Docket: IMM-11449-12
Citation:
2014 FC 402
Vancouver, British Columbia, April 30, 2014
PRESENT: The
Honourable Madam Justice Strickland
|
BETWEEN:
|
|
IZAD SANAEI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of
the decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board) dated October 15, 2012, in which it concluded that the Applicant
was not a Convention refugee nor a person in need of protection pursuant to
sections 96 or 97, respectively, of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA]. This application is brought pursuant to
section 72 of the IRPA.
[2]
The Applicant, Izad Sanaei, is a citizen of Iran. At his port of entry (POE) interview and in his claim for refugee protection dated
December 25, 2010, the Applicant stated that he was a member of the Green
United Front and was being sought by the Iranian authorities because of his
participation in political activities, including demonstrations in which he
advocated for reform and democracy in Iran. He also stated that he was
attending a Christian church and was threatened due to this. Although he was
not being persecuted because of his religion, he was seeking Canada’s protection because he did not agree with Islam.
[3]
In his Personal Information Forms (PIF) dated
January 15, 2011 and January 26, 2011 and in the narrative attached to the
latter PIF, the Applicant stated that he feared persecution in Iran because of both his political and religious beliefs, as well as because of his
membership in a particular social group. He claimed that he disagreed with the
basic tenets of the Islamic religion. As a result, in April 1988, he was
physically abused and threatened with death. In December 2004, while attending
a party in Karaj, he and his wife were arrested by the Basij Militia. They were
beaten, taken to a prison, detained for two days before being released on bail,
and were later sentenced to 80 lashes and a fine of 125,000 Iranian Rials.
[4]
The Applicant also claimed that his friends were
aware that he was attending a church and reported this to the Basij Militia,
who attacked his home in April 2010, beat him and told him to stop following
Christianity or he would be killed. Before the Board, the Applicant testified
that he was not sure who made this report to the Basij Militia, but that he had
spoken to his close friends about his religion.
[5]
In his narrative, the Applicant also claimed
that he joined the Green Movement in March 2007 and that he participated
in demonstrations. In a demonstration held in 2010, he sustained injuries,
and as a result of the psychological harm he suffered, spent a week in a health
clinic. Then, after participating in demonstrations in the fall, he was
arrested by the Basij Militia and tortured for 48 hours. After this, he was
constantly threatened and was told he would be killed should he be arrested
again. After a further demonstration, he was detained, tortured and threatened.
Once in Canada, he visited a psychologist and a doctor because of psychological
issues arising from these incidents.
[6]
In an amended PIF dated December 29, 2011, the
Applicant again claimed fear of persecution on the basis of religion, political
opinion as well as membership in a particular social group. The attached
narrative, dated November 30, 2011, provided a shorter form of his previous
narrative, containing similar but not identical submissions. He maintained his
prior allegations of torture.
[7]
In an amended narrative dated August 3, 2012 and
on the day of the hearing before the Board, the Applicant resiled from his
allegations of torture and fear based on political beliefs and relied only on
his claim of religious persecution. He provided a handwritten annotated version
of the November 30, 2011 narrative which deleted various paragraphs and
sentences.
[8]
On October 15, 2012, the Board denied the
Applicant’s claim for refugee protection (Decision). This is the judicial
review of that Decision.
I.
Decision under Review
[9]
The Board found that the Applicant was not a
Convention refugee nor was he a person in need of protection. The determinative
issue was credibility.
[10]
The Board found that the Applicant was not
credible primarily because he admitted, before the hearing commenced, that the
part of his previous narrative concerning his fear based on his political
beliefs, namely being beaten in a political demonstration, detained, and wanted
for his political activities, were fabricated. The Board acknowledged the
Applicant’s explanations that the smuggler he used to gain entry into Canada
had advised him to base his claim on political grounds but that he later
decided to tell the truth because he did not want to carry the burden of a lie
and also because his pastor in Canada advised him to do so. However, the Board
found that the Applicant was an educated adult who was capable of making proper
choices in life but, instead, decided to falsify his claim.
[11]
When the Board asked the Applicant why he should
be believed given his prior “significant lie”, he responded that he was
remorseful. The Board noted that he only provided his true narrative in
August 2012, shortly before the hearing, and that he lied not only to the
government, but also to the Canadian Centre for Victims of Torture. The Board
acknowledged the Applicant’s claimed religious and moral convictions, as well
as the fact that he had come forward with what he then claimed to be the truth
without an apparent compelling reason to do so, but it did not accept his
explanations. Rather, the Board found the admission to be self-serving and
intended to bolster his claim, just as his prior claim of political persecution
had been intended.
[12]
The Board noted that while the Applicant stated
that his testimony at the hearing was true, there were inconsistencies in his
evidence. He was asked at what time the 2004 Basij Militia attack occurred
and responded that it was around 9-10 pm. The Board then referred to his January
26, 2011 PIF, in which he stated it was around 8 pm. To explain this
discrepancy, the Applicant stated that it was dark and that he simply testified
to an approximate time. The Board did not accept this explanation, noting that
while it should not be microscopic in its credibility analysis, it was entitled
to make a negative inference as to credibility, particularly because the
Applicant asserted that his testimony would be the truth, and for that reason,
the Board should put less emphasis on his prior admitted significant lie. The
Board noted other discrepancies, such as how his alleged Christianity in Iran came to the attention of the authorities. At the hearing, he testified that he did not
know how the authorities became aware of it but in his narrative he stated that
his friends had reported him to the Basij Militia. Given that the Applicant’s
testimony at the hearing was not consistent with previous allegations in his
narrative, his credibility was further diminished.
[13]
The Board also noted that there was no
documentary evidence to corroborate his claims, such as a medical report to
support the fact that he was beaten and lashed 80 times, proof of his practice
of Christianity in Iran, or proof of the alleged damage to his home. The Board
stated that it was not making negative inferences as to credibility from the
lack of corroborative evidence, but that the Applicant was unable to buttress
his claim by providing supporting evidence.
[14]
The Board concluded that the Applicant’s
evidence, overall, was not credible and was insufficient to support his claim
for refugee status.
[15]
As a result of its credibility findings, the
Board did not accept that he was a true Christian. It noted the evidence of the
pastor from a church attended by the Applicant while in Canada, who testified at the hearing. The Board found that the pastor’s endorsement was
indefinite and lukewarm as he was unable to definitively state that the
Applicant was a genuine Christian, and stated only that he was on his way to
Christianity.
[16]
The Board found that the Applicant displayed
some of the behaviour of a true Christian, such as being baptized and attending
church, but that this was outweighed by the Board’s very significant
credibility concerns, including the Applicant’s significant lie. These so
tainted the Applicant’s credibility that the Board did not accept that he was a
true Christian. Therefore, the Board concluded that there was not a
serious possibility that he would face persecution for religious reasons, face
a risk to his life or a risk of cruel and unusual treatment or punishment, or a
danger of torture upon return to Iran.
II.
Issues
[17]
In my view, the issues are as follows:
i.
Did the Board err in its credibility analysis?
ii.
Did the Board err in its sur place
assessment?
III.
Standard of Review
[18]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] held that a
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question is
well-settled by past jurisprudence, the reviewing court may adopt that standard
(Dunsmuir, above, at para 57; Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at para 18).
[19]
It is established jurisprudence that credibility
findings, described as the “the heartland of the
Board’s jurisdiction”, are essentially pure findings of fact that are
reviewable on a reasonableness standard (Zhou v Canada (Citizenship and
Immigration), 2013 FC 619 at para 26; Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (QL) (CA)).
[20]
Reasonableness is concerned with the
justification, transparency and intelligibility of the decision-making process,
but also with whether the decision falls within a range of possible, acceptable
outcomes defensible in respect of the facts and law (Dunsmuir, above, at
para 47).
[21]
An omission to consider a sur place claim
involves an error of law reviewed on a standard of correctness (Hannoon v Canada (Minister of Citizenship and Immigration), 2012 FC 448 at para 42 [Hannoon]).
However, in this case, the Board did not omit to deal with the sur place
claim. Rather, it extended its credibility finding to the entire claim.
IV.
Analysis
Issue 1: Did the Board err in its
credibility analysis?
Applicant’s
Position
[22]
The Applicant submits that the Board
unreasonably undermined the credibility of his claim of religious persecution
because he fabricated his initial narrative concerning political persecution.
The Board determined that because he had overstated the grounds for his claim
of political persecution, he was not likely a true Christian. However, the
Board had an obligation to independently consider the merits of each claim and
objectively assess the facts and evidence to determine if he has a well-founded
fear of persecution (Joseph v Canada (Minister of Citizenship and
Immigration), 2011 FC 548 at para 11 [Joseph]; Seevaratnam v
Canada (Minister of Citizenship and Immigration) (1999), 167 FTR 130; Mylvaganam
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1195
(TD)(QL)).
[23]
Where there is uncontradicted testimony and
objective documentary evidence capable of sustaining a claim for
protection, a lack of documentary evidence and minor testimonial
inconsistencies are insufficient to deny a claim (Kanesaratnasingham v
Canada (Minister of Citizenship and Immigration), 2008 FC 48 at para 8; Kathirkamu
v Canada (Minister of Citizenship and Immigration), [2003] FCJ No 592 (TD)
at para 47 (QL); Kamalanathan v Canada (Minister of Citizenship and
Immigration), [2001] FCJ No 826 (TD) at para 25 (QL)).
