Date: 20080228
Docket: IMM-2507-07
Citation: 2008 FC 266
Ottawa, Ontario, February 28, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
YANLING
LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated May 29, 2007, which found that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requested that the decision be set aside and the matter referred back
to a newly constituted panel of the Board for redetermination.
Background
[3]
Yanling
Li (the applicant) is a citizen of the People’s Republic of China. She claims to have a
well-founded fear of persecution at the hands of the Communist regime and in
particular, the Public Security Bureau (the PSB), by reason of her religious
beliefs as a member of an underground Christian church. The events leading to
her claim for refugee status are as described in her Personal Information Form
(PIF).
[4]
The
applicant alleged that during 2003 and 2004, she faced a number of personal
problems including conflicts with work colleagues. She claims to have lost a
good deal of weight and suffered from insomnia due to these personal problems.
In mid October 2004, the applicant claims that her friend, Cui Xiang Hua saw her
in the street and asked her why she had lost so much weight. The applicant
explained the situation and her friend suggested that the applicant could
possibly get answers to her problems from the Bible. As a result, the applicant
started to attend an underground Christian church in October 2004. The
applicant claims to have attended these underground services on a bi-weekly
basis.
[5]
The
applicant alleges that on May 1, 2005, she was unable to attend the underground
service, but a friend called her to inform her that the PSB had raided the
underground Christian church. The friend suggested that the applicant go into
hiding. The applicant went into hiding and while in hiding, learned that the
PSB had visited her home in hopes of arresting her. The applicant fled the
People’s Republic of China, arrived in Canada on November 15, 2005
and filed for refugee protection a few days later.
Board’s Decision
[6]
In
its decision dated May 29, 2007, the Board determined that the applicant was
neither a Convention refugee, nor a person in need of protection. The Board
accepted that the applicant had established her identity as a national of the
People’s Republic of China. However, the Board found on a balance of
probabilities, that the applicant “is not, nor ever was, a member of an
underground Christian church in the People’s Republic of China.”
[7]
During
the hearing, the Board asked the applicant to describe in detail an ordinary,
underground Christian church service. The applicant responded that they would
pray together, then read the Bible and then discuss what they had read. The
applicant also mentioned that if a pastor was present, he would give a service.
The applicant further elaborated that the person in charge would lead them in
the Lord’s Prayer, and then recite aloud the Nicenean Creed. After that, they
would read a passage from the Bible and the person in charge would expand the
message; when the pastor was present they would receive Holy Communion.
[8]
When
asked if she wanted to add anything to her response, the applicant only added
that the group took precautions. The applicant was asked the question again and
she responded that the person in charge led them in the Lord’s Prayer, the
Nicenean Creed and then a passage was read from the Bible and the person in
charge would expand on it and then pray together. The Board asked the applicant
why she had given two different answers to the question. The applicant
responded that she thought that her first summary was good enough. The Board
took issue with the fact that when asked if the services included singing hymns
and if a Benediction was said at the end of the service, the applicant
responded in the affirmative despite not having included these details in her
original answer to the question. The applicant attempted to explain the
omissions, but the Board did not accept her explanations. In conclusion, the
Board found:
[…] that due to the inconsistencies in
the claimant’s response of what happens at the alleged underground Christian
church that the claimant attended and her inability to satisfactorily explain
the inconsistencies, as well as her failure to mention the singing of hymns and
the saying of the Benediction, on a balance of probabilities, that the claimant
did not, nor has ever, attended an underground Christian church in the People’s
Republic of China.
[9]
The
Board noted that the applicant’s knowledge about Christianity could “easily
have been acquired here in Canada in order to manufacture this claim.”
[10]
The
Board also noted the following implausibilities about the applicant’s story.
Firstly, while the applicant alleged that her Bible was seized by the PSB, no
receipt was given despite country documentation indicating that the PSB issues
receipts for anything that is seized, including a Bible. Secondly, while the applicant
alleged that she was able to leave the People’s Republic of China using her own
genuine passport despite at least six security checks, the country
documentation indicated that her passport would be checked and her name put
through the computer to see if she was wanted by the PSB. When questioned about
this last implausibility, the applicant stated that the “snakehead” at the
airport had told her that he had bribed officials for her. The Board found this
explanation implausible given the number of officials that the smuggler would
have to had bribed.
[11]
In
conclusion, the Board found that the applicant was neither a Convention refugee
nor a person in need of protection.
Issues
[12]
The
applicant submitted the following issues for consideration:
1. Whether the Board
failed to provide its reasons in clear and unmistakeable terms;
2. Whether the Board
erred in misconstruing the evidence; and
3. Whether the Board
erred in failing to assess or even acknowledge the dismissal notice from the
applicant’s employer.
[13]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
not assessing whether or not the applicant was a practicing Christian?
3. Did the Board
misconstrue the evidence by relying on the testimony of the applicant as
translated by Mrs. Chong?
4. Did the Board err in
failing to consider the letter submitted by the applicant’s employer?
Applicant’s Submissions
[14]
The
applicant submitted that the Board erred in failing to assess whether or not
the applicant was a practicing Christian. The applicant acknowledged the
Board’s findings that the applicant had never been a member of an illegal
underground Christian church and that she could have gained her knowledge about
Christianity in Canada, but submitted that this is not an assessment
of whether the applicant was a Christian. The Board was entitled to find that
the applicant’s knowledge of Christianity was not sufficient, but it must give
reasons for this finding in clear and unmistakable terms (Hilo v. Canada
(Minister of Employment and Immigration), [1991] F.C.J. No. 228
(F.C.A.); Coronel v. Canada (Minister of Citizenship and Immigration),
[2004] FC 186; Grama v. Canada (Minister of Citizenship and
Immigration), [2004] FC 1030; Vila v. Canada (Minister of
Citizenship and Immigration), [2005] FC 415; Nahimana v. Canada
(Minister of Citizenship and Immigration), [2006] FC 161). It was further
submitted that in failing to assess whether or not the applicant is a
practicing Christian, the Board also failed to properly weigh the evidence and
reach a finding of fact that was a prerequisite to assessing the applicant’s
objective fear. Failure to assess whether or not the applicant is a practicing
Christian regardless of a finding that the applicant’s experiences lack
credibility, is an error on the part of the Board (Chong v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 999; Chen v.
Canada (Minister of Citizenship and Immigration), [2001] F.C.J.
No. 783).
[15]
The
applicant also submitted that the Board misconstrued the evidence in relation
to the applicant’s submission that the PSB had confiscated her Bible. It was
submitted that during the hearing, the applicant testified that the PSB had
searched her home, and had found/got a hold of her Bible. The applicant
submitted that the Board assumed this to mean that the PSB had actually taken
her Bible and as such, the Board found that this was implausible because
country documentation indicated that if true, the applicant should have
received a receipt. The applicant testified that she had not received a
receipt. The applicant presented affidavit evidence from a Linda Qian who swore
to being an interpreter fluent in Mandarin and English. In her affidavit, Ms.
Qian reviewed the hearing transcript and supported the argument that the
applicant in fact said that the PSB had not taken away her Bible, but had
merely got a hold of it. That is, the PSB never removed the Bible from the
applicant’s home and therefore, a receipt was never issued.
[16]
And
finally, the applicant submitted that the Board failed to consider the
dismissal notice from the applicant’s employer. As this evidence corroborates
the applicant’s allegations that she practiced Christianity in an underground
church, and contradicts the Board’s primary finding, the Board had a duty to
expressly assess it in its reasons. The more important the evidence that is not
specifically referred to and analyzed in the Board’s reasons, the more willing
a court may be to infer from the silence that the Board made an erroneous
finding of fact (Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. No. 1425 (T.D.)).
