WEN HAO WEI Applicant v. THE MINISTER OF CITIZENSHIP AND, 2013 FC 539

Date: 20130524 Docket: IMM-8046-12 Citation: 2013 FC 539 Toronto , Ontario , May 24, 2013 PRESENT: The Honourable Mr.

Justice Campbell BETWEEN: WEN HAO WEI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] The Applicant, a citizen of China, claims refugee protection in Canada as a Christian because of subjective and objective fear that should he be required to return to his home in Tianjin Province he will suffer more than a mere possibility of persecution under s. 96 of the IRPA , or probable risk under s. 97. [ 2 ] While the Refugee Protection Division (RPD) found that the Applicant is a Christian, and wide-scale persecution of Christians exits in China, the Applicant’s claim of prospective risk was rejected on the basis of the following factual finding with respect to objective fear of risk upon return: I have considered all of the documents submitted about the situation for Christians in China, specifically the articles and reports documenting arrests and persecution, I find, on a balance of probabilities, that if there were recent arrests or incidents of persecution of Christians in Tianjin, there would be some documentation of these arrests or incidents of persecution by reliable sources. (Decision, para. 9) [ 3 ] The import that the RPD gave to the factual finding is that, since there is no evidence in the documentation of recent arrests or incidents, there have been no recent arrests or incidents.

However, the finding is inconveniently in direct conflict with the Applicant’s evidence that the event which caused him to flee China and claim protection in Canada was the Public Security Bureau’s raid on the church gathering he attended on January 10, 2010. The RPD dealt with this evidence in the following manner : The panel has carefully reviewed the documentary evidence and finds, on a balance of probabilities, that the house church the claimant

attended was never raided by the authorities and consequently, the claimant is not wanted by the PSB for that reason. In assessing thedocumentary evidence, the panel has been guided by the Federal Court decisions in Yu, and Li. As has been discussed, the supportingdocumentary evidence for the claimant’s home area of Tianjin indicates that the risk of persecution for practicing Christians is low. [Emphasis added] (Decision, para. 14) Thus, the RPD found that the Applicant was lying about the event that brought him to Canada because it is in conflict with the factualfinding.

In my opinion, this reasoning is fundamentally flawed. [4] The Applicant’s evidence is presumed to be true unless there are reasons to doubt its truthfulness (Maldonado v. M.E.I., (FCA), [1980] 2 F.C. 302 (C.A.), p. 305) and the quality of the decision-making in reaching a credibility finding mustbe high: In my view, the board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakableterms. The board's credibility assessment, quoted supra, is defective because it is couched in vague and general terms (Hilo v.

Canada(Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199 (C.A.), para. 6). [Emphasis added] [5] In my opinion, the factual finding is speculative: there is no direct evidence on the record to establish and verify its truth.Rather than use a speculation to discredit the Applicant, the RPD was required to apply a proper analysis of the evidence according tothe standards stated in Maldonado and Hilo.

The reason this was important to accomplish is succinctly stated by Justice Russell in Lin v.Canada (Minister of Citizenship & Immigration), 2012 FC 157 at paragraph 59: The Applicant’s narrative of arrest and detention was highly material to his claim for protection. If it is believable, then it brings intodoubt the RPD’s analysis that there is no evidence of the arrest and persecution of Christians in Fujian to support a positivedetermination under

section 96. Alternatively, it could show a forward looking risk of harm under

section 97. [6] I find that the RPD’s failure to determine the Applicant’s credibility according to law renders the decision unreasonable. ORDER THIS COURT ORDERS that the decision under review is set aside and the matter is referred back for redetermination by a differentlyconstituted panel. There is no question to certify. “Douglas R. Campbell” Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-8046-12 STYLE OF CAUSE: WEN HAO WEI V THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: MAY 22, 2013 REASONS FOR ORDER AND ORDER BY: CAMPBELL J. DATED: MAY 24, 2013 APPEARANCES : Jayson Thomas FOR THE APPLICANT Rachel Hepburn-Craig FOR THE RESPONDENT SOLICITORS OF RECORD : Levine Associates Toronto , Ontario FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT