Docket: IMM-5833-13
Citation:
2015 FC 5
Ottawa, Ontario, January
5, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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ZHIAN ZHOU
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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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JUDGMENT AND REASONS
I.
Background and Nature of the Matter
[1]
The Refugee Protection Division [the RPD] of the
Immigration and Refugee Board of Canada refused Mr. Zhou’s request for
protection under sections 96 and 97(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act], and he now applies for
judicial review pursuant to section 72(1) of the Act, requesting that
the Court set aside the RPD’s decision and return the matter to the RPD for
reconsideration.
[2]
Mr. Zhou [the Applicant] is a citizen of China who arrived in Canada on May 18, 2011. He sought refugee protection two weeks later,
claiming that he started practicing Falun Gong in China to cure his back
problems and that he fears persecution ever since his practice group was raided
by China’s Public Security Bureau [the PSB] on March 6, 2011.
II.
Decision under Review
[3]
In its decision dated August 1, 2013, the RPD
found that the Applicant was neither a Convention refugee nor a person in need
of protection under sections 96 and 97(1) of the Act.
[4]
For the RPD, the Applicant’s claims hinged on
credibility, and the Applicant had none. Though mindful of the presumption of
truthfulness (Maldonado v Canada (Minister of Employment and Immigration)
(1979), [1980] 2 FCR 302 at 305, 31 NR 34 (CA)), the RPD gave many reasons for disbelieving
the Applicant’s claims:
•
His parents sent important personal documents to
him in his own name, even though he was allegedly wanted by the PSB and the
Chinese authorities are known to monitor mail;
•
He submitted these personal documents late and
claimed that he did not know that he should have kept the envelope even though
he had experienced immigration counsel;
•
He said in his personal information form [the
PIF] that he had left his resident identity card in China, but testified at the
hearing that he brought it with him. The RPD did not accept his explanation
that this was due to an interpreter or consultant error, since the PIF had been
translated back to him before he signed it;
•
He had engaged a smuggler some three months
before his practice group was raided, allegedly because he was afraid he might
have to leave the country on short notice. Since the Applicant had a wife and a
child in China, the RPD did not believe he would continue practicing Falun Gong
if he was that afraid of being discovered as such;
•
His alleged fear of discovery was inconsistent
with the fact that he never made any substantial inquiries into the safety of
his Falun Gong group practices or how long they had been operating;
•
There was a discrepancy in the amount of money
he said that he paid the smuggler;
•
He claimed that he had gone to four or five
different doctors about his back, but only supplied a medical booklet for one
visit. He claimed that he lost the booklets recording the other visits, but the
RPD found that those visits should have been recorded in the same booklet and
that, in any event, the smuggler would have told the Applicant about the
importance of keeping documentation;
•
The Applicant testified that his back condition
was improving just by performing the qi qong exercises without learning any
Falun Gong philosophy. Since qi qong exercises are legal and were working, the
RPD did not believe that the Applicant would take the risk of joining a Falun
Gong group;
•
The Applicant originally said that he never
learned any philosophy with the group, and it was only after he was asked by
the RPD that he mentioned an older member who would occasionally come and read
to the group;
•
The Applicant testified before the RPD that his
Falun Gong group had no instructor, but in his PIF he had stated that lookouts
alerted his instructor about the alleged raid;
•
The Applicant testified that he ran away during
the raid by the PSB and never looked back, but the RPD considered it unlikely
that he would not look back to see if he was being followed;
•
At the hearing, the Applicant stated that he
went to his wife’s aunt’s house after the raid, but he had told an immigration officer
that he had gone to a friend’s house;
•
There were some inconsistencies about when the
PSB required the Applicant to report to them and also as to whether the PSB
mentioned Falun Gong on their first visit to the home of the Applicant’s
parents;
•
Only when questioned by the RPD did the
Applicant say that the PSB looked for him at work; and
•
The Applicant called Falun Gong a religion in
his PIF narrative, but at the hearing testified that Falun Gong was not a
religion.
[5]
In view of the foregoing findings, the RPD
rejected the Applicant’s credibility and found that he had never practiced
Falun Gong in China. Although the Applicant started practicing Falun Gong when
he arrived in Canada and so had some knowledge about it, the RPD determined
that he did this only to support his fraudulent refugee claim. Furthermore, the
RPD found that the Applicant would not be perceived as a genuine adherent of
Falun Gong in China, and that there was only a remote possibility that he would
be of any interest to Chinese authorities because of his participation in such
activities here in Canada. The RPD therefore rejected the Applicant’s claim.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[6]
The Applicant advanced three arguments: firstly,
that the RPD conducted a microscopic analysis and focused unduly upon trivial
inconsistencies with the Applicant’s claims; secondly, the RPD made highly
speculative plausibility findings on critical issues; and thirdly, because of
these first two problems, the RPD unreasonably rejected the Applicant’s claims
and, in particular, his claim of being an adherent of Falun Gong.
[7]
The Applicant asserts that it was unreasonable
for the RPD to focus upon minor inconsistencies such as to where the Applicant
fled following the raid by the PSB. Furthermore, citing Valtchev v Canada (Minister
of Citizenship and Immigration), 2001 FCT 776, 208 FTR 267, the Applicant
argues that the RPD made various unreasonable and speculative plausibility
findings; for example, the Applicant says it was unreasonable for the RPD to
speculate on how one should act when escaping the PSB.
[8]
The Applicant further submits that some of the
RPD’s conclusions or findings were made without any evidence or were
unexplained, such as the RPD’s finding that the Chinese authorities monitor
mail.
[9]
In view of the RPD’s findings listed above (as
well as others which the Applicant pointed to during the hearing of this
matter), the Applicant says the RPD’s conclusion that the Applicant is not a
genuine adherent of Falun Gong is unreasonable. He also argues that the RPD
failed to properly consider the possibility of a sur place claim based
on his practice of Falun Gong in Canada.
B.
The Respondent’s Arguments
[10]
The Respondent relies upon Lopez v Canada
(Citizenship and Immigration), 2014 FC 102 at para 30, 23 Imm LR (4th) 4,
to argue that the RPD is entitled to draw reasonable conclusions with respect
to credibility based on implausibility, common sense and the rationality of an
applicant’s narrative, and may reject testimony if it does not accord with the
probabilities.
[11]
The Respondent further argues that the RPD’s
negative credibility findings were not based upon a microscopic reading of the
evidence in an over-zealous effort to disbelieve the Applicant. Even if the
Board did make negative findings with respect to some peripheral issues, the
Respondent submits that a number of the RPD’s negative findings related to
central aspects of the Applicant’s claims and were amply supported by the
evidence. The Respondent says every element of the claims advanced by the
Applicant justifiably raised credibility concerns.
[12]
As a whole, the Respondent states that the RPD’s
decision is reasonable and that its conclusions concerning the Applicant’s
Falun Gong practices in China and here in Canada were justified.
IV.
Analysis
[13]
Credibility findings by the RPD have been
described as “the heartland of the Board’s jurisdiction”,
since they are essentially pure findings of fact that are reviewable on a
reasonableness standard (Zhou v Canada (Citizenship and Immigration),
2013 FC 619 at para 26; Aguebor v Canada (Minister of Citizenship and
Immigration) (1993), 160 NR 315 at para 4, [1993] FCJ No 732 (QL) (CA) [Aguebor];
Singh v Canada (Minister of Employment and Immigration) (1994), 169 NR
107 at para 3, [1994] FCJ No 486 (QL) [Singh]; and Cetinkaya v Canada
(Minister of Citizenship and Immigration), 2012 FC 8 at para 17, 403 FTR 46).
Moreover, it is well-established that deference is to be afforded to the
findings of a tribunal such as the RPD in matters of credibility.
[14]
The central issue before the Court, therefore,
is whether the RPD made unreasonable credibility and plausibility findings with
respect to the Applicant’s claims and, in particular, whether the RPD’s
conclusion that the Applicant was not a genuine Falun Gong practitioner was reasonable.
[15]
A useful summary of the principles that should
be applied to a review of the RPD's credibility findings can be found in Rahal
v Canada (Citizenship and Immigration), 2012 FC 319 at paras 42-46, [2012]
FCJ No 369 (QL), where my colleague Madam Justice Mary Gleason states as
follows:
42 First,
and perhaps most importantly, the 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. As stated in Aguebor
at para 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...
(see also Singh at para 3 and He v Canada (Minister of Employment and Immigration), 49 ACWS (3d) 562, [1994] FCJ No 1107
at para 2).
43 Second,
contradictions in the evidence, particularly in a refugee claimant's own
testimony, will usually afford the RPD a reasonable basis for finding the
claimant to lack credibility, and, if this finding is reasonable, the rejection
of the entire refugee claim will not be interfered with by the Court (see e.g. Rajaratnam
v Canada (Minister of Employment and Immigration) (1991), 135 NR 300,
[1991] FCJ No 1271 (FCA); Mohacsi v Canada (Minister of Citizenship and
Immigration), [2003] 4 FC 771, [2003] FCJ No 586 at paras 18-19 [Mohacsi]).
That said, the contradictions which underpin a negative credibility finding
must be real as opposed to illusory. Thus, the tribunal cannot seize on truly
trivial or minute contradictions to reject a claim (see e.g. Attakora v Canada (Minister of Employment and Immigration) (1989), 99 NR 168, [1989] FCJ No 444 at para 9; Mohacsi
at para 20; Sheikh v Canada (Minister of Citizenship and Immigration),
(2000) 190 FTR 225, [2000] FCJ No 568 at paras 20-24).
44 Third,
while the sworn testimony of a claimant is to be presumed to be true in the
absence of contradiction, it may reasonably be rejected if the RPD finds it to
be implausible. However, a finding of implausibility must be rational and must
also be duly sensitive to cultural differences. It must also be clearly
expressed and the basis for the finding must be apparent in the tribunal's
reasons (see e.g. Lubana v Canada (Minister of Citizenship and Immigration),
2003 FCT 116, 2003 FCJ No 162 at para 12 [Lubana]; Santos v Canada (Minister of Citizenship and Immigration), 2004 FC 937, [2004] FCJ No 1149 at
para 15).
45 Fourth,
the RPD may legitimately have regard to witness demeanor, including
hesitations, vagueness and changing or elaborating on their versions of events.
These sorts of matters may reasonably underpin a credibility finding, but it is
preferable if there are additional objective facts to support the finding (see
e.g. Faryna v Chorny, [1952] 2 DLR 354, [1951] BCJ No 152; Hassan v Canada (Minister of Citizenship and Immigration), 2010 FC 1136 at para 12).
46 Finally,
where a decision turns on credibility, it is incumbent on the RPD to provide
reasons for its assessment given the importance of the issues at stake in a
refugee claim. A generalized, imprecise and vague credibility conclusion
without particulars is subject to being set aside on review (see e.g. Hilo v Canada (Minister of Employment and Immigration) (1991), 15 Imm LR
(2d) 199, [1991] FCJ No 228 (FCA)).
[16]
With these principles in mind, the Court must
respect and cannot interfere with a decision unless it is satisfied that the
reasons of the RPD are not justified, transparent or intelligible and that the
result does not fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
[17]
The Applicant argues that the RPD conducted a
microscopic analysis of trivial inconsistencies, something which this Court has
disallowed in cases such as: Attakora v Canada (Minister of Employment and
Immigration) (1989), 99 NR 168 at paras 3-9, [1989] FCJ No 444 (QL) (CA); Huang
v Canada (Citizenship and Immigration), 2008 FC 346 at para 10, 69 Imm LR
(3d) 286; and Dong v Canada (Minister of Citizenship and Immigration),
2010 FC 55 at paras 23-28, [2010] FCJ No 54 (QL). A microscopic analysis is one
whereby a tribunal examines a fact which has no material relevance to any
central issue and is outweighed by other evidence, but is nonetheless utilized
to dispose of the case (Konya v Canada (Citizenship and Immigration),
2013 FC 975 at para 22, 439 FTR 242).
[18]
In this case, the RPD did not conduct a
microscopic analysis. While the RPD did make negative findings with respect to
a few peripheral issues, such as the place to where the Applicant fled
following the alleged raid by the PSB in 2011, a number of the negative
findings were clearly supported by the evidence and related to central aspects
of the Applicant’s claim. The RPD examined the Applicant on various
inconsistencies in his testimony that was material and central to his claims,
including the extent of his knowledge of Falun Gong, the circumstances of the
alleged raid in March, 2011, and the nature of the weekly group meetings.
[19]
The fact that the RPD may not be allowed to
embark upon a microscopic analysis to achieve a desired outcome does not
relieve a refugee claimant from the burden to provide credible evidence to
establish the claim. Although a claimant is presumed to tell the truth, if
concerns arise as to the veracity of evidence or the credibility of the
claimant, the RPD is clearly entitled and, indeed, expected to question the
claimant about it.
[20]
The Applicant also argues that the RPD made
highly speculative plausibility findings on critical issues relating to such
matters as the PSB raid, the Falun Gong group practice and the Applicant’s
receiving identity documents from his parents in China. I disagree. To the
extent that the RPD may have made any plausibility findings at all, those findings
were rational, based on a common sense assessment of the evidence, and duly
sensitive to cultural differences; in short, they were reasonable.
[21]
It should be noted that, although the RPD did
not explicitly assess the Applicant’s sur place claim, it nonetheless at
least implicitly addressed this matter in the last two paragraphs of its
reasons before its final conclusion, where the RPD stated as follows:
[39] Having previously found the
claimant’s testimony in regard to his FG [Falun Gong] practice affiliation in China not credible, I find that, on a balance of probabilities, and in the context of all the
findings and negative inferences drawn above, that his allegation that he was a
FG practitioner in China is fraudulent. The claimant has alleged that the
impetus to practice FG took place as a result of a set of circumstances which
occurred in China. He alleges that his continued practice of FG in Canada is a continuation of her [sic] alleged practice in China. Having found that he was not
a FG practitioner in China, and having no evidence of an impetus to practice FG
in Canada or a conversion type of experience in Canada, I find, on a balance of
probabilities and in the context on [sic] the findings noted above, that
the claimant joined a FG group in Canada only for the purpose of supporting a
fraudulent refugee claim. On the basis of the totality of the evidence
disclosed, I find the claimant is not a genuine adherent of Falun Gong, nor
would he be perceived to be one in China.
[40] Counsel submits that the Chinese
consulate in Canada would have the claimant’s photograph from the FG activities
he has participated in, and the claimant would therefore be in danger of
persecution if he returns, even if he is not a genuine practitioner. I find
that it is only a remote possibility that the claimant would be recognized or
be of any interest to Chinese authorities, as he does not have any kind of
profile beyond these supposed photographs.
[22]
There was relatively little evidence before the
RPD that the Applicant practiced Falun Gong in Canada. The documentary evidence
before the RPD consisted of four photographs showing the Applicant and others
apparently in front of Falun Gong banners in various locations, together with a
terse letter from an alleged fellow practitioner confirming that the two often
practiced Falun Gong together on the weekends, that the Applicant participated
in the annual Dafa Assembly and demonstration, and that the Applicant was “a genuine Falun Gong practitioner”.
[23]
This Court has held that it is permissible for
the RPD to assess an applicant’s genuineness and therefore his sur place
claim in light of credibility concerns relating to the original authenticity of
a claim: Hou v Canada (Citizenship and Immigration), 2012 FC 993 at para
57, [2014] 1 FCR 405 [Hou]; Yang v Canada (Citizenship and Immigration),
2012 FC 849 at para 19, [2012] FCJ No 961 (QL); Ma v Canada
(Citizenship and Immigration), 2014 FC 1057 at paras 39-40.
[24]
At the hearing, the RPD’s questions were limited
to an assessment of the Applicant’s knowledge of Falun Gong theory and his practice
in China. The Applicant gave no other testimony as to his practice of Falun
Gong in Canada, nor did his counsel ask him any questions as to his practice of
Falun Gong. Also, the Applicant did not call his alleged fellow practitioner to
testify or, for that matter, any other witness.
[25]
The RPD clearly weighed the competing evidence
before it in making its determination that the Applicant’s claim was
fraudulent. Although the Applicant demonstrated some knowledge of Falun Gong
and had some, albeit limited and weak documentary evidence in support of his
claim, I do not think it was unreasonable for the RPD to conclude that the
Applicant was not a genuine practitioner of Falun Gong. This finding by the RPD
is well “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
V.
Conclusion
[26]
In the end, I find the facts and circumstances
of the Applicant’s claim similar to, and in many respects, indistinguishable
from those before this Court in Hou and in Su v Canada (Citizenship
and Immigration), 2013 FC 518, [2013] FCJ No 588 (QL), where the Court
declined to intervene with the RPD’s decisions.
[27]
This being so, the Applicant’s application for
judicial review should be and is hereby dismissed.
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