Date: 20120417
Docket: IMM-5601-11
Citation: 2012 FC 440
Ottawa, Ontario, April 17,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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GUIKUN LIU
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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, Guikun Liu, seeks judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
July 28, 2011. The Board determined that he was not a Convention refugee or
person in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, the application is dismissed.
I. Facts
[3]
The
Applicant is a citizen of China. He arrived in Canada on November
30, 2008. He filed a refugee claim based on his alleged involvement with
underground Christian churches. He claimed his sister convinced him to attend
her church in Fujian province in
2003 before it was discovered by the government and she was forced to leave in
2004. He also asserted that he was introduced to another church in January
2008 and detained for this activity.
II. Decision under Review
[4]
The
Board identified inconsistencies as to the location of the Applicant’s alleged
arrest and number of those arrested with him. His explanations for these
inconsistencies were not considered “reasonable or persuasive.” The Board
questioned, based on specialized knowledge, why his sister’s experience did not
become an issue during his arrest and detention. He neglected to mention his
sister’s problems with the government in his Declaration. The Board also drew
a negative inference from the omission of information in his Personal
Information Form (PIF) that the Public Security Bureau (PSB) went to his
home to re-arrest him after he left China and his inability to
remember the number of times his mother told him that they had come to his home
to look for him. According to the Board, it was reasonable to expect that an
arrest warrant or summons would have been left with his family.
[5]
The
Board summarized its assessment as follows:
On the basis of cumulative and
important concerns noted above, I conclude that I have insufficient
credible or persuasive evidence to demonstrate that the claimant was ever a
member of an underground house church in China or was ever detained or sought
by the authorities in that country. I find, on a balance of probabilities that
he was not a genuine Christian in China,
and that he was not a credible witness.
[6]
Since
the Board was not persuaded that the Applicant was a genuine Christian, it also
found, on a balance of probabilities, that the Applicant participated in
Christian activities in Toronto to substantiate a manufactured claim to be a
Convention refugee.
[7]
The
Board considered the documentary evidence that while persecution occurs with
Christian house churches, based on factors such as links with the West or if an
individual is a church leader; it is not general in nature. The Applicant
could “return to his home in Fujian province and practice his alleged faith freely
and openly.”
III. Issues
[8]
The
issues raised by this application can be addressed as follows:
(a) Did the Board err in its
assessment of the Applicant’s credibility?
(b) Did the Board err in its
analysis of the Applicant’s sur place claim?
(c) Did the Board err in its consideration
of documentary evidence?
IV. Standard
of Review
[9]
All
of these issues necessitate the reasonableness standard of review (see for example
Aguirre v Canada (Minister of Citizenship and Immigration), 2008 FC
571, [2008] FCJ no 732 at paras 13-14; Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 SCR 339 at para 46).
[10]
Reasonableness
is concerned with “the existence of justification, transparency and
intelligibility” as well as whether the decision “falls within a range of
possible, acceptable outcomes defensible in respect of the facts and law” (Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 SCR 190 at para 47)
V. Analysis
A. Credibility
[11]
The
Applicant asserts that the Board conducted a microscopic analysis of his arrest
and unreasonably drew adverse inferences from inconsistencies. In particular,
he amended his PIF to reflect that he was arrested on his way home from church
as opposed to while he was attending the service. His explanation for doing so
was that he initially relied on his own definition of what constituted the
“service.” According to the Applicant, the Board should also have considered
his statement at the Port of Entry (POE) referring to other individuals who
were arrested with him before focusing on an omission in his PIF.
[12]
The
Respondent maintains that the Board was entitled to rely on these
inconsistencies and omissions in reaching negative conclusions regarding the
Applicant’s credibility and rejecting major elements of his story. I agree.
[13]
The
nature of the alleged arrest was a critical component of the claim made by the
Applicant that government authorities would target him for his religious
beliefs. This Court has accepted that a PIF amendment will not always address
credibility concerns (Aragon v Canada (Minister of
Citizenship and Immigration), 2008 FC 144, [2008] FCJ no 173 at para
19). The Board expressly referred to the Applicant’s explanation that he
considered making his way home from service part of church activities, but
found it was inadequate, stating “[o]ne is either at service or not.” Having
considered the explanation, it was reasonably open to the Board to doubt
whether the arrest occurred based in part on the inconsistency and related
amendment.
[14]
Similarly,
it is well established that the Board can rely on inconsistencies,
contradictions or omissions in statements at the POE, in the PIF and oral
testimony to assess credibility as in this case (see for example Eustace v
Canada (Minister of Citizenship and Immigration), 2005 FC 1553, [2005] FCJ
no 1929 at para 6). While the POE suggested that others were arrested with the
Applicant and this was alluded to later in oral testimony, the PIF failed to do
so. The Board reasonably considered that this omission was significant as it
dealt with the nature of the arrest and government interest in their church. The
failure to include these details in the PIF led to further uncertainty as to
the credibility of his story.
[15]
In
addition, the Applicant contends the Board engaged in speculation when finding
that he was lying about an interrogation by the PSB since testimony suggested
he was not questioned as to his sister’s religious activities. He also takes
issue with the relevancy of the documentation referred to by the Board in this
portion of its reasons.
[16]
I
cannot accept the characterization of the Board’s analysis on this issue as
speculative as it was based on specialized knowledge. Section 170(i) of the
IRPA enables the Board to rely on this type of knowledge.
[17]
As
the Respondent highlights, the Board expressly put this issue to the Applicant
during the hearing giving him the opportunity to address it. This is
consistent with the notice required in relying on specialized knowledge as
described in Liu v Canada (Minister of
Citizenship and Immigration), 2007 FC 595, [2007] FCJ no 807 at paras
9-10.
[18]
I
also fail to see how the Board’s findings are at odds with the discussion from Mahmood v Canada (Minister of
Citizenship and Immigration), 2005 FC 1526, [2005] FCJ no 1883 at para
16 as cited by the Applicant. The case merely reiterates that credibility and
implausibility findings must clearly identify the facts serving as the basis for
a negative conclusion. The Board met that requirement in the present case by
specifying, in light of the Applicant’s testimony, it was relying on
specialized knowledge that the PSB would normally engage in further questioning
on his family background.
[19]
The
Board’s findings in this regard were also supported by a brief reference to
documentary evidence. Although mentioning Falun Gong Practitioners as opposed
to Chinese Christian churches, it provided some indication of the methods
employed by the PSB in addressing religious groups. In combination with the
Board’s reliance on specialized knowledge, the approach was justifiable.
[20]
Regarding
the Board’s negative conclusions from a lack of summons left with his family,
the Applicant once again suggests that the approach is speculative and fails to
acknowledge contradictory evidence that there is disrespect for the rule of law
in China.
[21]
I
am nonetheless convinced that the Board gave sufficient consideration to
contradictory evidence. Indeed, it expressly acknowledged the mixed nature of
the evidence before it. The Board was entitled to weigh that evidence and
conclude as it did that it is reasonable to expect a summons to have been left
with the Applicant’s family.
[22]
In
general, the Board provided clear reasons for its negative credibility findings
in this case. It also stressed that the conclusions reached were based on the
“cumulative and important concerns raised” in assessing the Applicant’s
evidence. For these reasons, I must find the Board’s approach within the range
of possible, acceptable outcomes.
[23]
As
the Supreme Court recently confirmed in Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708 at para 16, “if the reasons allow the reviewing court to understand why
the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.”
B. Sur
Place Claim
[24]
I
also have difficulty accepting the Applicant’s position that the Board allowed
its conclusions as to the credibility of his religious identity on arrival to
taint a distinct assessment on the central issue of the Applicant as a genuine
Christian at the time of the hearing.
[25]
The
Board turned its mind to this issue and the relevant evidence. Since it was
convinced that the Applicant was not a genuine Christian, however, the Board
attached little weight to photographs and documents from the church in Toronto. The
Applicant was seen as participating in these activities and obtaining the
documents to bolster his claim. As the Board reasonably concluded “they alone
do not corroborate that the claimant actually is or ever was a genuine
Christian.”
[26]
The
Applicant relies on the conclusion of Justice James O’Reilly in Huang v Canada (Minister of
Citizenship and Immigration), 2008 FC 132, [2008] FCJ no 164 at para 8.
In that case, the Board was faulted for not making a definitive finding that
the applicant was not a genuine Christian. It had “failed to consider whether
Mr. Huang might encounter religious persecution if sent back to China, whether or
not he had previously been a member of an underground church.” However, that
is not what occurred in this instance. The Board proceeded to conduct an
analysis of documentary evidence related to persecution in Fujian province as
considered below.
C. Documentary
Evidence
[27]
The
Applicant argues that the Board was selective in its treatment of the
documentary evidence and points to what would be considered contradictory passages
ignored in the reasons.
[28]
I
consider the Board’s detailed assessment of this evidence reasonable in the
circumstances. It weighed the evidence to find that although incidents of
persecution occur based on various factors, it is not general in nature. For
example, it was suggested that the Applicant could openly practice the faith in
Fujian province as
documentation indicated that Christian groups no longer operate in secrecy. The
Applicant’s arguments amount to a disagreement with the Board’s weighing of
this evidence, an issue which is not a basis for this Court’s intervention.
[29]
I
must stress that the Board is presumed to have considered all of the evidence
before it unless the contrary is shown (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ no 598 (CA)). There is no requirement
to specifically mention every piece of documentary evidence (Hassan v Canada (Minister of
Employment and Immigration) (1992), 147 NR 317, [1992] FCJ no 946
(CA). The weighing of evidence must simply reflect justification, transparency
and intelligibility.
VI. Conclusion
[30]
The
Board was reasonable in its assessments of credibility, the sur place
claim and documentary evidence. As a consequence, I must dismiss this application
for judicial review.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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