Date: 20070906
Docket: IMM- 3664-06
Citation: 2007 FC 890
Montréal, Quebec, September
6, 2007
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
HONG GE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), Mrs. Hong Ge applies for judicial review of a decision
of the Immigration and Refugee Board, Refugee Protection Division (the Board),
dated June 8, 2006, which determined that she was neither a Convention refugee
nor a person in need of protection.
Relief Sought
[2]
The
applicant requests that the Board’s decision be referred to a differently
constituted panel of the Board for redetermination.
Facts
[3]
The
applicant, Hong Ge, is a citizen of the People’s Republic of China (China). She alleged
having a fear of returning to China due to her involvement in an underground Falun
Gong (also referred to as Falun Dafa) practice in China.
[4]
The
applicant’s second child was born without a permit on June 21, 2001. As a
result, the applicant and her daughter were detained by the Family Planning
Office. Her husband paid a large fine in order to secure their release. Due to
the shock and an infection, the applicant ran a high fever diagnosed as Retina
Hyperaemia. She sought treatment from both western and Chinese doctors, but was
unable to obtain relief.
[5]
In
September 2003, the applicant discussed her illness with a friend who told her
about the practice of Falun Gong, and how it could help her health condition.
The applicant decided to join the practice of Falun Gong in October 2003. She
learned the five sets of exercises from Liu, and later joined the other
practitioners in Liu’s group. She borrowed a book entitled “Zhuan Falun” from
Liu, in order to further understand the practice. The applicant allegedly felt
much better after having practiced Falun Gong for six months.
[6]
On
April 10, 2005, the applicant waited for Liu at a fellow practitioner’s home. They
had planned to practice Falun Gong together that day. When Liu failed to
appear, the applicant called her home and was told that she had been arrested
by the PSB. Liu’s husband advised the applicant to run away and never call
their home again. The applicant then went into hiding at a friend’s home. The
PSB allegedly tried to arrest the applicant at her home on April 13, 2005, and
threatened her husband in order to determine her whereabouts.
[7]
The
applicant entered Canada with the help of an agent on May 2, 2005. She
claimed refugee status three days later. The applicant claimed that while in Canada, she learned
that two other members of her group had been arrested. In addition, her husband
was being visited by the Chinese authorities, who were asking about her whereabouts.
[8]
The
applicant’s refugee hearing took place on April 11, 2006, and her claim for
protection was refused by the Board.
Board’s Reasons
[9]
The
Board determined that on a balance of probabilities the applicant was not a
credible and trustworthy witness and was not a Falun Gong practitioner in China and is not
being sought by the Chinese authorities to be arrested. The Board also concluded
that the applicant had learned her story and some fundamental principles of
Falun Gong in order to advance a refugee claim in Canada, but that
the credibility of her claim was undermined by some central implausibility findings,
especially the conviction and genuineness of her adherence to Falun Gong. The Board
found that the applicant did not face a serious risk of persecution should she
return to China and that she
was not a person in need of protection. Therefore, the Board refused her claim.
[10]
The
Board was guided by the following authorities to determine the applicant’s credibility:
When an applicant swears to the truth of
certain allegations, the allegations are presumed true unless there is a reason
to doubt their truthfulness (see Maldonado v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302, (1979) 31 N.R. 34 (C.A.)).
Contradictions in evidence may be a valid
basis for a negative credibility finding; however even where evidence is
uncontradicted, it may not accord with known country conditions (see Canada (Minister of Employment and
Immigration)
v. Dan-Ash (1988), 93 N.R. 33, 5 Imm. L.R. (2d) 78 (F.C.A.)).
When assessing credibility, the Board is
entitled to rely upon criterion such as rationality and common sense (see Shahamati
v. Canada (Minister of Employment and
Immigration),
[1994] F.C.J. No. 415 (QL)).
A general finding of a lack of
credibility on the part of the applicant may extend to all relevant information
emanating from his testimony (see Sheikh v. Canada (Minister of
Employment and Immigration), [1990] 3 F.C. 238, (1990) 71 D.L.R. (4th) 604 (C.A.)).
A primary way of testing credibility is
to compare what is contained in the applicant’s PIF narrative and his testimony
(see Castroman v. Canada (Secretary of State) (1994), 81 F.T.R. 227, 27
Imm. L. R. (2d) 129, (F.C.T.D.)).
[11]
While
that the applicant’s testimony was consistent with her PIF narrative, the Board
was not persuaded that the events described therein had taken place since it
had plausibility concerns with respect to the applicant’s evidence. The applicant
demonstrated to the Board the degree of knowledge about Falun Gong that one
might normally acquire as a practitioner since 2003 but the Board was not
persuaded that she was a practitioner of Falun Gong, as she did not have other
knowledge that a true practitioner would have.
[12]
When
asked about the consumption of alcohol, the applicant answered that she did not
drink because she could not tolerate alcohol and it made her dizzy. The Board
found that a true practitioner of Falun Gong would state that she did not drink
because Master Li had advised practitioners not to do so. The Board noted
relevant documentary evidence in this regard. The Board found that this
omission was fatal to the applicant’s claim that she had practiced Falun Gong
in Canada and in China.
[13]
The
Board found that the applicant’s participation in Falun Gong events since her
arrival in Canada merely bolstered
her refugee claim. The applicant was asked about the goal of Falun Gong
practitioners and she did not refer to the ability of the third eye, nor was
she explicit with respect to the “Truth, Compassion and Forbearance” doctrine.
Her testimony regarding these matters did not persuade the Board that she was a
practitioner of Falun Gong.
[14]
The
Board had also plausibility concerns with respect to Liu’s arrest. The Board
did not find it plausible that Liu would be arrested prior to attending at the
practice site. The applicant had suggested that Liu may have revealed the
applicant’s identity while being tortured. The Board did not find this
explanation plausible. In addition, there was no evidence that Liu was in
detention.
[15]
The
Board found that the letters from fellow practitioners in Toronto merely
bolstered her refugee claim. In addition, the Board was not persuaded that the
applicant’s difficulties with her eyes caused her to begin practicing Falun
Gong.
[16]
Finally,
the Board cited Urbanek v. Canada (Minister of Employment
and Immigration) (1992) 17 Imm. L.R. (2d) 153 wherein Justice Hugessen found
that the purpose of Canada’s refugee system was not to give a convenient
route to landed status for immigrants who could not or would not obtain it in
the usual way.
Issues
[17]
The
issues submitted by the parties can be rephrased as follows:
- Did the Board breach
procedural fairness or natural justice?
- Did the Board err in
finding that the applicant lacked credibility?
Legislation
|
Immigration and Refugee
Protection Act
(S.C. 2001, c.27)
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; 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.
|
Loi
sur l’immigration et la protection des réfugiés,
(L.C.
2001, ch. 27)
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.
|
|
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.
(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.
|
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.
(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.
|
Standard
of Review
[18]
The
Board’s findings with respect to plausibility and credibility warrant a high
level of deference, and are reviewable on the standard of patent
unreasonableness (see Aguebor v. Canada (Minister of Employment and
Immigration) (1993), 160 N.R. 315 (F.C.A.) while breaches of procedural
fairness or natural justice are subject to review on the standard of
correctness (see Ha v. Canada (Minister of
Citizenship and Immigration), [2004] 3 F.C.R. 195, 2004 FCA 49).
[19]
The
Court notes that the applicant did not provide her own affidavit in support of
this application for judicial review. Rather, the application included the
affidavit of Jacqueline Lewis, a barrister and solicitor from the same law firm
as applicant’s counsel. In Turcinovica v. Canada (Minister of
Citizenship and Immigration) (2002), 216 F.T.R. 305,
2002 FCT 164 (F.C.T.D.), the Court held that “where there was no evidence based
on personal knowledge in support of an application for judicial review, any
error asserted by the applicant must appear on the face of the record”.
[20]
Therefore
the Court will proceed to determine whether the errors asserted by the applicant
appear on the face of the tribunal record. The applicant relied upon an excerpt
of an uncertified transcript contained in the affidavit of Ms. Lewis in support
of her position that the Board had erred in drawing a negative inference from
her answers regarding the consumption of alcohol but this excerpt does not
demonstrate a reviewable error on the face of the record. The Board’s reasons
show that it was engaged in questioning and assessing the genuineness of the
applicant’s adherence to Falun Gong.
[21]
Without
any context, the excerpt relied upon by the applicant does not demonstrate an
error on the face of the record. Therefore the affidavit of Ms. Lewis does not
demonstrate a reviewable error on the face of the record.
[22]
Did
the Board breach procedural fairness or natural justice?
[23]
The
Board found that the applicant’s failure to mention Master Li’s views on the
consumption of alcohol was fatal to her claim that she had practiced Falun Gong
in China and in Canada. The Board noted documentary evidence from the
National Documentation Package for China which set out Master
Li’s views on alcohol.
[24]
The
hearing transcript reveals that that the Board did not ask the applicant about
Master Li’s views with respect to the consumption of alcohol. However, the applicant
was asked twice as to the reason why she did not drink alcohol. The Board “was
under no obligation to alert the applicant at the time of her hearing of its
concerns about the weakness of testimony giving rise to implausibilities” (see Li
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 358 (F.C.T.D.)).
[25]
Therefore
the Board did not breach the principles of procedural fairness in failing to
give the applicant an opportunity to address this concern and therefore the
application for judicial review fails upon this issue.
[26]
Did
the Board err in finding that the applicant lacked credibility?
[27]
The
applicant failed to convince the Court that the Board erred in failing to set
out the standard of knowledge of Falun Gong it expected of the applicant.
[28]
In
its decision, the Board noted that the applicant seemed to demonstrate the degree
of knowledge of Falun Gong that a practitioner would have since 2003. However,
the Board determined that the applicant had failed to demonstrate knowledge of
other aspects of the practice that a true practitioner would know. Thus the
Board noted that the applicant was not explicit with respect to the ability to
obtain a third eye and the doctrine of “Truth, Compassion and Forbearance,” nor
did she mention Master Li’s views with respect to the consumption of
alcohol.
[29]
As
noted above, the Board found that the applicant’s failure to mention Master
Li’s views on alcohol during the hearing was fatal to her claim. The Board
cited documentary evidence in support of its finding. It was open to the Board
to consider the applicant’s answer to its questions about alcohol consumption
when assessing the applicant’s overall credibility.
[30]
The
Board also found that if the applicant was truly a practitioner of Falun Gong,
she would have spoken about the ability to gain a third eye and been more
explicit about the doctrine of “Truth, Compassion and Forbearance”, when asked
about the goals and the tenets of the practice of Falun Gong.
[31]
It
was open to the Board to find that the applicant was not sufficiently explicit
about certain aspects of Falun Gong doctrine; however it is clear from the
hearing record that the applicant did mention the concept of the celestial eye
and the “Truth, Compassion and Forbearance” doctrine in the context of Master
Li’s book. While not necessarily agreeing with the Board’s finding in this
regard, the Court does not believe that this finding can be characterized as
patently unreasonable.
[32]
The
Board was not persuaded that the applicant was motivated to join Falun Gong due
to problems with her eyes. But the Board acknowledged the applicant’s
documentary evidence regarding the condition of her eyes and did not doubt that
she had problems with them. The Board does not support its finding with any
evidence, and merely asserts that “the panel does not find this persuasive that
this is the reason why the claimant began Falun Gong.”
[33]
While
the Board’s reasoning with respect to this finding appears somewhat flawed, the
Court does not believe that it affects as such its overall negative credibility
finding.
[34]
The
Board found that the circumstances leading to Liu’s arrest lacked plausibility,
as did the applicant’s statement that Liu may have revealed her name while
being tortured. The Board noted that there was no explanation as to how Liu was
discovered and found by the PSB. In addition, the arrest allegedly took place
away from the Falun Gong practice site. The Board noted that had there been
evidence that Liu was in detention, the claim that she might have revealed the
applicant’s name under torture could have been plausible.
[35]
In
Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, [2001] F.C.J. No. 1131 (QL),
at paragraph 7, the Court stated the following with respect to plausibility
findings:
A tribunal may make adverse
findings of credibility based on the implausibility of an applicant's story
provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must be
careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu. [see L. Waldman, Immigration
Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[36]
The
Court finds that the Board’s plausibility findings were not supported by any
documentary evidence. The findings were premised upon the Board’s understanding
that the circumstances of Liu’s arrest were outside the realm of what would
reasonably be expected, in that Liu was arrested prior to attending at the
Falun Gong practice site, and the practice site was not raided. But given the
lack of evidence provided by the applicant regarding the circumstances of Liu’s
arrest, the Court finds that the Board did not err in finding that the story
was implausible.
[37]
In
any event, having reviewed the Board’ decision and regardless of the Board’s
plausibility findings, the Court concludes that its overall negative
credibility and plausibility findings were not patently unreasonable and were sufficient
to properly dismiss the applicant’s refugee claim.
[38]
Therefore
the application for judicial review will be dismissed. The parties have
submitted no questions for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1.
The application for
judicial review is dismissed.
2.
No question is
certified.
“Maurice
E. Lagacé”
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