Docket: IMM-7645-10
Citation: 2011 FC 1483
Ottawa, Ontario, December 15,
2011
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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QING QING WENG
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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]
Ms.
Qing Qing Weng applies for judicial review of the December 10, 2010 decision of
the Immigration and Refugee Board’s Refugee Protection Division (RPD) which
found that the Applicant was not a Convention refugee and was not a person in
need of protection.
[2]
The
RPD found that the determinative issue was the Applicant’s credibility based on
her oral testimony and Personal Information Form (PIF) narrative concerning her
membership in a house church in China and her identity as a
genuine practicing Christian in Canada. The RPD found the
Applicant was not a credible witness.
[3]
I
have concluded the application for judicial review should be granted for the
reasons that follow.
Background
[4]
The
Applicant, Qing Qing Weng, is a citizen of the People’s Republic of China (China).
[5]
The
Applicant says she joined the house church her grandfather belonged to in China in August
2006 shortly after the death of her grandmother. The Applicant was 17 years old
at the time.
[6]
In
China, a house
church is an unregistered, underground church, usually held in individuals’
homes. They are illegal in China.
[7]
In
November 2007, the Applicant came to study in Canada on a student
visa. The visa was to expire on February 28, 2009.
[8]
Since
December 2007, the Applicant has been regularly attending the church services
of the Living Water Assembly in Toronto. According to her
testimony, she attends the church three times a week.
[9]
On
December 28, 2008, the Applicant was informed by her parents that the Public
Security Bureau (PSB) in China had raided the house church she attended
with her grandfather. On December 31, 2008, the Applicant was informed that the
PSB had come to her home and that the Applicant was wanted by them.
[10]
In
January 2009, the Applicant made a claim for refugee protection in Canada.
Decision Under Review
[11]
The
RPD found that the determinative issue was the credibility of the Applicant’s
oral testimony and her PIF narrative concerning her membership in a house
church in China and her
identity as a genuine practicing Christian in Canada.
In China
[12]
The
RPD reviewed the testimony of the Applicant regarding her introduction to
Christianity from her grandfather and her decision to join the house church her
grandfather attended. The RPD also reviewed the reaction and actions of the
Applicant’s parents regarding her choice to join the house church. The RPD
discussed the alleged raid of the Applicant’s house church while she was
attending school in Canada and the possible reason why she was identified by
the PSB as a church member even though the Applicant had been away from China for more
than a year at the time of the alleged raid.
[13]
The
RPD found that the Applicant’s testimony on these issues was neither plausible
nor credible. The RPD stated that the Applicant’s testimony regarding her
grandfather’s actions, her parents’ actions and the actions of an alleged
fellow Christian “simply did not ring true”.
[14]
The
RPD also discussed the fact no summons had been left by the PSB. The RPD found
that it was reasonable to assume that a summons would have been left by the PSB
based on testimony that they had visited her home in China
approximately eight times. The RPD drew a negative inference from the lack of a
summons.
[15]
The
RPD then reviewed the country documentary evidence regarding China’s response
to underground church activity. The RPD noted that while there was evidence of
raids and arrests of house churches and their members in China, there were
no records of raids or arrests in Fujian province where the
Applicant had lived. The RPD found that although country documentary
information regarding China generally provided mixed messages concerning the
suppression of underground church activity, the lack of any information
regarding instances of arrests and other forms of persecution in Fujian province in
any of the documents available to the panel was significant and convincing.
[16]
For
the RPD, the issue was not whether the Applicant was forced to be a silent
Christian and practice her religion secretly. Rather, it was concerned whether
the Applicant was ever a member of an underground church that was raided by the
PSB and whether she was ever a practicing Christian in China.
[17]
Based
on the documentary evidence and the findings and negative inferences noted
above, the RPD found that the Applicant’s alleged underground church would not
have been of any interest to the PSB in Fujian province.
The RPD further found that the Applicant was not a member of an underground
church in China, that no
raid took place, that she was not a practicing Christian in China, and that
she was not being pursued by the PSB. The RPD held that the Applicant’s claim
for protection was made on a fraudulent basis and that these findings raised a
serious doubt regarding the Applicant’s general credibility.
In Canada
[18]
The
RPD observed that the evidence, including a letter from a pastor in Toronto indicating
she was a member of his Pentecostal church, confirmed the Applicant’s church
membership, but did not confirm her motivation when she joined the church. The
RPD, having found that the Applicant was not a practicing Christian when she
arrived in Canada and that her claim for protection was made on a fraudulent
basis, determined that the Applicant joined the church in Toronto only to
support a planned fraudulent claim for protection and held that the claimant
was not now a genuine practicing Christian.
