Docket: IMM-5531-13
Citation:
2014 FC 1184
Toronto, Ontario, December 8, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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SHUN QIU YE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review,
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA, the Act], of the decision of the Refugee Protection
Division of the Immigration and Refugee Board [RPD, Board] dated July 8, 2013
refusing the Applicant’s claim for refugee protection.
II.
Facts
[2]
Shun Qiu Ye [the Applicant] is a citizen of
China from the Guangdong province, who claims a fear of (i) the Public Service
Bureau [PSB] as she was in a house church that was raided in November 2010 and
(ii) the Family Planning authorities in China [Family Planning] as she hopes to
have more children and fears sterilization.
[3]
She claims that she began attending a house
church in December of 2009, and that it was raided in November of 2010. She
went into hiding and fled China in February of 2011. When the PSB went to the
Applicant’s home looking for her in November 2010, they showed an arrest
warrant to her husband. However, when her husband later went to the local PSB
office to obtain a copy of the arrest warrant, he was unable to get one. The
Applicant claims that she practices her Christian faith in Canada.
[4]
The Applicant also claims that since the birth
of her son in 1999, she has twice been forced by Family Planning to wear an IUD
birth control device, and was forced to abort her second child in 2009. The
Applicant’s husband passed away in January 2013. She wishes to have more
children.
III.
Decision
[5]
The RPD rejected the Applicant’s claim under
sections 96 and 97, on the grounds that:
A.
She lacked credibility and as such was not
considered by the Board to be a genuine practicing Christian in China or Canada, and/or pursued by the PSB;
B.
her fears of forced sterilization were not
genuine, and were premature and speculative given that her husband is now
deceased and she was not forced to undergo sterilization when she became
pregnant the second time. She also failed to provide objective evidence that
she would be sterilized as a widow, since China’s one-child policy provides for
married women with one child to have an IUD inserted, not to be sterilized.
The hearing
focused on the first issue, which will be the main subject of this decision.
IV.
Issue
[6]
This matter raises the following issue:
A. Was the Decision reasonable?
V.
Relevant Provisions
[7]
Sections 96 and 97 of IRPA are annexed to
this decision.
VI.
Standard of Review
[8]
The RPD’s findings of fact and mixed fact and
law are reviewable on a standard of reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9 at para 51.
[9]
When reviewing a decision on the standard of
reasonableness, the Court is concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process” and with “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir at para
47).
VII.
Parties’ Submissions
[10]
The Applicant submits that the RPD’s credibility
finding was unreasonable for the following reasons:
A.
There was no inconsistency between the Personal Information
Form [PIF] Narrative, which said the Applicant really came to know who God and
Jesus were for the first time in December 2009, and the Applicant’s testimony,
in which she said that her friend started talking to her about Christianity in
November 2009.
B.
The Board failed to consider the highly relevant
evidence from the psychological report in its assessment of the Applicant’s
credibility.
C.
The Board unreasonably drew conclusions about
the expected behaviour of the PSB in issuing summonses.
D.
The Board concluded that the Applicant did not
know the first name of the individual who smuggled her to Canada, without asking her for his first name.
E.
The Board unreasonably dismissed country
condition evidence reporting events of persecution of Christians in Guangdong province.
[11]
The Respondent, in response, submits that the
RPD’s finding that the Applicant’s claim of fear of the PSB was not credible
was reasonable for the following reasons:
A.
The Applicant’s PIF Narrative and testimony were
inconsistent with respect to when she became a Christian. The Board gave her an
opportunity to explain the inconsistency but she could not. She cannot now
provide an explanation not provided to the Board.
B.
There were also weaknesses in the Applicant’s
oral testimony with respect to her knowledge of basic Christianity.
C.
The Applicant did not know the psychologist’s
diagnosis and recommendations. As such, the Board concluded that she was not
truly interested in getting treated by the psychologist. Further, despite
alternative explanations provided by the psychologist’s report for any
inconsistencies or omissions, the Board can still base a negative credibility
finding on those inconsistencies or omissions (Kaur v MCI, 2012 FC 1379
at paras 33, 36).
D.
The Applicant’s claim that the PSB obtained an
arrest warrant even though it never issued a summons is inconsistent with the
documentary evidence.
- The Board did
not believe that the Applicant left China on a fraudulent passport as she
did not know the full name of the smuggler or any other instructions he
allegedly gave her. It was implausible, given the fact that she held out
to be the smuggler's wife during transit, that she was able to provide so
few details, including his first name.
F.
The issue above leads to the question of how she
was able to leave China on her own passport if she was wanted by the PSB.
G.
The Applicant’s allegation that the PSB raided
her house church and arrested two parishioners is inconsistent with the
documentary evidence on Guangdong province.
[12]
The Respondent further noted that the Applicant,
at almost every occasion found a reason to obfuscate when questioned on
sensitive details regarding many of the above items. As difficult as it was to
testify shortly after the death of her husband, that alone cannot be a reason
for failing to credibly respond to fundamental details of the basis of her
claim.
VIII.
Analysis
[13]
I have concluded that on the totality of the
evidence, the Board’s overall conclusions were reasonable. Despite errors made
by the Board in some of its findings, as I will review below, I find the
overall Decision to be reasonable.
A.
Credibility Findings
(1)
Inconsistency in dates
[14]
In my view, the Board’s finding that the
Applicant provided inconsistent dates for when her friend began talking to her
about Christianity is unwarranted. There is no contradiction between the
Applicant’s statement that her friend began to talk to her about Christianity
in November 2009, and her PIF Narrative which says that one day in the
beginning of December, she “really came to know who God
and Jesus Christ were for the first time” (Certified Tribunal Record
[CTR], p 33).
[15]
The Applicant wrote in her original PIF
Narrative, after describing her sadness following the forced abortion of her
second child, that:
In order to make me walk out of the sorrow and
face my life, my friend Hong Fang Cao prayed for me, asking Jesus Christ to
save me. Starting one day in the beginning of December 2009, I really came to
know who God and Jesus Christ were for the first time, why we needed to pray. Hong Fang Cao talked about the miracle of
Jesus Christ happened to her, which was also the course for her to believe in
God, to encourage me and to give me confidence. When she prayed for me for the
second time, I felt as if there was a pair of warm hands over my head and my body
became much lighter. Hong Fang Cao prayed for me for several other times,
taught me how to pray on my own, and continued to spread the Gospel to me. She
gave me a Bible, so sometimes, we would read together. My situation was
gradually improving, and meanwhile, I had more and more interest in
Christianity. When I almost got recovered, I then made the decision to believe
in God and to become a follower of Jesus Christ. I believe that a real God
exists in this world, and believe in his enormous power. I hope my life be
[sic] meaningful and my soul will be saved after death.
On December 25, 2009, I started my church
life, because Hong Fang Cao brought me there. […]
(PIF Narrative, CTR, p 33, paras 4-5)
[16]
She then testified before the Board that her
friend began talking to her about Christianity in November 2009. When the Board
challenged her on this, she explained the inconsistency:
MEMBER: Okay, so you say she started talking to
you about Christianity in November?
CLAIMANT: Yes.
MEMBER: In your PIF, it seems it was in
December.
CLAIMANT: December was the first time she took
me to church.
MEMBER: Do you know when in December she took
you to church?
CLAIMANT: it [sic] was December 25th.
[17]
While the RPD receives significant deference on
its credibility findings, it is unreasonable to find an inconsistency where
there is none.
(2)
Board’s assessment of the psychological report
[18]
The Board gave the psychological report limited
evidentiary value on the basis that: it was based on the Applicant’s
self-reporting; the report was based solely on a 2 hour examination three days
after her husband’s death; and the Applicant did not know the diagnosis, which
suggested that she was not interested in treatment but rather used the report
for the purposes of supporting her memory lapses and her story of
traumatisation in China.
[19]
I am not convinced that whether or not an
applicant knows the diagnosis in the psychologist’s report is relevant to the
weight that should be given to that report.
[20]
However, in this case, I find the Board did not err
in giving limited weight to the report. In this respect, I adopt the words of
Justice Reed in Gosal v MCI, [1998] FCJ No 346 at para 14:
[…] When such reports are nothing more than a
recitation of the applicant's story, which the Board does not believe, and a
conclusion based on symptoms, which the applicant has told the psychiatrist are
being experienced, then, Boards cannot be faulted for treating such reports
with some degree of scepticism. When they are based on independent and
objective testing by a psychiatrist, then, they deserve more consideration.
(3)
Negative inference drawn from absence of a
summons
[21]
The Board found that the Applicant failed to
provide any persuasive documentary evidence that she is being pursued by the
PSB. It found her allegation that the PSB had attended at her home on eight
occasions and her mother’s home on one occasion, and that the PSB showed her
husband an arrest warrant for her arrest five days after the raid to be
contrary to the documentary evidence. It relied on the documentary evidence
(CHN103401.E) in finding that the issuance of arrest warrants is rare in China,
and that since the PSB would have to provide credible evidence that the
claimant was not going to attend voluntarily in order to obtain a warrant, it
is reasonable to expect that the PSB would have left a summons at the
Applicant’s home in order to obtain this proof.
