Date: 20090609
Docket: IMM-5037-08
Citation: 2009 FC 605
Ottawa, Ontario, June 9, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
DE
HUA QIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated October 21, 2008, where the Board determined that the
Applicant was not a Convention refugee or a person in need of protection.
Issues
[2]
This
application gives rise to the following issues:
1. Did
the Board err in finding that the Applicant is not a genuine practising
Christian?
2. Did
the Board err in finding that the Applicant would be able to practice
Christianity in China, therefore finding that the Applicant is not at
risk of persecution in China on the basis of his religion?
[3]
The
application for judicial review shall be allowed for the following reasons.
Factual Background
[4]
The
Applicant is an eight year old citizen of the People’s Republic of China. He came to Canada on June 19,
2007 with his mother to seek refugee protection. The Applicant relies on his
mother’s Personal Information Form (PIF) narrative.
[5]
The
Applicant’s father deserted his mother and her children in July 2006. Soon
after, she became stressed and depressed and in December 2006, a friend spread
the gospel to her. She was told her friend’s church was illegal but she decided
to attend a service in January 2007 to see if it would help her. She continued
to attend regularly until May 6, 2007, when the Public Security Bureau (PSB)
raided the church meeting. She escaped and went into hiding. She later learned
that the PSB was looking for her and she then decided to leave China.
[6]
In
an amendment to the PIF, the Applicant indicates that he has been attending
church in Canada and he fears repercussions for having done so if he returns to
China. He also
fears that he would not be able to practice Christianity in China.
Impugned Decision
[7]
The
Board found that the Applicant was neither a Convention refugee nor a person in
need of protection. According to the Board, the Applicant’s identity was in
doubt because of the status of his mother’s PIF and documentation. The Minister
filed evidence indicating that the Applicant’s mother made two separate refugee
claims using different names. In addition, there was evidence that the woman,
now calling herself Zha Ding Lin and mother of the Applicant, entered Canada on
November 14, 1998 using a different name than the two already noted by the
Board. The Minister mentioned that it had not been possible to verify the
identity of either the Applicant or his alleged mother. The Minister also
indicated that the Applicant’s mother’s PIF is null and void because her claim
has been terminated by Canadian immigration officials.
[8]
During
the hearing, the Applicant was asked several questions by his counsel and by the
Board regarding his identity. He was able to describe his family circumstances
in China and he
indicated that his grandmother lived with him and his mother in China and that his
sister lived with their aunt because her school was too far from their family
home. The Applicant knew his birthday and had a distant memory of his father.
He was able to describe the arrival of the Public Security Bureau at their home
and being reunited with his mother a few days before they left China. He told the
Board that he would miss his grandmother and friends but he looked forward to
travelling. According to the Board, the Applicant testified in a
straightforward manner and was unusually poised and confident for an eight year
old child.
[9]
The
Board stated that the Applicant’s birth certificate disclosed as evidence of
identity was likely fraudulent. The Applicant also disclosed copies of a
Children’s Preventative Inoculation Certificate, a Student Achievement Booklet
and his mother’s hukou, all allegedly issued in China. It was
difficult for the Board to make a finding regarding the Applicant’s identity because
of the fraudulent nature of the birth certificate and the fact that only copies
of the school document and immunization report were disclosed. However, the
Applicant is registered in his mother’s hukou and there is no evidence
that he was born in Canada. The Applicant’s Mandarin oral testimony was
also straightforward, un-delayed and without any inconsistency. Although having
doubts regarding the Applicant’s identity, the Board found that, on a balance
of probabilities, he was a citizen of China.
[10]
The
Applicant stated that he feared persecution because of his mother’s situation
in China and because he attended a church in Canada and he
feared that he would not be able to practice Christianity in China. The
Applicant testified that he did not attend church in China and his first
experience with church attendance took place after he arrived in Canada with his
mother. A letter from the Applicant’s pastor confirms that he began attending
the Toronto
Chinese Evangelical
Church on July 1,
2007. The Applicant testified that he attended a children’s group where he
learned to pray and heard stories, while his mother attended the regular church
service. He was asked his religion and responded: “Not quite sure”. At the end
of the examination, his Designated Representative indicated that she had asked
him the same question during a break in the hearing and she noted that the
Applicant was confused with the question. However, the Board found that, given
his young age, confusion regarding his religion is neither surprising nor
unreasonable.
[11]
The
Applicant was able to answer questions regarding Christianity and said Jesus
was the son of God and that his parents were Mary and Joseph. He was able to
tell a story about Jesus, to sing ‘Jesus loves me’ and to recite a personal
prayer. He was brought to a weekly Sunday school class by his mother and he has
acquired some rudimentary information about Christianity. The Board noted that
his knowledge of Christianity reflects both his minimal experience and his
young age. The pastor of his church indicated in his letter that the Applicant
could not be baptized because he was too young to be asked questions regarding
his commitment to Christianity that must be asked and answered before baptism
is possible. The Board found that, on a balance of probabilities, the Applicant
was not a genuine practicing Christian.
[12]
The
Minister indicated that even if the Applicant were able to rely on his mother’s
PIF narrative, there is no information pertaining to the persecution of the
Applicant on religious grounds and the Board agreed with this assertion. There
is no evidence that the PSB is pursuing him.
[13]
Country
documentation concerning children of underground church members indicates that
there may be consequences, such as the denial of access to schooling. However, the
Applicant indicated that his sister was in school in China. The
documentary evidence cited mentions that such consequences may exist in
some areas of the country, but Fujian Province, the Applicant’s home
province, has been described as one of the most liberal in China regarding
Christianity. There is evidence of some arrests of children who attended a
service in Sichuan and Xinjiang Provinces and their
release after interrogation but there is no evidence in this regard for Fujian Province. In
addition, crackdowns have not been cited in Fujian Province.
[14]
The
Board found that, after considering the country documentation as well as the
fact that the Applicant had never attended church in China, he is not
at risk of persecution on religious grounds. Regarding his alleged fear of repercussions
in China because he
attended a church in Canada, the Board found no evidence that the mere
attendance of a church in Canada would be a basis for PBS interest in the
Applicant.
[15]
With
regard to the Applicant’s fear that he will not be able to continue to practice
Christianity in China, the Board found that the Applicant would not be
constrained in attending a registered Christian church in China as tens of
millions of other Chinese citizens do. The Applicant’s pastor noted in his
letter that he was too young to be baptized and therefore to become a full
member of the church and a born again Christian. Similarly, the Board found
that the Applicant would be too young to become a recognized member of a
registered church in China but there is no evidence that he could not
attend a church and practice Christianity in China. It was
argued that there has been government interference with doctrinal decisions in
registered churches but this assertion is not supported by any concrete
evidence. While there are doctrinal debates in China, these exchanges are not
unknown in churches throughout the world, including Canada. The Board found,
on a balance of probabilities, that there is no evidentiary basis that the
Applicant could not practice Christianity in a registered church in China. The Board
noted that while it is regrettable that an eight year old boy has been placed
in this situation, it was necessary to make a finding regarding his claim.
Standard of Review
[16]
The
determination of whether the Applicant is genuine practising Christian is a
question of fact reviewable pursuant to the standard of reasonableness and
deference applies (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para. 53).
[17]
The
standard of review applicable to decisions of the Board for matters within its
expertise was patent unreasonableness (Sivasamboo v. Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 741 at para. 25). The
determination of whether the Applicant would be able to practice Christianity
in China and whether
he is at risk of persecution in China on the basis of his
religion lies within the expertise of the Board. Following Dunsmuir, the
appropriate standard of review is that of reasonableness (Dunsmuir,
above at para. 47).
1. Did the Board
err in finding that the Applicant is not a genuine practising Christian?
[18]
The
Applicant submits that the Board’s analysis was incoherent and internally
inconsistent, and that its conclusion was both illogical and unreasonable. The
Board’s decision indicates that when the Applicant was originally asked his
religion during his hearing before the Board, he stated that he was “not quite
sure”. In its decision, the Board rejected the Applicant’s confusion in respect
of this question, while at the same time explicitly accepting that, given his
young age, his confusion regarding his religion and denomination were “neither
surprising nor unreasonable”. The Applicant submits that the Board’s analysis in
this regard was inconsistent and that its conclusion did not follow logically
from its preceding analysis. The Board gave no indication as to why it rejected
the Applicant’s indication of confusion when, according to its own reasoning,
such confusion was both predictable and reasonable.
[19]
This
lack of coherence continued when the Board evaluated the Applicant’s testimony
regarding his knowledge of Christianity. The Board said that the Applicant’s knowledge
of Christianity “reflects both his minimal experience and his young age” but it
is unclear why, after demonstrating his knowledge of Christianity by correctly
answering questions about this religion, singing ‘Jesus loves me’ and reciting
a personal prayer, the Board concluded that the Applicant was not a genuine
Christian. The Board gave no indication as to what the Applicant did or failed
to do to convince the Board on this issue. To the contrary, the Board’s
decision indicates that the Applicant answered the questions put to him
correctly, without hesitation and in a straightforward manner.
[20]
The
Board recognized that confusion at a young age is neither surprising nor
unreasonable and the Respondent submits that it was not an error to reject the
Applicant’s alleged confusion. Throughout the hearing, the Applicant’s
responses were straightforward and made without delay but it was not
unreasonable to draw negative inference from the fact that the Applicant was
able to testify without any problems, yet when questioned by his Designated
Representative during a break, in the absence of the Board member, the
Applicant stated he was confused.
