Ottawa, Ontario, June 21, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Yu Mei Zhang claimed refugee protection in Canada after she
learned that security officers in China had visited her parents
in an effort to locate her. She believes she is being sought because, prior to
coming to Canada as a student, she was a member of an underground Christian
church in China.
[2]
A
panel of the Immigration and Refugee Board dismissed Ms. Zhang’s claim because
it did not believe her account of events. Ms. Zhang argues that the Board made
numerous errors in its assessment of her credibility and asks me to order a new
hearing before a different panel. I agree that the Board’s errors require me to
overturn its decision and I must, therefore, allow this application for
judicial review.
I. Issue
[3]
Were
the Board’s credibility findings supported by the evidence?
II. Analysis
[4]
The
Board found that Ms. Zhang’s testimony was unconvincing. It gave six reasons
for its concerns and, in the end, found that she was not a Christian at all. I
will discuss each of its reasons in turn.
(i) Amendment
of her Personal Information Form (PIF)
[5]
The
Board considered it odd that Ms. Zhang amended her PIF three weeks prior to her
hearing to add the date on which she was baptized. She said that this was the
most important date in her life and, accordingly, the Board felt she should
have included the date in her narrative from the outset.
[6]
A
PIF should contain the significant events that give rise to an applicant’s
claim. It is not clear to me that Ms. Zhang’s date of baptism constitutes such a
significant event, at least not on these facts (nor was it considered to be so
in Zhuo v. Canada (Minister of Citizenship and Immigration), 2005
FC 1271, [2005] F.C.J. No. 1547). Had the applicant omitted the date
altogether, it is difficult to imagine a negative inference being drawn from
the omission. Similarly, it is difficult to understand the basis for the
Board’s concern here. As the applicant had clearly stated that she was a
Christian, she had presumably been baptized at some point. The precise date was
not a fact that was central to her claim.
(ii) Failure
to amend the PIF
[7]
The
Board also drew an adverse inference from Ms. Zhang’s failure to amend her PIF
to mention recent visits to her parents’ home by security officers. These
visits took place after she had filed her PIF.
[8]
Again,
the basis for the Board’s concern is difficult to appreciate. The applicant
understandably felt that she could testify about recent events at her hearing
without having to amend her written documents.
[9]
Further,
Ms. Zhang argued that, even if she had amended her PIF, the Board might well
have drawn an adverse inference in any case, given its finding above. I am not
sure this is fair to the Board’s reasoning. There are obviously circumstances
where an adverse inference can be drawn from an omission from a PIF or from an
amendment to it, depending on the facts and circumstances of the case. I would
not fault the Board for drawing these kinds of inferences even within the same
case. Each finding should be looked at independently. My concern is not that
the Board discredited Ms. Zhang’s evidence for having made a PIF amendment on
the one hand, and for not making a PIF amendment on the other. Rather, looking
at the two findings separately, I am not satisfied that either stands up.
(iii) Failure
to claim on arrival
[10]
The
Board concluded that Ms. Zhang’s behaviour was inconsistent with a subjective
fear of persecution because she did not claim refugee protection when she first
arrived in Canada. She was
aware that practising her religion was banned in China. Therefore, the
Board reasoned, she should have sought the first reasonable opportunity to make
a refugee claim.
[11]
However,
Ms. Zhang stated that security officers did not come looking for her until she
left China. Had she
made a refugee claim on her arrival here, she would probably not have been able
to articulate grounds for a well-founded fear of persecution. I do not see a
basis for the Board’s conclusion that Ms. Zhang’s conduct was unreasonable in
the circumstances.
(iv) E-mails
to fellow practitioners
[12]
Ms.
Zhang testified that she kept in touch with fellow Christians back in China by e-mail. The
Board doubted that she would be unaware of the danger in which she placed
herself and her fellow practitioners by doing so. The panel also wondered why
Ms. Zhang provided no evidence of these e-mails.
[13]
I
see nothing wrong with the Board’s finding on this issue.
(v) Ms.
Zhang’s knowledge about Passover
[14]
The
Board drew an adverse inference from Ms. Zhang’s failure to describe accurately
the connection between the Last Supper and Passover. She originally stated that
the Last Supper took place during the Jewish celebration of Passover, which
began with Moses leading the Israelites out of Egypt. Under
further questioning, Ms. Zhang grew more doubtful about her answer and
ultimately said that she did not know what the connection was.
[15]
As
I read Ms. Zhang’s evidence on this point, it appears to me that she did make a
link between the Last Supper and Passover but, when pressed, was uncertain
about the particulars of the connection. Given that Passover is a Jewish
celebration, I find it difficult to understand why the Board faulted Ms. Zhang,
a professed Christian, for her lack of detailed knowledge about it. She
certainly gave evidence about other important aspects of her faith (baptism,
sacraments, the Bible, etc.)
(vi) Ms.
Zhang’s knowledge of Protestant denominations
[16]
The
Board felt Ms. Zhang should have known the various branches of Protestantism.
She appeared only to understand the distinction between Catholicism and
Protestantism, not the several denominations of the Protestant faith. She knew
that the Protestant movement was inspired by Martin Luther, but she was unable
to identify particular denominations either in China or Canada.
[17]
There
was a reference in the documentary evidence before the Board indicating that,
in China, there are
two branches of Christianity: Catholicism and Protestantism. There are no
Protestant denominations. In Canada, Ms. Zhang said she belonged to the Christian Gospel Church (and
provided documentary evidence to that effect). The Church does not appear to
have a specific Protestant denomination. Therefore, it is difficult to see the
basis for an adverse inference being drawn from Ms. Zhang’s lack of knowledge
of Protestant denominations.
[18]
Obviously,
the Board is entitled to make credibility findings on the basis of the evidence
before it and those findings are entitled to considerable deference from the Court.
It is only where its findings do not find support in the evidence that the
Court will intervene.
[19]
In
this case, based on the cumulative effect of its questionable findings on Ms.
Zhang’s credibility, I am persuaded that the Board’s decision should be
overturned.
[20]
I
will grant this application for judicial review and order a new hearing before
a different panel.
[21] Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS THAT:
1. The application for judicial review is allowed. The matter is referred back to the Board for a new hearing before a different panel;
2. No questions of general importance are stated.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4907-06
STYLE OF CAUSE: YU MEI ZHANG v. THE MINSITER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: June 13, 2007
APPEARANCES:
|
Shelly Levine
|
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Negar Hashemi
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SOLICITORS OF RECORD:
|
LEVINE & ASSOCIATES Toronto, On. |
|
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, ON
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