Docket: IMM-3473-13
Citation:
2014 FC 713
Ottawa, Ontario, July 18, 2014
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
|
AIQING ZHANG
(A.K.A. AI QING ZHANG)
|
Applicant
|
and
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision rendered by Milton Israel of the
Refugee Protection Division (the Board), concluding that Aiqing Zhang (a.k.a.
Ai Qing Zhang) (the Applicant) was not a Convention refugee or a person in need
of protection under sections 96 and 97 of the IRPA. The decision was
rendered on April 24, 2013.
[2]
On the basis of the analysis set out below, this
application for judicial review ought to be granted.
I.
Facts
[3]
The Applicant is a citizen of the People’s
Republic of China (China) and comes from the province of Guangdong.
[4]
The Applicant alleges to have lost a close
friend on April 3, 2010 following a car accident as he was trying to protect
her. She felt depressed after her friend’s death and had lost interest in doing
anything.
[5]
In mid-May 2010, a friend started to talk to her
about Roman Catholicism. She tried to convince her to join the religion,
telling her it would help her find direction in her life.
[6]
The Applicant was skeptical at first because it
was illegal. Her friend allegedly reassured her that the group took precautions
and that they had never encountered problems before. The Applicant therefore
decided to check out the house church, and she claims to have attended her
first service on June 6, 2010.
[7]
The Applicant then began to attend service regularly,
claiming it helped her come out of her depression. The group, composed of 20
members, would meet in two different locations. People were appointed during
each meeting to act as lookouts. Services were conducted by a priest twice a
year, while all other services were conducted by teachers.
[8]
The group did not have any problems until
December 25, 2010, when Public Security Bureau (PSB) Officers allegedly raided
the house. The Applicant claims that she managed to escape and went into
hiding.
[9]
The Applicant contends that PSB Officers
have gone to her home and accused her of illegal religious activity, and that a
summons was left. The Applicant also claims to have learned later from her
mother that five members of the church, including her friend, had been
arrested.
[10]
The Applicant alleges that PSB Officers also
went to the home of close relatives looking for her. She then decided to leave
for Canada, where she made a refugee claim in early 2011.
[11]
Since her arrival, the Applicant claims to be a
member of the Chinese Martyrs Catholic Church, where she has participated in
their regular activities since February 2011. She was baptized on July 7, 2012.
[12]
The Applicant claims that she recently learned
that the PSB was still looking for her and that they went to her home every
three or four months.
II.
Decision under review
[13]
The Board generally found that, on a balance of
probabilities, the Applicant was not credible concerning her membership in an
underground Roman Catholic house church in China that was raided by the PSB,
her pursuit by the PSB and her religious practice in Canada.
[14]
The Board started by highlighting a
contradiction with respect to the Applicant’s decision to join a house church.
She testified that she had very limited knowledge of Christianity before her
friend spoke to her and she considered it to be a kind of superstition. When
she further testified that she was attracted by Christianity because her friend
told her that the Lord would help to bring her classmate’s soul to heaven, she
was asked how she could reconcile that answer with her previous view that it
was superstition. She responded that she did not believe at the
beginning but would “give it a try”. The Board was
of the view that, on a balance of probabilities, the Applicant indicated she
had some belief but more inclination to give it a try in order to deal with the
panel’s reference to her earlier testimony about Christianity as superstition.
[15]
The Board then drew a negative inference from
the fact that the Applicant could only give a few examples of things to do to
gain everlasting life and that she could not explain that baptism was required
to attain everlasting life. The Board found that she should have known this
information as it is a basis of Christianity, after being part of a Catholic
church in China for approximately seven months and then a member of a church in
Canada for two years.
[16]
Regarding the underground church in China, the Board drew a negative inference from the fact that the Applicant did not
mention, on her own initiative, that there were lookouts during the services,
how they were assigned and whether they were told at the end of the service
where the next meeting would be held. According to the Board, these are the
most distinctive elements of house church practice. The Board also rejected the
Applicant’s explanation that the lookouts were always chosen after her arrival at
the meetings.
[17]
The Board also drew a negative inference from
the fact that the Applicant indicated that she did not remember or know
if the group ever said a prayer for the Pope or that she never herself said the
rosary since the leader said it. The Board concluded that her description of
the alleged services she attended in China did not reflect Roman Catholic
practice and that the Applicant never attended a Roman Catholic Church in China.
[18]
The Board indicated that it was also improbable that
the Applicant only heard police cars when the PSB raided the house. If the PSB
arrested five members as they were attempting to escape out the back door, it
would have been reasonable to expect that the Applicant would have heard some
exchange or shouts.
[19]
Furthermore, the Board drew a negative inference
from the fact that the Applicant did not mention that a summons had been left
at her house when the PSB went looking for her. The Board also mentioned that
if a summons had been left, and if there had been no response, a warrant would
likely have been issued. The Board acknowledged that on some occasions, it was
accepted that the Chinese police do not always leave a summons. However, in the
present circumstances, it was reasonable to expect that something would have
been left since the Applicant alleged the PSB had visited her home on multiple
occasions.
[20]
The Board then reviewed the US State Department
2012 International Religious Freedom Report and noted two incidents in the Guangdong province where unregistered churches were forced to close. In the first incident,
the leader was detained, but there is no evidence to the effect that the
detention was lengthy. The members also continued to meet in smaller groups. In
the second incident, after the church was closed, the members decided to pray
outdoors to protest. There is no evidence that they were forced to hold their
religious activities in other locations. Further, while there is evidence of
suppression of religious practice in various provinces in China, there is no evidence that such suppression occurs in Guangdong.
[21]
The Board further looked at an annual report on
persecution of Christian Churches in China published in 2011 by the China Aid
Association and noted that there was one incident concerning a human rights
lawyer but none concerning house churches. The Board also noted three incidents
in the Guangdong province in 2010. However, in one of these incidents the issue
appeared to be the size of the congregation and its meeting place. Only the
pastor was detained and no one was sentenced. The two other incidents concern
church closures during the Olympics. No one was arrested or detained.
Consequently, the Board gave these incidents little significance.
[22]
Guided by various decisions of this Court, the
Board concluded that, as a result of the evidence provided and on a balance of
probabilities, the Applicant was not a member of a Catholic church in China, that the raid did not take place and that she is not being pursued by the PSB.
[23]
The Board recognized that mixed information
could be found concerning suppression of underground churches in China. However, in the absence of specific evidence of persecution in the province of Guangdong, the Board concluded that there was only a mere possibility of arrest of
ordinary members of underground churches and a mere possibility of persecution.
The Board also noted that documentary evidence indicates that the conflict
between the Vatican and the Chinese government still persists, but that the
Executive Director of the Hong Kong Christian Council noted that the Chinese
authorities have demonstrated a high degree of tolerance towards Christian
activities.
[24]
Finally, the Board did not believe the
Applicant’s submissions about her religious activities in Canada. The church letter and baptism certificate only confirm membership and no evidence was
submitted concerning a “conversion-like experience”.
The Board therefore concluded that the Applicant had not proven the genuineness
of her practices. Even if she had, the Board concluded that she would be able
to return to Guangdong and practice her religion freely.
III.
Issue
[25]
The only issue in this case is whether the
Board’s assessment of the Applicant’s credibility is reasonable.
IV.
Analysis
[26]
It is trite law that credibility findings are
reviewable on a standard of reasonableness: see e.g. Hou v Canada (Minister
of Citizenship and Immigration), 2012 FC 993 at para 7; Juarez v Canada
(Minister of Citizenship and Immigration), 2010 FC 890 at para 12; and Baykus
v Canada (Minister of Citizenship and Immigration), 2010 FC 851 at para 14,
both citing Mejia v Canada (Minister of Citizenship and Immigration),
2009 FC 354 at para 29; Syvyryn v Canada (Minister of Citizenship and
Immigration), 2009 FC 1027 at para 3, and Perea v Canada (Minister of
Citizenship and Immigration), 2009 FC 1173 at para 23.
[27]
It is also well established that a board is
entitled to make findings of credibility based on implausibility, common sense
and rationality. That being said, adverse credibility findings should not be based
upon a microscopic examination of issues irrelevant or peripheral to the claim:
Mohacsi v Canada (Minister of Citizenship and Immigration), 2003 FCT 429
at para 20; Attakora v Canada (Minister of Employment and Immigration),
[1989] FCJ No 444.
[28]
The Board’s decision focuses on two main issues:
the Applicant’s credibility as it relates to her testimony at the hearing and
the information provided in her Personal Information Form (PIF), and the
assessment of the documentary evidence on persecution of Catholics in China and in the province of Guangdong. With specific regard to credibility, the Board found issue
with her decision to join the church, the church’s practice, the PSB raid, the
summons left by the PSB, and the Applicant’s religious practices in Canada.
[29]
To begin with, the Board found that the
Applicant’s testimony regarding the reasons why she joined the church was vague
and inconsistent. The Applicant’s evidence on this point was that prior to
being approached by her friend, her knowledge of Christianity was limited to a
belief that religion was a superstition. Yet after having spoken with her
friend several times and being told so many good things about the Lord and
Christianity, she started to believe and decided to “give
it a try”.
[30]
I fail to see how this testimony can be
considered inconsistent or implausible. First of all, the Applicant did not
indicate that “she had some belief but more inclination
to ‘give it a try’”, as stated by the Board, but simply stated that she
started to believe “but also [was] with the intention of giving
it a try” (Certified Tribunal Record, p 189). Moreover, it is entirely
plausible for a person to slowly come to believe in something that she once
considered a superstition. Contrary to one of the Board’s other findings with
respect to her membership in a Roman Catholic church in the Toronto area, one
does not have to go through a “conversion-like experience”
to embrace a faith. The Board also faulted the Applicant for having omitted
baptism as one of the requirements for everlasting life. While baptism is no
doubt one of the basic teachings of Roman Catholicism, it is a safe assumption
that many Christians would not instinctively mention it as one of the essential
requirements to gain everlasting life, and would, like the Applicant, mention
other aspects of the faith like the observance of the Ten Commandments and the
love of God as the gateway to heaven. Accordingly, I find the Board’s
reasoning unreasonable on this issue.
[31]
The Board then focused on the Applicant’s
knowledge of the meetings of her church, and drew a negative inference from the
Applicant’s failure to refer to the lookouts and multiple meeting places in her
description of these meetings. However, a careful reading of the transcript and
of her narrative reveals that she did refer to the lookouts and the different
meeting places, even if not in a detailed fashion (Certified Tribunal Record, pp
29 and 193-194). Moreover, it is pure speculation for the Board to state that “[l]ookouts and multiple meeting places are the most
distinctive elements of house church practice”. Similarly, the Board’s
rejection of the Applicant’s explanation that the leader of the church assigned
lookouts prior to the start of the meetings was also speculative. In stating
that “[i]t is reasonable to assume the alleged
assignments were not always made after [the Applicant’s] arrival”, the
Board relied on no evidence or knowledge to the contrary. Finally, the Board
relied on its expertise with respect to similar claims to conclude that “it had never encountered an alleged Roman Catholic claimant
who had not said the rosary and who had not indicated the rosary was said as
part of the service in China”. This finding contradicts the Applicant’s
testimony. While she did say that she never said the rosary herself, she
indicated that the leader would do it (Certified Tribunal Record, p 195). It is
therefore an error to conclude that the Applicant had said that the rosary was
not part of the services in China.
[32]
With respect to the Applicant’s description of
the raid, the Board rejected the Applicant’s allegations that she only heard
the sound of a police car when the PSB raided the house, stating that it was
improbable that she had not heard people shout or talk, especially since five
members of the group would have been arrested. Once again, this finding is
speculative, as the Board member was not present at the raid and could only
conjecture as to what actually happened during the raid. Moreover, this
conclusion focuses on peripheral details. My colleague Justice Rennie cautioned
against dwelling on credibility concerns relating to peripheral details of a
traumatic event: Wardi v Canada (Minister of Citizenship and Immigration),
2012 FC 1509 at para 19. It is clear that disturbing events such as a raid can
reasonably alter an individual’s recollection of events, and in such a context
the Board should not have inflated expectations as to what an applicant should
recall precisely.