Relevant Legislation
[19]
The
Federal Courts Act, RSC 1985, c F-7 provides:
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18.1
(4) The Federal Court may grant relief under subsection (3) if it is
satisfied that the federal board, commission or other tribunal
…
(d)
based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
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18.1
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue
que
l’office fédéral, selon le cas:
…
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
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[20]
The
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA)
provides:
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96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country…
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96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
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Issues
[21]
The
issues arising in this case are:
1. Was the RPD’s
decision that the Applicant was and is not a genuine Christian practitioner
unreasonable?
2. Did the RPD
take all of the relevant evidence into consideration in making its decision?
Standard of Review
[22]
The
RPD’s findings of fact and conclusions on questions of mixed fact and law are
to be assessed on the standard of reasonableness: Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190. The credibility findings of the RPD are entitled
to a high degree of deference: Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315.
Analysis
[23]
After
reviewing the RPD’s reasons, the transcript of the hearings, and the submissions
of counsel for the parties, I find that the RPD’s reasons are not reasonable
and that judicial review should be granted.
1. Was the RPD’s
decision that the Applicant was and is not a genuine Christian practitioner
unreasonable?
[24]
The
Applicant argues that the RPD made several conclusions regarding the
plausibility and credibility of the Applicant’s testimony without providing any
analysis, and therefore, these conclusions were unreasonable.
[25]
This
Court has previously held that a recital of facts with the conclusion not based
on any analysis does not constitute a reasoned decision: Espino v Canada (Minister of
Citizenship & Immigration), 2006 FC 1255, 301 FTR 155 at para 11.
[26]
In
its decision, the RPD makes several negative findings of credibility. After
reviewing the RPD’s decision, some of the RPD’s conclusions are made after a
recital of the facts without analysis. For example, the RPD stated:
The claimant was asked what her
grandfather told her about his church. She responded that she was told it was
an underground church, that it was illegal and that there was a risk of arrest
and imprisonment by the PSB. The claimant was asked if she told her parents
about her intention to join an underground church. She said ‘yes’ and they did
not agree. She was asked if they sought to prevent her from joining this
church. She said they subsequently indicated she was old enough to make her own
decisions. The claimant testified that her grandfather encouraged her to join
an illegal church and that both she and her grandfather believed that there was
a risk of arrest and imprisonment. The claimant was only 17 years old at the
time. In addition, the claimant testified that, although her parents were
concerned about the risk and were opposed to her joining this church, they
subsequently agreed and made no effort to stop her. I find, on a balance of
probabilities, that the claimant’s testimony in this regard is neither
plausible nor credible.
[27]
The
RPD merely provides a summary of the facts and the testimony of the Applicant.
The RPD, without any analysis or reasons, finds that the Applicant’s testimony
in this regard was neither plausible nor credible. The RPD did not refer to any
internal inconsistency in the Applicant’s testimony; nor did the RPD state that
this evidence was inconsistent with the Applicant’s PIF narrative. I find the
RPD’s conclusions in this regard are unreasonable.
[28]
The
Applicant submits the RPD relied on speculation to make a further finding that
the Applicant’s testimony was neither plausible nor credible. The Applicant
submits the RPD invited the Applicant to speculate as to how the PSB were able
to identify the Applicant as a member when she had been away from China for more
than a year and then held this against her.
[29]
The
Respondent submits that the Applicant agreed at the hearing with the RPD’s
initial conclusion on this matter that it was probably another church member
who turned her in. The Respondent submits that it was reasonable for the RPD to
find that another member of the alleged church had probably informed on her.
[30]
This
Court has long held that findings of fact based on speculation are inherently
unreasonable: Ukleina v Canada (Minister of
Citizenship & Immigration), 2009 FC 1292 at para 8. As Justice
Harrington warned, “a question along the lines of why do you think someone else
knew something is fraught with danger. It invites speculation”: ibid at
para 12.
[31]
In
this case, the RPD not only invited speculation by asking the Applicant how the
PSB were able to identify her as a member when she had been away from China for
more than a year, but also suggested the very answer that the RPD later found
was neither plausible nor credible. This is evidenced from the following
exchange found in the transcript:
Member: Why would the police have identified you
as a member?
Claimant: I’ve always been one.
Member: Why would the police have identified you
as a member of this underground church when you hadn’t been there for more than
a year?
