Date:
20131108
Docket:
IMM-5470-12
Citation:
2013 FC 1129
Toronto, Ontario,
November 8, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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BING LIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Applicant, a citizen of China, claims refugee protection in Canada as a
Christian because of subjective and objective fear that should he be required
to return to his home in Fujian Province he will suffer more than a mere
possibility of persecution under s. 96 of the IRPA, or probable risk
under s. 97. The present Application is a challenge of the Refugee Protection
Division’s (RPD) decision of May 16, 2012 in which his claim was rejected.
[2]
In
the decision the RPD provided the following summary of the events the Applicant
relied upon in making his claim:
The claimant joined an
underground church on December 25, 2008 and was baptized on June 28, 2009.
Because the claimant felt that he was slower than others in academics, he was
left out for years and had no confidence in himself. Since his neighbour
introduced him to Christianity, the claimant was able to resist the urge to
fight his classmates because of the abuse. The claimant attended the church
regularly, read the Bible often, and spread the gospel to trusted friends. The
claimant joined the underground church and was well aware of the risks. On
September 20, 2009, the church was raided by the Public: Security Bureau (PSB),
and the claimant escaped through the backdoor, On September 21, 2009, the
claimant’s father told him that one organizer and a church member had been caught
when the church was raided. On September 22, 2009, the PSB went to the
claimant’s home and ordered his immediate surrender to cooperate with the interrogation.
The PSB continued to visit the claimant’s home, and as a result the claimant
left China with the help of a smuggler, The PSB continues to visit the
claimant’s home and want to arrest him.
(Decision, para. 3)
[3]
In
summary the RPD made the following key findings regarding the Applicant being a
Christian in China and a Christian in Canada:
The claimant gave a description
of some of the occurrence was [sic] in his underground church in China. The
panel finds, on a balance of probabilities, that the claimant did attend an
underground church in Fijian.
The claimant responded positively
to most questions regarding the Bible, the pastor's homily the previous Sunday,
giving a testimonial, and other issues regarding Christianity. The panel
believes, on a balance of probabilities, that the claimant is a practicing
Christian in Canada.
(Decision, paras. 11 and 12)
[4]
Nevertheless,
RPD did not accept the Applicant’s evidence of the raid on his underground
church having taken place, the subsequent PSB’s activities, and the manner in
which he left China for Canada. In addition, in any event, the RPD found that
the Applicant would not be at risk should he return to his home in Fujian since
“with specific reference to Fujian, there is no evidence to persuade the panel
that officials are interested in persecuting underground Protestant Christians”
(Decision, para. 27).
[5]
Two
features of the RPD’s decision require careful evaluation. First, the RPD’s
negative credibility findings are of critical importance in the present Application
because, if the Applicant’s evidence of the church raid was believed by the RPD,
there would be evidence capable of supporting an argument that, since he
suffered persecution as a Christian in Fujian, there is more than a mere
possibility that he would suffer persecution as a Christian should he return. And
second, the RPD’s statement that there is no evidence upon which to find
prospective risk of return is important because it is based on an absence of
evidence of PSB activities against Christians in Fujian, not the existence of
evidence that the PSB is not engaging in activities against Christians in Fujian.
I. The
Negative Credibility Findings
[6]
With
respect to the decision presently under review, it is necessary to repeat the
established law with respect to the making of a negative credibility finding as
I have stated in Istvan Vodics v Minister of Citizenship and Immigration,
2005 FC 783:
[10] With respect to making
negative credibility findings in general, and implausibility findings in
particular, Justice Muldoon in Valtchev v. Canada (Minister of Citizenship
& Immigration) (Fed. T.D.), states the standard to be followed:
6. The tribunal
adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C. 302
(C.A.) at 305, that when a refugee claimant swears to the truth of certain
allegations, a presumption is created that those allegations are true unless
there are reasons to doubt their truthfulness. But the tribunal does not apply
the Maldonado principle to this applicant, and repeatedly disregards his
testimony, holding that much of it appears to it to be implausible.
Additionally, the tribunal often substitutes its own version of events without
evidence to support its conclusions.
7. A tribunal may make
adverse findings of credibility based on the implausibility of an applicant's
story provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must
be careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu. [see L. Waldman, Immigration Law
and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[Emphasis added]
[11] It is not difficult to
understand that, to be fair to a person who swears to tell the truth, concrete
reasons supported by cogent evidence must exist before the person is
disbelieved. Let us be clear. To say that someone is not credible is to say
that they are lying. Therefore, to be fair, a decision-maker must be able to
articulate why he or she is suspicious of the sworn testimony, and, unless this
can be done, suspicion cannot be applied in reaching a conclusion. The benefit
of any unsupported doubt must go to the person giving the evidence.
