Date: 20020528
Docket: IMM-718-01
Neutral citation: 2002 FCT 606
BETWEEN:
WENLAN HUANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"), dated November 1, 2000, wherein the applicant was determined not to be a Convention refugee.
[2] The three issues are 1) whether the Board erred in finding the applicant was not a Christian; 2) whether the Board erred in finding that the applicant lacked credibility; and 3) whether the Board erred in its assessment of the documentary evidence.
FACTS:
[3] The applicant is a citizen of China. She alleges that if she were to return to China she would be persecuted by the Chinese government due to her religious beliefs as a Christian.
[4] The Refugee Division found that the claimant lacked credibility and did not believe that she was a Christian. The Board stated:
I acknowledge that she has a fair grasp of certain Christian information. I acknowledge that when she was answering questions in redirect from her counsel, she knew how to recite the names of the disciples and things of that nature.
I am not shown, on a balance of probabilities, that she is a Christian. Her answers to my questions on the topic of Christianity were vague and she improved only when she was asked questions in redirect. I suspected those answers were rehearsed.
[5] The applicant claimed that the PSB became interested in her being a Christian because someone saw her come out of a church in Toronto and reported this information back to China. The Board found:
I find it implausible to conclude that with the information available to the effect that there are literally millions of active Christians in China, this much concern would arise from a tourist casually walking into a church in Canada.
When this concern was brought to the applicant's attention, she indicated that she belonged to an underground church in China, and that the church was apparently raided in May of 1999 and the people were warned that if they did not stop practising Christianity they might be in some trouble. The Board rejected the evidence of this May incident since it was not in the applicant's PIF. The Board also found that the applicant was inconsistent with respect to certain dates.
[6] The Board also discussed some of the documentary evidence which notes that Christianity is growing very rapidly and that even the illegal churches function without serious trouble in many places, and found that this evidence did not support the applicant's claim.
ANALYSIS:
[7] The applicant argues that the Board erred in finding that the applicant was not a Christian. The Board acknowledged that the applicant had a fair grasp of certain Christian information, but found that the applicant's answers to the panel's questions on the topic of Christianity were vague, and improved only when she was asked questions in redirect, thus the Board "suspected that the answers were rehearsed." The applicant argues that the Board's reasons are not well-founded, as they provide no support for their statement that the applicant's answers were vague. In my view the Board erred in failing to provide any support for its statement that the applicant's answers in response to the member's questions were vague. It is not now open to the Respondent to point to portions of the transcript and speculate that this is what was relied upon to make this finding. I note as well that the questions posed by the member were much more general in nature than those posed by counsel. Further, the Board made no mention of a letter which was submitted by the applicant from her church, which stated that the applicant attended church services there intermittently.
[8] With respect to credibility, the applicant argues that the Board's reasons supporting its negative credibility findings are ambiguous and contradictory. The Board states at one point in its reasons that "the claimant did not embellish her story, and I give her credit for that", but immediately preceding this statement, the Board rejected evidence that her house church had been raided in May 1999. However, when looked at in context it is clear that the Board is merely crediting the applicant with not embellishing that portion of her story relating to the further problems with the PSB. The Board's statement on this point reads as follows:
The claimant did not embellish her story and I give her credit for that. In fact, she tells me that the organization that she was involved with in China was meeting as recently as September 5th and has had no further problems with the PSB.
A review of the questions posed by the member in the transcript also supports this interpretation.
[9] The applicant also takes issue with the Board's statement that it could not understand how, if in May the applicant was questioned by the PSB, that her being seen leaving a church in Canada would add anything to the suspicion the PSB already had. Firstly, the applicant submits that the Board cannot on the one hand reject the evidence of the May incident, and on the other hand use the same evidence to discredit another portion of the applicant's testimony. Secondly, the Board did not consider the fact that even though she may have been under suspicion previously, the fact that she was seen coming out of a church in Canada might confirm the authorities' suspicions. In my view, it is problematic for the Board to disbelieve the applicant's testimony in one part of its analysis, and yet use the same testimony to discredit other portions of her story. In Hilo v. Minister of Employment and Immigration [1991] F.C.J. No. 228 (C.A.), Heald J. stated at page 3:
On page 176 and page 177, the Board cast doubt on the appellant's credibility as noted supra. Nevertheless, one paragraph later, on page 177, the Board finds his evidence credible enough to rely on it as the basis for dismissing one component of his claim to refugee status. This selective treatment in respect of various segments of the appellant's testimony is not calculated to enhance one's confidence in the Board's assessment of the appellant's credibility.
In my view, when the Board's finding on this issue is looked at together with the findings relating to the applicant's identity as a Christian, this is sufficient to amount to reviewable error.
[10] The applicant also submits that the Board ignored vast documentary evidence regarding religious persecution in China. Had the Board considered the applicant's actions in context of the totality of the documentary evidence before it, the applicant argues that it could have come to no reasonable conclusion other than that the applicant would face more than a mere possibility of persecution. However, the Board did state:
Now, admittedly, there are exceptions to the rule and that makes any decision with regard to a claimant for China for religious purposes a difficult one.
While I believe it may have been preferable to discuss in some further detail the conflicting documentary evidence, in my view this sentence indicates that the Board was aware of and did consider the documentary evidence indicating the problems that some Christians have in China.
[11] The application for judicial review is allowed. The decision of the Board dated November 1, 2000 is set aside and the matter is returned to a differently constituted panel for redetermination.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
May 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-718-01
STYLE OF CAUSE: WENLAN HUANG v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 23, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE McKEOWN
DATED: MAY 28, 2002
APPEARANCES:
MR. ADAM SHAPERO FOR APPLICANT
MR. MICHAEL BUTTERFIELD FOR RESPONDENT
SOLICITORS OF RECORD:
LEWIS & ASSOCIATES FOR APPLICANT
TORONTO, ONTARIO
MR. MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA