Docket: IMM-6063-11
Citation: 2012 FC 452
Ottawa, Ontario, April 18,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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JING ZHAI
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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, Jing Zhai, seeks to set aside a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) rendered orally on
July 20, 2011 with written reasons following on August 10, 2011. The Board
found she was neither a Convention refugee nor 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 reasons set out below, the application is dismissed.
I. Facts
[3]
The
Applicant is a citizen of China. She filed a refugee claim based on her
fear of persecution as a practitioner of Falun Gong.
[4]
She
initially came to Canada as a student at the University of Guelph on August
25, 2009. In her transition to the country, she fell into depression and
developed physical and mental symptoms, such as anxiety. She claims that a
friend suggested trying Falun Gong to deal with these issues in September 2009.
[5]
She
sent materials to her mother back in China regarding Falun Gong. When
police searched the home following an unrelated incident, she alleges they
found these materials. On May 4, 2009, the Applicant alleged
receiving an email from a relative claiming that the Public Security Bureau
(PSB) was looking for her.
II. Decision under Review
[6]
The
Board’s assessment focused on credibility. Considering that the Applicant
demonstrated little knowledge of business education, the Board concluded, on a
balance of probabilities, that she did not possess any diploma in business studies
from an advanced program in China and her application for a study permit on
that basis was obtained through fraudulent misrepresentation.
[7]
The
Board noted that the Applicant was not aware of the entry requirements for the
MBA program at the University of Guelph that she claimed she
wanted to pursue following her language training. It rejected that she would
not make inquiries in this regard or that she left all of these arrangements to
an agent. As a consequence, the Board found that she never had any real
intention of pursuing anything more than English as a Second Language courses.
[8]
It
was considered implausible for the Applicant to seek out Falun Gong as opposed
to western medicine when she knew it was dangerous to do so in China. The Board
emphasized that the friend she claimed introduced her to Falun Gong had not
provided any corroborating reference letters. The Board was similarly puzzled
by information that she practiced Falun Gong in Toronto as opposed to Guelph. It was
also implausible that she would put her family at risk by sending Falun Gong
materials that could lead to problems, irrespective of her mother’s health
difficulties.
[9]
The
Board gave little or no weight to the Applicant’s documentation and determined
there was “no credible and trustworthy evidence” put forth to advance her
claim. The Board simply did not believe the Applicant was being sought by the
PSB. It concluded:
[39] For all the foregoing reasons, based
upon my analysis I find the claimant was never a genuine student in this
country except in pursuing the ESL courses she had prepaid before coming here.
She never, on a balance of probabilities, had any real or genuine intention of
pursuing graduate management studies at an MBA level, and her student visa was
obtained substantially to enter this country on any available basis.
[40] I lack credible or trustworthy
evidence that she was ever a genuine Falun Gong practitioner. I do not believe
that she would necessarily practice any Falun Gong were she to return to China today. On a balance of probabilities I
find that the claimant has participated in Falun Gong activities in this
country in order to substantiate a manufactured claim to be a Convention
refugee. […]
III. Issues
[10]
The
Applicant raises the following issues:
(a) Did the Board err in its
assessment of the Applicant’s credibility?
(b) Did
the Board err by failing to address whether the Applicant was a genuine Falun
Gong practitioner?
IV. Standard of Review
[11]
Questions
of fact and credibility are reviewed according to the reasonableness standard
(see Aguirre v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at para
14).
[12]
Applying
this standard, the Court will only intervene where the decision fails to
demonstrate the existence of justification, transparency and intelligibility
and falls outside the range of possible, acceptable outcomes (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[13]
The
Applicant contests the Board’s negative credibility findings as based on
details that do not go to the heart of her claim. In particular, the Board
focused on the Applicant’s education and unsatisfactory answers regarding her
courses. According to the Applicant, it was unreasonable to expect that she
would answer questions as to course content in detail and to compare Canadian
and Chinese educational systems. It was also understandable that since the
Applicant did not speak English she would rely on an agent.
[14]
I
am not persuaded, however, that this Court should interfere on that basis with
the Board’s credibility findings, an area in which it is entitled to
significant deference. Although the Board conducted a rather probing
examination of the Applicant’s educational background and plans, it was
reasonable to expect that she would be able to provide at least some further
details and make negative credibility findings from her failure to do so. I
note that these findings can be established on “implausibilities,
contradictions, irrationality and common sense” (see Mubiayi v Canada (Minister of
Citizenship and Immigration), 2008 FC 562, [2008] FCJ no 719 at paras
21; Shahamati v Canada (Minister of
Employment and Immigration), [1994] FCJ no 415 (CA)).
[15]
The
Applicant’s arguments amount to a disagreement with the Board’s assessment of
her situation and conclusion. In this respect, the Court cannot assist the
Applicant.
[16]
The
Board’s focus on the Applicant’s educational background and plans may initially
seem to distract from the overall claim. In this context, however, it was
justifiable for the Board to place emphasis on this issue as it was part of the
series of events that led the Applicant to come to Canada and claim
refugee status based on the practice of Falun Gong. The Board’s overall
assessment was that the Applicant sought any basis to enter the country and
participated in Falun Gong “to substantiate a manufactured claim to be a
Convention refugee.”
[17]
Moreover,
this Court has previously accepted general lack of credibility findings based
on discrepancies not directly related to a central aspect of a claim (see for
example Manoharan v Canada (Minister of Citizenship and Immigration),
2003 FC 871, [2003] FCJ no 1125 at para 14; Qasem v Canada (Minister of
Citizenship and Immigration), 2002 FCT 1182, [2002] FCJ no 1618 at para 48;
Feng v Canada (Minister of Citizenship and Immigration), 2010 FC 476,
[2010] FCJ no 556 at para 13).
[18]
The
Applicant also takes issue with the Board’s findings related to her
participation in Falun Gong. According to the Applicant, it was unreasonable
for the Board to imply that she would have sought western medical services
before turning to Falun Gong when she explained she felt more comfortable with
traditional Chinese medicine. Similarly, the Board rejected her explanation
that she thought it would be safe to send materials to China based on
assurances from a Canada Post employee. Any discrepancy in practicing Falun
Gong in Toronto as opposed to Guelph did not represent a significant omission,
particularly since the friend that introduced her to it practiced in Toronto.
[19]
As
with the Board’s other credibility findings, I am prepared to accept that this
approach was reasonable in the circumstances. The Applicant cited the case of Kauser
v Canada (Minister of
Citizenship and Immigration), 2012 FC 259, [2012] FCJ no 283 in support
of his position that the decision should be set aside. However, in my view,
this case is clearly distinguishable on the facts from that decision.
[20]
As
the Respondent’s submissions suggest, the Board justifiably questioned why the
Applicant did not seek out other medical services, such as the university
health services, prior to practicing Falun Gong that was considered dangerous
in China. The
failure to provide a corroborating letter from the individual who allegedly introduced
her to Falun Gong could also lead to a negative inference as to credibility
(see Matsko v Canada (Minister of Citizenship and Immigration), 2008 FC
691, [2008] FCJ no 884 at para 14; Bin v Canada (Minister of Citizenship and
Immigration), 2001 FCT 1246, [2001] FCJ no 1717 at para 21). In addition,
the Applicant’s reliance on an assurance from a Canada Post employee that
materials would not be opened and endanger her family reasonably seemed
implausible.
[21]
It
was within the range of possible, acceptable outcomes for the Board to
determine that the Applicant had not provided “credible and trustworthy
evidence” in light of several issues associated with the details relating to
her situation.
[22]
For
this reason, the second issue raised by the Applicants is irrelevant. Having
found that the Applicant’s practice of Falun Gong was not genuine, the Board
implicitly addressed that the there was no serious possibility she would be
persecuted on return to China.
VI. Conclusion
[23]
Since
the Board’s credibility findings were reasonable in the circumstances, the
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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