[12] [With respect to the
provision of clear reasons] [t]he Federal Court of Appeal impresses a
decision-making duty on the CRDD in Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199 (Fed.
C.A.) at paragraph 6 as follows:
In my view, the board
was under a duty to give its reasons for casting doubt upon the appellant's
credibility in clear and unmistakable terms. The board's credibility assessment,
quoted supra, is defective because it is couched in vague and general terms.
In addition, as expressed in Leung
v. Canada (Minister of Employment & Immigration) (1994), 81 F.T.R. 303
(Fed. T.D.) at paragraph 14, the duty to be clear is linked to a requirement to
state the evidence:
The Board is under a
very clear duty to justify its credibility finding with specific and clear
reference to the evidence.
[Emphasis added]
[7]
Two
passages from the RPD’s decision are particularly important to consider on the
issue of the Applicant’s credibility.
[8]
With
respect to the Applicant’s evidence with respect to the events which followed
the raid, the RPD made these findings:
The claimant testified that when
the PSB first went his house on September 27, 2009 [sic], they demanded to know
the whereabouts of the claimant and told his parents that they wanted to arrest
him. The panel questioned the claimant on the use of the word arrest, and asked
if they really wanted him to appear. The claimant insisted that the PSB wanted
to arrest him. The panel draws a negative inference. This testimony
is contrary to the documentation available to the panel. The documentary
evidence'' states that there are two types of summonses in China including:
Zuanhuan summons which is considered a non-coercive measure and is used when no
arrest or detention of suspects is contemplated or necessary or when
cooperation is expected or flight is not likely; and, Juzhuan summons which is
translated as an Arrest-Summon (for interrogation) summons. This summons is
considered a coercive measure and is used when voluntary compliance is not
appropriate or when the Zuanhuan summons has failed. The same documentation
states that approval for an arrest summons (Juzhuan) can only be obtained with
the approval of the county level and above public security organs upon the
presentation all of an "Application for arrest summons." This
application will state clearly and support with credible evidence that a crime
has been committed, the person to be arrested-summoned for interrogation is
connected to the crime, and the suspect is not likely to appear voluntarily, or
that of a summons for interrogation has been executed with no success. It is
not plausible or credible that the PSB would consider arresting the claimant or
issuing an arrest warrant two days after the alleged raid, on September 20,
2009. Counsel, in her submissions, quoted the same documentation stating that
"PSB [Public Security Bureau] has yet to arrive as a rule of law
institution." The panel, taking this submission into consideration, still
finds that the PSB wanting to arrest the person two days after the alleged raid
not probable, or possible, given the supporting documentation quoted. The
investigation of a criminal offence in the application for such a document
would reasonably have taken considerably longer. The panel draws a negative
inference from the claimant's testimony.
[Emphasis added]
(Decision, para. 7)
[9]
The
Applicant swears to the fact that his parents told him that the PSB went to his
family home to arrest him two days after the raid. The RPD found that the
Applicant was not telling the truth on the basis of a two-part implausibility
finding: it is implausible that an arrest would be conducted without a Juzhuan
summons having been issued, and since a Juzhuan summons requires “county level”
approval, it is implausible that approval would be given in “two days”. I find
that the negative credibility finding is erroneous for two reasons. There is no
evidence on the record to support the conclusion that the PSB would only use a
“summons” process in its investigation of the Applicant’s conduct. The RPD
failed to consider that, consistent with the Applicant’s evidence, it might
very well be that the PSB were acting in “hot pursuit” to arrest the Applicant.
And, in any event, I find that it was sheer speculation on the part of the RPD
to conclude on how long it would take for a summons to issue in the Applicant’s
home location in 2009.
[10]
With
respect to the Applicant’s evidence with respect to his recollection of the
events of the raid, the RPD made these findings:
The claimant testified that there
were 21 members of the underground church during the day of the raid. A phone
call came to the organizer from a lookout, according to testimony, and all 21
people left by the backdoor. The claimant's description of escaping from the
PSB was scripted and limited. He testified that two people left in front of
him. He stated that he was nervous, closed his Bible, ran out the backdoor with
two members in front of him, went through an orchard and two srnall fields,
went to a road, hired a rental car, and went to his uncle's place. The claimant
testified, when prompted by the panel, that that was all he remembered. The
panel prompted by asking if there was any confusion with 21 people attempting
to leave by the same door. The claimant testified that a chair fell over. The
panel prompted again, asking if there is any yelling or screaming. The claimant
stated that to avoid the attention of the PSB there was no screaming or
yelling. The claimant could not remember anything else from the occurrence of
the raid. The panel draws a negative inference. It is not possible in such
an egregious situation, as being raided and chased by the PSB, that the
claimant would not have had more remembrances. The only indication of any
emotional impact was that the claimant testified he was nervous. This testimony
is not reasonable. One would expect a large gamut of emotions in such a
circumstance, and some remembrance of issues when 21 people were attempting to
exit by the same door, and escaping. The panel finds, on a balance of
probabilities, that there was no raid by the PSB in the claimant's underground
church as stated in his documentation in [sic] testimony.
