Federal Court Decisions

Date: 20050601

Docket: IMM-5526-04

Citation: 2005 FC 792

Ottawa, Ontario, this 1st day of June, 2005

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

BETWEEN:

DI DI HE

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 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated May 10, 2004, wherein it was determined that the applicant is neither a Convention refugee nor a person in need of protection.

[2]    The applicant requests that the Board's decision be declared invalid, quashed, or set aside, and referred back to the Refugee Protection Division for redetermination by a different member of the Board.

Background

[3]    The applicant, Di Di He (the "applicant") is a citizen of China. The applicant claimed that he became a Christian and joined an underground church in October 2000, and was baptized on Easter 2001.

[4]    The applicant came to Canada in March 2002 on a student visa. The applicant alleged that he continued attending church in Canada at that time.

[5]    The applicant alleged that in August 2002, during his stay in Canada, the Public Security Bureau (the "PSB") discovered the church he had attended in China, and during a raid on the church arrested some members including the applicant's friend who had introduced him to the church.

[6]    The applicant alleged that the PSB then went to his parent's home (where the applicant resides in China), looking to arrest him and accused him of being a member of an underground church, of spreading religion illegally, of having accepted baptism illegally and of influencing the church in China with the teachings of a foreign church.

[7]    The applicant made a refugee claim sur place, based on a fear of persecution on the grounds of religion if he returns to China.

Reasons of the Board

[8]    The Board stated in part, the following in its decision:

I do not find that the claimant is, or ever was, a Christian and therefore was never a member of an underground Christian house church in the People's Republic of China. The claimant stated that he was initially attracted to Christianity because of the pressures he was facing concerning his university entrance exams. However, the claimant stated that he first became interested in Christianity in September 2000 and attended his first service on October 8, 2000, but did not have to write his exam until July 2001, approximately ten months later. Furthermore, the claimant made an application to attend a Canadian school in May 2001, and had been accepted into a teachers'university in the People's Republic of China. The claimant indicated that his study plan, in order to obtain his Canadian student visa, was to attend Union College in Vancouver for half-a-year and then enrol [sic] in a university computer course. However, the claimant only attended Union College for two-and- a-half months. The claimant is still attending English-as-a-second language courses, several months after arriving in Canada which I find indicates that the claimant's plan was to stay in Canada indefinitely. The claimant indicated that he spoke to his friend only twice before accepting the Gospel. In summary, I do not find it plausible that the claimant accepted Christianity so quickly because of pressure of an exam that would not be taking place for ten months and then, in the meantime, apply to come to Canada to study.

When the claimant was asked what Christianity meant to him, he indicated that there were a lot of changes in him and he was more understanding and tolerant of other people. The claimant failed to mention that by believing that Jesus died to save him he would have eternal life, which is the essence of Christianity, although the claimant does mention eternal life in his Personal Information Form. Moreover, with respect to the Easter story, the claimant indicated that Pontius Pilate was a Jew, not a Roman. The claimant did not indicate that the three wise men followed a star in order to see the baby Jesus. The claimant incorrectly stated that Moses obtained the Ten Commandments when he was called to the burning bushes on Mount Sinai, which is incorrect. God had called Moses to the mountain with the burning bush that did not burn in order to instruct him to go to Egypt and free the tribes of Israel from the bondage of the Pharaoh. The claimant, when asked to recite a Bible story, told the "sowing of the seeds" parable. The claimant, when asked as to what we are to learn from this parable, indicated that human beings are to listen to the gospel and that God is a mighty person who knows what is right and wrong, which is incorrect. The claimant stated that this parable was found in the Book of Matthew, which is incorrect, as it is found in the Book of Mark. The claimant knew about baptism, that Jesus was crucified.

The claimant was also asked if his underground house church celebrated Holy Communion on the Easter Sunday of his baptism, to which he replied in the negative. I do not find it plausible that Communion would not be celebrated on the holiest day in Christianity. In summary, based on the length of time the claimant alleges to have been a Christian, a period of over three years, his level of education, being post-secondary, I find that the claimant does not know some of the very basic tenets of Christianity. Although the claimant produced a letter from his church in Canada, dated February 18, 2004, there is nothing in the letter that the claimant is attending Bible study classes, which he testified that he was currently doing. Any attendance at a church here in Canada I find is simply to manufacture his claim, since I have previously found that the claimant is not a Christian.

In finding that the claimant is not a Christian, I therefore find that since no other explanation was provided as to why the Chinese authorities would want to persecute him, that the claimant does not have a well-founded fear of persecution for his religious beliefs nor is he at risk to his life, or at risk or cruel or unusual treatment or punishment or in danger of being tortured by any authority in the People's Republic of China.

Issues

[9]    The issues as framed by the applicant are:

1.          Did the Board err in its finding on the credibility of the applicant in drawing inferences about the applicant's narrative which reflect a cultural understanding based on Western standards and may not therefore apply to the applicant's situation?

2.          Did the Board err in its finding on the credibility of the applicant by relying on its assessment of the plausibility of certain aspects of the applicant's account which are not sufficient in and of themselves to impugn the applicant's credibility?

3.          Did the Board err in its finding on the credibility of the applicant by placing too much emphasis on errors made by the applicant in his answers to specific questions about Christianity which are not sufficient to impugn the applicant's credibility?

Applicant's Submissions

[10]                        Issue 1

The applicant submitted that the Board erred in stating that it did not find it plausible that the applicant "accepted Christianity so quickly because of pressure of an exam that would not be taking place for ten months and then, in the meantime, apply to come to Canada to study." The applicant testified that he felt great pressure because it was a final university exam which was very important to him and was only one semester away. The applicant submitted that the Board may have shown a Western bias or interpretation in its finding about when a student in China might begin experiencing the pressure of final exams, in his final year of studies.

[11]                        Issue 2

The applicant submitted that the Board's main finding on the applicant's credibility rested on its conclusions about the plausibility of the applicant's account. The question of how much exposure it might take for a person to be influenced by religion is in the nature of a psychological rather than a legal assessment.

[12]                        The applicant further submitted that statements by the Board about the plausibility for the reason the applicant came to Canada are in the nature of a statement of disbelief rather than one where reasons are provided for the Board's finding (see Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481).

[13]                        The applicant further submitted that the Board's finding as to the implausibility of Communion not being celebrated on the Easter Sunday of the applicant's baptism is based on the Board surmising that Communion would necessarily be held in an underground church in China, rather than on evidence that this would be general practice in an underground church in China.

[14]                        Issue 3

The applicant submitted that any wrong answer given by the applicant can be balanced against the many correct answers to questions about Christianity. The Federal Court of Appeal has cautioned against setting the bar too high and being over-zealous when attacking the credibility of a refugee claimant, particularly when he has testified through an interpreter (see Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm.L.R. (2d) 106 (F.C.A.)).

[15]                        The applicant further submitted that the documentary evidence before the Board clearly established that Chinese citizens who belong to churches not officially recognized by the Chinese government are subjected to persecution by the government (see U.S. Department of State Report on International Religious Freedom for China (2002)).

Respondent's Submissions

[16]                        The respondent submitted that a finding with respect to a claimant's credibility based on evidentiary inconsistencies and implausibilities is the heartland of the Board's discretion as the trier of fact with respect to refugee claims. No one is in a better position than Board to gauge the credibility of an account and to draw the necessary inferences. As such, the Board's determination is entitled to deference.

Relevant Statutory Provisions

[17]                        Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows: