Date: 20080107
Docket: IMM-5468-06
Citation: 2007 FC 1339
Ottawa, Ontario, January 7, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
PIN XIAN XIN
(a.k.a.
PINXIAN XIN)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The applicant, Pin Xian Xin, applies for a judicial review
of the decision by the Refugee Protection Division of the Immigration and
Refugee Board [“the Board”] issued on September 18, 2006, wherein it
was determined that the applicant was neither a Convention
Refugee nor a person in need of protection under sections 96 and 97(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [“IRPA”].
[2]
The Board determined that the applicant was not credible
and that she failed to establish that she would be persecuted on any convention
ground or that there was a serious possibility that she would suffer serious
harm if she were returned to China.
[3]
This application for judicial review is made pursuant to
subsection 72(1) of IRPA. The applicant says that she fears she will be
persecuted for being a member of an underground Christian church and for having
a second child contrary to China’s one child policy. She sought leave and judicial review on two main
grounds:
a. that the Board erred when it decided that the applicant was not credible
and determining that she was not, nor is now, a Christian; and
b. that the Board erred when it decided that the applicant did not face a
serious possibility that she would suffer harm if she were returned to China because she had a second child contrary to China’s one child policy.
Nature of the Order
Sought by the Applicant
[4]
The applicant seeks the following:
a. An order declaring the applicant to be a Convention Refugee;
b. In the alternative, an order remitting the matter to the Board with
directions;
c. In the further alternative, an order remitting the matter to a different
panel of the Board for a hearing de novo.
[5]
In Marsh v. Canada (Royal Canadian Mounted Police),
[2006] F.C.J. No. 1854, Justice Dawson stated at paras 45-46:
I accept that pursuant
to this grant of jurisdiction there are circumstances in which the Court will
issue directions on an application for judicial review that are so specific
that they will compel the federal board, tribunal or commission to reach a
specific conclusion. See, for example, Turanskaya v. Canada (Minister of
Citizenship and Immigration) (1997), 145 D.L.R. (4th) 259 (F.C.A.). In Ali v. Canada (Minister of
Employment and Immigration), [1994] 3 F.C. 73 this Court considered when such
specific direction should be given. At paragraph 18, the Court considered the
relevant factors to be:
- Is there evidence on
record that is so clearly conclusive that there is only one possible
conclusion?
- Is the sole issue to
be decided a pure question of law which will be dispositive of the case?
- Is the
legal issue based on uncontroverted evidence and accepted facts?
- Is there a factual
issue which involves conflicting evidence which is central to the claim?
In my view, for the
following reasons, the present case is not one that fits within the above
criteria for giving specific directions.
[6]
In the case at hand, a central issue is whether the Board
was patently unreasonable in finding the applicant not credible. As such,
facts are at issue and, therefore, this case is not one that meets the criteria
for giving specific directions, let alone issuing a declaration.
[7]
With respect to the request for a hearing de novo,
for reasons set out as follows, I find that the Board erred in its
determination that the applicant was not credible. The decision will be
quashed and the matter referred to a differently constituted Refugee Protection
Division Board for re-determination.
Standard of Review
[8]
The Board has expertise in determining questions of fact,
including evaluating the credibility of refugee claimants. Such determinations
are at the core of the Board’s legislative jurisdiction. Questions of
credibility rest on the fact-finding process of the Board. Applying these
factors to the pragmatic and functional approach determines that the
appropriate standard of review for decisions by the Board on credibility is
patent unreasonableness, (Aguebor v. Canada Minister of Employment and Immigration)
(1993), 160 N.R. 315 (F.C.A.)).
[9]
For reason given below, I need not determine the standard
of review for decisions by the Board on risk of return.
Background
[10]
The applicant is a 32-year-old citizen of the People’s
Republic of China. She was born in Banhu Town, Guangzhou, Guangdong Province. She has eight years of formal education and required the
services of a Cantonese translator throughout including instructing counsel,
completing the Personal Information Form [“PIF”] and testifying at the Board
hearing.
[11]
She alleges she has a fear of persecution at the hands of
the Chinese authorities due to her being a member of an unregistered Protestant
Church known as an underground church or house church and due to her violation
of China’s one-child policy.
[12]
In her PIF narrative dated November 8, 2005, the applicant
stated that she was introduced to the underground church in March 2000 by Shu
Ying Yang, her female cousin, who cautioned her against talking to other people
about going to the underground church because of the unfavourable view held by
Chinese authorities of the underground church relative to the State church.
The applicant stated that she enjoyed the church experience and regularly
attended the underground church gatherings held at private homes of different
members. In October 2001, she married Shu Pei Su who was not a Christian.
After her marriage, the applicant gave birth to a son and she was required to
wear an IUD (a birth control device) and attend regular IUD check-ups.
[13]
The applicant’s husband did not attend the underground
church and worried about her safety as a result of her participation. The
applicant was baptized in April 2001. In December 2002, worried that her
participation in the underground church would be discovered, the applicant’s
husband arranged for the applicant to obtain a visitor visa to another country
with the assistance of a snakehead. The several attempts to obtain a visitor’s
visa, made in 2002, 2003 and 2004, were unsuccessful.
[14]
The applicant became pregnant again in August 2005.
Contrary to China’s one-child policy, the
applicant and her husband decided to keep the baby. Fearing discovery by the
Chinese health authorities of the impending birth of their second child, the
applicant’s husband sent her to another region so as to avoid scheduled IUD
check-ups. Chinese family planning officers were making inquires about her,
advising her husband that she was to report for an IUD check-up. A male cousin
successfully arranged for a snakehead to take her out of the country. She made
a claim for protection soon after her arrival to Canada. The applicant gave birth to her second child, a girl, on February 17,
2006.
[15]
The applicant stated she feared she would be forced to
undergo an abortion and sterilization if returned to China. She also stated she would not be able to practice her religion openly
as she can in Canada.
[16]
At the Board hearing on June 30, 2006, the applicant
testified through a Cantonese interpreter. The applicant was questioned by the
Refugee Protection Officer, the Board member, and the applicant’s own counsel.
[17]
The applicant was questioned, among other subjects, about
her knowledge of Christian beliefs, about her knowledge of the Chinese
state-approved Patriotic
Church, about the disclosure of her participation in the underground church to
her husband, about a supportive letter provided by a Canadian Christian church
pastor, and about the possible consequences of having a second child in China.
The Board’s Reasons for
Decision with Respect to the Applicant’s Professed Christianity
[18]
The Board stated:
An issue to
be resolved is whether the claimant is a genuine Christian whose profile places
her at risk of return to China. The panel finds on the totality of the evidence, that
the claimant failed to establish credible and trustworthy evidence that she is
or ever was a genuine Christian, and concludes therefore that she is of no
interest to the authorities should she return to China.
Applicant’s Knowledge of
Christian Beliefs
[19]
The Board stated that the applicant said that she was
baptised in April 2001, that she had a Bible in China, that she read most of the Old and New Testament and that she joined the
Logos Baptist Church in Markham in 2005. The Board stated that the applicant knew the
correct number of disciples of Jesus, twelve, but could only name eight, that
she did not know what a parable was but that she knew and told correctly the
story of the shepherd and the lost sheep. The Board concluded the applicant’s
knowledge of the Bible and the Christian religion was peripheral and not
consistent with the applicant’s alleged six years as a Christian in China and in Canada. However, as the following excerpt demonstrates, the certified transcript
of the Board hearing does not support the Board’s conclusion:
Member: And what is your favourite parabola?
Claimant: I beg your pardon?
Member: What is your favourite parabola?
BY COUNSEL TO CLAIMANT:
Q. Do you understand what a parabola is?
Member: There are parabolas in the Bible. Have you read about
them?
Claimant: Yes.
BY COUNSEL TO CLAIMANT:
Q. Tell us one.
A. He told me to obey the Commandments.
Q. I’m sorry.
A. To obey the commandments.
Member: Well, what parabola is that? Can you
tell me where it’s located? I don’t know that you understand the question.
BY COUNSEL TO CLAIMANT
Q. Do you understand?
A. I’m so confused. May I write it
down in Chinese? I have not learned that.
Member: Okay. The shepherd and the lost sheep
would be a parabola. Do you know what the message is from that story? Do you
know the story, first of all?
Claimant: That a shepherd has 100 sheep and one
lamb got lost, and the Sheppard tried his hardest to find the lost lamb. That
means God prefers that 99 lambs be his children, but he would feel very sad
losing one.
Member: And what would he do when he finds the
one? This is the last part of it that I wanted to ask. What happens when he
finds the other one? What happens?
Claimant: Even if I had 99 lambs, I will not abandon that lost
lamb.
[20] A parabola is
a mathematical curve and not a Biblical story. At the hearing for judicial
review, counsel for the respondent was asked about the word “parabola” in the
transcript since the respondent argues that the applicant had to be prompted to
answer what a parable was. She suggested it was a transcription error but
offered no evidence that the word actually used in the hearing was “parable”.
On the basis of the certified transcript, the applicant cannot be faulted for
the confusion. Even if the transcript is incorrect and the word “parable” was
used, the applicant, who it must be remembered was participating through a
Cantonese interpreter, readily displayed knowledge of the parable of the
shepherd and the lost sheep.
[21] The Board’s
conclusion that the applicant’s knowledge of the Bible and the Christian
religion is peripheral on so little negative evidence cannot be sustained.
The Patriotic Church
[22] The Board
reviewed the applicant’s responses about the state-approved Patriotic church
but makes no adverse finding against the applicant on the basis of her answers
on that topic.
Applicant’s Failure to
inform her Husband about the Underground Church
[23] The Board makes
two specific findings of implausibility. First, the Board finds it implausible
that the applicant did not tell her husband that she was a member of the
underground church until seven months after they were married and that she only
told him after he questioned her about why she closed her fruit stand every
Sunday. The Board further finds it implausible that the applicant, despite her
husband’s fears and objections, chose to be baptised and continue regularly
attending the underground church.
[24] In Dong v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No 413 at para. 3, Justice
Campbell stated:
The standard the RPD is required to
meet in making implausibility findings is stated in Vodics
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1000 as follows:
· para. 10 With respect to
making negative credibility findings in general, and implausibility findings in
particular, Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and
Immigration), [2001] F.C.J. No. 1131, states the standard
to be followed:
- 6. The tribunal adverts to the principle from Maldonado v.
M.E.I., [1980] 2 F.C 302 (C.A.) at 305,
that when a refugee claimant swears to the truth of certain
allegations, a presumption is created that those allegations are true
unless there are reasons to doubt their truthfulness. But the tribunal
does not apply the Maldonado principle to this applicant, and
repeatedly disregards his testimony, holding that much of it appears to
it to be implausible. Additionally, the tribunal often substitutes its
own version of events without evidence to support its conclusions.
- 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, plausibility 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. [see L.
Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992)
at 8.22]
[25] The applicant
gave a coherent account of how her husband came to learn of her church
attendance. She said she chose to become baptised and continue attending the
underground church because of her religious belief, notwithstanding her
husband’s concern, because she loved her church and her God. She said her
husband cared for her and had to accept her insistence on continuing to attend
church. That a believer would persist in professing her faith in the face of
adversity is not surprising. This explanation is not one where the facts are
outside the realm of what could reasonably expected especially having regard to
the nature of religious belief and the history of Christianity
[26] The Board
offers three reasons for its finding of implausibility: an inconsistency
between the applicant’s beliefs and concealment of her church going from her
husband, the failure to mention the concealment from her husband in her PIF
narrative, and the absence of corroborative documents to corroborate her faith
in Christianity and her membership in the underground church. The Board stated
in its reasons at page 7:
The
claimant’s evidence is that as a Christian she understood the ten commandments,
yet she allegedly withheld information on her underground religion during an
extended period in which she met and then married her husband thus breaking the
commandment, ‘thou shalt not lie.’ Further, there is no evidence from the
claimant that she considered discussing this significant dilemma with her God,
her pastor, or her alleged friend who introduced her to the underground
church. Further, her PIF narrative does not state that she withheld such
information from her husband, a non Christian, despite the fact that the
Screening form makes it clear that significant details of incidents and events
should be included. Further, there are no corroborative documents, such as a
letter from her husband, or from her cousin, or from her pastor, to corroborate
her Christianity and her membership in the underground church, in accordance
with Rule 7, or the Refugee Protection Division Rules, referred to in
the Screening Form. No reasonable explanation is before the panel as to why
such corroborative information was not disclosed, or what steps, if any were
taken to obtain such documentation.
[27] Leaving aside
the observation that silence, strictly speaking, is not a lie, it must be noted
that the Board did not ask the applicant to explain why she broke the
commandment “thou shalt not lie.” If this was an important factor in the
Board’s assessment of the applicant’s account, then the question should have
been put to the applicant so she could respond (see Lorne Waldman, Immigration
Law and Practice, 2nd ed. looseleaf, Markham: LexisNexis Butterworths, 2007 at 8.86 (xvi) (“Immigration Law and
Practice”)). The applicant had explained that she had been cautioned by
the cousin who introduced her to the underground church not to tell anyone
about the church. The Board ignores this explanation and does not make its
credibility finding on the totality of the evidence (Owusu-Ansah v. Canada
(Minister of Employment and Immigration), [1989] F.C.J. No. 442 (F.C.A.);
see also Immigration Law and Practice, above, at 8.86(iv)).
[28] The Board makes
much of the applicant’s failure to mention her concealment of churchgoing from
her husband in her PIF narrative. The applicant does refer to her attending
the underground church, her marriage, and her husband’s subsequent concern in
her PIF narrative. The details of how her husband found out are precisely the
kind of information that emerges in the fullness of an immigration hearing
where an immigration official has the opportunity to question the applicant.
The failure to mention this level of detail in the PIF narrative is not a
particularly significant element upon which to assess credibility.
Corroboration
[29] The Board
also based its adverse finding on credibility on the absence of corroborating
documents about the applicant’s faith in Christianity or membership in the
underground church in China from her husband, cousin or pastor. The
Board noted that no reasonable explanation was before it why such corroborative
information was not disclosed, or what steps were taken to obtain such
documentation. The Board did ask the applicant why the Canadian pastor’s
letter of support, while mentioning the applicant’s flight because of the
impending birth of her second child, does not mention that the applicant’s
participation in the underground church in China, something one would expect to
be of significance to a Christian pastor. However, the Board did not go beyond
this focussed line of questioning and ask the applicant for an explanation for
the absence of other corroborative documents. A Board will err in finding an
applicant not credible because he or she is not able to provide documentary
evidence corroborating his or her claim. The applicant’s failure to provide
corroborating evidence of her membership in the underground church, while a
correct finding of fact, cannot be related to the applicant’s credibility, in
the absence of evidence to contradict the allegation (Ahortor v. Canada
(Minister of Employment &Immigration), [1993] F.C.J. No. 705 at para.
45). The Board erred in concluding that the absence of corroborative documents
enables the Board to make an adverse inference against credibility without
giving the applicant to opportunity to provide an explanation is an error.
The use of an
Interpreter and Language
[30] The Board
refers to the applicant’s confusion when asked if her Canadian pastor referred
to her as ‘reborn’. The applicant initially responded ‘yes’, adding that he,
the Pastor, knew she had a baby. The Board considered this a confusing
response. When the applicant’s attention was directed to the pastor’s letter,
she responded correctly that she had been baptized and therefore reborn.
