Date: 20070124
Docket: IMM-1575-06
Citation: 2007
FC 77
Toronto, Ontario, January 24, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
XIONG
WANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Wang, a citizen of the People’s Republic of China, alleges a fear of Chinese
authorities on the basis of his status as a Christian and his involvement in an
underground church in China.
The Refugee Protection Division (RPD) of the Immigration and Refugee Board
rejected his claim and determined that he was neither a Convention refugee nor
a person in need of protection. It concluded that Mr. Wang’s lack of
credibility negated his subjective fear. The credibility finding was fatal to
the claim.
[2]
Mr. Wang contends that the RPD was overzealous
in its desire to find inconsistencies in his evidence by engaging in a
microscopic analysis and failing to consider context and educational
background. The number of errors (including misstated evidence) and the
unfounded negative inferences are allegedly “so profound that they clearly
undermine the totality of the RPD’s reasons”. Furthermore, the tone of the
RPD’s reasons indicates that the misstatements of fact heavily and negatively
influenced the manner in which the RPD viewed Mr. Wang’s credibility.
[3]
I conclude that the credibility findings are
clear and, with one exception, are not patently unreasonable. Although the
tenor of the reasons is unnecessarily abrasive, I am satisfied that Mr. Wang
received a fair hearing.
I. Facts
[4]
Mr. Wang lived in the village
of Xi Lu and claims to be a Christian. He alleges
that the Public Security Bureau (PSB) discovered the existence of his
underground church on December 18, 2002 and arrested the organizer and three
members. Although he managed to escape, the PSB subsequently learned of his
involvement and appeared at his home on December 19th and December
26th. Mr. Wang was not at home on either occasion because he was
hiding at a friend’s house. During its second visit, the PSB apparently showed
an arrest warrant to his family and stated that charges had been laid “to put
[Mr. Wang] into jail”.
[5]
With the assistance of an agent, Mr. Wang says
that he fled China for Switzerland on January 9, 2003, using his
valid Chinese passport. For over five months, he lived in Zurich with a snakehead, who had arranged
his flight. After travelling by train from Zurich to Vienna, he flew from Austria to Canada on June 21, 2003, using a false Japanese passport provided by the snakehead.
He destroyed both his legitimate and false passports before arriving in Canada. He claimed refugee status upon
arrival.
II. The Decision
[6]
The RPD, in a decision spanning 22 pages, cited
a plethora of inconsistencies and implausibilities in Mr. Wang’s testimony. It
was unable to find, on a balance of probabilities, that Mr. Wang ever practiced
Christianity in China. The RPD
stated:
My review of the
totality of the evidence in this claim leads me
to conclude that
there is not one iota of truth in this claimant’s
story. There were
contradictions and inconsistencies in every
part of his
evidence.
Therefore, the
gravity of the inconsistencies, omission of incidents and implausibilities, in
the absence of reasonable explanations, is such that it leads me to conclude
that the lack of credibility extends to all relevant evidence emanating from
the claimant and renders his entire testimony not credible.
[7]
The RPD also noted that one of the exhibits in
the documentation package explained that arrest warrants are noted on a Chinese
citizen’s hukou (Chinese household registration system document). Thus,
in light of the documentary evidence, it concluded that it was not credible
that Mr. Wang, ostensibly sought by the PSB, would obtain a hukou issued
in his name (six months after he had left the country) which did not mention
that he was wanted by the authorities.
III. Issue
[8]
The issue, as framed by Mr. Wang, is whether the
decision was based on erroneous findings of fact such that the conclusions derived
from these findings taint the totality of the reasons provided by the RPD and
render them patently unreasonable.
IV. The
Standard of Review
[9]
It is common ground that findings of credibility
are findings of fact and, as such, are to be reviewed on a standard of patent
unreasonableness.
V. Analysis
[10]
I do not intend to list the various
inconsistencies noted by the RPD. Suffice it to say that the decision,
throughout, is replete with findings of inconsistency and implausibility. Mr.
Wang lists eight separate “erroneous” findings. However, he provides argument
in relation to only four of them. I will confine my analysis to the four
findings that have been challenged.
[11]
First, Mr. Wang identifies an issue as to
whether he mentioned in his personal information form (PIF) that he worked for
the church. He submits that the RPD suggests that he did not include reference
to his church employment in the narrative. Mr. Wang maintains that, when regard
is had to the PIF narrative, it is clear that he did indeed refer to his work
at the church.
[12]
The point that caused the RPD to draw a negative
credibility finding on this issue related to a discrepancy between the port of
entry (POE) documents and the PIF. In the “employment” history section of each
document, Mr. Wang provided two different job titles for the same period of
time. At the POE, he stated that after working as a self-employed driver, he
became a church worker. In his PIF, he wrote that he worked on the family farm
during this period. The RPD did acknowledge that Mr. Wang referred to his
church activities in his narrative. The real issue was that, at the POE, he
characterized his church work as employment, but in his PIF and at the hearing,
he maintained that his church work was not work at all. In these
circumstances, it cannot be said that the RPD’s finding was unreasonable, let
alone patently so.
