Date: 20091015
Docket: IMM-1847-09
Citation: 2009
FC 1052
Toronto, Ontario, October 15, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
GUANG XI JIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The present
Application concerns a citizen of China who challenges a decision of the Refugee
Protection Division (RPD) which rejects his claim for protection on the basis
of his religion as a Christian in China.
[2]
In support of his
claim the Applicant testified before the RPD that he was a member of a house
church in China and practiced his Christian faith this
way to avoid discovery. On November 12, 2006, the house church was raided and
the Applicant and other followers escaped.
[3]
On the record before
the RPD there is documentary evidence demonstrating that the practice of
Christianity is under scrutiny throughout China and Christians are subject to arrests
and interrogation.
[4]
In reaching its
decision, the RPD made this critical finding:
The
panel recognizes that persecution of Christians does exist in China and the panel understands the claimant’s fear of
persecution. However, in the particular circumstances of this claimant, the
documentary evidence does not support that there is a serious possibility that
he would be persecuted because of his religious belief.
(RPD
Decision, p. 4)
[5]
As a result, the RPD
dismissed the Applicant’s claim on the basis of an implausibility finding; it
was implausible that the raid occurred as claimed by the Applicant. To support
this finding the RPD made the following statement:
Documentation reveals that the treatment
of house churches varies regionally. The documentary evidence indicates that
Prayer meetings and Bible study groups held among fiends and family in homes
are not subject to raids. House churches experience difficulty when their
membership grows and the claimant testified that the membership of the house
church he attended never exceeded eleven members.
The claimant testified the although he
had recruited a new believer to the house church, he described himself as a
member of the church, testified that he played no leadership role and that
services were never held in his home. The documentary evidence indicates that
although members have been arrested, the police have concentrated on the arrest
and punishment of church leaders and prominent Christians. In 2006 PSB
officials detained leaders of house churches for extended periods of time,
whole releasing members shortly after interrogating them on the spot. There was
also a reported decline in the number of arrests of house church Christians in China in 2006 compared with the previous year.
Of the documented arrests of house church Christians, the majority were
leaders.
(RPD Decision, pp. 3 - 4)
[6]
The standard for
making a implausibility finding is stated by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and
Immigration), [2001]
F.C.J. No. 1131, at paragraph 7:
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, implausibility 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.
[Bold
in the original]
[7]
I find that the RPD’s
implausibity finding does not meet the Valtchev standard because, on the
evidence on the record, the conduct the Applicant experienced in China could be expected on a balance of probabilities. That
is, the Applicant’s house church experience does occur at various times and
places and it is not only church leaders that are persecuted by arrest and
detention. As a result, in my opinion, the RPD was in error to find that that
“the documentary evidence does not support that there is a serious possibility
that [the Applicant] would be persecuted because of his religious belief” (RPD
Decision, pp. 4 – 5).
[8]
In addition, in the
circumstances of the Applicant’s claim, I find that the RPD’s willingness to
disregard the Applicant’s testimony on the basis of “documentary” evidence which
is said to be more reliable is unwarranted. On this point, in Guang Yuan Han
v. Canada (Minister of Citizenship and
Immigration), [2009]
F.C.J. 978, at paragraph 21, Justice Tannenbaum states as follows:
It
stated reason for rejecting the Applicant’s evidence is that it prefers the
documentary evidence as not having “a personal interest in the outcome of the
hearing” (Board decision, p. 5). While this is a purported “reason” for
rejecting the applicant’s evidence, it is one that this Court has repeatedly
found to constitute a reviewable error. As pointed out by Justice Snider in Cointinho
v. Canada (Minister of Citizenship and
Immigration), 2004 FC
1037, this is “tantamount to stating the documentary evidence should always be
preferred to that of a refugee claimant’s because the latter is interested I
the outcome of the hearing. If permitted, such reasoning would always defeat a
claimant’s evidence” (at para 7) (see also Sanchez v. Canada (Minister of Citizenship and Immigration), 2008 FC
1336 at para 54-59).
[9]
As a result, I find
the RPD’s decision is made in reviewable error.
ORDER
Accordingly,
I set aside the decision under review and refer the matter back to a
differently constituted panel for redetermination.
There
is no question to certify.
“Douglas
R. Campbell”
Email this Content