Date: 20080523
Docket: IMM-4094-07
Citation: 2008 FC 640
Ottawa, Ontario, May 23,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
NAN LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, 2001, c. 27, (the Act) of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated August 13, 2007, finding that the applicant is neither a Convention
refugee, nor a person in need of protection.
ISSUES
[2]
The
applicant raises three issues to be determined. However, because
the issues relate to the Board’s factual conclusions on three points, I would
restate the issue as follows: Did the Board make an unreasonable error
by failing to provide justifiable, transparent and intelligible reasons or
arrive at a conclusion outside the range of possible, acceptable outcomes with
regard to facts and law?
[3]
For
the following reasons, the application for judicial review shall be dismissed.
FACTS
[4]
The
applicant is a citizen of the People’s Republic of China (China), born on July
9, 1986. He seeks protection in Canada on the ground that he
has a well-founded fear of persecution at the hands of the Public Security
Bureau (PSB), by reason of his religious beliefs as a member of an underground
Roman Catholic Church.
[5]
The
specific incident that led the applicant to leave China occurred at
Christmas Eve mass in 2004. In the applicant’s original Personal Information
Form (PIF) narrative, received by the Board on January 4, 2006, the applicant
claimed that the incident occurred at Easter mass in 2005. The date was later
changed to Christmas Eve 2004 in an amended PIF dated March 9, 2007.
[6]
The
applicant attended a mass on Christmas Eve 2004 at a fellow church member’s
home. While the applicant was assisting the priest in performing the ceremony,
the gathering was interrupted by police without uniform, who entered and directed
themselves toward the priest. The applicant was standing in front of the altar.
[7]
Within
seconds of the police officers’ entry, members of the congregation cut the
power in the building and the lights went out. According to the applicant’s
account, this allowed the applicant and the priest to escape through the
backdoor. The applicant went into hiding. While in hiding, the applicant
learned that the PSB went to his grandmother’s home, in order to arrest
him. The applicant also learned that four people were arrested following the
incident.
[8]
The
applicant left China in February 2005, with the assistance of a
fellow church member. Over the following months, he passed through Russia, Germany, Italy and Denmark
before arriving in Canada on October 4, 2005. He arrived in St. John’s, Newfoundland, on a cruise
ship with a false Korean passport and made a refugee claim. The applicant was
detained upon his arrival, pending security clearance. He was interviewed by
Canada Border Services Agency (CBSA) officers on five occasions, namely October
5, 11, 13, 24 and 26, 2005. He was finally released on conditions on December
8, 2005.
[9]
The
applicant was detained a second time on January 8, 2006, after missing his
reporting date with CBSA, and then being discovered trying to cross the border
into the United States by hiding in the back of a semi-truck trailer with eight
other people.
DECISION UNDER REVIEW
[10]
In
its analysis, the Board noted the applicant’s poor demeanour, as well as
the indirect and vague answers he offered to the questions asked at the
hearing.
[11]
The
Board based its refusal of his claim on two reasons. First, the Board concluded
that the applicant was not wanted by the PSB, based on a number of omissions
and inconsistencies in his account. Second, the Board concluded that the
applicant is not nor has he ever been a Roman Catholic.
[12]
The
Board mentioned the following omissions and inconsistencies in the applicant’s account:
a) The Board
noted that the most serious omission was that the claimant failed to mention the
specific incident that led him to leave China to CBSA
officials at any of the interviews conducted while he was in detention. When
asked why he failed to mention the raid of the mass, he stated that he had
asked for an interpreter. He was reminded that an interpreter was present at
the time, and he said he was confused. The Board rejected the explanation and
inferred from the omission that the event did not occur.
b) The Board considered
that the applicant failed to mention that the PSB went to his grandmother’s
house to find him, in his interviews with CBSA officials, as well as in his
PIF. When asked about this omission, the applicant stated that he learned of
the fact later. When it was pointed out to him that he learned of this while he
was in hiding, he accounted for the inconsistency saying he had a memory lapse.
The Board rejected the explanation, since the PSB’s visit to his grandmother’s
home was central to his decision to leave.
c) The Board noted
that the applicant initially stated in his PIF that the raid by the PSB
occurred on Easter 2005. It drew a negative inference from the fact that
the PIF was later amended to indicate Christmas Eve 2004. The applicant’s
explanation that he was told to complete his PIF as quickly as possible was
rejected.
d) Finally, the
Board noted that at the October 11, 2005 interview, the applicant stated that
his reason for not wanting to return to China was not based on fear, but rather
on the fact that he had spent a lot of money in coming to Canada.
[13]
For
the above-mentioned reasons, the Board found that the PSB was not interested in
arresting the applicant, and therefore there was no serious possibility of
persecution, or risk to his life, or risk of cruel and unusual treatment or
punishment, or danger of torture in China.
[14]
The
Board went on to buttress its negative credibility finding, and stated that the
applicant was never a Roman Catholic. This determination was based on the
following reasons:
a) It noted
that during the CIC interview dated October 5, 2005, when asked how many
gospels there are, the applicant replied “a lot”. The applicant explained this
error stating that there was an interpretation problem; however, the Board
rejected this explanation on the ground that no other interpretation errors
were raised.
b) When the Board
asked the applicant to name the Pope in power prior to Benedict XVI, the
applicant initially stated that he did not know. When asked a second time he
said Paul II, and the third time he correctly answered John Paul II. When asked
why he had difficulty naming the previous Pope, the applicant asserted that he
had answered correctly and that the interpreter had a problem in English.
c) The Board
noted that the applicant struggled when asked to recite the Nicean Creed, which
should not have been the case were he really a Roman Catholic.
d) Finally, the
Board drew a negative inference from the fact that the applicant was unable to
answer to the Board’s satisfaction why the Vatican is located
in Rome and not Paris or New York City. The Applicant stated
that it would be necessary to look to the cultural background of Jesus at that
time, and that the most powerful preachers were in Rome. The Board
noted that the answer was incorrect and that the Vatican is in Rome because that
is where it is believed that St. Peter was buried, something the applicant
should have known.
e) The Board
concluded that the letter provided by the applicant from his priest was not
genuine, since he was not Roman Catholic.
ANALYSIS
Standard of Review
[15]
The
standard of review applicable to a decision of the Board on questions of fact
is reasonableness. The jurisprudence of this Court has consistently found that
findings of fact, and more particularly credibility, made in the context of a
refugee claim, are subject to the highest level of deference (Aguebor v.
(Canada) Minister of Employment and Immigration (1994), 160 N.R. 315 (F.C.A)).
Following the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9, determinations regarding the credibility of a
refugee claimant made by the Board, should continue to be subject to deference
by the Court, and are reviewable on the standard of reasonableness (Dunsmuir,
above at paragraphs 55, 57, 62, and 64).
[16]
For
a decision to be reasonable, there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, above at paragraph 47).
Determination with
Regard to Persecution
[17]
The
applicant challenges the Board’s finding that the PSB was not interested in
arresting him, arguing that the finding is capricious and made without regard
to the evidence. The applicant alleges that the Board erred in concluding that
the applicant had no well-founded fear, because he in fact wanted to stay for
financial reasons. The applicant asserts that the Board cherry-picked the
evidence that supported its conclusion while ignoring other evidence.
[18]
The
applicant misapprehends the Board’s conclusion. It is in fact the applicant who
is focussing too closely on one aspect of the Board’s reasons in advancing his
argument. The Board’s conclusion that the applicant was not wanted by the PSB
is in fact a negative finding of credibility. The Board referred to a number of
omissions, errors and inconsistencies in the applicant’s account. From all of
these, the Board concluded that the event central to the refugee claim did not
occur. There can be no question that it is open to the Board to impugn the
applicant’s account on the basis of omissions and contradictions, and thereby
infer that the facts underlying the claim are false (Chen v. Canada (Minister of
Citizenship and Immigration), 2005 FC 767, [2005] F.C.J. No. 959). Drawing
such a negative inference with regard to the credibility of the claim lies at
the heart of the functions of the Board.
[19]
A
careful review of the Certified Tribunal Record, as well as the applicant’s
record, reveals that the inferences made by the Board were based on the
evidence before it. The Board made no error in its assessment on this determinative
issue.
Determination with
Regard to Religion
[20]
The
applicant submits that the Board made a reviewable error in the determination
of his identity as a Roman Catholic. He further submits that it is insufficient
that he did not know the name of the Pope or why the Vatican is in Rome.
[21]
The
applicant rightly takes issue with certain reasons relied upon by the Board in
determining that the applicant is not and never was a Roman Catholic. In
particular, a careful review of the transcripts of the hearings before the
Board does not support the Board’s statement that the applicant struggled in
reciting the Nicean Creed:
MEMBER: Okay. Would you recite the
Nicene Creed for me?
INTERPRETER: Let me find this, Mr.
Speaker. I’m not a Catholic. I believe you want him to say the whole ---
MEMBER: It’s probably easier for you to
just say it and Mrs. Tsao if you could say it afterwards.
CLAIMANT: You want him to say all the
Nicene Creed?
MEMBER: The Nicene Creed, yes.
CLAIMANT: (Recites in Mandarin)
INTERPRETER: He didn’t say Amen.
MEMBER: Was it recited correctly?
INTERPRETER: Yeah, yeah; correctly.
MEMBER: Okay; thank you.
[22]
To
the contrary, the transcript indicates that the applicant recited the Nicean
Creed correctly.
[23]
Further,
I agree with the applicant’s submission that the Board’s question regarding the
reason for locating the Vatican in Rome is not determinative of
the applicant’s identity as a Roman Catholic. It is my opinion that many well
educated and practicing Catholics would fair no better were this question put
before them (Fedarov v. Canada (Minister of Citizenship and Immigration),
2007 FC 101, [2007] F.C.J. No. 135; Chen v. Canada (Minister of Citizenship
and Immigration), 2007 FC 270, [2007] F.C.J. No. 395).
[24]
I
also note that the explanation given by the applicant for failing to state the
previous Pope’s name is different from the explanation cited by the Board in
its reasons. The Board’s reasons indicate that “the claimant stated that maybe
he said John Paul II and in English the interpreter had a problem.” The
transcript of the hearing provides the following:
MEMBER: What was the name of the Pope
before Benedict the XVI.
CLAIMANT: I don’t know.
MEMBER: The person before Benedict I
believe was the Pope for close to 25 years. You don’t know his name?
CLAIMANT: Paul the II.
MEMBER: Paul the II was the Pope
previously to Benedict?
CLAIMANT: John Paul II.
MEMBER: Why couldn’t you say that to
begin with when I asked you?
CLAIMANT: Maybe I said it, John Paul II
because the English Catholic John is different pronunciation with the
Protestant, maybe you mistake saying to the interpreter.
MEMBER: But I asked you the question, you
said you didn’t know who the Pope was.
INTERPRETER: Sorry, I speak in English
now.
CLAIMANT: I thought you were asking about
Benedict XVI?
MEMBER: My question was “Name of the Pope
before Benedict XVI.”
CLAIMANT: Yeah. I heard it –
misunderstood. I thought you were asking about Benedict XVI, his former name. What
is his name?
[25]
While
I am troubled by the conclusions drawn by the Board from the applicant’s
answers to the questions asked at the hearing concerning his identity as
a Roman Catholic, it is my opinion that the Board’s finding with respect
to the existence of a well-founded fear of persecution is determinative, and the
application should be dismissed regardless of any error in the determination of
the applicant’s identity as a Roman Catholic.
Other Immaterial Errors
[26]
Finally,
the applicant submits that the application for judicial review should be
allowed on the ground that the number of errors made by the Board is
sufficiently important.
[27]
Notably,
the applicant alleges two errors in the Board’s summary of the allegations. First,
the applicant submits that the Board erred in stating that the raid occurred on
Easter 2005, when the evidence indicated that it occurred on Christmas Eve
2004. Second, the applicant argues that the Board erred in stating that the
applicant left China on October 4, 2005, when the evidence indicated
that that he arrived in Canada on that date. In support of its
submission, the applicant cites Luzi v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1179, at paragraph 34, [2003]
F.C.J. No. 1492.
[28]
I
do not agree. The two errors raised by the applicants do not reflect any
misapprehension of the evidence on the part of the Board. The first error,
regarding the date of the raid, is not in fact an error; Easter 2005 was the
date submitted by the applicant in his original PIF. It is clear that the
Board was cognizant of the amended date, since it relied on this amendment to
draw a negative inference.
[29]
The
second error appears to be attributable to nothing more than a failure to
proofread the reasons; the impugned sentence reads as follows:
The claimant left the People’s Republic
of China on October 4, 2005 and filed for refugee protection the same day in Canada.
The evidence shows that in fact the
applicant left China in February 2005. None of the Board’s conclusions
turns on the date of October 4, 2005; the error is therefore immaterial.
[30]
No
questions were submitted for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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