Docket: IMM-3769-11
Citation: 2012 FC 40
Ottawa, Ontario, January 16, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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DAI, JUNGSHENG
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks an order setting aside the May 2, 2011 decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board), which found him to be
neither a Convention (Convention United Nations’ Convention Relating
to the Status of Refugees, [1969] Can TS No 6) refugee nor a person in need
of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA). For the reasons that follow the
application for judicial review is dismissed.
Facts
[2]
The
applicant is from Putian, Fujian Province in the Peoples’ Republic of China (China). Before the Board the
applicant testified that he joined an underground church in August 2003. The
applicant’s cousin introduced him to Christianity because of a pain the
applicant was suffering in his foot that physicians could not alleviate. The
applicant testified that he was baptized in the church in March 2004. In
December 2005 the applicant moved to Ecuador to work in his uncle’s store. The applicant
claimed that he attended church in Ecuador and that he mailed Christian study materials to
his cousin in China. In July 2007 the
applicant came to Canada. The applicant claimed
that on July 24, 2008 his mother informed him that the underground church which
he attended had been raided by the Public Security Bureau (PSB). The
applicant’s mother told him that the PSB had left a summons for him and that his
cousin had been arrested. Apparently the PSB returned several times searching for
the applicant.
[3]
On
August 6, 2008 the applicant made a claim for refugee protection. On May 2,
2011 the applicant’s claim was refused by the Board. Summarizing the basis for
refusing the claim the Board found as follows:
Given
that the claimant has been found not to be a genuine practicing Christian in
China or in Canada; given that the claimant’s allegation of being a wanted
person by the PSB was found not to be credible; given the totality of the
documentary evidence which provides limited persuasive evidence that members of
unregistered churches face a serious possibility of persecution in Fujian
Province; the panel finds, based on the balance of probabilities, that the
claimant would not face a serious possibility of persecution should he return
to Fujian to practice his religion as he sees fit. For the same reasons, the
panel finds that the claimant would not be personally subject to a risk to
life, or a risk of cruel or unusual treatment or punishment, or a danger, believed
on substantial grounds to exist, of torture should he return to Fujian
Province.
Issue
[4]
The
key issue in this case poses a mixed question of fact and law and attracts a
reasonableness standard of review: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190.
[5]
The
applicant challenges the Board’s credibility findings; namely, that he was not
a genuine practicing Christian in China or in Canada, and alternatively, that
he would not face a serious possibility of persecution should he return to
Fujian to practice his religion, and that he was advancing a fraudulent refugee
claim.
Analysis
[6]
I
find the applicant’s allegations of the Board’s errors have no merit. I also
do not find the decision unreasonable, nor do I find that the decision fails to
demonstrate justification, transparency and intelligibility within the
decision-making process.
[7]
The
Board found that “…the claimant has failed to provide sufficient credible or
trustworthy evidence in support of his claim that he was wanted by the PSB in China.” The Board noted that
the applicant threw away the envelopes in which documents sent to him by his
mother were contained, noting that “it is unreasonable that the claimant would
throw away evidence which could confirm that his documents came from China
given that he had the assistance of counsel before he submitted his refugee
claim and it would be reasonable for him to have been told to keep all
evidence.” As a result the Board found that it could not place weight on the
summons the applicant provided, particularly in light of a Response to
Information Request (RIR)
which indicated that fraudulent documents including summonses were readily
available on the black market.
[8]
The
Board also noted that the applicant’s mother mailed the summons and other documents
to the applicant from China to Canada when the applicant and his mother knew that Chinese
authorities screen and censor mail. The Board found:
…
implausible that the claimant would risk himself and risk all of the documents
in support of his identity and his claim by having the documents mailed to him
under his name. The claimant was aware of threats against his family and
police interest in him….Given the government’s practice of monitoring mail, the
panel finds that receiving mail under his own name from China undermined the
claimant’s allegations that he was a wanted person in China.
[9]
In
oral argument the applicant contended that the finding was unreasonable given
his testimony that his mother had mailed the summons to him within a book. I
find that this additional fact adds nothing to alter the reasonableness of the
Board’s finding. The credibility finding is made in respect of the
plausibility of the applicant’s mother sending him the summons, not with the
form of the mailing. The finding is also predicated on the authenticity of the
summons. In this regard, the Board also found that it could not place much
weight on the summons considering the fact that the applicant only received it
after being in Canada without status for
nearly a year and after he had left China some five years earlier.
[10]
The
applicant provided three inconsistent explanations to the Board as to when he
was required to report to the PSB based on the summons issued to him. Because
of the inconsistent explanations the Board gave little weight to the
applicant’s testimony.
[11]
The
applicant also argues that the Board’s finding that his inconsistent testimony
about when to report based on the summons is contradicted by evidence in the RIR
which the applicant submitted and the Board relied on in making its findings.
The Board found:
The
latest documentary evidence on summonses in Fujian
indicates that the person being summoned needs to be at the designated place
within 12 hours after he receives it. The claimant’s summons was issued on July
26, 2008 and indicates that the claimant should report two days later on July
28, 2008. This does not conform to the documentary evidence. The panel
considered counsel’s submission that there is unequal application of rules and
regulations throughout China. While this information was included in
a previous RIR dated June 2004, the RIR the panel quoted which was issued in
July of 2010 does not mention that authorities in Fujian do not follow the commonly used policy.
[12]
In
making such a finding, the applicant argues that the Board failed to consider
the following passage from the very documentation the Board had cited in
reaching its decision:
In
21 June 2010 follow-up correspondence, the same Official indicated that due to
“wide administrative discretion throughout the country”, there are
discrepancies between legislation and its implementation in China (Canada 21 June 2010). The Official noted that “in some instances
the individual may not receive a copy of the summons without specifically
asking for it, or if the individual accompanies the PSB officers upon receiving
a summons, he may not receive a copy afterwards” (ibid.).
[13]
This
does nothing to cure the credibility findings of the applicant. The Board’s
findings with respect to the applicant’s credibility are not superseded by the
Board’s failure to rely on this passage. Stated another way, the credibility problems
lie with the applicant, not the RIR documentation.
[14]
The
Board also drew negative credibility inferences from that fact and found that
“it was implausible that the claimant risk his cousin’s safety in order to send
her church documents from Ecuador. Furthermore […] the omission of the fact that the
documents were in Spanish and had to be translated into Chinese from his PIF
undermined the credibility of this allegation.” These were reasonable factors
upon which the Board could base its findings of credibility.
[15]
There
was additional evidence in the decision which supported the reasonableness of
the determination on credibility. It was highly implausible for the applicant
to have lived in a community and worshipped at a church for two years without
at least knowing the name of the congregation. While it would have perhaps
been unreasonable to have expected the applicant to learn Spanish, it is not
unreasonable for the Board to have expected him to have at least known the name
of the church he attended while he lived in Ecuador and, presumably, would have at least been
curious about what was being said in the church services.
[16]
The
applicant also testified that he stopped attending English language school in Canada because he could not
afford the fees. The applicant also claimed that he could not afford school
materials. The Board also noted that the applicant could not reconcile these
claims with the fact that all of his tuition, including accommodation and
school materials had been pre-paid in full. His attendance in the class was
well below 70%. The applicant ultimately stopped attending altogether. The
Board found that the applicant did not demonstrate a bona fide intent to
enter Canada for the purposes of
studying English. This was a conclusion open to the Board on the evidence.
[17]
When
the applicant’s student visa expired in January, 2008 he remained in Canada without status. He
claimed that this father, who remained in China, needed money so he remained in Canada to work. No effort was
made by the applicant to return to China. The Board found that “the claimant remained
in Canada between January and
July of 2008 (when he made his claim) for reasons other than a fear of Chinese
authorities. This undermined the claimant’s subjective fear as well as his
overall credibility.” This is not an unreasonable finding; even in light of
the applicant’s claim that he only became aware of the church raid in July 2008
and therefore may not have had reason, initially, to fear persecution by the
PSB.
[18]
The
applicant also faults the Board for not considering a post-hearing decision by
the Australian refugee tribunal. The Board is under no duty to follow or to be
persuaded by decisions in a foreign jurisdiction regardless of their shared
legal history.
[19]
The
Board also found that the applicant began attending church in Canada in
November 2007, well after his arrival in Canada, and that his motivation for attending “was to
establish the foundation for a non-genuine refugee claim.” The Board also
found that while the applicant had been baptized and had some Christian
knowledge, any knowledge was gained only for the purposes of supporting a
fraudulent refugee claim. In light of this finding, any error in the Board’s
analysis of the risk of persecution in China need not be addressed.
[20]
The
application for judicial review is therefore dismissed.
[21]
There
is no question for certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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