Docket: IMM-5221-16
Citation:
2017 FC 650
Toronto, Ontario, July 5, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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BING CHEN
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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
I.
Background
[1]
This is an application for judicial review under
section 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [the Act] of a November 17, 2016 decision [Decision] by the Refugee Appeal
Division [RAD] of the Immigration and Refugee Board. In its Decision, the RAD
confirmed the Refugee Protection Division [RPD] conclusion that the Applicant
was neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Act. For the reasons explained below, I am dismissing
this judicial review.
[2]
The Applicant is a citizen of China from Tantou
Town in Changle City, in the Province of Fujian. He alleges that he
experienced, and will continue to experience, religious persecution in China
due to his adherence to the Roman Catholic faith.
[3]
The Applicant alleges that on December 24, 2015,
he attended his first gathering in a Catholic house church on the
recommendation of two friends. He claims that he subsequently started attending
regular Sunday evening services, held in in five different believers’ homes.
[4]
The Applicant alleges that on March 18, 2016, he
fled and went into hiding upon being approached by Public Security Bureau [PSB]
officers while distributing religious flyers. The Applicant says he managed to
escape to his aunt’s home where he remained in hiding until arrangements were
secured for a departure to Canada. The Applicant states he paid a smuggler to
procure a Chinese passport in his name, and a visa, to facilitate departure
from China to Canada.
[5]
The Applicant left China on May 16, 2016, from
Guangzhou aboard a direct flight to Vancouver. He initiated a refugee claim
upon landing. The RPD ultimately dismissed the Applicant’s claim based on a
number of negative credibility findings. The Applicant appealed the decision to
the RAD.
[6]
Undertaking its own analysis, the RAD rejected
the claim based on negative credibility findings and insufficiency of evidence.
The credibility findings included that the evidence failed to establish, on a
balance of probabilities, that he had been a member of an underground Catholic church
in China, and was also insufficient to establish a sur place claim.
II.
Issues and Analysis
[7]
The Applicant raises three issues: did the RAD
err in its assessment of the Applicant’s (A) credibility; (B) genuine belief in
Roman Catholicism; and (C) sur place claim?
[8]
The applicable standard of review for these three
issues is reasonableness (Canada (Citizenship and Immigration) v Huruglica,
2016 FCA 93 at para 35). The Court must consider whether the RAD’s findings
fall “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
A.
Credibility in the Departure from China
[9]
The RAD’s credibility findings were reasonable.
The RAD identified a number of factors that undermined the Applicant’s
credibility, including his accounts of: losing his Resident Identity Card [RIC]
and then his family subsequently finding an old RIC; losing his passport in the
airplane yet retaining all other key travel documents; exiting China using a fraudulent
passport issued in his own name while wanted by the PSB; and his experiences
with Catholicism.
[10]
The Applicant, in his written materials, did not
attack the RAD’s finding that the new detail regarding the RIC (not provided in
his Basis of Claim [BOC] form) constituted an embellishment and therefore
undermined the Applicant’s credibility. However, in oral reply, the Applicant argued
that this credibility finding was unreasonable. In my view, however, the RAD’s
(and the RPD’s) characterization of the RIC’s explanation as an embellishment
was entirely reasonable.
[11]
There is also nothing unreasonable about the
findings with respect to the passport, i.e. using a false passport issued in
his own name, despite being allegedly wanted by the PSB. The same applies
to the alleged loss of the passport in the airplane: in light of the importance
of the passport in leaving China, along with the absence of any mention of the
passport in the Applicant’s list of refugee claim documents, and the lack of
any efforts to recover the passport after realizing it was lost, the RAD reasonably
pointed to section 106 of the Act. It also justifiably relied on Rule 11 of the
Refugee Protection Division Rules, SOR/2012-256, which requires that a
claimant must “provide acceptable documents
establishing identity and other elements of the claim” – and claimants
who fail to do so must explain why they did not provide the documents and what
steps they took to obtain them.
