Docket: IMM-6933-03
Toronto, Ontario, August 25th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
BIN ZHENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The applicant is a 21 year old citizen of the People's Republic of China (PRC). He claims to face persecution from Chinese government officials due to his belief in the Tian Dao religion.
[2] The Board rejected the applicant's claim drawing negative credibility inference from his failure to mention in his PIF details regarding the police search of his house temple and parent's home. In addition, it concluded that the applicant's story was not supported by documentary evidence regarding the treatment of Tian Dao followers in China.
[3] While the Board's finding regarding the omissions in the Applicants PIF were reasonable and well explained the Board also committed two errors.
[4] First the Board found on p3. "The source speculates that even if there are such Tin Dao believers in Fujian province, Tin Dao would certainly not be able to exist openly there as the claimant's evidence suggest." The fact is that nowhere in the entire record does the claimant ever allege that Tin Dao openly exists in Fujian province.
[5] Secondly the Board states at p. 4
The claimant's evidence is that his parents told him that five of his fellow believers were arrested among them the homeowner, where the raided service was held. Four of the believers were sentenced to two years in prison and the homeowner to four years. The panel does not find this credible. The documentary evidence states that the numbers of arrested and detained persons are not disclosed by the Chinese authorities. Further, because of the notoriety of Tian Dao, such arrests would very likely be conducted in secret. Nevertheless, the panel finds that such arrests and sentencing would probably come to the attention of Human Rights organizations. The panel finds that freedom of religion in Fujian province is a subject on which many Human Rights organizations report. Amnesty International states that an unofficial religion like Tian Dao would be considered to be a heretical organization and its members would be at risk of persecution. However, in a report dated March 2002, in response to a specific enquiry respecting the treatment of Tian Dao members in China, Amnesty International states that it has no recent reports of torture or ill-treatment of Tian Dao members. In this regard, the panel finds the alleged incident, which occurred in June, 2001, would have probably come to the attention of the Organization. [Emphasis Added]
[6] This statement is logically inconsistent. Either the arrest are made in secret and nobody knows about them (which would include the Applicant's family and Human Rights organizations) or else notwithstanding the intense persecution by Chinese police information does leak out. The Board cannot have it both ways, i.e. accepting that arrest are made secretly and therefore doubting the applicant's and his parent's credibility as this makes it unlikely that they would know about arrest but then holding it against the Applicant that it has not heard from Human Rights organization about such secret arrests.
[7] Both these errors fall into the 'patently unreasonable' category and therefore notwithstanding the strong findings by the Board on the omissions from the PIF, this decision cannot stand.
[8] Consequently this application will be allowed.
ORDER
THIS COURT ORDERS that the decision of the Board of August 5, 2003 is set aside and the matter is referred back for reconsideration to a differently constituted panel.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6933-03
STYLE OF CAUSE: BIN ZHENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 25, 2004
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
APPEARANCES BY:
Shelley Levine For the Applicant
Anshumala Juyal For the Respondent
SOLICITORS OF RECORD:
Shelley Levine
Barrister & Solicitor
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040825
Docket: IMM-6933-03
BETWEEN:
BIN ZHENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER