Date:
20130326
Docket:
IMM-5888-12
Citation:
2013 FC 311
Ottawa, Ontario,
March 26, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JIN XIANG CHEN
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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
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks to set aside a decision of the Refugee Protection Division of
the Immigration and Refugee Board of Canada (the Board) which found that he is neither
Convention (United Nations’ Convention Relating to the Status of
Refugees, [1969] Can TS No 6) refugee under section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) nor a person in
need of protection under section 97 of the IRPA. For
the reasons that follow this application is granted.
[2]
The
applicant is a citizen of China from Fujian province. He alleges persecution
on the basis of his membership to an underground Catholic church. The
applicant gave evidence that he was introduced to Christianity by a friend in
2009 and attended a house church every week until it was raided by the Public
Security Bureau (PSB) on January 17, 2010. He says that he fled and learned
that the PSB had gone to his home and interrogated his family.
[3]
The
applicant made arrangements to come to Canada and arrived on February 2, 2010.
He made a refugee claim three days later. Since then, he claims to have
learned from his wife that three members of his church were sentenced to prison
terms and that the PSB continues to look for him.
Decision Under Review
[4]
The
Board determined that the applicant was not credible and therefore dismissed
his claim for protection.
[5]
The
Board considered his testimony to be contrary to the country condition evidence
and therefore concluded that the alleged raid did not occur.
[6]
The
documentary evidence states that the Catholic Church has a strong presence in Fujian province but that there has been sporadic persecution of underground churches. The Board
noted that generally it is priests and bishops who are persecuted and that
there is extremely limited evidence of parishioners being persecuted.
[7]
The
Board considered the summons that the applicant stated was served on his family
by the PSB. The Board determined that if a summons were issued it would have
been an arrest summons; the zuzhuan, rather than the less coercive summons; the
zuanhuan. The Board also examined the applicant’s summons and noted various
deficiencies including the lack of dates, no signature, apparent writing over
the seal and reference to the wrong article of the criminal code.
[8]
The
applicant also tendered a prison visiting card said to have been issued to the
wife of a parishioner who had been imprisoned. The Board rejected this
evidence in light of its conclusion that the raid did not occur and the proliferation
of fraudulent documents in China. The Board found that the tending of an
additional fraudulent document further undermined the applicant’s credibility.
[9]
The
Board then considered the genuineness of the applicant’s religious practice in Canada. The applicant produced a letter from a priest in Canada stating that he had joined
a Chinese Catholic church and had been baptized. Additionally, the applicant
correctly answered a number of detailed questions about Catholicism. The Board
noted however, that he had taken a Christian study course in Canada and determined that his attendance at a church in Canada was merely to support his refugee
claim.
[10]
Finally,
the Board concluded that the applicant could freely practice Catholicism in China. There was “mixed information” regarding the treatment of Christians in Fujian province and some sources showed a high degree of tolerance. Another source stated
the Fujian province was one of “the worst” for persecution of unofficial
Catholic churches. The Board preferred the former evidence because the latter
did not show details or examples. There was “extremely limited evidence of
state authorities taking action against parishioners in Fujian province.”
Issue
[11]
The
sole issue for this judicial review is whether the Board reasonably decided
that the applicant is not a Convention refugee nor a person in need of
protection: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[12]
In
my view there are five substantive flaws in the decision.
[13]
First,
the Board disbelieved the applicant’s testimony as it was not supported by the
country condition evidence. The country condition evidence is contextual and
serves as an important backdrop within which the applicant’s evidence is
situated, but it is not determinative of an individual claim. Here, the
documentary evidence is conflicted and imprecise. It does not dictate a
conclusion that the applicant’s story is necessarily implausible.
[14]
Much
of the documentary evidence speaks generally of arrests, fines and other
controls, without specifically referencing any province. The evidence stated
that information regarding Fujian province specifically was “scarce”.
[15]
The
Board found no inconsistencies or contradictions in the applicant’s testimony.
Moreover, the Board did not find that he was evasive or that his demeanour
indicated a lack of credibility. The Board simply had a pre-determined view of
the situation of Catholics in Fujian and rejected the claim because it was
inconsistent with that view.
[16]
Second,
the Board unreasonably dismissed the applicant’s summons. The Board compared
the summons to a sample arrest summons even though the applicant provided a
notice of summons. These are two distinct documents which, among other things,
reference different articles of the criminal procedure law.
[17]
The
Board reasoned that an arrest summons would have been issued because of the
applicant’s testimony that the PSB were intent on arresting him and because
they had come to his home many times searching for him. This is speculative.
The documentary evidence indicates that policing standards are highly
inconsistent. It is plausible that the applicant could have been issued a
notice of summons in these circumstances.
[18]
It
is open to the Board to doubt the authenticity of the summons. However, the Board
must at least acknowledge that the document did not purport to be an arrest
summons and therefore would not follow the arrest summons form even if
authentic. Moreover, the comparator arrest summons is only a sample and is now,
as a 2004 version, quite dated. An authentic summons from 2010 may well appear
different: Lin v Canada (Minister of Citizenship and Immigration), 2012
FC 288, paras 52-53.
[19]
Third,
the Board failed to fairly consider the prison visiting card, stating that “…on
the basis of having found that the raid of the claimant’s house did not occur,
the panel finds that the Prison ‘Visiting Card’ in relation to the claimant’s
introducer is not a genuine document.”
[20]
It
is impermissible to reach a conclusion on the claim based on certain evidence
and dismiss the remaining evidence as inconsistent with that conclusion.
Before concluding that the raid did not occur the Board must consider whether
the prison visiting card substantiated it. The reasoning has been inverted.
This error in methodology or in assessing the evidence was best described by
the British Columbia Court of Appeal in Faryna v Chorny, [1952] 2 DLR
354:
The credibility of interested
witnesses, particularly in cases of conflict of evidence, cannot be gauged
solely by the test of whether the personal demeanour of the particular witness
carried conviction of the truth. The test must reasonably subject his story to
an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions. […] Again a witness may
testify what he sincerely believes to be true, but he may be quite honestly
mistaken. For a trial Judge to say "I believe him because I judge him to
be telling the truth", is to come to a conclusion on consideration of only
half the problem. In truth it may easily be self-direction of a dangerous kind.
[21]
The
Board identified no basis for concluding that the visiting card was fraudulent,
other than its inconsistency with the conclusion already reached on
credibility.
[22]
Fourth,
the Board summarily rejected the applicant’s detailed knowledge of Catholicism,
his certificate of baptism and the letter from his Canadian priest. It is
questionable whether any evidence could have convinced the Board that the
applicant was sincere in his religious belief. Once again, the error lies in
putting the conclusion before the evidence. Further, the applicant’s responses
to the questions supported the opposite conclusion. He answered, in the main,
all questions, some of which required a thorough understanding of Christianity.
[23]
Fifth,
it was unreasonable for the Board to find that the applicant could practice his
religion freely in China should he be a genuine Catholic. The Board’s analysis
on this point was tainted by the earlier errors, in particular its dismissal of
the applicant’s testimony regarding the conditions in Fujian province. In many
cases, an objective finding on the existence of or tolerance for religious
freedoms in the country from which the claimant is fleeing would be determinative,
rendering the issue of the claimant’s particular credibility irrelevant. Here,
however, the evidence of religious tolerance in Fujian province was not so
overwhelming as to negate the requirement of considering, had the applicant’s
credibility been correctly assessed, how he would be treated upon return.
[24]
Overall,
it is evident that the Board decided the merits of the claim based on the
documentary evidence alone. Having formed a conclusion based on that evidence
the Board dismissed the applicant’s testimony and supporting documents as
inconsistent with that view. This treatment of the evidence is not consistent
with the appropriate methodology. A decision to reject certain aspects of the
evidence does not constitute, absent a negative credibility finding, carte
blanche to reject all of the remaining evidence. Each aspect of the
evidence must be assessed on its own merits.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. There is no question for certification.
"Donald J.
Rennie"
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