Date: 20080710
Docket: IMM-1163-07
Citation: 2008 FC 856
Ottawa, Ontario, July 10, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
SUZHEN
FANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Suzhen
Fang, a citizen of the People’s Republic of China, came to Canada on a
Temporary Resident Permit to assist her ailing father. She claims to have
taken up the practice of Falun Gong to cope with the grief flowing from her
father’s death. She feared to return to China because of
the persecution of Falun Gong followers by the authorities and applied for
refugee status. The Refugee Protection Division (the “Board”) found she was
not credible and denied her claim for refugee status. Ms. Fang applies for a
judicial review of the Board’s decision.
[2]
Two
issues arise in this judicial review:
1.
Did
the Board err in assessing Ms. Fang’s credibility?
2.
Did
the Board err in not conducting a separate section 97 analysis?
[3]
I
find this application for judicial review should be dismissed. My reasons
follow.
Did the Board err in assessing
Ms. Fang’s credibility?
[4]
Ms.
Fang submits that the Board made numerous errors in assessing credibility. She
contends that the Board erred in failing to accept her explanations and in
rejecting other evidence without proper justification, including:
·
failing
to accept her explanations;
·
failing
to allow for variations in the performance of Falun Gong movements;
·
not
accepting documentary evidence she supplied;
·
failing
to confirm the existence of a website that showed her participation in an
anti-government demonstration;
·
doubting
that Chinese authorities would take action against family members in China a year after
discovering her Falun Gong affiliation;
·
drawing
a negative inference from similarities between her PIF narrative and that of
her brother.
[5]
Ms.
Fang submits that this Court may interfere with the Board’s credibility
findings where such findings are not justified by internal contradictions,
inconsistencies or evasions and further submits that the Board must express its
adverse credibility findings in clear and unmistakable terms (Kilola v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 401 at
paras. 46, 50).
[6]
This
application was heard but not decided before the Supreme Court of Canada’s
decision in Dunsmuir v. New Brunswick, 2008 SCC 9. The
decision in Dunsmuir has established that there are now only two
standards of review: correctness and reasonableness (Dunsmuir at para.
34). Where questions of fact and credibility are reviewed, the standard of
review is reasonableness (Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427 at para. 15).
[7]
A
claimant’s testimony is presumed to be true (Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at para. 6). The
presumption may be refuted by the presence of inconsistencies and
contradictions in testimony, implausibility and where facts as presented are
not what could reasonably be expected (Jiang v. Canada (Minister of
Citizenship and Immigration), 2008 FC 775 at para. 15). Lastly, the Board
is entitled to deference in regard to its credibility determinations (Lubana
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at para. 7).
[8]
I
have reviewed the Tribunal Record, including the PIF Narrative and the Tribunal
hearing transcript. In my view, the Board did consider the evidence relating
to each of Ms. Fang’s points of contention. I cannot say the Board’s findings
on each were not justified. Nor can I say the Board did not articulate its
reasons for its credibility findings in clear and unmistakable terms. The
Board considered the evidence and gave ample reasons for not accepting Ms. Fang
as credible. I do not find the Board’s conclusion on credibility to be
unreasonable.
Did the Board err in not
conducting a separate section 97 analysis?
[9]
Ms.
Fang argues the Board failed to conduct a separate section 97 analysis of the
risk to her life or to cruel and unusual treatment or punishment if she were to
return to China. Ms. Fang submits
there was independent objective evidence to support her claim that her
adherence to Falun Gong makes her a person in need of protection. However, the
Board found Ms. Fang not credible and not likely of interest to the Chinese
authorities.
[10]
In
Brovina v. Canada (Minister of
Citizenship and Immigration), 2004 FC 635 at para. 17, Justice
Layden-Stevenson held:
Thus, while a separate section 97
analysis is desirable, the failure to conduct such an analysis will not be fatal
in circumstances where there is no evidence that would require it. Here,
there were no other grounds to support a finding of person in need of
protection and the risk analysis was performed for Mrs. Brovina in the context
of refugee protection. Moreover, the board did conduct a brief analysis
related to a section 97 risk when it found that there was “no reason to
believe” that Mrs. Brovina would face any risk in returning to Albania. There was no objective
evidence before the board that might have led to any other conclusion (emphasis
added).
[11]
In
her submissions on the Board’s failure to provide a section 97 analysis, Ms.
Fang also referred this Court to Soleimanian v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1660 at para. 19. In that paragraph,
Justice Mosley commented that a recitation of a boilerplate about the content
of section 97 does not amount to an analysis. Of more significance is
paragraph 22 in the same decision where Justice Mosley stated:
This Court seems to have come to a
consensus that a separate section 97 analysis is not required if there is no
evidence that could go to establishing that the person is in need of protection:
Brovina v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.
771, 2004 FC 635; Islam v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 1711, 2004 FC 1391; Nyathi v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. No. 1409, 2003 FC 1119; Ozdemir v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1242, 2004 FC 1008
(emphasis added).
[12]
The
sole basis for Ms. Fang’s claim was that she was a Falun Gong follower who was
known to the Chinese authorities. Her assertion was not accepted by the Board
because it decided she was not credible. I have found the Board’s credibility
finding was not unreasonable.
[13]
As
a result, a separate section 97 analysis was not required since there is no
evidence that Ms. Fang is in need of protection.
[14]
This
judicial review application is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
judicial review application is dismissed.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
Email this Content