Docket: IMM-2337-13
Citation:
2014 FC 1060
Ottawa, Ontario, November 12, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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WEILI ZENG
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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
[1]
The applicant was refused Canada’s protection by the Refugee Protection Division of the Immigration and Refugee Board
(the Board). He now seeks judicial review from this Court pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act].
[2]
The applicant asks for an order setting aside
the Board’s decision and returning the matter to another panel of the Board.
I.
Background
[3]
Weili Zeng (the applicant) is a Chinese citizen.
He arrived in Canada on February 27, 2012 and asked for refugee protection
within a month. He claims that he fears persecution for practicing Falun Gong
ever since his practice group was raided by the Public Security Bureau (PSB).
II.
Decision Under Review
[4]
The Board refused the application on February
20, 2013.
[5]
Essentially, the Board decided that the
applicant lied about the events leading to his departure from China. It gave thirteen reasons for doubting the applicant’s story:
i.
The applicant said in his personal information
form (PIF) that he was introduced to Falun Gong by his friend, Tang, in August
2010 and began practicing immediately. He later testified that he was
introduced to it in June 2010, but only started practicing in August.
ii.
Despite being asked for them, the applicant did
not submit any transcripts to prove that practicing Falun Gong improved his
grades.
iii.
The applicant said that the group practices
always happened between 8:00 p.m. and 9:30 p.m. Yet, the applicant testified
that the lookout would be outside sewing. When the member observed that it
would be too dark during the winter, the applicant said she would sit near
convenience stores. The Board was suspicious that the applicant did not mention
the convenience stores at first. As well, the Board thought a lookout would not
linger for so long for fear of drawing suspicion.
iv.
After the alleged raid, the applicant said he
lived with his 18 year old friend for three months to hide from the PSB. He
testified that his friend’s parents lived two to three hours away, but never
once came home to check on their son or their property. The Board considered
this implausible.
v.
In his PIF, the applicant mentioned that his
instructor and some other members of his group were arrested. However, he only
mentioned that his friend Tang was among them at the hearing. The Board figured
that the applicant would have mentioned Tang by name in his PIF because of his
role in introducing the applicant to Falun Gong.
vi.
Despite being asked for them, the applicant did
not produce jail visiting cards that he could have obtained from Tang’s mother.
vii.
The applicant testified that his parents kept
his copy of Zhuan Falun for him, but the Board considered it more likely that
they would destroy it.
viii.
The applicant said the PSB never left a summons
with his family on any of the seven occasions they visited his house. Although
that is technically proper procedure, the Board found that it happens all the
time that the police leave a summons with a family member and inferred from its
absence that the PSB had no interest in the applicant.
ix.
The applicant received a passport one month
before the alleged raid, which the Board thought was too coincidental.
x.
The applicant left China with that genuine
passport. The Board found that this could not have happened since these documents
would have needed to be shown when travelling through Hong Kong. Further, if
the smuggler had bribed anyone, he would have told the applicant.
xi.
The applicant could not have left on a genuine
passport if he was wanted by the PSB because China has a national computer
network that would have flagged him.
xii.
The applicant was in the United States for nine days but did not claim asylum.
xiii.
The applicant did not prove that his family was
punished, even though the families of Falun Gong practitioners often are.
[6]
The Board accepted that the applicant did
practice Falun Gong in Canada and so answered most basic questions about it
correctly. However, because the Board did not believe that the applicant
practiced Falun Gong in China, it concluded that the applicant only started
doing it here to bolster a fraudulent refugee claim.
[7]
Consequently, the Board decided that the
applicant was neither a Convention refugee under section 96 of the Act nor a
person in need of protection under section 97.
III.
Issues
[8]
This application raises two issues:
1.
What is the standard of review?
2.
Did the Board err in assessing the applicant’s
credibility?
A.
Applicant’s Written Submissions
[9]
The applicant accuses the Board of conducting a
microscopic assessment of the claim. Specifically, he criticizes the Board for
seizing on two minor details to make negative credibility findings which were:
(1) the minor discrepancy in the month he started practicing Falun Gong; and
(2) the omission of Tang’s arrest from the PIF.
[10]
Further, he points out that plausibility findings
should be made only when it is clear that the events could not have happened as
described (see Xu v Canada (Minister of Citizenship and Immigration),
2007 FC 274 at paragraph 17, [2007] FCJ No 397 [Xu]). In his view, at
least three of the events he described were not inherently improbable: (1) his
friend’s parents did not come home for three months; (2) his parents did not
destroy his copy of Zhuan Falun; and (3) he obtained a passport one month
before the raid.
[11]
Similarly, the applicant says that he was able
to leave with his own passport because he hired a smuggler. There is nothing
implausible about that.
[12]
As for the summonses, the documentary evidence
clearly said that “there can be substantial regional
variances in law enforcement”. It may be common that summonses are left
with families, but that is not the way it always happens. The applicant says
the Board relied on this evidence rather selectively and that the Federal Court
has often found similar findings unreasonable.
[13]
Finally, the applicant admits that the
documentary evidence said that family members could be punished in a variety of
ways, including “harassment by the police (random visit
by police to the home), arbitrary interrogation, losing [a] job, losing [the]
chance of promotion, losing [a] pension/state housing, etc.” However, it
did not say that all of those events necessarily happen to every family. Here,
he testified that his family had been visited seven times and so has been
harassed and arbitrarily interrogated.
IV.
Respondent’s Written Submissions
[14]
The respondent recites the Board’s credibility
findings and says that it was not conducted microscopically. Rather, the Board
reasonably weighed the evidence and drew reasonable inferences that it was
entitled to make based on implausibilities and common sense.
[15]
Further, the respondent says that the Federal
Court has confirmed that a Board can reasonably consider the absence of a
summons document when an applicant alleges that his or her family has been
visited by the PSB (see Cao v Canada (Minister of Citizenship of
Immigration), 2012 FC 1398 at paragraph 35, 422 FTR 108 [Cao]).
Given the credibility concerns, it was reasonable to require corroborating
evidence.
[16]
Finally, the respondent admits that the
applicant had testified that his family was harassed. However, that was but one
credibility finding of many and it should not disturb the general finding that
he was lying.
V.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[17]
The Board’s credibility findings should be
reviewed on the reasonableness standard (see Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 53, [2008] 1 S.C.R. 190 [Dunsmuir]; Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (QL) at paragraph 4,
160 NR 315 [Aguebor]). The Board’s decision should not be disturbed so
long as it is justifiable, transparent, intelligible and its outcome is
defensible in respect of the facts and law (Dunsmuir at paragraph 47).
Put another way, I will set aside the Board’s decision only if I cannot
understand why it reached its conclusions or how the facts and applicable law
support the outcome (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 SCR
708).
[18]
As the Board itself observed, the starting point
for assessing credibility is that the applicant is presumed to tell the truth (see
Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC
302, 31 NR 34 (CA)). At the same time, “credibility is
the heartland of the Board’s jurisdiction” (see Mohacsi v Canada (Minister of Citizenship and Immigration), 2003 FCT 429 at paragraph 18, [2003]
4 FC 771 [Mohacsi]).
B.
Issue 2 - Did the Board err in assessing the
applicant’s credibility?
[19]
Although some elements of the Board’s decision
were problematic, I ultimately agree with the respondent that the decision was
reasonable.
[20]
With respect to plausibility findings, it is
true that they should only endanger a claimant’s credibility when it is clear
that the events could not have happened as the claimant described (Xu at
paragraph 17). However, it must be recalled that the Board is still better
placed than this Court to make them. As the Court of Appeal said in Aguebor
at paragraph 4:
There is no longer any doubt that the Refugee
Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position than the
Refugee Division to gauge the credibility of an account and to draw the
necessary inferences? As long as the inferences drawn by the tribunal are
not so unreasonable as to warrant our intervention, its findings are not open
to judicial review.
[Emphasis added]
[21]
Given that, I must disagree with the applicant
that most of the Board’s findings warrant this Court’s intervention. With respect
to the absence of his friend’s parents, the Board explained that they were only
two to three hours away by car. It found it implausible that they would not
once check on their son or their property in a three month period. It also
considered it strange that the applicant would never ask his friend whether
they might come home. That seems to me a reasonable inference.
[22]
However, some of the applicant’s other arguments
do reveal some problems.
[23]
First, the Board found that it was implausible
that his parents would merely hide the applicant’s copy of Zhuan Falun instead
of destroying it. Although I agree with the Board that it seems unlikely, all
the applicant said was that he asked his parents to hide it. He did not say
that they actually did. Even if the parents destroyed it, it is plausible that
they could have done so without telling the applicant.
[24]
With respect to the summonses, the applicant
points out that the documentary evidence is conflicting. Although one source
said that “a summons would almost always be issued to the
individual”, another said that police authorities leave summonses with
family members “all the time, especially in cases when
the person on the summons is not easily locatable” (see Research
Directorate of the Immigration and Refugee Board of Canada, RIR CHN42444.E, China:
Circumstances and authorities responsible for issuing summonses/subpoenas
(1 June 2004) at 3). This is partly because “there can be
substantial regional variances in law enforcement”.
[25]
Nevertheless, the Board found it implausible
that the PSB would visit the applicant’s family seven times and never leave a
summons.
[26]
There appears to be conflicting jurisprudence
from this Court as to whether this is reasonable. In Cao at paragraph
35, Mr. Justice David Near observed that “[w]hile the
documentary evidence suggested that the PSB’s practice with respect to leaving
a summons is not uniform, it does not directly contradict the Board’s finding.”
As such, the applicant had only shown that a different finding could have been
made, not that the finding that was made was unreasonable.
[27]
However, other decisions of the Court have held
that similar inferences were unreasonable. In Weng v Canada (Minister of Citizenship and Immigration), 2011 FC 422, [2011] FCJ No 532, a
claimant had said that the PSB had visited him ten times and never left a
summons. The Board found that this was implausible. However, Mr. Justice Donald
Rennie held that was an error, saying at paragraph 17 that “the applicant’s testimony was clearly within the realm of
possibility and was reconcilable with the country condition evidence before it
regarding uneven practices on the part of the PSB.” Similar findings
were made by Mr. Justice James O’Reilly in Liu v Canada (Minister of
Citizenship and Immigration), 2010 FC 135 at paragraph 10, [2010] FCJ No
162 and by Mr. Justice Michel Shore in Liang v Canada (Minister of
Citizenship and Immigration), 2011 FC 65 at paragraph 14 [2011] FCJ No 74 [Liang].
[28]
With respect, I believe the latter view better
accords with this Court’s jurisprudence on plausibility findings. As Justice
Shore explained in Liang at paragraph 14, “if the
norm in the Applicant’s region is for the PSB not to leave a summons/warrant
for anyone other than the person who is named, then presumably that norm is followed
regardless of how many times the PSB visits …”. Therefore, if this were
the only basis for the Board’s decision, it would have been unreasonable for
the Board to have rejected the applicant’s credibility for having the
misfortune to live in a region where he was persecuted by the correct
procedure.
[29]
As well, the respondent rightly concedes that
the Board’s finding regarding the punishment of family members was problematic.
The documentary evidence upon which the Board relied does not say that every bad
thing there listed happened to every single family of a Falun Gong
practitioner. Further, the applicant testified that his family was, in fact,
being harassed. An implausibility finding on that subject was unreasonable.
[30]
Despite those errors, however, the Board’s other
observations withstand scrutiny and justify the negative credibility findings.
[31]
For one thing, the applicant does not challenge
many of the Board’s credibility inferences, including those regarding the
missing transcripts and jail visiting cards, as well as those regarding the
lookout.
[32]
For another, the Board never ignored that the
applicant said he was assisted by a smuggler. It simply found that it was
unlikely that he could have left China on his own passport even with that
assistance. Its explanation for this was reasonable.
[33]
The applicant also claims that the Board’s
findings with respect to the applicant’s friend, Tang, were microscopic (see Attakora
v Canada (Minister of Employment and Immigration), 1989 CarswellNat 736 (WL
Can) at paragraph 9, 99 NR 168 (FC(AD))). However, pointing out inconsistencies
on minor details is not in itself problematic. Rather, as Madam Justice Judith
Snider explained in Konya v Canada (Minister of Citizenship and Immigration),
2013 FC 975 at paragraph 22, 63 Admin LR (5th) 27, “a
microscopic analysis is one in which the Board examines a fact which has no
material relevance to any issue; is outweighed by other evidence; and, is not
central to the issues in the case, but is used to dispose of the case.”
[34]
In this case, the two statements about which the
applicant complains were not used to dispose of the case. Rather, they were
simply two elements used to corroborate a general finding that the applicant
lacks credibility. In such a context, there is nothing unreasonable about
observing that the applicant’s PIF omitted or misrepresented details of his
story.
[35]
Further, neither of the Board’s observations
were themselves unreasonable. In his PIF, the applicant had said that his
friend, Tang, told him about Falun Gong “[o]ne day
in August, 2010” (emphasis added) and that he agreed to try it
immediately. By the time the hearing came around, he said that Tang told him
about Falun Gong two months before he tried it. While it is not a particularly
important detail, the Board cannot be faulted for observing that it is an
inconsistency.
[36]
Similarly, it is strange that the applicant
would not mention that Tang was among those arrested when filling out his PIF,
considering the close relationship he allegedly had with him. The Board did not
act unreasonably by pointing that out.
[37]
The Board also found that it was “too co-incidental” that the applicant applied for a
passport just one month before the alleged raid. Although I agree with the
applicant that that is not implausible, it is suspicious. In light of all the
other evidence that the applicant had fabricated his story, it was no error to
point out that this too corroborates that finding.
[38]
Therefore, although I agree that some of the
Board’s rationales were problematic, most of its findings remain unscathed.
Given that, I still understand why the Board found that the applicant lacks
credibility. The decision that he did not genuinely practice Falun Gong was
therefore reasonable.
[39]
I would therefore dismiss the application for
judicial review.
[40]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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