Date: 20080527
Docket: IMM-4990-07
Citation: 2008 FC 675
Ottawa, Ontario, May 27,
2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
GANG TAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Gang
Tan, a citizen of the Peoples Republic of China (PRC), challenges in this
judicial review application the October 31, 2007 decision of the Refugee
Protection Division (the tribunal) rejecting his claim for asylum on the
grounds it did not believe his story.
[2]
Mr.
Tan says he fears the PRC’s Public Safety Bureau (PSB) because he is a member
of an underground Christian church which he joined in 2003. He states he
attended on a regular basis, once every two weeks, this illegal underground
church, usually located in the home of another church member.
[3]
He
testified on July 4, 2005, the PSB raided the church but he was able to escape
by running out the back door; he alleges he went into hiding and fled the PRC
on November 9, 2005 after being told the PSB went to his home looking for him
twice in order to arrest him. Shortly after arriving in Canada, he made his
refugee claim.
The tribunal’s decision
[4]
The
tribunal found, on the balance of probabilities, “that the claimant is not, nor
has never been, a member of an underground church in the PRC”.
[5]
It
based its credibility finding on only two bases: it did not believe Mr. Tan’s
testimony why he joined the underground church nor did it believe his testimony
on how, with the aid of a snakehead, he was able to clear security at Beijing’s airport
using a passport with his own name and photo identification.
[6]
On
the subject of why he joined the underground church, the tribunal wrote:
… the claimant indicated that he
joined the illegal underground Christian church because he was depressed that
he may lose his job, as others had lost theirs at his place of employment and
that he could not send his child to school on just his wife’s salary. I reject
this explanation with regard as to why he joined an illegal organization:
First, the claimant did not indicate in his Personal Information Form as to
this or any other reason for joining; Second, the claimant did not lose his
job; and Third, his wife is alone in the People’s Republic of China and that
their son is still attending school.
[7]
On
the issue of how the applicant was able to clear security at the airport using
a passport, albeit fraudulent, with his own identification when the PSB was
looking for him, the evidence was that his name would have been stored into a
computer and his passport swiped at the security points at the airport which
the applicant said he cleared using the services of a snakehead who had bribed
all the customs officials. Mr. Tan was confronted with the fact his name would
be in the computer and passport swiped. He answered his name was not in the
computer because the snakehead told him that. The tribunal rejected his
explanation in these terms and concluded:
Even if the snakehead could bribe
officials and although the People’s Republic of China does have a problem with
corruption, I do not find it plausible that the smuggler would be able to
bribe, possibly hundreds of officials, as there would be no guarantee as to
which border police would be on duty or as to which line the claimant (and
smuggler) would be directed to. I therefore find that the claimant was not a
member of an underground Christian church and was not wanted by any Chinese
authorities.
As no other reasons were put forward as
to why the claimant fears persecution in the People’s Republic of China, I
therefore find that there is no serious possibility that the claimant will be
persecuted or be subjected personally to a risk to his life or a risk of cruel
and unusual treatment or punishment or to a danger of torture by any authority
in the PRC.
The applicant’s argument
[8]
Counsel
for the applicant advances two arguments: First, he submits the tribunal
misread the evidence when it came to the factual conclusions it did and second,
the tribunal erred in law when it failed to determine whether he was a
Christian and to assess whether, as a Christian, he had a well-founded fear of
persecution.
Analysis
(a) Standard of review
[9]
The
issue which arises is whether the Supreme Court of Canada’s recent
decision in Dunsmuir v. New Brunswick, 2008 SCC 9 impacts on
the standard of review because that case folded into the reasonableness
standard, the standard of patent unreasonableness. In the context of the issues
in this case, my view is that Dunsmuir, above, has no impact.
[10]
It
is clear from this Court’s jurisprudence that credibility findings are findings
of fact to be assessed against section 18.1(4)(d) of the Federal Courts Act
which provides this Court may grant relief in a judicial review application if
it is satisfied a federal tribunal based its decision on “an erroneous finding
of fact that it made in a perverse or capricious manner or without regard for
the material before it”. It has been recognized this statutory standard of
review is equivalent to the common law standard of manifestly unreasonable. If
section 18.1(4)(d) is breached, the tribunal’s decision will of logic and necessity
be unreasonable.
[11]
Error
of law not engaging the tribunal “home statute” are generally measured
against the correctness standard. If the tribunal erred in law by failing to
completely assess the applicant’s fear, the tribunal’s decision must be set
aside because it was not correct.
(b) Discussion and conclusions
[12]
My
reading of the transcript leads me to conclude the tribunal arrived at its
credibility findings by misreading the evidence and that its implausibility
finding was impermissibly drawn. I come to this conclusion having in mind the
tribunal’s credibility findings should not be set aside lightly because such
findings are at the heartland of its jurisdiction and this Court cannot
re-weight the evidence.
[13]
The
strongest basis the tribunal had for not believing the applicant is the
implausibility of his being able to clear security at Beijing airport
using a passport with his own name and photo I.D. if the PSB was looking for
him because, in such a case, the applicant’s name would be stored in a computer
for verification.
[14]
It
is well recognized that a tribunal such as a panel of the Refugee Protection
Division is well suited to draw implausibility findings provided the inferences
drawn are not unreasonable (see Aguebor v. Minister of Employment and
Immigration, [1993] F.C.J. No. 732 (C.A.)).
[15]
After
reviewing the transcript, I conclude the tribunal’s implausibility finding was
unreasonably drawn because it was arrived at without the tribunal taking into
account all of the evidence before it.
[16]
The
applicant testified extensively on how he cleared officials at Beijing airport. His
testimony was to the following effect:
·
His
passport was obtained by his smuggler. It was fraudulent; it was a Public
Affairs passport which the Refugee Protection Officer (RPO) recognized was
normally issued to Chinese government employees. It contained a Canadian
visitor’s visa which the smuggler obtained from the Canadian Embassy by forging
the applicant’s name on the visa application form.
·
He
left Beijing with a group
of people he did not know.
·
He,
his smuggler, arrived at the airport driven by his friend’s car. His smuggler
told him to wait in the car because “he had something to do; some matter to
attend to.”
·
He
came back to the car half an hour to 45 minutes later and told the applicant to
follow him to gate 6 telling him he had “bribes through all this custom”.
·
He
cleared three points: change ticket, security and customs which the RPO
confirmed the documentary evidence substantiated there were three at Beijing’s
international airport.
·
When
the presiding member suggested to him his smuggler could not have bribed a
hundred persons, he answered the smuggler said he just bribed at the
checkpoint.
·
The
applicant could not recall if his passport had been swiped by security at the
airport because he was too nervous; all he remembers is that security officials
stamped his passport. He also answered the smuggler told him his passport had
not been swiped.
·
In
answer to the question that the documentary evidence indicates his name would
be put through a computer, he answered if the smuggler had not bribed customs
he would never have passed through.
[17]
On
the basis of this evidence which the tribunal did not find incredible except on
the basis of the overall implausibility, I can only conclude the tribunal could
have drawn that finding by ignoring the evidence before it. The tribunal’s
finding was not based on the evidence but on pure conjecture that “the smuggler
would have had to bribe possibly hundreds of officials without any guarantee as
to which border police would be on duty or which line the claimant (or
smuggler) would be directed to”. On the evidence before him, it was equally, if
not more plausible, the smuggler bribed that morning the customs officials at
gate 6 where he told the applicant to follow him to and that his name was not
swiped through the computer because he was in possession of a passport normally
issued to government employees and contained a CVV.
[18]
The
tribunal based its only other credibility finding on three reasons, two of
which do not stand up to evidentiary scrutiny. The tribunal did not believe the
applicant joined the underground church because it did not believe his stated
motive for joining it: his depression about possibly losing his job as others
had and, if that happened, he could not afford to educate his son on only his
wife’s salary.
[19]
The
tribunal dissected the applicant’s motive in two ways: he had in effect lost
his job because he was now in Canada and yet his child was still in school. The
transcript reveals he never told the tribunal he had lost his job but feared he
might loose it and that his son was in school because he was working in Canada and sent
money home, his wife was working and his wife’s relatives helped out (see
Certified Tribunal Record, pages 523 and 536).
[20]
Moreover,
the tribunal’s finding he was never a member of a Christian underground church
in China was reached despite the fact the applicant was severely tested on his
knowledge of Christianity which the RPO in argument acknowledged “he got most
things correct” without the tribunal making a finding he had acquired his
knowledge of Christianity while he was in Canada.
[21]
In
the light of the foregoing, I need not deal with the other basis counsel for
the applicant argued the tribunal erred, that is, drawing on a line of recent
cases dealing with refugee claimants from China alleging persecution on account
of their Christian religion (see Huang, Guobao v. the Minister of
Citizenship and Immigration, 2008 FC 132; Li v. the Minister of
Citizenship and Immigration, 2008 FC 266), a tribunal errs when it does not
assess whether an applicant was a practicing Christian based on the knowledge the
claimant had about Christianity and, on this basis, had a well founded fear of
persecution.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is allowed, the tribunal’s decision is set aside and the
applicant’s refugee claim is remitted to a differently constituted panel for
reconsideration. No certified question arises from this decision.
“François Lemieux”
__________________________
Judge
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