Docket: IMM-3967-14
Citation:
2015 FC 1254
Ottawa, Ontario, November 5, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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SEN CAO
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant’s claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada [the Board]. The applicant now applies for judicial review of that
decision pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant is a citizen of the People’s
Republic of China. He was 50 years old at the time of the refugee hearing. He
had 12 years of education and worked as a manager in a bookstore before coming
to Canada.
[4]
In May 2012, the applicant started practicing
Falun Gong to obtain relief from a sleeping disorder.
[5]
On March 17, 2013, the applicant’s practice
group was raided. Subsequently, he learned two practitioners were arrested.
[6]
The applicant then found a smuggler and fled
China. On March 25, 2013, he travelled to the United States and subsequently
made his way to Canada and claimed refugee protection. Since leaving China, the
Public Security Bureau [PSB] has been searching for the applicant and left a
summons with his wife. The PSB accused him of being involved in Falun Gong,
recruiting members for an illegal organization and sabotaging the social order.
II.
Decision Under Review
[7]
In a decision dated April 26, 2014, the Board refused
the applicant’s claim and found the claim does not have a credible basis. The
Minister intervened in this case on the issue of credibility by submitting
documentary evidence.
[8]
First, the Board drew a negative inference with
respect to the bona fides of the applicant’s travel to Canada in 2013 to
make a refugee claim given his efforts on seven prior occasions to leave China.
[9]
Second, the Board found the publicly displayed
information on the envelopes, in which the applicant’s documents had been sent,
undermines the likelihood that the applicant was sought by the PSB in China. It
undermines his allegation of being a Falun Gong practitioner in China. Further,
it also undermines the reliability and trustworthiness of the documents sent in
these envelopes.
[10]
Third, the Board found the summons is fraudulent
because the black ink was visible on top of the red seal, indicating the document
was prepared after the red seal had been affixed. The Board noted according to the
response to information request (RIR), fraudulent documents are a serious and
widespread problem in China. It concluded this also undermined the reliability
and trustworthiness of the other documents submitted by the applicant in
support of his claim.
[11]
Fourth, the Board assigned no weight to the
letter from the applicant’s father, because the signature of the letter was “Your parents”. The letter lacked security measures
and personal documents in China are typically not to be trusted in accordance
with the RIR.
[12]
Fifth, the Board assigned no weight to the
document of the criminal sentence verdict of a co-practitioner, Mr. Wang. It
noted it was unreasonable that the applicant did not have some knowledge about
how this document was obtained by his cousin from Mr. Wang’s wife and why she
gave it to him.
[13]
Sixth, the Board found the applicant’s omission
on the basis of claim (BOC) form about his wife being harassed by the PSB is
material. It found on a balance of probabilities, the applicant’s wife was not
harassed by the PSB and the applicant fabricated this evidence.
[14]
Seventh, the Board found although the applicant
had some familiarity with the Zhuan Falun, he was unable to demonstrate that he
had a basic understanding of Falun Gong. The Board further found the applicant
was unable to provide reasons why a person might join Falun Gong, other than
being related to health. It determined this indicates he is not likely a
genuine and sincere Falun Gong practitioner.
[15]
Therefore, in light of the above credibility
findings, the Board found the applicant failed to establish his claim under
sections 96 and 97 of the Act.
III.
Issues
[16]
The applicant raises the following issues:
1.
Did the Board make unreasonable and unwarranted
credibility findings that were based on impermissible speculation and
plausibility conclusions?
2.
The Board failed to carry out any assessment of
the risks facing Falun Gong practitioners in China.
[17]
The respondent raises one issue: the applicant
has not established an arguable issue upon which this application for judicial
review might succeed.
[18]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Were the Board’s credibility findings
reasonable?
C.
Did the Board fail to assess the applicant’s
risks under section 97?
IV.
Applicant’s Written Submissions
[19]
The applicant submits given the Board failed to
carry out assessment of the risks facing Falun Gong practitioners in China,
this issue constitutes an arguable issue of law.
[20]
The applicant submits the Board’s decision was
unreasonable because it made unreasonable adverse credibility findings based on
impermissible speculation and plausibility conclusions.
[21]
First, the applicant argues the Board
unreasonably speculated that it was not credible the sender of the applicant’s
documents would include identifying information such as sender’s return
address, a telephone number and the applicant’s address in Canada. This
concerned another individual’s actions and the Board improperly made findings
based on its own unreasonable speculation. This plausibility finding was not
among the “clearest of cases” to overcome the
presumption of truth (Mahmood v Canada (Minister of Citizenship and
Immigration), 2005 FC 1526 at paragraphs 15 to 18, [2005] FCJ No 1883).
[22]
Second, the applicant argues the Board’s
determination about the summons was speculative and therefore unreasonable.
Here, the Board relied on no evidence to support its conclusions that the seal
is affixed on the document after it has been completely prepared. He argues in
the absence of any evidence concerning the practices of Chinese authorities in
affixing seals to documents, this was an unreasonable speculation on the part
of the Board. Also, he argues this determination was not supported by common
sense and experience.
[23]
Third, the applicant argues the Board was
unreasonable to make a negative inference on the genuineness and sincerity of
his Falun Gong practice because he was unable to speculate on why others might
join the practice. He argues the Board’s reasoning was irrational and
illogical.
V.
Respondent’s Written Submissions
[24]
The respondent submits the standard of review
applicable to the review of credibility findings is the standard of
reasonableness.
[25]
The respondent submits the determination of an
applicant’s credibility is at the heartland of the Board’s jurisdiction (RKL
v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at
paragraphs 7 and 8 [RKL]). It argues the applicant is asking this Court
to re-weigh the evidence.