[22]
I have reviewed the IRB Response to Information
Request CHN103401.E and CHN104188.E (Applicant’s Record, 123-131). These
documents state that the PSB rarely uses warrants, but that the Procuratorate
will issue an arrest warrant after the PSB has investigated the case and has
evidence that the suspect committed the crime. CHN103401.E says that if the
addressee of the summons is absent, the summons may be received on her behalf
by an adult member of her family. It also states that it is possible to obtain
a copy of an arrest warrant or summons later by requesting one from the PSB,
but does not specify whether somebody other than the individual can request and
obtain a copy on the individual’s behalf.
[23]
CHN103401.E states that Chinese authorities do
not always comply with the legislation, that arrest procedures differ from
locale to locale, and that individuals do not always receive a copy of the
summons. Thus, in my view, it would generally not be reasonable to base a
credibility finding solely on the absence of a summons being issued in China, even where the police have attended to look for an individual on 9 occasions, as
they did here. If the police in a given locale do not make use of summonses, it
may not matter how many times they attend to look for the same individual.
[24]
In this case the Applicant claims that the PSB
showed an arrest warrant to her husband, but would not give him a copy when he
asked for one later on. On the one hand, the documentary evidence indicates
that arrest warrants are rarely used, which makes it less likely that an arrest
warrant really was issued and shown to her husband in this case.
[25]
On the other hand, the documentary evidence
indicates that arrest warrants are only issued after the PSB has investigated
the case and has evidence that the suspect committed the crime, which could
have occurred in this case. Further, the country condition documents do not
confirm whether an individual other than the subject of the arrest warrant can
request and obtain a copy of the warrant.
[26]
I find that it was not an error for the Board in
this case to consider the Applicant’s failure to produce a summons or warrant
as one factor in its credibility assessment. It is not, however, a
determinative factor.
(4)
Applicant knew little about how she got to Canada
[27]
The Board found it implausible that the
Applicant did not know details about the smuggler and the trip to Canada, since she testified that they were to be traveling as husband and wife.
[28]
Overall, I find it was reasonable for the Board
to have made these findings with respect to the Applicant’s knowledge about the
smuggler, and her voyage to Canada.
(5)
Testimony that church members were arrested
contrary to documentary evidence
[29]
I am also of the opinion that the Board’s
country condition findings are reasonable in that lay members of small
underground Christian churches are not customarily arrested in Guangdong province, which may not be the same for church leaders. The evidence notes that
residents of Guangdong province enjoy one of the most liberal policies on
religious freedom in China, while some other areas of China are not as fortunate.
[30]
The Board found that if there had been recent
arrests or incidents of persecution of house church Christians with a profile
similar to that of the claimant’s church in Guangdong province, there would be
some documentation of it. I find these conclusions to be reasonable in light of
evidence such as that detailed above.
(6)
General demeanour
[31]
Finally, I have reviewed the transcript, and
agree with the Respondent that there was an overabundance of hesitation when it
came to substantive details. Many times when the
Applicant was asked about these issues, she hesitated and claimed that she was
having memory problems, or issues dealing with her husband's death, rather than
answering the questions.
[32]
Counsel had every right to request an
adjournment if it was all too much for the Applicant. The psychological report,
if nothing else, provided evidence that the Applicant displayed serious anxiety
issues after the death of her husband, as well as other issues arising from her
past experiences
[33]
However, I find that the Board member was
sensitive to the issue, and provided various breaks to the Applicant during the
hearing so that she could compose herself. The Board member also clearly told
the Applicant that she was aware that her husband's death was difficult for her
[34]
In conclusion, while some of the Board’s
findings were in error, I find that the Board’s overall credibility
determination in this case was not outside of the range of defensible outcomes
B.
No genuine fear of sterilization
[35]
Overall, I find the Board’s conclusion that the
Applicant would not be persecuted by Family Planning officials if she returned
to China to be reasonable. Overall the Board’s conclusion did not fall outside
the range of reasonable outcomes. As the Board noted, the objective evidence
did not establish that the Applicant would be sterilized if she returns to Guangdong province. Furthermore, the Board noted that her fear was premature and
speculative at this point, as her husband had just died and it is not known at
this point whether she will become pregnant again
IX.
Conclusions
[36]
This application for judicial review is dismissed.
I find that the Board’s findings regarding the Applicant’s fear of persecution
are reasonable. No questions for certification were raised, and this case does
not raise a serious question of general importance warranting certification.
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