Date: 20091001
Docket: IMM-440-09
Citation: 2009 FC 978
OTTAWA, Ontario, October 1, 2009
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
GUANG YUAN HAN
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 Immigration and
Refugee Board of Canada / Refugee Protection Division (“the Board”). The Board
found that the Applicant, Mr. Guang Yuan Han, was not a 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 (“IRPA”).
Factual background
[2]
The
Applicant is a citizen of the People’s Republic of China. He is
married and has two children. After the birth of his second child in 2005, the
Applicant noticed that his wife seemed changed; she was impatient and angry,
and would frequently leave the family home. As a result, the Applicant and his
wife quarrelled often.
[3]
The
Applicant told his friend, Yong Gang Li, about the strain on his marriage. Yong
Gang Li offered the Applicant hope in the form of Christian teachings about God
and Jesus Christ, and also explained the role prayer could play in his life.
The Applicant began to pray every day for both himself and for his wife. He met
with Yong Gang Li two more times over the next few months, and continued to
pray daily. He noticed a change in his own ability to deal with his home
situation, and also some positive changes in his wife. By the last Sunday of
October 2005, Guang Yuan Han began to attend an underground house church.
[4]
The
church consisted of 10 members, including the Applicant. The church services
took place in the homes of a few of the members. Two members acted as lookouts,
and the Applicant was told of the escape routes should the church ever be
raided. The members met for Bible study and prayer, and the service would end
with an announcement of when and where the next service would take place.
Occasionally a pastor would attend and perform baptisms and Holy Communion. The
Applicant was baptized on the first Sunday in May 2006. Guang Yuan Han told a
few trusted people about his newfound faith. In February 2006, he told his wife
for the first time.
[5]
On
October 29, 2006, the Public Security Bureau (“PSB”) raided the underground
church the Applicant was attending. The Applicant escaped the raid on foot, and
then took two separate taxis to a friend’s house, where he went into hiding. A
few days later, on November 1, 2006, the Applicant learned that three members,
including the member who had been hosting the worship service, had been
apprehended by the PSB. At the time of the refugee hearing, the Applicant noted
that the host had been sentenced to three years’ imprisonment, and the other
two members to two and a half years each.
[6]
On
October 31, 2006, the Applicant learned that the PSB had attended at his house
with the intent of arresting him. They searched the house and informed his wife
that he was wanted for violating religious regulations and disturbing the
social order. Since then the PSB returned to his home on several occasions; on
December 26, 2006, they showed the Applicant’s wife the warrant that had been
issued for the Applicant’s arrest.
[7]
On
November 5, 2006, the Applicant obtained a fake passport. He arrived in Canada on December
8, 2006 and filed for refugee protection on December 11, 2006. On December 17,
2006, he first attended the Toronto Evangelical Holystone Church of America and
has been attending and volunteering there every week since then.
Impugned Decision
[8]
The
Applicant’s refugee hearing was held on October 3, 2008. Three members of the
Board – Stephen Rudin (presiding member), Walter Kawun, and Cynthia Summers –
unanimously found that the Applicant was neither a Convention refugee under s.
96 of IRPA nor a person in need of protection within the meaning of paras.
97(1)(a) or (b) of IRPA.
[9]
The
Board identified the determinative issue as whether, “because of his membership
in an underground Christian church the claimant will face persecution, arrest
and imprisonment by the authorities if he returns to China” (Board
decision, p. 3). The panel found that, although the Applicant had established
that he was a practicing Christian in both China and Canada, he had not satisfied
the burden of establishing “a serious possibility that he would be persecuted
if he returned to China” (Board decision, p. 3).
[10]
The
Board made several factual findings that resulted in the denial of the
Applicant’s refugee claim. First, the Board noted the absence of documentary
evidence supporting the Applicant’s testimony that the PSB had issued a warrant
for his arrest; it found, therefore, that the Applicant was not in danger of
arrest and imprisonment (Board decision, p. 4). Second, the Board cited
documentary evidence indicating that PSB raids focus on growing churches, not
prayer meetings and Bible study groups held among family and friends in private
homes. The Board found that a small house church would not attract the
attention of the authorities and that the raid on the church did not occur
(Board decision, p. 4). Third, the Board found that, although some reports
suggested that the “patriotic” or “registered” churches in China were
subjected to interference in doctrinal decisions and were forced to place the
Chinese Communist Party above God, there was no direct verification of these
reports. The Board therefore found that the Applicant would be able to practice
his religion in a registered church if he were returned to China (Board
decision, p. 5).
[11]
The
panel concluded by recognizing “that persecution of Christians does exist in
the People’s Republic of China and understands the claimant’s subjective
fear of persecution. However, in the particular circumstances of the claimant,
the documentary evidence does not support that there is a serious possibility
that he would be persecuted because of his religious belief. The panel places
more weight on the documentary evidence than the claimant’s testimony as the
documentary evidence is gathered from various sources that do not have a
personal interest in the outcome of the hearing” (Board decision, p. 5).
Question at issue
[12]
Although
each party notes different specific factual findings of the Board’s decision,
broadly speaking, the only issue the Applicant and Respondent raise is whether
the decision of the Board is reasonable.
[13]
Findings
of fact, including credibility findings, are reviewed on a standard of
reasonableness. The Court will not interfere with the Board’s findings unless
they are made in a perverse or capricious manner, or without regard to the
evidence (Federal Courts Act, R.S.C. 1985, c. F-7, para. 18.1(4)(d); Dunsmuir
v. New
Brunswick,
2008 SCC 9; Canada (Minister of Citizenship and Immigration)
v. Khosa,
2009 SCC 12 at para. 46). To be reasonable, a decision must be justified,
transparent and intelligible, and fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para. 47).
Applicant’s Position
[14]
The
Applicant argues that the Board ignored evidence that supported his position.
Specifically, the Applicant submits that there was documentary evidence in the
record that noted that house church members, not just pastors or members of
growing churches, were also detained, arrested, and beaten. The Applicant also
points out that the Board erroneously noted the Applicant as being from Heilongjiang, and based
its findings on reports from that region. However, while the Applicant was born
in Heilongjiang, the events
he described took place in Tianjing. The Applicant argues that the Board’s
analysis is faulty since it cited information from the wrong province.
[15]
The
Applicant also cites differing information regarding the arrest warrant that
was shown to his wife. The Applicant states that although the authorities do
sometimes leave a copy of an arrest warrant with members of the subject’s
family, this is not necessarily the prevailing practice. In fact, the
documentary evidence noted substantial regional variations.
[16]
The
Applicant also argues that the Board’s finding that he could practice his
religion in a registered church is unreasonable. The Applicant cites evidence which
states that pastors in the registered churches must undergo “political
reliability tests”, which implies that pastors must adhere to government
policies in their preaching. The Applicant concludes that mixing Communist
party doctrine with Christian faith is unacceptable and does not constitute
freedom of religion.
Respondent’s Position
[17]
The
Respondent submits, generally, that the Board performed an extensive review of
the documentary evidence. The Respondent notes that in Khosa, the
Supreme Court of Canada noted that it is unacceptable for a reviewing court to
reweigh the evidence (Khosa, above, at para. 61). The Respondent further
argues that the Board reasonably found that the Applicant’s evidence about the
likelihood of persecution and the circumstances surrounding the arrest warrant,
and that the Board’s reference to the wrong province was immaterial to the
outcome.
[18]
The
Respondent also submits that the Board could reasonably require further
evidence to support the Applicant’s testimony once his credibility was called
into question, and defends the Board’s suggestion that worshipping in one of
the registered churches does not amount to persecution of the Applicant. The
Respondent also maintains that the Applicant’s standard for measuring freedom
of religion is inapplicable since the Charter of Rights and Freedoms
does not govern the situation in China.
Analysis
[19]
Some
of the issues raised by the parties are, I believe, inconsequential. For
example, the reference to Heilongjiang rather than Tianjing is
not material, especially since there is no argument that the persecution of
Christians is worse in Tianjing. However, the Board’s treatment of the
perennially difficult issue of credibility leads me reluctantly to conclude
that the Board’s decision lacked a reasonable basis and is therefore
reviewable.
[20]
First,
although the Board never explicitly makes a credibility finding, a negative
assessment of the Applicant’s credibility underlies all of its essential
factual determinations. There is a presumption that a refugee claimant’s
testimony is true unless there is a reason for doubt (Maldonado v. Canada
(Minister of Employment & Immigration), [1980] 2 F.C. 302 (C.A.)).
