Docket: IMM-4239-16
Citation:
2017 FC 543
Ottawa, Ontario, June 2, 2017
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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QUIYING GU
FENG GAO
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Applicants
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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.
INTRODUCTION
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision dated September 14, 2016 by the Refugee Appeal
Division of the Immigration and Refugee Board (RAD), wherein the RAD dismissed
the applicants’ appeal and confirmed the decision of the Refugee Protection
Division (RPD) that the applicants are not Convention refugees or persons in
need of protection under sections 96 and 97 of the IRPA.
II.
BACKGROUND
[2]
The applicants, Ms. Qiuying Gu and Mr. Feng Gao,
are citizens of China. The married couple claim that they fear persecution
because of Ms. Gu’s adherence to Falun Gong. Ms. Gu alleges that she is wanted
by the Chinese Public Security Bureau (PSB) for practicing Falun Gong. The
applicants claim that they were forced to go into hiding in November 2015 after
learning of the arrest of a co-practitioner for placing Falun Gong leaflets in
residential mail boxes.
[3]
The applicants left China and arrived in Canada on December 15, 2015 with the assistance of a
smuggler. Since coming to Canada, the applicants say, they have learned that
the police in China continue to seek them out.
[4]
The applicants’ claim was heard by the RPD on
April 22, 2016; their claim was denied on May 24, 2016. They were unsuccessful
on appeal as the RPD’s decision was upheld by the RAD on September 24, 2016.
III.
DECISION UNDER REVIEW
A.
The RPD decision
[5]
The determinative issues before the RPD were the
applicants’ credibility and Ms Gu’s profile as a Falun Gong practitioner.
[6]
The RPD concluded the following: (1) Ms. Gu was
not a genuine Falun Gong practitioner in China; (2) the applicants were not
being pursued by the PSB in China; (3) the applicants are not genuine Falun
Gong practitioners in Canada; and (4) they will neither practice nor will they
be perceived to practice Falun Gong upon returning to China.
[7]
To assess the credibility of the applicants and
their claims, the RPD focused on the following areas: (1) the reasons given for
why Ms. Gu went into hiding; (2) the applicants’ residences before they left
China; (3) the genuineness of a summons said to have been issued by the PSB;
(4) the applicants’ ability to exit China and travel to Canada; and (5) Ms.
Gu’s medical condition in relation to her beginning to practice Falun Gong.
[8]
The RPD did not find the applicants to be
credible witnesses as it noted several material inconsistencies,
contradictions, and omissions in their evidence. Ms. Gu’s testimony with
respect to the arrest of her fellow practitioner was found to be inconsistent,
shifting and evolving. She was unable to explain inconsistencies between her
testimony and Basis of Claim (BOC) document.
[9]
The absence of objective evidence that the
arrest of the co-practitioner had occurred was considered by the RPD to be
significant and undermined the applicants’ credibility. Inconsistencies in the
applicants’ evidence regarding the issue of whether they were in hiding
or at home prior to leaving China was also considered to be material.
[10]
A summons presented by the applicants was
considered to be not genuine for the reasons that (1) it instructed Ms. Gu to
report to the PSB in a province other than her own, and (2) Ms. Gu was not
served with a coercive summons or an arrest warrant upon failing to appear.
There was also no evidence that Mr. Gao had been issued a summons for failing to
disclose his wife’s location.
[11]
The RPD further found that the applicants were
likely not individuals of interest to the PSB because they flew from Shenyang
to Beijing and on to Canada using their genuine passports. The RPD found it
implausible that a smuggler would have been able to bribe their way through
airport security without being caught by the Golden Shield system.
[12]
The RPD gave little weight to Ms. Gu’s testimony
that she began to practice Falun Gong to relieve medical issues such as
headaches and depression as it was not supported by documentary evidence that
her symptoms had subsequently improved. While she had basic knowledge of Falun
Gong, her husband did not demonstrate familiarity with the faith. The RPD gave
little weight to the applicants’ evidence that they were genuine Falun Gong
practitioners in Canada and concluded that they were unlikely to practice Falun
Gong upon their return to China.
