Docket: IMM-5208-13
Citation:
2015 FC 577
Ottawa, Ontario, May 4, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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BAI HONG CAI
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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.
Introduction
[1]
Bai Hong Cai [the Applicant] has
brought an application for judicial review pursuant to s 72 of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The
Applicant challenges a decision of the Refugee Protection Division of the Immigration
and Refugee Board [the Board] which determined that the Applicant was neither a Convention
refugee nor a person in need of protection pursuant to ss 96 and 97(1) of the
IRPA.
[2]
For the reasons that follow, the application for
judicial review is allowed and the matter is remitted to the Board for re-determination
by a differently-constituted panel.
II.
Background
[3]
The Applicant is a citizen of China. He formerly resided in Guangdong Province. His claim for refugee protection was
based on the following contentions:
•
The Applicant’s girlfriend, whom he expected to
marry on August 8, 2010, was killed in a car accident on June 13, 2010. The
Applicant was to accompany his girlfriend shopping that day, but chose to stay
behind and play cards with his friends. He felt guilty about the death of his
girlfriend and subsequently became fragile and lost confidence in life.
•
In July, 2010 a friend of the Applicant persuaded
him to visit a Roman Catholic “house church”. The
Applicant attended his first house church service on July 18, 2010, and
regularly thereafter. The Applicant’s involvement in the church included
distributing printed leaflets that protested against Chinese family planning
policies and government-sanctioned churches.
•
On April 10, 2011, the Public Security Bureau
(PSB) raided the house church that the Applicant had been attending. The
Applicant escaped to his uncle’s home. The Applicant learned two days later
that the PSB had been to his parents’ house to arrest him. The PSB told the
Applicant’s parents that they had arrested some of his fellow believers. The following
day the PSB left an arrest summons for the Applicant at his parents’ home.
•
Fearing the PSB, the Applicant’s parents decided
that he had to leave China. They hired an agent who made all the arrangements,
including the acquisition of a fraudulent Singaporean passport for the
Applicant.
[4]
The Applicant arrived in Canada on June 18, 2011. He made a claim for refugee protection three days later, on June 21, 2011.
[5]
The Board rejected the Applicant’s claim on July
12, 2013. The Applicant filed an application for leave and judicial review in
this Court on August 6, 2013, and leave was granted on October 15, 2014.
III.
The Board’s Decision
[6]
The Board was not satisfied that the Applicant
was a practising Christian when he resided in China. Documentary evidence
submitted by the Applicant indicated that he had joined the Rite of Christian
Initiation for Adults program and received the Roman Catholic sacraments of
initiation (baptism, holy communion and confirmation) only after he arrived in
Canada. The Board gave little weight to these documents as corroborative
evidence that the claimant was a practising Christian in Guangdong Province, and drew a negative inference with respect to the Applicant’s religious convictions.
[7]
The Board also doubted the authenticity of the
arrest summons submitted by the Applicant. The Board provided three reasons:
(1) the availability of fraudulent documents throughout China; (2) the Applicant’s travel from China to Canada using a fraudulent Singaporean passport, which
demonstrated his willingness and capacity to acquire fraudulent documents; and (3)
the Applicant’s failure to provide sufficient credible or trustworthy evidence to
explain how he had received the PSB’s summons in Canada.
[8]
The Board therefore rejected the Applicant’s
assertions that he was a practising Christian in China, that the PSB had raided
the house church he attended, and that he is now sought by the PSB as a member
of an illegal house church. In addition, the Board did not accept that the PSB
had arrested some of the Applicant’s fellow believers.
[9]
The Board ultimately concluded that the
Applicant had joined a Christian church in Canada only for the purpose of
supporting a fraudulent claim for refugee protection. The Board nevertheless
considered the possibility that the Applicant may have a valid sur place
claim, i.e., whether there was a serious possibility that the Applicant
would now be persecuted if he returned to Guangdong Province, China and practised
Christianity in an unregistered church.
[10]
The Board reviewed several reports that
described the situation faced by Christians in Guangdong Province, and concluded
that the Province has one of the most liberal policies on religious freedom in China. The Board found that the situation in Guangdong differs from that in many other
provinces where there have been arrests or incidents of persecution of ordinary
Christians. It reasoned that if there had been arrests or incidents of
persecution of Christians who worship in house churches with a similar profile
to that of the Applicant’s church in Guangdong Province, then this would have
been reflected in the documentation.
