Date: 20080520
Docket: IMM-4660-07
Citation: 2008 FC 635
Toronto, Ontario, May 20,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
YONGHAI JIANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for leave for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act (the Act) of a decision dated August 13, 2007
wherein the Refugee Protection Division of the Immigration and Refugee Board of
Canada (the Board) determined that the Applicant was not a “Convention refugee”
according to section 96 of the Act, nor a “person in need of protection”
according to section 97 of the Act.
I. The facts
[2]
The
Applicant alleges to have joined an underground Christian church in the
People’s Republic of China in November 2005.
[3]
In
April 2006, the Applicant received a telephone call informing him that one of
his fellow church members had been arrested by the Public Security Bureau
(PSB). The caller instructed him to go into hiding.
[4]
While
in hiding, the PSB allegedly went to the Applicant’s home to arrest him.
[5]
The
Applicant fled the country, arrived in Canada on June 11,
2006, and claimed refugee protection on June 14, 2006.
II. The Decision of the Board
[6]
In
a decision dated August 13, 2007, the Board found that, based on a balance of
probabilities, the Applicant had never attended an underground Christian church
in China given to the
inconsistencies in his testimony and the corroborating evidence, and the fact
that he was able to leave China, using his own passport, even though
allegedly wanted by the PSB.
[7]
The
Applicant indicated in his Personal Information Form (PIF) that he went into
hiding because fellow church members had been caught by the PSB while spreading
the gospel, which he described as telling other people about Jesus Christ, with
the intention of recruiting new members to the Church. However, a supporting
document written by a reverend in Canada indicated that the fellow member in China was arrested
while distributing flyers. The Applicant’s explanation was that he told the
reverend they were spreading the gospel.
[8]
Further,
while the claimant stated that April 4, 2006 was the date on which the PSB came
to his home to arrest him, the reverend’s letter of support indicated the date
as being April 3, 2006. The Applicant stated that this was a mistake. While the
Board acknowledged that the reverend’s letter was hearsay and based on
information given to him by the Applicant himself, it was of the view that the
inconsistency was so significant that it alone would justify the finding that
the knowledge that the Applicant, had regarding Christianity could easily have
been learned in Canada in order to manufacture his claim.
[9]
Finally,
the Board emphasized that the Applicant was able to leave China, using his
own passport via the Beijing airport. The Applicant
stated that he only had to pass through two security checkpoints whereas
documentary evidence indicated that he would have had to pass through at least
three security checkpoints. When faced with this information, the Applicant
altered his response before he boarded the plane. He was also not aware of
whether or not his name was put through a computer database and stated that the
snakehead took care of the details of his passage through the airport. The
Board rejected this explanation and found it implausible that the snakehead
would be able to bribe possibly hundreds of officials as there would be no
guarantee as to which border police would be on duty, nor to which line the Applicant
would be directed to.
III. Issues
[10]
The
Applicant raises the following two issues in the present application:
·
Did
the Board err in failing to make a determination of the Applicant’s identity as
a Christian?
·
Did
the Board err in failing to consider the totality of the evidence, (in
particular) specifically the Baptism Certificate?
IV. Standard of Review
[11]
Given
the highly factual nature of the question in issue, and prior jurisprudence of
this Court, the applicable standard of review is that of reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9, at paragraph 51). Thus, the analysis of the Board’s decision will
be concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] […] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above at para.
47).
V. Preliminary Issue
[12]
The
Respondent submits that give the fact that the Applicant did not file his own
affidavit in support of the present application, the matter should be dismissed
or in the alternative that the Court should draw an adverse inference from the
failure of the Applicant to provide “evidence of persons having personal
knowledge of the material facts” upon which he intends to rely.
[13]
The
Court notes that the applications not submitted by affidavits based on personal
knowledge do not automatically result in dismissal; however, when they are not
supported by affidavit, “an error asserted by an Applicant must appear on
the face of the record” (Sarmis v. Canada (Minister of
Citizenship and Immigration) 2004 FC 110, [2004] F.C.J. No. 109 (QL), at
para. 10; Turcinovica v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 164, [2002] F.C.J. No. 216 (QL), at paras. 12-14; Moldeveanu
v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 55 (QL), at para. 15).
VI. Analysis
[14]
The
Applicant argues that while the Board found that “on the balance of probabilities,
[…] the claimant has had never attended an underground Christian church in the
People’s Republic of China”, it neglected to make a clear,
unambiguous determination with respect to his identity as a Christian.
According to the Applicant, his application could have succeeded based on his
Christian identity thus the Board was required to make a determination in this
respect.
[15]
Case
law establishes the obligation incumbent upon the Board to make a determination
on the central element of the claim. In a line of jurisprudence following Chen
v. Canada (Minister of Citizenship and Immigration), 2002 FCT
480, [2002] F.C.J. No. 647(QL), this Court has consistently held that even when
the Board has determined that an Applicant’s claim of religious persecution in
his country of origin is not credible either because he was found not to have
been a member of the particular religious group, or because he was found not to
be persecuted, the Board still must determine either implicitly or explicitly
whether he is now in fact a member of that group and whether he would face
persecution upon their return (Li v. Canada (Minister of
Citizenship and Immigration), 2008 FC 266, [2008] F.C.J. No. 338 (QL); (Huang
v. Canada (Minister of Citizenship and Immigration), 2008 FC 132,
[2008] F.C.J. No. 164 (QL); (Li v. Canada (Minister of
Citizenship and Immigration), 2007 FC 544, [2007] F.C.J. No. 739 (QL); (Lin
v. Canada (Minister of Citizenship and Immigration), 2007 FC 510,
[2007] F.C.J. No. 692 (QL); (Liu v. Canada (Minister of Citizenship
and Immigration), 2006 FC 695, [2006] F.C.J. No. 880 (QL); (Yang v. Canada
(Minister of Citizenship and Immigration), 2003 FC 971, [2003] F.C.J.
No. 1236 (QL)).
[16]
The
Respondent highlights the fact that the Board did indeed station in its decision
that “[a]ny knowledge that the claimant has learned about Christianity could
easily have been learned here in Canada.” Given this statement,
the pertinent question becomes whether or not it can be construed as a
sufficiently explicit and reasonable finding on the issue of the Applicant’s
religious status. In determining what constitutes a sufficiently explicit
finding in this regard, the jurisprudence suggests that the manner in which the
Board expresses its credibility findings, the evidence before it regarding the
Applicant’s religious activities in Canada, and the manner in
which it deals with that evidence all appear to be significant factors.
[17]
In
Chen, above, the Court concluded that despite having found that the
applicant’s story with respect to her persecution in China as a member
of the Falun Gong group not credible, the Board failed to address the central
issue of whether she was a member of that group. Specifically, the Court
indicated that the Board erred by failing to address the Falun Gong activities
in which the applicant had been involved in Toronto.
[18]
In
Yang, above, the Court reviewed a decision in which the Board dismissed
the Applicant’s claim because it disbelieved her testimony and concluded that
she had simply chosen “a convenient way to become a Canadian resident by
claiming refugee status.” The Court indicated that the Board had scant evidence
before it with respect to the Applicant’s Falun Gong activities in Canada and
that the Board’s conclusion that the entire claim and not only the aspects
related to persecution in China, was contrived was sufficient to withstand
judicial review.
[19]
In
Liu, above, the Court acknowledged that the Board did not make an
explicit finding regarding the credibility of the principal Applicant’s claim
to be a Falun Gong practitioner, but concluded that the Board’s decision was
not patently unreasonable. The Court distinguished that case from Chen, above,
by indicating that the Board did in fact examine the principal applicant’s
attendance of Falun Gong activities in Toronto but, gave
this evidence little probative value given the Applicant’s admission that the
pictures were taken specifically for the purposes of the hearing, and that
anyone could attend the event.
[20]
In
(Li v. Canada (Minister of Citizenship and Immigration), 2007 FC
544, [2007] F.C.J. No. 739 (QL), a Chinese citizen again alleged persecution by
the authorities by reason of her being a Falun Gong practitioner. The Board
acknowledged that the claimant had provided correct information relating to Falun
Gong, and also evidence of her Falun Gong activities in Canada, but concluded
that given its determination that the claimant was not a credible witness; the
claimant had acquired her knowledge of Falun Gong in Canada to bolster a
manufactured refugee claim. In reviewing the decision, the Court indicated that
in light of the Board’s conclusions that the Applicant had not been perceived
to be a Falun Gong practitioner while in China, and that
the Applicant was not presently a sincere Falun Gong practitioner it was unable
to find an error in the decision.
[21]
However,
in two recent decisions of this Court, Huang, above, and Li v. Canada
(Minister of Citizenship and Immigration), 2008 FC 266, [2008] F.C.J.
No. 338 (QL), both involving Chinese claimants who allegedly feared persecution
based on their Christian status, the Board concluded that it did not believe
that the claimants were members of the underground church, and further that
their knowledge of Christianity could have been acquired to bolster their refugee
claims. The Court held that the Board erred in both instances by failing to
determine whether the claimants were Christian, and if so, whether they would
face persecution upon their return. In these cases there is no mention of the
evidence that was before the Board regarding the Applicant’s Canadian religious
involvement.
[22]
Based
on the jurisprudence, the Court is of the view that where there is evidence
before the Board regarding an Applicant’s Canadian religious involvement, in
order for the Board’s conclusion that an applicant is not currently a good
faith member of a particular religious group to be reasonable, the Board must
address this pertinent evidence and indicate why it was not found to be
relevant or trustworthy. This approach is consistent with the case law of this
Court with respect to pertinent and contradictory evidence (see Simpson
v. Canada (Minister of
Citizenship and Immigration) 2006 FC 970, [2006] F.C.J. No. 1224 (QL),
at paragraph 44; Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph
15).
[23]
In
the present case, the Applicant submitted a baptismal certificate as well as a
letter from a Canadian reverend. While the letter from the Canadian reverend
was referred to when the Applicant’s allegations of persecution in China were
examined, it was not addressed in the context of the Applicant’s present
religious membership, where it was much more relevant. The letter attests to
the Applicant’s active membership in the Living Water Assembly, including his
regular attendance at Sunday service and his participation in the
congregation’s volunteer works. Further, the Applicant’s baptismal certificate,
attesting to his baptism at the Living Water Assembly, was not addressed at all
in the decision. The Board’s failure to address these relevant and
contradictory pieces of evidence which lend support to the Applicant’s
contention to be a good faith practitioner of the Christian faith constitutes a
reviewable error.
[24]
It
could very well be that the Board did not believe that the Applicant was a
genuine good faith practitioner of the Christian faith and did not accept the
pieces of evidence which supported his contentions, but if this was the case,
it should have addressed the matter and said so. It does not appear from the
decision that the Board did address the evidence supporting the Applicant’s
contention on this issue.
[25]
A
statement in the Board’s decision that “[a]ny knowledge that the claimant has
learned about Christianity could easily have been learned here in Canada” is
insufficient and does not address the issue as it did in Li, Yang,
and Liu above. Therefore, the Court will allow the application.
[26]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE FOREGOING
REASONS, THE COURT allows the application
and refers the matter back to a newly constituted Board for rehearing and
redetermination.
"Maurice E. Lagacé"
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