[33]
The Applicant alleges to have received a
summons, but she was not able to produce it. If it was left at her house, as
she alleges, it would have been reasonable to expect that her parents would
have been able to send her a copy of such summons, since they were able to send
the Applicant her new Hukou (ID) card. Moreover, I agree with the Respondent
that the Board was reasonable in underlining the fact that the Applicant had
not mentioned the summons in her PIF, and that such an omission could be
weighed as a negative element against her testimony. Finally, the Board
acknowledged that summons issuing practices differ within China and found that it was reasonable that the police were likely to have left something
at sometime, given the PSB’s apparent serious interest in pursuing the
Applicant; again, that finding was reasonable.
[34]
Regarding the Applicant’s religious practice in Canada, the Board claimed that the Applicant only provided evidence of membership in a church in Canada and did not provide any evidence of a “conversion-like
experience” showing that she would have embraced Catholicism. Importing
its credibility findings into its assessment of the Applicant’s sur place claim, the Board found that
the claim was made on a fraudulent basis and that she joined a church in Canada only to support a fraudulent claim for protection. I have already commented on the
requirement of a “conversion-like experience” to
establish a genuine faith. I would only add that the Applicant submitted, as
part of her evidence, a letter from Rev. Jianwei Deng from the Chinese Martyrs
Catholic Church stating that the Applicant joined the Rite of Christian Initiation
for Adults program at the Church, was baptized at the same church and attends
church regularly. It would have been open to the Board to give little weight to
such evidence; it did not, however, fall “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” to conclude that she had only proven her membership in the
church (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[35]
Overall, I am in agreement with counsel for the
Applicant that it was improper for the Board to base its findings on an
extensive microscopic examination of issues irrelevant or peripheral to the
Applicant’s claim. The Board’s credibility findings were to a large extent
speculative and not supported by the evidence.
[36]
As for the Board’s assessment of the documentary
evidence, I am equally of the view that it is somewhat defective. After
reviewing a few incidents involving house churches, the Board found that there
is no evidence of suppression of religious practices in Guangdong province, and
therefore, that the Applicant’s alleged underground church would not be of any
interest to the PSB. In my view, this assessment of the documentary evidence is
at best questionable. The conflict between the Vatican and the Chinese
government is well documented, as well as the detention of the Catholic clergy
and the repression of the underground house churches. There are, no doubt, huge
discrepancies in the treatment of Catholics depending on the tolerance shown by
local authorities, and the information on the exact situation in various
provinces is obviously scarce. However, the reported incidents that were before
the Board member should at least have given him reason to pause.
[37]
To be sure, the Board member noted a few
incidents of house churches being forced to close, but downplayed the impact of
these incidents as a result of the fact that there is no indication that any
house church members were detained, that the practitioners were prevented from
practising in other localities, or that their leaders faced lengthy detention.
Even if all of this were true, it would hardly be sufficient to find that
church members are not persecuted. Moreover, some of the Board member’s
findings are premised on pure speculation. His assumptions that church members
could practice in other localities, or that the size of the congregation was
the motivation behind the church closures, are not grounded on any evidence. It
is no doubt true that Guangdong is described as “quieter”
than Fujian in the Responses to Information Requests of July 6, 2010 (Certified
Tribunal Record, at pp 154-158), but it must be remembered that Fujian is described by the same source as the “worst province”
for persecution in China. One must also take into consideration that the
information collected by various non-governmental and governmental organizations
about persecution may only be the tip of the iceberg. In that context, the
documentary evidence deserved closer scrutiny and cannot, without more,
strengthen the Board’s finding with respect to the Applicant’s credibility or
support its finding that there is only a mere possibility that an incident that
led to the arrest of ordinary members of a church would occur in Guangdong
province.
[38]
For all of the foregoing reasons, I am of the
view that this application for judicial review must succeed. This is one of
those cases where each of the Board’s findings, taken independently, may not be
sufficient to warrant the intervention of this Court, but when considered in their
totality, call for a re-assessment. The matter shall therefore be remitted to a
different panel of the Board for re-determination. No question is certified.