Docket: IMM-5029-15
Citation:
2016 FC 927
Montréal, Quebec, August 12, 2016
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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JIANFEI YAO
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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.
Nature of the Matter
[1]
The applicant seeks to set aside a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the RPD), dated October 14, 2015, which found that he is neither a Convention
refugee under section 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] nor a person in need of protection under section 97 of the
IRPA.
[2]
For the reasons set out below, the application
will be allowed and the impugned decision set aside.
II.
Facts
[3]
The applicant, Jianfei Yao, is a man in his
early 30s and a citizen of the People’s Republic of China (China). He alleges
that in November 2012, he received a notice of expropriation for the
dual-purpose property where he was residing with his family and running his
shoe and clothing business. He was told that he would receive an alternative
property once it was built.
[4]
The applicant and his family vacated their
property in February 2013. When the new property was ready in November 2014,
the applicant discovered that it was not dual-purpose. He and others in the
same situation refused to accept the new properties.
[5]
The applicant alleges that, with four others, he
became a representative of those refusing to accept the new properties. The
local government accepted the group’s petition outlining their concerns, but
took no further steps. On December 15, 2014, the applicant and his associates
demonstrated in front of the local government office. They stayed for four
hours and then left.
[6]
That night, the applicant alleges that he was
away from home when he received a call from his wife saying that the Public
Security Bureau (PSB) had been looking for him. He alleges that the PSB
arrested the four other group representatives and later returned to his home
with a summons. Fearing that the PSB would arrest him for having helped to
organize a petition criticizing government officials, the applicant alleges
that he engaged a smuggler to get him a new passport. He travelled to Canada in
April 2015.
III.
RPD Decision
[7]
The RPD found that the determinative issue in
the case was credibility. The RPD acknowledged that the applicant’s testimony
benefitted from a presumption of validity, but found that on a balance of
probabilities, the applicant’s account was not credible.
[8]
The RPD first considered the applicant’s
testimony that he had obtained a fraudulent passport from the smuggler so that
he could leave China without being apprehended by the police. The RPD referred
to the country documentation, which states that citizens must apply in person
and provide fingerprints in order to obtain a biometric passport. All new
passports issued in China since January 2012, are of this type. They contain
many anti-forgery and security devices, which are examined by airport staff
more than once prior to international travel. Preferring this evidence to that
of the applicant, the RPD found on a balance of probabilities that the
applicant obtained his own genuine passport in order to travel to Canada, and
was able to exit China without being apprehended by the authorities because he
was not in fact wanted by them.
[9]
The RPD found that the applicant’s ability to
pass through the airport without difficulty supported the finding that his
passport was genuine. The applicant submitted that this was possible because
the smuggler made arrangements for him, but the RPD found the preponderance of
documentary evidence stating that airport authorities conduct thorough
screening of passengers to be more convincing. The RPD acknowledged that there
is corruption in China and that authorities do not always apply the regulations
evenly, but preferred the unbiased country documentation to the applicant’s
testimony. The RPD found that on a balance of probabilities, the applicant was
not wanted by the PSB.
[10]
The RPD also considered the applicant’s testimony
with regard to the dual-purpose property that was allegedly expropriated. In
examining the applicant’s documentation, the RPD found that the applicant had
operated a clothing business and that the land was expropriated. However,
because the applicant’s other identity documents (including his hukou) did not
indicate that the disputed property was the applicant’s residence, the RPD
found that the applicant and his family had not resided at that address. This,
combined with the applicant’s testimony that he had never been political or
broken any laws prior to the protest at issue, led the RPD to conclude that the
applicant did not participate in a protest that came to the attention of the
authorities as claimed.
[11]
The RPD subsequently considered the summons that
the applicant alleges was delivered to his home after he failed to turn himself
in to the PSB. Having viewed the original document, and considered the
conclusions previously drawn with respect to the applicant’s credibility and
ability to leave China without being apprehended, the RPD doubted the veracity
of the summons. It did not contain any security features, and the RPD noted the
documentary evidence stating that fraudulent documents are readily available in
China.
[12]
In finding that, on a balance of probabilities,
the applicant was not wanted for anti-government activities in China, the RPD
also noted that there was no police involvement in the alleged demonstration,
and that the applicant had testified that he did not think that he had broken
any laws. The applicant additionally testified that he was offered compensation
but did not take it as he felt it was insufficient, and that he did not pursue
his claim after the initial demonstration. The RPD found that the applicant’s
testimony with regards to compensation did not have a ring of truth, and
overall concluded that the applicant was not wanted by the police for
organizing or participating in a protest.
[13]
In conclusion, the RPD found that as there was
no credible or trustworthy evidence on which the claim could have been
accepted. The RPD accordingly found that there was no credible basis for the
claim, as per s. 107(2) of the IRPA.
IV.
Issues
[14]
The applicant asserts that the RPD erred in some
of its key factual findings and credibility findings.
V.
Standard of Review
[15]
The parties are agreed, and I concur, that the
standard of review of the RPD’s credibility and factual findings is
reasonableness.
VI.
Analysis
[16]
Central to the RPD’s decision is its finding
that the passport obtained by the applicant in 2015 was genuine. This finding
seems to be based on the implausibility that the applicant could have passed
through China’s border security controls and left the country if the passport
were not genuine. I am persuaded that the evidence did not permit the RPD to
make such an implausibility finding. Firstly, as stated by Justice Yves de
Montigny in Sun v Canada (Citizenship and Immigration), 2015 FC 387 at
para 26, it is well established that implausibility findings may only be made
in the clearest of cases. Moreover, it is far from clear in the evidence that
false Chinese passports cannot be used to clear border controls and leave
China. In my view, it is plausible that the applicant’s passport was false.
[17]
The RPD also did not believe the applicant’s
testimony that he obtained the passport with the assistance of a smuggler. The
RPD cited the requirement that passports be sought in person and that
fingerprints be provided, whereas the applicant’s testimony was that he had not
provided fingerprints and had not appeared in person to obtain the passport.
The RPD also cited a preference for “the unbiased
country condition documentation”. I find this statement problematic
because it implies that the applicant’s testimony is biased and therefore
deserving of less credibility. I am not persuaded that the evidence supports a
conclusion that smugglers are unable to obtain usable Chinese passports. I am
also not persuaded that the RPD indicated a reasonable basis for not believing
the applicant’s sworn testimony concerning how he obtained his passport.
[18]
I note here that the RPD even acknowledged
systematic corruption in China and the fact that regulations are not always
applied evenly. The RPD’s findings seem to require a belief that smugglers
cannot be of assistance to citizens who are wanted for arrest and who want to
leave China. In my view, the evidence did not support such a belief.
[19]
Subsequent findings by the RPD that (i) the
summons from the PSB was not genuine, (ii) the applicant was not wanted for
arrest in China, (iii) the applicant left China without the assistance of
smugglers, and (iv) the applicant never organized or participated in a
demonstration that was brought to the attention of authorities, were dependent
on the reasonableness of the initial findings that the applicant’s passport was
genuine and that he lacked credibility as to how he obtained it. In light of my
conclusions that these initial findings were unreasonable, I conclude that
these subsequent findings should likewise not be given effect.
[20]
I find that the RPD’s conclusion that the
applicant did not live at the address of the property in question was not
directly relevant to the issues before the RPD. Though it is not necessary to
my decision, I wish to point out that it is difficult to understand the RPD’s
logic in concluding that the applicant should be found lacking in credibility
on the basis that he was a law abiding citizen.
[21]
I also find the RPD’s conclusion that the
applicant’s desire for compensation indicates that he would not have rejected
an offer of compensation to be unintelligible and hence unreasonable. I see no
reason that a person seeking compensation would not reject an inadequate offer.
The applicant’s failure to follow up on his claim after the PSB’s attempt to
arrest him is not significant.
VII.
Conclusion
[22]
The application will be granted and the impugned
decision set aside. The parties are agreed that there is no serious question of
general importance to certify.
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