Date:
20130307
Docket:
IMM-5418-12
Citation:
2013 FC 241
Ottawa, Ontario,
March 07, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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YI DONG FANG
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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 pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [the Board],
dated May 8, 2012, where the Board determined that the applicant is not a
Convention refugee or person in need of protection.
I. Background
[2]
The
applicant is a citizen of the People’s Republic of China [China]. He is from the city of Shenzhen in the Guangdong province. He alleges the following
facts in support of his claim for refugee protection.
[3]
In
February 2009, he turned to his friend for help to deal with his gambling,
drinking, and quarrels with his family. His friend introduced him to
Christianity and in March 2009 the applicant began attending services regularly
at his friend’s house church.
[4]
Sometimes
the applicant also distributed religious flyers at night. On January 13, 2010,
while distributing flyers with other members, the applicant’s group was
discovered by the Public Security Bureau [PSB]. The applicant fled and went
into hiding at a relative’s home.
[5]
The
applicant learned the following day that the PSB went to his home to arrest
him, and told his parents that the applicant’s friend and another member of the
house church were arrested. The applicant stayed in hiding, and later learned
that the PSB continued to visit his home in search of him.
[6]
The
applicant came to Canada on March 3, 2010 and claimed refugee protection on
March 8, 2010. Since he arrived in Canada, the PSB has continued to search for
him at his home in China.
[7]
For
the following reasons, the Board found that the applicant’s allegation of being
a genuine Christian in China was not credible:
-
There
was not sufficiently credible or trustworthy evidence to support the allegation
that the applicant attended church in China and the Board drew a negative
inference from the applicant’s inconsistent evidence regarding when he first
joined an underground church in China. He had stated in his Personal
Information Form [PIF] that he first attended an underground church in
mid-March 2009, but stated in his IMM 5611 form [or “the port of entry notes”]
that he became a member of the church in January or February 2009 and he
testified that he became a member at the beginning of March 2009;
-
The
Board found the omission of any reference to the applicant being sought out by
the PSB for distributing flyers in his IMM 5611 form, and the lack of details
about his distributing flyers in his PIF narrative, undermined this allegation.
The Board assigned little weight to the applicant’s explanation for these
omissions, given that the applicant was represented by an immigration
consultant in preparing both forms, as well as experienced counsel for
preparing his PIF. The Board also noted that the applicant having his name and
story in the flyer was “not a minor detail in his story” as it was a way the
PSB could identify him, and the omission of this fact in his PIF undermined the
credibility of his allegation;
-
The
Board found that given the fact the applicant was mailed documents under his
name and address in Canada, the allegation that he was wanted by the PSB was
not supported by the documentary evidence showing that Chinese authorities
regularly monitor mail and communication from China; and
-
The
Board found the absence of a summons or a warrant from the PSB undermined the
credibility of his allegation that he was wanted by the PSB.
[8]
The
Board also found the applicant was not a Christian upon his arrival in Canada. The Board found that the applicant’s motivation to attend church in Canada on April 18, 2010, shortly after making his claim for refugee protection, was to support a
fraudulent refugee claim given that he provided no evidence of any
conversion-type experience between his arrival in Canada and his first
attendance at church in Canada. Furthermore, the Board found the applicant’s
Christian knowledge was obtained for the purposes of bolstering a non-genuine
claim, given the lack of documentation attesting to the applicant’s motivation
for participating in church activities.
[9]
In
the alternative, the Board also examined the country documentation regarding
the Guangdong province and found that the applicant would not face a serious possibility
of persecution if he were to return to Guangdong and worship as he sees fit.
The Board noted that the documentary evidence indicated that the treatment of
underground church members depended on local authorities, and there was little
evidence to indicate that officials in Guangdong have sought to restrict or
punish proselytism. The Board also found there was mixed information regarding
the treatment of underground protestant churches in Guangdong province, but
that there was extremely limited information suggesting the occurrence of
religious persecution of underground protestant Christians in Guangdong.
II. Issues
[10]
The
applicant raises the following issues:
A.
Did
the Board err in finding the applicant was not a genuine Christian in China and was not wanted by the PSB for distributing Christian flyers?
B. Did
the Board err in finding the applicant was not a genuine Christian in Canada?
C. Did
the Board err in finding that the applicant could practice his faith in Guangdong without facing more than a serious possibility of persecution?
