Date: 20091114
Docket: IMM-2117-08
Citation: 2008 FC 1266
Ottawa, Ontario, November 14,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
WEN
BIAO HUANG
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board),
dated April 15, 2008, that the applicant, a citizen of China, is not a
Convention refugee or a person in need of protection because the applicant is
not credible.
FACTS
[2]
The applicant is a 21 year old Chinese citizen. He owned and
operated a bookstore in the Fujian province of China which had been transferred
to him from his father on March 1, 2006.
[3]
On May 15, 2006, the Industry and Commercial Bureau examined the
bookstore and found some Falun Gong books hidden underneath old books in the
corner of a storage room. The Bureau accused the applicant of selling Falun
Gong books, sealed the store and immediately fined him 18000 RMB.
[4]
The Bureau reported the applicant to the Public Security Bureau (PSB), whereupon
he was arrested. At the hearing, the applicant testified:
1.
the PSB held him at the police station from 10:00 or 11:00 in the morning
until 10:00 o’clock at night, and thereafter he had to report every Monday and would
be detained about 2 hours at the police station;
2.
when he was arrested on May 15th, he was interrogated from
11:00 a.m. to 2:30 p.m. about the source of the books. When he said that he did
not know the PSB would “use violence. They would hit the back of my head”.
Under questioning from the presiding member the applicant said that he was hit
on the back of the head more than 10 times;
3.
when he could not answer the questions after the interrogation, the PSB sent
him outside to do manual labour in the form of moving bricks. When asked by the
presiding member if the PSB hurt him in any other way the applicant said that
the PSB had shined a lamp into his eyes when questioning him;
4.
when he later reported to the PSB on Mondays, the PSB would ask him
again the source of the books, and when he did not answer, they would hit him
again; and
5.
the presiding member asked the applicant why he had not mentioned this
physical violence on his Personal Information Form (PIF) and the applicant said
that he did not know.
[5]
After being told during a visit to the PSB that he would be arrested
again, the applicant fled China. He maintains that he is not a Falun Gong
member and was framed by an enemy of his family.
Decision under review
[6]
The Board member found that the applicant was not credible for three
reasons:
i.
the applicant did not fit the profile of a person who would be persecuted
by the Chinese authorities in that:
a.
the applicant was not a Falun Gong member;
b. the
applicant did not fit the profile of a non-Falun Gong member who would be
persecuted for supporting the Falun Gong; and
c. the
applicant is from a region known to be lenient to the Falun Gong;
2. the applicant
omitted significant details about his treatment on his Personal Information Form
(PIF) and Point of Entry (POE) form. The Board held at paragraph 24:
The claimant did not report any
of the torture or any of the manual labour in his Personal Information Form
(PIF) when he describes his initial arrest.
3. there were
inconsistencies between the documentary evidence and the applicant’s testimony:
a. the
applicant stated that he was fined on the same day that he was arrested, i.e.
May 15, 2006. However, the fine notice is dated May 16, 2006; and
b. the
applicant said his father paid the fine the same day. However, the receipt for
payment is dated May 26, 2006.
ISSUE
[7]
The
issue in this application is whether the Board erred in finding that the
applicant’s story was not credible and therefore concluding that he is not a
Convention refugee or person in need of protection.
STANDARD OF REVIEW
[8]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of [deference] to be accorded
with regard to a particular category of question.”
[9]
Prior
to Dunsmuir, it was trite law that that the Board’s factual findings,
including those relating to credibility, were subject to a standard of review
of patent unreasonableness. Post-Dunsmuir, this Court has applied a
“reasonableness” standard of review to determinations of credibility. Malveda
v. Canada (Minister of Citizenship and Immigration), 2008 FC 447, per Mr.
Justice Russell at paragraphs 18-20; Khokhar v. Canada (MCI), 2008 FC
449, 166 A.C.W.S. (3d) 1123, per Justice Russell at paragraph 22; Aguirre v.
Canada (MCI), 2008 FC 571, 167 A.C.W.S. (3d) 773, per Justice Mandamin at
paragraphs 13-14; Arizaj v. Canada (MCI) 2008 FC 774, per Justice
Teitelbaum at paragraphs 16-18.
[10]
In
reviewing the Board’s decision using a standard of reasonableness, the Court
will consider "the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir at paragraph 47).
ANALYSIS
[11]
The Board’s decision found the applicant not credible for three reasons
as discussed above. The Court finds that the first reason by the Board for
finding that the applicant was not credible is not reasonable. It is
well-established that a claimant need not necessarily hold as true beliefs or
opinions for which he or she fears persecution. The relevant issue is whether
the persecutor attributes these opinions to the claimant. See Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689; Sertkaya v. Canada (MCI)
2004
FC 734, 131 A.C.W.S. (3d) 729 per Justice Layden-Stevenson at para. 6; Yonn
v. Canada (MCI) 2003 FC 881,
125 A.C.W.S. (3d) 1228, per Justice Rouleau at para. 14, Mwika v. Canada
(MCI) (1999) 173 F.T.R. 155 per Justice Teitelbaum at paras. 18-21.
[12]
The Board further stated that the only non-Falun Gong members who are
known to be persecuted are journalists or lawyers who defend or support the
Falun Gong. This observation is only relevant if it is established that the
Chinese authorities did not perceive the applicant to be a Falun Gong
member, an issue the Board did not consider. Finally, the Board stated that
Fujian is a province known to be more lenient towards the Falun Gong, and that
no incidents of non-Falun Gong members being persecuted for supporting the
Falun Gong have been documented there. Again, this presupposes that the
applicant was not perceived as a Falun Gong member. Moreover, the document
referred to by the Board does not actually state that the authorities in Fujian
are lenient, but merely identifies other regions as the areas where the worst
persecution against the Falun Gong takes place.
[13]
The second reason given by the Board for finding that the applicant is
not credible is that the applicant omitted details about his “torture” at the
police station on his Personal Information Form. The Court has reviewed the
applicant’s testimony before the Board and reviewed the applicant’s Personal
Information Form.
[14]
The evidence of the applicant was that he was interrogated for three and
a half hours, and subjected to violence when he did not provide the answers the
police were seeking. He was hit on the head more than 10 times.
[15]
It was reasonably open for the Board to find the applicant not credible
for omitting this violence by the PSB on his PIF when bringing this refugee
claim. The applicant could provide no explanation for this significant
omission.
[16]
The third reason, the slight inconsistencies between the dates on the documentary
evidence and the applicant’s testimony, is unreasonable. The Board must not engage
in a microscopic examination of the evidence. See Warnakulasuriya
v. Canada (MCI), 2008 FC 885, per Justice Mandamin at para. 7; Jamil
v. Canada, 2006 FC 792, 295 F.T.R. 941, per Justice Lemieux at para. 24; R.K.L.
v. Canada (MCI) 2003 FCT 116, 228 F.T.R. 43 per Justice Martineau at para.
11. These inconsistencies were minor and do not undermine the credibility
of the applicant’s story.
[17]
This application for judicial review must be dismissed because the
significant omission on the PIF is a reasonable basis by itself for a finding
by the Board that the applicant is not credible.
[18]
Neither counsel proposed a question for certification. No question will
be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for
judicial review is dimissed.
“Michael
A. Kelen”
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