Docket: IMM-6845-13
Citation:
2015 FC 167
Ottawa, Ontario, February 10, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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RUICAI SUN
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XIUFANG YU
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Applicants
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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
I.
Introduction
[1]
This judicial review concerns a Chinese couple
who claimed to be persecuted because they are Christians and members of a
“house” church. The Refugee Protection Division [RPD], on the basis of lack of
credibility and the implausibility of their story, denied their
refugee/protection application.
II.
Background
[2]
The Applicants claim that their friend, a Ms Xu,
introduced them to the faith and took them to her underground Protestant church
in the Shandong Province, China. They became members of the underground or
house church in 2009. Two years later, the Applicants visited their son in Canada where they joined a church. This is the basis of the sur
place part of their claim.
[3]
Subsequent to their arrival in Canada, the Applicants claim that Ms Xu has been arrested and the Public Security Bureau [PSB] has
been looking for them.
[4]
In the RPD’s decision, the Member did not find
the narrative of their conversion to be credible. She found implausible that Ms
Xu readily revealed her membership in an illegal church given that Christians
were facing significant persecution in Shandong Province.
[5]
The RPD acknowledged the documents corroborating
the Applicants’ practice of Christianity in Canada but because of credibility concerns
of the narrative of events in China, the Member did not find such documents and
activities to be conclusive of their faith.
[6]
The RPD also found that the narrative of being
pursued by the PSB to be implausible because the PSB would know from its
database that the Applicants were in Canada.
[7]
Finally, the Member accepted that house churches
could, in some places, be subject to persecution; however, targeted individuals
tended to be leaders and given the large number of Christian practitioners in
non-state approved churches, the Applicants had not established a serious
possibility that they would be persecuted.
III.
Analysis
[8]
It is trite law by now that a) the
interpretation and assessment of evidence (particularly credibility findings)
are subject to the reasonableness standard of review and b) that the legal test
for burden of proof attracts a correctness standard.
[9]
The Applicants have attempted to make a legal
issue out of terms such as “conclusive evidence”
of their faith. However, looking at the decision as a whole, while there is
some questionable wording, the RPD was focused on the correct legal test in
this case.
[10]
However, this decision must be quashed on other
grounds. Findings of credibility are accorded considerable deference but
implausibility findings require a more rigorous standard, a clear articulation
of the basis for a finding of implausibility – there must be support in the
record upon which to find implausibility.
[11]
Given that this matter is to be returned to the
RPD for a new determination, my comments on the facts and what can be drawn
from them must be limited.
[12]
It was not possible to discern the objective
basis for many of the implausibility findings. A conclusion that a matter is
implausible without articulation of the basis in the record (rather than just
some personal opinion) is arbitrary and unreasonable.
[13]
The RPD did not explain the finding that the PSB
was not looking for the Applicants other than to suggest that the PSB could
have used their database to find them. This was pure speculation especially in
light of the significant evidence that there was persecution of house church
members in Shandong Province.
[14]
On the one hand, the RPD discounts the
Applicants’ story of the meeting and actions of Ms Xu because of the threat of
the PSB and then later concludes that the PSB is not likely to be looking for
or interested in the Applicants. It is difficult to follow the RPD’s line of
reasoning.
[15]
The RPD did not consider whether there was
persecution of house church members. As noted in Dong v Canada (Citizenship and Immigration), 2010 FC 575, 188 ACWS (3d) 1128, freedom of
religion includes the right to go public, the right to spread the gospel, and the
right to bear witness. The RPD should have considered whether the house
churches are today’s version of the catacombs.
[16]
Having dismissed the refugee/protection claim
based on events in China, the RPD had an obligation to consider the sur place claim. It gave it such cursory
consideration as to fail to properly consider that claim.
IV.
Conclusion
[17]
For these reasons, this judicial review will be
granted, the RPD’s decision quashed and the matter remitted to the RPD for a
new decision by a different panel.
[18]
There is no question for certification.
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