III. Standard
of review
[11]
The
issues at hand pertain to the Board’s assessment of the applicant’s credibility
and the risk of persecution he would face upon return to China. The reasonableness standard applies to these questions of fact (Chen v Canada (Citizenship and Immigration), 2009 FC 677 at para 17 [Chen]; Wu v Canada (Citizenship and Immigration), 2012 FC 578 at para 17). Accordingly, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
IV. Analysis
A. Did
the Board Err in Finding the Applicant was Not a Genuine Christian in China and
was Not Wanted by the PSB for Distributing Christian Flyers?
[12]
The
applicant submits that given the minor discrepancy between January or February
2009 and mid-March 2009, he did not deviate significantly in providing
inconsistent dates for when he joined the underground church, and that the
Board wrongly examined the evidence in this regard microscopically.
[13]
Further,
the applicant submits that the Board should not have drawn an adverse inference
from the applicant’s IMM 5611 form not mentioning he distributed Christian
flyers in China, or from the fact that his PIF narrative lacked details about
the flyer distribution. Such an omission should not automatically lead to an
adverse credibility finding (Canada (Minister of Citizenship and
Immigration) v Richards, 2004 FC 1218 at paras 18-19).
[14]
The
applicant maintains that although the documentary evidence indicates that
Chinese authorities open and censor international mail, this alone does not support
the finding that it would be implausible for the applicant to attempt to send
his documents to his address in Canada if he genuinely believed the PSB was
pursuing him. Moreover, the applicant submits an implausibility finding should
only be made in the clearest of cases where the evidence demonstrates the
events could not have taken place in the manner asserted by the claimant (Valtchev
v Canada (Minister of Citizenship and Immigration), [2001] FCJ 1131, 2001
FCT 776).
[15]
Finally,
the applicant submits that the Board erred by failing to explain why it
dismissed the documentary evidence that shows the Chinese police forces do not
follow common practices and by drawing an adverse inference from the fact the
PSB did not present a warrant or summons for his arrest.
[16]
In
the case at hand, I am not convinced the Board microscopically analyzed the
applicant’s evidence regarding the date he joined the underground church. It
was therefore reasonable for the Board to draw a negative inference from the
discrepancies in the applicant’s evidence regarding the date he joined the
church.
[17]
Although
the applicant is correct that this Court has held that lack of details in a PIF
and port of entry notes do not automatically lead to an adverse credibility
finding, the Board is entitled to draw a negative inference from an applicant’s
failure to mention significant facts in his or her PIF and IMM 5611 form (Akhigbe
v Canada (Minister of Citizenship and Immigration), 2002 FCT 249, [2002]
FCJ 332 at para 15; Canada (Minister of Citizenship and Immigration) v
Richards, 2004 FC 1218 at para 19). In KIN v Canada (Minister of
Citizenship and Immigration), 2005 FC 282 at para 23, Justice Anne
Mactavish stated that “[t]he nature of the omission, and the context in which
the new information is brought forward, have to be examined in order to
determine the materiality of the omission.”
[18]
In
my view, the omission that concerned the Board was sufficient to allow it to
reasonably draw a negative inference.
[19]
I
also agree with the respondent that it was reasonable for the Board to draw a
negative inference from the fact that the applicant was mailed documents from
China, given that the Board found Chinese authorities regularly monitor mail
and communication from China and that the applicant had documents mailed from
China to his name and address in Canada, thereby putting himself at risk.
[20]
In
Jing v Canada (Citizenship and Immigration), 2012 FC 609 at paras 5 and
15 [Jing], Justice David Near found that it was reasonable for the Board
conclude that it was unreasonable for a man wanted by the PSB to put himself
and his family at risk by having his father mail him relevant documents on two
occasions, given that Chinese government authorities monitor communications.
[21]
Justice
André Scott also found in Chen v Canada (Minister of Citizenship and
Immigration), 2012 FC 95 at para 38, that it was reasonable for a panel of
the Board to conclude “that receiving mail from China under her own name
undermined the Applicant’s allegations that she was wanted by the Chinese
authority” (specifically, the PSB) for practicing Falun Gong.
[22]
The
Board’s analysis regarding the absence of a warrant or summons for the
applicant was also not unreasonable in balancing the common practices of the
PSB and the facts of this case.
B. Did the Board Err in
Finding the Applicant Was Not a Genuine Christian in Canada?
