Docket: IMM-4822-15
Citation:
2016 FC 516
Ottawa, Ontario, May 9, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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MENGLING WU
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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
(judgment delivered from the bench)
[1]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [Act], of a September 28, 2015 decision by the Refugee Protection Division
[RPD] of the Immigration and Refugee Board rejecting the Applicant’s
application for refugee protection.
[2]
The Applicant is 21-year old citizen of China
who makes the following claim and allegations. Having found no migraine relief
from both Western and Traditional Chinese medical professionals, including
consulting doctors on six occasions, namely seeing a neurologist three times
and an internal medicine doctor three times, she states that she turned to
Falun Gong. This was in spite of advice for her to have a follow-up brain scan
from a doctor at an outpatient internal medicine department.
[3]
Shortly thereafter, the Public Security Bureau
[PSB] raided her practice group. She then went into hiding, later learning that
the PSB was looking for her and that she had been dismissed from her job. She was
ordered to report to the PSB; when she did not, a summons was issued. With the
assistance of a smuggler, she applied at Guangzhou’s US Consulate for a visitor
visa to that country. She made that application without concealment and, using
her own passport, managed to fly out of China and enter Canada.
[4]
The RPD concluded that the Applicant was not
credible and further that her claim lacked a credible basis. First, the RPD
held that her rationale for beginning to practice Falun Gong was implausible:
she had some education in nursing, worked in a hospital, knew that Falun Gong
was illegal, and had only made minimal efforts to access modern medical
treatment after her migraines began.
[5]
Second, the RPD held it was equally implausible
that she came out of hiding to visit the US Consulate in Guangzhou with the
smuggler, in light of documentary evidence suggesting that suspected dissidents
are heavily monitored by the Chinese authorities.
[6]
Third, also due to documentary evidence of state
monitoring, the Board found her exit from China to be highly suspect, given
that she went through exit control points at airports in both Guangzhou and
Beijing on her own passport and without any concealment.
[7]
The RPD concluded that, had the Applicant really
been in hiding from the PSB, both her acquisition of her visa and her flight
out of the country would not have been so straightforward.
[8]
In addition, the RPD found that the Applicant’s
documentary evidence of her Falun Gong practice, including two letters of
support and some photographs of her performing exercises in Canada, was
insufficient: Falun Gong group practices are open to the public and the letters
of support she submitted from those that had allegedly practiced with her in
Canada were unsworn.
[9]
The Applicant also submitted a PSB summons in
her name, though the RPD concluded that it was not likely to be genuine based
on both its simplicity - a single page with black ink and red stamps – and the
ease with which documents are fraudulently forged in China.
[10]
In light of all of the above, the RPD rejected
the Applicant’s claim for refugee protection on the basis of a lack of
credibility or evidence. The RPD also found the Applicant’s claim to have no
credible basis.
[11]
The Applicant contends that the RPD made three
reviewable errors: first, unreasonable credibility findings; second, an
unreasonable sur place assessment; and third, an unreasonable no
credible basis finding. While it is unclear that the RPD erred with respect to
the first two issues, I find it unnecessary to pronounce on them, as I agree
with the Applicant that the third issue raised – the no credible basis finding
– was unreasonable.
[12]
A finding of “no
credible basis” under subsection 107(2) of the Act may only be made
where there is no credible or trustworthy evidence on which the RPD
could make a positive finding (Sterling v Canada (Citizenship and
Immigration), 2016 FC 329 at para 13). This is a high threshold that limits
an Applicant’s subsequent procedural rights and the RPD must, before reaching
it, look to the objective documentary evidence for any trustworthy or credible
support for an Applicant’s claim. Importantly, to say that the Applicant lacked
credibility is not the same as saying that the Applicant’s claim has no
credible basis (Pournaminivas v Canada (Citizenship and Immigration),
2015 FC 1099 at paras 7-9).
[13]
The RPD, in reaching its decision, did not
address one significant piece of evidence submitted by the Applicant: a letter
of dismissal that she received from her employer. That letter mentions her status
as a Falun Gong practitioner and states that it was a basis for her
termination. Certainly the letter could provide some credible evidence that
could ground a positive finding, especially in light of the documentary
evidence that suggests the state both pursues and monitors Falun Gong
practitioners.
[14]
In making a no credible basis finding, the RPD
has an obligation to assess all the evidence and expressly state its reasons
for its conclusion (Geng v Canada (Citizenship and Immigration), 2001
FCT 275 at para 23). While the RPD is entitled to evaluate and weigh the
evidence as it sees fit, it is unreasonable to conclude that the Applicant’s
claim lacks any credible basis whatsoever in this particular matter when the
RPD did not reject this letter or otherwise even explicitly consider it.
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