B.
The RAD decision
[13]
The applicants submitted to the RAD a Notice of
Arrest issued on May 9, 2016 and a Jail Visiting Card issued on May 18, 2016.
These documents were faxed to the applicants. The RAD declined to admit the new
evidence under subsection 110(4) of the IRPA, finding that the applicants
failed to explain why these documents were not reasonably available prior to
the rejection of their claim by the RPD on May 24, 2016.
[14]
The RAD noted credibility concerns relating to
(1) the applicants’ submissions on going into hiding, (2) the PSB visits, (3)
the summons, and (4) the applicants’ ability to exit China undetected. The RPD
was particularly concerned with the alleged timing of Ms. Gu’s going into
hiding and the inconsistent evidence about the two addresses declared on her
intake form. The RAD noted that the applicants made no submissions regarding
these central concerns.
[15]
The RAD concurred with the RPD’s assessment of
the summons as it too found that it was contrary to common sense to have Ms. Gu
report in a province other than her own. Moreover, it was reasonable to
conclude that an arrest warrant or a coercive summons would have been issued as
a result of failing to appear.
[16]
The fact that the applicants’ families were able
to carry on with their normal lives without interference from the PSB was also
considered to be concerning. The RAD found that the RPD’s treatment of that
issue was without error.
[17]
The RAD was also concerned with the applicants’
ability to exit China on genuine passports while the PSB allegedly sought them.
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. The RAD found that the lack of detail
regarding the actions of the smuggler provided by the applicants undermined
their allegations that they were assisted by a smuggler to bypass security in
China.
[18]
The RAD distinguished decisions of this Court
regarding implausibility findings relating to applicants exiting China using
their own genuine passports: Zhang v Canada (Minister of Citizenship and
Immigration), 2008 FC 533, [2008] FCJ No 678 [Zhang]; Sun v
Canada (Minister of Citizenship and Immigration), 2015 FC 387, [2015] FCJ
No 347 [Sun]; Ren v Canada (Minister of Citizenship and Immigration),
2015 FC 1402, [2015] FCJ No 1493 [Ren].
[19]
The RAD concurred with the RPD’s finding that
the applicants had not established that Ms. Gu was a genuine Falun Gong
practitioner in China. Even if she had practiced Falun Gong in Canada, the RAD
found that she had not established that the Chinese authorities were aware of
this. As such, the RAD upheld the RPD’s rejection of the sur place claim
due to credibility concerns.
IV.
ISSUES
[20]
There is no disagreement between the parties,
and I agree, that 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].
[21]
A preliminary issue arose from the inclusion in
the Applicants’ Record of a new certificate of translation dated September 28,
2016, two weeks after the RAD decision on September 14, 2016. This was raised
as a concern by the respondent in her leave materials and was not addressed by
the applicants in reply.
[22]
It is trite law that judicial review of an
administrative decision is made on the basis of the evidence that was before
the decision-maker. Additional evidence is only admissible in very narrow
circumstances, where it may be needed to resolve issues of procedural fairness
or jurisdiction: McKenzie v Canada (Minister of Citizenship and
Immigration), 2015 FC 719, [2015] FCJ No 718 at para 44; see also Alabadleh
v Canada (Minister of Citizenship and Immigration), 2006 FC 716, [2006] FCJ
No 913 at para 6; Ontario Association of Architects v Association of
Architectural Technologists of Ontario, 2002 FCA 218, [2003] 1 FC 331 at
para 30.
[23]
As the submission of the new certificate raised
no question of procedural fairness or any jurisdictional issue, it was excluded
as evidence after the parties were given an opportunity to make brief oral
argument on the issue.
[24]
Aside from the preliminary matter, this application raises the following issues:
A. Were the RAD’s credibility findings reasonable?
B.
Did the RAD err in rejecting the sur place claim?
C.
Did the RAD err in declining to admit the
applicants’ new evidence?
V.
ANALYSIS
A.
Were the RAD’s credibility findings reasonable?
[25]
In refugee matters, the “assessment
of credibility is the very core of the expertise of administrative tribunals,
and it is closely related to the facts of a given case”: Florez v
Canada (Minister of Citizenship and Immigration), 2016 FC 659, [2016] FCJ
No 636 at paras 18-19. The RAD’s reasons are detailed and demonstrate a
thorough consideration of the documentary evidence in the record.
[26]
Central to the applicants’ claim is that they
fear returning to China because Ms. Gu is wanted by the Chinese authorities for
being a Falun Gong practitioner. I do not agree with the applicants’ argument that
the RAD’s assessment of their time in hiding was “microscopic”.
It was reasonable for the RAD to assess the evidence and surrounding
circumstances in detail to determine the applicants’ credibility.
[27]
The RAD reasonably drew a negative inference
from Ms. Gu’s testimony regarding the timing of her hiding given the
inconsistent information provided in her BOC and at the RPD hearing. It was
also appropriate for the RAD to show some deference to the RPD’s assessment and
findings on the credibility issues arising from the oral evidence which the RPD
had heard: Huruglica, above, at para 103.
[28]
The RAD’s rejection of the summons has to be
reviewed in the context of the totality of the evidence before it. The RAD
agreed with the RPD that little weight should be assigned to the red stamp on
the summons in light of the objective evidence that such documents are easily counterfeited
with the aid of an ink jet printer. The principle that such documents that
appear to be genuine on their face are to be presumed to be authentic does not
apply when there are valid reasons to doubt the authenticity.
[29]
The RAD’s conclusion on the authenticity of the
document was primarily guided by the fact that on the face of the translation
submitted by the applicants, Ms. Gu was asked to report in a province in which
she did not reside. The responsibility for ensuring that the translation of
this document provided to the RPD was accurate rested with the applicants. The RPD was not required to confront
the applicants with this discrepancy; the principles of procedural fairness do
not require the Board to confront the applicant with information that they had
supplied themselves: Aguilar v Canada (Minister of Citizenship and
Immigration), 2012 FC 150, [2012] FCJ No 146 at para 31.
[30]
As noted above, there are no exceptional
circumstances that would permit the introduction of a new translation of the
document: Bekker v Canada, 2004 FCA 186, [2004] FCJ No 819; Bema v
Canada (Minister of Citizenship and Immigration), 2007 FC 845, [2007] FCJ
No 1103 at para 11.
[31]
The applicants’ attribute weaknesses in their
RAD submissions to their former counsel but that does not explain the
inconsistencies in their evidence before the RPD.
[32]
The RAD cannot be impugned for failing to
consider the recent explanations given with respect to Ms. Gu’s evidence about
the applicants’ two addresses, because the RAD did not have the benefit of
these explanations. The RPD did not simply ask “where
is home” as the applicants suggest. The respondent points to the
relevant portions of the audio recording of the hearing before the RPD when the
inconsistency was raised by the RPD member. The audio recording reveals that
Ms. Gu testified that she lived at a specific address from December 2015 until
she left for Canada.
[33]
The RAD reasonably assessed the evidence
surrounding the applicants’ exit from China. It distinguished Zhang, Ren and
Sun given the factual differences in those cases. Unlike in Zhang, neither
the RAD nor the RPD engaged in the speculation that hundreds of officials would
have to be bribed to exit China. In Ren, the claimant’s testimony that
he used a smuggler and that his passport was never scanned went uncontroverted.
In this case, however, the applicants’ testimony regarding their reliance on
the smuggler and how they were assisted was vague and lacked detail.
[34]
The RAD properly pointed out that the RPD’s
decision in Sun was based on the evidence available in an earlier
version of the National Documentation Package (NDP). In this case, however, the
RAD’s conclusions about the plausibility of the applicants’ ability to leave
China using their genuine passports was based on a review of the most current
information in the July 2015 NDP. Moreover, while this Court in Sun found
that the RPD’s assessment of the applicant’s ability to leave China on his own
passport was unreasonable, the same conclusion does not follow in the
circumstances of this case.
[35]
I agree with the respondent that each of these
cases have to be decided on their own facts. The RAD’s detailed assessment of
the documentary evidence relating to the Golden Shield system provides its
conclusion a rational basis, which this Court should not interfere with. The
applicants have not shown how the RAD’s conclusion lacks justification, transparency,
and intelligibility.
[36]
The RPD found that Ms. Gu displayed some
knowledge of the practice of Falun Gong. The RAD agreed with the RPD that the
credibility concerns undermined her ability to establish her identity as a
genuine FG practitioner. The applicants rely on this Court’s decision in Ren,
above, to argue that the RAD failed to assess the evidence relating to the
applicants’ status as Falun Gong practitioners independent of its previous
credibility findings.
[37]
In my view, the applicants’ reliance on this
Court’s decision in Ren is misplaced. In that case, Justice Boswell, at
paragraph 25, held that the RAD has to “deal separately
and squarely with the documentary evidence before coming to an overall
credibility finding” [emphasis in original]. In that case, Justice
Boswell was referring to the RAD’s erroneous reasoning in importing its overall
credibility finding to a specific document such as a summons.
[38]
In this matter, however, the RAD individually
assessed all of the evidence before it, and based on an assessment of that
evidence, it concluded on a balance of probabilities, that the applicants were
not genuine Falun Gong practitioners. The RAD did not engage in impermissible
inverted reasoning. Therefore, I see no reason to interfere with the RAD’s
assessment of the applicants’ credibility or its conclusion.
B.
Did the RAD err in rejecting the sur place
claim?
[39]
The RAD acknowledged that Ms. Gu demonstrated some
knowledge of Falun Gong but did not place much weight on a letter and
photographs from a fellow practitioner in Canada. It found that the applicants
had not established that the Chinese authorities were aware of their
involvement with Falun Gong in Canada even if they were engaged in monitoring such
activities in this country.
[40]
It was open to the RAD to take its negative
credibility findings into account in considering the sur place claim: Zhou
v Canada (Minister of Citizenship and Immigration), 2015 FC 5, [2015] FCJ
No 2 at paras 22-23, 25 [Zhou]. In Zhou, at paragraph 23, this
Court found that “it is permissible for the RPD to
assess an applicant’s genuineness and therefore his sur place claim in light of
credibility concerns relating to the original authenticity of a claim”.
[41]
Similarly, I would conclude that based on the
totality of the evidence provided by the applicants, it
was not unreasonable for the RAD to find that the practitioner’s letter and
photographs were insufficient evidence to establish the sur place claim.
C.
Did the RAD err in declining to admit the
applicants’ new evidence?
[42]
The applicants submit that they only learned of
the arrests of other members of the Falun Gong practice group in a phone call
with Ms. Gu’s mother in late May 2016 following the RPD hearing. The Notice of
Arrest, issued on May 9, 2016 and Jail Visiting Card dated May 18, 2016 were
then faxed to the applicants. The RAD declined to admit the new evidence under
subsection 110(4) of the IRPA, finding that the applicants failed to explain
why these documents were not reasonably available prior to the rejection of
their claim by the RPD on May 24, 2016.
[43]
It is unclear exactly when Ms. Gu spoke to her
mother following the RPD hearing which took place on April 22, 2016. Even if they
were unable to physically obtain the documents before the decision was rendered
a month later, it was open for the RAD to conclude that they could have
notified the RPD of the existence of new evidence prior to the issuance of the
decision. No evidence was provided of any efforts to do so.
[44]
While the Court may have reached a different
decision on the admissibility of the evidence, I see no reason to interfere
with the RAD’s decision. In any event, given the overarching credibility
concerns raised by the RPD and confirmed by the RAD, the RAD’s decision to
exclude the two new documents is immaterial.
VI.
CONCLUSION
[45]
I am satisfied that the RAD’s decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law. This application for judicial review should be dismissed.
[46]
In a post-hearing submission, counsel for the
applicant advised the Court that no questions for certification would be
submitted as the law in this area was clear. No questions were proposed by the
respondent.
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