Federal Court Decisions

Date: 19971222

Docket: IMM-250-97

BETWEEN:

     MING GUO WANG

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LUTFY J.:

[1]      In my view, the tribunal did not state, in clear and unmistakable terms, whether it accepted the applicant's principal allegation that he was a practising Roman Catholic while in China. Its failure to do so constitutes, in the circumstances of this case, a reviewable error. Accordingly, the determination that the applicant is not a Convention refugee will be set aside.

[2]      The tribunal's reasons begin with its recognition that the applicant demonstrated that he knew the teachings and the liturgy of Roman Catholicism. This finding confirms two or three interventions to the same effect by a panel member during the hearing. A review of the transcript discloses that the applicant provided very detailed answers to questions from the refugee claim officer concerning the liturgy in addition to those from his own counsel. However, the tribunal's negative finding of credibility is made on the basis of the applicant's responses concerning some of his religious activities in China, without addressing the central issue of the truth of his alleged religious faith and practice.

[3]      The first substantive paragraph of the decision states:

The claimant stated that he attends the Mount Carmel church in Toronto and he provided detailed information about his religion which demonstrated that he has knowledge of the teachings and rituals of the Roman Catholic Church. In spite of that, the claimant's testimony about his religious activities in China were [sic] plagued with inconsistencies and implausibilities.

The closing paragraphs of the decision conclude:

In the panel's opinion the claimant does not have a well-founded fear of persecution because of his religion in China. We believe the claimant was not a credible witness and he concocted this story, changing it in order to make it more suitable to support his refugee claim. The panel did not give any weight to the summons which is one of the documents more easily produced to support refugee claims as indicated in the documentary evidence.

In the panel's view the claimant would not face more than a mere possibility of persecution if he returns to China.

[4]      In the other substantive portions of its decision, the tribunal makes its negative findings. It notes the applicant's reference in his personal information form to attending "underground house church" services while, very early in his testimony, he stated that many religious services were conducted in a forest. Before me, counsel for the applicant argued that "underground house church" is a generic phrase to refer to clandestine religious activity without regard as to whether the services themselves are conducted indoors or outdoors. The panel did not believe that one hundred persons would gather for mass early on Sunday without knowing for certain whether a priest could attend. An adverse conclusion was also drawn from the applicant's inability to remember the content of religious pamphlets that he printed and circulated. There was no suggestion that the applicant was the author of these materials. Finally, the panel did not accept the applicant's explanation of an apparent discrepancy between his oral evidence and a previous signed statement which had been typewritten by immigration officials from the interpretation of his responses in Mandarin.

[5]      It was open to this panel to make its negative finding of credibility even though another panel might have reached a different conclusion. However, nowhere in its reasons does the panel state in clear terms whether it believes that the applicant adhered to the Roman Catholic faith while in China. If the panel concluded that the applicant was not an underground practising Roman Catholic as he alleged, it should have so stated. The panel would then have explained why it accepted, both during the hearing and in its decision, the applicant's knowledge of Roman Catholic liturgy and teachings. On the other hand, if the panel believed that the applicant was a practising Roman Catholic, the apparent discrepancies concerning the details of his participation in certain religious activities might have been viewed in a different light. This uncertainty, in my view, requires that this matter be referred to a newly constituted panel for reconsideration. The new panel will also want to consider the issue of persecution related to the applicant's alleged clandestine religious activities.

[6]      For these reasons, the application for judicial review is granted. Neither counsel suggested the certification of a serious question.

    

     Judge

Ottawa, Ontario

December 22, 1997