Docket: IMM-2216-11
Citation: 2012 FC 503
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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HAIXHIN ZHANG
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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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REASONS FOR ORDER AND
ORDER
[1]
The
Applicant, a citizen of China, claims refugee protection in Canada as a
Christian because of subjective and objective fear that should he be required
to return to China he will suffer more than a mere possibility of persecution
under s. 96 of the IRPA, or probable risk under s. 97. The present
Application concerns the rejection of his claim on what is argued by the
Applicant to be a highly contentious practice by the Refugee Protection
Division member concerned, Mr. L. Favreau.
[2]
The
present Application concerns the reception of the Applicant’s evidence that he
was a practicing Christian in China, and as a practicing Christian in Canada, he is
entitled to make a sur place claim. In particular, the focus is on the
Member’s determination that, based on his knowledge of Christian religious
doctrine, it is implausible that the Applicant is a Christian.
I. The
Applicant’s Claim as a Christian in China
[3]
In
the decision under review the Member provided the following outline of the
history to the Applicant’s claim:
The claimant alleges that he
was first introduced to Christianity by his mother in 2005. Although not
initially interested in Christianity at that time, over time he became more
interested in the teachings of Christianity. A good friend brought him to his
house church for the first time in November 2006. Thereafter he became a member
of the church and he regularly attended. In December, 2006 his house church
activities were nearly discovered by members of the PSB. As a consequence his
regularly [sic] weekly services were reduced to once a month. In December 2007
the claimant traveled to Canada on a visitor’s visa. While in Canada he
regularly attended services. He received news from China that members of his underground house
church were being questioned by members of the Public Security Bureau (PSB) and
that his house church leader had been arrested. Fearing that he would be arrested
if he were to return to China he filed for refugee protection in December 2008.
(Decision, para. 2)
With respect to the Applicant’s sworn
evidence that he was a Christian in China, on the basis of perceived conflicts
and inconsistencies, the Member made a negative credibility finding to conclude
that he was not a Christian in China. Counsel for the Applicant strongly argues
that the negative credibility is unreasonable. I find that in reaching a
conclusion on the present Application it is not necessary to address this
argument because for the these reasons set out below, I find that, as a matter
of law, the Member was in reviewable error in using the negative credibility
finding to reject the Applicant’s sur place claim as a Christian in
Canada.
II. The
Applicant’s Claim as a Christian in Canada
[4]
The
Member made the following findings on this issue:
Shortly after arriving in
Canada the claimant alleges he began attending his mother’s church. He later
joined the Living Stone Assembly and attended services in Kitchener Waterloo
and Toronto. The claimant was asked a number of broad questions concerning his
Christian knowledge. The claimant was able to answer some questions and did
demonstrate some knowledge of Christianity however, the claimant failed to correctly
answer some basic and fundamental questions. The claimant was not able to correctly
identify all four of the gospels. He was able to provide names of two of the
gospels but was unsure if they were correct. The claimant was asked the names
of the Jesus’ apostles. The claimant stated that he was not very good with names
and could only recall James and Simon. The panel rejects the claimant’s
explanation. The claimant has 16 years formal education and claims to have been
regularly attending Christian services since November 2006. He further claims
to read the bible 4 or 5 times a week. It is reasonable to expect that the
claimant would be able to recall the four gospels and to provide the names of
more apostles. In this regard the panel draws a negative inference.
The claimant was asked if he
knew the names of any prayers. The claimant was only able to name the Lord’s
Prayer. The claimant was asked to recite the Lord’s Prayer. The claimant was
not able to correctly recite the Lord’s Prayer, leaving out two complete
sentences and substituting many of his own words. The Lord’s Prayer is the most
fundamental prayer of Christianity and it is reasonable to expect that a
genuine practicing Christian of over four years would be able to recite the
prayer from memory without difficulty.
The claimant testified that he
reads the bible weekly. In addition, the claimant testified that he has been a
Christian since November 2006 and that while in China he regularly attended
church services. The claimant also produced letters from Rev. Ko and other pastors
[Exhibit C-2] which indicate that the claimant has been attending church
regularly since arriving in Canada, While it is true there are
many people who identity
themselves as Christian and who have limited knowledge of their religion, the
panel must consider if the claimant’s limited knowledge is reasonable in his
given circumstances. The claimant alleges that when in China, he knowingly put
himself in danger of arrest and detention for the sake of his religion. He
further claims that he has been a practicing Christian since November 2006 and
that he regularly reads the bible. The claimant is a sophisticated individual
with 16 years of formal education. The panel finds it reasonable to expect that
the claimant would have more Christian knowledge than he was able to
demonstrate. Given the foregoing, the panel finds it neither plausible nor
credible that the claimant would have such limited Christian knowledge if he
truly has been a Christian since November 2006.
The claimant testified that he
reads the bible at home. He was asked how often he reads the bible to which he
replied “when I have time”. He was asked if he reads the bible daily or weekly
or monthly. The claimant again provided a vague response. Many times during
this hearing, the claimant testified in a vague, evasive and confusing manner
with respect to the material aspects of his claim. At times, responses were not
forthcoming and to ensure that he was given every opportunity to present his
claim, the claimant was given repeated opportunities to answer questions.
While it is difficult to make a
judgment regarding the genuineness of a person’s religious practice it is
necessary in this case. In doing so, the panel considered the totality of the
evidence available. Although it is true the claimant does possess some
knowledge of Christianity; that knowledge does not necessarily mean he is a
genuine practicing Christian. The claimant produced a letters [sic]
from Rev. Ko and other pastors, and a baptismal certificate which indicates
that the claimant was baptized in Canada.
These documents can only attest to the claimant’s participation in church
activities, they do not attest to his motivation. In this regard, recent case
law indicates that a pastor’s assessment of the genuineness of a person’s faith
cannot be substituted for the assessment that the panel is required to make [Wo
Ji Coo v Minister of Citizenship and Immigration, IMM-1303-08, Mosley, 2008
FC 1174]. The panel gives little evidentiary weight to these documents.
Having found that the claimant is not being pursued by the PSB and in the
context of his Christian knowledge, the panel finds that the claimant was not a
practicing Christian in China as he alleges. The panel further finds that the
claimant’s allegation that he was a practicing Christian in China is not
credible and was only for the purpose of supporting a fraudulent claim and that
these credibility findings raise a significant doubt about his general
credibility.
Having found that the claimant
was not a Christian in China, the panel must consider
whether the claimant is a genuine practicing Christian in this Country. There
is a requirement for ‘good faith’ in making a refugee claim. In this regard,
R.P.G. Haines, the Chairman of a refugee status appeal panel and A.G. Wang
Heed, a member of the United Nations High Commission for Refugees stated in
part:
If there is no good faith
requirement in the sur place situation, it places in the hands of the appellant
for refugee status the means of unilaterally determining the grant to him or
her of refugee status.
[Refugee Status Appeals
Authority (New Zealand), Refugee Appeal No. 2254/94, RE: HB September21, 1994. (www.Nzrefugeeappeals.govt.nzlpdfs/ref
1994092 l_2254.pdf. ]
In this regard, the panel
cites the following from James Hathaway’s The Law of Refugee Status with
regard to “sur place” claims: An individual who as a stratagem deliberately
manipulates circumstances to create a real chance of persecution which did not
exist cannot be said to belong to this category [Hathaway, James, The Law of
Refugee Status, (1991)]. The panel finds, on a balance of probabilities
that this claim has not been made in good faith.
Having found that the claimant
is not a genuine practicing Christian in China and having found that this claim
has not been made in good faith, the panel finds, on a balance of
probabilities, and in the context of findings noted above, that the claimant
joined a Christian church in Canada only for the purpose of supporting a
fraudulent refugee claim.
In the context as noted above, and on the basis of the totality of evidence
disclosed and in the context of the claimant’s knowledge of Christianity, the
panel finds the claimant is not a genuine practicing Christian, nor would he be
perceived to be in China.
On the basis of the totality
of the evidence and the cumulative findings and negative inferences noted
above, the panel finds that the claimant has not satisfied his burden of
establishing a serious possibility that he would be persecuted or that he would
be personally subjected to a risk to his life or a risk of cruel and unusual
treatment or punishment or a danger of torture by any authority in the People’s
Republic of China.
[Emphasis added]
(Decision, paras. 12 - 20)
[5]
Thus,
the process engaged by the Member to find that the Applicant failed to prove he
is a Christian in Canada has two discrete elements: questioning about knowledge
of Christianity; and summary dismissal of the evidence of the Applicant’s
conduct in Canada.
A. Questioning About
Knowledge of Christianity
[6]
The
issue with respect to this element is whether it is fair for the Member to
conduct a subjective analysis of a refugee claimant’s knowledge of Christianity
and conclude whether he or she is, in fact, a Christian.
[7]
While
the Member states that it is difficult to make a judgment regarding the
genuineness of a person’s religious practice, there is nothing in the decision
to indicate that the Member struggled with doing so in the Applicant’s case.
The following is an excerpt from the Member’s questioning of the Applicant
during the course of the hearing:
MEMBER: I
want you to tell me everything you know about Christianity.
CLAIMANT: That
is quite a big topic, either can you be more specific about what you want?
MEMBER: Tell me anything
you know, anything you know.
CLAIMANT: Like the Ten
Commandments.
MEMBER: Okay,
well that is not … Ten Commandments are not distinct to Christianity, but go
on.
CLAIMANT: I
know some other church also believe in the Ten Commandments, I heard.
MEMBER: Who
is the key person, or the key individual within Christianity?
CLAIMANT: Of course, Jesus
Christ.
MEMBER: Is
that not something that is different? Is that not something you could have told
me earlier?
What
was Jesus Christ’s purpose on earth?
CLAIMANT: He is the only
true God, only God of trinity.
MEMBER: What was his
purpose on earth?
CLAIMANT: Son of God.
MEMBER: I am sorry?
INTERPRETER: Son of God.
MEMBER: Yeah
he is the son of God. Yeah. What was his purpose on earth?
CLAIMANT: He
came here to save us, to redeem us. He lived for us and he died for us. To
save us, to wash away our sin … original sin of our own sin. So we could have
eternal life.
MEMBER: Are
you telling me that Jesus washed away your original sin?
CLAIMANT: All those who
believe in him, the original sin.
MEMBER: Well,
sir if that is the case, what is the purpose of baptism?
CLAIMANT: It is to … baptism
is to wash away our original sin.
MEMBER: So,
which is it? Jesus is sacrificed on the cross that washed away your original
sin, or is it baptism? Which one of those two is correct? Because you have
given me two different answers.
CLAIMANT: Baptism.
MEMBER: Baptism
was … washed away our original sin. Okay, so what did Jesus, what was his
purpose in death then?
CLAIMANT: He died for us.
MEMBER: What day did he
die?
INTERPRETER: I am sorry?
MEMBER: What day did he
die?
CLAIMANT: Good Friday.
MEMBER: Are you sure?
CLAIMANT: Yeah, I am sure.
MEMBER: When did Jesus
start his ministry?
CLAIMANT: 30.
MEMBER: When he was 30
years old?
CLAIMANT: Right.
MEMBER: You are right.
CLAIMANT: I am right?
MEMBER: Yes you are
right.
(Certified Tribunal Record,
pp. 187 – 188)
[8]
The
transcript reads as a debate between scholars on the correct interpretation of
Christian theology. Testing an applicant’s understanding of religious tenants
is fraught with unaddressed extremely serious questions. A brief glimpse into
the complexity of the topic should give pause for thought about questioning a
person about his or her religious beliefs, values, and, indeed, knowledge.