[24]
The Applicant submits that the Board’s credibility
finding was based in part on a microscopic examination of peripheral and
irrelevant issues (Dong v Canada (Minister of Citizenship and Immigration),
2010 FC 55; Attakora v Canada (Minister of Employment and Immigration),
(1989) 99 NR 168; Dag v Canada (Minister of Citizenship and Immigration),
2012 FC 1254; Venegas Beltran v Canada (Minister of Citizenship and
Immigration), 2011 FC 1475 at paras 4-6), such as the precise time of the
2004 attack and how his Christianity came to the attention of Iranian
authorities. These alleged inconsistencies were irrelevant to the determinative
issue of his claim, which was whether he was credible and a genuine Christian.
In addition, his testimony about how the Basij Militia learned of his
faith is consistent with this final PIF amendment dated August 3, 2012.
The Board erred by ignoring his amended PIF to make a finding of
inconsistency (Reyad Gad v Canada (Minister of Citizenship and Immigration),
2011 FC 303 [Reyad Gad]; Weng v Canada (Minister of Citizenship and
Immigration), 2011 FC 1483 at para 31 [Weng]).
[25]
The Applicant submits that the Board also found
that it was implausible that he could be a Christian and, at the same time, not
tell the truth. This is unreasonable and illogical reasoning. Adverse findings
of credibility made on implausibility require reasonable inferences (Valtchev
v Canada (Minister of Citizenship and Immigration), [2001] FCJ No 1131 (QL)
at paras 6-8 (TD); Mohacsi v Canada (Minister of Citizenship and
Immigration), 2003 FCT 429 at para 20; Okoli v Canada (Minister of
Citizenship and Immigration), 2009 FC 332 at para 30 [Okoli]; Zhang
v Canada (Minister of Citizenship and Immigration), 2012 FC 503 at para 16
[Zhang]).
[26]
The Applicant submits that the Board
unreasonably discounted his credible oral testimony in which he explained why
he exaggerated details of his political persecution claim, which he disclosed
at the hearing, namely that the smuggler advised him to make the claim but that
his pastor later told him to tell the truth. The Board also misinterpreted his
explanation as being a self-serving act, rather than an indication of his
honesty and faith as well as a mitigating factor in its credibility assessment.
The Board has a duty to consider an Applicant’s explanation for amending his
PIF and not to draw negative inferences from those made in a timely manner (Okoli,
above, at para 28; Ameir v Canada (Minister of Citizenship and Immigration),
2005 FC 876).
[27]
The Applicant submits that the Board’s reasoning
about his motivation for telling the truth, its finding that he was not a true
Christian and its dismissal of the pastor’s evidence do not meet the Dunsmuir
standard nor that of Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador, 2011 SCC 62, [2011] 3 S.C.R. 708.
[28]
In short, the Applicant submits that the Board
failed to consider the totality of the evidence, ignored credible and
trustworthy evidence, engaged in a microscopic examination of the evidence,
misapprehended the evidence, and failed to independently assess the credibility
and trustworthiness of the evidence in finding that the Applicant was not a
true Christian.
Respondent’s Position
[29]
The Respondent submits that the Board is not
required to compartmentalize its assessment of the Applicant’s credibility into
different portions of the claim as its credibility finding applies to the
entirety of the evidence (Sheikh v Canada (Minister of Employment and Immigration),
[1990] 3 FC 238 (CA)). Past lying is relevant to assessing the claimant’s
credibility as a whole (Ren v Canada (Minister of Citizenship and
Immigration), 2009 FC 973 at paras 15-16 [Ren]; Lawal v
Canada (Minister of Citizenship and Immigration), 2010 FC 558 at para 24; Sandhu
v Canada (Minister of Citizenship and Immigration), 2005 FC 370 at para 4; Chandra
v Canada (Minister of Citizenship and Immigration), 2012 FC 751 at para 21;
Kaur Barm v Canada (Minister of Citizenship and Immigration), 2008 FC
893 at para 21). The Board made a credibility finding based on the Applicant’s
lies and on the basis of his fear on religious grounds.
[30]
The Respondent submits that the Applicant’s
reliance on Joseph, above, does not assist him as that decision supports
the Respondent’s position that dismissing an application on grounds of
credibility can be used to discount the entirety of the Applicant’s evidence.
[31]
The Respondent submits that the Board is
permitted to compare different versions of PIF narratives to evaluate a
claimant’s credibility, even if they have been amended (Aragon v Canada (Minister of Citizenship and Immigration), 2008 FC 144 at paras
17-19 [Aragon]). While the Applicant argues that his testimony was
consistent with one version of his PIF, this does not demonstrate that the
Board’s decision is unreasonable, but actually highlights the concerns with his
claim.
