Date: 20091216
Docket: IMM-5285-08
Citation: 2009 FC 1280
Ottawa, Ontario, December 16, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
WEI
YANG
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision by the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated November 12, 2008 (Decision), which refused the
Applicant’s application to be deemed a Convention refugee or person in need of
protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant claims to be a citizen of the People’s Republic of China (China) who claims a
well-founded fear of persecution from the Communist regime and the Public
Security Bureau (PSB) because of his political opinion as a practitioner of
Falun Gong. The Applicant also alleges that he is a person in need of
protection due to the risk he faces to his life or to cruel and unusual
treatment or punishment in China.
[3]
While
in China, the Applicant reports
having received a call from a friend saying that her husband had been arrested
because he practiced Falun Gong. The Applicant went into hiding to avoid being
arrested. While in hiding, he learned that the PSB had come to his home to
arrest him.
[4]
The
Applicant came to Canada in December, 2006. He
applied for refugee protection in January, 2007.
DECISION UNDER REVIEW
[5]
The
Board determined that the Applicant had failed to establish his identity as a
national of China. The Board
examined the results of the RCMP Counterfeit Bureau and determined that the documents
provided by the Applicant were fraudulent.
[6]
With
regard to the Applicant’s driver’s license, the Board found that the
“photograph” therein was made with coloured toner, such as a computer printer
cartridge. The Board was also concerned about the lack of rickshaws in the
laminate on the driver’s license. The Board rejected the Applicant’s
explanation and determined that, based on its experience, the license was
fraudulent.
[7]
The
Board also noted that there was no number in the Hukou provided by the
Applicant and also that the Hukou had very few security features. The
Board concluded that “since I find the driver’s license is fraudulent, I must
also conclude that the Hukou is as well...”
[8]
The
Board questioned the Applicant as to why he did not possess a resident identity
card which is given to all citizens of China once they
have reached a certain age. The Board did not accept the Applicant’s
explanation that his card had been taken from him.
[9]
Furthermore,
the Board was not convinced that the Applicant practised Falun Gong, since the
Applicant was unable to answer basic questions about Falun Gong and failed to
properly demonstrate a Falun Gong exercise.
ISSUES
[10]
The
issues that arise on this application can be summarized as follows:
1)
Did
the Board err by concluding that the Applicant had failed to prove his identity
as a national of China?
2)
Did
the Board err in finding that the Applicant's story was not credible?
STATUTORY PROVISIONS
[11]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality, Boardship
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; or
(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.
Person in need of protection
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, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a Board of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
…
Credibility
106. The Refugee
Protection Division must take into account, with respect to the credibility
of a claimant, whether the claimant possesses acceptable documentation
establishing identity, and if not, whether they have provided a reasonable
explanation for the lack of documentation or have taken reasonable steps to
obtain the documentation.
|
Définition de
« réfugié »
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;
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.
Personne à protéger
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,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(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.
…
Crédibilité
106. La Section de la protection des réfugiés prend en compte, s’agissant
de crédibilité, le fait que, n’étant pas muni de papiers d’identité
acceptables, le demandeur ne peut raisonnablement en justifier la raison et
n’a pas pris les mesures voulues pour s’en procurer.
|
[12]
The
following provision of the Refugee Protection Division Rules, SOR/2002-228
is also applicable in these proceedings:
STANDARD
OF REVIEW
[13]
In Dunsmuir
v. New Brunswick, 2008
SCC 9, [2008]
1 S.C.R. 190, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards
are theoretically different, “the analytical problems that arise in trying to
apply the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review” (Dunsmuir at paragraph 44). Consequently, the
Supreme Court of Canada held that the two reasonableness standards should be
collapsed into a single form of “reasonableness” review.
[14]
The
Supreme Court of Canada in Dunsmuir also held that
the standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the 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.
