Docket: IMM-3025-13
Citation:
2014 FC 647
Ottawa, Ontario, July 3, 2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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QIONGZHONG YE
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
Nature of the matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision dated April 3, 2013 of the Refugee
Protection Division (RPD) of the Immigration and Refugee Board of Canada. The
Board Member determined that the applicant, Qiongzhong Ye, was not a convention
refugee or person in need of protection under sections 96 and 97 of IRPA.
[2]
For the reasons that follow the application is
dismissed.
Facts
[3]
The applicant’s parents are Falun Gong
practitioners who started practicing in 1998. The applicant supported them in
their practice.
[4]
On July 22, 1999, the Chinese government banned
Falun Gong. In early 2006, the applicant’s parents began to attend Falun Gong
group practice at a fellow practitioner’s home in the suburbs. The applicant
drove them to and from this location, and sometimes joined her parents in their
practice.
[5]
On March 11, 2011, the applicant was working in
the restaurant she and her husband owned when she received a telephone call
from her husband, who informed her that the Public Security Bureau (PSB) had
come to their home and taken her parents away. The PSB allegedly stated that
they were investigating Falun Gong activities, and that they also wanted to
question the applicant. The applicant decided to go into hiding, and went to a
relative’s home in the countryside to hide. One of her relatives contacted a
smuggler and arranged for her to leave China.
[6]
The applicant came to Canada on May 14, 2011 and
made a refugee claim.
Decision under review
[7]
The Member found that the applicant lacked
credibility. The applicant alleged that her husband’s elder brother, who as a
member of the PSB is a key witness, informed her husband of the arrest and that
her name was on a police wanted list, yet she omitted to mention him in her
Personal Information Form (PIF). When asked to explain why she had omitted this
from her PIF, she claimed that she didn’t provide detail in her PIF, but rather
just the highlights. The member found this explanation unsatisfactory, and
stated that it would be reasonable to expect the applicant to include the elder
brother in her story in light of his role in the PSB. She was represented by
counsel at the time her PIF was drafted.
[8]
Furthermore, the applicant noted in her PIF narrative
that when the PSB came to arrest her parents, “They also
said they were looking for me for questioning”, whereas in her oral
testimony she stated that it was her husband’s elder brother who indicated that
the PSB was looking for her. When this contradiction was pointed out to her,
she had no explanation. The Member found this lack of explanation
unsatisfactory. As a result, the Member found that based on this omission and
inconsistency, on a balance of probabilities, the PSB did not make inquiries
with respect to the applicant.
[9]
The Member also pointed out that during her oral
testimony, the applicant testified that after she went into hiding it was her
relatives who made the arrangements for a smuggler at the end of April 2011. In
her PIF narrative, she stated that it was her relatives and husband who were
involved in arranging her smuggling at the beginning of April 2011. When this
inconsistency was pointed out to her, she said that she may have made a
mistake. The Member found this explanation unsatisfactory, and determined as a
result that the applicant did not go into hiding.
[10]
The Member also pointed out that the applicant’s
marriage certificate says it was registered on May 9, 2011, and that according
to the Marriage Law in China, both applicants who apply for marriage
registration have to come to the registration office in person. She had,
however, testified that the last time she saw her husband was approximately
April 28, 2011. When this was pointed out to her, she explained that she did
not see her husband at the time of the marriage, but it was arranged by her
husband’s elder brother, who was with the police. The Member determined,
therefore, that the applicant’s use of irregular means to obtain her marriage
certificate led him to draw a negative inference with respect to her
credibility.
[11]
The Member further pointed out that the
applicant had testified that while in China the PSB came two or three times and
left a summons for her. In her PIF, however, she did not mention this summons.
When asked about this, she explained that her brain didn’t function very well
because of her age and medical condition. However, the medical documentation
she submitted in support of her application only referenced concerns about her
pelvic region. Further, when she was asked why she didn’t mention an arrest
warrant in her PIF, she claimed that he had been afraid to report that piece of
information when she arrived in Canada.
[12]
The Member concluded that the presentation of
the alleged summons would have been a clear indication that the authorities
were interested in the applicant, and therefore could be reasonably expected to
be included in the PIF. As a result, the Member determined that based on a
balance of probabilities, a summons was not issued for the applicant.
[13]
Further, the Member concluded that overall, the
applicant had embellished a claim for protection, and that the summons for
herself and her parents that she entered into evidence are not genuine. The
Member made a general finding that the applicant was not a credible and
trustworthy witness.
[14]
With regard to the pictures of the applicant
participating in Falun Gong demonstrations in Toronto submitted in support of
the application, the Member concluded that there is no persuasive evidence that
the Chinese authorities are aware of this participation.
[15]
As a result, the Member concluded that the
applicant is not a Convention refugee or a person in need of protection.
Issues
[16]
The applicant alleges that the issues are the
following:
1.
Did the Member err with respect to her
conclusion that the applicant was not a credible and trustworthy witness?
2.
Was the Member’s decision rejecting the sur place claim reasonable?
Standard of review
[17]
The standard of review applicable to a finding
on credibility by the Board is reasonableness (Wei v Canada (Citizenship and
Immigration), 2012 FC 911 at paragraph 28 [Wei]; Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 732 (FCA); Elmi
v Canada (Minister of Citizenship and Immigration), 2008 FC 773 at
paragraph 21, and Wu v Canada (Minister of Citizenship and Immigration),
2009 FC 929 at paragraph 17).
[18]
In reviewing the Officer’s consideration and
treatment of evidence, the appropriate standard of review is reasonableness (see,
for example, YZ v Canada (Minister of Citizenship and Immigration), 2009
FC 749, [2009] FCJ No 904 at paragraph 22).
Analysis
1.
Did the Member err with respect to her
conclusion that the applicant was not a credible and trustworthy witness?
[19]
The applicant disputes the Member’s findings in
regards to her credibility and the inconsistencies in her story. The Member’s
conclusion in regard to the details of the applicant’s story and her
credibility was based upon a series of inconsistencies in the applicant’s
testimony, stemming both from her PIF and the oral hearing in front of the
Member. It must be remembered that it has been firmly established by this court
that the RPD is best-positioned to make determinations on credibility (Aguebor
v Canada (Minister of Employment and Immigration) (1993), 160 NR 315 (FCA);
Singh v Canada (Minister of Citizenship and Immigration), 2002 FCT 1272
at para 4).
[20]
The Member placed some importance on the fact
that the applicant did not mention the summons allegedly left by the PSB in her
PIF. The applicant attempted to explain this omission by claiming that she was
afraid to mention the existence of the summons when she first arrived in Canada. Regardless, refugee claimants who make material omissions from their PIF do so at
their own risk. As Justice Pinard stated in Jin v Canada (Minister of
Citizenship and Immigration) 2012 FC 595 [Jin] at paragraph 22, “The applicant had the obligation to include all relevant facts
in his PIF and it is insufficient for the applicant to claim that his oral
testimony was an elaboration”.
[21]
Further, as Justice Russell stated in Wei
at paragraph 59, referring to paragraph 11 of Justice Pinard’s decision in Jin,
“[…] the RPD is entitled to draw negative inferences from
omissions in an applicant’s PIF”, and as a result, it was certainly
reasonable for the Member to base his credibility finding on the omission of
the summons from the PIF.
[22]
Justice Pinard concluded in Jin that the
applicant’s failure in that case to mention the existence of an arrest warrant
against him was a significant event that should have been mentioned in his PIF,
and that as a result, the Board’s resulting negative inference was justified.
The same logic applies in the case at bar. The summons was a significant fact
and should have been mentioned by the applicant, and it was reasonable for the
Member to make a negative credibility finding based at least partly on this
omission.
[23]
As a result, though the applicant may take issue
with specific aspects of the Member’s credibility finding, because it is
well-supported by a careful analysis of the applicant’s testimony, it falls
within a range of reasonable outcomes. Furthermore, as Justice Russell of this
Court stated in Alakozai v Canada (Citizenship and Immigration), 2009 FC
266 at paragraph 36, referring to the decision of the Federal Court of Appeal
in Sellan v Canada (Minister of Citizenship and Immigration) 2008 FCA
381, a negative credibility finding by the RPD is determinative of the claim.
As a result, it was not necessary for the Member to carry out a separate
analysis under section 97 of IRPA. The negative credibility finding was
sufficient to dispose of the applicant’s claim.
2.
Was the Member’s decision rejecting the sur place claim reasonable?
[24]
The Member’s conclusion that there was no
persuasive evidence to suggest the Chinese authorities were aware of the
claimant’s participation in Falun Gong demonstrations is reasonable in light of
the fact that her sur place
claim was based only on her attendance at an event in a park involving a couple
of hundred people. Photographs of participating in a Falun Gong event do not
elevate the claim to a sur place claim: see Jin, cited above, at paragraph 20.
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