Reliance on this type of confusion to draw conclusions is the kind that the
Federal Court has cautioned against when an applicant is testifying through an
interpreter as is the case here. (Attakora v. Canada (Minister of Employment
and Immigration), [1989] F.C.J. No. 444 (F.C.A.); and Owusu-Ansah,
above).
Irrelevant Considerations
[31] The Board
makes specific note of an absence of credible evidence before it “as to the
religious status of the Canadian born daughter.” In the absence of any
evidence of a religious practice of baptizing infants shortly after birth, the
religious status of the applicant’s seven month old baby girl is clearly
irrelevant. A Board cannot base credibility findings on irrelevant
considerations (Attakora, above; and Owusu-Ansah, above).
Failure to Consider
Evidence
[32] The Board’s
conclusion, at page 9 of its reasons, on the issue of the applicant being a
Christian is as follows:
Based on
the totality of the evidence, the panel finds the claimant failed to
demonstrate in credible and trustworthy evidence, and on a balance of
probabilities, that she was a member of an underground church in China, or that
she is a genuine Christian. The panel concludes that she joined the Logos Baptist Church, Markham, as a
means of bolstering her refugee claim. The Panel concludes that thee is no
persuasive evidence that she would pursue the Christian religion in China, either
through the registered Patriotic church, or the non-registered underground
church house, and therefore that her claim to refugee protection on the grounds
of religion in not well-founded.
[33] In addition to
disregarding the applicant’s own testimony about her involvement in the
underground church and her professions of religious belief, the Board
completely ignores the letter of the Canadian pastor who states that the
applicant has attended the church’s Sunday service since September 2005, which
is a month after she first arrived in Canada. The pastor states that she is a re-born Christian and has participated
enthusiastically in their church. The alacrity in which the applicant took up
attending and participating in Christian services is consistent with her
testimony that she became a Christian in China. The letter from the Christian pastor who has had an opportunity to
observe the applicant’s participation in Christian services and who expresses
the opinion that the applicant is a Christian is evidence that the Board must
take into account. The Board offers no basis for disregarding this evidence.
Absence of Evidence
[34] Finally,
nowhere is there any evidence, cited by the Board or contained in the
transcript of the Board hearing, supporting its conclusion that the applicant
joined the Logos Baptist Church solely as a means of advancing her refugee claim.
Conclusion on the First
Issue
[35] I find the
Board’s reasons for finding that the applicant was not credible and concluding
that she had not been a member of the underground church nor was a Christian to
be patently unreasonable.
Board’s
finding that the Applicant did not face persecution on any Convention Ground or
was a person in need of protection
[36] The Board
relied primarily on documentary evidence to conclude that the applicant’s fears
of forced abortion and sterilization were not objectively well-founded.
However, the Board necessarily referred to the applicant’s evidence and
testimony. The Board stated at page 10 of its reasons:
The
determinative issue in the claim is whether the claimant demonstrated in
credible and trustworthy evidence that she is in violation of China’s
one-child family policy and risks persecution if she were to return to her
country of citizenship.
[37] The Board had
first addressed the question of the applicant’s Christian beliefs both at the
hearing and in its written reasons. The Board had ruled that the applicant was
not credible, a decision that I have found to be patently unreasonable.
[38] Given the
Board’s erroneous finding on the applicant’s credibility, I do not consider it
possible for the Board to have properly considered the applicant’s testimony
and evidence in respect of her claim for refugee status on Convention grounds
or on section 97 grounds. Accordingly, I need not examine the Board’s
decision on this second issue as it rests on a patently unreasonable assessment
of evidence.
Conclusion
[39] I find the
Board’s decision on credibility to be patently unreasonable.
[40] The decision of
the Board dated September 18, 2006, will be quashed and the matter referred to
a differently constituted Refugee Protection Division board for re-determination.
Certification
[41] Neither party
has suggested a question for certification and I find none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application for judicial review is allowed, and the matter is remitted
to a differently constituted panel for re-determination;
2. No serious question of general importance is certified.
“Leonard
S. Mandamin”
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