Date:
20080220
Docket: IMM-1729-07
Citation: 2008 FC 229
Ottawa,
Ontario, February 20, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
SHU
HUA ZHOU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the “Board”), which
found that the applicant was not a Convention refugee or a person in need of
protection in accordance with sections 96 and 97 of the Immigration and
Refugee Protection Act, S.C. 2001, ch. 27 (the “Act”). Leave to apply for
judicial review was granted by Justice Snider on November 2, 2007.
[2]
The
applicant is a citizen of China who bases his claim on his fear of the
Public Security Bureau (the “PSB”) in that country. In his Personal Information
Form (PIF), the applicant alleges that he had rented a residential property to
a friend, Jun Zhang, and four other people, who were later arrested because
they were Falun Gong practitioners. After the arrest of his tenants, the
applicant’s wife contacted the applicant to inform him that the PSB had come
looking for him and had searched his home, alleging that he was a Falun Gong
practitioner and had harboured Falun Gong practitioners. The applicant, on the
advice of his wife, went into hiding and, after a few days, decided that he had
to leave China. The
applicant alleges that the PSB is still looking for him.
I. The Board’s decision
[3]
The
Board did not believe the applicant’s story:
I do not find it plausible that if the
claimant was wanted for harbouring a Falun Gong practitioner, why his wife was
not also arrested. The claimant maintains that the property rented to Mr. Zhang
was a private sale, with nothing registered publicly to determine ownership.
The Public Security Bureau, when they allegedly attended his own home, did not
seize the lease agreement, proof of ownership or any utility invoices with
respect to the rental property. The claimant maintained that all the utility
invoices were in his name, which does not, in and of itself, provide proof of
ownership. Thus, there is nothing for the Public Security Bureau to know who
actually owned the rental property where Mr. Zhang resided. The claimant stated
that, when asked as to why his wife was not arrested, his wife was not
suspected because she told the Public Security Bureau that he, the claimant,
rented the premises to Mr. Zhang. I reject this explanation. From country
documentation, the Public Security Bureau is a brutal police force. I do not
find it plausible, without proof of ownership of the rental property, that the
claimant’s wife was not arrested for also harbouring a Falun Gong practitioner.
When it was put to the claimant that the Public Security Bureau would not know
who owned the property and, therefore, his wife should also have been arrested,
the claimant stated that in the area of the People’s Republic of China he comes from, women do not have such
privileges (sic owning property). I reject this explanation, as the claimant
had no documentary evidence to support this allegation and it was noted to the
claimant that the panel member, using her specialized knowledge of having heard
hundreds and hundreds of Chinese claims, that women do own property in the
People’s Republic of China [footnote omitted].
The Board concluded that, “as no other
reason was put forward as to the claimant’s fear of persecution,” the applicant
was not a Convention refugee or a person in need of protection.
II. Issues
[4]
The
applicant raises two issues:
A.
Did
the Board commit a reviewable error in its assessment of the applicant’s
credibility?
B.
Did
the Board commit a reviewable error by failing to conduct a separate analysis
of the applicant’s claim under section 97 of the Act?
III. Analysis
A.
Did the Board commit a reviewable error in its assessment of the applicant’s
credibility?
[5]
The
applicant submits that the Board ignored relevant evidence when it determined
that his claim was not credible, by failing to address the existence of a Land
Use Certificate in his name, and that it misconstrued the available evidence
when it stated that the rental agreement constituted a “private sale” (the Land
Use Certificate can be found at page 477 of the Tribunal Record). For its part,
the respondent submits that the applicant, during the hearing before the Board,
conceded that he did not know how the PSB could know that the property was in
his name, and that the Board did not commit a reviewable error when it
determined that it was implausible that only the applicant, and not his wife,
would be sought by the PSB.
[6]
The
standard of review with regard to the Board’s assessment of the credibility of
a claimant is patent unreasonableness. Put another way, this Court can only
intervene in situations where the Board based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it (Federal Courts Act, R.S.C.
1985, c. F-7, s. 18.1(4)(d); Traore v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1256, [2003] F.C.J. No. 1585 (T.D.) (QL); Chen v.
Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th)
165, [1999] F.C.J. No. 551 (C.A.) (QL)). Although the Board has complete
jurisdiction to make findings of credibility, and can base these findings on
its assessment of the plausibility of an applicant’s story, these findings must
be based on the evidence (Ilyas v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1270, [2004] F.C.J. No. 1522
(T.D.) (QL); Divsalar v. Canada (Minister of Citizenship and Immigration),
2002 FCT 653, [2002] F.C.J. No. 875 (T.D.) (QL); Zhou v. Canada (Minister of
Citizenship and Immigration), 2006 FC 70, [2006] F.C.J. No. 173 (T.D.) (QL)).
[7]
Furthermore,
the Board is presumed to have considered the totality of the evidence, and the
failure to mention a particular piece of evidence is not, in itself, fatal to
the Board’s decision (Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315, [1993] F.C.J. No. 732
(C.A.) (QL); Hassan v. Minister of Employment and Immigration) (1992),
147 N.R. 317, [1997] F.C.J. No. 946 (C.A.) (QL)). However, if the Board fails
to mention evidence which squarely contradicts the Board’s conclusions, it will
be easier for a Court to determine that the Board reached those conclusions
without considering the totality of the evidence (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, [1998]
F.C.J. No. 1425 (T.D.) (QL); Qasem v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1182, [2002] F.C.J. No. 1618 (T.D.) (QL)).
[8]
In
this case, during the course of the hearing before the Board, the applicant was
confronted with the question of why the PSB would not have been interested in
his wife:
Presiding Member: Okay. Well sir, you
indicated the PSB made the assumption that you were a Falun Gong practitioner
or harbouring a Falun Gong practitioner. Why would they not also make the
assumption that your wife knew about this arrangement and that she was either a
Falun Gong practitioner or harbouring a Falun Gong practitioner?
Claimant: Because the title deed is in my
name.
Presiding Member: Okay. But how did the
PSB know that? They never seized your deed, they never seized the lease. How
would they know that the title was in your name?
Claimant: Because in our area usually
females do not have such privileges.
Presiding Member: Sir, I have done – I am
going to use my specialized knowledge of having done thousands now, of Chinese
claims where women in Guangdong
Province have owned property.
Claimant: Because the title deed is my
name, registered in my name.
Presiding Member: I understand that, sir,
but how does the PSB know that? They didn’t seize the lease, they didn’t seize the
title to your property, how would they know that property was in your name and
not your wife’s or that you and your wife owned the property jointly?
Claimant: I have no idea.
Presiding Member: Okay. Do you have any
documentation to support this allegation that women don’t usually own property
in your area?
Claimant: [No response]. (Tribunal Record
at pages 500-501)
[9]
Later
on during the hearing, the applicant’s counsel made the following comments:
Now with respect to the evidence itself
one other question that came up is how would the authorities know that the
rental property was his or why did they go after him and not his wife, that’s
one of the issues that came up. Although it was a private sale and there seemed
to be no actual registration required the electrical bills, hydro bills are all
in his name.
It would be plausible that the
authorities would have checked the records on the location and would have found
out that this name was on – his name appeared when checking that. With respect
to ownership maybe not but with respect to who is paying all the bills over
there, the bills were in his name and from that it would be logical to presume
that they would tie him into the picture. (Tribunal Record at page 513)
[10]
The
applicant submits that the Board should have considered the Land Use
Certificate which indicated that the land being rented was owned by the
applicant, not his wife, and that “it is inconceivable that in a police
investigation, the registration of the property would not have been checked by
the PSB with the government authorities.” However, the applicant has presented
no evidence as to the purpose of a Land Use Certificate, nor to demonstrate
that the PSB would have verified the registration of such a certificate.
[11]
In
my opinion, based on the evidence before the Board, it was entitled to come to
the conclusions that it did. Although it did not specifically mention the Land
Use Certificate in its reasons, this certificate does not contradict the
Board’s conclusion, which was that there was no indication as to why the PSB
would not have targeted the applicant’s wife in addition to the applicant. Furthermore,
the Board did not misconstrue the evidence when it referred to a “private
sale.” Rather, it used the very same language that had been employed by counsel
for the applicant in the hearing before the Board when describing the initial
transfer of ownership to the applicant. I would not find the Board’s conclusion
to be patently unreasonable.
[12]
The
applicant also seems to suggest that the Board ignores documentary evidence,
but does not point to any documentary evidence in particular. As the respondent
points out, the burden is on the applicant to demonstrate, on the balance of
probabilities, that he has a well-founded fear of persecution (Adjei v.
Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, [1989]
F.C.J. No. 67 (C.A.) (QL); Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589, [1993] F.C.J. No. 1172
(C.A.) (QL)). Although the documentary evidence may indicate that risks of the
type described by the applicant exist, it does not demonstrate that the
applicant himself faces such risks. This must be assessed based on the evidence
specific to the applicant, which the Board in this case determined was not
sufficient to establish that the applicant was at risk.
[13]
The
applicant also argues that the Board applied North American logic and reasoning
without considering the cultural and social background of the applicant in China (Lubana v.
Canada (Minister of
Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162
(T.D.) (QL); Attakora v. Canada (Minister of Employment and Immigration)
(1989), 99 N.R. 168, [1989] F.C.J. No. 444 (F.C.A.) (QL); Rahnema v. Canada
(Solicitor General), 22 Imm. L.R. (3d) 127 at para. 20, 1993 F.C.J. No.
1431 (T.D.) (QL)).
[14]
The
respondent contests this assertion stating that the member simply decided or
referred its conclusion based upon the evidence, particularly upon the
applicant’s own testimony.
[15]
Analysing
this submission, I must agree with the respondent’s opinion.
[16]
There
are no indicia in the member’s decision justifying the conclusion that the
applicant’s culture, customs and interpretation of events was decided solely
upon an inappropriate assessment based upon North American logic and reasoning.
B.
Did the Board commit a reviewable error by failing to conduct a separate
analysis of the applicant’s claim under section 97 of the Act?
[17]
The
applicant submits that the Board’s failure to conduct a separate analysis of
his claim to determine if he is a person in need of protection, according to
section 97 of the Act, is inconsistent with the law and with the Board’s own
Guidelines. The respondent, on the other hand, submits that the Board was not
required to conduct such an analysis because it had determined that the
applicant lacked credibility and had therefore failed to demonstrate any risk.
[18]
The
question of whether a separate section 97 analysis is required has been
considered many times by this Court. In Bouaouni v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1211, [2003] F.C.J. No. 1540
(QL), Justice Blanchard made the following comments:
There may well be instances where a
refugee claimant, whose identity is not disputed, is found not to be credible
with respect to his subjective fear of persecution, but the country conditions
are such that the claimant’s particular circumstances, [sic] make him or her a
person in need of protection. It follows that a negative credibility
determination, which may be determinative of a refugee claim under section 96
of the Act, is not necessarily determinative of a claim under subsection 97(1)
of the Act. (para. 41)
This reasoning was followed in Kilic v. Canada (Minister of
Citizenship and Immigration), 2004 FC 84, [2004] F.C.J. No. 84 (T.D.)
(QL), where the Court found that the Board had erred by failing to consider
whether section 97 was applicable, although it had accepted that the claimant
had evaded military service, and there was documentary evidence suggesting that
this put him at risk.
[19]
However,
this Court has also determined that a separate analysis of section 97 is not
necessary when the claim is based entirely on Convention grounds, and the Board
has determined that the claimant is not credible. “If the evidentiary basis for
both claims is the same and the applicant’s story is not believed, there will
be no need to proceed to a separate 97 analysis, as there will be no evidence
to ground the applicant’s claim that he or she is in need of protection” (Ayaichia
v. Canada (Minister of Citizenship and Immigration), 2007 FC 239 at para.
19, [2007] F.C.J. No. 300 (T.D.) (QL). See also Plancher v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1283 at para. 16, [2007] F.C.J.
No. 1654 (T.D.) (QL); Soleiman v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1660 at para. 22, [2004] F.C.J.
No. 2013 (T.D.) (QL); Nyathi v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1119, [2003] F.C.J. No. 1409
(T.D.) (QL); Kulendrarajah v. Canada (Minister of
Citizenship and Immigration), 2004 FC 79, [2004] F.C.J. No. 94 (T.D.)
(QL)).
[20]
In
my view, this case is more closely analogous to the latter than the former
cases. The applicant in this case has based his claim entirely on his fear of
the PSB which, he alleged, sought him for having harboured Falun Gong
practitioners. Having determined that this claim is not credible, the Board was
not required to conduct a separate analysis concerning section 97 of the Act.
IV. Conclusion
[21]
This
application for judicial review will be dismissed. The Board’s conclusion that
the applicant lacked credibility was not patently unreasonable. Having come to
this conclusion, the Board was not required to conduct a separate analysis to
determine if the applicant was a person in need of protection.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed. No question need be certified.
"Orville
Frenette"
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