Date: 20110707
Docket: IMM-3052-10
Citation: 2011 FC 836
Ottawa, Ontario, July 7,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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BO HE
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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 JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of Milton Israel (the
Member), of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated April 28, 2010. In that decision, the Board determined that
the Applicant is neither a Convention refugee nor a person in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Bo He, was born on October 20, 1988, in Fuqing city, Fujian Province,
People’s Republic of China.
[4]
According
to the Applicant, his father’s business failed, and thereafter, his father
would beat him and his mother. The Applicant became distracted from his
studies, so his school grades began to decline. He began to feel sad,
hopeless, and lonely.
[5]
On
December 19, 2002, when the Applicant was 14, his friend approached him and
asked him why he was sad. His friend told him about the tenants of the
Christian faith according to the gospels. The friend explained the difference
between formal churches, controlled by the Chinese government, and underground
churches where God could truly be worshipped.
[6]
The
Applicant was not entirely convinced of what his friend had told him about God.
But the friend visited again, on Christmas Eve, December 24, 2002. After the
second visit, the Applicant came to believe in God, and joined his friend’s church
that day. The church was run out of different members’ homes. The church had
10 other members when the Applicant joined, and grew to 17 members by the time
he fled China.
[7]
On
April 4, 2007, four members of his church were arrested during their worship by
the Public Security Bureau (the PSB). The Applicant did not attend that
evening because he was visiting his sick grandmother in the hospital. His
father’s friend told the Applicant’s mother of the arrest on April 7, 2007, and
she informed the Applicant the same day. After receiving this information, the
Applicant went into hiding at his uncle’s house. The PSB visited the
Applicant’s home on May 4, 2007, and then thirteen or fourteen times
thereafter. They did not provide a summons.
[8]
In
mid-December 2007, The Applicant’s friend arranged for a snakehead to smuggle
him out of China. He met the
snakehead on February 25, 2008, to arrange his flight from China. On April
3, 2008, the Applicant left his uncle’s home with the snakehead. They flew to Hong Kong on April 4,
and departed the same day. The Applicant travelled using a fake Japanese
passport.
[9]
The
Applicant arrived in Canada on April 8, 2008, and was interviewed by
an Immigration Officer of the Canada Border Services Agency (CBSA) on the same
day.
[10]
The
Applicant’s Personal Information Form (PIF) Narrative was received by the Board
on May 5, 2008, and amended by the Applicant on March 29, 2010. The Applicant
fears being arrested if returned to China.
B. Impugned
Decision
[11]
The
Applicant’s hearing in front of the Board took place on April 20, 2010. On
April 28, 2010, the Board rejected the Applicant’s claims as a
Convention refugee and a person in need of protection. The Board found the
Applicant to be lacking in credibility in many regards, including his identity
as a Christian and his being sought by the PSB.
II. Issues
[12]
There
are three issues to be determined on this application:
(a) Did the Board err in its
assessment of the Applicant’s credibility?
(b) Did the Board err in its
assessment of the Applicant’s identity as a Christian?
(c) Did the Board err in its
assessment of religious freedom?
III. Standard
of Review
[13]
It
is well-established that decisions of the Board as to credibility and identity
are factual in nature and are therefore owed a significant amount of
deference. The appropriate standard of review is a standard of reasonableness
(Dong v Canada (Minister of Citizenship and Immigration), 2010 FC 55
at para 17; Lawal v Canada (Minister of Citizenship and Immigration),
2010 FC 558 at para 11; Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315, 42 ACWS (3d) 886 (FCA)
at para 4).
[14]
As
a question of mixed fact and law, the last question will also be reviewed against
the reasonableness standard.
[15]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47, reasonableness requires a consideration of the existence of
justification, transparency, and intelligibility within the decision-making
process. It is also concerned with whether the decision falls within a range of
acceptable outcomes that are defensible in respect of the facts and law.
IV. Argument
and Analysis
A. Did
the Board Err in its Assessment of the Applicant’s Credibility?
[16]
The
Applicant submits that the Board erred in drawing a negative credibility
inference from the omission of certain information from his PIF. The Applicant
explains that the PIF only included the most important events and the
information that is missing is not material to his claim. The Applicant argues
that oral testimony is generally allowed to provide additional details of a
refugee claimant’s narrative (Selvakumaran v Canada (Minister of
Citizenship and Immigration), 2002 FCT 623, 114 ACWS (3d)
714).