[11]
The Board therefore concluded that the Applicant
was not credible witness, that the PSB was not pursuing him due to his
involvement in underground Christian activities, and that he would be free to
practise Christianity in the congregation of his choice should he return to Guangdong
Province.
IV.
Issues
[12]
The following issues are raised in this
application for judicial review:
A.
Whether the Board’s assessment of the
Applicant’s credibility was reasonable; and
B.
Whether the Board’s determination of the
Applicant’s sur place claim was reasonable.
V.
Analysis
[13]
The Board’s findings regarding the Applicant’s
credibility and his sur place claim are both subject to review by this
Court against a standard of reasonableness (Li v Canada (Minister of Citizenship
and Immigration), 2011 FC 941 at paras 14-15; Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
A.
Whether the Board’s assessment of the Applicant’s
credibility was reasonable.
[14]
A refugee claimant’s sworn testimony is presumed
to be true unless there are reasons to doubt its veracity (Maldonado v
Canada (Minister of Employment and Immigration) [1980], 2 FC 302 (CA)).
This presumption is rebuttable (Adu v Canada (Minister of Employment and
Immigration), [1995] FCJ No 114 (FCA)).
[15]
In assessing a refugee claimant’s credibility, the
Board is entitled to take into account the discrepancies, contradictions and
omissions in the evidence and to view the evidence from the perspective of
rationality and common sense (Giron v Canada (Minister of Employment and
Immigration) (1992), 143 NR 238 (FCA); Aguebor v Canada (Minister
of Employment and Immigration) (1993), 160 NR 315 (FCA); Sheikh v Canada
(Minister of Employment and Immigration), [1990] 3 FC 238 (FCA)).
[16]
The Applicant takes issue with the Board’s
rejection of the authenticity of the arrest summons, and relies on Rasheed v
Canada (Minister of Citizenship and Immigration), 2004 FC 587 at para 19
[Rasheed]. In Rasheed, this Court observed that:
[…] the basic rule
in Canadian law is that foreign documents (whether they establish the identity
or not of a claimant) purporting to be issued by a competent foreign public
officer should be accepted as evidence of their content unless the Board has
some valid reason to doubt their authenticity.
[17]
I agree with the Applicant that the general
availability of fraudulent documents in China is not a sufficient reason to
doubt the authenticity of the arrest summons. The implication of the Board’s
reasoning is that all documents issued by public officers in China are suspect. However, as this Court held in Lin v Canada (Minister of Citizenship
and Immigration), 2012 FC 157 at paras 53-54, evidence of widespread
forgery in a country is not, in itself, sufficient to reject foreign documents
as forgeries.
[18]
I also agree with the Applicant that the Board’s
adverse finding of credibility based on the Applicant’s use of a fraudulent
Singaporean passport is unreasonable. As this Court held in Rasheed at
para 18:
[18] Where a
claimant travels on false documents, destroys travel documents or lies about
them upon arrival following an agent’s instructions, it has been held to be
peripheral and of very limited value as a determination of general credibility.
First, it is not uncommon for those who are fleeing from persecution not to
have regular travel documents and, as a result of their fears and
vulnerability, simply to act in accordance with the instructions of the agent
who organized their escape. Second, whether a person has told the truth about
his or her travel documents has little direct bearing on whether the person is
indeed a refugee […].
[19]
Finally, the negative inference drawn by the
Board from the Applicant’s inability to demonstrate how he received the arrest
summons in Canada was also unreasonable. The Board rejected the Applicant’s testimony
that he received the summons by mail and then threw away the envelope in which
it was sent. The Board did not accept the Applicant’s explanation for why he neglected
to retain the envelope as evidence of the origin of the arrest summons.
However, this concern was never raised by the Board during the hearing. On the
contrary, the transcript reveals that the Board explicitly informed the Applicant
and his counsel that the absence of the envelope was not a concern. As a
result, the matter was not explored further in the Applicant’s testimony or in
counsel’s submissions.
