Date: 20051214
Docket: IMM-327-05
Citation: 2005 FC 1686
OTTAWA, Ontario, this 14th day of December, 2005
PRESENT: THE HONOURABLE PAUL U.C. ROULEAU
BETWEEN:
XIU XING GAN
WAN LAN SHEN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated December 20, 2004, in which the Board found that the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27 (the IRPA). The Board found that the primary applicant, Xiu Xing Gan, lacked credibility and denied her claim for refugee status. The applicant Wan Lan Shen is the daughter of the primary applicant and her claim is based on that of her mother; since the principal applicant's claim was denied, her daughter's dependant claim was also denied.
[2] The principal applicant (the "PA"), Xiu Xing Gan, is a 48 year old citizen of the Peoples Republic of China ("China"). Her 16 year old daughter, Wan Lan Shen, is also a citizen of China. The applicants claim refugee protection on religious grounds, as they fear persecution at the hands of Chinese authorities. The applicants claim that they belong to an illicit, underground church in China.
[3] The applicants allege that, in January 2004, they attended a Christian meeting at an illegal church. In May of 2004, while attending at the church, the applicants claim that a representative of the Public Security Bureau (the "PSB") was seen approaching the illegal church. The applicants fled and went to the home of a friend.
[4] The PA alleges that, when she called her husband from the home of her friend, he informed her that the PSB had been to their home looking for her and accusing her of participation in illegal religious activities.
[5] The PA alleges that she remained in hiding, with her daughter, until she escaped from China to Canada on June 16, 2004. Since arriving, the PA claims that her husband has informed her of the detention of two of her fellow church members by the PSB.
[6] The PA's testimony was found to lack credibility and the Board rejected her claim due to her impugned credibility.
[7] The Board noted that the testimony of the PA's daughter was relatively straight forward, with the exception of one major point, to wit the period which the applicants were in hiding. At first, the PA's daughter testified that the applicants were in hiding for about half a month; she then changed her testimony to "close to a month". According to the PA's Personal Information Form (PIF) which is relied upon by her daughter, the time they spent in hiding was approximately six weeks. The Board drew a negative credibility inference from the inconsistency in the PA's daughter's testimony.
[8] With respect to the PA's testimony, the Board found that the story was quite implausible. The Board did note that the Refugee Protection Officer and the applicant's counsel both made submissions with respect to the PA's lack of sophistication. The Board referred to the submissions, but finds that the implausibility of the PA's testimony outweighs her lack of sophistication as a consideration for the claim.
[9] With respect to credibility, the Board made a number of findings. First, the Board noted that it is implausible that the owners of the home being used as the illegal church were not arrested. The PA testified that two church members had subsequently been arrested by the PSB; but the two members were not the owners of the home which served as the illegal church; the failure to arrest the home owners was implausible and drew a negative inference against the applicant's credibility.
[10] Second, the Board found it implausible that only two people were arrested, given that the PSB was able to obtain the applicants' home address and met with her husband within a number of hours of the alleged raid at the illegal church.
[11] Third, the Board concluded that the applicants' travel being directly from the illegal church to the home of a friend (40km away) was also implausible. The Board found that the applicants were not seen by the PSB; their evidence being that after a warning from a neighbour they fled through the backdoor. Yet, the PA testified that she could not return home as her and her daughter would be found and arrested. The Board found that the allegation that the applicants went into hiding, were not seen at the raid and were being pursued, was implausible and further impugned the PA's credibility.
[12] Fourth, the PA was confronted with the question of why the PSB was not seeking to apprehend her husband. The PA replied that her husband had only attended the illegal church twice. The Board found the explanation inconsistent with the PA's testimony that all the people involved with the church were sought and concluded that the PA was not a credible witness.
[13] The Board concluded that, on the balance of probabilities, the applicants' story was fabricated solely for the purpose of making a refugee claim in Canada; that the applicants lacked the subjective fear required for a successful refugee claim, and determined that the applicants are not Convention refugees or persons in need of protection.
[14] The applicants submit a number of issues, but the basic consideration is whether the Board's decision is reasonable. This Court will focus on whether the decision was made in a perverse and capricious manner, without due regard to the evidence before the Board.
[15] The applicants put forth two main arguments: 1) the Board failed to take into account the low level of sophistication of the PA, which was attested to by the RPO as well as by the applicants' counsel; and 2) the Board failed to take into account the testimony of the PA's daughter.
[16] The applicants argue that, when dealing with a person of low sophistication such as the PA, the Board should expect that the responses given would not always be consistent or correct.
[17] With respect to the PA's daughter, the applicants submit that the daughter's testimony was spontaneous, direct, and believable, and would lead a person to believe that the daughter did practice Christianity in China. The applicants claim that the Board completely ignored the persuasive elements of the daughter's testimony and focused solely on one point of confusion.
[18] The applicants submit that the Board misconstrued the evidence entirely; they claim that the Board did not give the evidence before it sufficient consideration and drew unreasonable conclusions on the applicants' claim.
[19] I am of the opinion that the arguments raised by the applicants are merely an attempt to have the evidence re-weighed by this Court. As Snider J. noted in Singh v. Canada(Minister of Citizenship and Immigration) 2003 FC 1146, disagreement with the manner in which the Board weighed the evidence is not a ground for judicial review. The only time the evidence will be assessed by this Court is when a negative credibility finding is made in a perverse and capricious manner, without regard to the relevant evidence before it.
[20] The Board's decision was reasonable, as Martineau J. noted the following with respect to credibility and subjective fear in R.K.L. v. Canada(Minister of Citizenship and Immigration) [2003] F.C.J. No. 162, at paras 7-8:
¶ 7 The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.
¶ 8 Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it: see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act.
[21] The Board did take into consideration the alleged lack of sophistication of the PA as well as the relative straightforwardness of the PA's daughter's testimony, which are the two main factors that the applicants allege the Board ignored. To the contrary, the Board expressly considered the lack of sophistication (p. 2 of the Decision) and the "reasonably straightforward" testimony of the PA's daughter (p. 3 of the Decision).
[22] This application for judicial review is merely an attempt to have this Court re-weigh the evidence that was considered by the Board. The Board's assessment of the evidence was reasonable, particularly with respect to the inconsistencies regarding the PA's husband's participation in the alleged illegal church.
[23] With respect to the submission regarding the veracity of the PA's daughter's testimony, I must point out that the Board also found a major inconsistency in the daughter's testimony. In addition, the PA's daughter relies on the PA's claim for refugee status; in relying on the PA's claim, she also relies on the PA's testimony. I would conclude that the Board's findings regarding the inconsistencies in the PA's daughter's testimony was reasonable, considering the lack of credibility in the PA's testimony, whose claim the daughter relied upon.
[24] As Martineau J. noted in RKL, supra, this Court will not substitute its decision for that of the Board, when the Board's decision is reasonable. The Board's decision was reasonable.
JUDGMENT
The application for judicial review is dismissed.
"Paul U.C. Rouleau"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-327-05
STYLE OF CAUSE: XIU XING GAN, WAN LAN SHEN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 29, 2005
REASONS FOR JUDGMENT: ROULEAU D.J.
DATED: December 14, 2005
APPEARANCES:
| Mr. Marvin Moses
|
FOR THE APPLICANTS
|
| Mr. Lunney
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| Marvin Moses Law Office
Toronto, Ontario
|
FOR THE APPLICANTS
|
| John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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