[23]
The
applicant submits the Board erred by imposing the requirement that his refugee
claim be made in “good faith” and by not expressly considering the credible
evidence of his activities in Canada that are likely to substantiate potential
harm upon return (Ghasemian v Canada (Minister of Citizenship and
Immigration), 2003 FC 1266 at paras 29-31; Ejtehadian v Canada
(Citizenship and Immigration), 2007 FC 158 at para 11).
[24]
The
applicant further claims that given his demonstrated knowledge of Christianity
and documents attesting to his participation in church, the Board’s finding
falls short of explaining why the applicant was not a genuine Christian in
Canada (Chen, above, at paras 25-26).
[38] This Court held recently
in Jing, above, at paras 21-23, that it was open to the Board to have
credibility concerns regarding the applicant’s claim of Christian faith in Canada given its other negative credibility findings regarding his Christian practice in China.
[25]
Justice
Near was faced with the issue in Jing, and analyzed it as follows at
paras 22-23:
[22] The Board specifically addressed the
Applicant’s evidence of his attendance at church shortly after his arrival in Canada, including the letter provided from his pastor. It nonetheless concluded that this
evidence referred neither to a conversion-type experience in Canada nor his motivation for participating in church activities. The Board simply did
not assign the Applicant’s preferred degree of weight to this evidence. It
does not follow that the conclusions reached lack justification, transparency
or intelligibility.
[23] Indeed, as the Respondent contends, it
was reasonable for the Board to doubt the veracity of the Applicant’s position
in light of its previous credibility findings. Justice Donald Rennie
upheld similar reasoning by the Board in Ma v Canada (Minister of
Citizenship and Immigration), 2011 FC 417 (CanLII), 2011 FC 417, [2011] FCJ
no 530 at paras 37-38). By contrast, the finding in Huang v Canada (Minister of Citizenship and Immigration), 2008 FC 132 (CanLII), 2008 FC 132, [2008] FCJ
no 164 at para 8, as raised by the Applicant, does not apply in this instance
as the Board proceeded to consider whether he would face persecution if
returned to China.
[Emphasis added]
[26]
Like
in Jing, the Board in the present case specifically mentioned the
applicant’s evidence of his attendance at church in Canada (a “Church letter,
photo, and baptismal certificate”), but found that the applicant “did not
provide evidence of any conversion-type experience between his arrival in
Canada and his first attendance at church” nor did they “attest to his
motivation” for participating in church activities. Accordingly, like in Jing,
in my view the Board’s analysis on this point was reasonable.
[27]
As
for the applicant’s argument that the Board erred by imposing the requirement
that his refugee claim be made in “good faith” and by offering no other reasons
to support its finding that the applicant was not a genuine Christian in
Canada, while I agree motive or “good faith” should not be determinative to a
Board’s decision, I am convinced that the fact the Board considered, in the
alternative, whether the applicant faced a risk of persecution if he returned
to Guangdong and practiced Christianity, demonstrated that the Board looked
beyond the applicant’s motivation for religious conversion and conducted an
assessment of the merits of his sur place claim.
[28]
In
my view, therefore, the Board did not err in finding that the applicant was not
a genuine Christian in Canada.
C. Did
the Board Err in Finding that the Applicant Could Practice his Faith in Guangdong Without Facing More than a Serious Possibility of Persecution?
[29]
I
am not persuaded the Board committed a reviewable error by failing to refer to
the information cited above in Information Request CHN103500.E, as argued by
the applicant. I am not convinced this evidence was so important that the Board
had a duty to mention and analyze it, given the fact that, as noted by the
respondent, the Research Directorate could not corroborate the information, as
well as the fact that the Board acknowledged various other evidence in the
record that pointed to the fact that there is a serious possibility the applicant
would face persecution in China.
[30]
Nor
am I persuaded that the Board erred by inferring that by virtue of the lack of
evidence indicating that officials in Guangdong have sought to restrict or
punish proselytism, there are no incidents of persecution based on proselytism.
The Board considered contradictory evidence concerning instances of persecution
in the Guangdong province. Its conclusion regarding the lack of persecution of
underground Christians in Guangdong was therefore reasonable (see Zheng v Canada (Minister of Citizenship and Immigration), 2012 FC 594 at para 10).
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The applicant’s
application for judicial review is dismissed.
“Michael D. Manson”
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