Date: 20080624
Docket: IMM-5020-07
Citation: 2008
FC 775
Ottawa, Ontario, June 24, 2008
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
ZHONG JIANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act), for judicial review of a decision of the Refugee Protection Division
of the Immigration and Refugee Board (the Board) dated November 7, 2007,
wherein the Board determined that the applicant was not a Convention refugee
according to Section 96 of the Act, nor a "person in need of
protection" according to Section 97 of the Act.
[2]
The applicant is a citizen of the People’s
Republic of China (China).
[3]
The applicant’s uncle is a Falun Gong
practitioner. His uncle and his uncle’s friend decided to make leaflets
describing the benefits of Falun Gong. As they were unable to perform such a
task, the applicant offered to write the leaflets for them. The applicant was
asked to write a second batch of leaflets in January 2004.
[4]
On January 20 or 21, 2004 the applicant’s uncle
and some fellow practitioners were arrested. A few days after this incident
the Public Security Bureau (PSB) came to the applicant’s home to arrest him,
but he was not there. They searched the premises for the leaflets.
[5]
His mother subsequently informed him that the
PSB had been to his home, and he went into hiding. The police issued a wanted
poster for his arrest.
[6]
The applicant fled China on July 8, 2006,
arrived in Canada on July 20,
2006 and claimed refugee protection on the same day.
[7]
In a decision dated November 7, 2007, the Board
found that the applicant was not a refugee nor a person in need of protection
as he was not a credible witness.
STANDARD OF
REVIEW
[8]
In determining the appropriate standard of
review for a given question, the Supreme Court of Canada has indicated that as
a first step, a reviewing court must look to previous jurisprudence to
determine if it has already established the level of deference to be afforded
to a particular category of question (Dunsmuir v. New Brunswick, 2008 SCC 9, at para.
62). Given that the number of standards of review has been reduced from three
to two, the level of deference to be afforded will fall either within the realm
of reasonableness or correctness.
[9]
A review of the Court’s jurisprudence reveals
that the standard of review applicable to credibility assessments is that of
patent unreasonableness (Xu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1701, [2005] F.C.J. No. 2127 (QL), at para. 5; Asashi
v. Canada (Minister of Citizenship and Immigration), 2005 FC 102, [2005]
F.C.J. No. 129 (QL), at para. 6; Canada (Minister of Citizenship and
Immigration) v. Elbarnes, 2005 FC 70, [2005] F.C.J. No. 98 (QL), at para.
19).
[10]
Given the factual nature of credibility
determinations, and in light of the Supreme Court of Canada’s decision
in Dunsmuir, above, I am of the
view that the standard of review applicable in the present instance is that of
reasonableness.
[11]
Thus, “the existence of justification,
transparency and intelligibility within the decision-making process [and also]
[…] whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” will form the basis of
the present exercise of judicial review (Dunsmuir, above, at para. 47).
ANALYSIS
[12]
The applicant submits that the tenor of the
Board’s reasons is generally microscopic and overreaching and thus constitutes
a reviewable error. I note that while it is true that the Board should not
engage in a microscopic and overzealous interpretation of the evidence (Gill
v. Canada (Minister of Citizenship and Immigration), 2004 FC 921, [2004]
F.C.J. No. 1144 (QL) at para. 13), there is a corresponding obligation on the
reviewing court to read the Board’s decision as a whole and within the context
of the evidence (Miranda v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 437 (QL)).
[13]
Indeed, this view was reiterated, albeit in the
criminal context, by the Supreme Court of Canada in R. v. Gagnon, [2006]
1 S.C.R. 621, [2006] S.C.J. No. 17 (QL), at para. 19, where it held that:
A trial judge's
language must be reviewed not only with care, but also in context. Most language
is amenable to multiple interpretations and characterizations. But appellate
review does not call for a word-by-word analysis; rather, it calls for an
examination to determine whether the reasons, taken as a whole, reflect reversible
error.
Similarly, in my
view, it is imperative to avoid minutely dissecting the reasons provided by an
administrative tribunal.
[14]
Much deference is owed to the Board in respect
of credibility determinations as they constitute the “heartland of the Board’s
jurisdiction” (R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162 (QL), at para. 7).
[15]
This deference is tempered by the principle that
a refugee claimant’s allegations are presumed to be true. (Valtchev v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 776, [2001]
F.C.J. No. 1131 (QL), at para. 6; see also Maldonado v. Minister of
Employment and Immigration, [1980] 2 F.C. 302). However, this presumption
is capable of being refuted based on inconsistencies and contradictions in
testimony (Canada (Minister of Employment and Immigration) v. Dan-Ash,
[1988] F.C.J. No. 571 (QL)), perceived implausibilities so long as they are
based on inferences that are not unreasonable and set out in reasons which
employ "clear and unmistakable terms” (R.K.L., above, at para. 9), and
where “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 [applicant]” (Valtchev,
above, at para. 7).
[16]
After carefully reviewing the parties’ written
and oral submissions, the contested decision of the Panel, the documentary
evidence and the hearing transcript, I am of the view that overall the decision
is sound and unassailable on a reasonableness standard.
[17] In its decision, the Board highlighted numerous inconsistencies in
the applicant’s testimony and Personal Information Form (PIF) narrative. For
example, in the applicant’s PIF he stated that he had originally offered to
write the Falun Gong leaflets for his uncle, while in his testimony he
indicated that he was asked by his uncle to do so. When asked if he was aware
that his family could be at risk because of the assistance he was providing to
the Falun Gong, his answers were inconsistent, responding contradictorily that
he was aware that his family could be harassed by the PSB, and also that he did
not realize that this would happen.
[18] Further, when questioned about the leaflet that he had prepared,
specifically whether the leaflet attempted to repudiate government propaganda
indicating that Falun Gong was evil, he originally answered that the principles
of Falun Gong, included in the leaflet, meant that Falun Gong was not bad, to
which the Board responded that this was not the case. Later, he indicated that
he also explicitly wrote in the leaflet that Falun Gong was not a cult. The
Board saw this as an effort to embellish the leaflet that he allegedly wrote in
response to its questions.
[19] The Board noted that there were inconsistencies regarding how he
found out that the PSB had been to his home. While in his PIF he indicated that
he was informed of the PSB visit by his mother, in his testimony he stated first
that his uncle told him and then that his mother told his grandfather who told
him. In addition, there was nothing in his PIF indicating that he had been in
hiding before he found out that the PSB had been to his house, but rather that
he simply had not been home when they went looking for him.
[20] Moreover,
the Board indicated that the applicant’s story with respect to how he fled China
did not ring true. Specifically, that he put on the costume of a duty free
worker and was able to go directly to the plane without a security check. The
Board also stated that there was no further testimony regarding what the
applicant did with this costume when he went to the plane. While the applicant
correctly points out that no questions were specifically posed on this last
point, I am of the view that the Board’s implausibility findings in this regard
are set out in clear and unmistakable terms (R.K.L., above, at para. 9) and based on common sense and
rationality (R.K.L., above, at para. 10) as per the
jurisprudence. The Board indicated that in the post 9/11 security climate it
was not plausible that someone working in a duty free shop would have access to
a plane without having to pass a security checkpoint.
[21]
In coming to its conclusion that the applicant’s
parents would have been pressured to a greater extent by the PSB, the Board
referred to the Response to Information Request CHN102560.E, dated July 11,
2007. It found that on a balance of probabilities, and in the context of a
search for the applicant reflected in a wanted poster, his parents would have
suffered more determined pressure from the PSB in order to press the claimant
to turn himself in to the PSB. The applicant cites a section of the document
entitled “Treatment of family members” which indicates that according to a
representative of the Falun Dafa Association of Canada:
[The Chinese]
authorities use (. . .) family members as "hostages" to force [Falun
Gong] practitioners to give up the practice. If practitioners do not cooperate
with the authorities, their family members are subject to punishment as well. (.
. .) The punishment includes harassment by the police (random visit by police
to the home), arbitrary interrogation, losing [a] job, losing [the] chance of
promotion, losing [a] pension/state housing, etc.
According to the applicant, this is
indicative of a spectrum of harassment that does not necessarily have to exceed
the level of visits by the PSB. I agree that this passage is indicative of a
spectrum of harassment; however, the Board framed this finding in light of the
allegation that a wanted poster had also been issued for the applicant. Thus,
the existence of the wanted poster was indicative of the context of the search
for the applicant and given this context, the Board was of the view that on a balance
of probabilities his parents would have been pressured to a greater degree.
[22] The Board
found that, based on a Response to Information Request dated June 1, 2004, and
in the context of the wanted poster, the PSB would have issued and shown a
summons to the applicant’s family members when they were looking for him. The
applicant cites the same document where it states that:
However, in 21 April 2004
correspondence with the Research Directorate, the associate professor further
noted that while procedural laws in China are expected to be uniformly
implemented and concerted efforts have been made by the Ministry of public
Security to improve policing standards, in practice the "PSB [Public
Security Bureau] has yet to arrive as a rule of law institution."
According to the associate professor, there can be substantial regional
variances in law enforcement, in which some differences are written into
policies, but "in most instances rule of the book gives way to norms in
the street" (21 Apr. 2004).
The applicant argues that nothing
in the documentary evidence indicates that a summons would necessarily have
been issued or shown to the family. While this point is well taken, I am of the
view that it is not sufficient to impugn the entire decision.
[23] The
applicant further challenges the Board’s conclusion that the prisoner
visitation card he submitted as proof of his uncle’s arrest and imprisonment
was fraudulent. The Board relied on documentary evidence indicating that the
manufacture of fraudulent documents in China was common, the lack of safety
features on the document, its apparent unused condition, and the context of his
previous negative inferences to find that the document was fraudulent. I note
that the Board is entitled to draw conclusions on the evidence before it. While
the Board’s expertise in identifying fraudulent documents may be a debatable
point, taking the decision as a whole, this argument is insufficient to impugn
the Board’s findings.
[24] Overall, I
find the Board’s credibility analysis “falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” pursuant to Dunsmuir, above, at para. 47.
[25] For the
preceding reasons, this application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS that the application of judicial review is dismissed. No question was
submitted for certification.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5020-07
STYLE OF CAUSE: Zhong
JIANG v. The Minister of Citizenship and Immigration
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: June
10, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: TEITELBAUM D.J.
DATED: June
24, 2008
APPEARANCES:
|
Mr. Shelley
Levine
|
FOR THE APPLICANT
|
|
Mr. Ricky Y.M.
Tang
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Levine &
Associates
Toronto,
Ontario
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content