[17]
The
Applicant further submits that the Board’s credibility findings are
unreasonable. The adverse credibility finding based on the Applicant’s
conversion to Christianity within a matter of days ignores his particular
circumstances, while the negative inference drawn from the three day delay
between the arrests and the Applicant learning of them lacks justification.
[18]
Additionally,
the Applicant submits that the documentary evidence before the Board does not
support the Board’s finding of a lack of credibility due to the Applicant’s
inability to produce a summons issued by the PSB. The documentary evidence
indicates that police officers often do not leave summons, as they are not
aware of the procedure or are lazy. Indeed, the documentary evidence indicates
that there is a great variability and arbitrariness in the way law enforcement
is administered in China.
[19]
Finally,
the Board erred in making a negative credibility finding on the basis that the
Applicant amended his PIF. Amendments to PIFs are permitted until the time of
the hearing, and in this case, the amendment was minor.
[20]
The
Respondent submits that the Board’ credibility findings were reasonable.
[21]
First,
in the Respondent’s view the omissions in the Applicant’s PIF were material. For
example, the reason that he had been absent from his church the day it was
raided, and details regarding his conversion to Christianity were only provided
at the hearing. It was open to the Board to draw a negative inference from the
Applicant’s failure to provide this information in his PIF (Sanchez v Canada (Minister of
Citizenship and Immigration), 98 ACWS (3d) 1265, [2000] FCJ No 536
(QL) (FC)).
[22]
Second,
the Respondent argues that it was open to the Board to find that the
Applicant’s conversion to Christianity within a matter of days lacked
credibility because the Applicant’s story is implausible. Similarly, the Board
was reasonable in finding that the Applicant’s testimony as to how he found out
about his fellow churchgoers were arrested lacked credibility.
[23]
With
regards to the police not leaving a summons, the Respondent submits that Board
noted that the Applicant testified that the PSB attended his home 13 or 14
times. The documentary evidence is clear that a summons is generally left with
an absconding person’s family. The Board found that this practice is not always
followed, but that in the context of the unusually high number of visits, it
was reasonable to assume that a summons would have been left at some point.
The Respondent submits that the Board reasonably drew a negative credibility
inference.
[24]
Furthermore,
the Respondent submits that the Board reasonably based its credibility finding
on other inconsistencies, such as the Applicant’s contradictory evidence as to
where he lived between April 2007 and April 2008. In his PIF, the Applicant
stated that he lived in unknown countries outside of China, but during the
hearing in front of the Board, the Applicant explained that he lived at his
uncle’s home in China. The Applicant’s explanation was that the
snakehead told him to lie. The Board rejected this statement, as the
Applicant’s PIF was filled out long after the Applicant arrived in Canada. This was
reasonable. The Applicant also failed to remember the name on his allegedly
fraudulent passport. The Court has held that not knowing that type of detail
is a cause for concern (Su v Canada (Minister of Citizenship and
Immigration), 2007 FC 680, 158 ACWS (3d) 800), and that the Board is
entitled to make reasonable findings based on implausibilities, common sense,
and rationality (Oduro v Canada (Minister of Employment and Immigration),
66 FTR 106, 41 ACWS (3d) 384).
[25]
I
agree with the Respondent. The information omitted from the Applicant’s
responses during an interview with a CBSA officer, his PIF, and his amended PIF
was material to his claim. That information included key details about the
Applicant’s conversion to Christianity and circumstances under which his fear
of being returned to China emerged, that is, the arrest of fellow
members of his congregation. The Applicant’s PIF also contains a direct contradiction
to his testimony at the hearing, namely, where he went for approximately a year
after learning about the arrest of his friend and others from his church. The
Board’s negative credibility findings based on comparing his PIFs to his oral
evidence are reasonable.
[26]
Contrary
to the Applicant’s argument, the Board does not draw a negative credibility
inference from the fact that the Applicant amended his PIF, per se, but based
on the information in the amended PIF vis-à-vis his evidence at the hearing.
[27]
The
Board’s finding that it was probable that the PSB would have left a summons one
time out of the purported 13 or 14 visits to the Applicant’s house, and the
resulting credibility finding, are reasonable. There is no reviewable error on
the part of the Board.
B. Did
the Board Err in its Assessment of the Applicant’s Identity as a Christian?
[28]
The
Applicant submits that the Board based its assessment of the genuineness of the
Applicant’s Christianity on the Applicant’s hasty conversion and his lack of
knowledge regarding the Pentecostal Church. This was
in error. Since the Board had no information before it regarding the practices
of the Pentecostal Church it
was impossible to gauge the Applicant’s responses as correct or incorrect, or
as reasonable or unreasonable.
[29]
The
Respondent argues that it was open to the Board to find, on a balance of
probabilities, that the Applicant was not a genuine Christian. It was
reasonable, according to the Respondent, to base this conclusion on the
Applicant’s sudden conversion, the unbelievable story surrounding his house
church, and his limited knowledge of his religion.
[30]
According
to the Applicant, he went from being entirely unconvinced of Christianity after
his friend’s first visit to wholeheartedly accepting the religion and becoming
a member of an underground, prohibited church days later. I share the position
of the Respondent -- it was reasonable for the Board to find this implausible.
Regarding the issue of Pentecostal knowledge, I acknowledge that there
might be legitimate concerns about how an applicant’s devotion to a religion is
assessed. In this case, the Applicant was unable to explain a specific
doctrine of the Pentecostal church. However, I am equally conscious of the
difficult task faced by the Board and find that in any case, the credibility
finding based on the Applicant’s inability to recite a church teaching is
immaterial to the outcome of the Applicant’s claim. Having upheld the Board’s
other credibility findings, it is clear that the Board reasonably impugned the
foundation of the Applicant’s claim for protection.
C. Did
the Board Err in its Assessment of Religious Freedom?
[31]
The
Applicant submits that the Board failed to consider whether the Applicant would
be able to freely practice his religion in China. In the
Applicant’s view, the Board focused only on documentary evidence indicating how
many people were arrested for their religious practices in Fujian Province rather than
making a finding related to whether the Applicant could freely practice his
religion. The Applicant relies on YJC v Canada (Minister of
Citizenship and Immigration), 2010 FC 258 in which the Court held that
a person is being persecuted if he or she is required to hide and ensure that
one is not seen when practicing his or her religion. Even if the Applicant is
not facing arrest, he may still be facing religious persecution (Zhou v Canada (Minister of
Citizenship and Immigration), 2009 FC 1210, 87 Imm LR (3d) 64).
[32]
The
Respondent takes the position that the Board was entitled to prefer the
documentary evidence, which did not show that members of small Christian
churches in Fujian province
were being targeted, over the problematic testimony of the Applicant. The
Respondent agrees that religious persecution can happen absent the risk of
detention, but argues that the key issue for the Board was that there was no
objective evidence that the Applicant was being persecuted or risked being
arrested. The facts in YJC, above, are distinguishable. Here, the
Board did not find that the Applicant would not be at risk so long as he only
practiced his religion in secret. Rather, the Board found that there was no
evidence that members of house churches are at risk in Fujian province.
In any case, the Board did not accept that the Applicant was a practicing
Christian.
[33]
Once
again, I accept the Respondent’s submissions. The Applicant misconstrues the
Board’s purpose in reviewing the documentary evidence on the tolerance of
non-governmental religious organizations in Fujian Province.
The Board did not use this evidence, as the Applicant suggests, to draw a
conclusion on the authorities’ tolerance of Christianity practiced by genuine
adherents. Rather, the documentary evidence was used to make a finding of
fact, namely, to test the likelihood of the Applicant’s claim that his small,
underground church was raided by the PSB. Based on the documentary evidence
and the Applicant’s evidence, this was a reasonable conclusion.
[34]
As
the Applicant failed to persuade the Board of his identity as a Christian, the
Board did not need to consider whether the Applicant had a subjective and
objective fear of being persecuted as a Christian in Fujian Province. The
Board’s decision was reasonable and the intervention of the Court is not
warranted.
V. Conclusion
[35]
No
question to be certified was proposed and none arises.
[36]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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