Ottawa, Ontario, January 25, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
WEI LI ZHOU
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a Chinese citizen who bases his Convention refugee claim on an alleged fear of persecution by reason of his religion.
[2] According to the Applicant's Personal Information Form ("PIF"), while residing in the People's Republic of China ("PRC"), he became a practising Christian in June 2002. In July of that year, he began attending an underground or illegal house church. While attending service on February 9, 2003, the Applicant and other members of the church learned that agents of the Public Security Bureau ("PSB") were approaching, and they all fled the scene. The Applicant escaped and went into hiding. Three members of the church were arrested, and the PSB went to the Applicant's home and made accusations to his parents that he had performed illegal religious activities.
[3] The Applicant subsequently fled to Canada on March 18, 2003, and claimed refugee status on April 2, 2003.
[4] In a decision dated December 7, 2004, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") determined that the Applicant was not a Convention refugee. The Board found that the Applicant had no credibility, had fabricated his story and his testimony, and had never attended a church in the PRC. The Board made a number of adverse findings against the Applicant, based on his testimony at the hearing. The Applicant seeks judicial review of that decision.
Issues
[5] I would frame the sole issue to be decided as follows:
- Did the Board base its decision on one or more erroneous findings of fact, made in a perverse or capricious manner or without regard to the evidence before it?
Analysis
[6] The Applicant has challenged the factual findings of the Board. Findings of fact are entitled to high deference and are within the expertise of the Board; this Court should therefore refrain from interfering unless the Board's decision was based on an erroneous finding made in a perverse or capricious manner or without regard to the evidence (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.); Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d)). However, while it is open to the Board to make implausibility findings on the basis of common sense and rationality, these findings must be supported by the evidence before it and the inferences must be reasonably drawn (Kpawirena-Biokeite v. Canada (Minister of Citizenship and Immigration), 2001 FCT 478, at para. 43 (citing Yada v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 264 (T.D.), at paras. 24 and 25); Lubana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1348 (T.D.)). Where the Board has made findings unsupported by the record, its decision is patently unreasonable and cannot be supported in law.
[7] A review of the record in light of these guiding principles has led me to the conclusion that the decision cannot stand. On a number of significant findings, I am not satisfied that the evidentiary record supports the Board's conclusions. Each of my concerns is discussed in the following.
- Failing to act as lookout
[8] In the decision, the Board stated as follows:
According to the claimant, the illegal church of which he was a member had one of the group act as lookout in case the authorities tried to approach their meeting place. He testified that he never acted as lookout and gave inconsistent testimony as to why not. . . . Not only is his testimony on this point inconsistent and confusing, it still does not answer the question as to why 'his turn had not come'. Besides, he did not say who read to this 'illiterate group' before he joined them in July 2002.
The claimant's inconsistent and confused testimony cause me to conclude that he is improvising and that he is not being truthful.
[9] Having read the relevant parts of the transcript and the portion of the Applicant's PIF related to his role within this small Church, I am not satisfied that the record supports the conclusions of the Board. Beginning with his PIF, the Applicant described his role in the Church as a reader to the believers at the services. He was not, as asserted by the Board, "improvising". In response to the questions regarding why he had not acted as a lookout, he explained that he was a reader because the other members were illiterate; that is the reason why his turn to act as lookout had not arisen. There is nothing confusing or inconsistent about his responses.
[10] I also have a concern with the comment of the Board that the Applicant did not say who read to this 'illiterate group' before he joined them in July 2002. The transcript demonstrates that this concern was not put to the Applicant. Without providing the Applicant an opportunity to address this issue, it was not proper for the Board, in this instance, to draw a negative inference on this basis.
2. Failure to return home after the raid on the Church
[11] As noted above, the Applicant testified that the Church was raided and that he fled to the home of his cousin where he hid. On this point, the Board stated:
The obvious question therefore was why would he go hide if he had not been seen. The claimant said he was scared the PSB would come looking for him at his home. Pressed further as to why the PSB would do this, he said that he thought that since the PSB knew where the church was, they may have had more information. The claimant's demeanour causes me to conclude that he was once again improvising. Moreover, it is not plausible that someone fleeing in fear would stop and think that since the PSB knew of the house location, they may also know he was there and seek to arrest him. It seems reasonable in such circumstances for one to get home as fast as possible since he had not been seen by the PSB
[12] First, the Board's inference does not accord with common sense and rationality. The Board's conclusion was based on pure conjecture. This is not a question of whether the Applicant had time to think out a complicated plan; rather, the Board failed to consider whether the action itself was irrational. The Applicant's explanation was logical and well in accord with a common sense understanding of the kind of fear or panic that a person in his situation likely would have felt. In fear of the PSB, the Applicant was afraid to go home; there is nothing irrational in his actions. Despite this, the Board concluded that the Applicant's explanation was unbelievable but provided no rational basis for that finding. Hence, it was patently unreasonable for the Board to draw a negative credibility inference from this testimony.
[13] Further, the Board did not explain why the Applicant's demeanour caused the Board to conclude that the Applicant was "once again improvising". What was it about the demeanour that created this assumption? I do not know.
[14] As reflected in the Board's reasons, this particular finding appears to have been very central to the Board's decision. Following immediately after the cited passage, the Board stated:
I do not believe that the claimant was at any house that was raided by the PSB on February 9, 2003 and find, on a balance of probabilities, that the entire story is based on a fabrication designed to form the basis of the refugee claim.
[15] In other words, based on the flawed inference, the Board rejected the entire story of the raid on the church. Given the importance of the Board's finding on this point, any error is material.
3. How the cousin knew about the PSB visit to his house?
[16] The Applicant had also testified that the PSB came looking for him at his family's house, which information was relayed by his cousin. When the Board asked the Applicant how his cousin knew this information, the Applicant at first answered that he did not know. With further pressure from the Board to provide an explanation, the Applicant speculated that his cousin may have visited his family's neighbours to find out. When the Board asked why the cousin would go to a neighbour's home and not the home of the Applicant's family, the Applicant answered that his cousin had been scared and would not want to risk being arrested.
[17] The Board found this explanation troublesome, stating that it did not make sense that the Applicant's cousin would be arrested merely for visiting his relatives, and further that if the Applicant's cousin was afraid of being arrested because the PSB already suspected that he was aiding the Applicant, then the PSB could have gone directly to the cousin's home and arrested him. The Board found this explanation "totally lacking in credibility" and seemed to draw an important, negative credibility inference from it.
[18] I find this conclusion by the Board unsupported by the evidence. A review of the transcript demonstrates that the Applicant was merely guessing how the cousin might have gained this information. The Applicant clearly stated, more than once in his testimony, that he was making presumptions at this point. He stated plainly that he did not know how his cousin came by his information. Thus, it was not appropriate for the Board to draw a negative credibility inference from testimony where the Applicant was not putting forth an explanation as an account of true events.
4. Church attendance in Canada
[19] In its decision, the Board described April 20 as being the Applicant's testimony with respect to when he began attending church in Canada. The testimony would have conflicted with a letter stating that the Applicant had first attended Church in March. The Board was particularly firm in its rejection of his testimony on this subject. Once again, without explanation of what was meant, the Board stated that "His demeanour once again betrayed him . . .". The Board concluded that: "The claimant is clearly lying. I do not accept his bizarre explanation". Further, the Board found it "highly improbable that he would be baptised on his very first visit, if I accept his testimony that he first went on Easter Sunday 2003". A final reference to the Applicant's attendance is made later in this portion of the decision where the Board states that "According to his own testimony, he first went to the church on Easter Sunday 2003, which was April 20".
[20] The fundamental flaw in this portion of the decision is that the Board mistakenly relies on testimony that April 20 was the Applicant's first time at his Canadian church. This is not born out by the transcript. The exchange between the hearing officer and the Applicant evidences a reference to April 20 as the first or second time that he attended. There is nothing on the record that shows that April 20 was the first time. Additionally, the Board had no evidentiary basis for finding it improbable that the Applicant could have been baptised on his first day of attendance. In my view, in the absence of evidence describing the specific practices of the Applicant's church, the
Board's finding is capricious and speculative in nature.
Conclusion
[21] In sum, there are a number of significant errors in the decision that lead me to conclude that the decision should not stand. The application will be allowed.
[22] Neither party proposed a question for certification.
ORDER
This Court orders that:
- The Application is allowed;
- The decision of the Board is set aside and the matter referred back to a differently-constituted panel of the Board for re-determination; and
- No question of general importance is certified.
Judith A. Snider
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-352-05
STYLE OF CAUSE: Wei Li Zhou v. the Minister
of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 12, 2006
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
APPEARANCES:
| Carla Sturdy |
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Vanita Goela |
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SOLICITORS OF RECORD:
| Lewis and Associates, Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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