Date: 20071030
Docket: IMM-5173-06
Citation: 2007
FC 1122
Toronto, Ontario, October 30, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
LAI FAN CHAO
QIAO
ZHEN WANG
JUN
KIT WANG
JUN
LIM WANG
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Principal Applicant, Ms. Lai Fan Chao, and her three children
(collectively referred to as the Applicants) are citizens of the People’s
Republic of China (China). They claim
a fear of returning to China due to the involvement of the Principal
Applicant’s husband and children’s father with Falun Gong. As outlined in
detail in her Personal Information Form (PIF), the Principal Applicant claims
that, because her husband is a Falun Gong practitioner who has gone into
hiding, the Public Security Bureau (PSB) will persecute her if she returns to China.
[2]
In a decision dated August 23, 2006, a panel of the Immigration and
Refugee Board, Refugee Protection Division (the Board) rejected her claim. The
Board based its decision on a number of inconsistencies between the Principal
Applicant’s oral testimony and her PIF and a number of parts of her story that,
in the Board’s view, were implausible. The Board concluded that “the principal
claimant is not a credible and trustworthy witness and that the PSB is not
seeking her arrest or her husband’s arrest in China”.
[3]
The Applicants seek judicial review of the Board’s decision.
[4]
The determinative issue is whether the Board’s credibility finding was
patently unreasonable in that it was made in a perverse or capricious manner or
without regard to the evidence. For the reasons that follow, I am persuaded
that the decision should not stand.
[5]
It is well-settled that the standard of review as to the assessment of
credibility of a claimant by the Board is patent unreasonableness (see, for
example, Ogiriki v. Canada (Minister of Citizenship and
Immigration), 2006 FC 342 at para 5). The Board is certainly entitled to
rely on inconsistencies and implausibilities in the record in making its
determination. The same highest standard of review applies to findings based on
implausibilities. As stated by Justice Décary in
Aguebor v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL),
“As long as the inferences drawn by
the tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review”. I would also opine that, as long as
any inconsistencies are supported by the record, they too will not be
questioned, even though the Court may have viewed the inconsistencies
differently.
[6]
With this statement of general principle in mind, I turn to the
decision. The Board noted a number of inconsistencies and implausibilities. A
number of these are not, in my view, supported by the record or, at the very
least, are not explained. The following summarizes the areas where I have
difficulty in accepting the findings of the Board:
1. The Board’s conclusion
that the Principal Applicant was inconsistent in why the PSB might
arrest her is
not borne out by a careful review of the PIF and the transcript. While the
Principal Applicant restated the reasons set out in her PIF, I can find no
inconsistency in substance – only a minor difference in the words used.
2. The Board stated that it did not “find it plausible that the
principal claimant’s husband would not try to get her to do Falun Gong also, if
indeed he was a serious practitioner who had been practicing Falun Gong for
over five years”. The Board does not explain this statement. For example, the
Board could have referred to documentary evidence (if it exists) that reflects
that a Falun Gong practitioner will pressure other family members to join. The
Board does not explain why it would be logical for a father to put his wife and
children in danger by persuading them to practise Falun Gong. While, the
Board’s inference may be supportable, without further explanation I am
simply unable to determine how that inference can be drawn.
3. The Board questioned the plausibility that only two members of
the husband’s Falun Gong group would be caught and that he would be able to
flee when the PSB discovered their underground Falun Gong practice. The Board’s
only stated reason for its concerns was that the “panel would expect that if
the PSB had discovered the group and wanted to arrest them, that there would be
more than two people caught and the principal claimant’s husband would [not] be
able to escape”. The Board does not explain what makes the PSB able to
eliminate the option of escape. From application of my own common sense, I
could equally conclude that it is entirely plausible that someone can escape a
police raid. Perhaps the Board has specialized knowledge about the operational
practices of the PSB that would make its conclusion supportable; I do not know.
The Board’s explanation is inadequate.
4. The Board relied on the omission from the PIF of any reference
to the fact that the Principal Applicant “had received fines for the second and
third child and had been sterilized with a needle”. The Board found this to be
a “major omission as it is very clear in the PIF that all incidents should be
included”. It has never occurred to me that a claimant is required to record
every one of her life’s difficulties in the PIF. Rather, as the instructions
state, the claimant is to “set out . . . all the significant events and reasons
that have led you to claim refugee protection in Canada”. If the
Applicants were claiming protection and fled China because of its policies
towards extra children, the omission would be relevant. However, that is not
why they claim to have left China. A straight-forward response by the Principal
Applicant that she has fears for her children does not change the basis of her
claim. Therefore, it was patently unreasonable for the Board to rely on this
omission. It was open to the Board to consider whether the evidence of the
Principal Applicant’s concerns for the children could support a finding of fact
that the Applicants left China for reasons other than those stated in the PIF.
However, if this was the direction that was being taken by the Board, its
stated reasons fall far short of being an adequate explanation of such a
conclusion.
[7]
None of the other findings by the Board would, in my view, warrant the
Court’s intervention. However, there are four significant short-comings in the
Board’s reasons. These four problems create a situation where I am unable to
conclude that the decision, as a whole, is not patently unreasonable.
Accordingly, I will allow the application and send the decision to a different
panel of the Board for re-consideration.
[8]
Although counsel for the Applicants initially suggested that the
decision could justify the certification of a question, upon reflection and
further discussion, he acknowledged that this case is one that is very fact
driven. No question will be certified.
ORDER
THIS COURT ORDERS that:
1.
The application for judicial review is allowed,
the decision quashed and the matter referred back to the Board for
re-consideration by a different panel of the Board; and
2.
No question of general importance is certified.
“Judith A. Snider”
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