Claimant: I don’t understand – I don’t know. I
don’t know.
Member: It’s difficult to understand how they
would do this. It’s difficult to believe that a member of this congregation …
would identify a young person like yourself who hadn’t been there for more than
a year. Would you agree?
Claimant: But I maintained contact all this time
with my grandfather. And I still – I still kept asking him – I still asked my
grandfather about the things going on in the underground church.
Member: I don’t understand. How would the police
know you had been a member, if you know? How do you think they would know
that you had been a member of this church?
Claimant: I think probably a member confessed to
the police.
Member: I have difficulty understanding that,
that anyone would identify a young person like you, you would have been 17
years old, when you hadn’t been there for a year and there was no necessity to
do this.
Claimant: I don’t know.
[Emphasis added]
Initially, the Applicant, when asked how
the PSB had identified her, stated she did not know. It was not until after the
RPD suggested the possibility that another church member may have informed on
her that the Applicant replied that this was what probably happened. The RPD
concluded that the Applicant’s testimony regarding the actions of an alleged
fellow Christian “simply did not ring true”. The testimony was based on
speculation which was both invited and suggested by the RPD.
[32]
It
was unreasonable for the RPD to rely on the Applicant’s speculation to conclude
that the Applicant’s testimony was neither plausible nor credible. These are
exactly the unreasonable findings Justice Harrington warned against in Ukleina.
[33]
The
RPD’s negative findings of credibility led the RPD to determine that the
Applicant’s claim for protection was made on a fraudulent basis. The RPD
concluded this was determinative of whether the Applicant was a genuine
practicing Christian in Canada.
[34]
The
RPD found that the Applicant was not a genuine practicing Christian in Canada despite the
fact that the Applicant had a letter from a pastor in Toronto indicating
she was a member of his Pentecostal church, as well as her own testimony and
supporting documentary evidence. The RPD’s conclusion that the Applicant was
not a practicing Christian was based entirely on its previous findings, which I
have concluded were unreasonable. I conclude the RPD’s decision that the
Applicant is not now in Canada a practicing Christian is also unreasonable.
2. Did the RPD take
relevant evidence into consideration in making its decision?
[35]
Section
18.1(4)(d) of the Federal Courts Act states that this Court may grant
relief if it is satisfied that a federal board has based its decision on an
erroneous finding of fact made without regard for the material before it. While
it is well established the RPD is not required to mention every piece of
evidence in its reasons, this Court has held:
The Court may infer that the
administrative agency under review made the erroneous finding of fact “without
regard to the evidence” from the agency’s failure to mention in its reasons
some evidence before it that was relevant to the finding, and pointed to a
different conclusion from that reached by the agency: Cepeda-Gutierrez v
Canada (Minister of Citizenship & Immigration) (1998), 157 FTR 35 at
para 15.
[36]
Here
the RPD erred by not taking into consideration relevant evidence of arrests and
other forms of persecution of house church members in the Applicant’s home
province of Fujian. The RPD, after reviewing the country documentary evidence,
stated:
Although country documentary information
regarding China generally provides mixed messages concerning the suppression of
underground church activity, the lack of any information regarding instances
of arrests and other forms of persecution for Fujian province in any of the documents
available to the panel is significant and convincing. This does not mean that there
is no possibility that an underground church community might be harassed by the
PSB. However, there is information regarding suppression in a number of
small provinces but none regarding this large and important province.
[Emphasis added]
[37]
A
review of the country documentary evidence shows that the RPD erred in making
its conclusion. Several articles found in the tribunal record discuss police
crackdowns on underground Catholics and other Christians in Fujian province.
The record before the RPD also includes two letters from Bob Fu, President of
China Aid Association, a Non-governmental Organization that monitors human
rights and the rule of law issues in China. In the letters, Mr. Fu
states that religious repression continues to occur in every province in China including Fujian province.
[38]
The
RPD’s assertion that there was no information regarding suppression or
persecution in Fujian is in error. The RPD relied on this erroneous
finding in its reasons finding it significant and convincing. I conclude the
RPD’s determination is based on an erroneous finding of fact made without
regard to the evidence before it and is therefore unreasonable.
Conclusion
[39]
The
application for judicial review is granted and the matter is remitted back for
reconsideration by a differently constituted panel.
[40]
The
parties have not proposed and I do not certify any question of general
importance.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The
application for judicial review is granted and the matter is remitted back for
reconsideration by a differently constituted panel.
2. No question
of general importance is certified.
“Leonard
S. Mandamin”
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