[15]
Post-Dunsmuir
the Court has applied a standard of review of reasonableness to determinations
of credibility. See Huang v. Canada (Minister of Citizenship and Immigration), 2008 FC
1266, [2008] F.C.J. No. 1611. Accordingly, a standard of reasonableness is
appropriate in considering both issues of this case: a) whether the Board erred
in concluding that the Applicant had failed to prove his identity as national
of China, and b) whether the Board erred in its conclusion with regard to the
Applicant’s practice of Falun Gong.
[16]
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”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene 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.”
ARGUMENTS
The Applicant
Driver’s
license
[17]
The
Applicant submitted two pieces of identification to prove his identity,
namely, a driver’s license and a Hukou. He says the Board erred in its
treatment of both these documents.
[18]
The
Applicant submits that the Board failed to consider the RCMP’s forensic report
in its consideration of the license. The forensic report determined that the
authenticity of the license was “inconclusive,” and that other than the use of
toner, “the license, of limited security value, appears good.” Accordingly, the
Applicant submits that the Board’s conclusion that the license was fraudulent
is inconsistent with the results of the forensic report.
[19]
Where
the Board has expert evidence supporting an applicant’s claim, it is not
entitled to reject this evidence in favour of a personal opinion without
providing sufficient reasoning. See Yu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 794, [2005] F.C.J. No. 988, Armson
v. Canada (Minister of Employment and Immigration)(1989), 101 N.R. 372, 9
Imm. L.R. (2d) 150 (FCA), and Perez v. Canada (Minister of
Employment and Immigration), [1981] 1 F.C. 753 (FCA). The RCMP was asked in
this instance to provide valuable evidence. It follows, then, that the Board
cannot simply reject that evidence because it does not agree with the result.
The Applicant submits that the Board erred by failing to consider the evidence
before it.
Hukou
[20]
Similarly,
the Board erred in its treatment of the Hukou. The Applicant submits
that the Board failed to consider the pertinent forensic evidence pertaining to
the Hukou. Moreover, in its consideration of the validity of the Hukou¸
the Board determined that “since I find the driver’s license is fraudulent, I
must also conclude that the Hukou is as well...”
[21]
The
evidence provided by the RCMP showed that the authenticity of the Hukou was
“inconclusive,” and stated that “[t]here is no household number on the document,
which is unusual, but has been seen before.” Thus, the RCMP determined that the
absence of a household number did not mean the document was necessarily fraudulent.
The Applicant submits that the Board erred in making a negative determination
with regard to the Hukou that was based on a misapprehension of the
evidence.
[22]
The Applicant submits
that the Board’s finding that the Hukou was fraudulent is
contrary to the forensic evidence provided by the RCMP. Accordingly, the Board should
have provided reasons for distinguishing its finding from the evidence before
it.
[23]
Moreover, the Board
states that because it found the driver’s license to be fraudulent, it must
find the Hukou
to
be as well. The Applicant submits that the Board does not explain how a
negative finding with regard to one document results automatically in the
rejection of an other. Rather, each document should be considered separately
because no evidence exists that suggests a link between the documents. See Xu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1528, [2005]
F.C.J. No. 1885.
[24]
The
Board’s Decision was based its disbelief of the Applicant’s identity and, specifically,
on its findings with respect to the driver’s license, the Hukou, and the
Applicant’s failure to produce a resident identity card. The Applicant submits
that the Board erred by failing to consider the totality of his evidence when
assessing his identity. See Jiang v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1292, 68 Imm. L.R. (3d) 127.
Falun Gong
[25]
The
Applicant submits further that the Board also erred in failing to consider
whether or not the Applicant was perceived to be a Falun Gong
practitioner by the authorities in China. It was open to the Board to find that the
Applicant is either not a Falun Gong practitioner or, in the alternative, a
poor Falun Gong practitioner. Nonetheless, the Applicant submits that what
matters is whether the authorities perceive him as a Falun Gong practitioner
and, accordingly, if the risk of arrest exists. See, for instance, Ward v.
