Docket: IMM-4605-13
Citation:
2015 FC 207
Ottawa, Ontario, February 18, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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HAN LIU
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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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ORDER AND REASONS
I.
Introduction
[1]
The Applicant seeks judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the RPD), dated May 29, 2013, dismissing the Applicant’s
refugee protection claim on the ground that she is neither a Convention refugee
nor a person in need of protection pursuant to sections 96 or 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act).
[2]
The Applicant (or Ms Liu) contends that the RPD
committed a reviewable error in its assessment of the documentation supporting
her refugee protection claim and breached her right to a fair hearing in
failing to identify an issue which eventually formed part of its reasons for
decision.
[3]
For the reasons that follow, Ms Liu’s judicial
review application is dismissed.
II.
The Facts
[4]
Ms Liu is a Chinese citizen. Since 2002, Ms Liu
had been studying in Japan, with only short visits to her family in China. In
2008, her mother, who still lives in China, began practicing Falun Gong after
suffering a stroke. Falun Gong is a spiritual discipline that is practiced by
millions of people in China (and around the world). Ms Liu’s mother had to be
cautious when practicing Falun Gong as it is illegal in China. During the
week, Ms Liu’s mother would practice Falun Gong by herself at home but during
weekends, she practiced with a group of 11 other individuals at another
location.
[5]
While in Japan, Ms Liu witnessed many Falun Gong
practitioners practicing freely. Upon her mother’s request, she gathered some
Falun Gong materials and sent them to her mother in China via the internet. Her
mother wanted the materials for her Falun Gong group so that they could prepare
leaflets for distribution.
[6]
On June 14, 2011, Ms Liu arrived in Canada as a
tourist. A few weeks later, on July 10, 2011, she received a phone call from
her sister telling her that their mother’s Falun Gong group had been raided by China’s
Public Security Bureau (the PSB) and that some members of the group had been
arrested although their mother was able to escape. The next day, Ms Liu
learned that the PSB had raided her mother’s home and found the Falun Gong
materials that she had sent to her mother from Japan. On July 12, 2011, a
summons was left for Ms Liu’s mother’s arrest. Ms Liu’s sister also told her
that the PSB wanted to arrest her, Ms Liu, upon her return to China because of
her involvement in the illegal activities, namely that she had sent Falun Gong
materials to her mother. This is when Ms Liu made her refugee claim in Canada.
She apparently chose Canada over Japan because of the scenery. Since that
time, Ms Liu’s mother has allegedly been arrested and is in still in detention.
[7]
The RPD found the determinative issues for the
dismissal of Ms Liu’s refugee protection claim to be credibility and lack of
reliable corroborative evidence to support her testimony.
[8]
When summarizing Ms Liu’s testimony, the RPD
noted:
a.
That Ms Liu has 23 years of education;
b.
That she was aware that the Falun Gong materials
she was sending to her mother was also for the 11 other individuals with whom her
mother practiced Falun Gong, although she also testified that her mother did
not distribute these materials;
c.
That while she acknowledged that it was
inevitable that these materials could end up in the public’s hands, Ms Liu admitted
not having considered the consequences of her actions which were against the
laws of China;
d.
That no corroborating evidence was presented
regarding the continuous detention of Ms Liu’s mother or that of the five
individuals from the Falun Gong group who were arrested at the initial raid by
the PSB, including a photocopy of her sister’s jail visitor’s card that she did
not think to provide;
e.
That Ms Liu was unaware of the whereabouts of
the other six individuals who, with her mother, escaped arrest;
f.
That when asked how the PSB made the connection
between her and the Falun Gong materials founds on her mother’s computer, Ms
Liu’s answered that the PSB knew that she was in Japan but that she was unaware
of how that would translate into sufficient evidence to implicate her in the
matter;
g.
That no summons has been issued against Ms Liu
personally, her fear of being arrested upon returning to China resting on what
she has been told by her sister; and
h.
That the PSB has not returned to her mother’s
home since February 2012.
[9]
The RPD further noted the summons allegedly
issued against her mother did not match the description provided by a “Visiting Scholar” in the documentary evidence which
also indicated that fraudulent documents are readily available in China. This
caused the RPD to place less evidentiary weight on the summons and to question
the veracity of the arrest warrant.
[10]
The RPD did not believe that it had enough
evidence before it to agree with Ms Liu that she should fear arrest by the PSB.
Nonetheless, it considered an additional analysis based on the assumption that
she would be convicted at trial. In this respect, the RPD found that if Ms Liu
were to return to China and be convicted at trial, it would be inherent or
incidental to the lawful sanctions in China and, as a result, fall outside the
scope of section 97 of the Act as per subsection 97(1)(b)(iii). It further
noted that, although the laws in China may be harsher than in Canada, and the
same standards are not imposed on prison conditions, these were not sufficient
grounds upon which to grant a claim under subsection 97(1).
[11]
The RPD also found that, on a balance of
probabilities, if Ms Liu were to be pursued by authorities in China, it would
be because she violated Chinese law and not because she holds a particular
belief or that she opposes government policies. Furthermore, it found that the
sanctions imposed on Ms Liu would involve fines, threats, and harassment, and
fall short of establishing that she would be subjected to cruel and unusual
treatment or punishment and risk of torture. The RPD concluded that, should Ms
Liu return to China, she would be at risk of prosecution rather than
persecution. The RPD further referred to a decision by Justice Eleanor Dawson
(as she was then) in Gong v Canada (Minister of Citizenship and
Immigration), 2008 FC 600 at para 11, where she noted that evidence did not
support that those who sympathise with or associate with Falun Gong
practitioners and are subsequently arrested are subjected to cruel and unusual
punishment.
[12]
Therefore, on the totality of evidence, the RPD determined
that Ms Liu had not satisfied her burden of establishing a serious possibility
that she would be persecuted or that she would be personally subjected to a
risk to her life, or a risk of cruel and unusual treatment or punishment, or a
risk of torture, as contemplated by section 96 or subsection 97(1) of the Act.
III.
Issues and Standard of Review
[13]
This case raises the following two issues:
a.
Did the RPD improperly assess the Applicant’s
supporting documents, making the decision unreasonable?
b.
Did the RPD breach the Applicant’s right to
procedural fairness in failing to identify prosecution versus persecution as an
issue?
[14]
As is well established, credibility and factual
findings by the RPD are reviewed on a reasonableness standard (Dunsmuir v
New Brunswick (Board of Management), 2008 SCC 9 at paras 47-50; Alliance
Pipelines Ltd v Smith, 2011 SCC 7 at paras 26-27; Pena v Canada
(Minister of Citizenship and Immigration, 2009 FC 455 at para 7) whereas a standard
of correctness applies to procedural fairness issues (Khosa v Canada
(Minister of Citizenship and Immigration), 2009 SCC 12 at para 12; Sketchley
v Canada (Attorney General), 2005 FCA 404 at para 53).
[15]
This is not disputed by the parties.
IV.
Analysis
A.
Did the RPD improperly assess the Applicant’s
supporting documents, making the decision unreasonable?
[16]
As indicated above, the RPD rejected the summons
adduced into evidence by Ms Liu because the margins did not correspond with the
description of a summons provided in the documentary evidence. Ms Liu submits
that this finding suffers from a number of defects.
[17]
First, she claims that the RPD did not measure
the margins in front of her and did not identify the margins of the summons. Given
this, she contends that the RPD failed to explain how it arrived at its finding
that the summons did not conform to the description provided in the documentary
evidence. Additionally, there was no information provided about the
unidentified “Visiting Scholar” to qualify him as a reliable source of
information. Ms Liu submits that it is an error of law for the RPD to accept
the untested information of an unidentified so-called scholar especially when
there was documentary evidence to the contrary.
[18]
Second, Ms Liu submits that the RPD ignored
relevant information contained in the Response to Information Request regarding
the variability of PSB practices, making no mention of this information in its
reasons for decision. She claims that this information was important to the
issue of the authenticity of the arrest summons and notice of arrest and that
it should, therefore, be inferred that the RPD made an erroneous finding of
fact as contemplated by this Court’s judgment in Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425.
[19]
Third, she argues that the only other reason
given by the Panel for rejecting the arrest summons and notice of arrest was
based on the Panel’s unsubstantiated finding that she would have had the means
to secure duplicitous documentation to assist her quest for refugee protection
in Canada.
[20]
Ms Liu claims that these defects in the RPD’s
assessment of her supporting documents undermined its assessment of her
credibility. She submits that this finding is contrary to the following three basic
principles of refugee law:
a.
When a refugee claimant swears to the truth of
certain allegations, this creates a presumption of truthfulness, unless there
is a valid reason to rebut the truthfulness of the claimant’s allegations;
b.
Foreign documents should be presumed authentic
and credible; and
c.
The RPD should not be overzealous in assessing a
refugee protection claimant’s credibility.
[21]
This argument, I am afraid, falls short of
establishing that the RPD’s decision is, as a whole, unreasonable.
[22]
First, there was reason to doubt the
authenticity of the summons because of the fact that the margins of the arrest
summons did not match the description contained in the documentary evidence. This
differentiates the present case from that of Rasheed v Canada (Minister of
Citizenship and Immigration), 2004 FC 587, at para 19, referred to by Ms
Liu in her submissions, where no reason existed to doubt the authenticity of
the documents.
[23]
The case law cited by the Respondent establishes
that the RPD’s conclusion that a summons from China is likely fraudulent is not
unreasonable when there is some evidence that points to that possibility (Lin
v Canada (Minister of Citizenship and Immigration), 2010 FC 183 at paras
20-21; Jing v Canada (Minister of Citizenship and Immigration), 2012 FC
609 at para 17; Zhuo v Canada (Minister of Citizenship and Immigration), 2012
FC 790 at paras 4-6, 9).
[24]
Ms Liu referred to the case of Lin v Canada
(Minister of Citizenship and Immigration), 2012 FC 157, at paras 53-54,
where the Court held that evidence of the availability of fraudulent documents
is not enough to declare that documents are fraudulent and the RPD has the duty
to determine whether they are genuine or not in the particular circumstance. In
the case at bar, this is exactly what the RPD did. The RPD relied on
documentary evidence in the Response to Information Request, to find that the
margins of the arrest summons did not correspond to the description, which then
led to the finding that both the arrest summons and the notice of arrest were
not genuine. It is worth noting that the RPD provided Ms Liu’ counsel with the
opportunity to make written representations on this particular issue. Counsel preferred
making oral submissions.
[25]
Ms Liu also points to the case of Veres v
Canada (Minister of Citizenship and Immigration), [2001] 2 FC 124 at
para 19 and 20, which indicates that the RPD cannot just call any evidence
“documentary evidence” and rely on it when there is other evidence available
that points to the contrary. In the present case, however, the situation can
be distinguished. The information upon which the RPD relied was contained in a
Response to Information Request. This kind of information should be considered
reliable as it is available through the Immigration and Refugee Board website,
decision-makers are encouraged to use this information, and it is regularly
used in the context of immigration and refugee hearings. The information on
which the RPD relied in this case was provided by a scholar from the Faculty of
Law of the Chinese University of Hong Kong who has extensive research
experience regarding Chinese justice and administrative detention.
[26]
Second, while it is true that the Court has
found that there is variability in the practice of the Chinese PSB (Chen v
Canada (Minister of Citizenship and Immigration), 2012 FC 545 at para 7)
and that this factor plays in favour of Ms Liu, this is not enough, considering
the other aspects that support a finding of fraudulent documents and more
importantly, the other credibility findings made by the RPD, to find the
decision of the RPD unreasonable.
[27]
Indeed, another important principle of refugee
law is that the RPD is best positioned to gauge the credibility of an account
and draw the necessary inferences (Aguebor v Canada (Minister of Employment
and Immigration) (1993), 160 NR 315 (FCA) at para 4). Significant
deference is owed to the RPD as it is within its jurisdiction to weigh the
evidence and ascertain credibility (Chen v Canada (Minister of Citizenship
and Immigration), 2012 FC 95 at para 31; Sinan v Canada (Minister of
Citizenship and Immigration), 2004 FC 87).
[28]
As a result, unchallenged credibility findings
must be presumed to be true (Su v Canada (Minister of Citizenship and
Immigration), 2013 FC 518 at para 14; Jiang v Canada (Minister of
Citizenship and Immigration), 2012 FC 1067 at paras 20-22; Cienfuegos
v Canada (Minister of Citizenship and Immigration), 2009 FC 1262 at paras
25-26). Therefore, even if I found that the RPD was not entitled to conclude that
the summons and the arrest warrant were fraudulent, there were other
credibility findings that would be presumed to be true.
[29]
Findings that would be presumed to be true include:
a.
Ms Liu testified that she had not wanted her
mother to distribute the Falun Gong materials, but in her Personal Information
Form, she stated that she agreed to send the materials to help prepare leaflets
to be distributed;
b.
Ms Liu testified that the PSB made the
connection to her because they were aware she was in Japan, but the RPD did not
consider her testimony proof that she had in fact been implicated;
c.
No evidence was adduced to show that the five
members who were arrested were still in detention;
d.
There was no evidence proving that Ms Liu’s
mother was still in detention today;
e.
Ms Liu testified that she did not think of
providing a copy of her sister’s jail visitor card as corroborative evidence of
her mother’s detention; and
f.
The Chinese authorities have not returned to the
family home since February 2012.
[30]
Given these credibility concerns, the RPD was
entitled, in my view, to give little probative value to Ms Liu’s corroborative
evidence and it was reasonably open to it, based on these concerns, to conclude
that Ms Liu did not meet the definition of a Convention refugee or of a person
in need of protection pursuant to sections 96 and 97 of the Act. In such
context therefore, the RPD did not err in failing to explain why it gave no
weight to documents purporting to substantiate allegations found not to be
credible (Huang v Canada (Minister of Citizenship and Immigration), 2011
FC 288 at paras 21-22; Ahmad v Canada (Minister of Citizenship and
Immigration), 2003 FCT 471 at para 26).
[31]
Negative credibility findings are determinative
and the failure to prove that they are unreasonable is sufficient to defeat a
refugee protection claim (Aguebor, above at para 4). As a result, Ms
Liu’s argument that the RPD improperly assessed the supporting documents,
making its decision unreasonable, must fail.
B.
Did the RPD breach the Applicant’s right to
procedural fairness in failing to identify prosecution versus persecution as an
issue?
[32]
The Respondent does not challenge the fact that
the issue of whether Ms Liu would be prosecuted or persecuted if returned to
China was not raised either in the RPD Screening Form before the hearing, or
during the hearing. However, the Respondent argues that this issue is not
determinative of Ms Liu’s refugee protection claim.
[33]
I agree. Had this issue been determinative of
Ms Liu’s claim, the failure on the part of the RPD to raise it before or during
the hearing in order to provide Ms Liu with an opportunity to respond to it would
have been a clear breach of Ms Liu’s right to a fair hearing and sufficient
ground to quash the RPD’s decision. But it was not.
[34]
As indicated previously, the determinative
issues in this case were credibility and corroborative evidence. In other
words, Ms Liu was found by the RPD not to be credible. The RPD was therefore
not required to embark on a discussion as to whether Ms Liu had more chance of
being prosecuted than persecuted if returned to China as it had already found
that she had not credibly established that she was at risk upon returning to
that country.
[35]
For these reasons, I find that the RPD’s miscue
in this regard does not warrant intervention from the Court.
[36]
Ms Liu’s second ground of argument against the
RPD’s decision must also fail.
[37]
Neither party has proposed a question of general
importance. None will be certified.
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