Date: 20060605
Docket: IMM-2826-05
Citation: 2006
FC 695
Ottawa, Ontario,
June 5, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
WAN XING LIU
DE JIE SHEN
JIAN HONG SHEN (a minor)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated April 5, 2005, where the principal applicant was found not to be a
refugee nor a person in need of protection.
ISSUES
[2]
The only
issue before this Court is whether the Board committed a reviewable error in its
assessment of the principal applicant’s credibility.
[3]
For the
following reasons, the present application for judicial review shall be
dismissed.
FACTS
[4]
The
principal applicant, Mrs. Wan Xing Liu, is a citizen of China. She was born on May 1, 1963,
in Guangzhou, in the province of Guangdong.
[5]
She arrived
in Canada on December 15, 2003,
accompanied by her (now) adult daughter, De Jie Shen and her minor son, Jian
Hong Shen.
[6]
The facts
alleged by the principal applicant are summarized in the following paragraphs.
[7]
The
principal applicant began to practice Falun Gong in March of 1999. In July
1999, Falun Gong was outlawed by the Chinese authorities. The principal
applicant continued to practice secretly in a small underground group with five
other persons.
[8]
On October
5, 2003, the principal applicant was arrested by the Chinese police following a
raid on her group’s activities. She was interrogated and beaten during her
detention.
[9]
The
principal applicant was released on October 20, 2003, after she signed an
undertaking where she agreed to do the following:
·
cease to
practice Falun Gong;
·
recognize
that Falun Gong was an illegal cult;
·
not leave
the city of Guangzhou for the next two years;
·
report to
the local police station twice a week.
[10]
The
principal applicant had no intention to cease practicing Falun Gong, and her
defiance of the Chinese government’s policy toward her religion placed her in
danger for the rest of her life if she remained in China. She also feared that her family would
be subjected to reprisals and discrimination because of her religious beliefs.
[11]
She fled China via Hong Kong with her daughter and son,
leaving behind her husband and youngest son because the family was unable to
borrow enough money to smuggle them out of the country.
[12]
After her
arrival in Canada, she learned that the police
had come looking for her after she had failed to report to the police station,
and that they are still actively looking for her.
DECISION UNDER REVIEW
[13]
The Board
rejected the applicants’ claim because it did not find it credible.
[14]
In its
reasons, the Board stated that the principal applicant’s narrative in her
Personal Information File (PIF) bore an “improbable and remarkable” resemblance
to that of six other claimants. Indeed, the Board found that “each narrative,
including the one for this claim, is presented in a format and with content
that is so strikingly similar to the other narratives with respect to [Falun
Gong] that it is truly a “boilerplate” story.
[15]
The Board
even created a comparison chart listing the similarities between the seven
claims, and included it in its reasons. With a few minor variations, these
claims do seem to bear striking similarities.
[16]
The
evidence revealed that the same translator, Mr. Mike Yang, had acted on the
behalf of all seven claimants, and had referred them all to Mr. John Savaglio,
who acted as counsel for the applicants before the Board.
[17]
Mr. Yang
had done more than simply translate the claimants’ statements. He helped
prepare their PIFs by asking them questions, and had a list of prepared
questions for Falun Gong claimants.
[18]
Mr. Yang
testified before the Board, and denied that he manufactured stories for the
claimants. He also stated that he would not assist an economic migrant seeking
to obtain asylum through the refugee protection process. However, he did admit
to providing his clients with feedback regarding his opinion on merits of their
claim.
[19]
While the
Board did not question Mr. Yang’s integrity or credibility, it was not
satisfied with his explanations for the similarities between these seven
claims, nor was it convinced by the applicants’ counsel’s argument that the
similarities were “simply the result of similarly-situated individuals having
been treated in a consistent manner by the Chinese authorities”.
[20]
The Board
noted that the documented evidence of mistreatment of Falun Gong practitioners
by Chinese authorities is composed of many different and individual
experiences, and that they had little to do with “the specifics of the
strikingly similar seven cases”.
[21]
The
principal applicant testified that she had no knowledge of the similarities
between her PIF narrative and those of the six other claimants.
