Date: 19980715
Docket: IMM-3696-97
BETWEEN:
MING KUANG YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a July 30, 1997 decision of the Convention Refugee Division of the Immigration and Refugee Board [hereinafter "the Refugee Division"] wherein the Refugee Division found that the applicant was not a Convention Refugee.
FACTS
[2] The applicant, a citizen of China, states that he became a Roman Catholic in 1992. The applicant has three children and had to pay a fine for having the third child. The applicant alleges he became actively involved in a house church and commenced building a factory with others which would also be used for house church services. The applicant stated that the house church came to the attention of the authorities and that he is being sought for arrest. He fled China and arrived in Canada on December 27, 1995 and claimed Convention Refugee status.
[3] The Refugee Division refused to grant refugee status to the applicant. The Refugee Division found instances of discrepancies between the Port of Entry (POE) notes and the applicant's oral and written testimony. The POE notes state that the applicant is a construction worker, but the applicant's Personal Information Form (PIF) declares that he was the owner of a fashion store and he had previously worked as a warehouse caretaker in a construction materials company and as a farmer. In addition, the POE notes state that the applicant wishes to remain in Canada because of problems with China's family planning policies but does not mention religious grounds. However, when the applicant was asked at the POE, he stated that religion and political opinion were his grounds for claiming Convention Refugee status. Furthermore, the applicant stated that he was not a member of a particular organization, but his PIF narrative details his membership in an underground house church. In the POE notes, the applicant states that he is not wanted, but in his PIF and other documentary material filed by the applicant, he states that he is being sought by the Public Security Bureau (PSB).
[4] When the applicant was asked about these discrepancies, he explained that he was tired and dizzy. When asked why he listed construction as his occupation, he stated that he was beginning from his first job and intended to refer to all of his jobs. The applicant also stated that the interpreter failed to properly interpret his statement that he was wanted by the PSB.
[5] The Refugee Division found that his oral evidence was generally consistent with his PIF although some aspects were held to be implausible. The applicant stated that almost one-third of his village of 300 people prayed at the house church on Sundays. The Refugee Division held that it was not plausible that such a large group could pray in secret. I am satisfied that the statement of the Refugee Division appears to be pure speculation because they do not state why, in specific terms, they believe this is not plausible.
[6] The Refugee Division also did not believe the applicant's story about the building of the factory. The applicant stated that building inspectors came to inspect the premises but did not see a recess built into the wall to house religious icons because it was covered. However, the applicant stated that the inspectors showed up a second time unannounced to inspect the machinery and discovered the recess in the wall. The Refugee Division noted that the applicant initially said that the machinery was not present during the first visit but later changed his testimony to say that the machinery was present but had not been installed. The Refugee Division also noted that the applicant could not provide a satisfactory explanation why, on their initial visit, the inspectors did not uncover the recess in the wall to inspect it. Furthermore, there was no communication between the inspectors and the applicant about the date the machinery was to be installed, so the Refugee Division questioned how the inspectors would know which date to arrive to inspect the machinery. Finally, the Refugee Division held that it was not plausible that the applicant and his fellow believers would think that they could employ large numbers of the local population and conduct worship services without it coming to the attention of the authorities.
[7] Thus, the Refugee Division concluded that the applicant was not a member of an underground house church because it found that the applicant's evidence concerning the operation of the house church and the building of the factory was not plausible. Furthermore, the failure of the applicant to refer to his occupation and his grounds for fleeing persecution in his POE were, according to the Refugee Division, relevant but not determinative factors of the applicant's claim of membership in an underground church.
[8] The Refugee Division concluded that the applicant does not have a well-founded fear of persecution in China as a result of his membership in an underground house church.
SUBMISSIONS
1. The Applicant's Submissions
[9] The applicant's first submission is that he was denied natural justice because he was not provided with a competent interpreter at the hearing. This submission was abandoned by the applicant's counsel at the hearing before me.
[10] The applicant's second submission is that the Refugee Division failed to discuss in its decision a summons received by the applicant that stated that he must appear at trial because he was charged with being involved in illegal religious activities. The applicant submits that this is clear evidence that he would be persecuted upon return to China as well as corroborative evidence of his testimony.
[11] The applicant's third submission is that the Refugee Division erred in failing to assess the applicant's claim based on his lack of freedom to practice his religion, regardless of the plausibility of the evidence that he was wanted by the authorities. The applicant submits that the Refugee Division did not find that he was not a Roman Catholic nor did they reject evidence that he practiced Roman Catholicism in Canada.
2. The Respondent's Submissions
[12] The respondent provides submissions about the credibility findings made by the Refugee Division and states that the Court should not interfere with the decision of the Refugee Division on the issue of credibility.
[13] It is trite law that the Court will not interfere with credibility findings unless they appear to have been made in a capricious manner. The respondent submits that the applicant has failed to show that the Refugee Division erred by basing its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it.
DISCUSSION
[14] The applicant's second submission is that the Refugee Division erred by failing to mention the summons in its decision. In Gourenko v. Solicitor General of Canada (1995), 93 F.T.R. 264, Simpson J. wrote at page 264:
| However, the question is when is a document so important that it must be specifically mentioned in the decision. Or put another way, when will a failure to refer to a document be considered a reviewable error? |
| In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems to me that the topic addressed in the document must be directly relevant to the applicant's claim. ... In addition, if a document is directly relevant to the facts alleged by an applicant, one would expect to see that document addressed in the Refugee Division's reasons. |
[15] I am satisfied the Refugee Division erred by failing to mention the summons in its decision. Following Gourenko, supra, this was a timely document, there was no contention that it was not reliable, it is directly relevant to the applicant's claim and it is directly relevant to the facts he alleged. In my opinion, it should have some bearing upon the decision of the Refugee Division and it is unclear whether they considered it and it is unclear how much weight the Refugee Division would give to this document.
[16] Even if the Refugee Division believed the applicant lacked credibility, they should have considered the summons and then set it aside because of the applicant's lack of credibility. This they failed to do.
[17] The applicant's final submission is that the Refugee Division erred in failing to assess the applicant's claim based on his lack of freedom to practice his religion. The applicant cites the decision in Fosu v. Canada (M.E.I.) (1994), 90 F.T.R. 182 where the court wrote at pages 184-85:
| The fact is that the right to freedom of religion also includes the freedom to demonstrate one's religion or belief in public or in private by teaching, practice, worship and the performance of rites. ... As a corollary to this statement, it seems that persecution of the practice of religion can take various forms, such as a prohibition on worshipping in public or private, giving or receiving religious instruction or the implementation of serious discriminatory policies against persons on account of the practice of their religion. |
[18] The final paragraph of the applicant's PIF states:
| I fear returning to China because I believe I will be arrested if I return to China because of my involvement with the illegal house church and because I practised an illegal religion. If I am arrested I believe I will be beaten and tortured. I also know that if I am required to return to China I will not be free to practise my religion which I am free to do in Canada. |
[19] The applicant also cites the cases of Ming Guo Wang v. Canada (M.C.I.), F.C.T.D., IMM-250-97, December 22, 1997, Lutfy J. and Lim Man Chong v. Canada (M.C.I.), F.C.T.D., IMM-3438-97, July 7, 1998, Rothstein J.
[20] The decision of the Refugee Division states that the applicant does not have a well-founded fear of persecution as a result of his membership in an underground house church, but it does not specifically rule whether he has a well-founded fear of persecution due to his religious beliefs. The Refugee Division was concerned with whether the applicant was persecuted for belonging to an underground house church but did not believe he belonged to an underground house church. In my opinion, this is equivalent to determining whether he was persecuted due to his religious beliefs because the underground house church was used to practice Roman Catholicism. Thus, I am satisfied that the Refugee Division addressed the applicant's fear of persecution due to his religious beliefs.
CONCLUSION
[21] This application for judicial review is allowed on the grounds that the Refugee Division should have referred to the issue of the summons and give it serious considerations.
[22] I am sending this matter back for a new hearing before a differently constituted Board. I suggest the Refugee Division retain the services of a more proficient interpreter
[23] Neither party submitted a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
TORONTO, ONTARIO
June 15, 1998.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3696-97
| STYLE OF CAUSE: MING KUANG YU |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 14, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TEITELBAUM, J.
DATED: JUNE 15, 1998
APPEARANCES:
Ms. Maureen Silcoff
For the Applicant
Ms. Bridget O'Leary
For the Respondent
SOLICITORS OF RECORD:
Lewis & Associates
175 Harbord Street
Toronto, Ontario
M5S 1H3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980715
Docket: IMM-3696-97
Between:
| MING KUANG YU |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER