Docket: IMM-7866-13
Citation:
2015 FC 119
Ottawa, Ontario, January 30,
2015
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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YONGCHAO HAO
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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
[1]
The applicant seeks judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the Board), dated November 19, 2013, which found that he was
neither a Convention refugee nor a person in need of protection pursuant to
section 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA). For the reasons that follow the application is
dismissed.
[2]
The applicant, Yongchao Hao, is a 33 year old
citizen of China. On October 18, 2009, the applicant began attending an
underground church with his friend. The applicant decided to attend church as
he believed that by praying he could remedy the dizziness and fatigue he had
been experiencing.
[3]
The applicant began to spread the Gospel to
people around him; however, in September 2010, a church member was caught by
the Public Security Bureau (PSB) while distributing church flyers. In
response, the church suspended activities and the applicant went into hiding
until March 2011, when other members determined it was safe enough to return
home. The member who had been apprehended was sentenced to two years in labour
camp.
[4]
The church resumed activities but on September
25, 2011 was raided by the PSB while the applicant was out of town. The church
organizer and another member were caught and the applicant resumed hiding.
[5]
Two days later, on September 27, 2011, the
applicant learned from his wife that the PSB came to his home seeking to arrest
him. They returned on September 30 to ask why the applicant had not surrendered,
and threatened his wife not to conceal any information concerning his
whereabouts. According to the applicant, the PSB have been to his home four times
while he was in hiding and have produced a warrant for his arrest.
[6]
On November 26, 2011 the applicant left China with the assistance of a smuggler. Using his own passport, the applicant arrived in Canada, via the USA, on a fraudulent visa. The applicant states that the PSB have been to his house
on five occasions since he left China.
[7]
On October 29, 2013, the Board dismissed the
applicant’s refugee claim primarily on the ground that the applicant was not
credible.
[8]
The Board concluded that the applicant was not
credible based on a variety of factors, including his level of knowledge with
respect to his church activities in China. Further, the Board made a negative
inference based on the applicant’s testimony that he had tried to leave China for the USA or Canada using fraudulent visa applications during his first time in hiding,
even though there was no specific evidence that he was at risk of arrest from
the PSB at that point in time.
[9]
The Board also took issue with the applicant’s
lack of evidence in the form of a summons or arrest warrant from the PSB. The
applicant testified that his wife was told by the PSB that they could not give
the summons to anyone but the applicant; however, the Board relied on the
National Documentation Package for China to show that Chinese law provides for
alternative service to “an adult member of his family…” The
Board therefore found that the applicant’s testimony was not consistent with
the documentary evidence and an adverse credibility inference was drawn.
[10]
The Board explained that in leaving China the applicant travelled through the United States, but did not make a refugee claim. Further,
he did not keep any airline boarding passes or tickets which would show how
long he spent in the USA, his flight route, or his flight between Vancouver and Toronto. The applicant explained that he did not know they would be useful,
and he had surrendered his passport to the smuggler. The Board reasoned that
he has had representation by counsel since arriving in Canada, and should have known the importance of corroborating documents and could have made an
effort to obtain confirmation of his flights from the airlines. As he failed
to do this, the Board drew an adverse inference.
[11]
Further, the Board did not find it plausible
that the applicant was able to leave China without incident using his genuine
passport, as the Chinese government has a national computer network that
contains information on criminal fugitives. If the PSB was actually in pursuit
of the applicant, the Board explained that it was reasonable to expect that the
claimant’s name would have been entered into the database as a person wanted by
the PSB.
[12]
The Board also found that the applicant was not
a member of any church in China, and that as he was not sought by the PSB or
police in China because of church activities. The Board therefore found that
on a balance of probabilities, the claimant was not a genuine Christian.
[13]
The applicant argues that the Board’s decision
was unreasonable. Specifically, he states that the negative credibility
findings were unreasonable and not in accordance with the evidence; that the Board
made an unreasonable asse7ssment of the applicant’s identity as a Christian and
the associated sur place
claim related to his Christian faith in Canada; that the Board erred in basing
its decision on erroneous findings of fact that the applicant’s fear of
persecution was not supported by the evidence and that he would be able to
practice his faith freely in Hebei Province, China.
I.
Analysis
[14]
The decision under review is based on
credibility, evidentiary and factual findings and is therefore subject to the standard
of review of reasonableness.
[15]
The Board’s credibility findings were based on
numerous credibility concerns including vagueness, omissions and the overall
implausibility of the applicant’s evidence. These include the fact that the
applicant sought a visa to Canada and the United States at a point in time when
he was not at risk, the absence of any summons or arrest warrant in
circumstances where it was reasonable to expect one would exist, the fact that
the applicant was able to leave China given its exit controls and imprecision
around the operations of the house church of which he testified he was a
member.
[16]
In my view, the Board reasonably found that the applicant
was not credible. This finding was based on his testimony, lack of
corroborating documents, and his ability to leave China. Importantly, the
Board found that the applicant was not a practicing Christian in China. The questions raised by the Board were all reasonable for the Board to consider and
upon which to make determinations with respect to credibility could be founded.
While the applicant makes a compelling argument that there is a distinction
between credibility findings based on inconsistencies and credibility findings
based on the implausibility of the applicant’s narrative, no error has been
identified which renders any particular material finding unreasonable.
[17]
I turn to the alleged errors with respect to the
applicant’s Christian identity. The Board did not determine that the applicant
was not a Christian in Canada solely on the basis that he did not practice
Christianity in China; rather, the Board determined that the applicant only
joined a Christian church in Canada to support a fraudulent refugee claim.
Again, its findings in this regard are supported in the evidence and were open
to it. The Board noted, but considered unpersuasive, a letter from the pastor
of a church in Canada and a baptism certificate. The circumstances here are
analogous to those addressed by Justice Near (now of the Court of Appeal) in Jing
v Canada (Citizenship and Immigration), 2012 FC 609, para 20:
The Board’s negative credibility assessment as
to the Applicant’s participation in an underground church and being wanted by
the PSB was based on several concerns associated with the evidence as presented.
The findings were made in “clear and unmistakeable terms” (Hilo v Canada
(Minister of Employment and Immigration), [1991] FCJ no 228, 15 Imm LR (2d)
199) and fall within the range of acceptable outcomes. The Applicant’s
dissatisfaction with the Board’s conclusions and weight assigned to various
pieces of evidence is not a basis for the Court’s intervention.
[18]
In my view, the reasoning of the Board in this
case falls squarely with that type identified by Justice Mary Gleason in Li
v Canada (Citizenship and Immigration), 2012 FC 998 where the Board noted the
applicants questionable motive for conversion but then went on to assess the
genuineness of the applicants conversion and found it to be lacking.
[19]
Finally, although the Board determined that it
did not believe that the applicant would have any interest in practicing as a
Christian if he was returned to China, it nevertheless reviewed the documentary
evidence and concluded that if he did want to practice Christianity in Hebei province he would be able to without fear of persecution. As the Federal Court of
Appeal noted in Canada (Citizenship and Immigration) v Sellan,
2008 FCA 381, para 3:
[W]here the Board makes a general finding that
the claimant lacks credibility, that determination is sufficient to dispose of
the claim unless there is independent and credible documentary evidence in the
record capable of supporting a positive disposition of the claim. The claimant
bears the onus of demonstrating there was such evidence.
[20]
The Board reviewed the evidence in regard of the
ability to practice Christianity in Hebei province, and while there was
conflicting evidence, the conclusion on this point was reasonably open to the
Board.
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