Date:
20131118
Docket: IMM-10228-12
Citation: 2013 FC 1167
Ottawa, Ontario, November 18, 2013
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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TONG LE SU
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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]
A Member of the Refugee Protection Division of
the Immigration and Refugee Board of Canada [the Member], denied Mr. Su’s
application for refugee protection because he found him not to be credible with
respect to his pursuit by the Public Security Bureau of China [PSB] and further
questioned the genuineness of his Pentecostal Christian religious practice in Canada.
[2]
The Member’s decision denying Mr. Su’s
application for refugee protection based on its finding that he was not
credible, cannot stand because too many of the negative inferences the Member
drew regarding credibility were based on his speculation and on inferences he
drew that are not supported in the record.
[3]
The most significant of these relates to the
Member’s finding that the Notice for Arrest issued following the arrest of Mr.
Su’s parents is likely fraudulent and his alternative determination that if the
parents had been arrested and this was documented, the PSB would also have
issued a summons for Mr. Su, which it had not.
[4]
The Member concludes that the Notice for Arrest
is likely fraudulent primarily for three reasons. First, the document was
disclosed to the Board by Mr. Su just four days prior to the hearing, when
other documents had been disclosed earlier.
[5]
If there were other indicia that the
document was fraudulent, then this apparently opportunistic timing might be a
relevant consideration. However, the Member makes no independent assessment as
to whether the document otherwise appears to be valid. It is of note that the
Notice for Arrest was submitted by Mr. Su together with his Resident Identity
Card and hukou; the validity of these was not questioned by the Member. In
fact, the Member relied on these two documents to establish Mr. Su’s identity and
nationality. If their late delivery did not affect their genuineness, why
should the late delivery of the Notice of Arrest bring its genuineness into
question? It is also noted that the Member, during a break in the hearing, had
the Resident Identity Card examined, and he says that there are “no apparent
problems with it.” Why did he not also have the Notice of Arrest similarly
examined? In any event, there is nothing in the record that suggests that
there were any “problems” with the Notice for Arrest document, and I assume
that it was otherwise an apparently genuine document.
[6]
The second reason for finding that the Notice
for Arrest document was likely fraudulent was that his parents were allegedly
arrested two months after Mr. Su sent them some religious pamphlets by email
when they had attended their house church for 20 years prior without incident.
The Member writes that this arrest is an “extraordinary coincidence” and thus
makes the raid of the church and arrest of Mr. Su’s parents suspect. I fail to
see anything extraordinary about the timing of the raid.
[7]
In questioning whether Mr. Su had sent his
parents the religious pamphlets by email, the Member himself noted that the
Chinese authorities monitor the internet and email in that country. He writes
that “it is reasonable to assume that he [the Applicant] was aware of official
monitoring of the internet by Chinese authorities, and that he would have
taken precautions and used a neutral site and in addition he would have been
concerned about sending material to his parents” (emphasis added). Accordingly,
it is well within the realm of possibility that the authorities intercepted the
email and thus became aware of the receipt of these religious materials by Mr.
Su’s parents and their attendance at a non-state operated Christian church.
[8]
I note that the Member never actually states
that he does not believe that the email was sent - rather, one must imply that
he reached that conclusion. The Member is very selective in his recitation of
the testimony of Mr. Su as to why he would do such a thing. In his reasons, the
Member says that Mr. Su responded that “in the Bible it is said that God will
help him” and “at the time he did not think of this.” Both explanations are
rejected by the Member. However, Mr. Su offered a more detailed explanation.
He said that the material attached to the email was, in his view, not of a
political nature that would offend the Chinese authorities; rather it was about
the concept of the Church in Canada. He further explained that because his
parents had believed in God for such a long time and without incident, he did
not think that the material he sent should cause a big problem. Lastly, as he
testified, his parents had asked him to send the materials. This was not a
situation where he did so entirely on his own. None of these explanations are
discussed by the Member and may have resulted in a different finding, had they
been.
[9]
Lastly, the Member notes that fraudulent
documents are easily obtained in China. As has previously been held by this
Court, this does not mean that every document from China is fraudulent and the
Member is obliged to examine and weigh the actual document before him and not
reject it out of hand: Lin v Canada (Minister of Citizenship and Immigration),
2012 FC 157 at paras 54-55.
[10]
The Member speculates that had the Notice for
Arrest been genuine, “it is reasonable to assume PSB interest in [Mr. Su] would
also be documented.” There is quite simply no foundation for this
“assumption.” Mr. Su’s parents were arrested and a document of that fact was
issued. Mr. Su has not been arrested. This was not a warrant for arrest, but
rather, a document describing when Mr. Su’s parents were taken into custody and
where they were being held. His parents were living in China. Mr. Su is in Canada. Absent any reference to a statement in the national
documentation package supporting the Member’s assumption, it is mere
speculation on his part, and unwarranted and unreasonable.
[11]
The unreasonable basis for the rejection of the
Notice for Arrest and the unwarranted assumption that a similar document would
have been issued for Mr. Su is the primary basis on which the credibility
finding was made. Having no solid foundation on which to stand, the
credibility finding must accordingly be found to be unreasonable.
[12]
The Member “having found the claimant’s
testimony regarding pursuit by the PSB is not credible” further finds that he
joined a church in Toronto to avoid deportation and his Christian beliefs are
therefore not genuine. That finding is also unreasonable because the basis for
it, the pursuit by the PSB, has been found to be unreasonable.
[13]
No question for certification was proposed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application is allowed, the decision dismissing the
Applicant’s refugee claim is set aside and his claim is to be determined by a
different Member, and no question is certified.
"Russel
W. Zinn"
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