Date: 20120504
Docket: IMM-6232-11
Citation: 2012 FC 544
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
|
|
SHAO RONG HU
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
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 legal finding by the Refugee Protection
Division member concerned, Mr. L. Favreau.
[2]
The
Applicant’s claim for protection is based on his evidence that he is a
Christian who practiced his religion both in China prior to
fleeing for Canada, and subsequently in Canada. The
circumstances of making his claim are stated by the Member as follows:
The claimant alleges that he was first
introduced to Christianity by a friend in September 2007. The friend suggested
Christianity to the claimant because he recognized that the claimant was
feeling depressed due to his failed relationships. The claimant began to
regularly attend underground services beginning in late September 2007. In
August 2008, the claimant was at his underground house church service when it
was raided by members of the Public Security Bureau (PSB). The claimant managed
to escape and immediately went into hiding. The claimant alleges that PSB
attended his home in search of him. The PSB told his parents that they had
arrested four fellow members of the church and demanded that the claimant turn
himself in. Fearing that he would be arrested, the claimant used the services
of a smuggler to leave China for Canada where he filed for refugee protection.
(Decision, para. 2)
[3]
However,
in the decision under review the Member made the global negative credibility
finding that, not only was the Applicant not a Christian in China as he
alleged, but that this element of his claim was made only for the purpose of
supporting a fraudulent claim (paragraph 15). This finding is based on five
factors: an inconsistency in the Applicant’s testimony (paragraph 11); no
persuasive documentary evidence to support the allegation that the Applicant is
being pursued by the PSB in China (paragraph 12); the fact that the PSB did not
leave or show his parents a summons or a warrant when they attended the family
home (paragraph 13); the Applicant’s evidence that his house church was raided
and four members were arrested and incarcerated “is neither plausible nor
credible” with respect to Guangdong Province; and “ it is reasonable to expect
that a person with the religious profile of the claimant would have a deeper
and more substantial understanding of the core beliefs of Christianity”
(paragraph 7).
[4]
While
Counsel for the Applicant challenges the global negative credibility finding,
the primary focus of the present review is the Member’s finding that since the
Applicant was found to be fraudulent in maintaining to be a Christian in China,
he is unable to establish his “good faith”, which is said to be essential to
making a sur place claim as a Christian in Canada. Counsel for the
Applicant argues that this finding is based in a misunderstanding of the law,
and is an error in law. Since I agree with this argument for the reasons that
follow, I find it is not necessary to address the substance of the negative
credibility finding in order to set the present decision aside.
[5]
The
Member’s statement of the law in the decision under review is as follows:
[…] 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 September 21, 1994. (www.Nzrefugeeappeals.govt.nz/pdfs/ref_19940921_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).].
Having previously found the
claimant’s testimony with regard to his religious affiliation in China
untrustworthy, the panel finds, on a balance of probabilities, and in the
context of all of the findings and negative inferences drawn above, that his
claim has not been made in good faith.
Having found that his claim
has not been made in good faith, the panel finds, on a balance of
probabilities, and in the context of the 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 that the claimant is not a genuine
practicing Christian, nor would he be perceived to be in China.
(Decision, paras. 16 - 19)
[6]
Justice
Zinn in Huang v Minister of Citizenship and Immigration, 2012 FC 205 at
paragraph 29 addressed a similar statement and made two obiter comments: the
passage cited as a quotation from Professor Hathaway’s text is not from that
source but from the New Zealand decision (see: http://www.unhcr.org/refworld/country,,NZL_RSAA,,IRN,,3ae6b6910,0.html);
and Professor Hathaway’s view as expressed in his text does not appear to
support the Member’s conclusion. Given that Counsel for the Applicant argues
that Canadian refugee law does not have a good faith requirement imposed on sur
place claims, I find that to bring clarity to the law to and to properly
address the Member’s interpretation of the law, it is necessary to conduct a
detailed analysis of the principles which govern sur place claims and
then to address how the principles are relevant to the claim under
consideration in the present Application.
[7]
With
respect to the principles, the analysis has three components.
[8]
First,
since the Member relies on an isolated statement of Professor Hathaway’s in The
Law of Refugee Status (Toronto, Butterworths, 1991), that statement must be
considered in context. The following passages from that resource at pages 29 to
39 provides a full contextual understanding of the concept of sur place
claims:
The first element of Convention refugee
status is that the claimant must be outside her country of origin.
