Date: 20110526
Docket: IMM-5413-10
Citation: 2011 FC 614
Ottawa, Ontario, May 26, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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WU XIN WANG
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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 JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 16,
2010, wherein the Applicant was determined to be neither a Convention refugee
nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. Based on several
inconsistencies between the Applicant’s oral testimony and his Personal
Information Form (PIF), the Board did not find the Applicant’s allegations that
he attended an underground Christian church in China and was
wanted by the Public Security Bureau (PSB) to be credible.
[2]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Wu Xin Wang, is a citizen of China. He came to
Canada in April
2007 on a temporary work permit. On January 7, 2008 he made a claim for
refugee protection based on the persecution he would allegedly suffer in China due to his
religious beliefs.
[4]
The
Applicant recounted on his PIF that he suffered from chronic lower back pain.
A friend of his introduced him to Jesus Christ and began to pray for him. The
Applicant credits this with curing his back pain. This friend began to teach
the Applicant how to pray and told him about the bible. As a result of his
growing interest and belief, the Applicant began attending an underground
Christian church in November 2004. The Applicant claims that he read the bible
and prayed everyday thereafter. He sometimes acted as a look-out during church
services.
[5]
Three
days after arriving in Canada in April 2007, the Applicant’s employer
referred him to a church which he began attending regularly. The Applicant
alleges that he received a phone call from his wife on January 3, 2008
informing him that officials from the PSB had visited their home, seeking his
cooperation in an investigation of illegal church activities. He was ordered
to return home as soon as possible. Shortly thereafter, the Applicant’s wife
learned that the underground church attended by the Applicant had been raided
on December 25, 2007 and some members were arrested. The members were
sentenced to time in prison. At this point the Applicant began to fear for his
life should he return to China and so he filed a claim for refugee
protection.
B. Impugned
Decision
[6]
In
assessing the Applicant’s claim, the Board focused on the credibility of the
Applicant’s allegations of being a member of an underground church in China and his
allegations that he is a genuine practicing Christian in Canada. The
Applicant was unable to satisfy the Board of the veracity of either set of
allegations. The Board found several inconsistencies between the evidence
provided by the Applicant in his PIF and Port of Entry Record of Examination
(POE) and his oral testimony at the hearing. The Applicant gave inconsistent
evidence regarding inter alia:
• The
reason the PSB officials first visited his home – on his PIF the Applicant
claimed they wanted his assistance with an investigation, at the hearing he
explained that they wanted to arrest him;
• The
number of times the PSB officials visited his home – on his PIF he listed seven
times in total, while at the hearing he testified that it was four times;
• When
he recruited his friend to join the underground church – on his PIF he
indicated that it was in January 2006, while at the hearing he claimed it was
in June 2005;
• Who
he recruited to join the underground church – at the hearing he testified that
he attempted, albeit unsuccessfully, to attract his wife and son and several
co-workers to the church, on his PIF he only listed the one successful
conversion of his friend.
[7]
The
Board did not find the Applicant to be a credible and trustworthy witness. As
a result the Board required evidence to support his claim. However, the
Applicant did not produce any summons or an arrest warrant, or an affidavit
from his wife. The Board came to the conclusion that the Applicant was not
wanted by the PSB in China.
[8]
The
Board examined the Applicant in an attempt to evaluate the genuineness of his
Christian faith both in China and in Canada. The Applicant was
able to answer numerous questions, but was unable to describe to the Board what
Jesus looked like as a person or describe certain core beliefs of the Pentecostal Church. The
Applicant did not at first instance explain that his church had an escape plan
as a precautionary measure and the Board found the Applicant’s lack of knowledge
as to why his church was illegal in China to be suspicious given
the Applicant’s background and alleged involvement with the Church. The Board
found that the Applicant’s limited knowledge undermined the genuineness of his
Christian faith and practice.
[9]
Lastly,
the Board considered the Applicant’s delay in claiming in Canada. The Board
was unconvinced by the Applicant’s explanation that he did not have any fear
when he arrived in Canada because his church had never been raided. The
Board found that the delay to claim undermined the well-foundedness of his fear
and his claim that he was a practicing Christian in China.
[10]
Based
on the totality of the evidence, the Board came to the conclusion that the
Applicant’s professed religious beliefs and practices were merely an attempt to
bolster a refugee claim based on religion.
II. Issue
[11]
The
Applicant questions the reasonableness of several of the Board’s credibility
findings. As such, the main issue to determine on this application is:
(a) Did
the Board rely on overly microscopic determinations, or misapprehend the
evidence in concluding that the Applicant was not a credible witness?
III. Standard of Review
[12]
It
is well-established that decisions of the Board as to credibility are factual
in nature and are therefore owed a significant amount of deference. The
appropriate standard of review is a standard of reasonableness (Lawal v
Canada (Minister of Citizenship and Immigration), 2010 FC 558 at para 11;
Aguebor v Canada (Minister of Employment and Immigration) (1993), 160 NR
315, 42 ACWS (3d) 886 (FCA) at para 4).
[13]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument
and Analysis
A. Did
the Board Make Reasonable Credibility Determinations?
