Docket: IMM-1102-14
Citation:
2015 FC 365
Ottawa, Ontario, March 23, 2015
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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RENXIAN MENG AND
HONGHUI LIAO
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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
[1]
This is an application for leave and judicial
review of a decision rendered on February 3, 2014 by the Immigration and
Refugee Board, Refugee Protection Division (the Board), rejecting the refugee
claims of Renxian Meng and his wife Honghui Liao (the Applicants) for lack of
credibility. The Applicants claimed that an underground Christian church they
attended in China was raided while they were visiting Honghui’s sister in
Canada, and that they cannot return because the Public Security Bureau (PSB)
will arrest and detain them for their religious practices.
[2]
For the reasons set out below, this application
is dismissed.
I.
Facts
[3]
Renxian and his wife Honghui are citizens of
China, and lived with their son in Cheng Du City, Si Chuan province. They
allege that in 2009, they had difficulties with their marriage and Honghui
suffered from climacteric syndrome.
[4]
Renxian alleges that in June 2009, his friend
Ding Yuan visited him and told him about Christianity, and how this new
religion and the support of fellow believers might help him face his
difficulties. Ding Yuan attended an underground church, and explained to
Renxian that the authorized churches were controlled by the Communist Party and
were not “true houses of God”. He was told that
they took precautions and that the church had never had any problems with the
authorities before. Renxian claims that he attended the underground church for
the first time on June 21, 2009, and became a regular at their weekly services.
The services helped him gain a more positive outlook, and he persuaded his wife
to attend as well in September 2009. They were both allegedly baptized on March
28, 2010.
[5]
On March 12, 2011, Renxian and Honghui came to
Canada on a visitor visa to visit Honghui’s sister. They began attending the
Living Stone Assembly Church in Scarborough, and on July 16, 2011, they were
baptized a second time, this time obtaining baptismal certificates. Their
visitor visa was set to expire on July 14, 2011, but Honghui’s sister invited
them to stay for another three months, and they claim that they extended their
visa until September 2011.
[6]
On August 17, 2011, the Applicants claim that
they received a call from their son, who told them that the PSB had been to
their home enquiring about them, and that the PSB had told their son that the
underground church they attended had been raided, and several of the church
members had been arrested. They claim that the PSB accused them of being
members of an underground illegal cult religion. At the hearing, Renxian stated
that their son had told them that the PSB kept returning every four or five
months looking for them.
[7]
The Applicants filed their refugee claim on
September 20, 2011.
II.
The impugned decision
[8]
The Board found that the Applicants were
generally not credible due to an accumulation of credibility concerns.
[9]
First, the Board drew a negative credibility
inference from the fact that they provided no documents, such as a summons or
arrest warrant, to support their allegation that the PSB had sought to arrest
them. The Board found that, although the documentary evidence is mixed on this
issue, it was reasonable to assume that given their allegation that other
church members had been arrested and that the authorities have continued to
inquire about the Applicants for more than two years, a summons or arrest
warrant would have been issued against them and left with their son. The Board
also drew a negative inference from the fact that the Applicants’ son had no
serious problems with the PSB, and found that the inaction of the PSB runs
counter to documentary evidence about the PSB’s methods. In the Board’s view, Renxian’s
testimony in this respect is implausible and detracts from his credibility.
Finally, the Board drew a negative inference of credibility from their lack of effort
to obtain information regarding the church members allegedly arrested and
documents regarding their arrest and possible sentencing and detention. As for Renxian’s
failure to request that his son obtain information from other church members
after the arrests because he would not know where to get this information and he
worked every day, the Board found that explanation unsatisfactory.
[10]
Second, the Board noted that the timing of the
raid was suspiciously convenient given their visit to Canada, the extension of their stay, and the lack of evidence indicating that Renxian had any
employment to return to in China, particularly in a context where they allege
that the church had had no problems for the last six years. The Board found
that they had in fact delayed making a claim to become established at a
Canadian Church in support of their refugee claim.
[11]
Third, the Board concluded that the documentary
evidence cast doubt on, and did not establish, that they in fact resided in
Cheng Du, Si Chuan at the time they allege they attended the underground church
in Cheng Du. The Board remarked that the address on the Applicants’ Household
Registration Card did not match the address indicated in their Personal
Information Form, that the employment section on their cards was not completed
even though the country condition documentation indicates that this is
required, and that since these documents were brought to Canada by a friend
after the Applicants’ arrival in Canada, they could not attest to their
provenance. Noting the evidence of widespread document fraud in China according
to the country condition documentation, the Board found that the Household
Registration Cards were likely fraudulent and did not establish their residency
at the material times. The Board also found that Honghui’s medical records were
likely also fraudulent because they have no security features, they mention her
menopausal ailments but not the other stomach ailments she claims to have
suffered from in 2008, and Honghui altered her testimony with respect to the
reason why the stomach ailments were not included. The Board found that these
documents could not be relied upon to establish the Applicants’ residency.
[12]
Fourth, the Board found that the Applicants
lacked subjective fear because they failed to bring their claim upon arrival in
Canada. The Board noted that it asked the Applicants why, if they were
Christians practising in an underground church in China, they did not claim
refugee protection when they arrived in March 2011. Renxian explained that
although they knew it was illegal, they only expected they would be subject to
a fine or warning if they got caught, and that it was only in August 2011,
after the raid, that they realized the extent of the risk they faced. The Board
found this explanation unsatisfactory, noting that it was highly unlikely that
a couple in their fifties that had lived in several large cities in China,
attended an underground Christian church for two years in China and a church in
Canada, would not already be aware of the severe repression of unregistered
house churches in China. The Board found that the five-month delay after their
arrival in Canada in filing their claim undermined their credibility and
demonstrated a lack of subjective fear.
[13]
Having found that the Applicants’ church was not
of interest to the PSB and that the PSB had no interest in the Applicants, the
Board found, on the basis of its credibility findings and negative inferences,
that the Applicants’ allegation that they were practising Christians in China
is not credible, and was only made for the purpose of supporting a fraudulent
claim. Having so found, and having no evidence of conversion in Canada, the
Board also found that the Applicants joined a Christian church in Canada solely
for the purpose of supporting a fraudulent refugee claim. In this respect, the
Board gave little weight to the letter of support from their pastor in Canada,
as well as their baptismal certificates and photographs, and noted that they
indicated participation, but did not establish their motivations.
[14]
In conclusion, the Board remarked that although
each of these credibility concerns might not be determinative individually, the
cumulative effect was sufficient to undermine their credibility. The Board
concluded that the Applicants had not practiced Christianity in China, were not
sought after by the PSB, and were not genuine Christians now. The Board also
noted that the Applicants had not established a risk of torture or a risk to
their lives or security under section 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27.
III.
Issue
[15]
The only issue to be decided in this application
is whether the Board’s credibility findings are reasonable.
IV.
Analysis
[16]
The parties are in agreement that the applicable
standard of review with respect to credibility findings of the Board is
reasonableness: see Aguebor v Canada (Minister of Employment and
Immigration), [1993] FCJ No 732, at para 4; Tomic v Canada (Minister of Citizenship and Immigration), 2015 FC 126, at para 21.
[17]
The Applicants first submitted that there are
two serious flaws with respect to the Board’s conclusion regarding the absence
of a summons and arrest warrant. First, counsel argued that the documentary
evidence referred to and relied upon by the Board is a Country of Information Report
authored by the UK Border Agency, the source of which is a document that formed
part of the Board’s own National Documentation Package from June 2004 that was
removed from the Board’s package in October 2012. Furthermore, the Applicants
contend that the report indicates that although it is common to leave a summons
with a family member, this is not in fact the proper procedure and procedures
may vary from region to region. The Applicants argue that it is unreasonable to
draw a negative inference from the absence of an arrest warrant where the
country condition documentation indicates that this is a possibility.
[18]
I agree with counsel for the Applicants that it
was inappropriate for the Board to refer indirectly (through the use of a
document from the UK Border Agency) to a document that previously formed part
of the Board’s own National Documentation Package but that was removed from
that package at the time of the hearing. I also agree with the Applicants that
the Board’s conclusion that it was reasonable to expect that a summons and a
subsequent arrest warrant would have been left with the Applicants’ son was
made without giving proper regard to the evidence. Indeed, the above-noted UK
Report does indicate that the proper procedure for issuance of a summons is to
serve it in person, although in practice such documents are often served on
family members. Implausibility findings may only be made in the “clearest of cases” (Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776, at para 7), and where
the country condition documentation indicates that the Applicants’ version is
one of the possibilities, then this is not sufficient to ground an
implausibility finding.
[19]
That being said, the Board then went on to
discuss the Applicants’ lack of effort in obtaining copies of a summons or
arrest warrant or any information on fellow church members who were arrested in
2011. The Applicants’ Screening Form instructed them to obtain certain
documents, including any summons or arrest warrants. When the Board asked the
Applicants whether they had asked their son to obtain such information and
documents, the Applicants said that they had not asked their son to do so
because “[…] even if he were to go to the authorities
he wouldn’t know which one, which department to go to. And my son, he has to
work every day” (Tribunal Record, p 973). In my view, it was reasonable
for the Board to draw a negative inference from this explanation, which was
insufficient to explain why they had not even tried to obtain relevant
documents, as requested by the Board.
[20]
Concerning the problems faced by the Applicants’
son, the Applicants argue that the Board’s finding is entirely speculative as
the evidence does not support the conclusion that the PSB would become
aggressive towards the family member of an alleged Christian. On this point, I
agree with the Applicants. Although reporting significant harassment, arrest
and detention of unregistered Protestant church members, the two country
reports cited do not indicate harassment of non-practicing family members as a
form of coercion. To be sure, the U.S. Department of State Report on
International Religious Freedoms provides only that family members of “religious leaders” and those of some “religious freedom activists” were subject to aggressive
action by the PSB. Similarly, the 2013 Annual Report of the U.S. Commission on
International Freedom references a single incident of the family members of a
Uighur human rights and religious freedom activist being subject to harsh
treatment at the hands of the PSB. However, no similar treatment was noted for
family members of mere Christian practitioners. As a result, this aspect of the
Board’s reasoning is unfounded on the evidence.
[21]
With respect to the coincidental timing of the
raid, the Applicants contend that this finding is illogical and speculative.
They emphasized that they only claimed refugee protection in August 2011
because that is when the church raid occurred, and that there is nothing
implausible about the occurrence of the church raid or the timing of it. They
argue that the fact that they attended church upon their arrival in Canada
simply shows that they are devout Christians and this should not have given
rise to a negative credibility finding. They remark that the Board’s implied
assertion that the timing is suspicious because they have no employment to
return to is unreasonable and would make every refugee claimant from a less
fortunate country not credible. Overall, they contend that the Board failed to
apply the presumption of truthfulness to their testimony.
[22]
In my view, the Board’s remark that the timing
of the alleged church raid is an “extraordinary
coincidence” that is suspiciously convenient is not unreasonable in
light of the evidence, notably the fact that they were visiting their sister in
Canada and their visitor visa was set to expire. Although I agree with the
Applicants that there is nothing inherently implausible about a church raid
occurring while the Applicants were away, there are a number of suspicious
aspects to the timing of their story.
[23]
For example, the Board noted that the Applicants
began attending the Living Stone Water Assembly shortly after their arrival in
Canada and were baptized on July 16, 2011. Although I agree that their church
attendance does not cause a problem, why would the Applicants undergo a second
baptism in July 2011 if their intention at that point was to return to China upon
the expiration of their visa a month later? There was no theological reason for
a second baptism, and a baptismal certificate would be a dangerous document to
carry on their return to China. It seems reasonable to suspect, given this
timing, that the Applicants were planning their refugee claim before the
alleged raid in August 2011.
[24]
Furthermore, although I agree that not having
employment in the country of origin should not generally be a ground to doubt a
refugee claimant’s motives, it does seem odd that Mr. Meng would have no
problem obtaining a total of six months’ leave from work just to come
sightseeing in Canada with his sister-in-law. There was no objective evidence
to support his claim that he still had a job and that his employer had agreed to
extend his leave for six months. In my view, it was reasonable to note that
this cast doubt on the Applicants’ motivations for visiting Canada and
extending their visit, and on their credibility generally. Indeed, the Board
put that coincidence to Renxian at the hearing, but his answer was
unresponsive. In those circumstances, it was reasonable for the Board to
suspect that the timing of the alleged church raid suggested that the
Applicants had intended all along to make a refugee claim and had delayed it in
order to become established at a Toronto church.