[13]
Second, Mr. Wang takes issue with the finding
regarding the nature of the work he did for the church. He refers to the RPD
comment that, at the POE, he stated that he “assisted the minister with
preaching”. The RPD found that this was inconsistent with the evidence at the
hearing where he indicated that he did not actually preach. Mr. Wang points to
page 3 of the POE notes where it is stated, “subject explains that the Chinese
government issued a warrant for his arrest because he was assisting a Taiwanese
minister in preaching. His involvement was only as an interpreter not as a
preacher, but, government thought that he was involved in preaching and religious
freedom”. According to Mr. Wang, the RPD, intending to illustrate
inconsistency regarding the issue of preaching, relied on an erroneous finding
of fact.
[14]
The RPD’s finding of inconsistency in this
respect also involved Mr. Wang’s admission to “making speeches”. The POE
interview notes include a list of questions asked and responses provided. In
answering the question “do you have any fear of persecution in China”, Mr. Wang stated: “[e]very time I
went to make some speeches I have problems everywhere”. Yet, at the hearing,
he said that he did not make speeches. Again, in the circumstances, the RPD’s
finding is not patently, or otherwise, unreasonable.
[15]
Third, Mr. Wang contends that the RPD found an
inconsistency with respect to his stated employment when it concluded that he
had indicated in the background information document that he was a
self-employed driver while on his PIF, he claimed to have worked on the family
farm. Since a review of the PIF reveals that he did state that he was a self-employed
driver, the RPD’s finding is erroneous.
[16]
Mr. Wang is correct in this respect. The
finding is patently unreasonable because the PIF does contain a statement that
Mr. Wang was a self-employed driver. However, given the litany of
inconsistencies identified by the RPD, this single error could not affect the
totality of the decision. Moreover, there is inconsistency with respect to the
dates provided for Mr. Wang’s employment history as a self-employed driver. At
his POE interview, he stated that from January 1990, to January 1998, he worked
as a self-employed driver. In his PIF, he stated that he worked as a
self-employed driver from October 1990, to December 1998. Consequently, the
issue is still a question of his employment from January 1998 to December
1998. Was Mr. Wang working as a self-employed driver, as a church worker, or
on the family farm?
[17]
Fourth, Mr. Wang asserts that the RPD
overemphasized an inconsistency with respect to the date of the triggering
event. In this submission, Mr. Wang implicitly acknowledges an inconsistency.
His quarrel is with the weight the RPD assigned to the inconsistency. This
argument is without merit. It is for the RPD, not the court, to determine the
weight to be assigned to the evidence. Moreover, there is no indication as to
the weight that was assigned to the inconsistency. The RPD emphatically stated
that it was the cumulative effect regarding the glut of inconsistencies that
lead it to its conclusion.
[18]
As for Mr. Wang’s allegation that his lack of
education ought to have been considered, I note that Mr. Wang had the benefit
of counsel in the preparation of his PIF and at his hearing. He was not a
self-represented litigant. However, the difficulty with this submission is that
it lacks specificity and constitutes a bare assertion made in a vacuum. As
such, it is not possible to assess it.
[19]
I turn now to the allegation regarding the tenor
of the RPD’s reasons. Mr. Wang points to five separate notations in the RPD’s
decision, which he asserts contain “innuendo which goes far beyond a finding of
inconsistency but is clearly ad hominem”. The allegation is a serious
one and I regard it as such. As a result, I have carefully reviewed the
reasons and the transcript of the hearing. Regrettably, I find that the tenor
of the RPD’s decision is harsh and abrasive. The language used in the
notations to which Mr. Wang refers is unnecessarily severe. Worse still, it
does not reflect the degree of professionalism that is expected of a
quasi-judicial tribunal. Claimants are entitled to respect and disparaging
comments are unacceptable.
[20]
However, having carefully reviewed the
transcript, I am satisfied that the impugned comments are not indicative of the
conduct of the hearing. Aside from occasional exasperation as a result of Mr.
Wang’s failure to respond to questions, the RPD was dispassionate and courteous
throughout the hearing. There is no question that Mr. Wang received a fair
hearing. While the impugned comments are not to be condoned, I am cognizant
that the reasons are 22 pages in length and that Mr. Wang takes issues with
five notations in the 22 pages. That said, the RPD member is cautioned to
exercise restraint with respect to his choice of language in the future.
[21]
Counsel did not suggest a question for certification
and none arises.
ORDER
THIS COURT ORDERS that the
application for judicial review is dismissed.
“Carolyn
Layden-Stevenson”
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