Date:
20130517
Docket: IMM-7356-12
Citation: 2013 FC 518
Ottawa, Ontario, May 17, 2013
PRESENT: The Honourable Madam Justice
Gleason
BETWEEN:
|
|
HAO WEN SU
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The applicant is a citizen of the
People’s Republic of China and claims to be a practitioner of Falun Gong. He
alleges that the Chinese Public Security Bureau [PSB] conducted a raid on his
Falun Gong group in 2010, that he and others were alerted to the raid by a
look-out who called a warning and that he and the others fled through the back
door of the premises. He claims he then went into hiding at a relative’s home,
sought the assistance of a smuggler, came to Canada and made a refugee claim
shortly after arriving. In support of his claim, he provided evidence regarding
his alleged practice of Falun Gong in Canada, which included photographs of him
engaged in the practice and letters from other Falun Gong adherents.
[2]
In a decision dated June 28, 2012, the Refugee Protection Division of the Immigration and Refugee Board [the
RPD or the Board] dismissed the applicant’s claim, finding that he lacked
credibility and that the claimed events in China did not occur. The Board
premised its credibility finding on six different weaknesses in the applicant’s
testimony, including his demeanour and lack of ability to recount any real
detail regarding what he alleged happened in China. The Board reasoned that the
applicant had not been a Falun Gong practitioner in China, that as his claimed
adherence to Falun Gong in Canada was tied to his claim to have been a
practitioner in China, he was not a genuine practitioner in Canada and that he
was therefore not a true adherent of Falun Gong. It thus concluded he was
unlikely to face risk if returned to China as he would not practice Falun Gong
and was unlikely to be perceived by the Chinese authorities as an adherent. The
RPD therefore found the applicant was neither a refugee nor a protected person
under sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA].
[3]
In this application for judicial review, the
applicant seeks to set aside the RPD’s decision, arguing that its credibility
determination was unreasonable and that it erred in failing to properly assess
his sur place claim (or claim to protection based on his activities in
Canada). In this regard, the applicant argues that the Board committed a
reviewable error in considering and relying on the lack of a legitimate motive
for his practice of Falun Gong in Canada.
[4]
For the reasons set out below, I have determined that
the Board did not commit any such reviewable error and that its decision is
reasonable. This application for judicial review will therefore be dismissed.
Is the Board’s credibility assessment reasonable?
[5]
As noted, the Board offered six different
reasons for disbelieving the applicant’s claims regarding what he alleged
happened in China. These were:
1.
The applicant’s testimony regarding what he claimed happened in China
lacked authenticity and, in the Board’s words, “had the hallmarks of a
rehearsed story rather than a recollection of events arising from having lived
through the experience himself” (Decision at para 9). The Board made this finding
based on the applicant’s demeanor and fact he recalled very little detail
regarding what he alleged happened, which the RPD felt he ought to have
remembered, given the nature of the events he claimed had occurred;
2.
The Board questioned the authenticity of certain of the documents the
applicant tendered, given the prevalence of fraudulent documents in China the
fact that the applicant’s parents mailed them to him (despite the risk of their
mail being screened and alleged threats to them by the PSB if they were to help
the applicant in his pursuit of Falun Gong);
3.
The Board found it implausible that the smuggler would have kept the
applicant’s Resident Identity Card [RIC] card when accompanying the applicant
on his travel to Canada under a false passport due to the risk of being
discovered;
4.
The applicant claimed the PSB had searched his uncle’s house, but failed
to mention this important detail in the narrative to his Personal
Identification Form [PIF] he was required to complete by virtue of section 5(1)
of the Refugee Protection Division Rules, SOR/2002-228, even though he
was represented by experienced immigration counsel when he completed the PIF;
5.
The implausibility of the applicant’s claim that the PSB visited his
parents’ home six times over the two year period following the applicant’s
departure from China, but did not leave a summons or other documents with the
applicant’s parents; and
6.
The implausibility of the applicant’s version of events when no
punishment was visited on his family.
[6]
The applicant challenges each of these findings, arguing that especially
when viewed cumulatively, the errors made by the RPD in its credibility
assessment render the decision unreasonable.
[7]
Prior to discussing each of the errors that applicant alleges the RPD
made, it is useful to review the general principles applicable to the
assessment of the Board’s credibility determinations. Such determinations are
reviewable on the reasonableness standard and must be afforded significant
deference (see e.g. Aguebor v (Canada) Minister of Employment and
Immigration (1993), [1993] FCJ No 732 at para 4, 160 NR 315 [Aguebor];
Frederick v Canada (Minister of Citizenship and Immigration),
2012 FC 649 at para 14). As I noted in Rahal v Canada (Minster of
Citizenship and Immigration), 2012 FC 319 at para 42 [Rahal]:
[T]he starting point in
reviewing a credibility finding is the recognition that the role of this Court
is a very limited one because the tribunal had the advantage of hearing the
witnesses testify, observed their demeanor and is alive to all the factual
nuances and contradictions in the evidence. Moreover, in many cases, the
tribunal has expertise in the subject matter at issue that the reviewing court
lacks. It is therefore much better placed to make credibility findings, including
those related to implausibility. Also, the efficient administration of justice,
which is at the heart of the notion of deference, requires that review of these
sorts of issues be the exception as opposed to the general rule.
[8]
In terms of the bases upon which the Board may reasonably
rely for an adverse credibility finding, it is well-established that
discrepancies between the version of events offered by a claimant at various times provide a solid basis for adverse credibility determinations
(see e.g. He v Canada (Minister of Employment and Immigration),
[1994] FCJ No 1107, 49 ACWS (3d) 562 (CA); Rajaratnam v Canada (Minister of
Employment and Immigration), [1991] FCJ No 1271, 135 NR 300 (CA); Jin v
Canada (Minister of Citizenship and Immigration), 2012 FC 595 at para 11 [Jin];
Wei v Canada (Minister of Citizenship and Immigration), 2012 FC 911 at
para 59). Likewise, lack of ability to recall detail – especially
in circumstances where it ought to be remembered – provides a tribunal a
reasonable basis for rejecting testimony (see e.g. Ma v Canada (Minister of
Citizenship and Immigration), 2011 FC 417 at paras 31-33; Li v Canada
(Minister of Citizenship and Immigration), 2012 FC 998 at para 18; Pjetri
v Canada (Minister of Citizenship and Immigration), 2013 FC 376 at para
43). The RPD may additionally rely on implausibility in a claimant’s version of
events to found an adverse credibility determination, provided the
implausibility is actual as opposed to illusory (see e.g. Aguebor; Alizadeh
v Canada (Minister of Employment and Immigration), [1993] FCJ No 11, 38
ACWS (3d) 361 (CA); Shahamati v Canada (Minister of Employment and
Immigration), [1994] FCJ No 415 (CA)). Finally, a witness’ demeanor or
manner of testifying may be relied on to ground an adverse credibility finding,
but it is preferable it not be the sole basis for such a finding (see e.g. Rahal
at paras 42, 45).
[9]
Thus, the types of matters relied on by the Board in this
case in support of its adverse credibility determination fall well within the
sort of matters that can be relied on to reject a witness’ testimony.
[10]
The Board placed the greatest weight on its first reason, and, in
particular, the lack of detail offered by the applicant and the fact that his
story seemed to be rehearsed. The applicant offers no real challenge to this
finding other than arguing that it was incorrect, which is no basis to
disregard it. Moreover, the transcript does reveal that the applicant’s version
of events was extraordinarily sparse, and the Board was in a privileged position
to assess the lack of authenticity in the applicant’s demeanor. Thus, the first
reason the RPD offered in support of its credibility determination, in my view,
is unassailable.
[11]
Likewise, the Board did not err in its reliance on the contradictions
between the applicant’s PIF and his oral testimony. The applicant asserts that
there is no contradiction between the two as he noted his PIF that the PSB went
to his close relatives’ homes in their search for him. In my view, this is a
different assertion from the claim he made during his testimony, to the effect
that the PSB twice conducted a searches of his uncle’s home. Thus, there was a
basis for the Board to find a contradiction between the applicant’s testimony
and his PIF and the Board’s reliance on the difference between the two is not
unreasonable.