[9]
The
Supreme Court of Canada has grappled with the reality that religion is about
belief, and belief is about faith; a phenomenon which is difficult to clarify.
[10]
In Ross
v New Brunswick School District No 15, [1996] 1 SCR
825 at paragraph 70, the Supreme Court states that it “is not the role of [the]
Court to decide what any particular religion believes.” And as found in the
decision of Syndicat Northcrest v Amselem, [2004] 2 S.C.R. 551, at
paragraph 39:
… In essence, religion is about freely
and deeply held personal convictions or beliefs connected to an individual's
spiritual faith and integrally linked to one's self-definition and spiritual
fulfillment, the practices of which allow individuals to foster a connection
with the divine or with the subject or object of that spiritual faith.
[11]
Both
Ross and Amselem hold that regardless of idiosyncrasy, if a
certain view is conscientiously held, it is religious. On this point the
following view underscores the subjectivity of faith:
[What] counts in law as religious is that which is meaningful to
the individual … the individual's sense of his or her own relationship to the
divine or to the object of faith is what lies at the core of law's imagining of
religion.
(Benjamin
L. Berger, “Law’s Religion: Rendering Culture” Osgoode Hall Law Journal
Summer, 2007)
[12]
The
Court has recognized the potential unfairness of RPD religious knowledge
testing and has attempted to limit the stringency of this inquiry. In Dong
v Canada (Minister of Citizenship & Immigration), 2010 FC 55, at
paragraph 20, Justice Kelen found as follows:
In assessing a claimant’s knowledge of
Christianity, the Board should not adopt an unrealistically high standard of
knowledge or focus on a “few points of error or misunderstandings to a level
which reached the microscopic analysis”: Attakora v. Canada (Minister of
Employment and Immigration) (F.C.A.), (1989), 99 N.R. 168, [1989] F.C.J.
No. 444 (QL), and subsequent cases: Huang v. Canada (MCI), 2008 FC 346, 69
Imm. L.R. (3d) 286, per Justice Mosley at paragraph 10; Chen v. Canada (MCI),
2007 FC 270, 155 A.C.W.S. (3d) 929, per Justice Barnes at paragraph 16.
Indeed, in Penghui Wu v Minister of
Citizenship and Immigration, 2009 FC 929, Justice Kelen found that assessing
a genuine Christian by way of “trivia” is contrary to law. In Wang v
Minister of Citizenship and Immigration, 2011 FC 1030, Justice Beaudry determined
that a decision of the RPD can be set aside where the claimant was held to an
unreasonably high standard of religious knowledge. In Wang the applicant
was determined not to be a Christian because the RPD found he incorrectly answered
questions about “transubstantiation”. At paragraph 13, Justice Beaudry has this
to say about such a determination:
The Board erroneously determined the
applicant's knowledge of the Catholic faith by way of "trivia". In
assessing the applicant's knowledge of Christianity, the Board
"erroneously expected the answers of the applicant to questions about his
religion to be equivalent to the Board's own knowledge of that religion" Ullah
v. Canada (Minister of Citizenship and Immigration), 2000 FCJ No 1918, para
11.
[13]
The
Supreme Court has signalled caution in testing someone’s faith. It is plausible
that a Christian will have knowledge of Christianity but the degree of
knowledge expected must be fair to the individual concerned. If it is to be
said that all Christians should know certain facts about the religion,
there must be a verifiable way to establish this expectation. The expectation
cannot be so established on a completely subjective basis by a decision-maker. Therefore,
if a general expectation is established of persons who claim to be Christians,
advance notice of the expectation must be given so the expectation is fair to
all who apply. If this results in an advance learning process by persons who
wish to claim protection as Christians, so be it. If it is to be said that a certain
person who claims to be a Christian should know certain facts about the
religion, a reasonable and credible explanation of why this should be the case
must be provided.
[14]
But
a primary question to ask is: in fairness, what does it mean for a person to
fail to answer a question about a certain detail of religious dogma? There are
many possible answers: the question is not understood so the answer is not
responsive; the person possesses a weak memory; a momentary lapse of memory has
occurred; the answer was not learned no matter how much study has taken place;
the answer is honestly held as correct whether or not it is thought to be so by
the questioner; and so on. In my opinion, with these considerations in play, a
failure means nothing of value. In the present case this point comes into full
focus.
[15]
There
is no question that the Applicant has been regularly practicing Christianity in
Canada since 2007 and has proven knowledge of the religion. In this context, in
my opinion, it is absolutely ludicrous and unfair for the Member to have found
that the failure to answer as described above can result in a finding that the
Applicant is not a Christian. The only thing the failure proves is that the
Applicant did not have the expected answer.
[16]
Thus,
the presumption that a person swears to be of a certain religious faith cannot
be rebutted simply on the basis of his or her knowledge of that religion.
First, religious knowledge cannot be equated to faith. And second, the quality
and quantity of religious knowledge necessary to prove faith is unverifiable.
Therefore, a finding of implausibility that a certain person is not of a
certain faith because he or she does not meet a certain subjective standard set
by a decision-maker is indefensible as a matter of fact.
[17]
In
addition, in my opinion, as it has been conducted by the Member, questioning on
religion is indefensible as a matter of law.
[18]
In
essence, the practice of religious questioning allows an RPD member to be her
or his own expert with respect to what questions to ask and what answers to
expect in reply. As identified in the cases cited above, the vagary of this
sort of highly subjective practice on the part of a decision-maker is certainly
open to abuse. The practice purports to apply some form of stereotype in the
mind of an RPD member of what a Christian should know. The determination that
satisfactory answers are not supplied is, in essence, the making of an
implausibility finding. That is, if the answers on Christian knowledge expected
of a refugee claimant are not provided to an RPD member’s satisfaction, grounds
exist for finding that it is implausible that the claimant is a Christian.
[19]
The
law with respect to the making of implausibility findings is very clear. Implausibility
findings are required to follow a rigorous standard of proof as set out in the
following passages from
the decision in Vodics v Minister of
Citizenship and Immigration, 2005 FC 783 at paragraphs 10 - 11:
With respect to making negative
credibility findings in general, and implausibility
findings in particular, Justice Muldoon in Valtchev v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1131, [at paragraph 7] states
the standard to be followed:
The tribunal adverts to the principle
from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a
refugee claimant swears to the truth of certain allegations, a presumption is
created that those allegations are true unless there are reasons to doubt their
truthfulness. But the tribunal does not apply the Maldonado principle to this
applicant, and repeatedly disregards his testimony, holding that much of it
appears to it to be implausible. Additionally, the tribunal often substitutes
its own version of events without evidence to support its conclusions.
A tribunal may make adverse findings of
credibility based on the implausibility
of an applicant's story provided the inferences drawn can be reasonably said to
exist. However, plausibility findings should be made only in the clearest of
cases, i.e., if the facts as presented are outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that the
events could not have happened in the manner asserted by the claimant. A
tribunal must be careful when rendering a decision based on a lack of
plausibility because refugee claimants come from diverse cultures, and actions which
appear implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu. [see L. Waldman, Immigration Law
and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[Emphasis added]
It is not difficult to understand that,
to be fair to a person who swears to tell the truth, concrete reasons supported
by cogent evidence must exist before the person is disbelieved. Let us be
clear. To say that someone is not credible is to say that they are lying. Therefore,
to be fair, a decision-maker must be able to articulate why he or she is
suspicious of the sworn testimony, and, unless this can be done, suspicion
cannot be applied in reaching a conclusion. The benefit of any unsupported
doubt must go to the person giving the evidence.
[20]
Thus,
in the present case, the Member’s conclusion that it is implausible that the
Applicant is a Christian must be considered against the standard just
described. As articulated by Zakhour v Minister of Citizenship and
Immigration, 2011 FC 1178 at paragraph 5, a proper implausibility
finding is made in the following manner:
Therefore, in the present case, from
evidence on the record, the RPD was required to: first, clearly find what
might reasonably be expected by way of a Hezbollah response to the Applicant’s
actions; then make findings of fact about the response that was made by
Hezbollah; and, finally, conclude whether the response conforms with what might
be reasonably suspected. In the present case this process of critical analysis
was not followed. On this basis I find that the RPD’s implausibility findings
are unsupported speculations, and, therefore, the decision under review is not
defensible on the law and the facts.
[Emphasis in original]
Adapting the test to the making of
implausibility findings with respect to religious questioning requires an RPD
member to follow a three-part process: from evidence on the record find what might reasonably be expected
by way of a response to a discrete question; fairly obtain an applicant’s
answer; and finally, conclude whether the answer conforms with what might be
reasonably suspected. The key feature of the test is establishing what answer
might be reasonably expected. This feature requires that a credible and
verifiable evidentiary basis for the expectation has been established and
known.
[21]
In the present case the Applicant
answered most of the questions posed by the Member to the Member’s satisfaction
with the implausibility finding being based only on the few questions not
considered to be satisfactorily answered. Because the process of critical analysis as
described was not followed, in particular, because there was no established and
known credible and verifiable evidentiary basis for the expectation that a
certain answer would be provided, I find that the Member’s
implausibility findings are erroneously made.
[22]
As
argued by Counsel for the Respondent, I acknowledge that a refugee claimant who
relies on religious grounds to claim protection must prove the religious
affiliation asserted. I also acknowledge that for the Member to establish and
make known a credible and verifiable basis of what to expect by way of answers
to questions about the religion prior to religious questioning taking place,
claimants may be able to abuse the process by just learning the answers before
being questioned. The solution to this dilemma exists in a point of principle:
the law will not tolerate anything less than following the correct process, and
because the present practice does not conform to the law, and the correct
process might result in abuse, the present practice of questioning on knowledge
of religion should be abandoned as fundamentally flawed for failure to be based
on a verifiable standard.
[23]
This
is so because it seems to me that knowledge of religious dogma, does not equate
to holding religious faith. It’s not about the doctrines. The thing that is
important is the ethic instilled by the religious teachings that a person takes
and lives by. Attending church and quoting scriptures aren’t as important as
how a person lives his or her life according to the morals and values learned.
It also seems to me that on this basis, a process of questioning religious
knowledge is a fundamentally flawed fact-finding venture to learn about a
person’s religious faith. Learning about the person is the only path to the
truth.
[24]
Professor
Hathaway in The Law of Refugee Status, (Toronto: Butterworths, 1991)
at page 38 provides
guidance about how learning about the person who makes a sur place claim
as a Christian in Canada helps in reaching a fair determination where a person
is under suspicion:
In the case of persons who have chosen to
be politically active in their state of origin, the authenticity of the
political opinion underlying the activism is generally assumed. This is
sensible, because an individual would be unlikely to make insincere attacks on
her state at a time when she remains within its grasp. The ability of the
state to exert control and to punish is an implied barometer of authenticity.
In contrast, an individual outside the jurisdiction of her state of
origin may be subject to no such automatic and effective control
mechanism. It is thus more readily conceivable that an oppositional
stance could be assumed simply for the purpose of fabricating a claim to
refugee status, [See footnote below] and thus not reflect a political
opinion as required by the definition. The challenge, then, is to respond
to this real evidentiary difference without being dismissive of such protection
needs as may arise from the expression of sincerely held convictions at a time
when an individual is abroad.
This can be done by canvassing a number of issues. First does the
claimant retain close personals connections to family, friends, or institutions
in her home state? Insofar as such a nexus exists, it affords a surrogate
indicator of sincerity, as the claimant would be less likely to engage in
unfounded opposition where persons who are important to her are at risk.
Second, are the claimant's statements or actions abroad consistent with her
behaviour prior to departure? If so, the consistency affords some
evidence of veracity. If there is no consistency, are there valid reasons
to explain the claimant's openness or change of views once abroad? Third, can the
firmness of the claimant's newly expressed convictions be tested? To the extent
that she has a clear understanding of relevant concerns and issues and has
become significantly involved in their propagation, it is more likely that she
genuinely embraces the belief underlying her statements or actions.
[Footnote from above: "Asylum law protects those who in
good faith need to be sheltered from persecution. This protection was
not meant to encompass those who make political statements for the sole purpose
of becoming refugees" [Emphasis added]: K. Petrini, "Basing Asylum
Claims on a Fear of Persecution Arising from a Prior Asylum Claim" (1981),
56 Notre Dame Lawyer 719, at 729.]
B. Summary
Dismissal of the Evidence of the Applicant’s Conduct in Canada
[25]
As
quoted above, the Member acknowledges that the Applicant produced documentary
evidence to prove his conduct as a Christian in Canada, including the following:
·
Certificate
of Baptism
·
East
Toronto Mandarin Alliance Church’s letters regarding the Claimant, his mother and
sister
·
Letter
from Waterloo Region Community Integration Service
·
Letters
from Living Stone Assembly
·
Chester
Village Nursing Home’s Letter regarding the claimant’s mother
·
Letter
from K-W Chinese Alliance Church regarding the Claimant’s brother.
(Applicant’s Application Record, Tab B)
[26]
Of
principal importance is the content of the letter from the Applicant’s pastor, Reverend
Ko:
Mr. Haixin Zhang born on March
25, 1954 has been attending our church since his arrival in Canada in December
2007. He first attended the Living Water Road church in Waterloo, where he
actively participated in group gatherings and activities, committed to study
the Bible and eager to learn.
Mr. Zhang moved to Toronto in
June of 2008, and started attending our branch in Toronto, Living Stone
Assembly. Again, he has devoted his time and effort to the church, by greeting
people, distributing program [sic], and volunteered to help with various
functions on a regular basis.
I have known Mr. Zhang since
December 2007, and he is very friendly and easy to get along with. He is
humble and honest in his interactions with people. Through his interactions
with people from the church, Mr. Zhang has adapted well and quickly to a new
life style and new environment. He has proven to be a very helpful and caring
person as he offers his help to everyone.
I am the Pastor in charge of a
number of churches, including Living Water Road in Waterloo and Living Stone in
Toronto.
(Certified Tribunal Record, p.
155)
[27]
In
my opinion, and contrary to the Member’s own assertion that the lack of
genuineness of the Applicant’s religious practice was found on the basis of the
totality of the evidence available, the Member committed a cardinal error by
not giving due consideration to the Applicant’s evidence of his conduct. While
the Member is correct that it is for the RPD decision-maker to make a proper
determination on the genuineness of an applicant’s claim for protection,
including cogent opinion evidence, it is a matter of law that any conclusion reached
must be made on the totality of the evidence (Owusu-Ansah v Canada (Minister of
Employment and Immigration), [1989] F.C.J. No 442 (CA)). However, in the
present case, the evidentiary support the Applicant advanced to prove that he
is a Christian in Canada was not fairly considered. In particular, Reverend
Ko’s opinion required careful consideration, which might have included having him
testify, and thus to be available for cross examination, if any reason existed
for not accepting his written statement as credible.
III. Result
[28]
For
the reasons provided, I find that the decision under review does not fall within a range of possible, acceptable outcomes, which are defensible in respect of the facts and
law.
ORDER
THIS COURT
ORDERS that:
1.
The
decision presently under review is set aside, and the matter is referred back
to a differently constituted panel for redetermination.
2.
There
is no question to certify.
“Douglas
R. Campbell”
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