Yu v. Canada (Minister of Citizenship and Immigration), 2003 FC 1435 (CanLII) | Cases | Cases

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Date: 20031209

 

Docket: IMM-3423-02

 

Citation: 2003 FC 1435

 

Ottawa, Ontario, this 9th day of December, 2003

 

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE                     

 

 

BETWEEN:

 

                                                                  YU QING YU

 

                                                                                                                                            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 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of a decision of the Immigration and Refugee Board (Convention Refugee Determination Division) (the "Board"), dated May 29, 2002, wherein it was determined that the applicant was not a Convention refugee.

 

[2]                The applicant is seeking to have the Board's decision quashed and her claim remitted to the Board for redetermination.

 

Background

Introduction

 

[3]                The applicant is a citizen of China who alleges a well-founded fear of persecution by the Government of China due to her Catholic religion.

 

[4]                The applicant was baptized as a Catholic when she was a child. Her mother and siblings were also baptized as Catholics. In 1996, an underground church (also referred to as a house church) was established in the applicant's village in China and she participated in religious services regularly, which sometimes were conducted by a priest and a nun. While visiting the village, the nun would stay overnight at the applicant's house, where the applicant lived with her husband and two children.

 


[5]                On September 1, 2001, a service involving a priest, a nun and approximately 15 individuals was held in the applicant's home. The applicant's husband was away working elsewhere. According to the applicant, the Public Security Bureau (the "PSB") knocked at her door during the service. She and most of the others managed to escape through the back door of the house. The applicant left her children behind in the house, but they were not arrested by the PSB because of their age. She and the nun went into hiding together at a house belonging to a friend of the applicant. The nun and two other believers were later arrested by the PSB. The applicant's friend contacted a human smuggler, who facilitated the applicant's voyage to Canada for US$40,000. She arrived in Canada on October 7, 2001 and claimed refugee status.

 

Reasons of the Immigration and Refugee Board (Convention Refugee Determination Division)

 

[6]                A hearing was held before a single member of the Board on May 15, 2002. In a decision dated May 29, 2002, the Board determined that the applicant was not a Convention refugee. It found her not to be a credible witness because there were contradictions in her evidence and she had tailored her testimony to support the claim.

 

[7]                The Board noted inconsistencies between the Port of Entry notes, the applicant's Personal Information Form ("PIF") and her testimony concerning the arrest of the nun. When asked to explain why these key events in her initial PIF, the Board noted that the applicant's replies became "incoherent and evasive."

 

[8]                The Board gave an example of how the applicant had tailored her testimony. She initially testified that the events in question had taken place on Sunday, September 1, 2001. When it was put to her that September 1, 2001 was a Saturday, she changed her story and stated that there must have been some other reason for gathering that night.


 

[9]                Due to its concerns regarding the applicant's credibility, the Board concluded that the applicant was lying and invented her story about the house church and the raid in order to further a refugee claim.

 

[10]            The Board also stated that the applicant had not provided evidence that all Catholics in China fear persecution and noted that her siblings and her mother have not been the subject of persecution. The applicant produced a letter from a Catholic church in Toronto and wore a t-shirt with a Catholic logo at her hearing, but the Board concluded that the applicant had joined the church to further her refugee claim and not out of conviction and commitment to the church. The Board was not convinced she would join an illegal house church upon her return to China.

 

[11]            The Board concluded that the cumulative effect of the credibility concerns was enough to negate the claim.

 

Applicant's Submissions

 

[12]            The applicant submits that the Board erred at law in determining that she is not a Convention refugee.

 

[13]            The applicant argues that even if the alleged events of September 1, 2001 did not occur, if she were returned to China she would not be permitted to practice her religion freely.

 

[14]            Documentary evidence shows that although Catholicism is one of five state-sanctioned religions in China, authorities have forbidden allegiance to the Papacy and persecute Roman Catholics.

 

[15]            The applicant contends that case law establishes that a person need not have openly expressed his or her religion to obtain protection as a Convention refugee. If the evidence shows that they will suffer persecution if they practice openly, then this is a sufficient basis to sustain a claim to refugee status: Ahmed v. Secretary of State for the Home Department, [1999] E.W.J. No. 5882 (C.A.) (QL).

 

Respondent's Submissions

 

[16]            The respondent submits the Board did not commit a reviewable error in finding the applicant was not a Convention refugee.

 

[17]            The respondent argues that the standard of review in this particular case is whether the Board made a patently unreasonable credibility finding.

 

[18]            Until such time as a claimant is declared to be a Convention refugee, the burden rests upon the claimant to provide clear and convincing proof that his or her claim is well-founded.    The applicant has been unable to point to an error of law or breach of natural justice that justifies this Court's intervention.

 

[19]            With respect to credibility, the Board did not err as alleged by the applicant. Reasons were provided by the Board in this case for its credibility finding in accordance with Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.). Three specific examples were provided by the Board to support its finding. It is submitted that those conclusions were reasonable and relied upon evidence available at the hearing. As held in Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality, as it did in this case.

 

[20]            The respondent also submits that the documentary evidence demonstrates that while the Chinese government does not recognize the Pope, it does permit the practice of Catholicism in China.

 

Issue

 

[21]            Did the Board make a reviewable error?


Relevant Statutory Provisions

 

[22]            Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, states:

 

"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'tre persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance 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 l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit l'annexe de la présente loi.

 

Analysis and Decision

 

[23]            Did the Board make a reviewable error?


The applicant submits that the Board failed to take into consideration all factors and issues before it and that even if the Board's credibility findings are correct, the Board failed to consider whether the applicant was a Roman Catholic who feared persecution if she practised her religion on her return to China.

 

[24]            The applicant, in oral argument, questioned the Board's credibility findings and the respondent objected to this as this argument was not in the memorandum. I stated that I would rule on this issue in my decision. However, I need not rule on this point as I am of the opinion that even considering the arguments against the credibility findings, the Board's credibility findings must stand.

 

[25]            The Board found that the cumulative effect of the credibility findings were sufficient to find the applicant to be not credible. I agree that the cumulative effect of the credibility concerns were sufficient to support a non-credibility finding. I will not deal with each concern as all are set out in the Board's decision.

 

[26]            The Board had before it a letter from Our Lady of Mount Carmel Church stating that the applicant is a practising Catholic in Toronto.

 

[27]            The Board stated at page 2 of its decision:

However for the following reasons, I had to conclude that the claimant invented her story in order to further a refugee claim.

 

The Board, by making this finding, found that the applicant had not been a Catholic associated with an illegal house church in China, which was the basis of her claim of fearing persecution.

[28]       The Board further found that based on the reasons given for not finding her story credible, the applicant joined the Catholic Church in Toronto to bolster her refugee claim. This finding was reasonably open to the Board based on the evidence before it.

 

[29]            The applicant submitted that there was no finding of fact whether she was a practising Catholic and relied on the decision of Rothstein J. (as he then was) in Chong v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 999 (T.D.) (QL) to support this argument. The facts of the present case are distinguishable from the facts of Chong, supra. In the present case, the Board found that the applicant invented her story about being a Catholic in China and it also found that her membership in the Catholic Church in Canada was for the purpose of bolstering her refugee claim. The Board thus addressed the issue of whether the applicant was a Catholic in China. In Chong, supra, the Board had failed to address this issue.

 

[30]            The Board further found the applicant would not join an illegal house church on her return to China. Based on the fact that the Board had already decided that her story about being a member of a house church in China was invented and that she joined the Catholic Church in Canada to bolster her refugee claim, this finding is not unreasonable.

 

[31]            The application for judicial review is therefore dismissed.

 

[32]            Neither party wished to propose a serious question of general importance for my consideration.

 

ORDER

 

[33]            IT IS ORDERED that the application for judicial review is dismissed.

 

 

 

 

 

                                                                             "John A. O'Keefe"            

                                                                                                   J.F.C.                     

 

Ottawa, Ontario

December 9, 2003


                        FEDERAL COURT OF CANADA

                                    TRIAL DIVISION

 

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

DOCKET:                  IMM-3423-02

 

STYLE OF CAUSE: YU QING YU

 

- and -

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                     

PLACE OF HEARING:                                 Toronto, Ontario

 

DATE OF HEARING:                                  Wednesday, June 11, 2003

 

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

 

DATED:                     Tuesday, December 9, 2003

 

APPEARANCES:

 

Shelley Levine

FOR APPLICANT

 

Jeremiah Eastman

FOR RESPONDENT

 

SOLICITORS OF RECORD:

 

Levine Associates

Toronto, Ontario

FOR APPLICANT

 

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT