Docket: IMM-1558-15
Citation:
2015 FC 1402
Ottawa, Ontario, December 18, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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FeiHu REN
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant is a 22 year old Chinese citizen
who has a grade 6 education. He was brought up by and lived with his
grandparents as a child. The Applicant was at his grandfather’s bedside when he
passed away in January 2011 and, in his dying moments, his grandfather told him
he was going to a peaceful place. After his grandfather’s death, the Applicant
became frustrated and depressed, and also afraid of suffering “spiritual pains” caused by losing family members in
the future.
[2]
A month or so after his grandfather’s death, the
Applicant told his grandmother of his concerns after the loss of his
grandfather. His grandmother told the Applicant not to worry because his
grandfather went to Heaven, a place full of happiness and peace. She also told
the Applicant that she and his grandfather were Christians. The Applicant was
intrigued by what his grandmother told him and believed that, if he became a
Christian, he would meet his grandfather again in Heaven. Thus, the Applicant
decided he would attend his grandmother’s house church which, for many years,
had been operating without being detected.
[3]
The Applicant first attended the house church
with 13 other people on February 6, 2011. After this first attendance, he then
attended every Sunday. On May 6, 2012, while the Applicant was attending a
service, the leader’s cell phone rang and the congregants were told Public
Security Bureau [PSB] agents were approaching the house. The Applicant and his
grandmother fled and went to the home of the Applicant’s aunt, where they went
into hiding. Two days later, the Applicant learned that PSB agents had gone to
his home and that of his grandmother to arrest them because of accusations of
illegal religious activities and being “key members”
of an illegal cult. The PSB agents questioned the Applicant’s parents about his
and his grandmother’s possible whereabouts; they returned the next day with a
summons notice for each of the Applicant and his grandmother.
[4]
Subsequently, the Applicant’s parents determined
that the Applicant had to leave China, and he did so on July 31, 2012. With the
assistance of a smuggler, the Applicant arrived in Canada on August 1, 2012.
After his arrival in Canada, the Applicant claimed refugee protection on the
basis of his Christianity, fearing that if returned to China he would be
arrested and jailed due to his illegal religious activities and unable to
practice his religion freely. His claim was rejected though by the Refugee
Protection Division [RPD] of the Immigration and Refugee Board of Canada in a decision
dated March 9, 2015. The RPD found the Applicant not to be credible and that he
is not a genuine Christian and, therefore, denied his claim for refugee
protection. The Applicant now seeks judicial review of the RPD's decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27, asking the Court to set aside the RPD’s decision and order that
his claim be re-determined by a new panel of the RPD.
II.
The RPD’s Decision
[5]
Although the RPD acknowledged that sworn
testimony is presumed to be truthful unless there is reason to doubt its
truthfulness, the RPD nonetheless found multiple credibility concerns. The
panel member noted that, while none of these concerns individually were
sufficient to negate the Applicant’s claim, the cumulative effect of all of
them was such that there was insufficient credible and trustworthy evidence to
determine that the Applicant was a Convention refugee or a person in need of
protection.
[6]
The RPD determined that if the Applicant was
wanted for arrest, as he claimed, he would have been discovered when he left
Beijing using his own passport since Chinese authorities track all exits
thorough airports. The Applicant said his passport was not scanned by an exit
control officer, but the RPD found this was neither plausible nor credible in
view of the Golden Shield Project and drew a negative inference. The RPD
concluded, on a balance of probabilities, that no bribe had been paid to any
exit control officers in China and the Applicant’s testimony in this regard
impugned his credibility because it suggested there was no registration in the
computer banks of the Chinese authorities that the Applicant was wanted by
them.
[7]
In assessing the Applicant’s religious
knowledge, the RPD first focused upon a Guan Yin tattoo on his back, noting
that it was a Buddhist religious figure. The Applicant said he had the tattoo
done when he was 19 because he liked the design. Nevertheless, the RPD found
this must have happened after the Applicant had been allegedly attending Christian
services. The RPD stated that, “in the context of other
glaring problems” about the Applicant’s religious knowledge, his
Buddhist tattoo led to a negative inference since it was “an obvious violation of the Second Commandment in the
Bible.”
[8]
The RPD next asked the Applicant numerous
questions concerning his knowledge of Christianity “in
order to assess the genuineness of his alleged Christianity.” Amongst
other things, the RPD found:
•
the Applicant was evasive about how much of the
Bible he had read;
•
he was able to recite the Lord’s Prayer and
Apostles Creed;
•
after arriving in Canada, the Applicant did not
immediately attend a church in August or September 2012, which prompted the RPD
to make a negative inference since a genuine Christian would attempt to find a
church as soon as possible after arrival;
•
a negative inference should be drawn from the
Applicant’s lack of diligence in obtaining a letter from the pastor of the
church in Toronto, and that this letter, contrary to the Applicant’s testimony,
indicated he started attending the church in August 2012;
•
he was baptized on October 20, 2012, based on
his previous baptism in China in September 2011;
•
when asked about where to find the Ten
Commandments in the Bible, the Applicant incorrectly answered and failed to
refer to the Old Testament, Moses, or the tablets with the Ten Commandments “as one might expect of a person in the claimant’s situation”;
•
the Applicant incorrectly stated that the Living
Water church where he is a member is Evangelical, rather than Pentecostal;
•
he was unable to pinpoint where in the Bible
there is a reference to the Pentecostal, prompting the RPD to note that a
person who had been attending a Pentecostal church since 2012 “should be able to identify correctly the Biblical basis for
their branch of Christianity”;
•
the Applicant was unable to define a Pentecostal
Christian, and because he identified only one core belief of Pentecostal
Christians (one the RPD said was “hardly unique”
to Pentecostalism) the RPD said this “speaks very poorly
of his alleged Christian knowledge, belief and identity”;
•
that because he failed to refer to the Holy
Spirit or the Holy Day of Pentecost which marks the events in Book of Acts,
chapter 2, the RPD drew a negative inference about the Applicant’s Christian
identity;
•
when asked about his core or central beliefs as
a Christian, the Applicant said: “as my grandmother
said, in the future we will all be together”, an answer which the RPD
said “made no mention of the fundamental tenets of
Christianity” and the Applicant’s belief in an afterlife “is a common thread in many religions”. According to
the RPD, the fundamental tenets of Christianity are:
1)
“that genuine Christians
believe that they are saved by the death and resurrection of Jesus Christ,” and
2)
“that through baptism,
repentance, and belief, they can be born again and receive eternal life;”
•
after four years as a Christian, the Applicant
had not finished reading the entire Bible and could not name the books of the
Bible;
•
although he could name the Old and New
Testaments, he confused which Testament was about Jesus and which was about
Jehovah, stating that: “Maybe I got it reversed.”;
•
although the Applicant could name three of the
four Gospels in the New Testament, the RPD drew a negative inference when he then
looked at the index of the Bible he had brought with him, finding this to be
inappropriate conduct;
•
the Applicant mixed up some Buddhist concepts
with Christianity, which prompted the RPD panel member to state: “It is incomprehensible to me that any genuine Christian
would spout Buddhist concepts when asked about the Christian Holy Trinity”;
and
•
although the Applicant was “broadly correct” about the significance of baptism,
he was vague when asked what the first sin in the Bible was and did not identify
Adam and Eve, and did not know about the Baptism of Jesus in the first verses
of the Gospel according to Mark.
[9]
After questioning the Applicant as to his
religious beliefs, the RPD then assessed the Applicant’s church attendance in
Canada. The RPD noted the discrepancy between the pastor’s letter and the
Applicant’s testimony, in terms of when he started attending, and determined
that the Applicant had “proffered a document containing
false or fraudulent assertions,” leading to a negative inference. The RPD
next asked which of the Ten Commandments the Applicant violated by not
attending church each Sunday (which he correctly answered as being the Fourth,
to keep the Sabbath holy), but found that if the Applicant is a genuine
Christian, he would find a job which would allow him to attend services. The
RPD drew a negative inference from the Applicant’s explanation he had to work
every day, including Sunday, to pay back the smuggler.
[10]
The RPD found the Applicant lacked knowledge
about Christianity and did not display a reasonable level of commitment to
Christian activities in Canada, and thus drew an adverse inference “from his lack of enthusiasm or application to learning about
Christianity.” The RPD also found there was insufficient credible
evidence to show he was a genuine practicing Christian. The RPD therefore
concluded that the Applicant was never a genuine practicing Christian, and that
on a balance of probabilities he was not sought by the PSB. Consequently, the
RPD gave little or no weight to the summons documents, considering the easy
availability of fraudulent documents in China. As the RPD found the Applicant
was manufacturing his claim to be a Christian, it placed little weight on other
documents he had submitted (i.e., a baptismal certificate, baptismal photographs,
and a letter from the church in Canada).
[11]
The RPD also found that if the Applicant had
practiced Christianity in a house church in China, the documentary evidence did
not show that the police raided such churches in the area of the Applicant’s
home province, Hebei, and arrested members. Consequently, after an extensive
review of the case law and documentary evidence in this regard, the RPD
determined that the Applicant would be free to practice in a small church in
Hebei. The RPD further determined on a balance of probabilities that, even if
the Applicant had attended a house church in Hebei, it was not raided and the
PSB was not seeking to imprison him. Furthermore, since the Applicant was not
wanted by the PSB, and considering the country documentation that home or small
group churches such as that of the Applicant are generally tolerated in Hebei,
the RPD concluded that the Applicant would not face a serious possibility of
persecution in attending a small or house church in Hebei. Thus, the RPD determined
that the Applicant was not a Convention refugee nor a person in need of
protection.
III.
Standard of Review and Issues
[12]
The applicable standard of review is
reasonableness for the RPD’s assessment of the evidence before it, including
the Applicant’s credibility and the genuineness of his religious beliefs (Hou
v Canada (Citizenship and Immigration), 2012 FC 993 at paras 8 and 15,
[2014] 1 FCR 405).
[13]
Although the Applicant raises various issues
with respect to the RPD’s decision, the only substantive issue to address is
the reasonableness of the decision. For the reasons stated below, I have
determined that the RPD’s decision is not reasonable and that the matter must
be returned for re-determination by a different panel member of the RPD in
accordance with these reasons.
IV.
Analysis
[14]
There are three reasons why the RPD’s decision
cannot be justified and is not “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 paragraph 47,
[2008] 1 S.C.R. 190). First, the RPD made an unreasonable implausibility
determination about the Applicant’s exit from China. Second, it unreasonably
assessed the Applicant’s Christian beliefs. Third, it unreasonably assessed the
summons for the Applicant’s arrest.
A.
The Applicant’s Exit from China
[15]
The Applicant testified that he used the
services of a smuggler to help him leave China without being found by the
Chinese authorities, and that the passport in his name was not scanned at the
Beijing airport. The RPD, however, determined this was implausible, stating as
follows:
[39] The claimant testified that his
passport was not scanned at Beijing airport. However, if the passport was not
scanned, then given the complexity of the Golden Shield system, it is
reasonable to expect that the airline could not issue a boarding pass to the
person concerned, bearing in mind the reference above to “completely
computerized inspection procedures and integrated operations.” Passports are
scanned, and the passport scan produces computer records on a screen in front
of the officer monitoring departures from the country to verify that the person
concerned is not a wanted criminal.
[40] In this regard, I find the
claimant’s testimony that his passport was not scanned neither plausible nor
credible, which leads me to draw a negative inference regarding his
credibility.
[16]
This determination by the RPD cannot be
justified in view of this Court’s decisions in Zhang v Canada (Citizenship
and Immigration), 2008 FC 533, 169 ACWS (3d) 848 [Zhang], and Sun
v. Canada (Citizenship and Immigration), 2015 FC 387 [Sun]. It is
not implausible that a person could leave China on their own passport with the
assistance of a smuggler who bribed the appropriate person; “one official with access to the computer system would be
sufficient” (Zhang at para 11). The Applicant’s explanation that
he engaged a smuggler who told him to go to a particular exit is not
implausible and can account for why he was able to leave on his own passport.
As the Court stated in Sun:
[26] The Board’s finding that it was
implausible the Applicant would be able to leave China undetected on his own
genuine passport while an arrest warrant was issued against him…is equally
questionable. The Board based its finding mainly on a Response to Information
Request reporting the existence and expansion of a national Chinese policing
database used by the PSB and at ports of entry and exit of the country. …It is
well established that implausibility findings may only be made in the “clearest
of cases” (Valtchev v Canada (Minister of Citizenship and Immigration),
2001 FCT 776, at para 7), where “the facts as presented are either so far
outside the realm of what could reasonably be expected that the trier of fact
can reasonably find that it could not possibly have happened” (Lorne Waldman, Immigration
Law and Practice (Markham, ON: Butterworths, 1992), s 8.22, cited in Divsalar
v Canada (Minister of Citizenship and Immigration), 2002 FCT 653, at para
24). …
B.
The Test of the Applicant’s Christian Knowledge
[17]
In Gao v Canada (Citizenship and Immigration),
2015 FC 1139 [Gao], Justice Southcott recently reviewed this Court’s
jurisprudence about the concerns that can arise when the RPD assesses the
genuineness of a claimant’s religious belief, and concluded as follows:
[26] My reading of the jurisprudence is
that it is not improper for the Board to engage in religious questioning in an
effort to gauge the genuineness of a claimant’s beliefs, but that such
questioning and resulting analysis must indeed focus on the genuineness of
those beliefs and not whether they are theologically correct. This can be a
difficult task for the Board, as it is entitled to consider whether the
claimant holds a level of religious knowledge that would be expected of someone
in the claimant’s position but should not reach an adverse conclusion based on
minutiae or holding the claimant to an unreasonably high standard of religious
knowledge.
[18]
In other words, it is not the objectivity of a
claimant’s religious beliefs that matters or their validity or correctness but,
rather, the sincerity or genuineness of the claimant’s religious beliefs. In
assessing a claimant’s religious beliefs, the RPD should not adopt an
unrealistically high standard of knowledge or focus on a few points of error or
misunderstandings to a level which reaches a microscopic analysis (see: Zhang
v Canada (Citizenship and Immigration), 2012 FC 503, at para 12, 409 FTR
264, and the cases cited therein). Moreover, case law has established that the
RPD’s assessment of a claimant’s religious beliefs will be unreasonable where
it expects answers to questions about a claimant’s religion to be equivalent to
the RPD's own knowledge of that religion (see: Ullah v. Canada (Minister of
Citizenship and Immigration), 2000 FCJ No 1918, at para 11).
[19]
The RPD is tasked with assessing a claimant’s
credibility “and not the soundness of his theology. A
claimant may have a poor understanding of the minutiae of the religious
doctrine but that does not, necessarily, mean his faith is not genuine”
(Wang v Canada (Citizenship and Immigration), 2012 FC 346, at para 9,
214 ACWS (3d) 558). In short, the RPD’s questioning of a claimant about their
religious beliefs will be defensible only if it goes to questions which focus
on the sincerity of belief, and any finding of a lack of genuinely or sincerely
held religious belief is founded not on the correctness of the answers but,
rather, on a claimant’s inconsistent, vague, non-responsive or contradictory
answers to such questions.
[20]
In this case, the RPD’s finding that the
Applicant is not a genuine Christian is not reasonable. Although some of the
RPD’s questions as to the Applicant’s religious beliefs were reasonable and
some of the Applicant’s answers were vague, the RPD nevertheless conducted a
demanding, indeed a microscopic, investigation and inquisition of the
Applicant’s knowledge of Christianity. This is demonstrated not only in the
transcript of the hearing but also in the RPD’s reasons for its decision, both
of which clearly show that the Applicant was subjected to an extended quiz on
religious trivia and the depth of his knowledge of parts of the Bible.
[21]
The RPD reached its conclusion that the
Applicant is not a Christian based on an assessment of the theological
correctness of his responses and not on the sincerity of his religious beliefs.
The RPD expressed its conclusion in this regard as follows:
[114] The panel does not believe, on a
balance of probabilities, that the claimant is a genuine Christian and,
therefore, accordingly, the claimant would not necessarily practice
Christianity should he return to China today.
[115] On a balance of probabilities, the
panel finds that the claimant participated in any Christian activities in
Toronto in order to substantiate a manufactured claim to be a Convention
refugee. As a result, and since the panel is not persuaded that the claimant
was a genuine Christian in China prior to coming to Canada, the panel attaches
little weight to the baptismal certificate, photographs, and document from the
church in Canada. The panel is of the view the claimant has obtained these
documents to further his claim to be a Convention refugee and a person in need
of protection, and that they alone or any basic Christian knowledge which he
may have demonstrated in the hearing, do not corroborate that the claimant
actually is or ever was a genuine Christian.
[116] For all the aforementioned reasons,
the panel makes a determination, on a balance of probabilities, that the
claimant is not Christian, was not a Christian in China and is not being sought
by the PSB in China.
[footnote omitted]
[22]
In this case, while some of the RPD’s questions
about the Applicant’s faith appear basic or fair, most of the questions in this
regard assess the correctness of the Applicant’s theological knowledge, so much
so that the RPD lost sight of the central question of the genuineness or
sincerity of the Applicant’s beliefs. The sheer number and scope of questions
about the Applicant’s religious beliefs and knowledge undermine the RPD’s
decision because its focus was on specific and detailed aspects of religious
doctrine rather than the genuineness of the Applicant’s beliefs. The RPD’s
questioning of the Applicant’s religious beliefs and knowledge in this case was
such that many individuals in Canada who regard themselves as being a Christian
would most likely fail the inquisition and test to which the Applicant was
subjected.
[23]
Moreover, the RPD’s finding that the Applicant “manufactured” his claim requires a high standard of
proof since it raises a question of intent to deceive. The RPD’s suggestion of
some fraudulent intent on the Applicant’s part shows it held the Applicant to “a high standard of religious knowledge well beyond the
relatively low standard of religious knowledge necessary to ground sincerity of
belief” (see: Huang v Canada (Citizenship and Immigration), 2012
FC 1002 at para 15).
C.
The Arrest Summons
[24]
The RPD determined that, based on the
Applicant’s credibility, he was never a member of an underground church in
China and was never sought or wanted by the PSB. In this regard, the RPD stated
as follows:
[111] As a result of the various concerns
noted above, I conclude, on a balance of probabilities, that he was never a
member of any underground house church in China, and that he was never wanted
or sought by the PSB.
[112] I therefore conclude that the
Summons document supplied by the claimant should be given little or no weight,
in this context, and also by reference to the documentary evidence regarding
the prevalence of forged or fraudulent documents in China.
[25]
This conclusion by the RPD is problematic and,
consequently, unreasonable. The general prevalence of and easy access to fake
or fraudulent documents in a country does not necessarily mean that a document
from such a country is therefore to be given little or no weight. On the
contrary, the RPD has to deal separately and squarely with the documentary
evidence before coming to an overall credibility finding. As noted by
the Court in Iqbal v Canada (Citizenship and Immigration), 2006 FC 1219,
152 ACWS (3d) 308:
[8] … it was incumbent on the RPD to
make its global credibility finding after considering all the evidence. To
properly do so, it was necessary for the RPD to first deal with the
authenticity of the documentary evidence in its own right. The RPD did not do
this. In fact, quite apart from the issue of the Applicant’s credibility, the
RPD had no evidence, other than a generalized suspicion, upon which to base its
conclusion that the documents submitted are fraudulent. The fact that there is
“easy accessibility of fraudulent documents in Pakistan” does not mean that the
particular documents before the RPD are in fact fabricated. On this basis
alone, I find that the rejection of the documentary evidence is a capricious
finding.
[26]
More to the point is this Court’s decision in Lin
v Canada (Citizenship and Immigration), 2012 FC 157, 405 FTR 21 [Lin],
where the applicant was a man who, with the assistance of a smuggler, fled from
China due to his alleged Christianity. The Court in Lin found that the
ready availability of fraudulent documents in China does not mean that a
claimant’s document is fraudulent, and that the RPD still must determine
whether any document presented is genuine:
[53] … Just because fraudulent
documents are readily available in the PRC [China] does not, for that reason
alone, mean that the Applicant’s documents were fraudulent. As Justice Konrad
von Finckenstein said in Cheema v Canada (Minister of Citizenship and
Immigration) 2004 FC 224 at paragraph 7
The documents may well be forgeries,
however evidence of widespread forgery in a country is not, by itself,
sufficient to reject foreign documents as forgeries. …evidence of widespread
forgery merely demonstrates that false documentation could be available to the
Applicant.
[54] The RPD’s reasoning would mean
that even genuine documents would not be acceptable. The fact that inauthentic
documents are available does not relieve the RPD of the duty to determine
whether particular documents presented by a claimant are genuine or not. …
[55] …It may be that fraudulent
documents are widely available in the PRC. However, this does not mean that
every document that comes out of the PRC is necessarily fraudulent. The RPD was
obliged to examine and weigh the actual documents in front of it, rather than
simply rejecting them out of hand.
[27]
There is no doubt it is open to the RPD to
question the authenticity of a document such as the arrest summons presented by
the Applicant in this case. However, it cannot do so without subjecting the
document to some independent analysis. In this case, the RPD expressly found
that the Applicant, on a balance of probabilities, was not a member of an
underground house church and was not being sought by the PSB. But these
findings alone are not sufficient for the RPD to “therefore
conclude that the Summons document supplied by the claimant should be given
little or no weight, in this context…”. The RPD was obliged to consider
the genuineness of the summons and was not entitled to reject or diminish its significance
solely on the basis of its other, earlier credibility findings. It was
unreasonable for the RPD here to impugn the validity or genuineness of the
summons on the basis of its prior negative inferences about the Applicant’s
credibility and the availability of fraudulent documents in China.
V.
Conclusion
[28]
For the reasons stated above, this application
for judicial review is allowed and the matter is returned for re-determination
by a different panel member of the RPD in accordance with these reasons. Neither
party suggested a question for certification; so, no such question is
certified.
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