Date: 20100219
Docket: IMM-5477-08
Citation: 2010 FC 183
Ottawa, Ontario, February 19,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
BO
WU LIN
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 November 20, 2008, wherein the Board determined that the Applicant is
neither a convention refugee nor person in need of protection under sections 96
and 97 of the Immigration and Refugee Protection Act, R.S. 2001, c. 27.
[2]
Based
on the reasons below, the application is dismissed.
I. Background
[3]
The
Applicant is a 29 year-old male citizen of China. According
to the Applicant, he was a member of an illegal underground church in China and had
assisted a friend distribute religious flyers. After the friend was taken away
by Chinese authorities for violating religious regulations, the Applicant
went into hiding. The Applicant claims that twice the authorities came to his
house to arrest him and left a summons for his appearance. The Applicant came
to Canada and made a
refugee claim in February 2007.
[3]
[4]
The
Applicant has been diagnosed as suffering from alopecia totalis, depression and
post-traumatic stress disorder from his persecution in China. The
Applicant states that the depression began around the time he arrived in Canada. The
Applicant’s initial hearing was postponed on a peremptory basis due to his
medical condition and the fact that he was to receive medical assistance. He
had received that assistance by the time of his second hearing. At the second
hearing, the Board found the Applicant to be a vulnerable person and held that
the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before
the Immigration and Refugee Board of Canada (Guideline 8) was applicable.
[5]
In
the decision, the Board found that the Applicant was not credible and that there
was no objective basis for his fear of state persecution in China.
II. Standard
of Review
[6]
The
issues addressed in this matter that do not relate to procedural fairness will
be assessed 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). Issues related to procedural fairness will be assessed on a
correctness standard.
[7]
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.
[8]
The
Court is to demonstrate significant deference to Board decisions with regard to
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).
III. Issues
[9]
The
Applicant claims that the Board ignored, misconstrued or disregarded evidence,
failed to properly apply the definition of convention refugee or a person in
need of protection, and made errors of law in arriving at its decision that the
Applicant is not a convention refugee or person in need of protection.
[10]
Specifically,
the Applicant argues that the Board erred in conducting the hearing despite the
Applicant’s psychological state, that the Board failed to take into
consideration the Applicant’s psychological condition at the time of his
arrival in Canada, and that
the Board assigned the wrong weight to the summons allegedly issued by the
Chinese authorities.
[11]
The
Respondent argues that the Applicant has failed to demonstrate a reviewable error.
A. Conduct
of the Hearing
[12]
The
Applicant claims that at the hearing he found it very difficult to testify and
that he had complained of headaches, nausea and a difficulty concentrating.
[13]
The
Applicant argues that the Board erred in stating that no adjournment was
requested. He argues that the statement should have been qualified as no
adjournment could be requested as the hearing was peremptory.
[14]
While
the Board may not have recognized that a previous hearing had been postponed,
this does not result in the Board having made an error. The Board recognized
the psychological issues facing the Applicant and gave counsel a break to
consult with her client. The Applicant stated that he wished to proceed with
the hearing. There was no procedural error and the Board’s decision was
reasonable.
[15]
The
Applicant also argues that the Board’s statement about the Applicant’s
demeanour being evasive demonstrates the member’s failure to consider the
potential relevance of the Applicant’s psychological condition and its effect
on his mannerisms. As discussed above, the Board is to be given deference in
its credibility assessment. The hearing’s transcript demonstrates that the
Board’s determination of the Applicant’s demeanour was reasonable and that it
considered his psychological condition.
B. Psychological
Condition at the Time of Arrival in Canada
[16]
The
Applicant takes issue with the Board’s evaluation of credibility based on
discrepancies between his initial interview and the hearing. He argues that a
change in his psychological condition and the medication he was taking was
before the Board and that it should have considered these changes.
[17]
The
discrepancies found by the Board were primarily in relation to the Applicant’s
statements of when he became a Catholic and previous applications to come to Canada. The Applicant
argues that the discrepancies are based on the interpretation of Christian
terminology. The Applicant argues that the Board member did not mention
the Applicant’s explanation for the discrepancies and that this was an error.
[18]
As
set out in the reasons, the Board was concerned not only with the discrepancies
between the Applicant’s initial interview and the hearing, but also with the
fact that the Applicant appeared to be able to recall events that had happened
when he came to Canada but not in China. The Board also noted
that the Applicant took long pauses before answering questions.
[19]
The
Applicant argues that there were alternative inferences that could have been
made by the Board. However, this is not sufficient to justify a judicial review
in the case of negative credibility findings. As set out by Justice Judith
Snider in Sinan v. Canada (Minister of Citizenship and Immigration),
2004 FC 87; [2004] F.C.J. No. 188, at paragraphs 10, the fact that an applicant
gives an explanation does not mean that the explanation must be accepted by the
Board and it is open to the Board to consider the response or explanation and
determine whether it is sufficient.
C. Weight
to Be Assigned the Alleged Summons
[20]
The
Applicant provided a summons that he claimed was from the relevant Chinese
authority. In the reasons, the Board noted that there was no further evidence
of the document’s authenticity and that country conditions indicate that
fraudulent documents are widely produced in China. The
Applicant argues that the Board concluded that there must be evidence
supporting authenticity of documents, otherwise a presumption of fraud would
apply.
[21]
As
set out in Camara, above, the Board’s assessment of the evidence is to
be given deference. While there is no presumption of fraud if no further
evidence of a document’s authenticity is produced, the Board is entitled to
rely upon its knowledge regarding the availability of forged documents in a
particular region to question their probative value (see Gasparyan v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1103; 2003 FC
863 at paragraph 7). The onus is on the applicant to justify his claim for
refugee status and provide the appropriate documentation (see Wang v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 911,
2001 FCT 590 at paragraph 21; Gasparyan, above, at paragraph 9).
Therefore, the Board’s decision in this area will be shown deference and
considered reasonable.
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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