Respondent’s Submissions
[17]
The
respondent submitted that the determinative issue was a lack of credibility and
that credibility findings are findings of fact, reviewable on a standard of
patent unreasonableness. It was submitted that recently the Supreme Court of
Canada reiterated the deference owed to credibility findings made by persons
who review first-hand the oral evidence of the witness (R. v. Gagnon,
2006 SCC 17 at paragraph 20). The respondent submitted that the Board simply
did not accept the applicant’s testimony that she had been a member of an
underground church and had to escape persecution for that reason. The Board
made this finding and gave reasonable and adequate reasons for it in clear and
unmistakeable terms.
[18]
The
respondent also argued that the applicant failed to show that the Board erred
in relying on testimony that had been allegedly mistranslated. It was submitted
that the interpretation given by the original interpreter, Mrs. Chong, should
be preferred to that of Linda Qian as the applicant has provided no information
as to Ms. Qian’s education or expertise as an interpreter. Moreover, the finding
with regards to whether the applicant received a receipt for her Bible is one
small finding made by the Board that does not impact on the totality of the
decision. The respondent submitted that the applicant has not taken issue with
the Board’s credibility findings, and the applicant’s failure to explain her
easy departure from China.
[19]
And
lastly, the respondent submitted that the Board did not err in failing to
mention the letter from the applicant’s employer. It was submitted that as the
letter was not supported by any testimony or other reliable evidence, it is of
limited evidentiary value. A general finding of a lack of credibility on the
part of the applicant may conceivably extend to all relevant evidence emanating
from the applicant’s testimony (Songue v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1020; Sheikh v.
Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238). The
Board does not ignore evidence and thereby commit a reviewable error when it
fails to mention particular evidence in its decision (Woolaston v. Canada
(Minister of Citizenship and Immigration), [1973] S.C.R. 102). The Board is
not required to refer to every piece of evidence before it in order to
discharge its statutory duty to give reasons for its decisions (Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317
(F.C.A.)).
Analysis and Decision
[20]
Issue
1
What is the appropriate
standard of review?
Questions of law are reviewable
on a standard of correctness (Canada (Minister of Public
Safety and Emergency Preparedness) v. Philip, 2007
FC 908). Questions of procedural fairness should be assessed on a correctness
standard (Hassani v. Canada (Minister of
Citizenship and Immigration), [2007] 3 F.C.R. 501).
[21]
Issue
2
Did the Board err in not
assessing whether or not the applicant was a practicing Christian?
The applicant
submitted that the Board erred in failing to decide whether or not the
applicant was a practicing Christian. The applicant acknowledged that the Board
did not believe her personal accounts of being a member of an underground
church, but argued that the Board was required to assess whether or not the
applicant was a practicing Christian.
[22]
Having
reviewed the decision, I agree with the applicant. At page 1 of the Board’s
decision (page 4 of the certified tribunal record) the Board stated:
I find, on a balance of probabilities,
that the claimant is not, nor ever was, a member of an underground Christian
church of the People’s Republic of China.
[23]
The
Board went on to state:
. . . Any knowledge that the claimant has
learned about Christianity could easily have been acquired here in Canada in order to manufacture this
claim.
(application record page 8)
This is a statement that the applicant had
some knowledge of Christianity.
[24]
It
is not disputed that the Board found that the applicant was not a member of an
underground Christian church. The Board, however, did not make any ruling as to
wheter the applicant was a practicing Christian based on the knowledge she had
about Christianity and if so, whether she had a well-founded fear of
persecution.
[25]
Based
on the reasoning in Huang v. Canada (Minister of Citizenship and
Immigration) 2008 FC 132 and Chen (aka Junzhu Chen) v. Canada (Minister of
Citizenship and Immigration) 2002 FCT 480, I am of the view that the
Board made a reviewable error. The application for judicial review is therefore
allowed and the matter is referred to a different panel of the Board for
redetermination.
[26]
Because
of my finding on this issue, I will not decide the remaining issues.
[27]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[28]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA):
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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,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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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,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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