[32]
The Respondent submits that the Board did not
misinterpret the Applicant’s explanation for not telling the truth, but simply
found it unsatisfactory. The Applicant is a mature, educated adult and he
repeated his lies on several occasions.
[33]
The Respondent submits that the Board’s
credibility findings were not microscopic or based on irrelevant issues.
Further, these findings must be considered in light of the entire Decision as
the Board had strong reasons to doubt the Applicant’s credibility. The Board appropriately
noted the contradictions concerning how the authorities became aware of his
religion and the time at which the alleged assault occurred.
Analysis
[34]
In my view, the Board did not err in its
credibility finding or in extending its finding to the evidence as a whole.
[35]
In Ren, above, the Board found that the
applicant lacked credibility as he had lied to Canadian officials about his
past and was trying to gain access to Canada based on a fabricated story in
order to circumvent Canadian immigration laws. Justice Mainville dismissed the
application for judicial review and stated the following about the applicant’s
lack of truthfulness:
[16] […] Refugee determinations in Canada are based on voluntary and truthful declarations from claimants. The Applicant decided
not to reveal key information to Canadian authorities since he believed this
would facilitate his access to Canada. His failures to declare his stay in the USA, his unsuccessful refugee claim there and his eventual return to China in 2005 clearly affect
his credibility, and it was entirely reasonable for the Panel to draw an
adverse inference from this.
[36]
In Rahaman v Canada (Citizenship and
Immigration), 2007 FC 1008, the applicant admitted that he obtained
documents with the help of a friend in order to bolster his refugee claim.
Justice Beaudry dismissed the application for judicial review finding that the
Board did not commit a reviewable error in choosing to extend to the
evidence as a whole, its finding that the applicant was not credible. In that
case, both the applicant’s personal credibility and the credibility of the
evidence were at issue. Not only was the documentary evidence central to the
claim found to be false, but the applicant had initially misled the Board by
denying his knowledge of a forgery.
[37]
In my view, in the circumstances of the present
case, it was entirely reasonable for the Board to find the Applicant not
to be credible. As noted by the Board and admitted by the Applicant, he
fabricated his first account at the POE to CBSA officials when giving initial
details about his refugee claim. At the POE, the Applicant stated that he was
being persecuted because of his political activities and not because of his
religion. He continued the fabrication as to his political activities and the consequences
thereof, in detail, in his signed PIF narrative and in several subsequent
amended versions of it. Moreover, not only did he falsely allege in his claim
that he had been detained and tortured as a result of his political opinion,
but in December 2010 while being detained by the Canadian immigration
authorities, he sought the assistance of a physician and a psychologist with
respect to alleged resultant psychological issues. Later, in March 2012, he
attended the Canada Centre for Victims of Torture and repeated those false
allegations in order to obtain a medical report from a psychologist to support
his claim that, as a result of the alleged abuse, he suffers from
ongoing psychiatric disorders (severe complex post-traumatic stress disorder
and severe anxiety). This displayed a continuing and deliberate intention to
mislead.
[38]
On the day of the hearing, the Applicant
admitted that he had lied in on his previous PIF. He submitted that the Board
had an obligation to consider his explanation for amending his PIF and to not
draw negative inferences from this. However, it was not the amendment of the
PIF that led the Board to draw a negative inference, but rather the
misrepresentation of the truth by the Applicant. In any event, the simple
ability to amend a PIF narrative is not responsive to the credibility concerns
that may arise from such an amendment (Aragon, above, at paras 19-20; Zeferino
v Canada (Minister of Citizenship and Immigration), 2011 FC 456 at para 31;
Taheri v Canada (Minister of Citizenship and Immigration), [2001]
FCJ No 1252 at paras 4 and 6). Here, the Board considered, but did not accept,
the Applicant’s explanation, as it was entitled to do. Even if the Board had
accepted that the Applicant’s furtherance of his Christian faith while in Canada had resulted in his desire to approach the hearing with a clean slate, it was not
compelled to find that this alone was sufficient to overcome its overall
credibility finding arising from the Applicant’s prior deception.
[39]
In my view, the Applicant’s reliance on Joseph,
above, does not assist his position in these circumstances. There, Justice
O’Reilly found that:
[11] The Board must be careful not to
dismiss a refugee claim on the basis that it disbelieves parts of the
claimant’s testimony, or evidence that does not go to the core of the
claim. Sometimes claimants embellish their stories, or they forget minor
details. It is unreasonable for the Board to dismiss claims simply because they
find evidence at the fringes not to be reliable or trustworthy. Even if the
Board finds some evidence not to be credible, it must go on to consider whether
there remains a residuum of reliable evidence to support a well-founded fear of
persecution. (See, e.g. Seevaratnam v Canada (Minister of Citizenship and
Immigration) (1999), 167 FTR 130, 88 ACW (3d) 650 (TD); Mylvaganam v
Canada (Minister of Citizenship and Immigration) (2000), 98 ACWS (3d) 1089,
[2000] FCJ No 1195 (FCTD) (QL); Kanesaratnasingham v Canada (Minister of
Citizenship and Immigration), 2008 FC 48).
