Date:
20121126
Docket:
IMM-1977-12
Citation:
2012 FC 1362
Ottawa, Ontario,
November 26, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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JIAN BING 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]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 3 February 2012 (Decision), which refused the Applicant’s application to
be deemed a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 28-year-old citizen of China. He seeks protection in Canada from the Chinese Public Security Bureau (PSB). The following narrative was laid out
in the Applicant’s Personal Information Form (PIF) submitted with his refugee
claim.
PIF Narrative
[3]
The
Applicant was born and raised in Sunjiazhuang Village, Shijiazhuang City, Hebei Province, China. His parents operated a fruit orchard on a piece of land which they
leased from the village. In February 2007, his parents renewed their lease with
the village for another twenty years. The Applicant used his university
education to help his parents market their fruit and expand the business.
[4]
In
early January 2009, the village notified the Applicant’s parents that it was
planning to expropriate the land their orchard was on to build a factory. They
were directed to remove all the pear trees by 16 February 2009, or the land
would be cleared by bulldozers. The compensation the village offered the
Applicant’s parents was not even enough to cover the investment they put into
the business that year, much less their labour costs. The Applicant felt that
as the oldest son in his family it was his responsibility to sort out the
problem.
[5]
In
mid-January, the Applicant went to the village government to talk about the
expropriation. After talking to officials a few times he was finally seen by an
officer in late January 2009. The officer had the Applicant fill out a
complaint form and said that he would be advised of the outcome. The Applicant
did not think anything would come of this, and so he decided he should talk to
a higher level of authority. The superior level of authority to the town
government was the municipal government.
[6]
At
the end of January 2009, the Applicant went to talk to the municipal
government. He was asked to fill out another form of complaint, and told to
wait until a government official had time to see him. He waited one week, and
then was told that he should return home and the matter would be reviewed. The
Applicant returned to the municipal government building and was told by a clerk
that the town government was in charge of the matter and the municipal
government was not going to change the town’s decision.
[7]
The
Applicant returned to the town government on 13 February 2009, and tried to
negotiate the matter with the mayor. The mayor was not open to changing the
decision. The Applicant became very frustrated and angry and shouted “Don’t you
know you are destroying life for a family? We are human beings, we are not
animals. You are officials for ordinary people, and it is your responsibility
to take care of our life instead of destroying our life.” The mayor shouted
“Get out of my office!” and the Applicant was escorted out of the office by
three security guards. The Applicant shouted in the lobby of the building
“Don’t trust the government; they play with people like we are nothing. The
government is corrupted! Officials are corrupted!” An official demanded the
Applicant stop shouting and the Applicant yelled “You officials of the
Communist Party are corrupt, you are all the running dogs of the government,
you treat people like trash.” The official started saying something to the
person beside him, and the Applicant overheard someone in the lobby say “You
are in serious trouble now, the one is the head of the PSB”. The Applicant
realized the severity of the situation, and fled the government building and
went to hide at his uncle’s house.
[8]
Later
the same day, the Applicant’s wife called him and said the PSB had showed up at
their house looking for him. The PSB alleged the Applicant had interfered with
their authority, disrupted the government and social order, insulted government
officials, and spread antigovernment rumours. The Applicant’s wife said the
officers seemed angry and aggressive, and they demanded the Applicant report to
them immediately.
[9]
The
Applicant stayed in hiding, but kept in contact with his family. The
Applicant’s wife told him that all the trees at the orchard had been cut down
and the land taken away. PSB officials were still coming to the Applicant’s
home to look for him, and they had gone to the home of other relatives as well.
The PSB officials threatened the Applicant’s wife and parents that if the
Applicant continued hiding, they would be punished instead. The Applicant found
out that his neighbour who also owned an orchard, Mr. Gao, had protested his
land being taken away by the government and had been arrested.
[10]
After
learning about Mr. Gao, the Applicant felt there was no way he could remain in China and be safe. He hired a smuggler to make arrangements for him to come to Canada. The Applicant arrived in Canada and made his refugee claim on 21 July 2009. Since
coming to Canada, the PSB still comes looking for the Applicant every 3-4
months, and Mr. Gao is still in custody.
[11]
The
RPD heard the Applicant’s claim on 29-30 June 2011 and refused it on 1 February
2012. It notified the Applicant of the Decision on 3 February 2012.
DECISION
UNDER REVIEW
[12]
The
RPD found that the Applicant was not credible, and refused his claim on this
basis. The RPD was concerned that the Applicant did not provide any education
or employment-related documents, or any documents such as a driver’s license
which would establish that he was actually in China after 2006. The Applicant
explained that he was never employed in China and the smuggler who brought him
to Canada took his school documents while in was in Toronto. The RPD did not
accept this explanation; it did not make sense that the Applicant would allow
the smuggler to take his documents when he was safe in Canada and when he would need them in order to find employment.
[13]
The
RPD did not think the Applicant’s testimony about his interactions with the
authorities in China was credible. The RPD cited the Federal Court of Appeal’s
decision in Maldonado v Canada (Minister of Employment and Immigration),
[1980] 2 FC 302 (CA) as establishing that there is a presumption of truth
in regards to the Applicant’s testimony, unless there is reason to doubt its
truthfulness. The RPD also cited Dan-Ash v Canada (Minister of Employment
and Immigration), (1988) 93 NR 33 (FCA), for the following: “The
existence of contradictions in the evidence could be a valid basis for a
finding of a lack of credibility. However, even when the evidence in
uncontradicted, it may be that the evidence does not accord with the known
country conditions.” The RPD stated that it is entitled to assess credibility
based on rationality and common sense, and to compare the Applicant’s testimony
to the preponderance of probabilities that a reasonable person would expect to
have occurred, considering the circumstances.
[14]
The
RPD did not think that the Applicant had produced sufficient credible evidence
that his parents had operated an orchard on leased government land. The
Applicant produced a copy of the lease which was made in 2007 for a period of
twenty years. The Applicant testified that his parents’ annual rent was
20,000RMB, but did not produce any receipts for rent payments his parents
allegedly made to the town. In his PIF the Applicant said that his parents
renewed the lease for the orchard, but the copy of the lease submitted into
evidence did not refer to a previous lease. The Applicant also never referred
to his parents having that piece of land before 2007. In essence, the Applicant
produced no evidence that his parents were running an orchard before 2007.
[15]
The
Applicant testified that his parents invested 80,000RMB into the orchard, but
the only documentation he produced in this regard were two receipts for
fertilizer. The Applicant stated that his parents could not find any other
receipts, but the RPD found that it was not plausible that his parents would
not keep any other receipts if they were indeed running a business. The
Applicant testified that after graduating from university he helped his parents
run the business by advertising to wholesalers and advising them on ways to
plant and package the fruit. The RPD stated that it would therefore be
reasonable to expect that the Applicant would have also helped them to keep
records, since he testified that he had no other job.
[16]
The
RPD did not think the Applicant was credible with regards to the expropriation
notice he claims the village gave to his father. The Applicant did not produce
a copy of the expropriation notice, but claimed that his parents sent him the
notice and it got lost in the mail. The Applicant was asked why this document
was sent separately from all the other documents, and he responded that his
parents had trouble finding it and so sent the other documents first and this
one separately. The RPD did not think it credible that the Applicant’s parents
would have misplaced such an important document, especially when considering
they would have known it would be important to the Applicant in establishing
his refugee claim. The Applicant filed his claim in July 2009, with the
assistance of counsel. Presumably, he would have alerted his parents as to what
documents he required.
[17]
The
Applicant also said that his parents borrowed money from his uncle and some
friends to invest in the orchard, and when they received the 20,000RMB as
compensation they used that money to pay down the loans. The Applicant
testified there were no corroborating documents related to the loans; the RPD
did not think it credible that there would be no documentation of any sort.
[18]
The
Applicant did submit a notice of compensation addressed to the Applicant’s
father, indicating that factories are to be built in the village, and that he
would be compensated 20,000RMB for the land. The document was only four lines
long, and not very businesslike in contrast to the lease agreement. The RPD
noted that it did not include the Applicant’s father’s address; nor did it
include the location or description of the land where the orchard was located.
The RPD found, on a balance of probabilities, that this document was not
genuine.
[19]
The
RPD concluded that the Applicant’s testimony about the 20,000RMB compensation
was not credible. He testified that he had no documentation related to his
parents receiving the money because his parents were paid in cash. The RPD
pointed out that the village had a sophisticated lease agreement, and the
Applicant testified that the village gave notice of the compensation in
writing. It would be reasonable to assume that the Applicant’s parents would
have at least obtained a receipt upon payment of the compensation.
[20]
Furthermore,
the notice of compensation submitted by the Applicant states that compensation
would begin after the lessee returned the lease. The Applicant confirmed that
the 20,000RMB compensation was to be paid once his parents returned the land
lease. The Applicant’s explanation as to why his parents still had the lease
but had also been paid the compensation was that, because his parents were not
in agreement with the situation, village officials came to their house and gave
them the money in cash, stating that whether they surrendered the lease or not
that was all the money they would get. The RPD found this was not a reasonable
explanation; it did not make sense that the officials would have given the
Applicant’s parents cash if they did not have to. As for the notice of
compensation, the RPD concluded that “As fraudulent documents of all sorts are
readily available in China, I find, on a balance of probabilities, that this
simple document cannot be relied upon as being genuine.”
[21]
At
the hearing, the Applicant provided the RPD with two photographs of the alleged
orchard, showing a field of trees, some of which have their branches cut off.
The Applicant testified that the photos were taken in February 2009, by a
friend of his father. The RPD found the photographs did not corroborate that
this orchard is the one his parents operated, or that the field pictured was
being readied for the removal of the trees.
[22]
The
RPD also noted inconsistencies in the Applicant’s oral testimony and his PIF as
regards the timing of when he approached government officials. In his PIF, the
Applicant claimed he went to the municipal offices at the end of January, but
in his oral testimony the Applicant said he went to the town authorities from
January 12-14, and the municipal authorities from January 15-17. The incident
that caused the Applicant to go into hiding allegedly occurred two weeks after
the Applicant visited the municipal authorities; according to his PIF this was
on 13 February 2009, but according to the dates he indicated in his oral
testimony this would have been at the end of January or the beginning of
February. The RPD concluded it would be reasonable to expect the Applicant to
remember when this event occurred, as it profoundly changed his life, and the
RPD drew a negative inference from the Applicant’s failure to explain the
inconsistency.
[23]
With
regards to the incident at the mayor’s office that sent the Applicant into
hiding, the RPD asked why he was not apprehended right then after causing such
a large disturbance. The Applicant replied that he did not know. The Applicant
testified that the PSB continue to come looking for him every two weeks. When
asked to confirm this, he said they come every two to three weeks. However, in
the Applicant’s PIF he said that the PSB comes looking for him every three
months, not weeks.
[24]
Further,
the RPD did not find it plausible that the PSB would continue looking for the
Applicant so diligently over such a long period of time, when all that the
Applicant did was shout at and insult officials on one occasion. At the time of
the incident the Applicant was 24 years old, and he was not a party to the
contract that was allegedly breached. The RPD stated that the “resources
expanded by the PSB on the search for the claimant appear to be out of
proportion to the ‘crime’ the claimant allegedly committed.”
[25]
The
Applicant testified that the PSB did not leave a summons at his house when they
came looking for him. The RPD said that the documentary evidence suggests that
a summons would almost always be issued to the individual rather than the
household or family member. It is common in China for the summons to be left
with family members, instructing them to pass it along to the person named.
This is not actually the proper procedure, but it is very common in cases where
the person in the summons is not easily locatable. The RPD found that, in view
of the fact that the Applicant claims the PSB has been searching for him for
two and a half years and continues to search for him, they would likely have
left some form of summons at some point. The RPD drew a negative inference from
the absence of a summons or some other documentation to show that the PSB was
still looking for the Applicant.
[26]
At
the hearing, the Applicant was asked how his parents have been affected by the
events that unfolded. He testified that PSB threatened that his parents would
be penalized if they did not reveal where the Applicant was. However, he also
said that his parents were hired by the village to do sanitation work, and the
village has been paying them. Although this job is menial, the RPD found that
the fact that the town gave the Applicant’s parents employment demonstrates
that the PSB is not interested in penalizing them for the absence of their son.
[27]
The
Applicant also testified that his neighbour, Mr. Gao, also had his orchard
expropriated. The Applicant said that by the time Mr. Gao learned about the
compensation his land had already been expropriated, and when he complained the
town government had him arrested for interfering with the social order. When
the Applicant was asked what Mr. Gao did to provoke this treatment, he replied
that maybe he shouted at an officer, and then added that his parents learned
from other villagers that Mr. Gao had shouted. The RPD found that the Applicant
could not rely on Mr. Gao as a similarly situated person, as he did not really
know why Mr. Gao was arrested, and his family did not obtain any information
directly from Mr. Gao’s family, but had just heard rumours.
[28]
Based
on the sum of the above negative credibility findings, the RPD concluded that
the Applicant is not wanted by the PSB in China. The Applicant had not
satisfied his burden of demonstrating that he would be personally subjected to
a risk to his life or a risk of cruel and unusual treatment or punishment or a
risk of torture by any authority in China. As such, the RPD rejected his claim.
ISSUES
[29]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD erred in its general credibility finding;
b.
Whether
the RPD erred by drawing a negative inference as to the Applicant’s credibility
from a lack of summons or arrest warrant.
STANDARD
OF REVIEW
[30]
The
Supreme Court of Canada, in Dunsmuir v New Brunswick 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[31]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada
(Minister of Citizenship and Immigration), 2008 FC 773, at paragraph 21,
Justice Max Teitelbaum held that findings of credibility are central to the
RPD’s finding of fact and are therefore to be evaluated on a standard of review
of reasonableness. Finally, in Aguilar Zacarias v Canada (Minister of
Citizenship and Immigration), 2012 FC 1155, Justice Mary Gleason held at
paragraph 9 that the standard of review on a credibility determination is
reasonableness. The standard of review on the first issue is reasonableness.
[32]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
STATUTORY
PROVISIONS
[33]
The
following provisions of the Act are applicable in this proceeding
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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,
(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;
[…]
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
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
[…]
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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:
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;
[…]
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 :
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;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(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,
[…]
|
ARGUMENTS
The
Applicant
[34]
The
Applicant submits that the RPD engaged in an overly minute examination of the
evidence he submitted, and that its expectations about the documents he should
have provided were unreasonable. The Applicant submits that there was no basis
for the RPD’s findings as to what documents should have been available in
regards to his parents’ land.
[35]
The
RPD took issue with the fact that the renewal of the lease submitted by the
Applicant does not reference the original lease. This was unreasonable. The
Applicant provided adequate evidence that his parents owned the land in
question during the relevant period by providing the lease, and it was not
reasonable of the RPD to expect more. The RPD does not have specialized
knowledge about the form of leases in China, and there is no basis for an
assumption that a renewal would reference a previous lease.
[36]
The
RPD also expected the Applicant to produce receipts for money paid to his
parents, but there is no evidence that receipts are given for all financial
transactions in China. The Applicant says that even if there were receipts, it
is unreasonable to expect his parents would have been able to produce them.
[37]
The
Applicant is from rural China, and there was no evidence before the RPD to
suggest that keeping documents is the normal practice there. The Applicant is educated,
but this does not necessarily mean that his parents would be conscientious in
obtaining receipts and keeping financial records. The Applicant gave his
parents general advice and assisted in advertising, but he was not directly
involved in the business. Considering the cultural context, without evidence
that cash transactions always gives rise to receipts in rural China, it was
unreasonable for the RPD to have expected more.
