Date: 20081015
Docket: IMM-1027-08
Citation: 2008 FC 1168
Ottawa, Ontario, October 15,
2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
FANG
CHEN
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 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the
Refugee Protection Division (RPD), dated February 11, 2008, where the Board
determined that the Applicant was not a Convention Refugee or a person in need
of protection.
BACKGROUND
[2]
The
Applicant is a 27 year old citizen of the Republic of China, who claims
persecution by the Public Security Bureau (PSB) due to his membership in an
underground Christian church.
[3]
The
Applicant claims to have joined the church on September 28, 2003 and attended
weekly meetings in the homes of other members until he came to Canada on a student
visa on January 4, 2004. He enrolled at George Brown College in Toronto, to study
English as a second language (ESL). He followed courses from January 4 to
August 13, 2004, passing the third level course but not the fourth level
despite registering three times.
[4]
He
returned to China in August,
2004 because of the failing health of his grandfather. He left China after the
death of the latter in October, 2004. Upon his return to Canada, he
attempted to register at the same college in October, but he was told the classes
were full. He applied for refugee status on November 8, 2004.
[5]
In
summary, he successfully passed only one course (with a C-) in English during
his stay in Canada. The
Applicant claims that on October 24, 2004, his mother told him that three
members of the underground church had been arrested in China and that members
of the PBS were searching for him.
[6]
By
decision of May 8, 2006, the Applicant’s claim was rejected but a judicial
review of that decision was allowed on March 8, 2007. Justice Robert Barnes of
this Court found that the claim should be re-determined because the credibility
findings were deficient.
THE DECISION OF FEBRUARY
11, 2008
[7]
Both
RPD panel members came to the conclusion that the Applicant had not established
satisfactory evidence that he was a member of an underground church because he
could not describe a typical religious service with sufficient accuracy.
Specific points of concern included: that he stated that the organizer read the
Lord’s Prayer rather than reciting it; that he failed to mention, until
directly asked, that the Bible was read in church; that he declared that the
Bible stated that only pastors are allowed to give the Benediction; and that he
stated that marriage was not a sacrament (line 46, T.R. p. 242).
[8]
The
RPD Member Diane Tinker, in her decision of February 11, 2008 also found that
the Applicant had not been a bona fide student in that while in Canada; he successfully
completed only one English course. She drew a negative inference from the fact
that the refugee claim was only made in November, 2004, i.e. after his student
status had expired.
THE ISSUE
- Did the RPD Member
err in the assessment of the Applicant’s credibility and bona fide
status?
The applicable Standard
of Review
[9]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, has established two standards of judicial review,
correctness and reasonableness.
[10]
The
standard of correctness applies to questions of law, of procedural fairness and
natural justice, while the standard of reasonableness applies to assessments of
facts or mixed facts and law.
[11]
When
the issue involves matters of facts or law applied to facts, a judicial review
is not to be granted if the decision falls within the range of acceptable
assessments of the facts.
[12]
The
instant case involves solely a determination of facts; therefore the standard
of reasonableness applies. The panel’s findings on the facts are essentially a
credibility finding and, as such, should be given significant deference,
especially since the Applicant had the opportunity to explain his claim at an
oral hearing.
[13]
The
alleged error in failing to consider the Applicant’s identity as a Christian in
Canada is subject to the standard of reasonableness and should only be
disturbed if the facts were misapprehended or interpreted outside the range of
acceptable outcomes (Vilmond v. Canada (Minister of Citizenship and Immigration)
2008 FC 926 at para. 13).
ALLEGED ERRORS
Description of church
services
[14]
The
Applicant alleges that the Panel member misrepresented or ignored evidence as
to the description of church services by him, especially the words “read” and
“recite” and the translator’s explanation about these words. He relies upon Huang
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 346, to state that the Member’s
expectations of the Applicant’s doctrinal knowledge and description were
unreasonably high. He also alleges that a microscopic examination of the evidence
was undertaken.
[15]
The
Respondent counters that the Member’s credibility findings resulted from the
implausible testimony which casts doubt on the Applicant’s entire story. The
translator’s explanation did not improve or rehabilitate the Applicant’s
credibility.
[16]
The
Respondent distinguishes the Huang case because the Applicant in that
case was from a rural area in China and had only a grade seven education. In
this case, the Applicant has secondary schooling and twelve years of formal
education.
ANALYSIS
[17]
In
my view, the alleged errors in the Panel member’s credibility findings do not
exist. Furthermore, seeing that deference should be granted to the Member, I
believe that the findings fall within the acceptable outcomes available from
the established facts. Besides the religious question, the Applicant’s
testimony is vague, and he did not answer pertinent questions adequately, such
as why he obtained a passport in 1999 for no specific purpose and renewed this
passport in 2003, when it remained valid for one more year.
[18]
The
Huang decision is easily distinguishable because Mr. Huang had little
education and the RPD in that case was overly focused on a few points of error
or misunderstandings so as to be a microscopic examination which analysis was criticized
in Attakora v. Canada (Minister of Citizenship and Immigration) (F.C.A.),
[1989] F.C.J. No. 444.
APPLICANT’S CHRISTIAN
IDENTITY IN CANADA
[19]
The
Applicant submits that the RPD member had an obligation to assess Mr. Chen’s
identity as a Christian in Canada regardless of his findings relating to the
underground church in China, based upon Huang, above, and Li v.
Canada (Minister of Citizenship and Immigration), 2008 FC 266.
[20]
The
Respondent answers that the Member did not commit an error in her decision that
any Christian religious knowledge could have been acquired by the Applicant in Canada when he
attended church while here. The Member stated that it is not illegal in China to practice
Christianity if the church is registered.
DISCUSSION
[21]
Most
of the issues and sub-issues in this case were fully discussed in Huang
which purported to follow Chen v. Canada (Minister of
Citizenship and Immigration), 2002 F.C.T. 480. The latter case
involved a member of the Falun Gong, a sect which is not considered a religion
in China but is illegal and a well-known target of persecution in China.
[22]
Case
law clearly distinguishes the situations involving registered and unregistered
Christian churches in China and Falun Gong followers. Justice
Teitlebaum in two recent decisions had to deal with both situations. In Liao
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1043, entailed
a situation similar to the present one, of a Chinese native claming membership
in an underground Christian church, Justice Teitlebaum dismissed the application
for judicial review he found that the Board’s decision that the Applicant was
neither a Convention refugee or a person in need of protection, was well
founded upon in the evidence.
[23]
Another
case, involving a Chinese citizen, practicing Falun Gong, Justice Teitlebaum
also dismissed the application for similar reasons (Lin v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1052 and see also Jiang v. Canada (Minister of
Citizenship and Immigration), 2008 FC 775).
[24]
In
Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 1056,
Justice Campbell, on facts similar to those in the present case, granted the
application considering that the Member had reached unacceptable factual
findings relating to the knowledge of the Applicant of the tenets of the
Christian Pentecostal faith.
[25]
Every
case must turn on its particular facts. However, with all due respect to the contrary
opinion, I agree with the reasoning of Justice Teitlebaum in the above cited
cases, especially because of the rationale discussed but also all three
Applicants were of Chinese nationality and related to underground churches and
their treatment in China.
[26]
In
my view, the same arguments and reasoning apply to the RPD’s decision in the
instant case. The Member’s decision was centered on the issue of the
Applicant’s religion whether in China or in Canada and
concluded that he never was a member of an underground Christian church in China.
[27]
The
Panel member based his credibility and implausibility findings on the totality
of the evidence including the fact that the Applicant was not a bona fide
student in Canada and made an
application for refugee status only after his student status had expired.
[28]
The
Refugee division is the primary finder of fact and the Member gave many reasons
why it did not find the Applicant credible.
[29]
In
such a case, this Court should not interfere with such findings, even if I do
not agree with all inferences reached by the Member of the Refugee Board (Aguebor
v. Canada (Minister of
Citizenship and Immigration) (1993), 160 N .R. 315 (F.C.A.) and Sheikh
v. Canada (Minister of Citizenship and Immigration) (1990), 3 F.C. 238
(F.C.A.) at 244).
CONCLUSION
[30]
According
to the dicta set out in Dunsmuir, above, if the decision falls within
the acceptable range of outcomes which can be based in the evidence, a court
should not interfere. This is the situation in this case; therefore the
application must be dismissed.
JUDGMENT
WHEREFORE THIS COURT
ORDERS AND ADJUDGES that:
- The application is
dismissed;
- There is no
question to be certified.
"Orville
Frenette"
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