Date:
20130618
Docket:
IMM-8541-12
Citation:
2013 FC 673
Toronto, Ontario,
June 18, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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MING XUAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
I. Overview
[1]
Mr
Ming Xuan claimed refugee protection in Canada on the basis that he fears
religious persecution in China as a Christian. He says that the Public Security
Bureau (PSB) in China raided the house church he attended and is now seeking
his arrest.
[2]
Prior
to his hearing before a member of the Immigration and Refugee Board, Mr Xuan
requested the Board member to recuse himself on the basis that his acceptance
rate for refugee claims in 2011 was zero. Mr Xuan argued that this evidence
gave rise to a reasonable apprehension of bias on the Board member’s part.
[3]
The
member dismissed Mr Xuan’s request on the basis that statistics alone cannot
give rise to a reasonable apprehension of bias. He went on to consider the
merits of Mr Xuan’s claim and dismissed it, concluding that Mr Xuan had failed
to establish his identity or provide credible evidence to support his claim.
[4]
Mr
Xuan argues that the Board member treated him unfairly by rejecting his recusal
motion. Further, he submits that the Board’s findings regarding his identity
documents and other evidence were unreasonable. He asks me to quash the Board’s
decision and order a new hearing before a different member.
[5]
I
can find no basis for overturning the Board’s decision and must, therefore,
dismiss this application for judicial review. In my view, the Board did not
treat Mr Xuan unfairly by rejecting his recusal motion; this Court has confirmed
that statistics alone do not give rise to an apprehension of bias. Further, the
Board’s conclusion that Mr Xuan had failed to support his claim with credible
evidence was not unreasonable.
[6]
There
are two issues:
1. Did
the Board treat Mr Xuan unfairly by dismissing his recusal motion?
2. Did
the Board unreasonably conclude that Mr Xuan’s refugee claim was not supported
by credible evidence?
II. The Board’s Decision
(1) On
the Recusal Motion
[7]
The
Board cited the well-accepted standard for a reasonable apprehension of bias
from Committee for Justice and Liberty v National Energy Board, [1978] 1
SCR 369. It also referred to decisions of the Federal Court in which judges
have concluded that statistics relating to the acceptance rates of Board
members do not, in themselves, establish a reasonable apprehension of bias: Hernandez
Victoria v Canada (Minister of Citizenship and Immigration), 2009 FC 388; Zupko
v Canada (Minister of Citizenship and Immigration), 2010 FC 1319.
[8]
Accordingly,
the Board concluded that Mr Xuan had provided insufficient grounds for his
motion. It found that a reasonable, informed person, viewing the matter
realistically and practically, would not conclude that the Board would fail to
decide Mr Xuan’s claim fairly.
(2) On
the Merits
[9]
The
Board accepted that Mr Xuan was a citizen of China. However, the evidence
relating to his personal identity was unsatisfactory. It referred to the
following problems with the evidence:
• Mr
Xuan stated that he had never travelled outside of China until he came to Canada. He later testified that he had previously travelled abroad. The other trips were
recorded in his passport and corroborated by various travel visas.
• In
his application for a Canadian visa, Mr Xuan stated that he was General
Director of the Shenyang Huatai Hospital and had been invited to Canada by an official at a hospital in Hamilton, Ontario. The Board verified that an invitation had
been sent to a “Xuan Ming” but the official in Hamilton had no personal
knowledge of Mr Xuan.
• Other
identity documents provided by Mr Xuan apparently were given to him by a
friend, but no evidence was provided about their origin.
• A
document showing Mr Xuan’s work record in a factory misstated his age by four
years. Mr Xuan had no explanation for the discrepancy. The work record also
contradicted Mr Xuan’s testimony about where he worked at various points in
time.
• Mr
Xuan’s Hukou contained a page that did not match the others. Mr Xuan could not
explain why that was so. Further, he could not explain an amendment that was
made to his Hukou by the PSB at a point in time when the PSB was allegedly
looking for him.
[10]
The
Board concluded that Mr Xuan’s credibility was discredited to the extent that
it could not believe his claim to be a Christian in China who was sought by the
PSB. This conclusion was reinforced by Mr Xuan’s inconsistent testimony about
when he had joined an underground church.
[11]
The
Board also considered evidence that Mr Xuan was a practicing Christian in Canada. However, it found that this evidence was acquired for the purposes of supporting an
unmeritorious refugee claim.
[12]
The
Board found that Mr Xuan was neither a Convention refugee nor a person in need
of protection.
III. Issue One – Did the
Board treat Mr Xuan unfairly by dismissing his recusal motion?
[13]
Mr
Xuan presented the Board with a copy of a report from the CBC describing a
study conducted by Professor Sean Rehaag of Osgoode Hall Law School about the acceptance rates of members of the Immigration and Refugee Board. That report
stated that the Board member had approved none of the 127 refugee claims he had
considered in 2011. Mr Xuan argues that this evidence, on its own, showed a
reasonable apprehension of bias on the part of the individual Board member.
[14]
Before
me, Mr Xuan sought to introduce further evidence about the Board member’s rate
of acceptance. I need not consider that evidence because it adds little to the information
that was already before the Board at the time of the hearing.
[15]
In
my view, the Board correctly concluded that statistics alone do not normally
establish a reasonable apprehension of bias. This was confirmed recently in a
decision of Justice Russel Zinn in which he cites numerous other factors that
would be relevant to that issue: Turoczi v Canada (Minister of Citizenship
and Immigration), 2012 FC 1423, at para 15.
[16]
Accordingly,
I cannot conclude that the Board erred in dismissing Mr Xuan’s recusal motion.
IV. Issue Two– Did the
Board unreasonably conclude that Mr Xuan’s refugee claim was not supported by
credible evidence?
[17]
Mr
Xuan argues that the Board’s assessment of his identity documents and other
evidence was unreasonable. He believes the Board reviewed his evidence
microscopically and jumped to unreasonable conclusions about it. Further, Mr
Xuan submits that the Board failed to consider the risk that faces him as a
practising Christian if he is returned to China. In support of his claim, Mr
Xuan provided a letter from his pastor in Canada and a baptismal certificate.
[18]
In
my view, the Board provided clear reasons for disbelieving Mr Xuan’s account of
events in China and for doubting his personal identity. The sole remaining
question is whether the Board adequately considered whether, notwithstanding
those problems with Mr Xuan’s claim, there remained a reasonable chance that Mr
Xuan would face a risk of religious persecution in China.
[19]
As
I read the Board’s decision, it doubted all of Mr Xuan’s assertions, including
his claim to be a genuine Christian, because of the problems with the other
evidence presented in support of his claim. It found that he had engaged in
religious activities in order to bolster an unmeritorious claim.
[20]
In
my view, this finding was available to the Board on the evidence and,
therefore, I cannot conclude that it was unreasonable. The Board was entitled
to permit its extensive credibility findings relating to Mr Xuan’s identity and
his experiences in China to influence its assessment of the genuineness of Mr
Xuan’s religious convictions in Canada: Jiang v Canada (Minister of
Citizenship and Immigration), 2012 FC 1067, at paras 27-28.
V. Conclusion and
Disposition
[21]
The
Board provided a valid basis for rejecting Mr Xuan’s recusal motion. In
addition, its conclusion that Mr Xuan’s refugee claim was unsupported by
reliable evidence was not unreasonable. Therefore, I must dismiss this
application for judicial review. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James W. O’Reilly”
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