[…]
The Convention refugee definition does
not distinguish between persons who flee their country in order to avoid the
prospect of persecution and those who, while already abroad, determine that
they cannot or will not return by reason of the risk of persecution in their
state of nationality or origin.
By virtue of its requirement that the claimant" is outside the country
of his nationality…” the Convention protects refugees sur place on an
equal footing with those who cross a border after the risk of persecution is
already apparent. This position is consonant with the general rule that the
territorial requirement of the Convention definition is intended to identify
those involuntary migrants within the effective reach of international law:
whether already present or arriving in a foreign state, the refugee claimant is
clearly able to benefit from protection against return.
The classic sur place refugee
claim derives from a significant change of circumstances in the country of
origin at a time when the claimant is abroad for reasons wholly unrelated to a
need for protection. At
the time of departure from her state, she may have intended only to vacation,
study, or do business abroad, and then to return home. If, however, events
subsequent to her departure would put her at risk of serious harm upon return
home, she may claim protection as a Convention refugee.
[…]
A variant of the classical sur place situation
involves the dramatic intensification of pre-existing factors since departure
from one's home country.
While distinguishable from the first category by the fact that the claimant may
have been aware of, or even motivated to depart by, disturbing events in her
home country, these cases are characterized by an escalation of events
post-departure which is sufficient to give rise to a reasonable risk of
persecution upon return.
[…]
In addition to claims grounded in either
new circumstances or a dramatic Intensification of pre-existing conditions in
the country of origin, a sur place claim to refugee status may also be
based on the activities of the refugee claimant since leaving her country. International law recognizes that if
while abroad an individual expresses views or engages in activities which
jeopardize the possibility of safe return to her state, she may be considered a
Convention refugee. The key issues are whether the activities abroad are
likely to have come to the attention of the authorities in the claimant's
country of origin and, if so, how they are likely to be viewed and responded to.
[…]
Because persons might engage in
oppositional activity strictly or primarily with the intention of placing
themselves at risk, there is concern that such claims present a clear
opportunity for abuse by persons who are not really in need of protection. [Footnote: Bootstrap
refugees are people who had no problem in their home country before they left,
but left anyway, came here and decided they wanted to stay. In most blatant
form, boot strap refugees are those who, having decided they want to stay
here, then issue a statement denouncing the home government, which they
promptly use as the basis of their asylum application. Surely, they argue, if the
government hears about this. it will persecute us when we get home": D.
Martin in C. Sumpter, "Mass Migration of Refugees - Law and Policy"
(1982), 76 A.S.I.L.P. 13, at 15].
Such an absolutist preoccupation with the
possibility of fraud ignores the basic right of all persons to be free to
express themselves, to associate with whomever they wish, to pursue the
development of their own personalities;" Logically, visitors from abroad
who exercise their right to speak out against their home government, who associate
with opposition emigrant groups, Of who otherwise engage in lawful activity
perceived by their state of origin to be inappropriate should be protected from
return where there is a serious risk of persecution as a result of those
actions." Since the voluntary issuance of the challenge to the home state
is clearly lawful in and of itself, any reticence to acknowledge the validity
of a claim to protection in such circumstances "chills an alien's
constitutionally protected freedom of expression."
[…]
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.
[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.]
It does not follow, however, that all
persons whose activities abroad are not genuinely demonstrative of oppositional
political opinion are outside the refugee definition. Even when it is
evident that the voluntary statement or action was fraudulent in that it was
prompted primarily by an intention to secure asylum, the consequential
imputation to the claimant of a negative political opinion by authorities in
her home state may nonetheless bring her within the scope of the Convention
definition. Since refugee law is fundamentally concerned with the provision
of protection against unconscionable state action, an assessment should be made
of any potential harm to be faced upon return because of the fact of the
non-genuine political activity engaged in while abroad.
This issue is most poignantly raised when
it is alleged that the fact of having made an unfounded asylum claims may per
se give rise to a serious risk of persecution. While these cases provide
perhaps the most obvious potential for "bootstrapping”, there must
nonetheless be a clear acknowledgment and assessment of any risk to basic human
rights upon return which may follow from the state's imputation of an
unacceptable political opinion to the claimant. The mere fact that the claimant
might suffer some form of penalty may not be sufficiently serious to constitute
persecution, but there are clearly situations where the consequence of return
may be said to give rise to a well-founded fear of persecution. For example, in
Slawomire Krystof Hubicki evidence was adduced that under
then-prevailing Polish criminal law, the claimant would face imprisonment of up
to eight years because he had made a refugee claim in Canada. In such
situations, the basis of claim is not the fraudulent activity or assertion
itself, but is rather the political opinion of disloyalty imputed to the
claimant by her state. Where such an imputation exists, the gravity of
consequential harm and other definitional criteria should be assessed to
determine whether refugee status is warranted.
[Footnotes omitted except where noted]
[Emphasis added]
[9]
Second,
with respect to religious conversion abroad as grounding a claim for
protection, the UNHCR
document “Guidelines on International Protection: Religion-Based Refugee Claims
under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to
the Status of Refugees”, dated April 28, 2004, addressed by Counsel for the
Respondent at the hearing of present Application, speaks to key considerations
in paragraphs 34 to 36:
Where individuals convert after their
departure from the country of origin, this may have the effect of creating a sur
place claim. In such situations, particular credibility concerns tend to
arise and a rigorous and in depth examination of the circumstances and
genuineness of the conversion will be necessary. Issues which the
decision-maker will need to assess include the nature of and connection between
any religious convictions held in the country of origin and those now held, any
disaffection with the religion held in the country of origin, for instance,
because of its position on gender issues or sexual orientation, how the
claimant came to know about the new religion in the country of asylum, his or
her experience of this religion, his or her mental state and the existence of
corroborating evidence regarding involvement in and membership of the new
religion.
Both the specific circumstances in the
country of asylum and the individual case may justify additional probing into
particular claims. Where, for example, systemic and organized conversions are
carried out by local religious groups in the country of asylum for the purposes
of accessing resettlement options, and/or where “coaching” or “mentoring” of
claimants is commonplace, testing of knowledge is of limited value. Rather,
the interviewer needs to ask open questions and try to elicit the motivations
for conversion and what effect the conversion has had on the claimant’s life.
The test remains, however, whether he or she would have a well-founded fear of
persecution on a Convention ground if returned. Regard should therefore be had
as to whether the conversion may come to the notice
of the authorities of the person’s
country of origin and how this is likely to be viewed by those authorities.
Detailed country of origin information is required to determine whether a fear
of persecution is objectively well-founded.
So-called “self-serving” activities do
not create a well-founded fear of persecution on a Convention ground in the
claimant’s country of origin, if the opportunistic nature of such activities
will be apparent to all, including the authorities there, and serious adverse consequences
would not result if the person were returned. Under all circumstances,
however, consideration must be given as to the consequences of return to the
country of origin and any potential harm that might justify refugee status or a
complementary form of protection. In the event that the claim is found to be
self-serving but the claimant nonetheless has a well-founded fear of
persecution on return, international protection is required. Where the opportunistic nature of the
action is clearly apparent, however, this could weigh heavily in the balance
when considering potential durable solutions that may be available in such
cases, as well as, for example, the type of residency status.
[Footnotes omitted] [Emphasis added]
[10]
And
third, the legal principles emphasized in the passages quoted from
Professor Hathaway’s survey and in the UNHCR document are to be applied with an
overarching expectation that claimants for protection will be truthful. As
advanced by Counsel for the Respondent in the present Application, s. 16 of the
IRPA clearly establishes this requirement:
16. (1) A person who makes an application must answer
truthfully all questions put to them for the purpose of the examination and
must produce a visa and all relevant evidence and documents that the officer
reasonably requires.
[11]
The
next step in the analysis is to determine the relevance of the principles to
the Applicant’s claim for protection as determined by the Member.
[12]
The
Applicant produced a claim for protection as a Christian. His narrative
describes that he: practiced the religion in China; went into hiding in China
after the PSB raided his house church; fled to Canada; continued to practice
his religion in Canada; and made his claim. It is not contested that there is a
history of persecution of Christians in China. In these circumstances, the
Applicant’s claim can properly be considered a sur place claim. It is a
straightforward claim that requires evaluation on the evidence presented.
[13]
It
is clear from a review of the principles of refugee law just conducted that the
use of the phrase “good faith” is directly linked and limited to the principle
that, even if a person makes a fraudulent claim for protection while abroad,
protection might still be granted if the authorities in his or her country of
origin would act against her or him upon return just because of the fact of
making the claim. On this basis, I find that the concept of “good faith” has
no relevance to the Applicant’s claim. There is no direct evidence that the
Applicant concocted a fraudulent claim as a convert to Christianity in Canada;
and there is no evidence that the authorities in China would consider that the
Applicant had concocted a fraudulent claim in Canada, resulting in adverse
consequences to him simply on this basis if he returns to China.
[14]
While
it was open to the Member to make a negative credibility finding on elements of
the Applicant’s claim upon considering the whole of evidence, and to dismiss
the claim accordingly, this was not the approach applied. I find that the
Applicant’s claim was dismissed because the Member misunderstood and misapplied
the phrase “good faith” as it is expressed in the law. It bears repeating that
the decision turns on the following passages:
There is a requirement for
‘good faith’ in making a refugee claim.
[…]
Having previously found the
claimant’s testimony with regard to his religious affiliation in China
untrustworthy,
the panel finds, on a balance of probabilities, and in the context of all of
the findings and negative inferences drawn above, that his claim has not
been made in good faith.
Having found that his claim
has not been made in good faith, the panel finds, on a balance of probabilities, and in the
context of the 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 that the claimant is not a genuine practicing Christian, nor would
he be perceived to be in China.
The passages disclose that by disbelieving
the Applicant’s evidence with respect to what occurred in China, the Member
understood that, as a matter of law, a concept of “good faith” was engaged
which allowed the dismissal of the Applicant’s sur place claim as a
Christian in Canada. I find that the passages disclose an erroneous finding of
law. In my opinion, the Member’s statement that the “good faith” finding is
made in the context of other negative findings does not diminish the
application and impact of the erroneous finding of law.
[15]
Counsel
for the Respondent argues that, nevertheless, the Member’s decision can be
salvaged on acceptance of the following argument:
The jurisprudence from Ejtehadian
v The Minister of Citizenship and Immigration [2007 FC 158 at para.11],
Ghasemiam v Canada (MCI) [2003
FC 1266] and Mohajery
v Canada (MCI), [2007 FC 185] states that even where an applicant’s
motivation is not made in good faith, the tribunal is obliged to still assess
whether the applicant would face persecution upon return.
The RPD stated that
notwithstanding its determination of whether the Applicant’s claim was made in
good faith, it did recognize that refugee laws are forward looking. The RPD
followed the principle from the decision in Ejtehadian and went on to
consider the merits of the Applicant’s sur place claim if he were to
return to practise Christianity in Guangdong Province.
(Respondent’s Further Memorandum, paras.
4 and 5)
[16]
To
properly assess Counsel for the Respondent’s argument, it is necessary to
consider the Member’s statements as quoted in paragraph 14 above, together with
those made immediately after under the heading “Situation of Christians in
Guangdong Province”:
Notwithstanding the foregoing
determination, the panel
recognizes that refugee laws are forward looking. In this regard, the panel has
considered whether there is a serious possibility that the claimant would be
persecuted if he chooses to continue to practice Christianity in an
unregistered church in China.
[Emphasis added]
(Decision, para. 20)
[17]
The
Applicant claims protection based on his evidence that he is a Christian. The
Member disbelieved him, and used the legal concept of good faith, to dismiss
his claim. As found in paragraph 13 above, the concept of “good faith” has no
relevance to the Applicant’s claim; it is an issue that arises in a claim based
on a factual finding that there is not, and never was, a heart to the claim
because it is based in fraud. But, apart from this error in law, the negative
credibility finding remains a key element of the Member’s decision. The Member
found as a fact that the Applicant “is not a genuine practicing Christian,
nor would he be perceived to be in China”. In my opinion, this statement
completely concludes the determination of the Applicant’s claim; there is
nothing more to say. This is so because there is no fact base upon which to
consider the possibility of persecution or probability of risk to the Applicant
should he return to China. But, nevertheless, the Member proceeds to
conduct an alternative analysis in case the Applicant chooses to continue to
practice Christianity in an unregistered church in China. The
statement is illogical: how can the Applicant continue to practice
Christianity when he has been found not to be a Christian? For these reasons, I
find that the Member’s “notwithstanding” effort is purely hypothetical, and,
therefore, irrelevant. Therefore, given the substance of the Member’s decision,
I dismiss Counsel for the Respondent’s argument.
[18]
Counsel
for the Respondent poses the following question for certification:
Is it a reviewable error if the RPD takes
into consideration whether an applicant's claim for protection is made in good
faith if the RPD continues to assess the merits of the sur place claim?
And in response, Counsel for the Applicant
poses the following question for certification:
Is good faith determinative of
a sur place claim in Canadian law?
[19]
Given
the conclusions reached on the present Application, since neither question
posed is determinative of the present Application, I find that both questions
are not suitable for certification.
ORDER
THIS COURT
ORDERS that:
1.
The
decision 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”
Email this Content