[38]
The
Applicant also submits that it was unreasonable for the RPD to draw a negative
inference from the fact that the Applicant was unable to provide the notice of
expropriation. The Applicant explained that it took his parents longer to find
this document, and so they sent it separately and it got lost in the mail. The
Applicant submits that there is nothing implausible about this explanation, yet
the RPD simply rejected it. The RPD found that it did not think it credible
that the Applicant’s parents would not have stored the document in a safe
place, but did not provide any reasonable basis for this finding.
[39]
Further,
the RPD’s statement that the Applicant’s parents should have known the
Applicant would require the document to establish his refugee claim is
completely speculative. The idea that the Applicant’s parents would know that
documents would be required for a Canadian refugee hearing is placing an undue
burden on the level of legal knowledge expected of the Applicant and his
family.
[40]
The
RPD’s assertion that “As fraudulent documents of all sorts are readily
available in China, I find on a balance of probabilities, that this simple
document cannot be relied upon as being genuine” is an error because the RPD
cannot conclude that, because fraudulent documents are available in China, that
all documents from China can be presumed to be fraudulent (see Lin v Canada
(Minister of Citizenship and Immigration), 2012 FC 175).
[41]
The
RPD was also unreasonable in attributing a negative inference to the fact that
the Applicant may have been slightly off with his dates as to when the incidents
in question occurred. The Applicant was adamant in his oral testimony that he
went to the municipal office on January 17, and stated in his PIF that he went
at the end of January. This is not even necessarily a discrepancy, and even if
it were it is not so serious as to justify a negative inference.
[42]
The
RPD also engaged in an extremely minute analysis of the date of the incident
that caused the Applicant to go into hiding. The Applicant testified that it
was two weeks between the time he went to the municipal office and the
altercation on February 13, but the period appears to have been slightly
longer. It was unreasonable for the RPD to focus on these details of testimony
and to draw a strong negative inference from slight discrepancies.
[43]
The
RPD was also unreasonable in its treatment of the lack of summons. The RPD
concluded that the PSB must not be interested in the Applicant as no arrest
warrant or summons was left with the Applicant’s family. In coming to this
conclusion, however, the RPD ignored evidence that stated otherwise. An IRB
document states that there are substantial regional variances in the practices
of law enforcement, and that there is “wide administrative discretion
throughout the country.” The same document also says that “arrest procedures
differ from locale to locale, having to conform to local customs reflecting
indigenous circumstances.” Not only that, the documentary evidence also
suggests that arrest warrants are only used in extreme cases in China.
[44]
Recent
decisions of the Federal Court have found that requiring an arrest warrant or
summons is a reviewable error. In Liang v Canada (Minister of Citizenship
and Immigration), 2011 FC 65, Justice Michel Shore said at
paragraphs 12-14:
According to the documentary evidence, the Applicant's
testimony that no warrant/summons was left at her home, could have very well
occurred. Negative findings of credibility could very well lack reasonableness
where documentary evidence clearly indicates that which an applicant says
occurred, could in fact have occurred.
The documentary evidence indicated that it is not
usual procedure to leave a summons/warrant with any other person other than the
person to whom it is issued. Thus, the PSB in this case appears to have
followed usual procedure.
The documentary evidence also stated the procedures
followed by the PSB vary from region to region; and, in most instances, routine
procedures or rules give way to norms of the region. Therefore, if the norm in
the Applicant's region is for the PSB not to leave a summons/warrant for anyone
other than the person who is named, then presumably that norm is followed
regardless of how many times the PSB visits the Applicant's home or how many
people in the Applicant's house church would have been arrested and sentenced.
[45]
The
RPD provided no reason as to why it expected a summons to have been left with
the Applicant’s family, and its conclusions were unreasonable in this regard.
The case law demonstrates that this is an erroneous assumption and a reviewable
error.
[46]
The
Applicant submits that there was nothing to contradict the overall credibility
of his testimony, and that the sum of the errors discussed above warrant the
granting of this application. The Applicant requests that the Decision be
quashed and sent back for re-determination.
The
Respondent
[47]
The
Respondents points out that the RPD found the Applicant’s story to be entirely
non-credible, disbelieving the very basis of his claim that his parents
operated an orchard as alleged, and that the orchard had been expropriated. The
RPD specifically found that significant documents were missing, one document
was not believable, and that the Applicant’s evidence regarding the timing of
the alleged incidents was inconsistent. The RPD’s findings were not overzealous
or peripheral, but were wide-ranging and went to the heart of the Applicant’s
claim.
[48]
The
RPD found that the whole of the Applicant’s story was not credible. It
conducted a thorough and expansive credibility determination, discussing all
material aspects of his claim. In particular, the RPD found that:
i.
The
Applicant provided insufficient documents to demonstrate that his parents
operated an orchard on leased land;
ii.
It
was implausible that the highly significant notice of expropriation got lost in
the mail;
iii.
There
were no corroborative documents presented to show the alleged business loans;
iv.
There
were reasons to suspect that the document showing compensation for the
expropriated land was not genuine, which reasons went beyond the fact that
fraudulent documents are widely available in China;
v.
There
was no documentation presented of the Applicant’s parents having been paid the
compensation money;
vi.
The
photos of the alleged orchard did not corroborate the Applicant’s story;
vii.
The
Applicant’s testimony regarding the timing of events was inconsistent;
viii.
The
Applicant’s testimony about how often the PSB comes looking for him was
inconsistent;
ix.
It
is implausible that the PSB would so diligently pursue the Applicant when all
he allegedly did was yell at a municipal building one time, and that in
pursuing the Applicant so diligently they would not leave a summons;
x.
It
is implausible that the Applicant’s parents would be employed by the
municipality when, according to the Applicant’s testimony, the PSB threatened
his parents that they would be penalized if they did not disclose his
whereabouts.
[49]
The
foundation of the Applicant’s arguments is that the RPD erred by engaging in a
microscopic analysis of the Applicant’s evidence. The Applicant says that he
provided adequate evidence to support his claim, and argues that there is no
evidence that receipts are given for financial transactions in China, and the
fact that he assisted his parents with some aspects of their business in China
does not mean that they would keep financial records. The Respondent says these
are unlikely arguments, and points out that the RPD’s Decision was based on the
culmination of an extensive list of credibility concerns.
[50]
The
Respondent also points out that, with respect to the RPD’s finding that the
Applicant’s parents would have known the importance of the expropriation notice
to his refugee claim, the finding was, in fact, that the Applicant and his
legal counsel themselves would have known its importance, and would have
advised his parents accordingly. It was reasonable for the RPD to assume that
the Applicant’s parents would have treated this document carefully.
[51]
The
RPD also provided specific reasons for doubting the validity of the notice of
compensation that went far beyond the simple fact that fraudulent documents are
available in China. The RPD’s comment that fraudulent documents are available
in China was made in the context of its other reasons for doubting the
document’s validity.
[52]
The
Respondent submits that, although the Applicant has paid much attention to the
RPD’s finding that the PSB would likely have left a summons with the
Applicant’s family, this is only one of more than ten significant credibility
findings, and is in no way central to the determination. The Respondent points
out that this finding was made specifically in the context of the Applicant’s
testimony that the PSB have sent people to look for him every two to three
weeks for the past two years. It was in this context that the RPD stated that
at some point the PSB would likely have left a summons. Though this procedure
is not absolutely correct, it is quite common. In any event, the Respondent
submits that this is a minor finding that it is not determinative, and the RPD
cited many other extensive and wide-ranging credibility concerns.
[53]
In
sum, the Respondent submits that the Applicant was found to be not credible on
several significant grounds, and reasonably so. The Respondent requests that
this application be dismissed.
ANALYSIS
[54]
The
Applicant attacks what he believes is an overzealous and microscopic analysis
of his narrative and evidence. However, there were some significant problems
with the Applicant’s claim and the RPD merely assessed what he brought forward,
as well as what was missing. The Applicant’s corroborative documents were suspect;
and without a reasonable explanation, he failed to provide other corroborative
documents in a situation where they would be expected. In addition, some of his
timing was inconsistent, and there were some significant implausibilities.
[55]
The
RPD’s assessment was cumulative. It is possible to take issue with some aspects
of this Decision. For example, the Applicant complains that it was an unfounded
supposition for the RPD to expect that the renewed lease would refer to a
previous lease. This may be so, but the Applicant is taking this finding out of
context. As a reading of paragraph 16 of the Decision shows, the RPD was
concerned that the Applicant had produced “no evidence of any lease before the
renewal, or any evidence that his parents were running an orchard before 2007.”
So I do not really think the RPD is imposing Canadian standards about
legalities here, as the Applicant argues. The RPD is pointing to the total lack
of evidence that his parents were running an orchard before 2007.
[56]
Indeed,
the points raised by the Applicant are often out of context. For example, as
regards the important matter of the summons, the Applicant testified that the
PSB came looking for him every two or three weeks (thus contradicting his PIF
which said every two or three months), which would mean a significant number of
visits during the material period. It did not make sense that the PSB would
expend so much time re-visiting his home merely because he shouted at a
municipal official in public, instead of leaving “some form of summons.”
[57]
Although
it is possible to argue with individual findings and suggest that other
conclusions might have been reasonable, this does not mean that the RPD’s
findings fall outside of the Dunsmuir range. And I certainly cannot say
that, cumulatively, the Decision is unreasonable. If I did, I would merely be
re-weighing the evidence and substituting the opinion of the Court for that of
the RPD. See Smith v Canada (Minister of citizenship and Immigration),
2012 FC 1283 at paragraph 32.
[58]
As
the Respondent points out, the problems with the claim were many:
a.
There
were insufficient documents to show that his parents’ operated an orchard on
leased land - the RPD noted that the Applicant did not produce any rent
receipts, or any other business receipts from running the orchard (with the
exception of two fertilizer receipts), despite his testimony that his parents
had invested 80,000 RMB in the business. The RPD found that it was not
reasonable that there would not at least be some proper records from this business;
b.
It
was implausible that the highly significant notice of expropriation would get
lost in the mail;
c.
There
were no corroborative documents to show the alleged business loans;
d.
The
documents submitted to confirm compensation for land were suspect;
e.
There
was no documentation of the compensation money being paid;
f.
The
photographs of the orchard itself were suspect. On the day of the hearing, the
Applicant provided two photographs of a field of trees, some of which have
their branches cut off. The adjacent trees, however, still have long branches.
The panel found that these photos did not corroborate that this is the
Applicant’s parents’ orchard, or that the orchard was being prepared for the removal
of trees;
g.
There
was inconsistent testimony regarding timing of events;
h.
The
Applicant’s testimony about how often the PSB come looking for him was
inconsistent;
i.
It
was implausible that the PSB would show such diligence pursuing the Applicant
and not leave a summons;
j.
It
was implausible that his parents would be living peacefully and be employed by
the municipality if the Applicant was wanted by those authorities. Although the
Applicant testified that his parents were threatened by the PSB that they would
be penalized if they did not divulge the Applicant’s whereabouts, he also
admitted that they have been given employment by the village itself and that
the village is paying them.
[59]
Some
matters were not explained at all by the Applicant. For example, when he was
asked for an explanation as to why, after shouting at the official, the police
did not apprehend him immediately, and he was allowed to leave the building, he
had nothing to offer.
[60]
It
is possible to argue with some of the RPD’s findings, but I cannot say that
either individually or cumulatively they do not fall within the Dunsmuir
range.
[61]
Counsel
agree that there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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