[22]
While the
Board noted that a claimant is presumed to be credible unless there is a reason
to believe otherwise (Maldonado v. Canada (Minister of Citizenship and
Immigration), [1980] 2 F.C. 302 (F.C.A.)), it found that “seven such
similar PIF narratives cannot credibly come independently from seven different
claimants who did not know each other, who have no knowledge of why the PIF
narratives are so similar, who in many cases lived in widely separated Chinese
cities, and who all happen to have employed the same interpreter and counsel”.
The Board drew a negative inference from this fact, and concluded that the
principal applicant’s PIF narrative was insufficiently personal to be credible.
[23]
The Board
also found inconsistencies and implausibilities in the principal applicant’s
oral testimony on the following points:
·
the
timeframe of the restrictions placed upon her by the Chinese authorities;
·
the fact
that her children were not Falun Gong practitioners;
·
her
apparent lack of knowledge of the writings of Li Hongzhi, the founder of Falun
Gong;
·
her
communications with her husband;
·
her
failure to tell the Immigration Officer that she had been arrested and detained
in China;
·
her
demeanour during the hearing was “neither straightforward nor compelling”;
·
her claims
of discriminations or reprisals against her husband and her son who remained in
China were exaggerated in light of
the evidence before the Board.
[24]
The Board
concluded its reasons by stating that it found that the principal applicant had
manufactured her claim, and that it did not believe she was wanted for arrest
by the Chinese authorities.
[25]
In light
of the evidence of the absence of persecution suffered by the principal
applicant’s son who remained in China,
the Board found no reason to determine that his siblings would face persecution
if they returned to China.
STANDARD OF REVIEW
[26]
The
applicants’ claim was dismissed because the board did not find the principal applicant’s
allegations credible.
[27]
It is settled
law that findings of the Board regarding a claimant’s credibility are findings
of fact that are subject to judicial review according to the standard of patent
unreasonableness (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.
247, Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003]
1 S.C.R. 226, Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315 (F.C.A.))
ANALYSIS
Did the Board commit a reviewable error
in its assessment of the principal applicant’s credibility?
[28]
The
applicants submit that while there were similarities in the principal
applicant’s PIF narrative and those in the six other claims, the Board erred in
finding that they were “boilerplate” narratives.
[29]
The
applicants contend that since the Board has not questioned the interpreter’s
integrity or credibility, his testimony provides a reasonable explanation for
the similarity of the other PIF narratives, and that the Board improperly
rejected this testimony.
[30]
The
applicants further urge that the Board erred in dismissing counsel’s argument
that the similarities were “simply the result of similarly-situated individuals
having been treated in a consistent manner by the Chinese authorities”.
[31]
The
applicants also affirm that the Board erred in drawing negative credibility
inferences from the alleged inconsistencies and implausibilities between her
PIF narrative and her oral testimony:
·
while the
undertaking she signed forbade her to leave Guangzhou for two years, it did not mention for
how long she had to report to the police station twice a week;
·
while the
Immigration Officer’s notes may not mention the fact that the principal
applicant had been detained and arrested in China, a form which the applicant had completed
does mention this fact;
·
the fact
that the principal applicant’s children do not practice Falun Gong does not
detract from her own identity as a practitioner;
·
considering
that the applicant only has six years of formal education, it was unreasonable
for the Board to expect her to have read and studied Li Hongzhi’s writings.
[32]
The
applicants also note that the Board made no determination as to the credibility
of the principal applicant’s claim to be a Falun Gong practitioner.
[33]
The
applicants submit that this constitutes a reviewable error, in light of Justice
O’Keefe’s reasons in Chen v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 480, [2002] F.C.J. No. 647 (T.D.) (QL). At paragraph 19, Justice
O’Keefe wrote:
I have reviewed the Board's decision and
I have come to the conclusion that the Board did not make any finding with
respect to whether the applicant was a member of the Falun Gong group. The
Board did not believe the applicant's story with respect to her persecution in China but it did not address whether she was a
member of the group. This finding was necessary in order to determine whether
or not the applicant was a Convention refugee. The decision does not address
the Falun Gong activities in Toronto. This evidence should have
been considered (see Jian Jiang v. M.C.I. 2002 FCT 64; [2002] F.C.J. No.
