Date: 20100625
Docket: IMM-5987-09
Citation: 2010 FC 694
Ottawa, Ontario, June 25,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SHOUPENG
WEI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) where the Board finds that the Applicant is not a Convention refugee nor
a person in need of protection under the Act.
[2]
The
application for judicial review shall be granted for the following reasons.
Factual Background
[3]
The
Applicant, Shoupeng Wei, is a citizen of China. He claims that
he is a practicing Christian and as such will be persecuted in China. He alleges
that he became motivated to embrace Christianity when a friend’s prayers cured
him of gastric problems that he was suffering in July 2005. After he was cured,
the Applicant mentions that he regularly attended an unregistered church until
the Public Security Bureau’s (PSB) raid in April 2006. He went into hiding for
nine months and while he was in hiding, he was able to obtain a Canadian
visitor’s visa through a smuggler. He arrived in Canada on January
13, 2007 and made a claim for refugee protection on February 6, 2007.
Impugned Decision
[4]
The
Board’s decision rests on the issue of credibility and the negative inferences
that it draws with regard to the Applicant’s religious activities in China and
Canada and his being pursued by Chinese authorities.
[5]
With
regard to the Applicant’s claim that he is being pursued by Chinese
authorities, the Board draws a negative inference as the Applicant testified
that the PSB issued an arrest warrant against him but this was never mentioned
in his initial interview or in his Personnel Information Form (PIF). The
Applicant explained that it was never mentioned previously because he was not
asked about it directly and because he could not obtain a copy of the warrant.
[6]
The
Board draws another negative inference from the fact that the Applicant was
issued an extension of his passport during the same period that he was
supposedly being pursued by the PSB. Relying on documentary evidence that
describes a computer-based information network (the Golden Shield) that allows
for the sharing of information amongst different government agencies, the Board
finds that it is not reasonable that the PSB would issue a passport to the
Applicant ten days after the raid on the church since he was a person of
interest in a criminal investigation.
[7]
The
Board finds the Applicant’s testimony with regard to the PSB’s active search
for him to be implausible. The Board cites documentary evidence indicating that
in order to leave China, the Applicant would have had to have his
identity confirmed through a computer-based information system and finds that
the Chinese authorities would have known that he left China as he
testified that he used his own passport when exiting. The Applicant testified
that the PSB continues to periodically attend on his home and enquire as to his
whereabouts. The Board finds this implausible as the Chinese authorities should
be aware that he has left China.
[8]
The
Board states that as the Applicant alleges that he was in hiding for nine
months before leaving China, there was sufficient time for his name to be added
to a PSB alert list and determines that his name would not have been removed
seeing as the PSB was actively searching for him. In order to leave China, an
individual must have their name compared with a list of people of interest to the
PSB, thus the Applicant’s testimony that he left China using his
own passport and without any problems leads the Board to draw a negative
inference.
[9]
Based
on the above findings, the Board determines that the PSB is not seeking the
Applicant for his alleged religious activities.
[10]
With
regard to the Applicant’s introduction to Christianity, the Board concludes that
the Applicant embellished his testimony concerning his belief that his friend’s
prayers cured his medical problems. This finding is based on the Applicant’s
testimony that his illness was not that serious, that his illness did not
prevent him from working on his family farm and that he received Western and
Chinese medicines as treatment.
[11]
The
Applicant testified that he was aware that he could be detained for attending
an unregistered church and that his wife, who was eight months pregnant, did
not want him to do so. The Board finds it neither credible nor plausible that
the Applicant would jeopardize the finance security of his pregnant wife and
daughter for the sake of attending at unregistered church. The Board draws a
negative inference from the Applicant’s explanations with regard to his
motivation to participate in an unregistered church.
[12]
Finally
the Board turns to the question of whether or not it finds that the Applicant
is a genuine Christian today. The Board notes that the Applicant provided a
letter from a pastor confirming that he attends mass and bible study regularly
and a baptismal certificate. But little weight is given to this evidence as it does
not attest to his motivation in attending the church or that he is a genuine,
practicing Christian. The Board also notes the Applicant’s good grasp of the
basic concepts of Christianity and knowledge of the bible but observes that he
did not appear to have emotional commitment to the Christian faith. In the
context on the totality of the negative inferences drawn, the Board finds that
the Applicant’s knowledge was acquired while in Canada and only for the purpose
of supporting a fraudulent refugee claim.
Standard of Review and
Analysis
[13]
The
Board’s decision is based on its assessment of the Applicant’s credibility. In
reviewing credibility findings, the Court will apply the standard of
reasonableness (Lin v. Canada (Minister of
Citizenship and Immigration), 2008 FC 558, [2008] F.C.J. No. 700 at para.
4). Accordingly, the Court will only intervene if the decision falls outside of
the "range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
[14]
The
Applicant submits that the Board made substantive errors in its credibility
findings and that justifies the intervention of this Court.
[15]
I
have carefully examined the findings made by the Board and I agree that two of
them are reviewable errors because they are central to the applicant’s claim.
[16]
First,
the Applicant argues that the Board overstated the information regarding the
Golden Shield computer information system and that a review of the document
relied on by the Board (Immigration and Refugee Board Canada, Whether the
Public Security Bureau (PSB) has set up a national computer network for
information sharing; nature and extent of communication between PSB offices
across the country; whether a link to a police computer network is available at
international airports in China (2003 - 2006) (27 April 2006), Certified
Tribunal Record at page 108) shows that it is uncertain whether or not the
technology has been implemented. The information does not confirm that a
centralised information sharing system was in place, rather it discusses the
intention to put such a network in place but there is no confirmation that such
a network has definitively been launched, implemented and functions in a way
that would have prevented the issuance of a passport extension to the Applicant
ten days after the church raid.
[17]
Second,
the Panel notes that the Applicant did not appear to have an emotional
commitment to the Christian faith. This is a somewhat perplexing finding,
particularly as the Applicant testified through an interpreter, and I don’t see
how the Board could properly assess the Applicant’s emotional commitment in
these circumstances.
[18]
I
am of the opinion that the Court’s intervention is warranted.
[19]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT ORDERS that the judicial review application is allowed. The matter is
remitted back for me redetermination by a newly constituted Board. No question
is certified.
“Michel
Beaudry”
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