[12] On the other hand, sometimes the
Board’s concerns about the credibility or trustworthiness of the claimant’s
evidence causes it to doubt the very essence of the claim. In those
circumstances, the Board need not look to general country condition evidence to
determine whether the claim was well-founded: Mathews v Canada (Minister of Citizenship and Immigration), 2003 FC 1387 (CanLII), 2003 FC 1387
at para 7-8. That was the case here. The question, then, is whether the Board
had a reasonable basis for its concerns about the evidence presented by Ms.
Joseph.
[40]
Similarly, for the reasons set out above, the
Board identified a very serious concern with the Applicant’s credibility as a
result of his admittedly fabricated evidence and related actions. The Applicant
also lacked documentation to support his allegations of mistreatment arising
from his interest in the Christian faith. The Board clearly doubted his
credibility in whole, which affected all aspects of his claim. It was
entitled to draw an adverse inference from the lack of documentary
evidence given its credibility findings (Sinnathamby v Canada (Minister of Citizenship and Immigration), 2001 FCT 473 at para 24).
[41]
The Board also found the Applicant’s evidence as
to how the authorities became aware of his religion to be inconsistent.
The Applicant testified that he did not know how the authorities became aware
of his religion but that he had spoken to his close friends about it. In his
PIF, he stated that his friends reported him to the Basij Militia. The
Board found that this further demonstrated that the Applicant was not credible.
Viewed in isolation, this, as well as the precise time of the Basij Militia
attacks, might be considered to be minor inconsistencies. However, viewed in
the context of the evidence as a whole, the Board did not unreasonably consider
these as a part of its credibility assessment. Further, these matters were not
the main focus of the Board’s credibility finding.
[42]
In my view, the Board had a reasonable basis for
its credibility finding and did not commit a reviewable error in arriving at
its conclusion that the Applicant was not credible.
Issue 2: Did the Board err in its sur
place assessment?
Applicant’s Position
[43]
The Applicant submits that the Board did not
consider the consequences of his activities in Canada, as an active church
member, upon his return to Iran. There was no assessment of how Christians, and
more specifically, Muslim converts to Christianity (apostates), are treated in Iran which is a reviewable error. Even if his motives for conversion are not genuine, the
Board must consider consequences of return (Ejtehadian v Canada (Minister of Citizenship and Immigration), 2007 FC 158 at para 11 [Ejtehadian]).
[44]
The Applicant submits that the Board ignored
credible and trustworthy evidence that he was and still is a “true Christian”,
including his baptismal certificate, pictures of the baptism, the Applicant’s
testimony as to his faith and conversion, his pastor’s testimony that he
believed the Applicant was a true Christian who attended church regularly, as
well as the Applicant’s confession on the advice of his pastor (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35,
[1998] FCJ No 1425 (TD)(QL)).
[45]
The Board made an implausibility finding, in
disregard of the evidence and logic, that a true Christian does not lie and
that, therefore, the Applicant is not a true Christian (Zhang, above, at
para 16). It was also unreasonable for the Board to dismiss his faith on
account of a significant lie (Yin v Canada (Minister of Citizenship and
Immigration), 2010 FC 544 at para 94 [Yin]).
Respondent’s Position
[46]
The Respondent submits that the Board is
entitled to doubt the sincerity of the Applicant’s religious identity if it
finds the rest of the claim not to be credible (Jiang v Canada (Minister of Citizenship and Immigration), 2012 FC 1067 at para 27 [Jiang]; Xuan
v Canada (Minister of Citizenship and Immigration), 2013 FC 673 at para
20). The Board can also hold the claimant to a higher standard of proof
for a sur place claim when the rest of the claim is found to be not
credible (Li v Canada (Minister of Citizenship and Immigration), 2012 FC
998 at paras 31-32 [Li]).
[47]
The Respondent submits that the Board did not
ignore the Applicant’s evidence about his Christianity. The Board is
presumed to have considered all the evidence and it expressly discussed it in
its Decision. The evidence was inadequate to overcome the fact that the
Applicant was not a credible witness. As a result, the Board could not accept
the Applicant’s assertions that he was a Christian (Li, above, at
paras 28-32; Cao v Canada (Minister of Citizenship and Immigration),
2008 FC 1174 at paras 27-28). Further, the Applicant’s reliance on Etjehadian,
above, is misplaced as in that case the Board accepted that the applicant was a
genuine practicing Mormon priest but applied the wrong test in assessing the sur
place claim. In this case, the Applicant failed to establish that he was a
genuine Christian.
[48]
The Respondent submits that the Board’s
treatment of the pastor’s evidence was also reasonable as he declined to
unequivocally state that the Applicant is a true Christian. It was also entitled
to give that evidence limited weight as the Applicant has a history of
deceiving individuals in relation to his refugee claim (Jin v Canada
(Minister of Citizenship and Immigration), 2012 FC 595 at para 20). The
Board weighed this evidence along with its major credibility concerns and
determined that the pastor’s evidence was insufficient to demonstrate that the
Applicant is a Christian.
[49]
The Respondent also submits that the Applicant’s
position is inconsistent. On the one hand, he states that he told the truth to
come clean which was an indicator of his faith, while on the other, he states
that the fact that he lied cannot be used to evaluate whether he is a Christian
because that is a subjective standard. The Board was entitled to consider the
Applicant’s story against common sense and rationality. The Applicant’s actions
were at odds with his assertions.
[50]
The Respondent submits that the broader
evidentiary record further demonstrates that the Applicant’s assertion
about his religious concern was reasonably rejected as there were numerous
inconsistencies in his evidence.
Analysis
[51]
In Hannoon, above, Justice O’Keefe stated
the following about the law on a sur place claim and the circumstances
in which it should be addressed:
[46] A sur place refugee is defined
in the United Nations Handbook on Procedures and Criteria for Determining
Refugee Status (the UNCHR Handbook) as a person "who was not a refugee
when he left his country, but who becomes a refugee at a later date".
[47] It is established jurisprudence that
even if an applicant does not explicitly raise a sur place claim, it
must still be examined if it perceptibly emerges from the evidential record
that activities likely to cause negative consequences on return took place in
Canada (see Mohajery above, at paragraph 31; and Mbokoso c. Canada
(Ministre de la Citoyenneté & de l'Immigration), [1999] F.C.J. No. 1806
(Fed. T.D.) at paragraph 10). Where there is trustworthy evidence that supports
the claim, this analysis must be conducted whether or not the decision maker
deems the applicant credible (see Mohajery above, at paragraph 32).
[48] The UNCHR Handbook describes two situations
in which a sur place claim may arise:
a) A change in circumstances in the country of origin during
the person's absence, or
b) As a result of a person's own actions such as associating
with refugees already recognized or expressing political views in the new
country of residence.
[52]
Justice O’Keefe concluded the following about
the obligation to assess a sur place claim:
[52] It is not in dispute that the Board
did not deal with the sur place claim in its decision.
[53] I am of the view that the Board made
an error of law in failing to deal with the sur place claim. Once a sur
place claim was present, it was for the Board to deal with it. It might
have been successful or it might not have been successful I do not know, as the
Board failed to deal with this claim. The Board should have considered the
evidence and argument presented. In failing to do so, the Board made a
reviewable error and as a result, the decision of the Board must be set aside
and the matter referred to a different Board member for redetermination.
[53]
This Court has assessed the requirements of
religion-based sur place claims in a line of cases starting with Ejtehadian,
above. There, after he left Iran, the claimant became a Mormon and later a
priest in the Mormon church. He claimed a risk of persecution or serious harm
as a result of the apostasy laws should he return to Iran. The Board accepted
that apostasy and proselytizing of Christians to Muslims in Iran could result in the claimant’s death. However, the Board dismissed his claim because
it determined that his conversion was not genuine, finding that he had become a
Christian as a means of remaining in Canada and claiming refugee status.
Justice Blanchard overturned the Board’s decision, noting it that had
misarticulated the test in a sur place claim, and held that:
[11] The IRB’s articulation of the test in
a sur-place claim is incorrect. In a refugee sur-place claim,
credible evidence of a claimant’s activities while in Canada that are likely to
substantiate any potential harm upon return must be expressly considered by the
IRB even if the motivation behind the activities is non-genuine: Mbokoso v.
Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 1806
(QL). The IRB’s negative decision is based on a finding that the Applicant’s
conversion is not genuine, and “nothing more than an alternative means to
remain in Canada and claim refugee status.” The IRB accepted that the Applicant
had converted and that he was even ordained as a priest in the Mormon faith.
The IRB also accepted the documentary evidence to the effect that apostates are
persecuted in Iran. In assessing the Applicant’s risks of return, in the
context of a sur-place claim, it is necessary to consider the credible
evidence of his activities while in Canada, independently from his motives for
conversion. Even if the Applicant’s motives for conversion are not genuine, as
found by the IRB here, the consequential imputation of apostasy to the
Applicant by the authorities in Iran may nonetheless be sufficient to bring him
within the scope of the convention definition. See Ghasemian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1266 (CanLII), 2003 FC 1266, at
paragraphs 21-23, and Ngongo c. Canada (M.C.I.), [1999] A.C. F. No 1627
(C.F.) (QL).
[54]
In Jiang, above, the Board doubted the
integrity of the applicant’s refugee claim. The Board found it irrational
and therefore not credible that the applicant therein would have chosen to
practice Falun Gong, which was potentially politically dangerous, without first
seeking medical attention and treatment through medication. It further found
that on the basis of the totality of its findings, the applicant’s current
knowledge of Falun Gong was gained only in order to support her fraudulent
claim, and that she was not a genuine Falun Gong practitioner.
[55]
On the sur place claim, Justice Zinn
stated that the real question was whether the Board was entitled to and
reasonably imported its findings in relation to the fraudulent claim into the
applicant’s sur place claim, namely to impute that the applicant was not
a genuine Falun Gong practitioner:
[27] In my view, the Board must be
entitled to import its credibility findings into its assessment of an
applicant’s sur place claim. The Board here found that the applicant had
fabricated her story to claim refugee protection. A reasonable inference from
that premise is that her current knowledge, appearance in photos, and letters
of support were fostered in the intervening two years to support that
fraudulent claim.
[28] This Court has held that it is
permissible for the Board to assess an applicant’s genuineness and therefore
its sur place claim in light of credibility concerns relating to the
original authenticity of a claim: Hou v Canada (Minister of Citizenship and
Immigration), 2012 FC 993 (CanLII), 2012 FC 993, at para 57; Yang v
Canada (Minister of Citizenship & Immigration), 2012 FC 849 (CanLII),
2012 FC 849, at para 19.
[56]
Justice Zinn noted that on the one hand, the
applicant’s claim was found to be fraudulent, she had also provided little
evidence that she was a Falun Gong practitioner in Canada. On the other hand,
she demonstrated knowledge of Falun Gong and had some, though very weak,
documentary evidence in support of her claim. She also had two years to learn Falun
Gong theory in Canada. The Board weighed the evidence and found that she was
not a genuine practitioner. That finding fell within the range of
possible, acceptable outcomes defensible in respect of the law and the facts.
[57]
In the present case, the Board did not explicitly
state that it was or was not conducting a sur place analysis, nor did it
refer to country documentation evidence. It did note, in the context of the
Applicant’s continued claim, that he submitted that he had truly converted to
Christianity and that this “might well indicate that he should be conferred
refugee protection in Canada, were this allegation accepted”. Similar
to Jiang, above, the Board stated that it weighed its very significant
credibility concerns against the evidence in favour of the proposition that the
Applicant is a true Christian and found, on balance, that the former outweighed
the latter. The credibility concerns so tainted the Applicant’s
credibility that the Board did not accept that he was a true Christian.
[58]
The Board also acknowledged the Applicant’s
testimony and the fact that he had submitted a baptism certificate, as well as
the testimony from the pastor. However, it discounted this evidence because of
the Applicant’s lack of credibility and the lack of an unequivocal response
from the pastor as to whether the Applicant was a true Christian. In that
regard, the pastor’s evidence was that the Applicant had been baptized,
attending church for 1.5 years, and encouraged to tell the truth regarding his
claim. His testimony as to whether the Applicant is a genuine Christian was that:
Well the… there is an interesting thing in the
Bible, when the Christians started Christianity they were not called
Christians, they were called ‘people of The Way’ because Jesus once said “I am
the Way, and the Truth and the Life” and this is what he is, he is on The Way,
for sure and well, you have seen Christians that went astray again on The Way
and others are still on The Way and I think he is on The Way. I am
strongly…think he is on the right way.
(Record of the
Hearing before the Board, p 44)
[59]
In Li, above, the applicant similarly
alleged a fear based on his religious beliefs. The Board determined that
there was no credible basis for his claim. The Board made a finding on his activities
in China and then considered his adherence to Christianity while in Canada. It concluded that the applicant had joined a Christian church in Canada for the purpose of supporting a fraudulent refugee claim and determined that he has not been
nor was he a genuine Christian and would not be perceived to be a Christian in China.
[60]
As to credibility, Justice Gleason noted that
the fact that the claimant had made an earlier fraudulent attempt to enter Canada tainted his refugee claim as it showed he was willing to employ dishonesty to gain
admittance to the country. It was reasonable for the Board to rely on this as a
significant reason for disbelieving his claims regarding what happened in China, as well as for finding that the applicant was not a sincere Christian. As to motive
for engaging in a religious practice:
[20] Contrary to what the applicant
asserts, the case law recognises that motive for engaging in a religious
practice in Canada may be considered by the RPD in an appropriate case.
However, a finding that a claimant was motivated to practice a religion in Canada to buttress a fraudulent refugee claim cannot be used, in and of itself, as a
basis to reject the claim. Rather, the finding that the claimant has been
motivated by a desire to buttress his or her refugee claim is one factor that
may be considered by the RPD in assessing the sincerity of a claimant’s
religious beliefs.
[61]
Thus, the mere fact that the Board considered
and relied on the applicant’s motive for joining a religious group and
practicing in its activities did not invalidate its decision. The question
was whether the Board had reached a reasonable conclusion in determining that
the applicant was not a genuine Christian. In that regard Justice Gleason
stated:
[29] More particularly, the burden of
establishing the sincerity of his beliefs rested with the applicant. The
Board’s determination that he had not discharged this burden was based on its
assessment of the applicant’s credibility: the fact that he had obviously
fabricated a story about what occurred in China, had lied during his testimony
before the Board and had offered no convincing proof of a conversion experience
in Canada. Apart from the pastor’s letter, the baptismal certificate and the
photographs, there was no other evidence offered by the applicant to support
his claim to be a true Christian. The Board was in no way obliged to accept
these documents as proof of the sincerity of the applicant’s religious beliefs,
especially in light of the applicant’s lack of credibility and earlier
fraudulent attempt to enter Canada. In this regard, I endorse the comment of
Justice Pinard in Jin (cited above at para 24) at para 20, that:
[…] it would be absurd to grant a sur
place claim every time a pastor provides a letter attesting to an
applicant’s membership in his church.
[…]
[32] Where, as here, a claimant’s
assertion to have been the victim of religious persecution abroad is found to
be a fabrication, it is completely reasonable for the RPD to require a much
higher degree of proof of the sincerity of the applicant’s beliefs and practice
in support of a sur place claim than might be required where the mere
fact of apostasy might lead to persecution or where the Board believes the
claimant to have been the victim of religious persecution abroad. Otherwise, it
would be far too easy to succeed in a fraudulent claim: a dishonest applicant
would need only to join a church and study the religion to advance a sur
place claim. Proof of joining a church and knowledge of its precepts,
however, does not equate to proof that the individual would be at risk if
returned to his or her country of origin. In the context of a country such as
China, where persecution is practiced against Christians not for apostasy but
for the practice of their religion, the claimant must satisfy the RPD that
he or she will continue to practice his or her faith in China. On the facts of
this case, the Board’s determination that the applicant was unlikely to do so
was completely reasonable. The Board offered understandable reasons that were
grounded in the facts before it.
[62]
The Applicant cites Yin, above, in
support of its position that it was unreasonable for the Board to dismiss his
faith on account of a significant lie. In that case, the Board also rejected
the applicant’s religious practices in Canada on the basis of a general
negative credibility finding. The Board found that the applicant acquired his
knowledge of Christianity in Canada to bolster a manufactured refugee claim and
not because he was committed to that religion. As the Board found that the
applicant was not a member of an underground Christian church in China, he was found not to be a Christian in Canada. Justice Russell found that the Board’s
logic was unreasonably flawed because the independent and credible evidence of
the applicant’s religious activities at his church in Canada were not addressed by the Board, a situation which does not arise in the present
case.
[63]
Here, the Board had significant and legitimate
credibility concerns with the Applicant’s claim given that he had initially
fabricated a significant aspect of his claim concerning his political
activities in Iran. It also acknowledged that the Applicant displayed some behaviour
of being a true Christian, such as being baptized and attending church
while in Canada. The Board discounted the pastor’s evidence on the basis that
he did not state unequivocally that the Applicant is a true Christian. While
the pastor’s evidence could, on a reading of the transcript, be interpreted
as pragmatic and positive, deference is owed to the Board as it had the benefit
of actually hearing the evidence and observing the demeanour of the
witness (Navaratnam v Canada (Minister of Citizenship and Immigration),
2011 FC 856 at para 22; Chen v Canada (Minister of Citizenship and
Immigration), [1999] FCJ 551, 240 NR 376).
[64]
The Board made an overarching credibility
finding arising from the Applicant’s admission that he lied about his political
activities. That is, it imported its overarching credibility finding into its implicit
consideration of whether a sur place claim arose. The Board weighed the evidence
and found that the Applicant was not credible and was not a genuine
practitioner of the Christian faith. Having made that finding, and
although the Board indirectly referred to the possible apostasy, it did not then
have to further consider the sur place. Based on Jiang and Li,
both above, it was entitled to take this approach.
[65]
While I might have found differently, it is not
the role of this Court to reweigh the evidence. As the Board’s finding falls within
a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir, above, at para 47), there is no basis
upon which this Court can interfere with its finding. The application for
judicial review is therefore dismissed.
Email this Content