Date:
20130524
Docket:
IMM-8046-12
Citation:
2013 FC 539
Toronto, Ontario,
May 24, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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WEN HAO WEI
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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 Tianjin Province he will suffer more than a mere
possibility of persecution under s. 96 of the IRPA, or probable risk
under s. 97.
[2]
While
the Refugee Protection Division (RPD) found that the Applicant is a Christian,
and wide-scale persecution of Christians exits in China, the Applicant’s claim
of prospective risk was rejected on the basis of the following factual finding
with respect to objective fear of risk upon return:
I have considered all of the
documents submitted about the situation for Christians in China, specifically
the articles and reports documenting arrests and persecution, I find, on a
balance of probabilities, that if there were recent arrests or incidents of
persecution of Christians in Tianjin, there would be some documentation of
these arrests or incidents of persecution by reliable sources.
(Decision, para. 9)
[3]
The
import that the RPD gave to the factual finding is that, since there is no
evidence in the documentation of recent arrests or incidents, there have been
no recent arrests or incidents. However, the finding is inconveniently in
direct conflict with the Applicant’s evidence that the event which caused him
to flee China and claim protection in Canada was the Public Security Bureau’s
raid on the church gathering he attended on January 10, 2010. The RPD dealt
with this evidence in the following manner:
The panel has carefully reviewed
the documentary evidence and finds, on a balance of probabilities, that the
house church the claimant attended was never raided by the authorities and
consequently, the claimant is not wanted by the PSB for that reason. In
assessing the documentary evidence, the panel has been guided by the Federal
Court decisions in Yu, and Li. As has been discussed, the
supporting documentary evidence for the claimant’s home area of Tianjin
indicates that the risk of persecution for practicing Christians is low.
[Emphasis added]
(Decision, para. 14)
Thus, the RPD found that the
Applicant was lying about the event that brought him to Canada because it is in
conflict with the factual finding. In my opinion, this reasoning is
fundamentally flawed.
[4]
The
Applicant’s evidence is presumed to be true unless there are reasons to doubt
its truthfulness (Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.), p. 305)
and the quality of the decision-making in reaching a credibility finding must
be high:
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 (Hilo v.
Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d)
199 (C.A.), para. 6).
[Emphasis added]
[5]
In
my opinion, the factual finding is speculative: there is no direct evidence on
the record to establish and verify its truth. Rather than use a speculation to
discredit the Applicant, the RPD was required to apply a proper analysis of the
evidence according to the standards stated in Maldonado and Hilo.
The reason this was important to accomplish is succinctly stated by Justice
Russell in Lin v. Canada (Minister of Citizenship & Immigration),
2012 FC 157 at paragraph 59:
The Applicant’s narrative of
arrest and detention was highly material to his claim for protection. If it is
believable, then it brings into doubt the RPD’s analysis that there is no
evidence of the arrest and persecution of Christians in Fujian to support a
positive determination under section 96. Alternatively, it could show a forward
looking risk of harm under section 97.
[6]
I
find that the RPD’s failure to determine the Applicant’s credibility according
to law renders the decision unreasonable.
ORDER
THIS
COURT ORDERS that 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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