84 (QL)). It was a reviewable error for the Board not to make this
determination.
[34]
The
respondent submits that no overriding of palpable error has been demonstrated
by the applicants, and that it is insufficient to state that the Board could
have reasonably made other findings.
[35]
The
respondent states that it was open to the Board to consider the fact that six
other PIF narratives presented striking similarities to the principal
applicant’s in assessing her claim’s credibility (Shi v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1088, [2003] F.C.J. No. 1368 (T.D.) (QL)).
[36]
The
respondent contends that the fact that the Board did not question the
translator’s integrity or credibility did not preclude it from drawing a
negative inference from the similarities between the PIFs.
[37]
The
respondent further submits that the adverse credibility inferences the Board
drew from the perceived inconsistencies and implausibilities in the principal
applicant’s testimony (timeframe of restrictions, enrolment of her children in
Falun Gong, lack of knowledge of Li Hongzhi’s writings, failure to tell the
Immigration Officer she had been arrested and detained in China) were not patently unreasonable.
[38]
After
having carefully read the Board’s reasons, I am not of the opinion that its
decision to dismiss the applicants’ claim was patently unreasonable.
[39]
It was
open to the Board to examine the striking similarities between the six other
claims which had been filed through the services of the same translator and
legal counsel, and to draw a negative inference as to the credibility of the
allegations in the principal applicant’s PIF narrative.
[40]
The fact
that the Board did not question the translator’s integrity or credibility does
not bar it from taking a critical view of his explanations for the similarities
between the seven claims.
[41]
This case
is distinguishable from Justice Campbell’s decision in Bao v. Canada (Minister of Citizenship and
Immigration),
2006 FC 301, [2006] F.C.J. No. 411 (T.D.) (QL), in which he wrote at paragraphs
2 and 6:
A unique element of the decision by the
RPD is the comparison of the Applicant’s PIF narrative against the details of
the PIF in six other Falun Gong claims. […]
Given this result, I find that it was
incumbent on the RPD to exclude the unsubstantiated suspicion from the
decision-making process. This the RPD did not do. Indeed, the way the decision
reads, the RPD proceeded to use the unsubstantiated suspicion to find that the
Applicant’s “PIF narrative is insufficiently personal to be credible”. […]
[42]
In the
case at bar, the Board gave “little weight” (page 9 of the decision) to Exhibit
C-6 because of the specifics of the strikingly similar seven cases. It did not
dismiss the applicants’ claim only on the basis of these strikingly
similarities. It found implausibility and inconsistencies in the principal
applicant’s story such as:
·
the length
of time the principal applicant had to report to the police;
·
why the
principal applicant’s children were not Falun Gong practitioners;
·
the
principal applicant’s ignorance of the Falun Gong Master Li Hongzhi’s writings;
·
contradictions
in the written and oral statements made by the principal applicant on her
questioning and beatings by the police;
·
reasons to
take photographs of the principal applicant in Toronto while practicing Falun Gong after the
filing of her claim.
[43]
While the
applicants are correct in pointing out that the Board never made an explicit
finding regarding the credibility of the principal applicant’s claim to be a
Falun Gong practitioner, I do not believe that this amounts to a patently unreasonable
error, as it did in Chen, above.
[44]
In this
case, the Board did analyze evidence of the principal applicant’s attendance of
Falun Gong events in Toronto, but it came to the
conclusion that its probative value was low, since the principal applicant
admitted that the pictures were taken specifically for the purposes of the
hearing, and that anyone could attend this event.
[45]
The Board
also repeatedly mentioned that it was taking the principal applicant’s lack of
formal education into account when considering her apparent lack of knowledge of
the teachings of Li Hongzhi.
[46]
In the
absence of a patently unreasonable error in the Board’s assessment of the
credibility of the principal applicant, I do not think the intervention of this
Court is justified in this case.
[47]
The
parties had the opportunity to raise questions of general importance and
declined to do so. The Court is of the view that in this case, none arises.
JUDGMENT
THIS COURT
ORDERS that the
application for judicial review is dismissed. No question is certified.
“Michel
Beaudry”
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