Docket: IMM-5083-11
Citation: 2012 FC 311
Ottawa, Ontario, March 15,
2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
|
|
YANPING LU
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
This
judicial review is in respect of a failed refugee claim. The basis for the
refusal of the claim was that the Applicant was excluded from refugee
protection under Article 1E of the United Nations Convention Relating to the
Status of Refugees and pursuant to s. 98 of the Immigration and Refugee
Protection Act (IRPA). The Immigration and Refugee Board (IRB) made an
alternative finding that the Applicant would not be persecuted for practising
Christianity in China’s Fujian province.
[2]
The
IRB’s decision on both issues turns on its conclusion that the Applicant was
resident in Chile and it is
this aspect of the decision that must be the centre of this judicial review.
II. BACKGROUND
[3]
The
Applicant is a citizen of China, married with two daughters. His wife and
daughters remain in China.
[4]
The
Applicant claimed that he had been introduced to Christianity in May 2006 and
began its practice in early 2007.
[5]
In
one incident in January of 2008, while he was at work, the Applicant’s wife
informed him that the Public Service Bureau (PSB) had visited their home
looking for him and had told her that he was a member of an illegal church. The
Applicant went into hiding. Later that day the PSB raided the Applicant’s church
and arrested four members.
[6]
In
the second incident in February of 2008, the PSB visited the Applicant’s home
to charge him for violating religious regulations. However, he was in hiding
and remained in hiding until he left China.
[7]
The
Applicant claimed that he arranged with a smuggler to escape to Canada. He said
that he left China on March 14, 2008 and travelled through Hong Kong, Malaysia, Argentina and Chile. He said
that he arrived in Chile on March 16, 2008.
[8]
The
Applicant’s story is that, to secure a Canadian visa, the smuggler obtained two
fraudulent documents, which indicated that he was a permanent resident of Chile. The Chilean
Certificate of Permanent Residence was issued December 31, 2007 and the Chilean
Foreign Resident Identity Card was issued January 28, 2008.
[9]
The
Applicant finally arrived in Canada on July 14, 2008 and filed a refugee claim
based on his participation in an underground church in China. He claimed
that during his absence from China, the PSB had visited his home on numerous
occasions and those church members that were previously arrested were either
sentenced to labour camps or to prison terms of three years. The Applicant also
claimed that he continued practising his faith in Canada.
[10]
Prior
to the first IRB hearing day, the CBSA contacted the Chilean Consulate to
confirm the Applicant’s status in Chile. This initial request
was refused because of strict Chilean privacy laws which required the
Applicant’s consent. At the first hearing the Applicant gave his consent. The
Applicant said that the Chilean documents had been arranged by the smuggler and
that he had no real knowledge of their content.
[11]
The
Minister’s representative, and subsequently the IRB, was informed by the
Chilean Consulate that the Applicant did have Chilean permanent residence
status when he entered Canada but that status had been lost because he remained
outside of Chile for more
than one year.
[12]
In
the IRB’s decision, it was noted that the Applicant’s counsel had been given time
to contact the Chilean Consulate to request further information on his client’s
status in Chile. Counsel
informed the IRB that he had received no response to his inquiries.
[13]
On
the issue of the Applicant’s status in Chile, the IRB
made several critical findings:
·
The
Applicant was a permanent resident of Chile from October 2007;
·
Chilean
and Canadian laws in respect to loss of permanent residence are similar in that
permanent residence is not unconditional and can be lost due to absences (in
Canada such status can be revoked if the person was abroad for six months); and
·
Based
on Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA
118, the Applicant’s loss of permanent residence status was due to his own
volition. The IRB then concluded that the Applicant was excluded under Article
1E of the United Nations Convention.
Article 1: Definition of the term
“refugee”
E. This Convention shall not
apply to a person who is recognized by the competent authorities of the country
in which he has taken residence as having the rights and obligations which are
attached to the possession of the nationality of that country.
[14]
The
IRB, on the basis of the Chilean documents, which were accepted as true,
concluded that the Applicant had resided in Chile from at least
October 2005 to July 2008. Given this time frame, the Applicant’s introduction
to Christianity and the PSB’s attempts to pursue him were not credible or
trustworthy.
[15]
The
IRB then rejected the Applicant’s Chinese residency documents as proof that he
was in Fujian province at all relevant times because a) the documents could
have been obtained when he visited sometime between 2005 and 2008 and b)
because of the prevalence of fraudulent documents in China.
[16]
Following
the logic that the Applicant was in Chile rather than China at
the time of his joining the church, the IRB held that his faith practice in Toronto was an
effort to bolster his refugee claim. The Board cites the Applicant’s failure to
recite the Lord’s Prayer and Apostle’s Creed as evidence that his faith was
suspect.
[17]
The
IRB cites the absence of persecutions of Christians in Fujian province as
evidence which undermines a claim based on religious persecution.
[18]
In
summary, the Board held that there were too many inconsistencies in the
circumstances to find the Applicant’s claim to be credible.
III. ANALYSIS
[19]
As
noted, the overarching issue is the authenticity of the Chilean residency
documents. If they were indeed fraudulent, then the Applicant’s story has a
level of consistency from which a reasonable person could conclude that his
fear of religious persecution was both subjectively and objectively well
founded. If, on the other hand, those documents are legitimate, then the
Applicant’s story collapses because it is inconsistent with the timelines.
[20]
As
to the standard of review, in Zeng, above, the Federal Court of Appeal
held that where the issue is the test for exclusion, the applicable standard is
correctness (at para 11). Conversely, whether the facts give rise to exclusion
under Article 1E is a matter of mixed law and fact that attracts a
reasonableness standard, as does an issue of fact alone (see Dunsmuir v New
Brunswick, 2008 SCC 9 at paras 51 and 53; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 46).
[21]
The
purpose of the Article 1E exclusion is to preclude refugee protection for those
who do not need it. The test for Article 1E exclusion was laid out in paragraph
28 of Zeng, above:
28 Considering all relevant factors to
the date of the hearing, does the claimant have status, substantially similar
to that of its nationals, in the third country? If the answer is yes, the
claimant is excluded. If the answer is no, the next question is whether the
claimant previously had such status and lost it, or had access to such status
and failed to acquire it. If the answer is no, the claimant is not excluded
under Article 1E. If the answer is yes, the RPD must consider and balance
various factors. These include, but are not limited to, the reason for the loss
of status (voluntary or involuntary), whether the claimant could return to the
third country, the risk the claimant would face in the home country, Canada's
international obligations, and any other relevant facts.
[22]
The
Applicant does not challenge the test for exclusion but simply the IRB’s
finding that the facts give rise to exclusion. However, this finding warrants
deference and will stand if it falls within the range of acceptable outcomes
based on the evidence before it.
[23]
The
Respondent had raised a prime facie case that the exclusion applied to
the Applicant. The Chilean documents and the confirmation from the Consulate
that the Applicant had permanent resident status are sufficient to raise the prime
facie case.
[24]
The
Respondent having raised a prime facie exclusion case, the burden is on
the Applicant to rebut that case. That is the legal regime imposed on the
parties.
[25]
The
only evidence produced to rebut the Chilean evidence was the Chinese residency
documents. There is a clear conflict in the evidence; both cannot be legitimate.
[26]
The
Board’s suggestion that the Chinese residency documents could have been
obtained when the Applicant went back to China was simply a
comment on the plausibility of these documents. There was no evidence of any
such return. The comments must be read in light of explaining how such
documents come about including the evidence that fraudulent documents were
prevalent in China.
[27]
It
was reasonable for the Board to conclude that the Chilean documents were
legitimate and from that finding to conclude that the Applicant’s story was not
credible because it was inconsistent with the facts underlying those documents.
[28]
It
was the Applicant’s burden to show that he was not in Chile at the
relevant times and to show the Chilean documents to be fraudulent. Simply saying
that they were fraudulent, in these circumstances, would not be sufficient.
[29]
The
Board’s conclusion that the Applicant was not persecuted for his religious
beliefs is coloured by the finding that he was in Chile at the
relevant times. While the evidence of his knowledge of Christian tenets of
religion was equivocal (he knew such things as the Trinity and original sin but
could not recite core prayers), it was open to the Board to find the
Applicant’s evidence to be insufficient.
IV. CONCLUSION
[30]
For
these reasons, this judicial review will be dismissed. There is no question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed.
“Michael
L. Phelan”
Email this Content