Date: 20080918
Docket: IMM-1543-08
Citation: 2008
FC 1056
Toronto, Ontario, September 18, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
XIAO ZHEN OU YANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The present
Application concerns a citizen of China
who claims refugee protection on the ground of her religion as a Christian.
During the course of the hearing of the Application, Counsel for the Applicant
argued that the negative decision rendered by the Refugee Protection Division
(RPD) is made in reviewable error because the RPD Member (Member) rejected the
claim on the basis of a global negative credibility finding without giving
clear reasons.
[2]
There are
three aspects involved in counsel for the Applicant’s argument. The first
aspect concerns the fact that the Applicant was late filing some critically
important documents. During the course of the hearing before the RPD, the
Applicant offered an explanation that the documents were late filed because
there were problems receiving them from China, and that she wanted to collect them and
file them together. During the course of the RPD hearing, the Applicant’s
explanation was rejected by the Member with the following statement:
PRESIDING MEMBER: Okay. I am going to
accept the identity documents, they are critical. I do not accept your
explanation as to why they are so late. This business about having to file
everything together, that’s simply not the case. But they’ll get the
appropriate weight when they are filed this late.
(Tribunal Record, p.248)
After making this comment, the following
exchange took place between Counsel for the Applicant and the Member:
PRESIDING MEMBER: All right. I’ll accept
it but they’ll get the appropriate weight when I get these documents so, okay?
So late, the same with that – and the summoning, but they will get the
appropriate weight because I don’t accept your argument as to why these
documents are filed at the very last minute. So I draw a severe negative
inference from these late disclosure of documents, okay? So they’ll all be
entered into the – you have provided me with an exhibit list, Counsel.
[Emphasis added]
[…]
COUNSEL: Okay. Well I should just note
for the record that I think it’s improper for the Board to draw a negative
inference to the late disclosure of documents before we have heard any
testimony from the claimant with respect to her claim.
PRESIDING MEMBER: I am just saying I draw
a negative inference with respect to the documents, not with respect to this
lady’s evidence.
COUNSEL: Okay, well I don’t understand
what the inference is based on.
PRESIDING MEMBER: Well when I have- when
these documents are so late. Anyway, you have provided me with an exhibit list,
I am going to enter that list at this time and I guess C-6 will be the summons?
(Tribunal Record, p. 248 &
249)
I agree with Counsel for the Applicant’s
argument that, in drawing an unsupported “severe negative inference” the Member
exposed an ungrounded and unexplained suspicious mind that the Applicant’s
claim is fraudulent even before the hearing was completed. As a result, I find
that decision is tainted by a manifest unfairness.
[3]
In my
opinion, the tainting is exposed with respect to the RPD’s findings concerning
the Applicant’ claim that she is a Christian. During the course of the hearing,
the Member closely examined the Applicant about her knowledge of the tenets of
the Christian Pentecostal faith. In particular one important passage included a
questioning about the celebration of the Pentecost as follows:
PRESIDING MEMBER: Okay, you go to a
Pentecostal Church, do you not observe the Pentecost?
CLAIMANT: I know the Pentecost day, we
call it like the coming of the living water.
PRESIDING MEMBER: Okay. Why did you not
mention the Pentecost?
CLAIMANT: Because I have never
celebrated.
PRESIDING MEMBER: Well, madam, you have
been going to this church for over a year and you have not celebrated?
CLAIMANT: The pastor mentioned
Pentecostal but I have never celebrated here.
PRESIDING MEMBER: When does the Pentecost
occur?
CLAIMANT: I was told that was 40 days
after Jesus resurrected and then the living water arrived.
PRESIDING MEMBER: Okay. So when did Jesus
resurrect, what’s the holiday we call that? The day the Jesus resurrected, what’s
the name of the holiday we call that?
CLAIMANT: Christmas.
PRESIDING MEMBER: So Christmas is when
Jesus resurrected?
CLAIMANT: No, it was after the Good
Friday Jesus resurrected, Jesus died and resurrected. [Emphasis added]
(Tribunal Record, p. 276)
[4]
With respect
to this questioning, the Member made the following statement in the decision
rendered:
The claimant has been asked as to what
religious holidays are observed by Christians. The claimant indicated Easter,
Christmas, and Good Friday. The claimant was asked if she wished to add to her
answer and she replied in the negative. The claimant was then asked as to why
she failed to mention the Pentecost, as she attended a Pentecostal church. The
claimant indicated that she had never celebrated it. It was pointed out to the
claimant that her church letter indicates that she had been attending the Living Water Church since November of 2006 and thus
has been attending for over a year, therefore, she would have observed the
Pentecost. The claimant stated that the Pastor mentioned it but never
celebrated it. I reject this explanation, as the claimant attends a Pentecostal
church and thus this religious day would have been observed. The claimant
was asked four times to name the day that Jesus resurrected from the dead. The
claimant initially had no answer, then said Christmas, then after Good Friday
and then said the Pentecost. The panel Member indicated to the claimant that
the day was called Easter. The claimant was then asked as to what the
significance of Easter is to Christmas. The claimant stated that was the day
that Jesus was resurrected and reborn. When asked is she wished to add to her
answer, she replied in the negative. I find that the claimant does not possess
some basic tenets of Christianity: Although Christ was resurrected on
Easter, the claimant failed to state that he died on the cross for Christians’
sins in order for humans to have eternal life, which is a cornerstone of
Christianity. The claimant was asked as to what the role of the Holy Spirit
was. The claimant stated that it was to protect countries if there were
difficulties, which is incorrect. The correct answer is that the Holy Spirit
is to lead Christians to wisdom and to have a greater understanding of the Holy
Scriptures. The claimant did not know where the Pentecost and Holy Spirit are
found in the Bible, being the Book of Acts. The claimant was able to answer
some questions about Christianity. However, I find, on a balance of
probabilities, that the claimant is not, nor ever was, a Christian as a result
of her limited knowledge of the Pentecost (although maintaining she attends a
Pentecost church on a regular basis) and her inability to name Easter or the
significance of it to Christians, a cornerstone of Christianity. Any knowledge
that the claimant has learned about Christianity could easily have been
acquired here in Canada in order to manufacture her
claim. [Emphasis added]
(Decision, p. 3-4)
[5]
In my
opinion the RPD’s handling of the Applicant’s evidence with respect to her knowledge
of Christianity is very unfair for two reasons. First, the Applicant gave
straightforward testimony about her knowledge of the Pentecost; her pastor had
mentioned it, but that she had never celebrated it here. This evidence
is un-contradicted. Therefore, I find that the Member’s conclusion that “she
would have observed the Pentecost” is completely unfounded. There is no
question that this finding, read in context, constitutes a negative credibility
finding. In my opinion there is no basis for this conclusion.
[6]
Second, the
fact that the Applicant did not detail the significance of Easter to Christians
as the Member expected, proves nothing. I find it was unfair of the member to:
ask the question; obtain a relatively straightforward answer; then ask the Applicant
whether she had anything to add; obtain the answer “no”; and then criticize the
Applicant for not providing the answer that she, the Member, expected. There is
absolutely no basis for the Member to have expected the fulsome answer which
she has detailed in her decision. In addition, I find that the failure to give
this answer does not ground the global negative credibility finding that the
Applicant “is not, nor ever was, a Christian”.
[7]
As a
result, I find that the decision under review was made in reviewable error.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back for re-determination before a
differently constituted panel.
There is no question to
certify.
“Douglas R. Campbell”
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