[12]
Having said this, the RAD’s credibility findings
are not perfect. I agree with the Applicant that the RAD’s finding that he had
to apply for his passport at his local PSB station is problematic. This finding
overlooks ample documentary evidence regarding the availability of illicit
passports obtained by third parties, which would not require the individual to
apply at the local PSB station.
[13]
I also find the related conclusion regarding the
ability to exit China undetected on a fraudulent passport issued in one’s name
by an individual wanted by the PSB, to be a questionable one, notwithstanding
important evidentiary and factual differences in the case at bar from cases
relied upon by the Applicant (including Yang v Canada (Citizenship and
Immigration), 2016 FC 543 and Ren v Canada (Citizenship and Immigration),
2015 FC 1402). As Justice Locke stated in Yao v Canada (Citizenship and
Immigration), 2016 FC 927 at para 16, “it is far
from clear in the evidence that false Chinese passports cannot be used to clear
border controls and leave China.”
[14]
Nonetheless, when these questionable findings
with respect to the obtaining of the passport and exiting of China are
considered in the context of all the other tribunal findings – including those with
respect to the passport itself, such as the plausibility of its loss on the
airplane – they are not fatal to the overall determination. There are a
significant number of other justifiable credibility findings made in the
Decision.
[15]
I find that overall, the credibility findings relating
to the Applicant’s passage to Canada are all within the range of possible,
acceptable outcomes, and therefore withstand the scrutiny on judicial review.
B.
Whether the Applicant was a Genuine Catholic and
a Member of an Underground Church in China
[16]
The RAD found that the following factors
undermined the Applicant’s claim that he was a genuine Catholic and a member of
an underground church in China: (1) his “vague”
testimony as to why he first attended, and continued to attend, the church, and
“vague” testimony why Catholicism resonated with
him; (2) his inability to reasonably explain what security measures were in
place by the church and its members to avoid PSB interest, despite his
testimony that security measures helped allay his fear of joining the underground
church; (3) his lack of knowledge regarding the very basics of the structure of
the Catholic Church (such as questions pertaining to the Pope and the Vatican).
[17]
Given the factual context, and the questioning
that took place before the RPD, these findings were open to the RAD. While the BOC
and oral testimony include explanations for joining the Catholic Church and
statements that attendance left the Applicant with “a
positive feeling”, this evidence does not address the RAD’s concern with
the Applicant’s lack of any basic knowledge of Roman Catholicism or its
institutions. The RAD is owed significant deference in its assessment of a
claimant’s religious knowledge in instances where the applicant’s credibility
has been impugned and an applicant has failed to provide any strong evidence in
support of the genuineness of his or her belief (Hou v Canada (Citizenship
and Immigration, 2012 FC 993 at para 54).
[18]
Likewise, I find no error in the RAD’s doubts as
to the Applicant’s motivation for joining the underground church in China, his
inability to provide details about its security measures, and his very limited knowledge
of Roman Catholicism. It was also open to the RAD to find that the Applicant’s
emphasis on the little that he had learned in Canada undermined the claim that
he was a genuine Catholic in China.
C.
The Applicant’s sur place Claim
[19]
Finally, the RAD’s findings with respect to the sur
place claim were intelligible and justifiable: letters from a priest at a
Catholic Church in Canada, and from parishioners, were simply insufficient to
establish the genuineness of the Applicant’s claimed Catholic belief, on a
balance of probabilities, for the purposes of a sur place claim,
particularly in light of the findings with respect to his involvement in China
(see, for instance, Li v Canada (Citizenship and Immigration), 2012 FC
998 at paras 29, 32; Su v Canada (Citizenship and Immigration),
2013 FC 518).
III.
Conclusion
[20]
The RAD provided detailed and incisive reasons,
including reference to specific pieces of key documentary evidence, and applied
the relevant law. The fact that the RAD disagreed with the treatment of certain
evidence by the RPD demonstrated that it engaged in an independent and thorough
analysis of the claim. I find that the record supports the RAD’s outcome based
on the totality of the evidence. While the Decision is not perfect, when
reviewed as a whole, it is eminently justifiable, intelligible and transparent (Dunsmuir
at para. 48; Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 15). This application for
judicial review is accordingly dismissed.
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