Date: 20081112
Docket: IMM-1862-08
Citation: 2008 FC 1255
Ottawa, Ontario, November 12,
2008
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
TINGTING
SUN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Ms. Tingting Sun, is a citizen of the People’s Republic of China who arrived in Canada on February 26, 2006 on a student
permit. On July 19, 2006, she filed a claim for protection pursuant to ss. 96
and 97(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IRPA), based on a fear of religious persecution if she were
to return to China due to her membership in an underground church in China. In
a decision dated November 15, 2007, a panel of the Immigration and Refugee
Board, Refugee Protection Division (the Board) rejected her claim on the basis
that she was “not credible with respect to the central core of [her] claim”.
Specifically, the Board did not believe that the Applicant was a member of an
underground church in China or that she was wanted by the
Chinese Public Security Bureau (PSB).
[2]
The
Applicant seeks to overturn this decision.
[3]
The only
issue in this application is whether the Board erred in its credibility
findings. The Board’s decision is reviewable on a standard of reasonableness,
meaning that the task of the Court is to determine “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47). It is also
important to note that, on this standard of review, the Court ought not to
substitute its discretion for that of the Board, even if the Court might have
drawn different inferences or reached a different conclusion. In other words,
it is not sufficient for the Applicant to demonstrate that different
conclusions could have been reached on the evidence; the Applicant must show
that the findings of the Board are unreasonable (Sinan v. Canada (Minister of Citizenship and
Immigration),
2004 FC 87, [2004] F.C.J. No. 188 (QL) at para.11).
[4]
Looking at
the decision, as a whole, it appears that the Board doubted the credibility of
the Applicant’s claim for the following key reasons:
·
Joining
the underground Church against the wishes of her parents and knowing that it
could impede her chances to come to Canada
is not rational;
·
Her claim
that the PSB came looking for her in China lacks an air of reality given that:
(a) the PSB would likely have known that she had already left China; and (b) if
the PSB did come to her parents’ home, they would likely have left a summons or
warrant; and (c) her evidence as to the number of times the PSB came to her
home was inconsistent.
[5]
In
assessing the reasonableness of the Board’s decision, certain principles are well
established in the jurisprudence:
1.
The Board,
who has heard the oral testimony, is in the best position to gauge the
credibility or plausibility of a claimant’s account (see, for example, Aguebor
v. Canada (Minister of Employment and
Immigration)
(1993), 160 N.R. 315 (F.C.A.), at para. 4).
2.
A lack of
credibility finding can be based on implausibilities, contradictions,
irrationality and common sense (see, for example, Alizadeh v. Canada (Minister of Employment and
Immigration),
[1993] F.C.J. No. 11 (F.C.A.) (QL)).
3.
The Board
may draw an adverse inference with respect to credibility based on omissions of
significant information from a claimant’s Personal Information Form (PIF) (see,
for example, Grinevich v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 444 (F.C.T.D.) (QL); Basseghi v. Canada
(Minister of Citizenship and Immigration) [1994] F.C.J. No. 1867 (T.D.)
(QL)).
4.
The Board
has discretion to decide what weight to give to the evidence (see, for example,
Aguebor, above, at para. 4, Zhou v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (F.C.A.)
(QL) at para. 1)
[6]
The
Applicant points to alleged errors with respect to the Board’s findings. I will
address each of the alleged errors.
[7]
The first
of these alleged errors is with respect to the Board’s finding that it was
implausible that the Applicant would join an underground church after four
casual conversations with friends and after viewing a television program on
Christianity. The Applicant submits that there were no internal inconsistencies
or contradictions in the Applicant’s evidence that she joined the underground
church after four discussions with her friend.
[8]
I find
that the Board’s conclusion was not unreasonable. In this case, the Board
applied common sense and rationality to the testimony of the Applicant. The
Applicant allegedly joined the Church at about the same time that she began
serious arrangements to come to Canada.
Her parents had counselled her not to join the Church, because of the possible
danger. Ignoring the warnings of her parents and jeopardizing her study plans
on the basis of four conversations with Church members and a television program
certainly raises a question about the plausibility of her claim.
[9]
The
Applicant next questions the finding of the Board that it was implausible that
the PSB would come to look for her because they would have already known she
was in Canada studying.
[10]
This
finding is supportable on the documentary evidence and the Applicant’s own
testimony. Upon the Applicant’s departure from China, her exit would have been included in a
computer database that would likely have been accessible by the PSB. Even the
Applicant acknowledged, in her testimony, that the PSB would know that she was
already out of the country at the time when the PSB allegedly came to find her
at her home in China. A further problem with this
part of her story is that the Applicant changed her story on the number of PSB
visits to her home. As noted above, inconsistencies in a claim can be held
against a claimant. Here, the Applicant claimed, in her PIF, that the PSB made
only one visit to her home; at the hearing, she revised the number of visits to
five. Given these two serious concerns about the PSB actions, the Board’s
conclusion that this aspect of the claim was not plausible is well supported by
the evidence.
[11]
The third
alleged error is that the Board erred by requiring objective evidence, such as
a summons or warrant, in order to accept that the PSB visited the Applicant’s
home. The Applicant adduced the opinion of an associate professor who stated
that there were regional variances in law enforcement between different PSBs.
While some PSBs may follow the law on summons and warrants, others, like the
local PSB where the Applicant’s family resides, may not.
[12]
The first
problem with this argument is that the documentary evidence is to the effect
that written summons would normally be given. The exceptions referred to by the
Applicant do not appear to be widespread.
[13]
It must
also be pointed out that the lack of a summons was an additional reason
for rejecting the Applicant’s story that the PSB was looking for her. Not only
was the Applicant unable to explain why the PSB, who likely knew of her
departure, would bother looking for her at her home, she was unable to produce
a document that one would reasonably expect (a summons or warrant) that could
support her claim. In the circumstances, the Board’s finding that the PSB were
not looking for her falls within a range of possible, acceptable outcomes.
[14]
The final
alleged error is that the Board erred by requiring the Applicant to provide
objective evidence that she attended an underground Church in China. As submitted by the Applicant, the fact
that she had no documentation from an underground Church is not surprising. In
requiring such evidence, the Board was unreasonable.
[15]
I do not
read this section of the reasons of the Board as a statement that the Board
required the Applicant to provide objective evidence from her Church in China. Rather, the Board’s comments on this
point must be read cumulatively with the balance of the Board’s concerns.
Immediately after the Board’s statement on the lack of objective evidence, the
Board refers to the totality of the evidence. In the Board’s view, there was simply
insufficient evidence to support the Applicant’s claim of being a member of an
underground Church and of being wanted by the PSB in China. In my view, this overall conclusion was
reasonably open to the Board on the evidence (or, more accurately, the lack of
evidence) before it.
[16]
For these
reasons, the application for judicial review will be dismissed. Neither party
requested that I certify a question of general importance.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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