Docket: IMM-3310-13
Citation:
2014 FC 683
Ottawa, Ontario, July 11, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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FEI CHAN 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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of Joel Bousfield, a member of the Refugee Protection Division of
the Immigration and Refugee Protection Board [the Board], pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act]. The Board dismissed the Applicant’s claim for refugee
protection, concluding that she was not a convention refugee or person in need
of protection under sections 96 and 97 of the Act.
I.
Issue
[2]
The issue in the present application is whether
the Board’s decision was unreasonable.
II.
Background
[3]
The Applicant is a citizen of China. According to her Personal Information Form [PIF] Narrative, she fears persecution as
a result of her involvement in secret Christian house churches.
[4]
In September, 2009, a friend of the Applicant’s,
Chen Yun Jin, invited the Applicant to work in a bookstore with her. The
Applicant agreed. She was 17 years old at the time. Chen Yun Jin’s uncle, Chen
Yao, was the owner of the bookstore. The same month, the Applicant witnessed
the aftermath of a motor vehicle accident and converted to Christianity with
the encouragement of Chen Yun Jin. Chen Yun Jin informed the Applicant that she
practiced Christianity in secret and that Chen Yao was the leader of an
underground house church.
[5]
On September 27, 2009, the Applicant accompanied
Chen Yun Jin to an underground house church. The Applicant enjoyed the
experience and continued to attend meetings held in different members’ homes,
with security precautions in place.
[6]
In late November, 2009, Chen Yao instructed the
Applicant and Chen Yun Jin to distribute bibles to customers of the bookstore.
The Applicant and Chen Yun Jin warned Chen Yao not to distribute the bibles,
but Chen Yao believed it would not cause problems. After distributing bibles
for five days, his bookstore was shut down by police on November 30, 2009. The
Applicant was informed by Chen Yun Jin, who advised the Applicant to go into
hiding. The Applicant moved into her aunt’s home.
[7]
On December 2, 2009, the Applicant’s mother
informed the Applicant via telephone that police had searched the Applicant’s
home, interrogated the Applicant’s parents, and accused the Applicant of
assisting Chen Yao with illegal Christian activities. The police ordered the
Applicant to report to the police.
[8]
The Applicant did not report to the police. The
police returned to the Applicant’s parents’ home and left a summons which
directed the Applicant to report to the police. The Applicant’s parents
arranged for the Applicant to hide in the city of Guangzhou. She decided to
flee China and sought refugee protection in Canada in March, 2010.
[9]
In May, 2010, the Applicant learned that
individuals who had been arrested for involvement in Chen Yao’s underground
church had been sentenced to three years in jail and that the Chinese
authorities were looking for her.
[10]
In July, 2012, the Applicant had a daughter in Canada. She is fearful that the Chinese government will harm her for having had an
unauthorized child, as an unmarried Chinese woman.
[11]
In her testimony, the Applicant stated that in
June, 2010, the Chinese authorities left an arrest warrant in her name with her
parents.
[12]
The determinative issue for the Board was
credibility. The Board based its conclusion primarily on two plausibility
findings:
i.
The Board did not find it plausible that an
underground house church leader would so have quickly invited a 17-year-old to
its services, given the possibility that she may have easily informed others
about the church;
ii.
The Board found it implausible that Chen Yao
would distribute bibles out of his bookstore, given the security precautions
his church members took to protect their services from being discovered by the
police.
[13]
The Board states that it confronted the
Applicant with these implausibilities but no satisfactory explanation was
provided.
[14]
The Board notes that the Applicant testified
that the police looked for her in May, 2010, and left an arrest warrant with
her parents. However, the Applicant did not mention this in her PIF. The Board
drew a negative inference from this omission.
[15]
As a result of the implausibilities and the
omission noted above, the Board placed no weight on corroborative evidence
provided by the Applicant, which included a Baptismal certificate, photographs,
a letter from a Toronto reverend, and a summons provided by Chinese
authorities. With regard to the summons, the Board notes that such documents
can easily be fabricated. The Board concluded that the Applicant is not a
practicing Christian.
[16]
The Board accepted that the Applicant has a
daughter, but found that it would be unlikely that the Applicant would be
subject to harm on this basis. The Board concluded that the Applicant would be
likely to leave her daughter in Canada, as the child’s father is a permanent resident
in Canada. If the child remained in Canada, she would not pose a population
threat in China and thus would not be considered a risk to the Chinese
authorities. Even if the Applicant were to bring her daughter to China, a
Response to Information Request (CHN 104185.E) indicates that most individuals
who violate the one-child policy are forced to pay a fine instead of being
subject to more draconian punishment such as forced sterilization.
III.
Standard of Review
[17]
The standard of review is reasonableness (Huang
v Canada (Minister of Citizenship and Immigration), 2011 FC 288, at paras
15-16).
IV.
Analysis
A.
Credibility
[18]
The Board’s plausibility finding regarding the
likelihood that an underground Christian church would accept the Applicant has
no basis on the evidence before me.
[19]
Credibility findings on the basis of
implausibility can only be made in the clearest of cases (Vodics v Canada (Minister of Citizenship and Immigration), 2005 FC 783, at paras 10-11). As
stated in Valtchev v Canada (Minister of Citizenship and Immigration),
2001 FCT 776, at para 7 [Valtchev]:
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]
[20]
While it may be inadvisable for an underground
church to admit a young member or distribute any literature for fear of drawing
attention, such a situation does not demonstrate a “clear case” in the sense
that the facts at issue are outside the realm of what could reasonably be
expected. Furthermore, the Board did not cite any objective evidence that would
support its implausibility finding. No evidence was cited which described the
level of scrutiny these churches receive by police, their typical proselytizing
practices, or the profile of individuals who are admitted to the church. In the
absence of a concrete grounding in evidence, the Board’s plausibility findings
were merely speculative.
[21]
Moreover, the fact that the Church had security
measures in place does not support the speculation by the Board concerning the
plausibility of the fact that bibles were distributed by the Church leader.
While the Applicant was given a chance to address the implausibility, it was
unreasonable of the Board to draw a negative inference because she could not
explain a third party’s decision (Valtchev, above, at para 13).
[22]
The Board was also unreasonable in giving no
weight to the corroborative evidence submitted. Even if the events in China did not occur, there is still evidence that the Applicant is a practicing Christian in Canada (Chen v Canada (Minister of Citizenship and Immigration), 2009 FC 677, at para 26).
The Board ought to have assessed the Applicant’s religious identity in Canada, independent of her religious identity in China.
[23]
The only other credibility finding cited by the
Board is the omission of the arrest warrant from the initial narrative. I do
not believe this is a sufficient basis on which to ground a determinative
negative credibility finding.
[24]
The Board’s credibility findings were
unreasonable.
B.
Risk to the Applicant
[25]
The Applicant claims that the Board was
unreasonable in assessing the risk to unmarried women in China by ignoring documentary evidence and the objective of family reunification underlying the Act.
[26]
I find that the Board’s conclusion was
reasonable. It was reasonable to conclude that the authorities would either not
find out about the Applicant’s child, or, if they did, would not levy a severe
punishment against the Applicant. The Board cited and considered the
documentary evidence which shows that the prevalence of severe penalties has
declined in recent years, and the Board was not obliged to cite all evidence on
this point.
[27]
Moreover, I also agree that the Applicant’s
desire to have more children was not an issue to be dealt with by the Board, as
it is only a speculative risk (Liang v Canada (Minister of Citizenship and
Immigration), 2013 FC 765, at para 76).
[28]
However, given my finding on credibility, I
allow this application.
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