Docket: IMM-5084-16
Citation:
2017 FC 656
Ottawa, Ontario, July 5, 2017
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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JIAN HUI 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
[1]
The applicant, Mr. Jian Hui Chen, is a Chinese
citizen who claimed refugee status in this country because he feared
prosecution from Chinese authorities for participating in a Christian house
church in China. He also fears because of his religious practice in Canada if
he were to be returned to his country of origin (sur place claim). The
applicant is seeking from this Court that it quashes the Refugee Appeal
Division decision rejecting his refugee claim under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
In effect, the applicant is challenging the
decision of the RAD to confirm the decision of the Refugee Protection Division
[RPD]. The decision under review concludes that the applicant was not a genuine
Christian in China and he was not being pursued by the Chinese authorities for
being involved in illegal religious activities or for disturbing the social
peace. The RAD also dismissed the sur place claim which was based on his
religious practice in Canada. There is, in the view of the RAD, no evidence of
a persuasive nature that he would come to the attention of Chinese authorities
due to his activities in Canada.
[3]
Given that the decision of the Refugee Appeal
Division [RAD] is the one that is subject to a judicial review application, the
only remedy, if any, would be to return the matter to the RAD for a
redetermination.
I.
The facts
[4]
The applicant was introduced to a Christian
house church in October 2013, following experiencing personal difficulties. The
applicant claims that he was baptized in January 2014.
[5]
In February 2014, the applicant noticed that
someone was taking pictures of him as he was distributing religious leaflets
with a friend. A few weeks later, on February 25, 2014, six or seven police
officers came to his home while he was sleeping. While there appears to have
been an altercation, the applicant’s mother intervened which allowed the
applicant to escape without the police seeing him.
[6]
The applicant went into hiding thereafter. He
was advised by his family that the Public Security Bureau [PSB] returned to his
house looking for him; they would have left a summons with his parents. He was
being accused of being involved in illegal religious activities.
[7]
The applicant fled China with the assistance of
a smuggler. He said he exited China on his passport and used a Hong Kong
passport to travel to an English speaking country, which he was not able to
identify, before arriving in Toronto on April 25, 2014. He does not know the
name he was using on the fraudulent passport. According to the Canada Border
Services Agency [CBSA], the applicant arrived in Toronto on a flight coming
from Hong Kong. Two weeks later, on May 6, 2014, the applicant made his refugee
claim. According to the applicant, he has attended church in Canada since May
2014 and has read the Bible during that time.
[8]
The RPD heard the respondent in May and June
2016. In essence, the RPD did not believe the story told by the applicant. It
declared the determinative issue to be credibility.
[9]
On appeal to the RAD, the finding of lack of
credibility was confirmed. The RAD followed the decision of the Federal Court
of appeal in Canada (Citizenship and Immigration) v Huruglica, 2016 FCA
93 [Huruglica] which found that the appeal from a RPD decision is done
on the basis of the correctness standard. The RAD does not defer to the RPD and
comes to its own conclusions.
[10]
As did the RPD, the RAD concluded as follows:
(a) It
is not credible that the appellant was a genuine Christian in China;
(b) It
is not credible that the appellant is wanted by the PSB for being involved in
illegal religious activities and for disturbing the social order; and
(c) It
is not credible that the appellant is a genuine Christian in Canada.
[Para 8
of the RPD’s decision]
[11]
Out of numerous findings in support of the lack
of credibility of the applicant, the applicant made four arguments before the
RAD. They are:
a)
It was not implausible that the applicant did
not remember the name of the English-speaking country he transited through
because this assumes that airport had signage in Chinese characters and the
language spoken was Mandarin;
b)
It was not implausible that the applicant did
not remember the name on the Hong Kong passport because he used it two years
ago and it was taken away from him by the smuggler when he entered Canada;
c)
The RPD erred in finding the applicant’s
religious practice in Canada was not genuine because of its credibility
findings respecting his practice in China;
d)
The RPD erred in according little weight to the
reverend’s letter supporting the applicant’s involvement in his church in
Canada in view of his position in the church and the firsthand knowledge that
it had of the applicant’s religious practice.
[12]
The RAD found that the version of events found
in the basis on claim document filed by the applicant was not consistent with
his testimony before the RPD. The same discrepancies and inconsistencies noted
by the RPD were found to exist by the RAD. These inconsistencies are material.
Thus, the testimony about the events of February 25, 2014 spoke of five or six
neighbours being at his home when the Chinese authorities arrived. That was not
to be found in the basis of claim [BOC] document. The applicant did not state
that he was chased by police officers, but rather that he was able to “sneak out” of the house when they did not pay
attention to him. The BOC made reference to only one further visit by the
Chinese authorities following the attempt to arrest him on February 25, 2014;
in his testimony, the applicant was found as embellishing his version by indicating
that the authorities returned to his home about three times, instead of the one
time in his BOC.
[13]
The RAD agreed with the RPD that the
explanations given by the applicant as to how the PSB knew of his address were
convoluted. Indeed, the address on the summons did not match the addresses that
he listed in his documentary evidence. It seems that he was located by the PSB
at his parents’ home, which is not on his government issued identification.
[14]
The RAD also conducted its own examination of
the summons (“chuanpiao”) and it found it
to be inconsistent with the sample summons that is found in the documentary
evidence. Furthermore, the RAD also noted that article 78 of the Criminal
Procedure Law of the People’s Republic of China (2012 Amendment) provided
that a warrant was required in order to arrest the applicant and no evidence
suggested that a warrant was presented when the PSB came to arrest the
applicant on February 25, 2014. Thus, in the view of the RAD, the summons was
not a genuine document.
[15]
With respect to the sur place claim, the
RAD agreed with the analysis done by the RPD. It wrote:
[26] The RPD stated that it considered
the totality of the evidence and although he possessed knowledge of
Christianity and he provided a certificate of baptism from the Living Stone
Assembly church in Toronto, it did not necessarily mean that he is a genuine
Christian. The RPD gave little weight to a letter form Reverend Ko from the
Living Stone Assembly in support of whether or not the Appellant is a genuine
Christian. The letter states that the Appellant had an interest in studying
Bible classes and attends Sunday service regularly. He also volunteers with the
church and has made donations. Rev. Ko stated that, when he first met the
Appellant, he asked a few Christian questions, and he could give him the
correct answer, so he trusted that he is a real Christian. The RPD points out
that Rev. Ko does not explain what questions were asked of the Appellant and
what other methodology, if any, he used to determine whether or not the
Appellant is a real Christian. The RPD did not find that correctly answering a
few questions about Christianity to be indicative of whether someone is genuine
or not in their beliefs.
The RAD made the further comment that the
reverend’s letter stated that “the police raided the
Appellant’s house church and six members were caught. This was never mentioned
by the Appellant in any of his evidence. He stated that the PSB came to his
house and attempted to arrest him, allegedly, for distributing Christian flyers”
(para 27).
[16]
The gist of the decision on the sur place claim
is found at paragraph 29 of the decision and it reads:
[29] The RAD finds that the credibility
findings can be imported into its assessment of the Appellant’s sur place
claim [Jiang, Sumei v. M.C.I., (F.C., no. IMM-13-12), Zinn, September
11, 2012, 2012 FC 1067]. Having found the Appellant’s story of persecution by
the PSB not to be credible, there is no reason to believe that he is now a
genuine Christian follower. The letter from Reverend Ko does not overcome the
other findings. There is no persuasive evidence that he would come to the
attention of Chinese authorities due to his activities in Canada.
II.
Standard of review
[17]
Whilst the appeal of a decision made by the RPD
is largely governed by a standard of correctness, the judicial review
application of that appeal is governed by the usual standard of reasonableness
(Huruglica, para 35, Ghauri v Canada (Citizenship and Immigration),
2016 FC 548, para 22, Ghamooshi v Canada (Citizenship and Immigration),
2016 FC 225, para 15).
[18]
Flows from that standard of review that this
Court must show deference to the findings made by the RAD. The RAD’s decision
must be outside of the acceptable possible outcomes in view of the facts and
the law. Indeed, reasonableness is concerned with the existence of
justification, transparency and intelligibility within the decision-making
process. Accordingly, it is for the applicant to discharge the burden and to
satisfy the Court that the outcome reached by the RAD is not one of the
possible acceptable outcomes as opposed to merely arguing the there is another
outcome, which the applicant would of course prefer. It would also be possible
to establish unreasonableness if the decision lacks justification, transparency
and intelligibility within the decision-making process.
III.
Arguments and analysis
[19]
In my view, the credibility findings made with
respect to the applicant with respect to the events that were alleged to have
taken place in China are not disturbed as being unreasonable. The applicant on
the judicial review application challenged the decision of the RAD concerning
the summons which was left by the PSB. The applicant suggests that the findings
are speculative. On the contrary, I find that finding to be reasonable within
the meaning of Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
At any rate, there is ample evidence that the credibility of this applicant was
correctly assessed by the RPD and the RAD. Merely challenging the decision on
the basis of the comments made with respect to the original summons amounts to
very little if compared to the rest of the evidence which, on this record, is
not challenged by the applicant.
[20]
The focus of the applicant’s argument is rather
on the sur place claim.
[21]
A sur place claim can be made based on
the claimant’s actions while outside his country of origin. Once the RAD has
assessed the claimant’s evidence relating to the sur place claim, the
evaluation of the genuineness of the claim can be considered in light of the
credibility findings related to the original events (Canada (Citizenship and
Immigration) v Sellan, 2008 FCA 381, 384 NR 163, at para 3; Sheikh v
Canada (Minister of Employment and Immigration), [1990] 3 FCR 238, 112 NR
61 (FCA) at para 8; Zhou v Canada (Citizenship and Immigration), 2015 FC
5, at para 23; Jiang v Canada (Citizenship and Immigration), 2012 FC
1067, at paras 27-28).
[22]
A situation remarkably similar to the one in
this case occurred in Li v Canada (Citizenship and Immigration), 2012 FC
998 [Li]. It appears that the same church was involved in both cases.
The approach taken in Li by my then colleague, Justice Mary Gleason, and
with which I fully agree, stresses the burden that rests on an applicant’s
shoulder. I reproduce paragraphs 28 to 31. They encapsulate an examination of
the standard that is to be applied, together the circumstances of a sur
place claim:
[28] As noted, the reasonableness standard
of review is an exacting one and prevents a court from substituting its opinion
for that of the RPD. As I have already stated, so long as the tribunal’s
reasons are understandable and the result is one that is rational and
supportable in light of the facts and the applicable law, a court should not
overturn an inferior tribunal’s decision under the reasonableness standard of
review. Application of this test to the RPD’s determination that the
applicant’s beliefs were insincere leads to the conclusion that the decision
must be maintained because the reasons the RPD offered were understandable and
the result it reached is supportable in light of the facts and applicable law.
[29] More particularly, the burden of
establishing the sincerity of his beliefs rested with the applicant. The
Board’s determination that he had not discharged this burden was based on its
assessment of the applicant’s credibility: the fact that he had obviously
fabricated a story about what occurred in China, had lied during his testimony
before the Board and had offered no convincing proof of a conversion experience
in Canada. Apart from the pastor’s letter, the baptismal certificate and the
photographs, there was no other evidence offered by the applicant to support
his claim to be a true Christian. The Board was in no way obliged to accept
these documents as proof of the sincerity of the applicant’s religious beliefs,
especially in light of the applicant’s lack of credibility and earlier
fraudulent attempt to enter Canada. In this regard, I endorse the comment of
Justice Pinard in Jin (cited above at para 24) at para 20,
that:
….it
would be absurd to grant a sur place claim
every time a pastor provides a letter attesting to an applicant’s membership in
his church.
[30] The applicant argues that his case is
distinguishable from Jin and Wang (cited above at para 24) because there, unlike here, the claimants’
knowledge of the religion they claimed to adhere to was found to be lacking. No
such finding was made by the Board in this case, and, indeed, the panel member
expressed himself satisfied with the applicant’s knowledge of Christianity during
his questioning of the applicant at the hearing. Counsel argues that in the
absence of lack of knowledge of Christianity, it was unreasonable for the Board
to find him not to be a sincere Christian because that finding, in effect, is
based on nothing more than the applicant’s improper motive in joining the
Living Stone Assembly church.
[31] I disagree and find the attempt to
distinguish the decisions in Jin and Wang to be unconvincing. While, as noted above, the
motive and sincerity findings made by the Board in this case are intertwined,
the Board’s determination that the applicant lacked sincerity was additionally
premised on the Board’s assessment of the applicant’s credibility, the fact
that he lied under oath and offered no convincing evidence to explain why his
practice of Christianity in Canada should be viewed any differently from his
fraudulent claim to have practiced Christianity in China. In light of these
factors, the Board’s conclusion was reasonable.
[23]
It is not so much that the fact that the
applicant, because his story in China is not believed, could not be found to be
a practicing Christian in Canada. It is rather that the credibility findings
with respect to events in China continue to be part of the analysis even in the
sur place claim. As put by Justice Gleason in Li, it cannot be that “a dishonest applicant would need only to join a church and
study the religion to advance a sur place claim” (para 32). On
judicial review, the applicant must show that the decision under review is
unreasonable. Given that his story of persecution in China was less than
credible, it was certainly reasonable for the RAD to require a high degree of
proof of his sincerity about his religious belief and the danger he would face
if going back to his country of origin.
[24]
Reasonableness is an exacting standard of review
which is not satisfied by merely alleging an error of law or of fact. The
applicant must rather show that the conclusion reached by the RAD, which
accords with the conclusion of the RPD, was not one of a number of possible,
acceptable outcomes. Such has not been shown on this record.
[25]
As a result, the judicial review application
must be dismissed. There is no question to be certified pursuant to section 74
of IRPA.
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