[14]
The
Applicant submits that the Board erred by being either overly microscopic or
disregarding evidence in drawing negative credibility inferences from the
Applicant’s testimony regarding:
• the
reason the PSB first came to look for the Applicant;
• his
failure to produce corroborating documentary evidence, such as a summons;
• his
answer to the question, what was Jesus like as a person;
• the
people he introduced to the Church and neglecting to mention his wife and son
and coworkers on his PIF;
• his
failure to mention that his underground church had an escape plan;
• the
reason his church was not registered;
• his
failure to claim refugee protection on his arrival in Canada;
• the
core beliefs of the Pentecostal faith.
[15]
The
Applicant made submissions on each of these points alleging variously that
these findings were either overly microscopic, unreasonable, or not based on
the evidence. For example, the Applicant submits that impugning the
Applicant’s credibility on the basis that on his PIF he said that the PSB first
came to seek his assistance with an investigation and at the hearing he said
the PSB first came to arrest him, is overly microscopic. The Applicant also
argues that the Board mischaracterized an escape plan as being precautionary in
nature and was therefore unreasonable in drawing an adverse credibility finding
because the Applicant did not talk about it when describing the precautions
taken at his church. In the Applicant’s view, an escape plan is not
precautionary in that it does not prevent a raid, rather it is a plan that is
put into action only after a raid begins.
[16]
The
Respondent submits that the arguments submitted by the Applicant amount to
nothing more than suggesting that alternative inferences should have been made
by the Board. However, in order to demonstrate that the Board’s inferences are
unreasonable, the Applicant would have to show that the inferences are not
supportable in any way by the evidence (Sinan v Canada (Minister of
Citizenship and Immigration), 2004 FC 87, 128 ACWS (3d) 1173 at para
11). Merely arguing that alternative inferences are possible or preferable in
the eyes of the Applicant is not sufficient to justify judicial review.
[17]
I
have reviewed the transcript. I am unable to say that any of the findings
criticized by the Applicant are outside the range of acceptable outcomes
supported by a review on the reasonableness standard. The reasonableness
standard is deferential. The Board member was in the best position to assess
the credibility of the Applicant, and I am unable to agree with the Applicant
that any of the Board’s findings were overly microscopic or unreasonable.
Furthermore, as argued by the Respondent, none of the credibility findings
alone were determinative of the claim. The Applicant has not addressed all of
the Board’s discrepancy findings. The Applicant has not explained or disagreed
with the Board’s finding that he provided inconsistent testimony regarding when
he introduced his friend to the underground church, or the number of times the
PSB visited his home. The Board based its conclusion on the totality of the
evidence, and came to a negative determination of the Applicant’s credibility
based on the sum of multiple inconsistencies. Even if I were to agree with the
Applicant regarding his testimony with respect to the escape plan, this Court
has found that some microscopic findings by the tribunal do not invalidate a
decision that is, on the whole, reasonable (He v Canada (Minister of
Citizenship and Immigration), 2010 FC 525 at para 12).
[18]
Certainly
it is a difficult task to assess the genuineness of a claimant’s religious
beliefs. The Board acknowledged as much in its reasons. This challenging job
has been delegated to the Board as the finder-of-fact, and this Court cannot,
on judicial review, decide to, in effect, reweigh the results of what can begin
to look like a round of bible-trivia. The Board recognized that the Applicant
had some knowledge of the Christian faith. The Board considered documents
attesting to the Applicants’ attendance and participation in church
activities. However, the Board noted that these documents could not and did
not attest to the Applicant’s motivation in so doing and could not substitute
for the Board’s own assessment (Cao v Canada (Minister of Citizenship and
Immigration), 2008 FC 1174, 172 ACWS (3d) 464).
[19]
I
do agree with the Applicant that the Board’s question regarding what Jesus was
like as a human is somewhat awkward, in that it is hard to know what answer the
Board sought, and what answer would have been satisfactory. This line of
questioning began at pg 757 of the CTR:
Member: So tell me about Jesus as a
person. What was he like?
Claimant: Jesus is son of God.
Member: I am not asking who he was or
what he did. I am asking what is he like as a person.
Claimant: Jesus was conceived through
the holy ghost and was born in this world.
Member: Again I am not asking who he was
or what he did. I am asking who he is as a person. Because anybody could
memorize a creed and recite the creed. I want to know what you believe and
what you know of Jesus as a person.
Claimant: In my heart he is my saviour.
Member: That is not… again, tell me what
Jesus is as a person and this is the last time I am going to ask you.
Claimant: I am sorry I really do not
know how to answer.
[20]
Nevertheless,
if anything, this line of questioning illustrates the difficulty of the
assessment the Board is required to make. It does not represent an error for
which the Board’s decision should be over-turned. Absent a showing of disregard
for the evidence, or a misapprehension of the facts, I am unwilling to
disturb the Board’s conclusion in this regard – again deference is warranted. The
Board did not make the determination of the genuineness of the Applicant’s
faith based solely on the Applicant’s inability to attribute some human
characteristics to Jesus. Answers to other questions regarding the Pentecostal
faith were vague and lacking in detail. As the Respondent submits, testimony
lacking detail that would reasonably be expected of a person in the claimant’s
position is a basis for rejecting claims as non-credible even if the Applicant
was able to answer some other questions correctly, and with great detail.
[21]
Given
that the Board provided transparent, intelligible reasons, justified by the
evidence, and the outcome is based on the evidence and falls within the range
of possible defensible outcomes, this application for judicial review is
dismissed.
V. Conclusion
[22]
No
question to be certified was proposed and none arises.
[23]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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