Date: 20031125
Docket: IMM-2902-02
Citation: 2003 FC 1383
Ottawa, Ontario, this 25th day of November, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
JING SHUN XU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board (Convention Refugee Determination Division) (the "Board"), dated June 4, 2002 wherein it was determined that the applicant was not a Convention refugee.
[2] The applicant requests that the decision of the Board be declared invalid, quashed, or set aside, and referred back for determination by a differently constituted panel.
Background
Introduction
[3] The applicant is a citizen of the People's Republic of China. The applicant claims a well-founded fear of persecution on the grounds of her religion, namely, Christianity.
[4] According to the applicant, the applicant's friend introduced her to Christianity in 1997, and the applicant attended an underground church gathering for the first time. She was baptized in April 1998, spoke to others about Jesus and changed as a person.
[5] In December 1998, the applicant claims the Public Security Bureau ("PSB") discovered her church gathering and she was arrested along with other members. She was detained, beaten and interrogated, forced to write and sign a guarantee and pay a fine as well. She was released but the pastor was sentenced to prison.
[6] That applicant states that she did not give up her religion. Several months later, she started to attend another underground church, which was introduced to her by one of the members of the first church that she attended.
[7] On May 6, 2000, this underground church was discovered by the PSB. While the service was being held that day, the lookout informed the members that the PSB was approaching. The applicant was able to escape and as a precaution she did not go to her home, but instead went to a relative's home. The next day, the PSB went to her home to look for her, and demanded her surrender. One week later, the PSB appeared at her home again, and this time showed a warrant for her arrest, and laid charges against her. The applicant decided to leave the country and claims the PSB is still looking for her.
Reasons of the Immigration and Refugee Board (Convention Refugee Determination Division)
[8] A hearing was held before two Board members on March 7, 2002. By a decision dated June 4, 2002, the Board determined the applicant not to be a Convention refugee.
[9] The Board found that, on a balance of probabilities, the applicant's evidence was not credible or trustworthy. The Board stated that it had considered the applicant's testimony in its entirety.
[10] The Board found that the applicant's demeanour lacked the sophistication that one would expect from a person who, as the applicant claimed, was trained as a medical doctor. In addition, the applicant was hesitant in answering questions. The applicant's counsel attributed her demeanor and hesitancy to the fact that the applicant was eight months pregnant, however, the Board did not accept this explanation. The Board noted, however, that while "the claimant's demeanour may be a relevant factor in assessing credibility, . . . it is not an infallible guide as to whether the truth is being told."
[11] The Board found many inconsistencies in the applicant's personal documents. The identifier number on her National Identity Card ("NIC") corresponded to that written in her Personal Information Form ("PIF"), however, the number in her Hukou (household registration document) was different. Even though she claimed to be a doctor, there was no occupation and employment information filled out in her Hukou entry. Her mother's date of birth was stated to be different in the applicant's PIF from her Hukou entry. As well, the family Hukou contained entries for a daughter-in-law and grandson of the applicant's parents, but also stated that the applicant's only brother had never been married. Finally, the Board noted that the applicant did not present documents with respect to her employer. Although the applicant attempted to explain some of these discrepancies, the Board rejected all of her explanations as implausible.
[12] The Board furthermore found that the applicant had not proved, on a balance of probabilities, that she was a Christian. The Board came to this conclusion because, when asked what "season" it was in the calendar year, the applicant stated that it was Easter. Moreover, she did not know anything about Lent or Palm Sunday. The applicant later submitted a document from her church in Canada, wherein it was explained that the church does not observe Palm Sunday or use the phrase "seasons of the Church". However, the Board stated, "since the claimant alleges that she has been practicing Christian [sic] in China since 1998 and had spread the gospel to others, surely she would be aware of Lent and Palm Sunday." The Board ruled that the claimant's association with a church in Canada was an attempt to bolster her claim, and found that she was not a believer of Christianity in China.
[13] The Board found an inconsistency between the applicant's PIF and her oral testimony, as in her PIF she stated that during her detention she had been beaten, but made no mention of the incident during her oral testimony, even though she was asked four times what had occurred. When the Board read out the statement from her PIF narrative that she had been beaten, she explained that she did not mention it because she was nervous. The Board did not accept this explanation and found there was "no ring of truth to her story."
[14] As well, the Board asked the applicant if she had received a receipt for the fine she allegedly paid after being arrested in December 1998. It did not believe her when she answered that she had received a receipt, but that it had been destroyed in the wash.
[15] The Board, relying on Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.), stated that it was open to it to reject uncontradicted testimony if "that evidence does not accord with the probabilities affecting the case as a whole."
[16] The Board furthermore noted that the applicant had not claimed refugee status at the airport when she first arrived in Canada. The Board found it implausible that someone like the applicant, who alleged to be a medical doctor and was therefore well-educated, would not know to make a claim at the airport. The Board weighed this evidence by stating, "[d]elay in making a claim is not a decisive factor, but it is an important factor in assessing credibility."
[17] The Board concluded that the applicant did not have good grounds for fearing persecution by reason of her religion, or any other ground set out in the Convention refugee definition.
Applicant's Submissions
[18] The applicant submits that the discrepancies the Board found in the applicant's personal documents are irrelevant, as they do not go to the heart of the claim, that is, the applicant's identity as a Christian.
[19] The applicant also submits that there are reasonable explanations for some of the discrepancies in the identity documents. The English translation of the applicant's mother's birth date in the Hukou is a mistake in translation. Also, the information in the Hukou that the applicant's brother is single is a simple error in the Hukou. The applicant submits it was perverse, capricious and unreasonable for the Board to reject outright the possibility that the Hukou entries contained errors.
[20] The applicant submits that the Board erred when it found that the applicant was not a Christian, as she had claimed. The Board erred, according to the applicant, because it did not accord any weight to the letter presented by the applicant to the Board from her church in Toronto, which explained that the church did not observe Palm Sunday or use words such as "seasons of the Church".
[21] The applicant states that the Board also erred when it found that the applicant should have known about Palm Sunday and Lent from her Christian experiences in China. The applicant submits that there was no evidence that the applicant's church in China observed these practices, and, given the underground nature of the practice of Christianity in China, the applicant may not have had the opportunity to learn about these practices. Finally, as a Protestant, the applicant may also not have known very much about Lent.
[22] The applicant submits that the Board erred when it impugned her credibility for failing to discuss being beaten when asked about her detention in December 1998. The applicant submits that, given that she was eight months pregnant, her explanation that she was nervous, uncomfortable and prone to lapses in concentration was an entirely reasonable explanation of the fact that she did not, in her oral testimony, state that she was beaten while detained.
[23] In addition, the Board failed to provide cogent, clear and understandable reasons for rejecting the applicant's evidence that she had lost her receipt for the fine in the wash.
[24] The applicant also submits that delay cannot, in itself, form the basis of a rejection of the applicant's claim to Convention refugee status.
[25] The applicant submits that the Board erred because it only assessed whether she was a believer in Christianity while in China and therefore failed to address her forward looking fear. As such, the Board failed to follow the guidelines set down by the Federal Court of Appeal in Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.). In light of the documentary evidence which clearly shows that Christians in China are persecuted, furthermore, it was incumbent upon the Board to make a clear finding as to the applicant's identity as a Christian believer at the time of the hearing. The applicant therefore submits that, on this issue, the Board erred in two ways: firstly, it erred by not making a clear finding as to the applicant's claims to be a Christian at the time of the hearing, and secondly, it erred by not addressing the applicant's forward looking fear.
Respondent's Submissions
[26] The respondent submits the Board did not commit a reviewable error in finding the applicant not to be a Convention refugee.
[27] The respondent submits that the Board, as the primary finder of fact, is entitled to reject even uncontradicted evidence if it is not "consistent with the probabilities affecting the case as a whole". Moreover, it is open to the Board to make adverse credibility findings based upon the implausibility of the applicant's story alone and to assess plausibility by considering the applicant's story against the Board's own understanding of human behaviour.
[28] The respondent submits that the Court must be of the opinion that the Board's conclusions were so unreasonable that judicial intervention is warranted in order to overturn a decision made by the Board.
[29] The respondent submits that weight of evidence and credibility, the only issues raised by the applicant, are matters that fall properly within the province of the Board. Thus, this Court should be reluctant to interfere with the Board's findings regarding credibility, given that the Board had the witness before it and was able to assess the witness' oral testimony.
[30] The respondent submits that in cases such as Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.), the Federal Court of Appeal has held that negative decisions with respect to a person's credibility are properly made as long as the Board provides reasons for doing so in clear and unmistakable terms.
[31] The respondent submits that, in the case at bar, the Board determined that the applicant's testimony was not credible and offered detailed reasons for its decision.
