Date: 20100218
Docket: IMM-3053-09
Citation: 2010 FC 169
Ottawa, Ontario, February 18,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
LING
LAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision (the decision) of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated May 8, 2009, wherein the Board determined that the Applicant is neither a
convention refugee nor a person in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, R.S. 2001, c. 27 (IRPA).
[2]
For
the reasons set out below, the application is dismissed.
I. Background
[3]
The
Applicant is a 41 year-old female Chinese citizen. The Applicant’s refugee
application was based on her claim that she faces persecution in China as a
practicing Christian and member of an illegal house church.
[4]
The
Board refused her claim based on credibility. The Board member drew a negative
inference and credibility finding against the Applicant based on
inconsistencies between her Personal Information Form (PIF), her testimony and
the evidence, and the implausibility of her testimony.
[5]
The
Board cited four examples of where it found the Applicant’s testimony to be not
credible:
A. The
Applicant’s Description of How She Came to be Introduced to the Underground Church
[6]
The
Board found inconsistencies between the information in the Applicant’s PIF and
her oral testimony as she did not state that two people, as opposed to one,
preached to her about Christianity.
B. The
Applicant’s Knowledge of Important Christian Dates
[7]
The
Board drew a negative inference from the Applicant’s response to an Immigration
Officer’s questions regarding important dates in Christianity. The Applicant
had responded that the most important dates for a Christian are Thanksgiving,
after baptismal and December 25. The Board took issue with the fact that she
did not identify Easter and that she provided only a cryptic description of “Thanksgiving”
at the hearing.
C. The
Applicant’s Account of What Transpired on the Day She Learned About the Arrest
of Her Fellow Church Members
[8]
The
Board held that, based on cumulative omissions, implausibility and negative
inferences, the Applicant was not a member of an underground church, that the
church she attended in China was not raided by the Public Security
Bureau (PSB) and that the claimant is not wanted by the PSB.
D. The
Applicant’s Knowledge of the Meaning of Holy Communion
[9]
The
Board drew a negative inference from the Applicant’s alleged inability to
detail the reasons for taking Holy Communion, considering her stated commitment
to Christianity over a period of three years, her baptismal preparation classes,
and her regular attendance at church.
[10]
The
Board determined that the Applicant was not a genuine Christian and had not
satisfied her burden of establishing a claim under section 96 or 97 of IRPA.
II. Issue
and Standard of Review
[11]
The
Applicant raises only one issue in this matter: are the Board’s credibility
findings unreasonable?
[12]
This
question will be reviewed on a standard of reasonableness (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of Citizenship and
Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339; Sun v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1255; [2008] F.C.J. No. 1570).
[13]
As
set out in Dunsmuir, above, and Khosa, above, reasonableness
requires the existence of justification, transparency, and intelligibility in
the decision-making process. It is also concerned with whether the decision
falls within a range of acceptable outcomes that are defensible in respect of
the facts and law.
[14]
The
Court is to demonstrate significant deference to Board decisions with regard to
issues of credibility and the assessment of evidence (see Camara v. Canada
(Minister of Citizenship and Immigration), 2008 FC 362; [2008] F.C.J. No.
442 at paragraph 12). The Board, who has heard the oral testimony, is in the
best position to gauge the credibility or plausibility of a claimant's account
(see, for example, Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315; [1993] F.C.J. No. 732
(F.C.A.), and Sun, above).
[15]
It
is also important to note that the Court ought not to substitute its discretion
for that of the Board, even if the Court might have drawn different inferences
or reached a different conclusion. In other words, it is not sufficient
for the Applicant to demonstrate that different conclusions could have been
reached on the evidence - the Applicant must show that the findings of the
Board are unreasonable (see Sun, above, paragraph 3).
III. Analysis
[16]
The
Applicant argues that the majority of the Board’s adverse credibility findings
are unreasonable. With regard to the specific points identified by the Board, see
above, the Applicant argues:
A. Introduction
to the Church
[17]
It
was unreasonable for the Board to reject the Applicant’s explanation for
inconstancies between her oral evidence and the PIF with regard to how she was
introduced to the church. The Applicant argues that her explanation for
omitting a name from her PIF, that she thought she could add it in later, was
reasonable.
B. Knowledge
of Important Christian Dates
[18]
The
Applicant admits that a challenge to this aspect of the Board’s decision would
be weak.
C. Description
of the Arrests
[19]
The
Applicant argues that the Board appears to fault the Applicant for not having
discussed the detailed security precautions taken by church members in her PIF.
The Applicant continues that the Board did not have enough information about
the surrounding circumstances to come to the conclusion that the Applicant was
describing an implausible deviation.
D. Explanation
of the Holy Communion
[20]
The
Applicant argues, based on the hearing transcript, that she demonstrated no
deficiency in her knowledge of Holy Communion.
[21]
The
Respondent argues that the Applicant was unable to establish that she was a
Christian on a balance of probabilities. It is the Respondent’s position that
even if there were small errors, the decision as a whole is reasonable and the
application should be dismissed.
[22]
In
this case, the Board took a very narrow approach when considering the
appropriate words required to accurately describe the meaning of Holy
Communion. By taking such a narrow approach, the Board erred when it drew a
negative inference from the Applicant’s explanation. The Board’s credibility
findings on the other three points are reasonable.
[23]
The
Court is not to scrutinize isolated sections of a decision but read them as a
whole. In Larue v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 484, 40 A.C.W.S. (3d) 952 (F.C.T.D.) Justice Marc Noël held
that even if some of the findings maybe questionable, the Court should not
interfere with the decision based on evidence that, taken as a whole, could
support a negative assessment of credibility.
[24]
Even
where the Court finds that the Board erred in one of its implausibility
findings, as long as the overall finding of a lack of credibility is not
perverse, capricious or made without regard to the evidence, then the decision
is not so flawed that no amount of deference can justify letting it stand (see Pan
v. Canada (Minister of Citizenship and Immigration), 2007 FC 515, [2007]
F.C.J. No. 697).
[25]
I
also note that credibility finding can be based on implausibility,
contradictions, irrationality and common sense (Sun, above).
[26]
The
Court has found that errors in implausibility and credibility findings by a
Board can result in the decision not being reasonable. In Song v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1321; 76 Imm. L.R. (3d) 81,
Justice James Russell held that it was the cumulative impact of the erroneous
plausibility and credibility findings that was important and rendered the
decision unreasonable.
[27]
In
this case, I find that the error in the Board’s credibility findings based on
point D did not have a cumulative impact that resulted in the decision, taken as
a whole, to be unreasonable. The Board’s overall finding of a lack of
credibility was not so flawed as to render the decision to be outside the range
of acceptable outcomes that are defensible in respect of the facts and law.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is dismissed; and
2.
there
is no order as to costs.
“ D.
G. Near ”
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