Date: 20090917
Docket: IMM-664-09
Citation: 2009 FC 929
Toronto, Ontario, September 17,
2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
PENGHUI
WU
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated March 20, 2009
concluding that the applicant, a Chinese citizen, is not a Convention refugee
or a person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 because of his Christian
religion.
FACTS
[2]
The
forty nine (49) year old applicant is a farmer with nine (9) years of formal education
from China. The
applicant is married with one child. To deal with his mother’s onset of
terminal illness, the applicant allegedly converted to Christianity with the
assistance of a friend who was involved with an underground Christian Church.
The applicant arrived in Canada on June 29, 2007 on visitor’s visa to
visit his ailing mother. During his stay, the applicant allegedly learned from
his wife that on September 9, 2007 Chinese authorities, specifically the Public
Safety Bureau (PSB), were looking for him and requested that the applicant’s
wife contact the applicant and persuade him to return to China. The applicant allegedly
learned the next day that apart from visiting his house, the PSB raided his
underground church and arrested three people. On September 16, 2007 the
applicant sought protection because of a well founded fear of persecution for his
Christian religious beliefs. The applicant stated he has been attending the London Alliance Church since then.
Decision under review
[3]
On
March 20, 2009 the Board held that the applicant was not a Convention refugee
or a person in need protection.
[4]
With
respect to whether the applicant is a genuine Christian, the Board noted that
according to the applicant’s testimony the applicant has been exposed to
Christianity for about two years and was presently reading the Bible every day.
[5]
The
Board held that the level of knowledge of Christianity the applicant possessed
was not consistent with almost two years of exposure to the Bible, Christian
doctrine, and practice, even when his relative lack of sophistication was
considered.
[6]
The
Board made the following determinations with respect to the applicant’s lack of
Christian knowledge at page 8 of its reasons:
1.
The
applicant could not state one of the three basic teachings of Jesus. Instead he
recited two (2) of the Ten Commandments.
2.
The
applicant named the wrong book of his favourite verse which he marked in his
book.
3.
The applicant
was unable to say anything about his favourite verse except that if you believe
in Jesus you will be saved.
4.
When asked
about Jesus’ position on wealth, the applicant stated a partially correct
answer, “take it to heaven so nobody can steal it”. However, the applicant also
added “love everybody like yourself and read the bible”, which the Board held
was an incorrect answer.
5.
The
applicant knew that Jesus’ disciples wrote the books in the New Testament, but
he was unable to name a single disciple.
6.
The
applicant was unable to name any of the eight Teachings on the Mount.
7.
Although
familiar with King David, when asked what book was written by King David, the
applicant erroneously stated the “New Testament”.
8.
The
applicant was not able to name the two special observances of the London Alliance Church until prompted or being suggested
the answer.
[7]
The
Board appears to have drawn an adverse inference from the applicant’s quick
answering to counsel’s questions where he provided the names of the four
Gospels. The applicant’s failure to attend bible study, the internal
inconsistencies in the applicant’s testimony, and the inconsistencies between
his testimony and his PIF were also cited as reasons for the Board negative
credibility finding.
[8]
The
Board assigned little weight to a support letter from the applicant’s Church
because it lacked details on the applicant’s involvement with the Church.
[9]
The
Board held that the applicant’s history of attempted admission to Canada since 1995
indicates a strong desire to come and stay in Canada.
[10]
The
Board held that the applicant’s testimony was not trustworthy and without
credibility. The Board held that the applicant is not and never was a genuine
Christian believer and that any religious activities the applicant participated
in and any knowledge of Christianity that the applicant displayed was acquired
for the purpose of making his refugee claim.
[11]
The
Board also decided that the applicant’s story of being wanted by the PSB was
not true. The applicant conceded at the outset of the hearing that his latter
finding was reasonably open to the Board based on the applicant’s inconsistent
and contradictory evidence on this seminal aspect of his claim.
ISSUES
[12]
The
applicant raises the following issues:
1.
Did the
R.P.D. err in law by ignoring or misinterpreting evidence properly before it?
2.
Did the
R.P.D. make patently unreasonable findings of fact or base its decision on
findings of fact made in a perverse and capricious manner without regard for
the material properly before it? and
3.
If the
R.P.D.’s errors were not reviewable errors of law, then did the cumulative
effect of these errors amount to an error assessment.
[13]
I
reformulated the list of questions as follows:
1.
Was
the Board unreasonable in determining that the applicant was not a trustworthy
and credible witness?
STANDARD OF REVIEW
[14]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of [deference] to be accorded
with regard to a particular category of question.”
[15]
In
the past, I held that the standard of review for credibility findings of the
Board was patent unreasonableness [see Chen v. Canada (MCI), 2002 FCT
1194, 118 A.C.W.S. (3d) 700, at para. 4; Gonzalez v. Canada
(MCI), 2008 FC 128, 164 A.C.W.S. (3d) 674, at para. 13]. Before a
credibility finding of the Board is set aside, one of the following criteria
must be established:
1. the
Board did not provide valid reasons for finding that an applicant lacked credibility;
2. the
inferences drawn by the Board are based on implausibility findings that in the
view of the Court are simply not plausible;
3. the
decision was based on inferences that were not supported by the evidence; or,
4. the
credibility finding was based on a finding of fact that was perverse, capricious,
or without regard to the evidence.
[16]
As a result of Dunsmuir, it is clear that the standard of
patent unreasonableness has been eliminated, and that reviewing courts must
focus on only two standards of review, those of reasonableness and correctness.
[17]
Implausibility and credibility determinations are factual
in nature. The post-Dunsmuir jurisprudence has held that the appropriate
standard of review applicable to credibility and plausibility assessments is that
of reasonableness with a high level of curial deference [see Saleem v.
Canada (MCI), [2008] F.C.J. No. 482, 2008 FC 389 at para. 13; Malveda v.
Canada (MCI), [2008] F.C.J. No. 527, 2008 FC 447 at paras. 17-20; Khokhar
v. Canada (MCI), [2008] F.C.J. No. 571, 2008 FC 449 at paras. 17-20].
[18]
The
standard of review is therefore reasonableness with a high level of deference
to the Board’s findings.
ANALYSIS
Issue: Was the Board unreasonable
in determining that the applicant was not a trustworthy and credible witness?
[19]
The
Board concluded that the applicant’s basis for seeking refugee protection was
not credible – namely that the PSB in China was looking for him
because he was a member of an “underground” Christian Church. The applicant
gave inconsistent and contradictory testimony at the hearing on important
aspects of this key basis of his claim. The Board’s finding was reasonable,
which applicant’s counsel conceded at the hearing. For this reason alone, the
Court must uphold the Board’s finding that the applicant is not credible with
respect to the reason he seeks refugee status or protection in Canada.
[20]
The
applicant submits that the Board assessed the applicant’s knowledge of Christianity
too strictly when considering that the applicant has been practicing
Christianity for only two years at the time of the hearing. In view of my
finding above, this alleged error is not material. Nevertheless, the Court will
address it for future reference.
[21]
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” criticized
in 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” [see Huang v. Canada (MCI), 2008 FC 346,
69 Imm. L.R. (3d) 286, per Justice Mosley at para. 10; Chen v. Canada (MCI),
2007 FC 270, 155 A.C.W.S. (3d) 929, per Justice Barnes at para 16]. The Board
should not fault a poorly educated claimant for being unable to identify a
passage dealing with a particular ceremony or ritual in the claimant’s holy
book [see Feradov v. Canada (MCI), 2007 FC 101, 154 A.C.W.S. (3d) 1183,
per Justice Barnes at para. 16].
[22]
A
reading of the Board’s reasons gives the impression that to be determined to be
a Christian one should be able to retain at least some encyclopaedic knowledge
of the Bible or Jesus’ teaching. One cannot help but have sympathy for
claimant who was struggling to understand and be understood through an
interpreter. Determining whether one is a genuine Christian by way of “trivia”
is clearly contrary to the above case law. This Court has often overturned a
Board Member’s decision as “unfair” and “unreasonable” because the applicant
could not answer detailed questions about the Bible.
[23]
The
Court also finds that the Board Member’s dismissal of the letter from the
applicant’s Church to be unreasonable. This letter simply confirmed the
applicant attended the Church and was baptized in the Church.
[24]
Nevertheless,
while the applicant may be a genuine Christian, the Board’s finding that the
applicant was not credible on the key basis for his claim was reasonably open
to the Board. Accordingly, this application for judicial review will be
dismissed.
CERTIFIED QUESTION
[25]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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