Docket: IMM-6523-11
Citation: 2012 FC 665
Ottawa, Ontario, May 30,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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YA NAN HE
(aka YANAN HE)
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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
I. Introduction
[1]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board (the Board), rendered on August 30, 2011, wherein the Board determined
that Ms. Ya Nan He (Ms. He) is not a Convention refugee or a person in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
Prior
to her arrival to Canada, Ms. He was a resident of Tianjin in the
People’s Republic of China.
[4]
Her
father, with whom she had a close relationship, died on September 7, 2001. She
relied on the support of her boyfriend to get through these difficult times.
[5]
On
September 10, 2005, Ms. He married her boyfriend and on November 1, 2007, she
gave birth to their daughter.
[6]
In
October 2008, Ms. He’s husband left her. They subsequently divorced on February
5, 2009.
[7]
Depressed
by these past events, Ms. He’s friend, Jing Wang, introduced her to the Gospel
and an underground church.
[8]
Ms.
He first attended the church on April 19, 2009. After a few months of practice,
she felt her outlook had improved.
[9]
In
December 2009, Ms. He was baptized by Pastor Zhang.
[10]
Ms.
He alleges that her church was discovered by the Public Security Bureau [PSB]
on February 7, 2010. Consequently, she went into hiding at her cousin’s house.
She learned that the PSB had been to her house on February 11, 2010, and that
she was accused of being involved in an illegal underground church.
[11]
Ms.
He left China on August
25, 2010, because she feared that she would be arrested and detained because of
her religious practice. She filed a refugee claim on August 31, 2010.
[12]
While
in Canada, Ms. He learned that the PSB continued to search for her in China and that the
members of her congregation had been sentenced to prison.
[13]
The
Board found that Ms. He was neither a Convention refugee nor a person in need
of protection due to her general lack of credibility. Consequently, Ms. He’s
application was rejected by the Board.
III. Legislation
[14]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or
political opinion,
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96. A qualité de réfugié
au sens de la Convention — le réfugié — la personne qui, craignant avec
raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
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a) soit se trouve hors
de tout pays dont elle a la nationalité et ne peut ou, du fait de cette
crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas
de nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A person in
need of protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
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97. (1) A qualité de
personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
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(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
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a) soit au risque, s’il
y a des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
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b) soit à une menace à
sa vie ou au risque de traitements ou peines cruels et inusités dans le cas
suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(ii) the risk would be faced by the person in every
part of that country and is not faced generally by other individuals in or
from that country,
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(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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Person in need of protection
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Personne à protéger
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(2) A
person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issues and
standard of review
A.
Issues
1. Did
the Board err in determining that Ms. He was not credible?
2. Did
the Board breach its duty of procedural fairness?
B.
Standard
of review
[15]
A
credibility
finding is a question of fact that is reviewable on a standard of
reasonableness (see Lawal v Canada (Minister of Citizenship
and Immigration), 2010 FC
558, [2010] FCJ
No 673 at para 11). The Court must determine "whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (see Dunsmuir v New
Brunswick, 2008 SCC 9,
[2008] SCJ
No 9 at para 47 [Dunsmuir]).
[16]
Questions
of procedural fairness are reviewable on the standard of correctness (Ahmad v Canada (Minister of
Citizenship and Immigration), 2008 FC
646 at para 14).
V. Parties’
submissions
A.
Ms.
He’s submissions
[17]
Ms.
He alleges that the Board misconstrued or ignored documentary evidence on
religious persecution in China and unreasonably determined that the
situation was improving. She also notes that the Board misquoted some of the
documentation adduced. More importantly she claims these documents are
significant as they support her position that religious persecution has been
escalating over the past few years.
[18]
Ms.
He further submits that the information available is enough to draw a precise
portrait of the situation in China. The China Aid Report clearly shows that
the “small amount of information comes from many provinces and municipalities
across China and is diverse enough to reflect the overall situation and degree
of persecution suffered by house churches in 2010” (see Applicant’s Record at
page 275, para 20).
[19]
The
Board found that there were no references to any incidents in the province of Tianjin. Ms. He
disputes that determination as unreasonable and inaccurate since she claims
that it is impossible to report all incidents of religious persecution.
[20]
The
Board also noted that Ms. He “would be able to practice her religion,
worshipping in the Christian congregation of her choosing, if she were to return
to her home in Tianjin City in China” (see the Board’s decision at para 21).
Ms. He argues against this conclusion because the documentation on China is clear
that there are restrictions on government controlled churches and that
non-registered churches face severe pressure from the government.
[21]
According
to Ms. He, despite the amount of documentation demonstrating that religious
persecution is increasing, the Board chose to rely on irrelevant documents and
failed to provide any reasons to support its choice, which constitutes a
reviewable error (see Nasufi v Canada (Minister of Citizenship and
Immigration), 2011 FC 586 at para 32).
[22]
Ms.
He also states that the Board cannot make a selective assessment of the
evidence adduced. It must address it properly with respect to her situation
(see Bors v Canada (Minister of
Citizenship and Immigration), 2010 FC 1004 at paras 54, 58, 77 and 78).
[23]
Finally,
she alleges that the Board breached its duty of procedural fairness by
referring to certain documents that were not admitted in evidence and therefore
not in the record.
B.
Respondent’s
submissions
[24]
The
Respondent underlines that the Board determined that Ms. He was not credible.
It found that her underground church had not been raided by the PSB and that
the members of her congregation were not sentenced to prison. It based its
decision on documentary evidence. The evidence demonstrated that no incidents
had occurred in Tianjin. The Respondent affirms that the documentation
relied on by the Board came from reputable independent sources.
[25]
According
to the Respondent it was open to, the Board to determine that Ms. He would be
able to practice her religion and worship in the congregation of her choice if
she returns to Tianjin.
[26]
The
Board also assessed Ms. He’s allegations that the PSB did not leave a summons
for her although its agents visited her home on several occasions. Given the
documentary evidence on this point, the Respondent claims the Board reasonably
concluded that the PSB would not go to such extent to find Ms. He without
leaving a summons ordering her to report to the PSB (see Zhang v Canada (Minister of
Citizenship and Immigration), 2011 FC 654 at paras 19-23).
[27]
The
Respondent submits that the Board’s conclusion with respect to Ms. He’s
departure was reasonable as it relied on objective evidence, namely, the China
National Documentation Package. Respondent argues that the Board is entitled to
rely on such documentary evidence, in preference to Ms. He’s testimony (see Tekin
v Canada (Minister of Citizenship and Immigration), 2003 FCT 357; Aleshkina
v Canada (Minister of
Citizenship and Immigration), 2002 FCT 589). The Respondent further
argues that this Court has upheld, in several decisions, that the Board can
choose to accept documentary evidence over an Applicant’s testimony (see Yu
v Canada (Minister of
Citizenship and Immigration), 2010 FC 310 [Yu]; Li v Canada (Minister of
Citizenship and Immigration), 2010 FC 205 [Li]). According to
the Respondent, there were no errors in the Board’s consideration of the
documentary evidence.
[28]
Lastly,
even if the Board considered documents that were not part of the Court’s
record, the Respondent contends that this error does not amount to a breach of
procedural fairness since its fundamental finding does not rest on that
documentation.
VI. Analysis
1. Did
the Board err in determining that Ms. He was not credible?
[29]
The
Board did not err in determining that Ms. He was not credible.
[30]
A
credibility finding is factual in nature. “The jurisprudence is clear in
stating that the Board's credibility and plausibility analysis is central to
its role as trier of facts and that, accordingly, its findings in this regard
should be given significant deference” (see Lin v Canada (Minister of Citizenship and
Immigration), 2008 FC
1052, [2008] FCJ
No 1329 at para 13).
[31]
In Yu
cited above, at paras 32-33, Justice Zinn made the following remark:
“The other evidence was documentary evidence. It was not directly
contradictory of the applicant's testimony in that it did not say that no house
churches had ever been raided in Fujian Province. That is hardly surprising as one is unlikely to find a report
that something has not happened because it is events, not non-events, that are
reported. Nonetheless, the documentary evidence does lead to an inference that
no such raid occurred…”
“In this case, the Board chose to accept the independent
documentary evidence over the applicant's testimony. It is evident from a
reading of the decision as a whole that it did so because it preferred the
evidence from "a large number of different commentators ... none of whom
have a personal interest in the pursuit of an individual claim for
protection" to the applicant's evidence in support of his own claim for
protection. Its weighing of the evidence on this basis cannot be said to be
unreasonable. Having formed the view that the documentary evidence was stronger
and was to be preferred, it did not need to make any explicit
finding that the applicant's evidence on this point was not credible; it did so
indirectly.”
[32]
In
the present case, it was open to the Board to rely on particular documentary
evidence. It is the Board’s role to assess and weigh the evidence adduced and
decide whether it applies to the Applicant’s situation. It is clear that the
Board considered all the evidence adduced. Even though some documents were
contradictory, the Board reasonably determined that there was no evidence to
show that religious persecutions had occurred in the Tianjin province.
The Board’s assessment on that issue cannot be qualified as unreasonable or
capricious as it falls within the range of possible and acceptable outcomes.
There was no documentary evidence supporting the proposition of raids to
underground churches in Tianjin. Therefore, the Board
reasonably concluded that there was not a serious possibility that Ms. He
would be persecuted or that she would be subjected personally to a danger of
torture or to a risk to her life, or a risk of cruel and unusual treatment or
punishment should she return to her country of origin.
[33]
Ms.
He is asking this Court to reweigh the evidence and substitute its own finding,
Ms. He’s demand falls “outside the scope of the Court’s function on judicial
review” (see Huang v Canada (Minister of Citizenship and Immigration),
2011 FC 228, [2011] FCJ No 374 at para 22; Brar v Canada (Minister of Employment and
Immigration)
(FCA), [1986] FCJ
No 346 (QL)). It is not the Court’s role to reweigh the
evidence (see Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] FCJ No 457 at para
11).
2. Did
the Board breach its duty of procedural fairness?
[34]
Ms.
He submits that the “Church and State in China” document
was not part of the record before the Board. This, according to Ms. He, raises
an issue of procedural fairness.
[35]
The
Respondent argues that even if the Board considered a document that was not
part of the record, this error does not does not amount to a breach of
procedural fairness because it does not change the Board’s decision as a whole.
[36]
The
Court finds that the error committed by the Board does not vitiate its
determination. The Board improperly referred to a document that was not part of
the China
documentation package but its reference to that document was not fundamental to
its decision. Therefore, the breach does not warrant allowing this application.
VII. Question for certification
[37]
Ms.
He is asking this Court to certify the following question:
Whether
reliance on general country documentation that states that persecution is
throughout a country is sufficient or whether locale-specific documentation is
still required? And, if so, whether restrictive flow of information must then
be taken into account in determining the weight to put on lack of
locale-specific documentation.
[38]
A
certified question must “transcend the interests of the immediate parties to
the litigation and contemplate issues of broad significance or general
application… but it must also be determinative of the appeal” (see Canada (Minister of
Citizenship and Immigration) v Liyanagamage, [1994] FCJ No 1637 at
para 4 [Liyanagamage]).
[39]
The
Respondent alleges that the above question is factual in nature and goes to the
heart of the Board’s expertise. Furthermore, the Respondent notes that “it is
difficult to see how it would be answered in a meaningful way or to see how it
could be a serious question of general importance as the answer is dependent on
each case, each document, each country, each applicant and each type of
persecution [in the city of Tianjin]” (see Respondent’s letter dated April 19,
2012).
[40]
The
Court finds that the question proposed by Ms. He fails to transcend the
parties’ interest and is not of general importance. It is trite law that a
credibility finding goes to the heart of the Board’s expertise as a trier of
facts and is different from one case to another. The Board’s approach is not
out of step with some of the Court’s decisions (see Yu and Li cited
above; Yang v Canada (Minister of Citizenship and Immigration), 2010 FC
1274;
Jiang v
Canada (Minister of Citizenship and Immigration), 2010 FC
222). Issues in this regard must be assessed on a case to case
basis, bearing in mind the approach of the Supreme Court in Dunsmuir
cited above.
VIII. Conclusion
[41]
This
application for judicial review is dismissed. The Board reasonably determined
that Ms. He was not credible, as no documentary evidence demonstrated that
religious persecution had occurred in the Tianjin. Therefore,
Ms. He is neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the IRPA. There is also no question of general importance
to certify. The question proposed by Ms. He does not transcend the parties’
interest and is not determinative of the appeal as per Liyanagamage
cited above.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
This
application for judicial review is dismissed; and
2.
There
is no question of general importance to certify.
"André F.J. Scott"
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