[32] The respondent submits that it was open to the Board to come to the conclusion that the applicant was not credible and that she had joined a church in Canada to bolster her claim. The Board found that the applicant was not a Christian believer based on her minimal knowledge of Christianity. During the hearing she explained that she did not know about these practices because, in Canada, she attends a church that functions in the Korean language. The Board did not accept this explanation, however, as the applicant admitted that she was fluent in Korean. Furthermore, the Board did consider the letter presented by the applicant from her church in Canada. The Board did not accept the letter as a reasonable explanation for her total lack of knowledge of Lent and Palm Sunday given that the applicant had allegedly been a practicing Christian since 1997 and had spread the gospel to others.
[33] The respondent submits implicitly that it was open to the Board to determine that the applicant was not credible because she did not state, during her oral testimony, that she had been beaten when she was detained.
[34] The respondent submits that conduct such as delay, that is inconsistent with a well-founded fear of persecution can have a negative impact on credibility. It was therefore open to the Board to draw an adverse inference from the fact that the applicant failed to claim refugee status at the time of her arrival in Canada. Moreover, the respondent seems to submit that the Board did not place undue emphasis on this factor, as it stated that delay was not a decisive factor in its decision.
[35] The respondent submits that the Board did not have to assess the applicant's forward looking fear. The applicant's belief in Christianity was central to her claim. Thus, once the Board had concluded that the applicant's belief in the Christian faith had not been established, it was not necessary for the Board to analyze the evidence any further.
Issues
[36] The issues are as follows:
1. Are the Board's credibility findings erroneous because the findings are based on irrelevant issues, ignored evidence, and were not reasonable in regard to the following areas of concern of the panel?
(a) The applicant's personal documents.
(b) The applicant's identity as a Christian.
(c) The applicant's evidence concerning her detention in December 1998.
2. Did the panel err in law by failing to assess the applicant's forward looking fear?
Relevant Statutory Provision
[37] Subsection 2(1) of the Immigration Act, supra reads as follows:
|
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
"réfugié au sens de la Convention" Toute personne:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[38] I propose first to deal with the applicant's identity as a Christian.
(b) The applicant's identity as a Christian.
The applicant professed to have become a Christian in 1997 while in China and to have attended the Toronto Antioch Methodist Church while in Canada. Before the Board, the applicant was questioned extensively by the Refugee Claim Officer (and to some degree by her own counsel) about her knowledge of the Bible, baptism, Lent, Palm Sunday and other elements of the Christian faith. While she was able to answer some questions, she did not know of Lent or Palm Sunday.
[39] The Board concluded the applicant had minimal knowledge of Christianity, was not a believer in China and was associated with a church in Canada in order to bolster her refugee claim.
[40] In its reasons, the Board noted at page 5 of its decision "[s]he did not know anything about Lent, which is celebrated universally in all Churches." The Board grounded its finding of lack of credibility in the applicant's lack of knowledge of specific Christian practices.
[41] Applicant's counsel stated in the hearing that Lent and Palm Sunday were primarily Catholic practices and not necessarily part of the Protestant faith. The applicant submitted a letter from her church stating that seasons of the church and Palm Sunday were not celebrated, and the applicant stated that she did not learn of these practices while involved in underground churches in China.
[42] In my view, on the facts of this case, it was not open to the Board to conclude that Lent is celebrated universally in all churches. The applicant testified that her church did not celebrate Lent. The lack of knowledge about Lent and Palm Sunday were the central basis for finding that the applicant was not credible in her claim to be a Christian.
[43] The Board's findings regarding the applicant's identity as a Christian weighed heavy in its ultimate assessment of credibility. Furthermore, the Board's non-credibility finding was central to the outcome of this case. I find that the Board has made a reviewable error.
[44] The application for judicial review is therefore allowed. The decision of the Board is set aside and the matter is returned to a differently constituted panel for redetermination.
[45] Due to my view of this issue, I need not deal with the remaining issues raised by the applicant.
[46] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
[47] IT IS ORDERED that the application for judicial review is allowed. The decision of the Board is set aside and the matter is returned to a differently constituted panel for redetermination.
"John A. O'Keefe" J.F.C.
Ottawa, Ontario
November 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2902-02
STYLE OF CAUSE: JING SHUN XU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, May 29, 2003
REASONS FOR ORDER AND ORDER OF O'Keefe J.
DATED: Tuesday, November 25, 2003
APPEARANCES:
Mr. Hart A. Kaminker
FOR APPLICANT
Ms. Rhonda Marquis
FOR RESPONDENT
SOLICITORS OF RECORD:
Kranc & Associates
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT