Date: 20081017
Docket: IMM-1303-08
Citation: 2008 FC 1174
Ottawa, Ontario, October 17, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
WO
JI CAO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Wo Ji Cao sought protection in Canada on the ground that he would be persecuted for
his faith in China. The Refugee
Protection Division (RPD) of the Immigration and Refugee Board, in a decision
dated February 20, 2008, found that the applicant was neither a Convention
refugee nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Mr. Cao brought
this application for judicial review of the RPD’s decision. For the reasons
that follow, the application will be dismissed.
Background
[2]
Mr.
Cao is a 34 year old citizen of the Guangdong province in the People’s Republic
of China (PRC). He
fled China on November
6, 2006, and arrived in Canada the same day. He claimed refugee protection
in Toronto three days
after his arrival on the grounds that he fears persecution based on his
religion.
[3]
The
applicant explained in his Personal Information Form (PIF) narrative that in
November, 2005, his wife began experiencing serious joint pain as a result of many
years of farming. She became debilitated and the applicant became her primary
caregiver. The added burden caused the applicant to be stressed and to believe that
human life was “painful and meaningless”. In mid-February, 2006, the applicant’s
best friend introduced him to Christianity as a means of solving his problems and
in late February took him to a service at an underground church. The applicant
says that his attendance at the underground services over the following months
helped improve his wife’s health as well as his own personal well-being.
[4]
According
to the applicant’s account, during a service at a member’s house on September
24, 2006, a lookout informed the group that the Public Security Bureau (PSB)
was coming. The group dispersed, and the applicant went to his cousin’s house
to hide. Two days later, while still in hiding, the applicant received a phone
call from his wife informing him that PSB officers had visited his home and
were looking for him. His wife said the PSB had accused him of being involved
in illegal religious activities and that they had informed her that he must
surrender himself to them. The PSB had also arrested two of his fellow church
members.
[5]
The
applicant claims that the PSB continued to visit his home while he remained in
hiding and it was for this reason that he fled China. After
arriving in Canada, Mr. Cao says
that he learned that the PSB continued to visit his home looking for him and
that the two members from his church group who had been arrested were still
detained.
Decision Under Review
[6]
The
Board concluded that the claimant was neither a Convention refugee nor a person
in need of protection. The determinative issue in regard to Mr. Cao’s claim was
a lack of credibility. On a balance of probabilities, the Board concluded that
the applicant was not a member of an underground church, was not being pursued
by the PSB, and was not a genuine practicing Christian. In short, the Board did
not believe his story.
[7]
The
Board based its finding on the negative inferences it drew from inconsistencies
in the answers provided by the applicant to questions relating to his wife’s
medical documents; the exclusion of his wife from the introduction to
Christianity; his knowledge of the risk inherent to attendance at an
underground church prior to his first service; his knowledge regarding the procedure
when a pastor is or is not present during underground services; the legal
procedures utilized by the PSB to take people into custody; and his knowledge
of Christianity and the Pentecostal faith.
[8]
Regarding
the assessment of Mr. Cao’s Christian knowledge, the Board member acknowledged
that the applicant was able to answer a number of questions, but noted that he
was unable to answer questions concerning the Pentecostal faith he professed to
follow that, in the member’s view, any practicing Pentecostal Christian should
know. The member determined that whatever knowledge of Christianity and
Pentecostalism the applicant may possess was largely obtained in Toronto and only for
the purpose of supporting his invented claim. The member found that the
applicant’s claim was fraudulent and was made in bad faith.
[9]
The
member concluded that the claimant had failed to satisfy his burden of
establishing a serious possibility that he would be persecuted or that he would
be personally subjected to a risk to his life or a risk of cruel and unusual
punishment or a risk of torture by any authority in the PRC. Moreover, the
member held that if Mr. Cao wished to become a Christian and to practice his
religion in China, he could do
so without fear of persecution based on the documentary evidence.
Issues
[10]
The
applicant submits that the sole issue for consideration is whether the Board
erred in its determination of his claim to be a Christian by ignoring the fact
that the applicant had correctly answered many questions with respect to
Christianity. I would frame the issues in the following terms:
- What is the
appropriate standard of review?
- Did the Board err
in concluding that the applicant is not a genuine Christian?
Applicant’s Submissions
[11]
The
applicant’s arguments center on his contention that the Board failed to
determine in a reasonable manner whether he is a genuine Christian.
[12]
The
applicant relies upon decisions of this Court in which a reviewable error was
found when the Board failed to address whether the applicant was a genuine
adherent of the claimed faith. In Huang v. Canada (Minister of Citizenship
and Immigration), 2008 FC 132, [2008] F.C.J. No. 164 (Huang)
the Board had found that the claimant was not a member of an underground church
in China. The Court
concluded that the Board erred in failing to address whether the applicant was
a genuine Christian who would consequently face religious persecution if
returned to China, regardless of whether he had previously been a member of an
underground church or not.
[13]
Similarly
in Li v. Canada (Citizenship and Immigration), 2008 FC 266, [2008]
F.C.J. No. 338 (Li) the Court held that the Board will commit a
reviewable error when it does not rule on whether an applicant is a practicing
Christian, notwithstanding the fact that other adverse findings have been made against
him.
[14]
The
applicant admits that the Board did in fact make a finding that he is not a
“genuine practicing Christian”, but argues that the Board based its finding on
unattainable and unreasonable requirements of knowledge of the Christian faith
and erred in its assessment of the applicant’s religious knowledge.
[15]
The
applicant submits that the Board erred in determining that he was not a genuine
Christian based on its assessment of his knowledge of the Pentecostal faith. He
argues that a review of the recording of the proceeding reveals that he
exhibited a reasonable level of knowledge of his religion, given the fact that
he had only been exposed to it for less than two years. In support of this
proposition, the applicant cites Feradov v. Canada (Minister of
Citizenship and Immigration), 2007 FC 101, [2007]
F.C.J. No. 135 (Feradov) wherein Justice Barnes found the Board’s criticism
of the applicant’s evidence concerning his religious practices and knowledge to
be unwarranted. The applicant also cites Chen v. Canada (Minister of
Citizenship and Immigration), 2007 FC 270, [2007]
F.C.J. No. 395 and Huang, above, to support his argument.
[16]
In
addition, the applicant argues that the Board erred in its assessment of his
religious knowledge as it asked questions of him based upon information not
tendered as evidence on the record and never mentioned the applicant’s
Certificate of Baptism, granted in Toronto, which he contends demonstrates
a sufficient grasp of Christian knowledge to satisfy his church.
Respondent’s Submissions
[17]
The
respondent submits that the applicant’s challenges to the RPD’s findings are
largely unsupported by the evidence. Contrary to what the applicant suggests,
the respondent maintains that the Board found in clear and definitive terms
that the applicant was not a genuine, practicing Christian.
[18]
The
respondent submits that the Board did not engage in an overly zealous or
microscopic review of the evidence and even let some inconsistencies in the
applicant’s testimony pass as inconsequential. The respondent asserts that the
Board had the advantage of seeing and hearing the applicant testify and did not
find the evidence of his religious practice in China, or the manner by which he
left China convincing. The respondent maintains that these are rational reasons
for rejecting the applicant’s claim.
[19]
The
respondent notes that credibility findings that are based on evidentiary
inconsistencies, evasions and lack of detail are the heartland of the Board’s discretion
as a trier or fact and are entitled to deference. The respondent asserts that it
is not the function of this Court to substitute its view of matters of fact which
the RPD has taken notice of. While the applicant may not agree with the
inferences drawn by the RPD, the respondent submits that it has not been
sufficiently demonstrated that the RPD’s assessment is perverse, capricious or
without regard to the evidence, and therefore the application should fail.
Analysis
Standard of Review
[20]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9 (Dunsmuir),
the Supreme Court of Canada abandoned the patent unreasonableness
standard leaving only two standards of review, correctness and reasonableness.
The Supreme Court also held that a standard of review analysis need not be
conducted in every instance. Where the standard of review applicable to the
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard of review.
[21]
In
this case, the Board’s finding with respect to the applicant’s status as a
Christian was based upon a number of negative inferences, which led to a
negative credibility finding. Prior to Dunsmuir, it was settled law that
the Board’s factual and credibility findings were reviewable on the patently
unreasonable standard.
[22]
The
Board’s credibility findings are findings of fact which are reviewable under
section 18.1(4)(d) of the Federal Courts Act, which provides that this
Court “may grant relief under subsection (3) if it is satisfied that the
federal board, commission or other tribunal based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it”.
[23]
Several
decisions of this Court have held that Dunsmuir has not changed the law
in respect of factual findings subject to the limitation in paragraph
18.1(4)(d): Da Mota v. Canada (Minister of
Citizenship and Immigration), 2008 FC 386, [2008] F.C.J. No.
509; Obeid v. Canada (Minister of Citizenship and
Immigration), 2008 FC 503, [2008] F.C.J. No. 633; Naumets
v. Canada (Minister of Citizenship and Immigration), 2008 FC 522, [2008]
F.C.J. No. 655. It has also been held that a Board decision concerning
questions of fact and credibility are reviewable upon the standard of
reasonableness: Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427, [2008]
F.C.J. No. 515.
[24]
The
Board’s credibility analysis is central to its role as a trier of fact. As
such, these findings are to be given significant deference by the reviewing
Court. The Board’s credibility findings should stand unless its reasoning
process was flawed and the resulting decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law, Dunsmuir, above at paragraph 47.
Did the Board err in
concluding that the applicant is not a genuine Christian?
[25]
The
applicant argues that the Board’s ultimate finding regarding the genuineness of
his Christian identity was made upon unattainable and unreasonable requirements
of knowledge of the Christian faith. The applicant cites Feradov,
Chen and Huang, above, in support of the proposition that to
require an applicant to correctly answer every question put to him concerning
his religion in order to demonstrate his credibility sets far too high a
standard. Moreover, the applicant submits, the Board ignored the baptismal
certificate and letter confirming membership in the Church issued by his Toronto pastor.
[26]
During
the hearing, the Board member asked the applicant a number of questions
concerning Christianity and the Pentecostal faith. In his reasons for decision,
the member notes that while he was able to correctly answer a number of questions
concerning Christianity, Mr. Cao was unable to answer certain questions
regarding the specifics of the Pentecostal faith. I note that the applicant did
in fact struggle with certain questions, however he also successfully answered
a number of others, some of which were quite specific.
[27]
At
the time of the Board hearing, the applicant had been a Pentecostal for only two
years. It is understandable that he might not be able to answer each question
put to him concerning the specifics of his faith. But the Board’s finding regarding
the applicant’s professed Christian faith was primarily based on the negative inferences
the member drew from the significant inconsistencies in the applicant’s oral
testimony at the hearing on issues that were material to his claim.
[28]
It
is clear from the member’s reasons that he arrived at the conclusion that the applicant’s
faith was not genuine in spite of the evidence that the applicant had been in
regular attendance at a church in Toronto and had been baptized
there. The applicant submits that the member should have accorded deference to the
Pastor’s opinion and taken the baptismal certificate at face value. To do so
would, in effect, substitute the Pastor’s assessment of the genuineness of the
claim of faith for that which the member was required to make. Taken as a
whole, the decision cannot be said to be irrational or unsupported by the
evidence.
[29]
The
Board member provided extensive and transparent reasons for his finding as to the
applicant’s Christian identity. The decision overall was within the range of
acceptable outcomes. Accordingly, I must disallow the application. No
questions were proposed for certification.
JUDGMENT
IT IS THE JUDGMENT OF THIS
COURT that
the application is dismissed. There are no questions
to certify.
“Richard
G. Mosley”
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