Date: 20081009
Docket: IMM-1537-08
Citation: 2008
FC 1151
Toronto, Ontario, October 9, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
SHAOQIN DONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a young woman who claims refugee protection as a
Christian on the basis of fear of more than a mere possibility of persecution
should she be required to return to China.
The Applicant’s claim of subjective and objective fear is based in a highly
detailed account of her experience in China
as a member of an underground Christian church at the age of 15. The Refugee
Protection Division (RPD) dismissed the Applicant’s claim for protection, essentially
as a concoction, with the following statement:
In summary, I find, on a balance of
probabilities, that due to a number of omissions and inconsistencies between
the claimant’s oral evidence and her Personal Information Form, that she is
not, nor ever was, a member of an underground Christian church in the People’s
Republic of China.
(Decision, p.4)
Counsel for the Applicant argues that each of the specific
“omissions and inconsistencies” used to ground the rejection are erroneously made,
and further, the RPD’s global negative credibility finding is contrary to law
because no clear reasons are provided for its making. I agree with these
arguments.
[2]
The first
contested “omission” reads as follows:
In her oral testimony, the claimant
indicated that her best friend, Meijin, spread the gospel to her and that her
teacher also spread the gospel to her. Furthermore, the claimant indicated that
Meijin attended the same underground Christina church as she did. When it was
pointed out to the claimant that she fails to mention her friend spreading the
gospel to her in her Personal Information Form (although in the Personal
Information Form, the claimant mentions that it was Meijin who informed her
that the pastor had been arrested), her explanation was that initially she
though [sic] about her friend spreading the gospel to her but during the
process, came up with the idea that her teacher mainly guided her. I reject
this explanation as the claimant could easily have indicated her friend also
spread the gospel to her [Emphasis added].
(Decision, p. 2)
The portion of the transcript of the hearing before the RPD
which addresses this concern reads as follows:
Yes. Initially when I fill up the, make
my claim, I was, I have thought about that my friend is also the one who spread
the Gospel to me, but during the process of, during the process of filling the
application, I came out with the idea that since my teacher is the one who
mainly guide me and teach me about the Gospel, my friend is, is only a youth
that is learning together with me. That’s why I did not emphasize my friend.
[Emphasis added]
(Tribunal Record, p. 316)
Counsel for the Applicant argues that, as a matter of law,
the Applicant’s explanation must be accepted unless clear reasons are given for
its rejection. I agree with the submission that, as the RPD gives no clear reasons
for rejecting the explanation, the rejection constitutes a reviewable error.
[3]
The second
“omission” found by the RPD relates to the Applicant’s introduction to
Christianity in the home of her teacher. In her PIF, the Applicant states that
she felt welcome in the home and was treated with “a nice cup of tea and
cookies”. However, during the course of her testimony before the RPD, the
Applicant did not mention the tea and cookies being served but did state that,
as a cultural courtesy, she was given a glass of water and was also invited to
stay for dinner. With respect to this “omission”, the RPD demanded an answer as
to why in her oral testimony she did not mention the tea and cookies. The Applicant’s
response was as follows:
Claimant: I’m not trying to evase [sic]
any detail about this. I felt that the conversation during the visit was
crucial, but in terms of treating me with meals or other cookies, it’s not,
it’s not crucial in this visit. I went to their house in the middle of the
time for lunch, so they were about to have, to have lunch, so I mean, this is,
in a polite way they asked me to stay with them, because they don’t want me to
go home with empty stomach.
(Tribunal Record, pp. 316-317).
As a result of this exchange, the RPD member states: “I
reject this explanation, as it fails to answer the question being asked”
(Decision, p. 3). Once again, I agree with Counsel for the Applicant’s argument
that the RPD’s failure to give clear reasons for rejecting the Applicant’s
statement constitutes a reviewable error.
[4]
The third
“omission” relates to the Applicant’s statement in her PIF that, on her first
visit to her teacher’s house, her teacher gave her a Bible. The Applicant
admitted that she did not recount this detail in the course of her oral
evidence at the hearing before the RPD, and gave the following statement as an
explanation:
Presiding Member:
[…]
Okay, why did you fail to mention about
this Bible, and if you were given a Bible, why did you not have more knowledge
when your counsel asked you?
Claimant: First I’d like to confess that
I had omitted the part that she gave me a Bible before I left her home.
Secondly, I also confess that I, to be honest, I don’t like reading material.
So the Bible I got from her, basically used during the service when there are a
paragraph of Bible to be read or to refer, that’s the time I would open the
Bible. So basically I seldom read the Bible, because –basically, during the
time in China, I learned very little about Christianity, and it was because I
don’t like reading, and the, the only time I learned more about Christianity is
after I came to Canada. And I enjoy going to church and I attend the Sunday
school and that’s the time I learned more about the Bible.
(Tribunal Record, pp. 317 - 318)
With
respect to this explanation, the RPD made the following comment:
The claimant therefore admitted to
omitting that she received a Bible during her first visit to her teacher’s
house, although she had provided an extremely detailed answer about that first
visit and thus should have indicated she had received the Bible.
[Emphasis added]
(Decision, p. 3)
As the RPD failed to give any reason for a conclusion just
quoted, I find that the conclusion constitutes a reviewable error.
[5]
A finding
of inconsistent evidence is also used to ground the global negative credibility
finding at the heart of the present challenge. During the hearing before the
RPD, the Applicant testified that her teacher started telling her stories from
the Bible after she started to attend the underground church. In this
respect, the RPD pointed out to the Applicant that “upon reading the narrative
portion of her personal information form it indicates that her teacher told her
stories prior to her first attendance at the underground Christian
church” (Decision, p. 3-4). In response to the identified apparent
contradiction, upon questioning by the RPD, the Applicant gave an explanation:
The
claimant was then asked if she had not bothered to read The Bible and knew the
consequences if caught by Chinese authorities, why take such a risk. The
claimant indicated that she believed in God and wanted to have eternal life and
that she was lazy and did not want to read, but that her teacher told her
stories from The Bible.
Presiding
Member: Okay. My question is, when did your teacher tell you more about the
stories in the bible? I’m looking for a date.
Claimant:
I can’t give, I cannot give you a specific date when she tell stories to me,
because it’s not one occasion, in several occasions that she will tell me and
my friend Meijing about a story in the Bible. And one particular story I
remember very deeply was the story of the lost sheep, in the story of the lost
sheep in the Gospel of Lute [sic].
Presiding
Member: Okay. Now, did she tell you the stories of the Bible between your
first visit to the, to her home and your first visit to the underground church?
Claimant:
I would say that the story was told to me and Meijing after I have started to
attending the church, on Sundays in her house, in my teacher’s house.
Presiding
Member: Okay. Well, I’m just reading your, your narrative, madam. Paragraph
6 talks about your first visit to your teacher’s house. And paragraph 7 says,
in the following visits afterwards, your teacher began to spread the Gospel to
you by telling you stories from the Bible. And then the next paragraph,
paragraph 8, says one day in July 2005 your teacher revealed to you that she
was as member of an underground church, and asked you whether or not you were
interested in joining them.
Reading
these, excuse me, I’m sorry – reading these paragraphs, it would appear to me
that your teacher talked to you about the stories in the Bible prior, at least
some time, at least some of the stories, prior to you ever going to the
church. Is that, is that correct?
Claimant:
Yes.
Presiding
Member: Okay. Well, if that’s the case, when your counsel asked you, you
know, what knowledge of Christianity you had learned between your first visit
to your teacher’s house and your first visit to the underground church, why
couldn’t you recall any of the stories that your teacher told you?
Claimant:
Before I attend the church for the first time, my teacher had spread Gospel to
me, and she gave me the Bible to read. As I said, since I rarely read the
Bible, so when she told me the story from the Bible, at that time I am not
aware of those stories came from the Bible.
Presiding
Member: Where did you think they came from?
Claimant:
Before I actually attending the service, I heard the stories she told me. I’m
not aware the stories were from the Bible and I just treat it as a story. I
never pay attention to think about where the story came from.
Presiding
Member: Madam, you say you didn’t want to read because you don’t like
reading. You say you didn’t pay attention to where the stories came from. If
this is the case, why are you, why did you even bother going to the underground
church? You don’t seem to be very – you don’t seem to be that interested, if
you’re not paying attention to where they came from, or reading the Bible.
Claimant:
I will again draw your attention to the, to the phrase that I have said before,
that belief on God, I can have eternal life, and belief on God is the most
important event of my life.
(Tribunal
Record, pp. 319-321).
With respect to this explanation, the RPD stated “I reject
this explanation, as it fails to answer the question being asked” (Decision, p.
4). I agree with Counsel for the Applicant that, not only did the Applicant
answer the question in detail, but the RPD, yet again, failed to give any clear
reasons for rejecting the explanation. As a result, I find that the RPD’s
rejection of the Applicant’s explanation constitutes a reviewable error.
[6]
It is
obvious that, in the rendering of the reasons quoted, the RPD gave absolutely
no weight to the fact that, at the time the events occurred, the Applicant was mere
youth, and at the time the Applicant testified, she was a young person. On the
face of the record, the depth and breath of the explanations the Applicant gave
should have given the RPD pause for making strong and unsubstantiated negative
credibility findings. While the RPD states in its decision that “I have taken
in into account the Chairperson’s Guidelines on Child Refugee Claimants”,
there is no evidence of any accommodation shown to this youthful Applicant.
[7]
I have no
hesitation in finding that the decision under review was rendered in manifest
reviewable error.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back to a differently constituted
panel for re-determination.
There is no question to certify.
“Douglas
R. Campbell”
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