Docket: IMM-2635-14
Citation:
2015 FC 606
Ottawa, Ontario, May 8, 2015
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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CHENGLIN BAO
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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
brought under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. Chenglin Bao challenges the decision of the
Refugee Protection Division of the Immigration and Refugee Board of Canada
which denied her refugee claim. For the reasons below, the application is
granted.
I.
Background
[2]
The applicant is a citizen of the People’s
Republic of China. She was raised in Shandong Province. Her English tutor, Juan
Liu, introduced her to Christianity in 2007. She began to attend an underground
Protestant church and was eventually baptized.
[3]
In 2008, Ms Bao came to study in Canada. She has
been an active member of a Christian church in Canada ever since. She visited
her parents in China from March to August 2010. She then returned to Canada to
continue her studies.
[4]
Ms Bao claims that she received a phone call
from her parents on November 9, 2010. They informed her that officers from the
Public Security Bureau [PSB] had attended their home to ask where she was and
when she would return to China. The officers would not say what they wanted. Ms
Bao suspected that the PSB was interested in her religious activity. She tried
to contact several of her fellow worshippers in China but could not reach them.
[5]
On May 15, 2012, Ms Bao received another
troubling phone call from her parents. They had just discovered that Ms Liu and
her husband had been arrested back in November 2010 and sentenced to one and a
half years in prison. They had just been released. On the strength of this
information, Ms Bao applied for refugee protection.
[6]
By decision dated March 3, 2014, the Board
rejected Ms Bao’s claim. This is the decision under review.
[7]
In essence, the Board found that the claimant
did not provide sufficient credible and trustworthy evidence to justify her
fear of returning to China. On the balance of probabilities, the Board did not
accept her allegations with respect to what had occurred in China.
[8]
The claimant testified that her house church in
Shandong was raided by the police in November 2010. She alleged that at least
two members were arrested and sentenced to prison terms. The Board observed
that the China Aid Association gathers data on the treatment of Christians in
China with an emphasis on Protestant house churches. Its annual report for 2010
makes no mention of a police raid in Shandong in November 2010.
[9]
The Board explained that it understood that
China Aid might not be aware of every incident in China. Yet Ms Bao said that
her associates were arrested, tried and sentenced. Moreover, she provided the
purported release certificates they received after they had served their
sentences. Since the applicant did not assert that the government acted
secretly in this case, the Board assumed that its actions should have come to
the attention of the China Aid Association.
[10]
The Board then turned to the purported release
certificates. They state that Ms Juan and her husband were sentenced for “use of cult organizations breaking the law”.
According to the documentary evidence, the authorities in China label certain
organizations “evil cults” or “cults”. However, Protestant house churches do not
fall within the scope of this term. Organizations perceived as cults in China
typically build up large followings. This was not the case for the claimant’s
church, which had a membership of sixteen believers. The Board affirmed that,
although unregistered house churches and groups declared cults are all illegal,
unregistered churches are “sometimes treated with a
certain level of tolerance”, while the members of cults are “ruthlessly pursued”. Therefore, the mention of a cult
in the certificates was inconsistent with the documentary evidence.
[11]
Finally, the claimant alleged at the hearing
that her parents told her that Ms Juan and her husband had been tortured during
their detention. In the written narrative contained in her personal information
form, there is no reference to torture. The claimant explained that she did not
know that she had to include this information. According to the Board, this is
not a reasonable explanation, since her four page description contained many
other details.
[12]
The Board then turned to the objective basis of
the claim. It affirmed that there are tens of thousands of unregistered house
churches in China, most of which carry on their business with little if any
trouble from the authorities. The evidence indicates that church leaders, as
opposed to lay members, are most commonly targeted. On the balance of
probabilities, the Board found that Ms Bao would be able to practice her
religion in China without a serious possibility of persecution.
II.
Issues
[13]
The applicant raised three issues in her written
submissions:
1.
Did the Board breach the duty of procedural
fairness?
2.
Did the Board err in assessing credibility?
3.
Did the Board err in assessing objective risk?
[14]
The applicant abandoned the first issue at the
hearing. The Court agrees that there was no breach of the duty of fairness and
so there is no need for further discussion.
[15]
The Court has concluded that the second issue
suffices to grant this application. Consequently, there is no need to discuss
the third issue either.
[16]
The law is settled that credibility findings are
reviewable on the standard of reasonableness: Triana Aguirre v Canada
(Citizenship and Immigration), 2008 FC 571 at paras 13-14; Kaur v Canada
(Citizenship and Immigration), 2012 FC 1078 at para 51.
III.
Analysis
[17]
The allegations of a refugee claimant must be
presumed to be true unless there are reasons to doubt their truthfulness: Maldonado
v Canada (Minister of Employment and Immigration), [1979] FCJ No 248 (FCA).
The Court has concluded that the Board did not articulate defensible reasons
for questioning the applicant’s credibility in this case. The inconsistencies
it identified were microscopic, irrelevant or speculative. Therefore, the Board
committed a reviewable error by rejecting the applicant’s testimony.
[18]
It was unreasonable for the Board to doubt the
applicant’s story simply because it had not been reported by the China Aid
Association. It is one thing to find that the objective evidence contradicts
portions of a claimant’s story. It is quite another to speculate that the
claimant’s story lacks credibility just because it was not picked up by an
organization which reports incidents in a country with over one billion people.
The second course of action is unreasonable. The Board is not entitled to
reject testimony solely because it is not corroborated by documentary evidence
from a particular source. It bears repeating that sworn testimony is presumed
to be true – whereas a report entered into evidence is not presumed to be
infallible.
[19]
The Court pauses to observe that there was some
confusion at the hearing as to whether the China Aid Association report
included in the Certified Tribunal Record was the one which the Board had
referenced in its reasons. Nothing turns on this. For the reasons just given,
the Board could not reasonably draw the inference which it did from any report
prepared by the China Aid Association.
[20]
The Court further observes that Adu v Canada
(Minister of Employment and Immigration), [1995] FCJ No 114 (FCA), an
authority cited by the respondent, can be distinguished. In that case, the
Board questioned the applicant’s credibility because there was no objective
evidence to corroborate the existence of a law which he claimed the authorities
had used to persecute him. One may expect that statutes and official decrees
issued by a state will be published by that state’s organs. Yet there is no
reason to expect that an activist organization has the ability to report every
single incident which falls within its area of interest.
[21]
The Board also drew an unreasonable negative
inference from the release certificates. It must be kept in mind that the Board
expressed no concern with the physical appearance of these documents or any
other potential signs of forgery. The Board simply opined that this evidence
was not credible because it stated that the applicant’s friends had been
sentenced for belonging to a “cult”. The Board
affirmed that this term is not applied to Christian churches in China because
such churches are “sometimes” treated with a certain
level of tolerance” [emphasis added] – despite being illegal and despite
the fact that their leaders can be imprisoned.
[22]
The Board contradicted itself when reaching this
conclusion. It is well-accepted that law enforcement practices vary by region
in China: Weng v Canada (Citizenship and Immigration), 2011 FC 422 at
para 17. Moreover, the Board accepted that underground churches are illegal in
China and that their leaders face imprisonment. The Board did not intelligibly
explain why the Chinese authorities could not use the laws against cults to
sentence and imprison two particular members of an illegal church. The fact
that the authorities may have proceeded differently in other cases does not
render implausible their conduct as described by the applicant.
[23]
Finally, the applicant alleged that her friends
had been tortured in jail at the hearing but not in her personal information
form. The Board could reasonably infer that the applicant was attempting to
embellish her claim and draw a negative inference. However, it is not clear to
the Court that the Board would have rejected her entire testimony due to his
inference alone. One reasonable finding cannot save an otherwise flawed
decision. As a whole, the Board erred when evaluating the applicant’s
credibility.
[24]
The Board’s erroneous assessment of Ms Bao’s
credibility suffices to quash its decision. There is no need for the Court to
discuss the applicant's concerns with the Board's treatment of the objective basis of her claim.
[25]
The parties did not propose any questions for
certification and none will be certified.
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