Date: 20110304
Docket: IMM-3583-10
Citation: 2011 FC 262
Ottawa, Ontario, March 4, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
XING LIU
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks an order setting aside a May 27, 2010 decision of the Refugee
Protection Division of the Immigration Refugee Board (the Board), which found him
to be neither a Convention refugee nor a person in need of protection under sections
96 and 97 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA). For the reasons that
follow, the application for judicial review is dismissed.
[2]
The
applicant, Mr. Liu, is a Chinese citizen. With the assistance of a smuggler
and an admittedly fraudulent passport, he arrived at Pearson International Airport in Toronto, Canada on February 3,
2008. He made a refugee claim on February 8, 2008. On March 29, 2010 the
Board denied the applicant’s refugee claim on the basis that he was neither a
Convention refugee nor a person in need of protection under sections 96 and 97 of
IRPA. The Board also found that the applicant had advanced a fraudulent
refugee claim.
[3]
Before
the Board the applicant claimed that the Public Security Bureau (PSB) in China was seeking to arrest
him because he allegedly injured a PSB officer while the officer was attempting
to arrest his mother and father for their participation in an underground
church. The applicant apparently tried to restrain the arresting officer which
caused a second officer to trip and hit his head on a table. The applicant’s
father then restrained another, third, officer who attempted to arrest the
applicant so that he, Mr. Liu, could escape from their house. Mr. Liu then
went into hiding at a friend’s house. The applicant contended that that same
evening, the PSB came back to his parents’ home looking for him. He also
contended that it was not until June 16, 2008, almost an entire year later, that
the PSB left a Summons for him with his parents in connection with the above
described incident. The PSB also appeared at the hospital on the day the
applicant’s daughter was born, presumably to arrest him. The applicant claimed
that the PSB continues to seek him out, and by inference continues to seek him
out for assaulting a police officer. This is the nature of the applicant’s
claimed persecution.
[4]
The Board characterized
the authenticity of the corroborating documents supplied by the applicant
as determinative in arriving at its decision in this case.
[5]
The Board
concluded that the Summons and Notices of Detention filed by the applicant were
fraudulent. It noted two discrepancies between the supposedly corroborative documents
provided by the applicant and the sample documents provided pursuant to in a Response
to Information Request. The Summons left with the applicant’s
parents was missing a serial number and was also missing the applicant’s address.
Additionally, it was dated a year after the events in question allegedly took
place. The Notices of Detention were also missing a serial number.
[6]
The
applicant challenges the reasonableness of the decision made on the basis of
these discrepancies. In this regard, the applicant put forth three primary
arguments: first, that the evidence demonstrated that there were regional
discrepancies in the procedure by which criminal justice is administered in
China; second, that evidence showed that it was not uncommon for the PSB to
leave summonses with family members, as was done here; and finally, that
documents relied on by the Board for the purpose of comparison were dated 2004,
three years prior to the events in question.
[7]
Counsel
for the respondent argued that the Board was entitled to make the credibility
findings it did, and that the Court is not to reweigh the evidence supplied to
and before the Board. This Court is also aware that the existence
of an alternative interpretation of the evidence but not chosen by the decision
maker does not, in and of itself, constitute reviewable error. The
respondent argues that it was open to the Board to assess the documents and to
draw reasonable inferences from them. This is a persuasive argument.
[8]
The
attachments to the Response to Information Request include three types of
summons and all three provide a space for an address. It was reasonable for
the Board to expect that the applicant’s Summons should bear some resemblance
to one of these three types of summonses. In other words, the absence of an
address on the Summons allegedly issued by the PSB to the applicant provided a
reasonable evidentiary foundation for the concerns that the Board had in
respect of the applicant’s claim, particularly so given the PSB’s familiarity
with the applicant’s place of residence.
[9]
The
applicant could not explain the variance between the documents tendered and
those forming part of the information package. With respect to the questions
he did answer, the Board found the applicant to be evasive and hesitant. In
some cases, the applicant simply did not answer the questions put to him.
Counsel argues that it was unreasonable to expect the applicant to be able to
explain discrepancies and deviations in practice, particularly in light of the
unchallenged evidence that there were in fact discrepancies and deviations in
the administration of the criminal justice system in China. It is
argued by counsel for the applicant that the Board thereby engaged in
speculation as to how and why the Chinese police acted as they did in this
case, and that it was therefore unreasonable to draw negative inferences and
credibility findings based on the applicant’s inability to explain the
variations.
[10]
It
is true that asking an applicant to provide answers to questions to which he
could only speculate and then to draw negative credibility inferences from a
claimant’s inability to provide equally speculative answers may in some cases
constitute an error. However, in respect of comparing documentary evidence
tendered by an applicant with that of evidence contained in a Response to
Information Request, this Court has held that:
In order to find that the summons was not a reliable
document, the Board relied upon inconsistencies between it and samples of
summonses attached to a Response to Information Request. The evidence of
the sample summonses provided a proper evidentiary basis for the RPD’s
conclusion and its finding cannot be said to be patently unreasonable. (Li
v Canada (Citizenship and Immigration), 2007 FC 1030, at para 20)
The same may be said in the decision presently under review
by this Court.
[11]
In
sum, there was on the record evidence before and upon which the Board reasonably
predicated its findings of credibility. The negative inferences about the
applicant’s credibility drawn from this documentary evidence were reasonably
open and available to it to make. As long as the actual outcome of the case
falls within the range of possible, acceptable outcomes in respect of the facts
and law, the possibility that another decision maker might view the same facts
differently, or come to another interpretation, does not constitute grounds
upon which this Court will review and disturb a decision of the Board. Before
this Court the applicant has set forth an alternative explanation of what the
evidence might have demonstrated; however, this does not necessarily entail
that the assessment of the evidence as determined by the Board is unreasonable.
[12]
Accordingly,
the application for judicial review is dismissed.
[13]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and none arises.
"Donald
J. Rennie"
Email this Content