[21]
According
to the Respondent, the position of the Applicant amounts to a disagreement with
the manner in which the Board weighed the evidence and assessed credibility. As
such, it does not afford a legal basis for this Court to intervene. The
Applicant has failed to demonstrate that the Board refused to consider any
evidence, or that it ignored evidence, or that it made an erroneous finding
with respect to any evidence (Brar v. Canada (Minister of Employment and
Immigration), [1986] F.C.J. No. 346 (C.A.) (QL); Ye v. Canada (Minister
of Employment and Immigration), [1994] F.C.J. No. 1233 (C.A.) (QL); Bains
v. Canada (Minister of Employment and Immigration), [1999] F.C.J. No. 317; Piber
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 769, 107
A.C.W.S. (3d) 114; Hassan v. Canada (Minister of Employment and Immigration),
(1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635 (F.C.A.)).
[22]
I
find that the Board contradicted itself in its reasons and erred in determining
that the Applicant was not a genuine practising Christian (Chen v. Canada (Minister
of Citizenship and Immigration) (1997), 69 A.C.W.S. (3d) 147, [1997] F.C.J.
No. 118 (QL)). The Board accommodated the Applicant’s particular circumstances
as he is an eight year old child and even commented on the Applicant’s poise
and calm during the hearing. However, the Board decided that the Applicant was
not a genuine practising Christian.
[23]
This
conclusion is contrary to the totality of the evidence and the Applicant’s oral
testimony at the hearing. The Applicant clearly explained that he attends the children’s
group at the church and he showed that he has basic knowledge of the Christian
faith. The Board rightly recognized that his knowledge reflects his minimal
experience at his young age but then wrongly concluded that he is not a genuine
practising Christian.
2. Did the Board err
in finding that the Applicant would be able to practice Christianity in China,
therefore finding that the Applicant is not at risk of persecution in China on
the basis of his religion?
[24]
In
Li v. Canada (Minister of Citizenship and Immigration), 2001 FCT
1238, 213 F.T.R. 8, the Court noted the importance of accounting for the
Applicant’s age when determining the merits of her claim. In the case at bar,
the Board did consider the Applicant’s young age and accommodated this
particularity during the hearing. However, I find that the Board did not
sufficiently consider the Applicant’s knowledge and experience in the testimony
he provided. According to the Guidelines issued by the Chairperson pursuant to
subsection 65(3) of the Immigration Act, September 30, 1996 (Child Guidelines),
“In general, children are not able to present evidence with the same degree of
precision as adults with respect to context, timing, importance and details.”
Furthermore, when assessing the evidence presented in support of the refugee
claim of a child, the Board should be aware that “a child claimant may not be
able to express a subjective fear of persecution in the same manner as an adult
claimant.
[25]
The
fact that the Applicant never attended church in China is
irrelevant to his claim. In Salibian v. Canada (Minister of
Employment and Immigration), [1990] 3 F.C. 250 at para. 17, the Court
stated that when seeking refugee status:
1. the applicant does not show that he
had himself been persecuted in the past or would himself be persecuted in the
future;
2. the applicant can show that the fear
he had resulted not from reprehensible acts committed or likely to be committed
directly against him but from reprehensible acts committed or likely to be
committed against members of a group to which he belonged;
…
4. the fear felt is that of a reasonable
possibility that the applicant will be persecuted if he returns to his country
of origin (see Seifu v. Immigration Appeal Board, A-277-82, Pratte J.A.,
judgment dated 12/1/83, F.C.A., not reported, cited in Adjei v. Canada
(Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at page
683; Darwich v. Minister of Manpower and Immigration, [1979] 1 F.C. 365
(C.A.); Rajudeen v. Minister of Employment and Immigration (1984), 55
N.R. 129 (C.A.), at pages 133 and 134).
[26]
The
Board did not sufficiently consider the Applicant’s claim that he feared
persecution because of his mother’s situation in China, because he attended a
church in Canada and because
he feared he would not be able to practice Christianity in China.
[27]
The
Board indicated in its decision "… It has been argued that there has been
government interference in regard to doctrinal decisions in registered churches;
however, this assertion is not supported by any solid evidence. There are
clearly doctrinal debates in China but such exchanges, even in regard to basic
aspects of Christian beliefs, are not unknown in churches throughout the world,
including Canada." (page
4 of the decision). There was documentary contradictory evidence to that
effect (tribunal's record pages 276, 291, 306 and page 46 of the applicant's
record). This documentary evidence was either ignored or not considered by the
Board.
[28]
No
questions of general importance were proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be granted. The decision is set aside and remitted for redetermination
by a differently constituted panel. No question is certified.
“Michel
Beaudry”
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