[26]
Here, the Board made several credibility
findings and observed the issues about the applicant’s evidence. The applicant
was not a forthcoming witness and he frequently gave vague, inconsistent and
implausible answers.
[27]
With respect to the applicant’s disagreement
with the Board’s finding regarding the identifying information on the
envelopes, the respondent cites Negash v Canada (Minister of Citizenship and
Immigration), 2012 FC 1164 at paragraph 12, [2012] FCJ No 1230, where Mr. Justice
David Near found there is no error in similar circumstances.
[28]
With respect to the summons, the respondent
argues the applicant failed to establish that paradigms, or North American
logic and experience, are different such that the decision is unreasonable.
This Court has long recognized that Board members can draw negative inferences
for irregularities apparent on the face of a document while likewise noting the
prevalence of fraudulent documents in China (Zhuo v Canada (Minister of
Citizenship and Immigration), 2012 FC 790 at paragraph 9, [2012] FCJ No 814
[Zhuo]).
[29]
With respect to the reasons of practicing Falun
Gong, the respondent argues the Board did not question the applicant’s personal
motives, but rather about his inability to discuss any of the motives and
reasons generally promoting Falun Gong. Here, the applicant failed to discuss
Falun Gong beyond a simple general answer.
[30]
The respondent submits the applicant’s arguments
all deal with the weighing of evidence.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[31]
Insofar as the assessment of the Board’s
credibility findings is concerned, this involves questions of fact. Both
credibility findings and the treatment of evidence are areas within the Board’s
specialized expertise. This attracts the standard of reasonableness. The
standard of reasonableness means that I should not intervene if the Board’s
decision is transparent, justifiable, intelligible and within the range of
acceptable outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph
47, [2008] 1 S.C.R. 190 [Dunsmuir]). Here, I will set aside the Board’s
decision only if I cannot understand why it reached its conclusions or how the
facts and applicable law support the outcome (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 16, [2011] 3 S.C.R. 708). As the Supreme Court held in Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraphs 59 and 61,
[2009] 1 S.C.R. 339, a court reviewing for reasonableness cannot substitute its
own view of a preferable outcome, nor can it reweigh the evidence.
[32]
Insofar as the assessment of risks under section
97 of the Act is concerned, I agree with the applicant that it should be
reviewable on a standard of correctness. Under Varga v Canada (Minister of
Citizenship and Immigration), 2013 FC 494, [2013] FCJ No 531, the
assessment of evidence for a ground of persecution is a procedural issue and
the standard of correctness applies to a judicial review of a procedural issue
(Dunsmuir).
B.
Issue 2 - Were the Board’s credibility findings
reasonable?
[33]
It is trite law that the determination of an
applicant’s credibility is at the heartland of the Board’s jurisdiction (RKL
at paragraphs 7 and 8).
[34]
Here, the applicant is at issue with the Board’s
credibility findings and he argues these findings were unclear and speculative.
The respondent submits the applicant’s disagreements are unfounded and refer to
the weighing of evidence. In my opinion, the Board’s credibility findings were
reasonable.
[35]
With respect to the Board’s findings on the
identifying information on the envelopes, I find these findings are reasonable.
As the trier of fact, the Board is entitled to weigh the evidence and to assess
its reliability and probative value. Here, although the applicant disagrees
with the Board’s credibility concerns arising from the identifying information
on the envelopes, this does not indicate these adverse inferences were
unreasonable.
[36]
With respect to the Board’s determination about
the summons, I find it was reasonable. A Board member has the power to draw
negative inferences for irregularities apparent on the face of a document (Zhuo
at paragraph 9). An examination of the document shows the Board was reasonable
to question the overlap between the ink of the official seal and the ink of the
text of the document. The applicant has not explained why the Board’s
determination here was not supported by common sense and experience.
[37]
With respect to the Board’s negative inference
on the genuineness of the applicant’s Falun Gong practice, I find the Board was
not unreasonable to question the knowledge of the applicant on the motives and
reasons generally promoting Falun Gong.
[38]
Therefore, I find the Board’s credibility
findings were reasonable.
C.
Issue 3 - Did the Board fail to assess the
applicant’s risks under section 97?
[39]
In my opinion, given the negative credibility
findings, the Board was not required to conduct a separate assessment of the
applicant’s risk as a Falun Gong practitioner under section 97 of the Act.
[40]
In Lopez v Canada (Minister of Citizenship
and Immigration), 2014 FC 102, [2014] FCJ No 123 [Lopez], Madam Justice
Catherine Kane clearly found at paragraph 46 that “negative
credibility findings are sufficient to foreclose the section 97 analysis unless
there is independent objective evidence to support that the particular
applicants would face a personalized risk.” She explained in paragraph
42 that documentary evidence provides support for generalized risk, but not
personalized risk which is required under subparagraph 97(1)(b)(ii) of the Act:
The applicants rely on documentary evidence
which indicates that young Salvadorian males in Maras-controlled neighbourhoods
are at risk of gang violence. These documents seek to demonstrate a generalized
risk experienced by all young Salvadorian males in neighbourhoods controlled by
the Maras. However, personalized risk, as opposed to generalized risk, is
required under subparagraph 97(1)(b)(ii) of the Act.
[41]
I find the present case is analogous to Lopez.
Although the applicants provided country evidence pertaining to the risks faced
by a Falun Gong practitioner, this evidence established generalized risk. The
applicants failed to establish personalized risk in light of the negative
credibility concerns.
[42]
Therefore, the Board was not required to conduct
a separate section 97 analysis.
[43]
Based on the foregoing findings, the application
for judicial review must be dismissed.
[44]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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