[25]
With respect to the delay in claiming, the
Applicants argue that they have consistently testified that they claimed
refugee protection after the church raid, and that prior to that raid they had
only expected to face a fine or warning if their activities were discovered.
They submit that the Board’s finding that they would have known these risks, is
speculative. I am unable to agree with the Applicants. I find nothing
unreasonable or speculative in this line of reasoning, and I agree that the
Applicants’ testimony – combined with the above-noted issues relating to timing
– suggest that the Applicants delayed filing their claim to become established
at a church in Canada and build up evidence for their claim. Although the
Applicants contend that there is nothing implausible about filing a claim after
a significant event of persecution, such as a church raid, it is the Applicants’
explanation for that delay that really cast doubt on their credibility. Having
testified that they worshipped in private homes and had lookouts for each
service to avoid the authorities, the Applicants must have known of the
potential serious consequences for members of underground churches in China. It
is one thing to say that you were prepared to tolerate some repression until a
significant event occurred, and quite another to feign ignorance of the impact
of your actions. If the Applicants had actually been members of an underground
church which was hidden from the authorities, it was not unreasonable to
presume that they would have made some effort to seek protection without delay.
Though not determinative, the delay in claiming was a basis on which the Board
could scrutinize the credibility of the claim.
[26]
Finally, the Applicants contend that the Board
erred in not conducting an independent assessment to determine whether –
regardless of their motivations for beginning to practice – they had become
genuine Christians by the time of the hearing. They claim that the Board’s
reasons do not indicate that it gave any consideration to Renxian’s actual
evidence concerning the genuineness of his beliefs, his own knowledge and his
practice of his religion, and thereby failed to assess the sur place
aspect of his claim. The Applicants also submit that the Board should have done
an independent assessment of Honghui’s religious identity.
[27]
I agree that the jurisprudence requires the
Board to go beyond the initial fraudulent intent and consider the totality of
the evidence concerning the Applicants’ practices: Hou v Canada (Minister of
Citizenship and Immigration), 2012 FC 993; Jiang v Canada (Minister of
Citizenship and Immigration), 2012 FC 1067; Chen v Canada (Minister of
Citizenship and Immigration), 2014 FC 749. However, this is precisely what
the Board did at paragraphs 51 to 55 of its decision. The Board considered all
of the relevant evidence with respect to the Applicants’ practice in Canada, and came to the conclusion that this evidence had little weight and did not support
the Applicants’ contention that they had become genuine Christians. Combined
with its finding that the Applicants were not Christians in China, this lack of evidence of a genuine conversion in Canada allowed the Board to reasonably find
that the Applicants are not genuine Christians. In those circumstances, it was
unnecessary for the Board to conduct a distinct analysis of the female Applicant’s
religious identity, since the evidence tendered with respect to her practice
was essentially the same as that of her husband’s.
[28]
The Board was aware that none of the concerns that
it raised were sufficient, each on its own, to negate the Applicants’ claim. It
is the cumulative effect of all of them, in the end, that was found to be
fatal.
[29]
The Applicants’ story rested on a specific
allegation, that is, that they belong to an underground church in Cheng Du, Si
Chuan province, which was raided by the PSB on or about August 17, 2011, and
that several members of their church were arrested on that day. To succeed in
their claim, they needed to establish these facts on a balance of
probabilities; in the absence of any corroborative evidence, they failed to do
so.
[30]
The Applicants could not establish the relevant
facts through their own testimony, since they were not in China at the time. They relied on the double hearsay of their son, who could not provide
any documentary evidence in support of the Applicants’ story. They sought to
present country condition evidence to make up the gap, but the extensive
documentary evidence before the Board made no mention of any such raid in Cheng
Du anytime close to August 2011. In those circumstances, and in light of the
many implausibilities and inadequacies in the Applicants’ testimony, the Board
was entitled to consider the presumption of truthfulness rebutted.
V.
Conclusion
[31]
The decision of the Board is not without
frailties. When considered in its totality, nevertheless, I am of the view that
the Board identified a number of credibility concerns that were reasonable and
cumulatively sufficient to support its final decision. This application is
therefore dismissed. No question is certified.
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