[20]
In sum, the Board’s assessment of the
Applicant’s credibility was unreasonable and did not fall within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
B.
Whether the Board’s determination of the
Applicant’s sur place claim was reasonable.
[21]
A sur place refugee is defined in the
United Nations Handbook on Procedures and Criteria for Determining Refugee
Status as a person “who was not a refugee when he left
his country, but who becomes a refugee at a later date.” The UNCHR
Handbook describes two situations in which a sur place claim may arise:
(1) a change in circumstances in the country of origin during the person’s
absence, or (2) as a result of a person’s own actions such as associating with
refugees already recognized or expressing political views in the new country of
residence.
[22]
The Board concluded, on a balance of
probabilities, that the Applicant would be able to worship in the Christian
congregation of his choice if he were to return to Guangdong Province and that
there was no serious possibility that he would be persecuted for doing so.
[23]
In conducting a sur place assessment, it
is an error for the Board to engage in selective analysis of the documentary
evidence and to ignore contradictory evidence without providing a reasonable
explanation (Manoharan v Canada (Minister of Citizenship and Immigration,
[1996] FCJ No 356 (TD) at para 6). The Applicant submits that the Board failed
to consider the situation faced by Roman Catholics who worship in illegal house
churches in China, and reached its conclusion without regard to the documentary
evidence of country conditions that was submitted on behalf of the Applicant.
[24]
The Board acknowledged that the Applicant is a
Roman Catholic. However, the Board’s assessment of country conditions did not
meaningfully distinguish between the experiences of different Christian
denominations in China. Furthermore, the Board’s decision made no reference to
the evidence of country conditions submitted by the Applicant, which indicated
that Roman Catholics may be singled out for persecution by Chinese authorities.
[25]
The Respondent emphasized that Guangdong
Province, unlike other regions in China, is unusually tolerant of diverse religious
practices, and the very few recorded incidents of persecution have involved
prominent religious figures rather than lay practitioners such as the Applicant.
In reply, the Applicant referred to this Court’s decision in Aiqing Zhang v
Canada (Citizenship and Immigration), 2014 FC 713 [Zhang], which
bears a remarkable similarity to this case – including the facts: a friend
killed in a car crash, feelings of guilt and despondency, seeking solace in a
house church which was subsequently raided by the PSB, receiving a summons from
the PSB; and then fleeing Guangdong Province and undergoing the rites of
initiation at the Chinese Martyrs Catholic Church in Toronto. Both the
Applicant in this case and the applicant in Zhang submitted a letter
from the Reverend Jianwei Deng to substantiate their claims of recent religious
conversion.
[26]
Despite the troubling similarities between the
allegations made by the Applicant in this case and the applicant in Zhang,
I must allow the application for judicial review on substantially the same
grounds. In Zhang, Justice de Montigny said the following about the
risks faced by Roman Catholics who worship in illegal house churches in
Guangdong Province:
[36] As for the Board’s assessment of
the documentary evidence, I am equally of the view that it is somewhat
defective. After reviewing a few incidents involving house churches, the Board
found that there is no evidence of suppression of religious practices in
Guangdong province, and therefore, that the Applicant’s alleged underground
church would not be of any interest to the PSB. In my view, this assessment of
the documentary evidence is at best questionable. The conflict between the Vatican and the Chinese government is well documented, as well as the detention of the
Catholic clergy and the repression of the underground house churches. There
are, no doubt, huge discrepancies in the treatment of Catholics depending on
the tolerance shown by local authorities, and the information on the exact
situation in various provinces is obviously scarce. However, the reported
incidents that were before the Board member should at least have given him
reason to pause.
[37]
[…] One must also take into consideration that
the information collected by various non-governmental and governmental
organizations about persecution may only be the tip of the iceberg. In that
context, the documentary evidence deserved closer scrutiny and cannot, without
more, strengthen the Board’s finding with respect to the Applicant’s
credibility or support its finding that there is only a mere possibility that
an incident that led to the arrest of ordinary members of a church would occur
in Guangdong province.
[27]
For the foregoing reasons, the application for
judicial review is allowed and the matter is remitted to the Board for
re-determination by a differently-constituted panel.
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