[12]
The implausibility findings surrounding the allegation that the smuggler
kept the applicant’s RIC and the lack of punishment visited on the applicant’s
family are similarly reasonable. There is a solid basis for the implausibility
of the applicant’s claim that the smuggler kept his RIC as this finding is
based on the common sense determination that one would be at risk carrying two
different pieces of identification. Likewise, there was support in the objective
evidence before the Board for the finding that the Chinese authorities often
persecute families of suspected Falun Gong practitioners. Accordingly, the
RPD’s determination that lack of persecution of the applicant’s family rendered
his version of events unbelievable is reasonable. Similar determinations were
upheld in Hou v Canada (Minister of Citizenship and Immigration), 2012
FC 993 at para 36 [Hou] and Li v Canada (Minister of Citizenship and
Immigration), 2005 FC 28 at para 4.
[13]
As concerns the Board’s treatment of the documents from China filed by
the applicant, contrary to what the applicant asserts, the RPD did not discard
them solely because of the prevalence of fraudulent documents in China and,
thus, this case is distinguishable from Lin v Canada (Minister of
Citizenship and Immigration), 2012 FC 157, relied on by the applicant. That
said, the finding made by Justice Mactavish in Cao v Canada (Minister of
Citizenship and Immigration), 2012 FC 694 [Cao] does appear to apply
to this case. In Cao, Justice Mactavish noted that:
There was, however, no evidence before the Board to
indicate that Mr. Cao’s immigration consultant had ever told him that Chinese
authorities monitor the postal system and track fugitives through a computer
network. Nor was there any evidence that either Mr. Cao, a farmer from rural
China, or his family would have been aware of this practice. The Board’s
finding was based on nothing more than speculation and was thus unreasonable.
These comments are equally
applicable here. Therefore, this point in the Board’s reasoning is likely
unreasonable.
[14]
Finally, insofar as concerns the Board’s treatment of the summons issue,
as the applicant correctly notes, a finding that the credibility of a claim for
protection from China is undermined by the lack of a PSB summons has been
rejected as unreasonable in some recent jurisprudence of this Court (see e.g. Liang
v Canada (Minister of Citizenship and Immigration), 2011 FC 65; and Chen
v Canada (Minister of Citizenship and Immigration), 2012 FC 545). However,
as noted by Justice Zinn in Jiang v Canada (Minister of Citizenship and
Immigration), 2012 FC 1067 at paras 20-22, an unreasonable finding with
respect to a summons need not be determinative of the entire application for
judicial review:
The applicant cites recent decisions of this Court which
have held that “a finding by the Board that on a balance of probabilities it
would be reasonable to assume that a summons would have been left is a
reviewable error[”]: Liang v. Canada (Minister of Citizenship &
Immigration), 2011 FC 65 (F.C.) and Chen v. Canada (Minister of
Citizenship & Immigration), 2012 FC 545 (F.C.). The respondent submits
that the jurisprudence subsequent to Liang indicates that the issue is
not as clear cut as suggested and that “each case must be determined on its
facts and on how those facts were assessed by the Board[”]: Li v. Canada
(Minister of Citizenship & Immigration), 2011 FC 941 (F.C.) and He
v. Canada (Minister of Citizenship & Immigration), 2011 FC 1199 (F.C.).
In my view, every case must be assessed based on the
evidence before the Board and its assessment of that evidence. With respect to
this particular submission, I adopt and agree with the comments of Justice
Mosley in Lin v. Canada (Minister of Citizenship & Immigration),
2012 FC 671 (F.C.), at paragraph 10:
The Board drew a negative
inference from the lack of a summons in part because the applicant claimed that
the PSB had visited his home nine times. Considering the evidence on the uneven
enforcement practice of the PSB, this may have been unreasonable (see Weng v
Canada (Minister of Citizenship and Immigration), 2011 FC 422 at paras
16-18). However, this one inference was not determinative and is not sufficient
to render the entire decision unreasonable.
I find that even if the Board’s finding relating to the
lack of a summon is disregarded, there remains a sufficient basis to support
the Board’s finding that her story was not to be believed when one applies the
test of reasonableness in New Brunswick (Board of Management) v. Dunsmuir,
2008 SCC 9 (S.C.C.), and the deference which the Court must give to the Board’s
decision.
[15]
I believe these comments apply equally here. Even if one or possibly two
of the reasons offered by the Board in support of its credibility determination
bear no weight, the bulk of its reasons are solid. Thus, there is no basis to
interfere with the RPD’s assessment of the applicant’s lack of credibility,
particularly in light of the deference to be afforded to its assessment.