(Decision, para. 9)
[11]
In
sworn evidence the Applicant provided his recollection of the events of the
raid. The RPD’s statements about what might be expected of the Applicant’s
memory is just a statement of the RPD Member’s personal subjective opinion.
Without substantiation to establish its verifiability, I find that the opinion
is speculative and, as such, it should not have been applied in reaching a
conclusion on the Applicant’s claim.
[12]
For
these reasons I find that the RPD conclusion that “there was no raid by the PSB
in the claimant’s underground church” is unsupported by the evidence and
constitutes a reviewable error.
II. Risk
to Christians in Fujian
[13]
Key
elements of the RPD decision on this issue are as follows:
The panel considered the
treatment of underground church members in Fujian province, including the
documentary evidence provided by counsel as well as her submissions. There is
extremely limited information suggesting that religious persecution of
underground Protestant Christians is occurring in the claimant's home province
of Fujian, since 2006. With respect to the situation of religious persecution
within the claimant's province of Fujian, there is no persuasive information
suggesting that religious persecution is occurring for groups that are as small
as the claimants.
[…]
The panel considered comments
from Mr. Bob Fu, the President of the China Aid Association (CAA), regarding
the situation in Guangdong and Fujian provinces. He states that east coast
provinces are generally more open with fewer incidents involving Christians
reported to CAA. Mr. Fu notes that this does not mean there were fewer
incidents, but rather they were not reported. This position is repeated in a
letter from Mr. Fu which he states that: "With specific reference to the
provinces of Fujian and Guangdong, it is absolutely incorrect to find that
there is religious freedom in these provinces. The persecution may come and go
and not be totally predictable, but it is always present.
The panel acknowledges that the number of persecution
incidents is likely to be much higher because of censorship in communications and
the panel considered the possibility that not all information is available to
commentators. The panel concludes
that, since there is a significant amount of information detailing very
specific examples from areas of China much more remote and difficult to access
than Fujian, it is reasonable for the panel to expect to see persuasive
evidence that groups such as the claimant's, which are small and not required
to register, are being raided and individuals being jailed in Fujian province.
For example, the National Documentation Package for China quotes many specific
incidents of persecution against human rights activists, journalists,
unregistered religious figures, bloggers, political prisoners and their
families, etc. from throughout China are well documented in the National
Documentation Package" (US Department of State Report, UK Home Office
Report, and China Aid Association Annual Report, etc.).
[…]
Given the documentary evidence of
citing one instance of persecution of an underground Christian in Fujian in
2006, and the incident mentioned above; given that authorities have the legal
framework and resources to persecute underground Protestants if they wish; and
given that information on the persecution of Chinese people who are considered
in opposition to the government is widely cited in the Documentary Package, the
panel finds that, on a balance of probabilities, if there were recent
arrests or incidents of persecution of underground Protestant Christians in
Fujian province there would be some documentation of these incidents of
persecution by reliable sources. In the absence of the documentation
when it would be reasonable to expect some form documentation to exist, the
panel finds that it is not persuaded that local authorities in Fujian are
interested in persecuting underground Protestant Christians.
[Emphasis added] [Footnotes
omitted]
(Decision, paras. 22, 25-26, 28)
[14]
In
my opinion, what the RPD Member found to be reasonable from the absence of
evidence is highly speculative. The opinion evidence of Dr. Fu is not
speculative; it is opinion evidence that required careful consideration. While
the Member cites the opinion it is clear that it was not placed on the scales
and weighed against the speculation to reach a prospective finding on whether
there is more than a mere possibility that the Applicant would be persecuted if
he is required to return to Fujian. In this respect I find that the RPD’s
decision is made in reviewable error.
ORDER
THIS
COURT ORDERS that for the reasons provided, the decision
under review is set aside and the matter is referred back for redetermination
by a differently constituted panel.
There is no question to
certify.
“Douglas
R. Campbell”
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