Docket: IMM-4701-16
Citation:
2017 FC 539
Ottawa, Ontario, June 1, 2017
PRESENT: The
Honourable Mr. Justice Mosley
|
BETWEEN:
|
|
XIUHUA CHEN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Xiuhua Chen, a citizen of China, claims that she
fled her homeland to avoid persecution for practising Falun Gong. She seeks
judicial review of a decision dated October 19, 2016 by the Refugee Appeal
Division of the Immigration and Refugee Board (RAD), wherein the RAD dismissed
her appeal and confirmed the decision of the Refugee Protection Division (RPD)
that she is not a Convention refugee or person in need of protection.
[2]
For the reasons below, this application is
dismissed.
II.
BACKGROUND
[3]
Ms. Chen is 35 years of age and from Fujian
Province. She says that she began practising Falun Gong in February 2015
because she was suffering from back pain, headaches, and general weaknesses
following medical procedures in October 2013.
[4]
On August 29, 2015, an acquaintance of the
applicant’s husband was arrested by the Public Security Bureau (PSB) for
illegal Falun Gong activity. The applicant obtained a passport at her husband’s
request but says that she was unwilling to stop practising or leave China at
that point. Nonetheless, the applicant says that her husband hired a smuggler
as a precaution.
[5]
On November 12, 2015, a fellow practitioner was
arrested by the PSB while handing out Falun Gong pamphlets; as a result, the
applicant went into hiding. While in hiding, she learned that the PSB had
visited her home and left a summons on November 14, 2015.
[6]
On December 6, 2015, the applicant left China
through the assistance of a smuggler and arrived in Toronto on the same day.
She made her refugee claim on February 19, 2016.
III.
DECISION UNDER REVIEW
A.
The RPD Decision
[7]
The determinative issues before the RPD were the
applicant’s credibility and profile as a Falun Gong practitioner. The RPD found
inconsistencies between the applicant’s testimony at the hearing and her
allegations in the Basis of Claim document. The Panel did not accept that the
applicant was a wanted person as she had left China on her own documents and
would have been identified by the PSB through the screening system at the
airport. The PSB summons was given little weight as such documents are easily
falsified. The applicant’s identification as a Falun Gong practitioner in China
was questioned as was her sur place claim based on practise in Canada.
B.
The RAD decision
[8]
Under subsection 110(4) of the IRPA, the RAD
admitted new evidence submitted by the applicant; a Jail Visiting Card said to
have been provided to the spouse of the arrested fellow practitioner. The RAD concluded
that an oral hearing would not be held because the new evidence alone would not
justify allowing the refugee protection claim under subsection 110(6) of the
IRPA.
[9]
The RAD noted credibility concerns relating to
(1) the applicant’s ability to exit China undetected using her own genuine
passport, (2) the summons, and (3) the applicant’s identity as a genuine Falun
Gong practitioner. The RAD reviewed the audio recording of the RPD hearing and
conducted an independent assessment of the entire record.
[10]
In considering the issue of the applicant’s exit
from China, the RAD considered (1) the documentary evidence of the PSB’s access
to the Golden Shield database, (2) the use of this database to track Falun Gong
practitioners, (3) Chinese law requiring citizens to present their passports
upon exit, and (4) the multiple checkpoints that must be passed when exiting the
country where passports are checked.
[11]
The RAD considered that the applicant did not
satisfactorily explain how she could exit China without being detected. In the
Panel’s view, the applicant’s evidence regarding the smuggler was vague and
lacking in detail. She was unable to provide any details of what the smuggler
did for her other than facilitate her journey to Canada, and complete her visa
application.
[12]
The RAD further noted that the applicant alleged
that the PSB visited her home on at least three occasions prior to her
departure and after her departure from China. The Panel found that this
allegation undermined the suggestion that her name was somehow removed from the
national computer system through bribery of an official with access to the
system. In light of this indication that the PSB continued to show interest in
pursuing her, as well as the arrest of the two co-practitioners, the RAD
considered that it is reasonable to expect that the local authorities would
have entered her information into the database to further their efforts to
apprehend her.
[13]
The RAD found it highly improbable that the
smuggler would have the prior knowledge of whom to bribe to facilitate safe
travel through each checkpoint. To that end, the RAD noted Article 51 of the Exit
and Entry Administration Law of the People’s Republic of China, which
provides that companies involved in the transportation of goods and passengers
in and out of Chinese ports must declare information on the goods and
passengers in advance of their departure. The RAD was convinced by the
objective documentary evidence that border authorities are provided detailed
information on the passengers aboard outbound flights.
[14]
Ultimately, the RAD placed more weight on the
objective documentary evidence regarding the Golden Shield and other border
controls in place in China. As such, the RAD found that given the evidence
provided by the applicant, it was highly unlikely that she could have bypassed
all of the security controls in place even with the assistance of the smuggler.
[15]
Regarding the applicant’s claim of practising
Falun Gong, the RAD acknowledged the very low threshold to demonstrate
religious knowledge as a requirement for providing religious identity. Nonetheless,
given the length of time the applicant claimed to have practised Falun Gong,
the RAD was troubled by the applicant’s limited understanding of the faith. As
such, the RAD agreed with the RPD that the applicant is not a genuine Falun Gong
practitioner.
[16]
The RAD also concluded that the applicant was
not actually wanted by the PSB, on a balance of probabilities, given the lack
of a coercive summons, the arrest of co-practitioners and no action by the PSB
against the applicant’s family. In light of the number of alleged visits by the
PSB (possibly on four or five occasions), and the applicant’s failure to comply
with the initial summons, it is reasonable to assume from the documentary
evidence that an arrest warrant or coercive summons would be issued for failing
to appear for interrogation.
[17]
The RAD noted that its review of the audio
recording disclosed insufficient credible evidence upon which it could find
that the Chinese authorities would be aware of the applicant’s alleged
activities in Canada. Therefore, the RAD confirmed the RPD’s decision under
paragraph 111(1)(a) of the IRPA, and dismissed the appeal.
IV.
ISSUES
[18]
The parties did not make any submissions on the
standard of review. The appropriate standard of review to be applied by this
Court to the RAD’s decision is reasonableness: Canada (Minister of Citizenship
and Immigration) v Huruglica, 2016 FCA 93, [2016] FCJ No 313 at paras 30
and 35 [Huruglica].
[19]
The standard of reasonableness applies to the
RAD’s credibility findings and its assessment of the evidence. The RAD’s
determination of the sur place claim is also reviewable on a
reasonableness standard: Siliya v Canada (Minister of Citizenship and
Immigration), 2015 FC 120, [2015] FCJ No 35 at para 20, citing Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 53 [Dunsmuir];
see also Zhang v Canada (Minister of Citizenship and Immigration), 2016
FC 765, [2016] FCJ No 725 at para 26 [Zhang].
[20]
This application raises the following issues:
A. Did the RAD fail to assess the applicant’s new evidence?
B.
Were the RAD’s credibility findings reasonable?
C.
Did the RAD err in rejecting the sur place claim?
V.
ANALYSIS
A.
Did the RAD fail to assess the applicant’s new
evidence?
[21]
As noted above, the RAD admitted the new
evidence about the jail visiting card issued to the spouse of the alleged
co-practitioner and found that it did not justify allowing the appeal. Beyond
that, the RAD said nothing about the significance of the evidence. The
applicant submits that this is fatal to the decision as the evidence
substantiated her allegations and contradicted the RPD’s rejection of her claim
for lacking credibility. The applicant argues that there are insufficient “dots on the page” for this Court to connect, thereby
making the decision unintelligible: Komolafe v Canada (Minister of
Citizenship and Immigration), 2013 FC 431, [2013] FCJ No 449 at para 11.
[22]
The respondent submits that the RAD did consider
the new evidence but found that since it alone would not justify allowing the
refugee protection claim, it added nothing to the applicant’s claim.I agree
with the applicant that the RAD’s treatment of the new evidence was not
thorough. However, I do not accept the applicant’s position that the RAD
entirely failed to address that evidence.
[23]
The Supreme Court has stated that reviewing
courts must pay respectful attention to the decision-maker’s reasons, and be
cautious about substituting their own view of the proper outcome: “the reasons must be read together with the outcome and serve
the purpose of showing whether the result falls within a range of possible
outcomes”: Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para 14 [Newfoundland
Nurses]. This is not “carte blanche to
reformulate a tribunal’s decision in a way that casts aside an unreasonable
chain of analysis in favour of the court’s own rationale for the result”:
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para 54.
[24]
This is not a case in which the reviewing court
is unable to discern the tribunal’s reasoning. The determinative issue in this
case was credibility. The new evidence did not help the applicant overcome the
objective evidence on the record and the tribunal’s other credibility concerns.
The RAD’s treatment of the new evidence could have been more exacting, but it
did not fail to assign weight to the evidence. The RAD refused to conduct an
oral hearing because it found that the new evidence would not justify allowing
the refugee claim. Based on that assessment, it is clear that the RAD did not
assess much weight to the new evidence.
B.
Were the RAD’s credibility findings reasonable?
[25]
At the core of the applicant’s claim is that she
fears returning to China because she is wanted by the Chinese authorities for
being a Falun Gong practitioner. In refugee matters, the assessment of
credibility is at the heart of an administrative tribunal’s expertise, and it
is specific to the facts of each case: Florez v
Canada (Minister of Citizenship and Immigration), 2016
FC 659, [2016] FCJ No 636 at para 19. The RAD’s reasons indicate that it
considered the applicant’s evidence and arguments, as well as the objective
documentary evidence in the record. In my view, the RAD’s assessment of the
evidence was transparent, intelligible and justified.
[26]
I agree with the applicant that the RAD appears
to have erred in citing the wrong statute, the Criminal Procedure Law of the
People’s Republic of China, at footnote 29 of its Reasons, in considering
whether the issuance of a coercive summons would be required in all cases in
which the PSB was investigating unauthorized religious practice. But this error
is not, in my view, fatal to the RAD’s analysis.
[27]
The little weight attributed by the RAD to the
summons has to be reviewed in the context of the totality of the evidence before
it. The RAD’s concern regarding the authenticity of the summons was driven by
the applicant’s testimony that her home was visited a number of times but that
no action was taken by the PSB to enforce the summons. The RAD was careful to
note that its conclusion on this issue was not reached in isolation, as it also
considered the other credibility concerns mentioned, such as the ability to
exit China without being apprehended and the applicant’s limited knowledge of
Falun Gong.
[28]
In her submissions to the RAD, the applicant had
relied on several decisions from this Court to argue that the RPD had erred
when it found that, even with the use of a smuggler, it was implausible that
the applicant could exit China using her own genuine passport. These decisions
included Sun v Canada (Minister of Citizenship and Immigration), 2015 FC
387, [2015] FCJ No 347 [Sun] and Ren v Canada (Minister of
Citizenship and Immigration), 2015 FC 1402, [2015] FCJ No 1493 [Ren].
The RAD found these cases to be distinguishable from the facts of this case.
[29]
I note that in both Sun and Ren the
applicants had testified that the smuggler bribed the appropriate person. In Ren,
for example, at paragraph 16, the applicant explained that he retained a
smuggler who told him to go to a particular exit, which is how he was able to
leave on his own passport. In Sun, the applicant testified that the
smuggler had bribed the customs agents. There is no such evidence in the
present matter. The applicant did not provide any explanation as to how the
smuggler had managed to arrange her departure from China without incident.
[30]
On this application, the applicant submits that
the recent decision of this Court in Yao v Canada (Minister of Citizenship
and Immigration), 2016 FC 927, [2016] FCJ No 891, is also not distinguishable.
I disagree. In Yao, at paragraph 8, the applicant testified that
he had obtained a fraudulent passport from the smuggler so that he could leave
China without being apprehended by the police. The RPD in that case found that
the applicant’s ability to pass through the airport without incident supported
the finding that his passport was genuine, and not fraudulent. That conclusion
was found to be unreasonable. A similar credibility finding was not made in
this case.
[31]
In Yang v Canada
(Minister of Citizenship and Immigration), 2016 FC
543, [2016] FCJ No 511, another case cited by the RAD, the RPD had erroneously
found that it was implausible that the smuggler would be able to pay off
multiple immigration officials, PSB officers, customs officials and airline
representatives. In the present matter, however, the RAD explicitly noted that
the RPD did not engage in the speculation that hundreds of officials would have
to be bribed. Instead, the RAD outlined the objective documentary evidence
which demonstrated the sophistication and effectiveness of the Golden Shield
Project and other border exit control mechanisms.
[32]
The RAD did acknowledge that it might be
possible for a smuggler to bypass some of the security controls, but found that
there was no evidence in this case to suggest that the applicant could have
bypassed all of the security controls in place.
[33]
The RAD’s finding that the applicant’s knowledge
of Falun Gong did not support her claim to be a practitioner was made with the
explicit recognition that this Court has said that the threshold is low. I see
no reason to interfere with the Panel’s determination of this question.
C.
Did the RAD err in rejecting the sur place
claim?
[34]
The applicant did not press this issue at the
hearing but relied on her written submissions. In those submissions, she
contends that the RAD’s findings about her sur place claim were tainted
by its previous analysis and that the Chinese authorities would be able to
identify her as a practitioner because of her activities in Canada.
[35]
In my view, it was not unreasonable for the RAD
to rely on its credibility findings regarding the authenticity of the
applicant’s overall claim in its assessment of the sur place claim: Zhou v Canada (Minister of Citizenship and Immigration), 2015 FC 5, [2015 FCJ No 2 at para 23. The applicant did not present
any concrete evidence to demonstrate that the Chinese authorities would be
aware of her alleged activities here in Canada. As such, it was not
unreasonable for the RAD to conclude that the applicant’s general evidence – a
supporting letter and some photographs – was insufficient to support a finding
that she is a genuine Falun Gong practitioner.
VI.
CONCLUSION
[36]
I am satisfied that this application for
judicial review should be dismissed as the RAD’s decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.
[37]
No serious questions of general importance were
proposed for certification.
Email this Content