Docket: IMM-436-15
Citation:
2015 FC 1250
Fredericton, New Brunswick,
November 6, 2015
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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SHIZHAO HUANG
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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
[1]
Mr. Shizhao Huang, a citizen of the People’s
Republic of China [China], seeks judicial review of a decision of the
Immigration and Refugee Board, Refugee Protection Division [RPD] made on
December 22, 2014, in which the RPD dismissed his claim for refugee status
under s 96 of the Immigration and Refugee Protection Act, SC 2001, c 27
[the Act] and his claim for status as a person in need of protection under s 97
of the Act. The RPD found that Mr. Huang lacked credibility, there is not a
serious possibility of persecution should he return to China and that he failed to establish a well-founded fear of persecution. For the reasons
set out below, I would dismiss the application for judicial review. The RPD’s decision
meets the test of reasonableness as set out in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir].
I.
Summary of Mr. Huang’s Evidence
[2]
Mr. Huang was born in China on December 10, 1989.
He arrived in Canada on November 27, 2009 on a student visa. Shortly after his
arrival in Canada, he attended school to learn English. Because his parents
could no longer support him financially, Mr. Huang discontinued his academic
program in August, 2010. When his student visa expired in March 2011, he applied
for and received an extension which was valid until July, 2015.
[3]
Approximately two years prior to his arrival in Canada, Mr. Huang’s parents started practicing Falun Gong. Mr. Huang says that following
his arrival he informed his parents that he saw people openly practicing Falun
Gong in Canada. He claims his parents asked him to send Falun Gong material to
them, which they would distribute in China. Mr. Huang says he agreed to his
parents’ request and started sending materials in February 2010. He says he
sent materials once every two to three months, through an internet application
called ‘QQ’. Mr. Huang testified that while in Canada, he became aware of atrocities committed by the Chinese government toward Falun Gong
practitioners and became worried about his parents’ safety.
[4]
Mr. Huang claimed that on March 4, 2012, he spoke
with his paternal grandfather who was living in the same household as his
parents. He claimed his grandfather informed him that the police had raided his
parents’ Falun Gong group. His father and other practitioners were arrested. He
says his grandfather informed him that his mother was able to escape and went
into hiding. According to his Personal Information Form [PIF], his grandfather
called the next day, March 5, 2012, at which time he told Mr. Huang the police
had searched their home in China and found, on his parents’ computer, the
material he had sent from Canada. Mr. Huang alleges the Chinese Public Security
Bureau [PSB] accused him of illegal underground Falun Gong activities,
assisting an illegal Falun Gong group, and having connections with
anti-Communist foreign forces. Mr. Huang claimed that his grandfather advised
him that Chinese authorities had prepared an arrest warrant for him which was
being held at the Chinese customs. According to Mr. Huang, his grandfather also
told him the police advised that he (Mr. Huang) should return to China as soon as possible in order that he might receive a more lenient sentence.
[5]
Before the RPD, Mr. Huang claimed fear of arrest,
imprisonment and persecution should he return to China.
II.
Overview of the RPD Decision
[6]
After making the following negative credibility
and implausibility findings, the RPD found that Mr. Huang failed to provide
sufficient credible evidence to support his fear of returning to China:
1.
Mr. Huang stated that he was aware his parents
could face arrest and imprisonment if they were caught practicing Falun Gong
and that he was worried for their safety. In the face of that evidence, the RPD
found it implausible that Mr. Huang would forward Falun Gong materials to his
parents every two or three months for a number of years.
2.
The RPD concluded it was implausible that
neither Mr. Huang nor his parents would have considered the risks of sending
Falun Gong material through an internet application from Canada to China. The RPD referred to a United States Department of State report [US Report] as
evidence that sending such material using the QQ internet application was
indeed dangerous.
3.
Mr. Huang stated that he first spoke about these
issues with his grandfather on March 4, 2012. He informed the RPD on three
occasions that the second conversation with his grandfather was in April or May
2012. However, according to his PIF, Mr. Huang talked to his grandfather on
March 5, 2012. After questioning, Mr. Huang admitted this March 5, 2012
conversation took place. The Board member asked Mr. Huang why he failed to
refer to it in his testimony. Mr. Huang replied that he thought the Board
member was asking only about those occasions when he (Mr. Huang) initiated the
conversation. According to Mr. Huang, since his grandfather initiated the March
5 conversation, he felt it was unnecessary to refer to it, and, furthermore, he
did not remember it at the time. The RPD found Mr. Huang's explanations
unpersuasive and concluded his testimony in this regard lacked credibility.
4.
The RPD was also sceptical about the residence,
and even the existence, of Mr. Huang's grandfather. The household registration
booklet did not name Mr. Huang's grandfather as someone who lived in the same
residence as his parents. When confronted with the discrepancy between his
testimony and the contents of the registration booklet, Mr. Huang suggested the
grandfather may have been registered with an uncle. The RPD also found this
explanation to be unpersuasive.
5.
The RPD found further inconsistencies between
statements in Mr. Huang's PIF and his testimony regarding his grandparents. In
his PIF, Mr. Huang indicated on more than one occasion that he spoke with his
grandparents (plural) about the events. He then testified that he only has one
grandfather (paternal) and only spoke with him about the Falun Gong issues. Mr.
Huang later testified that his maternal grandfather is still alive.
6.
In his PIF, Mr. Huang claimed that the police
searched his house and found the material he had sent from Canada on his parents’ computer. At that time, the police allegedly told his grandfather
they already had solid evidence of Mr. Huang’s involvement with Falun Gong and
that a warrant for his arrest had been issued. This would suggest the police
were aware of Mr. Huang’s involvement prior to the search of his parents’
computer. The RPD member questioned Mr. Huang about the source of the evidence
to justify the issuance of an arrest warrant if the computer had not yet been
searched. The member described Mr. Huang as being non-responsive and hesitant
in his reply. Mr. Huang eventually claimed that the PSB must have found out
about his involvement through other Falun Gong practitioners. This omission,
from the PIF, of highly relevant information, became the source of yet another
credibility concern for the RPD.
7.
Moreover, the RPD found that Mr. Huang's deceit
regarding the extension of his student visa, while no longer a student, cast
doubt upon his credibility.
[7]
In support of his claims before the RPD, Mr.
Huang produced ‘official’ Chinese documents; including,
a summons for Mr. Huang’s mother, an arrest notice for Mr. Huang’s father, a
visitor’s card for Mr. Huang’s brother to visit their father while in jail, as
well as a list of items seized from Mr. Huang’s home. The RPD chose to assign
little weight to these documents. It concluded that none of them directly
corroborated Mr. Huang’s involvement in Falun Gong, nor did they demonstrate the
Chinese authorities’ interest in him. The RPD further justified the assignment
of little weight to the ‘official’ Chinese
documents because of its general concerns about Mr. Huang’s credibility, the
fact that the list of items seized did not identify or include copies of the
alleged Falun Gong materials sent via the QQ internet site, and the RPD’s
knowledge of the availability of fraudulent documents in China.
III.
Issues
[8]
While several issues are raised by Mr. Huang, I
am of the view they can be condensed into one: were the credibility and
implausibility findings made by the RPD reasonable in the circumstances?
IV.
Standard of Review
[9]
Questions of credibility are assessed on the
reasonableness standard and must be afforded significant deference (Zhou v
Canada (Minister of Citizenship and Immigration), 2013 FC 619, [2013] FCJ
No 687 at para 26 [Zhou]; Su v Canada (Minister of Citizenship and
Immigration), 2013 FC 518, [2013] FCJ No 588 at para 7; Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 732, 160 NR 315; Wu
v Canada (Minister of Citizenship and Immigration), 2009 FC 929, [2009] FCJ
No 1143 at para 17). This Court will not substitute its own view, nor will it intervene,
if it finds the RPD’s conclusion regarding Mr. Huang’s credibility falls “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” and if there was “justification, transparency and intelligibility within the
decision-making process” (Dunsmuir, above at para 47).
[10]
The assessment of the evidence and findings of
fact made by the RPD are central to the role of the RPD and fall squarely
within its expertise. These also are to be reviewed on the standard of
reasonableness (Zhou, above at para 26; Ghirmatsion v Canada (Minister of Citizenship and Immigration), 2011 FC 519, [2011] FCJ No 650 at para
47; Dunsmuir, above at para 53). The RPD will be shown deference when it
relies on its own knowledge in assessing a document’s probative value (Lin v
Canada (Minister of Citizenship and Immigration), 2010 FC 183, [2010] FCJ
No 211 at para 21).
V.
Analysis
[11]
The RPD’s finding regarding Mr. Huang’s lack of
credibility is based on implausibility findings and contradictions in his
evidence and testimony. While the RPD may question a claimant’s credibility
based on the implausibility of his narrative (Lawal v Canada (Minister of
Citizenship and Immigration), 2010 FC 558, [2010] FCJ No 673 at para 21 [Lawal]),
it must clearly set out its reasons for making the implausibility finding (Kiyarath
v Canada (Minister of Citizenship and Immigration), 2005 FC 1269, [2005] FCJ
No 1529 at para 22). Otherwise, the implausibility finding can be seen as
arbitrary and unreasonable (Martinez Giron v Canada (Minister of Citizenship and Immigration), 2013 FC 7, [2013] FCJ No 5 at para 24; Yu v
Canada (Minister of Citizenship and Immigration), 2015 FC 167, [2015] FCJ
No 138 at paras 10, 12).
