lack of
credibility, that he had not been a member of an underground church in China. However, in light of his intimate
knowledge of the Christian faith, his baptismal certificate and the letter
provided by his pastor attesting that he attends church on a regular basis, the
Board had to come up with an explanation as to why the applicant was not a true
Christian at least since he came to Canada. Indeed, I find this case to be on
all four with the decision reached by Justice Lagacé in Yonghai Jiang v.
Canada (Minister of Citizenship and Immigration), 2008 FC 635. In that
case, the applicant had similarly submitted a baptismal certificate as well as
a letter from a Canadian reverend attesting to the applicant’s active
membership in the same congregation. Coming to the conclusion that the Board’s
failure to address these relevant pieces of evidence constitutes a reviewable
error, Justice Lagacé wrote:
[24] It could very well be
that the Board did not believe that the Applicant was a genuine good faith
practitioner of the Christian faith and did not accept the pieces of evidence
which supported his contentions, but if this was the case, it should have
addressed the matter and said so. It does not appear from the decision that
the Board did address the evidence supporting the Applicant’s contention on
this issue.
[25] A statement in the
Board’s decision that “[a]ny knowledge that the claimant has learned about
Christianity could easily have been learned here in Canada” in insufficient and does not address
the issue (…).
[27]
That error
led to a further mistake, that of not assessing whether the applicant should be
considered as a refugee sur-place. Whatever may have been the motives
of the applicant to convert to Christianity, the Board had an obligation to
conduct a meaningful analysis to determine whether he would be at risk if
removed to China. On this point, I am in
complete agreement with my colleague Justice Blanchard in Ejtehadian v. The
Minister of Citizenship and Immigration, 2007 FC 158, where he stated (at
para. 11):
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 also: Guobao Huang
v. Canada (Minister of Citizenship and
Immigration),
2008 FC 132, at para. 8; YanLing Li v. Canada (Minister of Citizenship and
Immigration),
2008 FC 266, at paras. 24-25.
[28]
The only
thing the Board purported to say on the subject was that if the applicant
wishes to practice his religion in China,
he could do so freely in a registered church “as vast and increasing numbers of
Chinese citizens now do without fear of persecution”. Not only is this finding
inappropriate, but it is also inaccurate. It is not for the Board to dictate
how the applicant should practise his faith. As can be seen from the
documentary evidence (and, in particular, from a Response to Information
Request dated 27 April 2007), some religious groups in China choose to remain
unregistered because registration involves being monitored by the government
and government sometimes interfere in doctrinal decisions of registered religious
groups. It is perfectly legitimate for the applicant to choose not to join
these official churches, if he considers that this is the only way to remain
true to his faith. Various reports indicate that the government of China does
not allow the official Catholic Church to recognize the authority of the Vatican, and denies many central
dogmas of the Catholic faith like the resurrection and the concept of
individual salvation. It was therefore unreasonable for the Board to conclude
that the disagreements between the patriotic church and the underground
Christian church were of no consequence, and to focus on the use of the same Bible
to conclude that both churches are the same, by and large. Not only is the
evidence far from conclusive on this subject, but in matters of faith, personal
choices should be paramount.
[29]
Finally,
the Board found that unregistered Christian groups are discouraged but
tolerated. However, a careful reading of the document upon which the Board
relies to come to this conclusion (Responses to Information Requests
CHN100387.E) is far more nuanced than this bold assertion. It appears that the
enforcement of religious regulations is stricter in urban areas than in rural
zones, and that local officials have great discretion in determining whether
house churches violate regulations. Moreover, the applicant had submitted
voluminous documentation showing that religious persecution and government
crackdowns on underground churches are still very much a reality. All of this
contradictory evidence was ignored by the Board.
[30]
For all of
these reasons, I am therefore of the view that this application for judicial
review ought to be granted, and that the matter should be sent back for
redetermination. No question of general importance is certified.
ORDER
THIS COURT ORDERS that this application for judicial
review is granted. No question is certified.
"Yves
de Montigny"
Email this Content