Date: 20050704
Docket: IMM-5400-04
Citation: 2005 FC 936
BETWEEN:
JIN HUI SU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] Mr. Su claimed that he feared persecution in China because of his membership in the Tian Dao religion. The Refugee Protection Division of the Immigration and Refugee Board (the Panel) rejected his refugee claim.
[2] The Panel held that the Applicant was not credible because it inferred that the Applicant was practising his religion openly. Such open practice was inconsistent with the documentary evidence that religions such as Tian Dao were practised in secret to avoid detection by the police. A central issue is whether that inference was a proper one to be drawn.
[3] The Panel also put considerable reliance on a report by Human Rights Watch that its consultant had no knowledge of mistreatment of Tian Dao practitioners - a fact which that consultant said would have come to his attention. The difficulty with the reliance on that report is that it was written approximately one (1) month prior to the events which the Applicant alleges occurred.
BACKGROUND
[4] The Applicant stated that he was introduced to the Tian Dao religion in 1998 by a former classmate after which he attended meetings on a regular basis at this former classmate's home. He was able to attend these meetings without incident until October 17, 2001 when the Chinese Public Security Bureau (PSB) raided the classmate's home.
[5] The Applicant had left the meeting before the PSB raid but learned subsequently from his mother that the PSB had visited his house to arrest him for having joined "an evil religious organization". He remained in hiding until he came to Canada.
[6] His fear of persecution is based on the PSB's continuing search for him and the fact that his fellow worshippers, caught in the raid, are still in prison.
[7] The Panel noted that the documentary evidence established that there is an intense campaign by Chinese authorities against Tian Dao after it was banned and outlawed. It has also been the subject of intense propaganda campaigns along with arrests and persecutions of leaders. The Panel drew the conclusion that if Tian Dao members was subject to this type of activities by the authorities in one province, then Tian Dao members throughout China would be subjected to the same treatment throughout China.
[8] The Panel held that the Applicant's story about the raid was not credible because no human rights organization had reported it. The Panel took cognizance of an Amnesty International report dated March, 2002 in which there were no recent reports of torture or ill-treatment of Tian Dao members. The Panel then buttressed this finding with the Human Rights Watch report of September 21, 2001 which was to the same effect but in slightly stronger terms. The alleged PSB raid occurred on October 17, 2001.
DETERMINATION
[9] As the issue in this judicial review turns on inferences drawn and credibility findings, the standard of review is patent unreasonableness. For the following reasons, I find that the Applicant has met the standard of review.
[10] With due respect to the Panel, the finding that the Applicant was openly practising his religion cannot be rationally connected to the specific evidence that religious services were conducted in a member's home. This is particularly so where the Panel accepts that Tian Dao members are subjected to mistreatment by Chinese authorities and that the religion has been driven underground. The inference drawn by the Panel cannot be supported by the totality of the evidence.
[11] The Panel's reliance on a report pre-dating the raid is likewise questionable. It is sufficiently unclear, as to whether this evidence was treated as general background evidence or whether it played a significant part in the Panel's credibility finding, to justify review. Without such clarity, it is patently unreasonable to use the report to form a basis for the infirmed credibility findings.
[12] For these reasons the application for judicial review will be granted, the decision will be quashed and the matter remitted to a differently constituted panel of the Immigration and Refugee Board.
[13] There is no question for certification.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5400-04
STYLE OF CAUSE: JIN HUI SU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 26, 2005
REASONS FOR ORDER: Phelan J.
DATED: July 4, 2005
APPEARANCES:
Ms. Nadine Tobin FOR THE APPLICANT
Mr. Bernard Assan FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Lewis & Associates
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT