Docket: IMM-4968-14
Citation:
2015 FC 666
Ottawa, Ontario, May 25, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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JIALU SU
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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.
Introduction
[1]
Jialu Su [the Applicant] has brought an
application for judicial review pursuant to s 72 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA]. The Applicant challenges
a decision of the Refugee Protection Division of the Immigration and Refugee Board
[the Board] which determined that he is neither a Convention refugee nor a
person in need of protection pursuant to ss 96 and 97(1) of the IRPA.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
II.
Background
[3]
The Applicant is a citizen of China. He formerly
resided in Guangdong Province. The Applicant’s refugee claim was based on the
following contentions:
•
In February, 2010 the Applicant discovered that
his girlfriend had been unfaithful. He became frustrated and disappointed.
•
In May, 2010 the Applicant visited a friend who
informed him of the benefits of practising Falun Gong, a spiritual movement
that is outlawed in China. In June, 2010 the Applicant began to study Falun
Gong with his friend. After three months of practising Falun Gong, he began to
feel better.
•
On August 25, 2011, the Applicant was practising
his new faith in the home of a fellow Falun Gong practitioner when it was
raided by the Public Security Bureau [the PSB]. The Applicant escaped to a
friend’s house where he stayed for two months. During this time, the Applicant
learned that the PSB had searched his family home and sought his arrest on 15
separate occasions.
•
Fearing the PSB, the Applicant decided to leave
China. Assisted by a friend, he hired an agent who made all of the arrangements
for the Applicant to leave China.
[4]
The Applicant arrived in Canada, via Hong Kong
and the United States, on October 22, 2011. He submitted his refugee claim on October
31, 2011.
[5]
The Board rejected the Applicant’s claim on June
2, 2014 on the ground that he lacked credibility.
III.
The Board’s Decision
[6]
The Board was not satisfied that the Applicant
was a genuine practitioner of Falun Gong, either in China or in Canada, and did
not believe that he was being sought by the PSB. The Board determined that the
Applicant would not face a risk to his life, or a risk of cruel and unusual
treatment or punishment, or a danger of torture if he returned to his country
of origin.
[7]
The Board found that the Applicant had fabricated
his story in order to support his refugee claim. The Board’s decision was based
on several adverse findings regarding the plausibility and credibility of the
Applicant’s version of events:
•
It was implausible that the Applicant would join
Falun Gong merely because of a failed relationship. The Applicant was aware of
the dangers of practising Falun Gong in China. He did not demonstrate a strong
and substantive motivation for doing so, given the serious consequences.
•
The Applicant said that the PSB never left an
arrest summons at his family home, despite apparently seeking him out on 15 separate
occasions. One would expect an arrest summons to be issued, given the Applicant’s
assertion that the PSB was pursuing him so assiduously.
•
The Applicant was able to leave China using an
authentic passport issued in his name. If the PSB were pursuing the claimant as
persistently as he claimed, then he would not have been able to leave China in
this manner.
•
The Applicant’s family continued to lead their
lives free of intimidation by the PSB; however, documentary evidence indicated
that family members of Falun Gong practitioners are subject to punishment and
persecution by local Chinese authorities.
•
The Applicant’s explanation for the delay in
submitting his refugee claim was vague and circuitous.
[8]
Given its adverse findings of credibility, the
Board attached little weight to the evidence submitted by the Applicant to
demonstrate his ongoing practice of Falun Gong in Canada. This was found to be self-serving
and insufficient to overcome the Board’s concerns regarding the Applicant’s
truthfulness.
IV.
Issues
[9]
The following issues are raised by this
application for judicial review:
A.
Whether the Board’s assessment of the
Applicant’s credibility was reasonable; and
B.
Whether the Board’s assessment of the Applicant’s
sur place claim was reasonable.
V.
Analysis
[10]
The Board’s findings regarding the Applicant’s
credibility and his sur place claim are both subject to review by this
Court against a standard of reasonableness (Li v Canada (Minister of
Citizenship and Immigration), 2011 FC 941 at paras 14-15 ; Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
A.
Whether the Board’s assessment of the
Applicant’s credibility was reasonable
[11]
A refugee claimant’s sworn testimony is presumed
to be true unless there are reasons to doubt its veracity (Maldonado v
Canada (Minister of Employment and Immigration) [1980] 2 F.C. 302 (FC)). In
assessing a refugee claimant’s sworn testimony, the Board is entitled to consider
its plausibility, and to apply common sense and rationality (Ye v Canada
(Minister of Citizenship and Immigration), 2014 FC 1221 at para 29). Where
the evidence before the Board is inconsistent with the claimant’s sworn
testimony, the presumption of truth is rebuttable (Adu v Canada (Minister of
Employment and Immigration), [1995] FCJ No 114 (FCA)).
[12]
The Applicant argues that the Board’s finding regarding
the implausibility of his story was unreasonable, relying on Valtchev v
Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (FC) at para
9 [Valtchev]:
A tribunal may make adverse findings
of credibility based on the implausibility of an applicant's story provided the
inferences drawn can be reasonably said to exist. However, plausibility
findings should be made only in the clearest of cases, i.e., if the facts as
presented are outside the realm of what could reasonably be expected, or where
the documentary evidence demonstrates that the events could not have happened
in the manner asserted by the claimant. A tribunal must be careful when rendering
a decision based on a lack of plausibility because refugee claimants come from
diverse cultures, and actions which appear implausible when judged from
Canadian standards might be plausible when considered from within the
claimant's milieu.
[13]
The Board’s findings of credibility are entitled
to considerable deference by this Court, given the Board’s ability to directly
observe the witness’ demeanour, its expertise and its central role as a fact-finder
(Aguilar Zacarias v Canada (Minister of Citizenship and Immigration),
2012 FC 1155 at para 9; Aguebor v Canada (Minister of Employment and
Immigration), [1993] F.C.J. No.
732 (FCA) at para 4). It is only when the Board’s decision falls outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law” that the Court will intervene (Dunsmuir
at para 47). A decision of the Board will fall outside the realm of what is
reasonable only if it has been made in a perverse or capricious manner, or
without regard to the material before it (Khosa v Canada (Minister of Citizenship and
Immigration), 2009 SCC 12 at para 118).
[14]
The Board’s finding regarding the implausibility
of the Applicant’s story based on the Board’s expertise, the Applicant’s
testimony and the available documentary evidence. It was not unreasonable for
the Board to conclude that the Applicant, a young man in his early 20s, would not
endanger himself and his family by becoming a Falun Gong practitioner merely
because his girlfriend had been unfaithful.
[15]
The Applicant also says that the Board was
selective in its use of documentary evidence. There is a presumption that the
Board considered all of the evidence that was before it (Hassan
v. Canada (Minister of Employment and Immigration.),
[1992] F.C.J. No. 946 (FCA) at para 3). A failure to mention a
particular piece of evidence does not mean that this was ignored or that the
Board committed a reviewable error (Li v Canada (Minister of Citizenship and
Immigration), 2008 FC 266 at para 19).
[16]
The documentary evidence confirmed that the
PSB’s practice of leaving summons was not uniform. However, in this case the
Board’s negative assessment of the Applicant’s credibility was reasonable given
his testimony regarding the number of times that the PSB visited the Applicant’s
home (Cao v Canada (Minister of Citizenship and Immigration), 2012 FC
1398 at para 35; Zhang v Canada (Minister of Citizenship and Immigration),
2011 FC 654). The documentary evidence does not suggest that the PSB never
leaves arrest summons with family members in Guangdong Province (Lin v Canada
(Minister of Citizenship and Immigration), 2012 FC 1200 at para 30).
[17]
Similarly, the Board was entitled to draw an adverse
inference from the Applicant’s ability to leave China using a genuine passport
issued in his name. The documentary evidence included information regarding the
national police monitoring system and entry/exit procedures for Chinese
citizens who wish to travel to Hong Kong. Although information-sharing
practices among police stations are not consistent, particularly in small
towns, an exit permit could only be obtained from the Applicant’s local police
station.
B.
Whether the Board’s assessment of the
Applicant’s sur place claim was reasonable
[18]
The Board is permitted to conduct its sur
place analysis in view of its concerns regarding the original authenticity
of a claim (Zhou v Canada (Minister of Citizenship and Immigration), 2015
FC 5 at para 23. Jiang v Canada (Minister of Citizenship and Immigration),
2012 FC 1067 at para 28 [Jiang]; Hou v Canada (Minister of
Citizenship and Immigration), 2012 FC
993 at para 57; Yang v Canada (Minister of Citizenship and
Immigration), 2012 FC 849 at
para 19). The Board must nevertheless determine, either implicitly or
explicitly, whether the Applicant, due to events that have transpired since his
departure from his country of origin, has become a member of a persecuted group
and whether he would now face persecution upon his return (Jiang v Canada
(Minister of Citizenship and Immigration), 2008 FC 635 at para 15).
[19]
In this case, I adopt the analysis of Justice
Zinn in Jiang at para 27:
The Board here
found that the applicant had fabricated her story to claim refugee protection.
A reasonable inference from that premise is that her current knowledge,
appearance in photos, and letters of support were fostered in the intervening
two years to support that fraudulent claim.
[20]
I reject the Applicant’s assertion that the
Board conducted its sur place assessment in a perfunctory manner and
failed to provide reasons. I am satisfied that the Board properly considered
the evidence that was before it, and reasonably concluded that the Applicant
had “manufactured this part of his story to support his
contrived claim” (Meng v Canada (Minister of Citizenship and
Immigration), 2015 FC 365 at para 27). The Applicant’s counsel candidly
acknowledged that there is no reason to believe that the Chinese authorities
are aware of the Applicant’s activities in relation to Falun Gong in Canada.
VI.
Conclusion
[21]
For the foregoing reasons, the application for
judicial review is dismissed. Neither party proposed a certified question for
appeal, and none arises in this case.
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