Did the Board err in its
assessment of the applicant’s sur place claim?
[16]
Turning, then, to the second issue, as noted, the applicant
argues that the RPD erred in failing to properly assess his sur
place claim and in relying on the lack of a legitimate motive for his
practice of Falun Gong in Canada. Neither assertion has merit.
[17]
Contrary to what the applicant asserts, the
Board did assess the sur place claim and the evidence the applicant
tendered in support of his assertion that he was a genuine Falun Gong practitioner
in Canada. It simply found this evidence insufficient to establish the
genuineness of the claimed practice. There is nothing unreasonable in this
conclusion, especially when viewed in light of the determination that the
applicant fabricated what had occurred in China. In short, there is nothing
unreasonable in finding that a few letters and pictures do not establish that a
claimant is a genuine adherent to a religion, especially where, as here, he has
lied about being a practitioner in order to make a fraudulent refugee claim. In
this regard, I endorse the comment of Justice Pinard in Jin at para 20,
that:
[I]t would be absurd
to grant a sur place claim every time a pastor provides a letter
attesting to an applicant’s membership in his church.
[18]
To similar effect, it was not unreasonable for
the Board to have assessed and considered the applicant’s motive for practicing
Falun Gong as a reason for rejecting his sur place claim. While
beginning to practice a religion solely to buttress a refugee claim cannot, in
and of itself, be the basis for rejecting a sur place claim, the Board
may legitimately have regard to such motive in assessing the genuineness of a
claimant’s claimed religious beliefs. In many respects, this case is on all
fours with my decision in Hou, where I reviewed and rejected an argument
identical to that made by the applicant in this case. Because my reasons in
that case apply equally here, I have reproduced a portion of them below:
[C]ontrary to what
the applicant claims, Canadian case law does recognise that motive for
engaging in a religious practice in Canada may be considered by the RPD in an
appropriate case. However, a finding that a claimant was motivated to practice
a religion in Canada to buttress a fraudulent refugee claim cannot be used, in
and of itself, as a basis to reject the claim. Rather, the finding that the
claimant has been motivated by a desire to buttress his or her refugee claim is
one factor that may be considered by the RPD in assessing the sincerity of a
claimant’s religious beliefs.
The sincerity of
those beliefs will be an issue in cases, like the present, where continuing the
religious practice in the country of origin might place the claimant at risk.
If the beliefs are not genuine, then there is no risk, as a claimant would not
practice his or her newly-acquired religion in the country of origin if
adherence to the religion is motivated solely by a desire to support a refugee
claim. On the other hand, there may well be situations where a claimant might
initially have been motivated to join a religion due to these types of
motivations, but along the route, may have developed faith and become a true
adherent of the religion.
[…]
In a series of recent
cases involving claimants from China, this Court has applied the holding in
Ejtehadian [v Canada (Minister of Citizenship and Immigration), 2007
FC 158] and held that the Board cannot reject a sur place claim due
solely to lack of credibility or improper motive but, rather, must assess the
genuineness of the applicant’s religious practice to determine if he or she
will be at risk if returned to the country of origin […] In Jin and Wang
[v Canada (Minister of Citizenship and Immigration), 2011 FC 614]
[…] the Board noted the questionable motive for conversion but then went on to
assess the genuineness of the applicant’s conversion and found it to be
lacking. The Board based its findings on the claimants’ lack of credibility,
the fact that they had fabricated stories about being Christians in China and
their lack of knowledge of the details of the religion they claimed to
practice. Because the claimants were found to not be genuine practitioners, the
RPD held they would not practice their claimed religions if returned to China
and thus were determined to face no risk. And this Court upheld the Board’s
findings in those cases. In short, in circumstances very much like the present,
the RPD’s decisions were upheld.
(Hou at paras
61-65.)
[19]
It follows that the RPD did not err in considering the applicant’s
motive for practicing Falun Gong in Canada nor in its assessment of his sur
place claim.
[20]
This application will accordingly be dismissed. No question for
certification was submitted under section 74 of the IRPA and none arises in
this case.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
This application for judicial review is
dismissed;
2.
No question of general importance is certified;
and
3.
There is no order as to costs.
"Mary J.L. Gleason"
Email this Content