Canada, [1993] 2
S.C.R. 689, 103 D.L.R. (4th) 1. The
Applicant submits that if the authorities perceive the Applicant as a Falun
Gong practitioner, whether he is a practitioner or not is irrelevant.
The
Respondent
[26]
The
Respondent submits that the Board’s Decision was reasonable and was based on
the lack of acceptable proof of the Applicant’s identity and his inability to
answer some very basic questions with regard to Falun Gong.
[27]
The
Board’s finding that the Applicant had not proven his identity as a national of
China was
reasonable. The Board found that both pieces of evidence the Applicant provided
were fraudulent. It is open to the Board to conclude that identification
documents are unreasonable because of anomalies and inconsistencies. When the
Board is provided with evidence that contains both supporting and
non-supporting information, it is entitled to choose the evidence it prefers. See,
for example, Ganiyu-Giwa v. Canada (Minister of Citizenship
and Immigration), 1995 F.C.J No. 506 at paragraph 2 (QL). Moreover, section
170 (h) of the Act states that the Board can base a decision on the evidence
that is adduced by the parties and is considered credible or trustworthy.
[28]
The
Board’s finding with regard to the license was also reasonable. The licence was
printed with coloured toner and lacked the usual rickshaws in the laminate. Moreover,
the Hukou did not have a number, and contained very few security
features.
[29]
The
Respondent cites and relies on the case of Larue v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 484 paragraph 11 (QL) which held that
while some findings of the Board may be questionable when taken in isolation,
where the totality of the evidence allows the Board to make a finding on
credibility, a court should not interfere.
[30]
The
findings of the RCMP report were inconclusive. As such, the Board relied on its
own specialized knowledge of having processed numerous refugee claims from China. The Board
gave the Applicant the opportunity to respond to its concerns with regard to
the documentation. However, the Board came to the conclusion that the
Applicant’s explanations were not sufficient.
[31]
Since
the Applicant had not proven his identity, the Board could have ended its
analysis of the claim. However, in this instance the Board chose to continue
its analysis with the Applicant’s alleged practise of Falun Gong.
[32]
It
was reasonable for the Officer to expect the Applicant to perform the exercises
correctly, since it was the basis for his claim. See Lu v. Canada (Minister
of Citizenship and Immigration), 2006 FC 1233, [2006] F.C.J. No. 1534 at
paragraph 8; Liu v. Canada (Minister of Citizenship
and Immigration), 2007 FC 595, [2007] F.C.J. No. 807 at paragraphs 7 and 8. The
Board made a clear finding that the Applicant was not, and had never been, a
Falun gong practitioner and there was no basis for his claim.
[33]
In
order to establish a fear of persecution, both an objective and subjective fear
must be proven. See Ward, supra. The Board’s negative finding of
credibility makes the objective component irrelevant, since the subjective
component has not been adequately proven. The lack of evidence with regard to
the subjective element is enough to warrant dismissal of the claim. See Mukharji
v. Canada (Minister of Citizenship and Immigration), 2004 FC 721, [2004]
F.C.J. No. 911 at paragraph 30; Ahoua v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1239, [2007] F.C.J. No. 1620 at
paragraph 16.
ANALYSIS
[34]
The
Board found that “even if the claimant was a citizen of the People’s Republic
of China, I find, on
a balance of probabilities, that the claimant is not, nor ever has been, a
Falun Gong practitioner.” Extensive reasons are provided for this conclusion
and, given the Applicant’s failure to demonstrate an exercise correctly, and
his inability to answer even basic questions about Falun Gong, such a
conclusion is entirely reasonable.
[35]
The
Applicant says that the Board committed reviewable errors with regards to his
identity documentation and to his practice of Falun Gong.
While it is open to conclude that the
applicant was not himself a Falun Gong practitioner, the question the panel
next was required to consider, was whether, despite the Applicant’s failure to
demonstrate he is a practitioner, he was perceived as such by the authorities
in China. It is submitted, that persecution is to be perceived from the vantage
point of the persecutor rather than the applicant himself. Thus, the panel’s
failure to consider how the applicant would have been perceived by the authorities
in China is a serious error of law.
[36]
So
the Applicant is saying that, even if he is not a Falun Gong practitioner, and
never has been, the Board should have considered whether the Chinese
authorities perceive him as such and whether he faces persecution and risk as a
consequence of that perception. The Applicant says that the Board should have
asked whether the Applicant associated with Falun Gong practitioners in China and should
have made findings of fact on this issue.
[37]
The
problem with this argument is that the basis for the Applicant’s allegation – that
he is perceived as a Falun Gong practitioner and faces section 96 and 97 risks
as a consequence of this perception – is that the Applicant actually is a Falun
Gong practitioner. If he is not, then his whole narrative about what has
happened to him in the past and the risks he faces in the future, falls apart.
This is why the Board specifically found that there was “no credible basis to
his claim” and that “the claimant has no fear of persecution” or “risk to his
life nor to a risk of cruel and unusual treatment or punishment nor to a danger
of torture in the People’s Republic of China.” In effect,
the Board makes a sweeping credibility assessment. See Yang v. Canada
(Minister of Citizenship and Immigration), 2003 FC 971, [2003] F.C.J. No.
1236. The whole subjective basis for his refugee claim disappears, which is
sufficient for the claim to fail. See Mukharji, supra, at
paragraph 30; Ahoua, supra, at paragraph 16.
[38]
As
the Applicant points out, the finding of the Board that the Applicant was not,
and never had been, a Falun Gong practitioner, is an alternative finding.
[39]
As
regards the identity findings, however, it seems to me that the RCMP report was
not favourable to the Applicant. The report found the authenticity of
the driving licence “inconclusive,” so that the Board was at liberty to apply
its own expertise and come to the conclusions it did after questioning the
Applicant. The Applicant had been put on full notice that the Board was
concerned about identity and that he would have to produce acceptable
documentation or a reasonable reason for a lack of documentation. The
transcript shows that the Board questioned the Applicant on these issues. The
Decision explains why the Board found the documentation produced, and the
reasons for not producing the resident identity card, unacceptable. I agree
with the Respondent that, although the phrasing in the Decision is sometimes
imprecise, the substance is clear and the Board provided a reasonable
explanation for its findings on identity based upon the evidence before it,
including the Applicant’s testimony. See Qiu v. Canada (Minister of
Citizenship and Immigration), 2009 FC 259, [2009] F.C.J. No. 368 at
paragraphs 6, 11 and 14.
[40]
As
regards the Hukou, the forensic report found that its authenticity was
“inconclusive.” There was no household number of the document “which is
unusual, but has been seen before.” The Board provides distinct reasons for
rejecting the Hukou: there was no number on it; the Applicant’s
explanation was not satisfactory; country documents indicated that a number is
placed on the Hukou; and the Hukou had very few security
features. A reading of the Decision as a whole reveals that it was not simply
rejected because the driving licence was rejected.
[41]
The
Board took the driving licence and the Hukou into account, but made much
more of the fact that the Applicant had failed to produce his resident identity
card and could not provide a reasonable explanation for his failure to do so.
[42]
In
the full context of the lack of acceptable identity documentation the Officer’s
rejection of the Hukou because it had no number and had very few
security features is reasonable. The statement “since I find the driver’s
licence is fraudulent, I must also conclude that the Hukou is as well,
as there is no number on it” should not be read out of context. When the
Decision is read as a whole, my conclusion is that the Board is simply pointing
out, albeit in a clumsy way, that the absence of a resident identity card, and
an inauthentic driver’s licence, do not provide much support for a Hukou
with no number and no security features on it and which is probably inauthentic
as well.
[43]
In
any event, the alternative ground stands alone. There was no subjective or
objective basis for the Applicant’s claim which was based upon an assertion
that the authorities in China wanted to arrest him because he is a Falun
Gong practitioner and had been practising on a daily basis since June of 2005.
As the Board pointed out, there was no credible basis to the Applicant’s claim.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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