Docket: IMM-4216-16
Citation:
2017 FC 388
Ottawa, Ontario, April 21, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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XIU MEI LIANG
a.k.a. XIUMEI
LIANG
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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.
Overview
[1]
Xiu Mei Liang seeks judicial review of a
decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board [IRB]. The RAD dismissed Ms. Liang’s appeal of a decision of the Refugee
Protection Division [RPD] of the IRB, and confirmed that she is neither a
Convention refugee nor a person in need of protection pursuant to ss 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, I have concluded
that the RAD reasonably drew an adverse inference from Ms. Liang’s failure to
respond to new evidence adduced by the Minister on appeal. The grounds upon which the RAD rejected Ms. Liang’s account of her
departure from China were not so distinct as to require formal notice, and did
not give rise to a breach of procedural fairness. The
application for judicial review is therefore dismissed.
II.
Background
[3]
Ms. Liang is a citizen of China. She moved to
Peru in 1999. She subsequently married and obtained permanent resident status
in Peru. The couple had two children, both of whom are Peruvian citizens. Ms.
Liang alleges that her husband began abusing her in January 2013, and they
divorced months later. She says that her former husband was given custody of
the children, and refused to allow her to visit them.
[4]
On September 22, 2014, Ms. Liang returned to
China. She claims that she was suffering from depression, and began attending
religious services at a Christian “house church”.
She says that on November 21, 2014, she was apprehended by the Chinese Public
Security Bureau [PSB] while distributing religious propaganda in a park, and
was detained for two days. Fearing further detention, she hired a smuggler to
help her flee China.
[5]
Ms. Liang arrived in the United States of
America on December 14, 2014. She worked in Los Angeles as a caregiver for
approximately six months before entering Canada illegally on June 21, 2015. She
did not make a refugee claim until October 15, 2015. Ms. Liang says that she
fears persecution in China because of her religious practices, and she fears
persecution in Peru because of her former husband.
[6]
Ms. Liang’s refugee claim was heard by the RPD
on December 9, 2015 and February 22, 2016. The RPD dismissed the claim on May
31, 2016.
[7]
The Minister of Citizenship and Immigration
[Minister] intervened in the hearing before the RPD to argue that: (a) Ms.
Liang could return to Peru, where she had permanent resident status; and (b)
Ms. Liang’s alleged subjective fears of persecution were not credible due to
serious inconsistencies in her evidence, including her Basis of Claim form, her
refugee intake interview, and her account of her actions.
[8]
The RPD found Ms. Liang’s testimony to be “vague and inconsistent”, and provided the following
examples:
(a)
Ms. Liang’s explanation of how she was able to
leave China without being identified or stopped by the PSB was unreasonable and
contrary to objective country condition evidence;
(b)
Ms. Liang’s explanation for her failure to make
a claim for refugee status in the United States was unreasonable;
(c)
by entering Canada illegally and failing to make
a claim for refugee status at the airport in Vancouver, waiting instead until
she arrived in Toronto, Ms. Liang undermined the credibility of her fear of
persecution in China;
(d)
Ms. Liang’s choice of waiting for her parents to
pay her smuggler additional funds rather than making a claim for refugee
protection was unreasonable; and
(e)
several documents provided by Ms. Liang to
support her application for refugee status were not genuine.
[9]
The RPD also doubted the credibility of Ms.
Liang’s claim to be a practising Christian. Even if Ms. Liang were a Christian,
the RPD was satisfied that the practice of her particular form of religion
would not be prohibited in China.
[10]
The RPD concluded as follows:
[76] Having considered all of the evidence,
the panel finds that there is not a serious possibility of persecution on a
Convention ground should the claimant return to the People’s Republic of China,
or that, on a balance of probabilities, she would be personally subjected to a
danger of torture or face a risk to life or a risk of cruel and unusual
treatment or punishment.
[77] The panel finds that the claimant is
not a Convention refugee or a person in need of protection. Therefore, her
claim is rejected.
III.
Decision under Review
[11]
Ms. Liang appealed the RPD’s decision to the
RAD. The RAD confirmed the decision of the RPD and dismissed her appeal on
September 13, 2016.
[12]
Ms. Liang did not offer new evidence on appeal.
However, the Minister adduced additional documentation that had not been before
the RPD: a “Tier 3 FCC” report and information
pertaining to the application for a U.S. travel visa that Ms. Liang submitted
while she was still in Peru. The RAD found both of these documents to be
credible, as they originated from the Government of the United States. The RAD
observed that the documents were “very relevant and […]
material.”
[13]
The RAD held that information contained in Ms.
Liang’s application for a U.S. travel visa contradicted her claim that she was
divorced from her husband, a central component of her refugee claim. The RAD
drew an adverse inference from Ms. Liang’s failure to respond to the new
evidence adduced by the Minister on appeal:
[21] According to the Appellant’s testimony
and to her BOC form, she divorced her husband in May of 2013. The problem
arises when I view the Minister’s evidence, which shows clearly that the date
of the visa application was January 20, 2014, eight months after the
Appellant’s alleged divorce (which led to her distress which in turn led to her
activity in an illegal home Church in China), and in that application, it
clearly indicates that the Appellant was, on January 20, 2014, still married to
Li, Da Rong and still living at the same address as he was living. This is a
major contradiction which goes to the very core of the claim/appeal. The
Minister notified the Appellant through her Counsel by facsimile on July 25;
however, no response has been received at the Board as of September 1, 2016
which is long past the deadline for a response to the Minister’s intervention.
As no response to the Minister’s evidence and submissions has been tendered, I
can only presume that the Appellant is not contesting, nor explaining the major
contradiction noted above.
[22] The Minister’s evidence clearly undermines
the Appellant’s credibility. […]
[14]
The RAD disagreed with some of the RPD’s
analysis of the circumstances in which Ms. Liang left China, but also
found this aspect of her testimony to lack credibility:
[22] […] A second major credibility concern
occurs in the Appellant’s testimony, both written and oral, that she required
the assistance of a smuggler to get her out of China and into the USA and
eventually into Canada. The Minister’s evidence clearly shows that the
Appellant had intended to leave China via the USA when she applied for the USA
visa almost a year before she allegedly used a smuggler to flee China. The
Appellant left China on her own valid passport on December 15, 2014. In her
Memorandum of Appeal, the Appellant explains to me that her departure from
China occurred nine days or so before she became a person “wanted” by the
Public Security Bureau (PSB). The Appellant legally flew out of China and with
her US visa in hand, which had been issued over 11 months earlier; she legally
entered the USA. As the Appellant was not a “wanted person” in China according
to her own submissions and she had all the necessary legal documentation in
order to travel to the USA, it makes no sense that she would pay a smuggler to
get her from China to Canada when she had legal access to the USA without a
smuggler. I concur with the Appellant that the RPD erred in its assessment of
the Appellant’s departure from China; however, I also concur with the Minister
in his submission that the Tier 3 FCC report shows that the Appellant has
misrepresented herself to Canadian authorities and is therefore not credible.
[15]
The RAD acknowledged that failing to claim
refugee protection in the first available country is not a determining factor,
nor is delay in claiming protection. According to the RAD, if Ms. Liang were
credible, then her explanations would likely be acceptable. However, the RAD
found that Ms. Liang was not credible, and dismissed her appeal.
IV.
Issues
[16]
This application for judicial review raises the
following issues:
A.
Did the RAD reasonably draw an adverse inference
from Ms. Liang’s failure to respond to the new evidence adduced by the Minister
on appeal?
B.
Did the RAD deny Ms. Liang procedural fairness
by rejecting her credibility on different grounds than the ones relied on by
the RPD, and without providing adequate notice?
C.
Should a question be certified for appeal?
V.
Analysis
[17]
The RAD’s assessment of the evidentiary record
involves questions of mixed fact and law, and is subject to review by this
Court against the standard of reasonableness (Canada (Citizenship and
Immigration) v Huruglica, 2016 FCA 93 at para 35 [Huruglica]). The
Court will intervene only if the decision falls outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[18]
Questions of procedural fairness are subject to
review by this Court against the standard of correctness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).
A.
Did the RAD reasonably draw an adverse inference
from Ms. Liang’s failure to respond to the new evidence adduced by the Minister
on appeal?
[19]
Ms. Liang claimed before the RPD that she divorced
her husband in 2013 and fled to China because he was abusive. However, in 2014,
she indicated on her application for a U.S travel visa that she was married and
living with her husband in Peru. The U.S. visa application was submitted by the
Minister as new evidence on appeal. Ms. Liang was given notice of the
Minister’s intervention and an opportunity to respond, but she declined to do
so. This caused the RAD to state: “As no response to the Minister’s evidence and submissions has been
tendered, I can only presume that [Ms. Liang] is not contesting, nor explaining
the major contradiction noted above.”
[20]
Ms. Liang complains that the RAD failed to conduct
a proper review of the RPD’s decision, relying instead on its own credibility
findings. In particular, Ms. Liang says the RAD failed to consider “the large number of supporting documents
wrongfully ignored by the RPD”, including her
divorce certificate. She says the RAD was obliged to conduct a full fact-based
review of all of the evidence (citing Huruglica), and wrongly accepted
the RPD’s credibility findings based on the RAD’s “own (questionable) findings in other areas
of the claim” (citing Chen v Canada (Citizenship
and Immigration), 2013 FC 311 at paras 20-21; Ren v Canada (Citizenship
and Immigration), 2015 FC 1402 at paras 24-25).
[21]
Ms. Liang also argues that the RAD cannot draw
determinative negative inferences against refugee claimants for misrepresenting
themselves while escaping persecution (citing Lubana v Canada (Citizenship
and Immigration), 2003 FCT 116 at para 11 [Lubana]; Bagire v
Canada (Citizenship and Immigration), 2013 FC 816 at paras 20-21 [Bagire]).
[22]
The Minister responds that it was open to the RAD
to find that the contradiction in the evidence regarding Ms. Liang’s marital
status undermined her credibility, and was fatal to her claim for refugee
protection. According to the Minister, if Ms. Liang had responded to the RAD’s
request for submissions concerning the contradiction, then she may have been
able to persuade the RAD of her honesty (citing Poudel v Canada (Citizenship
and Immigration), 2016 FC 978 at para 8 [Poudel]). She was given
more than a month in which to respond to the Minister’s new evidence, but
failed to do so. The Minister notes that Ms. Liang was represented by counsel,
and says that her silence should therefore be regarded as a strategic choice.
[23]
An adverse credibility finding may in itself be
sufficient to deny a refugee claim (Hussain v Canada
(Citizenship and Immigration), 2004 FC 1186 at
paras 10-11; Amiryar v Canada (Citizenship and
Immigration), 2016 FC 1023 at paras 19-20). In this
case, Ms. Liang was given notice of the Minister’s concern regarding the
contradictory statements she had made regarding her marital status. She
declined to provide an explanation. In these circumstances, I am satisfied that
it was open to the RAD to conclude that she had no explanation to offer and to
draw an adverse inference.
[24]
Some forms of misrepresentation that are not
central to a refugee claim, such as the use of fraudulent documents in Lubana,
may be insufficient to undermine a claimant’s credibility. However, in this
case, the misrepresentation concerned Ms. Liang’s alleged marital problems,
which were at the core of her refugee claim. They were said to be the cause of
her subjective fear of persecution in Peru, and the reason she turned to
religion in China. Her religious practices were said to be the cause of her
subjective fear of persecution in China.
[25]
While the RAD may have resorted to a “shortcut” by
dispensing with a detailed consideration of the documentary evidence, a single
adverse credibility finding regarding a core element of a refugee claim may be
sufficient to dispose of it. The RAD’s rejection of Ms. Liang’s claim on this
basis was therefore reasonable.
B.
Did the RAD deny Ms. Liang procedural fairness
by rejecting her credibility on different grounds than the ones relied on by
the RPD, and without providing adequate notice?
[26]
The RAD found Ms. Liang’s allegation that she used
a smuggler to leave China to be inconsistent with her statement that she was
not yet “wanted” by the PSB at the time of her departure. Ms. Liang says that it was “entirely reasonable for her to hire a
smuggler to leave China, as when she was still in China she could not know for
certain whether she would be stopped by border officials when trying to leave.” She argues that the RAD had a duty to ensure that issues that could
have a determinative impact on her appeal were raised in a hearing. The RPD did
not focus on Ms. Liang’s assertion that she used a smuggler to leave China
despite not being “wanted” by the PSB, and she therefore maintains that the RAD’s failure to
provide her with notice and an opportunity to address this matter resulted in a
breach of procedural fairness (citing Sarker v Canada (Citizenship and
Immigration), 2014 FC 1168 at para 19; Ching v Canada (Citizenship and
Immigration), 2015 FC 725 at para 71).
[27]
Both parties struggled to make sense of the RAD’s
statement that “the RPD erred
in its assessment of the Appellant’s departure from China.” The RAD found that “the Appellant had
intended to leave China via the USA when she applied for the USA visa almost a
year before she allegedly used a smuggler to flee China.” In fact, Ms.
Liang sought a U.S. visa in order to return to China from Peru, which involved
transiting through the United States. The visa was still valid when she left
China.
[28]
It is therefore unclear why the RAD found that the
RPD had misapprehended the circumstances of Ms. Liang’s departure from China.
The RPD appears to have understood that the alleged summons was issued only
after her departure. It nevertheless concluded that if Ms. Liang were
genuinely sought by the PSB, then she would have been identified in China’s “Golden Shield”
border control database – perhaps due to her previous detention.
[29]
The Minister nevertheless maintains that the RAD
reasonably rejected the credibility of Ms. Liang’s account of her departure
from China because: (a) the PSB had not yet issued a warrant for Ms. Liang’s
arrest; (b) she was in possession of a valid U.S. travel visa; and (c) she
entered the U.S. legally with all of the required documentation.
[30]
The manner in which Ms. Liang left China and
entered the United States was a central issue before the RPD. The RAD’s
approach to this issue differed in minor respects from the one taken by the
RPD, but the two tribunals arrived at the same conclusion: Ms. Liang’s account
of her departure from China was not credible. I am not persuaded that the
grounds upon which the RAD rejected Ms. Liang’s account were so distinct as to
require formal notice. The RAD’s analysis did not therefore give rise to a breach
of procedural fairness.
C.
Should a question be certified for appeal?
[31]
Neither party proposed that a question be certified
for appeal. However, in the course of argument, the parties adopted markedly
different positions on whether it is open to the RAD to draw an adverse
inference from a claimant’s failure to respond to a notice of intervention of
the Minister pursuant to Rule 4 of the Refugee Appeal Division Rules,
SOR/2012-257. The Rules are silent regarding the consequences of failing to
respond to such a notice.
[32]
In my view, the circumstances in which the RAD may
draw an adverse inference from a failure of a party to challenge another
party’s evidence are sufficiently canvassed in existing jurisprudence (see, for
example, Poudel and Bagire). I am therefore satisfied that no
serious question of general importance arises in this case.
VI.
Conclusion
[33]
The application for judicial review is
dismissed. No question is certified for appeal.
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