[12]
Mr. Huang contends the negative credibility
findings and the decision as a whole are unreasonable, in part, because of the
RPD’s finding that it was implausible he would send Falun Gong materials via
the QQ internet site to his parents in China. I
note that before making this implausibility finding the RPD considered information from the US Report, Mr. Huang’s
declared knowledge of persecution against Falun Gong practitioners, his
declared fear for his parents’ safety as Falun Gong practitioners, and the
absence of his grandfather’s name in the official household registration
booklet.
[13]
In the circumstances, whether the RPD was
correct in concluding it was implausible that Mr. Huang would send Falun Gong
materials to his parents via the internet is not the issue. The issue is,
rather simply, whether its conclusion in this regard was reasonable and whether
its reasons, when considered within the context of all the evidence,
demonstrate justification, transparency and intelligibility. I am of the view
the implausibility finding with respect to the transmission of Falun Gong
materials to Mr. Huang’s parents via the internet is reasonable in the
circumstances. The RPD made that finding within the context of the evidence
referred to in paragraphs 6 and 12 above. It did not base its implausibility
finding solely upon its own knowledge of conditions in China.
[14]
Mr. Huang also challenges the fact the RPD
assigned little weight to the Chinese government documents referred to in
paragraph 7 above. The RPD relied, in part, upon its own knowledge that
fraudulent documents are readily available in China. Mr. Huang challenges this
finding as unreasonable and contends it taints the whole of the decision. He
contends the proffered evidence should not be minimized for the sole reason
that fraudulent documents can be easily obtained in China. He says such
reasoning constitutes a reviewable error and refers to Justice Russell’s
observation in Lin v Canada (Minister of Citizenship and Immigration),
2012 FC 157, [2012] FCJ No 167 where he states:
[53] […] Just because fraudulent documents
are readily available in the PRC [People’s Republic of China] does not, for
that reason alone, mean that the Applicant’s documents were fraudulent.
[15]
I would note that Justice Russell specifically
states that a finding that documents are fraudulent cannot be based solely on
the fact that such “documents are readily available” in
China. The challenge faced by Mr. Huang is that the RPD did not rely solely
upon its knowledge about the availability of fraudulent documents when it accorded
little weight to the documents in question. It relied, among others, upon (i) Mr.
Huang’s contradictions concerning the timing of his conversations with his
grandfather; (ii) conflicting evidence about who among his grandparents were
alive at the relevant time; (iii) the conflict between Mr. Huang’s testimony as
to where his paternal grandfather lived and the documentary evidence; and (iv)
the conflict between his concern about his parents’ safety and his willingness
to send contraband via the internet. The RPD’s
conclusion to accord the purportedly official Chinese documents little weight flowed
from its assessment of all of the evidence, including the credibility of Mr.
Huang. It is trite law that a claimant’s lack of credibility can extend to the
documentary evidence submitted by him or her (Lawal, above at para 22).
In the present case, the RPD did not simply disregard Mr. Huang’s documents. It
analyzed them in the context of his claim, including its credibility findings (see
Cao v Canada (Minister of Citizenship and Immigration), 2015 FC 315,
[2015] FCJ No 430 at para 20).
[16]
In a more general manner, Mr. Huang attacks the
methodology employed by the RPD to find him lacking in credibility. He contends
the RPD erroneously applied a “microscopic
examination’’ of his testimony and relied on “peripheral
discrepancies’’ to discredit him. The RPD had the advantage of hearing
directly from Mr. Huang. Even if the RPD’s assessment of Mr. Huang’s
credibility amounted to a microscopic analysis or a search for peripheral
discrepancies, it is not this Court’s function to re-try the case or re-assess
credibility findings. Cumulative inconsistencies and contradictions, as a
whole, can seriously undermine the overall credibility of a claimant (Asashi
v Canada (Minister of Citizenship and Immigration), 2005 FC 102, [2005] FCJ
No 129 at para 8; Lawal, above at paras 18-20). In my view, the
criticism levelled toward the RPD is the direct result of its (RPD’s) highly
transparent analysis of why it found Mr. Huang to be lacking credibility. In
addition to being transparent, I find the analysis by the RPD to be justifiable
and intelligible. Any reader can know exactly why the RPD did not believe Mr.
Huang. The negative credibility finding also “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir, above at para 47).
VI.
Conclusion
[17]
As stated earlier, it is not the reviewing
court’s role to substitute its own views for those of the RPD. I am satisfied
the RPD’s decision provides intelligible and transparent justification on how
it arrived at its conclusion. I am also of the view the decision meets the test
of reasonableness. I would therefore dismiss the application for judicial
review without costs.
[18]
No question was proposed for certification and
none is certified.
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