Further, the Board must give reasons for preferring documentary evidence to a
claimant’s evidence (Okyere-Akosah v. Canada (Minister of Employment &
Immigration), [1992] F.C.J. No. 411 (C.A.)); it must also clearly state
when it finds a claimant not credible, and give reasons for doing so (Hilo
v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 228
(C.A.)).
[21]
In
this case, the Board never explicitly states that it found the Applicant’s testimony
not credible, but it does reject his account of the raid on the house church,
the existence of a warrant for his arrest, and his testimony that three other
members have been sentenced to imprisonment for their membership in the house
church and/or participation in its activities. Its stated reason for rejecting
the Applicant’s evidence is that it prefers the documentary evidence as not
having “a personal interest in the outcome of the hearing” (Board decision, p.
5). While this is a purported “reason” for rejecting the Applicant’s evidence,
it is one that this Court has repeatedly found to constitute a reviewable
error. As pointed out by Justice Snider in Coitinho v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1037, this is “tantamount to stating
that documentary evidence should always be preferred to that of a refugee
claimant’s because the latter is interested in the outcome of the hearing. If
permitted, such reasoning would always defeat a claimant’s evidence” (at para.
7) (see also Sanchez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1336 at para. 54-59).
[22]
Second,
the Federal Court of Appeal has repeatedly determined that a refugee claimant’s
fear of persecution must have both a subjective and an objective basis (e.g., Rajudeen
v. Canada (Minister of
Employment & Immigration), [1984] F.C.J. No. 601). Where the Board
determines that a claimant is lacking in credibility, it would naturally follow
that his or her claim would fail based on the lack of subjective fear of persecution
(unless there is an objective basis for the fear, in which case a particularly
brave or foolhardy claimant will not be punished for lacking a subjective fear
(Yusuf v. Canada (Minister of Employment & Immigration), [1992]
F.C.J. No. 1049 (C.A.)). In this case the Board did not specifically mention
the objective fear of persecution, but implicitly rejects it as unfounded.
Regarding the subjective fear, however, the Board acknowledges and
“understands” it (Board decision, p. 5). Such a result is exceedingly peculiar
given the Board’s (again, implicit) determination that the Applicant lacked
credibility.
Conclusion
[23]
Credibility
findings, particularly when they are determinative of the outcome as they were
in this case, must be made explicitly. The Board’s findings in that regard
lacked transparency and thus call into question the reasonableness of the
entire decision. Furthermore, while the Board was fully justified in relying on
the documentary evidence provided to it, this Court has specifically cautioned
against rejecting refugee claimants’ evidence on the basis that other evidence
is to be preferred since it comes from disinterested sources. Doing so
constitutes a reviewable error.
[24]
I
am allowing this application for judicial review and returning the matter to
the Board for re-determination by a different panel.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed and the matter is returned to the
Board for re-determination by a different panel. No question of general
importance has been submitted for certification and none is certified.
“Louis
S. Tannenbaum”
AUTHORITIES CONSULTED BY THE
COURT
1.
Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), 1998 CanLII 8667 (F.C.)
2.
R.
v. Big M Drug Mart Ltd., 1985 CanLII 69 (S.C.C.)
3.
Syndicat
Northcrest v. Amselem,2004 SCC 47 (CanLII)
4.
Zhu
v. Canada (M.C.I.), 2008 FC
1066
5.
Song
v. Canada (M.C.I.), 2008 FC
1321
6.
Muthiyansa
v. Canada (M.C.I.), 2001 F.C.T.
17
7.
Dundar
v. Canada (M.C.I.), 2007 FC
1026
8.
Amarapala
v. Canada (M.C.I.), 2004 FC 12
9.
Irripugge
v. Canada (M.C.I.), [2000] F.C.J. No. 29
10.
Fosu
v. Canada (M.E.I.) (1994), 90 F.T.R. 182
11.
Bin
v. Canada (M.C.I.), 2001 FCT 1246
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-440-09
STYLE OF CAUSE: GUANG
YUAN HAN v. M.C.I.
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: July
16, 2009
REASONS FOR JUDGMENT: TANNENBAUM
D.J.
DATED: October
1, 2009
APPEARANCES:
|
Mr. Hart A.
Kaminker
|
FOR THE APPLICANT
|
|
Mr. Manuel
Mendelzon
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Hart A.
Kaminker
Barrister
& Solicitor
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.,
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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