Docket: IMM-8157-13
Citation:
2015 FC 176
Ottawa, Ontario, February 16, 2015
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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DENG, WEI MING
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CHEN, DONG YANG
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Applicants
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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
[1]
The applicants seek to set aside a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the Board), dated November 18, 2013, which found that they were neither Convention
refugees nor persons in need of protection pursuant to sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow the application is dismissed.
I.
Facts
[2]
The applicants, Wei Ming Deng and his wife, Dong
Yang Chen, are citizens of China. Their claims were heard jointly, however
only Dong Chen testified.
[3]
The applicant Dong Chen graduated in 2006 from
Guangzhou University with a major in Law. The male applicant was employed as a
sales clerk in Guangzhou. The applicants were married on October 1, 2009 and
arrived in Canada on April 3, 2011. They claimed refugee protection for
political reasons on April 7, 2011.
[4]
In October 2010, the municipal government sent the
applicants a notice advising that they had to vacate their home before December
10, 2010 as the city required the property in order to build a greenbelt.
Approximately fifty houses were affected by the order. The homeowners thought
the compensation offered was unreasonable. The applicants, and others, decided
to negotiate with the government.
[5]
The applicant testified that the request to
negotiate went unanswered, and on December 10, 2010 workers with bulldozers and
trucks arrived to demolish the homes. A gathering of about 100 residents
attempting to block the workers and prevent the demolition triggered the
arrival of the Public Security Bureau (PSB). The PSB began to arrest the
residents, and the applicants ran from the scene. They went to the home of a
friend. An aunt told the applicants that the PSB came to her home looking for
the couple, accusing them of illegal assembly, destroying social order and
interfering with government officials.
[6]
The applicants hired a snakehead who arranged
their travel to Canada on fraudulent Hong Kong passports.
II.
Decision
[7]
The Board concluded that the real dispute at
issue between the applicants and the municipal government was over the amount
of compensation, and therefore it was not a recognized ground of persecution
under the Convention. The claim was not based on the government’s
action in expropriating the land, and there was no evidence to suggest that a Convention
ground motivated or underlied the government’s action to expropriate. The
Board held that there was no nexus to a Convention ground. It therefore
relied on You v Canada (Citizenship and Immigration), 2013 FC 100 for
the proposition that monetary disputes cannot be characterized as political
disputes simply because a government decision underlies the controversy. Consequently,
the claim pursuant to section 96 of IRPA failed. The Board then analyzed
the section 97 claim.
[8]
The Board concluded that the applicants did not
adduce credible evidence. Specifically, the female applicant’s testimony as to
how she and her husband escaped the protest scene was vague and lacked
specificity; her testimony regarding the arrival of the PSB and arrests of the
protesters was evasive, unspecific and at times contradictory to her Personal
Information Form (PIF), and her testimony regarding how the applicants managed
to evade the PSB was vague. The Board found her evidence that the applicants
continued to have direct contact with their family members while in hiding,
despite the fact that the PSB was allegedly searching for them at family
members’ homes, not credible.
[9]
Finally, the Board explained that even if the
applicants were considered credible, and the applicants were being sought by
the PSB, their jeopardy should be classified as prosecution under a law of
general application, not persecution.
III.
Analysis
[10]
The Minister did not seek to uphold the decision
based on the absence of a nexus to a Convention ground; hence, the sole
issue in this judicial review application is whether the credibility findings
of the Board can be sustained.
[11]
The applicant contends that the Board’s credibility
assessment was microscopic, at times speculative and made without regard for
the evidence. The Board took issue with the female applicant’s vague answers
and lack of specificity, stating that because this was a traumatic event for
the applicants they should have a vivid memory of the event. However, the
Board was not an expert in respect of memory processes, and although some
people might be able to testify with great specificity, others may not remember
traumatic events. Further, the female applicant explained inconsistencies in
her PIF, noting that there must have been a problem with the translation.
Comments by the Board regarding the visits by the PSB to the homes of family
members were also speculative. The applicants admittedly took a risk in
visiting family members; but the Board held that this risk was unreasonable
given the female applicant’s evidence as to the ongoing pursuit by the PSB.
[12]
In my view, the Board’s credibility findings
were reasonable. The Board’s credibility findings are drawn from the evidence
on the record. The Board made negative inferences regarding the female applicant’s
ability to recall specific facts, and although the applicant argues this is
possible because the applicant lost memory because of the trauma of the event,
no evidence of this was led. The onus is on the applicant to establish the
facts underlying her claim. The Board member, in the ordinary course of fact
finding, is entitled to draw inferences from the absence of precision or
particularity in circumstances where it is reasonable to expect precision or
particularity. While counsel contends that the events around the demonstration
where fluid and confused, I do not find the degree of recollection expected of
the applicant by the Board to be unreasonable.
[13]
The Board considered the applicant’s explanation
regarding the inconsistencies between her PIF narrative and evidence, and noted
that the applicant signed a declaration certifying the contents of the
narrative to be complete and correct. While, the applicant amended the PIF
prior to the hearing, she did not correct the particular statements in question
until the hearing. The Board found the explanation for the discrepancy on a
material point of evidence un-compelling, and there is no basis to interfere
with that finding.
[14]
The applicant also failed to provide a
satisfactory explanation as to how the applicants’ family members could have
visited the applicants while in hiding at the same time the PSB continued to
visit the home of their closest relative, an aunt. The Board noted that
despite ten visits by the PSB to the aunt’s home, no notice or summons was
left. The Board found that the applicants were not being pursued by the PSB, a
conclusion that was open to it.
[15]
I accept the applicant’s argument that each
individual deviation or inconsistency in her evidence may have not been
significant or determinative. Viewed cumulatively, however, the Board member
had an objective foundation in the record to conclude that “…the applicant was not recollecting events that they (sic)
had personally experienced.” The Board identified a number of areas of
concern, including how the applicant managed to escape arrest at the
demonstration; her description of where the PSB arrived at the scene and the
number of officers present and whether she saw the PSB make arrests or was told
that they had afterwards. In sum, the Board fairly and reasonably assessed the
claimants’ evidence and rejected it. There is no basis for intervention.
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