Docket: IMM-4595-16
Citation:
2017 FC 740
Ottawa, Ontario, July 31, 2017
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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DAN LI
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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]
The Applicant is a national of China who sought
refuge in Canada on the basis that the Chinese Public Security Bureau [PSB]
went to his house to arrest him for engaging in Falun Gong practices after he
escaped in a raid on the house church he attended. He seeks judicial review of
a decision made by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board of Canada. The RPD found that the Applicant was neither a
Convention refugee nor a person in need of protection under sections 96-97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
The RPD also found that there was no credible basis for the Applicant’s claims,
precluding an appeal to the Refugee Appeal Division.
[2]
The RPD questioned the Applicant about his
understanding of Falun Gong practices. It also questioned him about leaving
China with his own biometric passport, which apparently was obtained by someone
else on his behalf after the PSB began to look for him. The RPD also questioned
the Applicant about travelling by train to his friend’s house after the PSB
raided the house church. All answers provided by the Applicant were found to be
not credible based on inconsistencies with country condition documents.
[3]
The Applicant submits that the reasons of the
RPD do not refer to the human smuggler he used to obtain his passport and if
more attention had been paid to the presence of a human smuggler, then the RPD
could have believed his claim. He says the RPD acknowledges that fraudulent
documents can be obtained in China and officials can be bribed, so the
reasoning employed by the RPD that they do not believe he escaped using his own
passport is contradictory. The Applicant also points to other determinations
made by the RPD, all of which amount to asking the Court to re-weigh the evidence.
[4]
The Applicant’s primary focus and argument is
that the no credible basis finding cannot stand because there was only one real
credibility finding made against the Applicant, involving a discussion as to
whether the applicant or his wife handed documents over to arrange to obtain
his new passport. Counsel argued that all the findings made against the
Applicant were based on a weighing of the evidence which resulted in the RPD
preferring the country condition documents over the Applicant’s testimony. Counsel
submits that without negative credibility findings, there is nothing upon which
to make a no credible basis finding.
[5]
The Respondent submits that preferring the
country condition documents over the Applicant’s testimony is a
credibility finding. As the only evidence presented at the RPD hearing was the
testimony of the Applicant — no letters, witnesses or other evidence was
proffered — a credibility finding made against the Applicant results in there
being no credible evidence remaining. For a finding of no credible basis to be
overturned, there must be some evidence which, if believed, is capable of
supporting the claim.
[6]
In Rahaman v Canada (Minister of Citizenship
and Immigration), 2002 FCA 89 [Rahaman], the certified question
which the Court of Appeal was to answer was this:
Is a simple finding that a refugee claimant is not a credible
witness sufficient to trigger the application of subsection 69.1(9.1) [of the
now-repealed Immigration Act, RSC 1985, c I-2]?
[7]
The test that was in subsection 69.1(9.1) of the
Immigration Act is essentially the same as the present wording of subsection
107(2) of the IRPA: if there is no credible or trustworthy evidence on
which the RPD could have made a favourable decision on the claim for refugee
protection, then it shall state in its reasons for the decision that there is
no credible basis for the claim.
[8]
The Court of Appeal answered the certified
question in the affirmative saying, at paragraph 52:
Whether a finding that a refugee claimant is not a credible witness
triggers the application of subsection 69.1(9.1) depends on an assessment of
all the evidence in the case, both oral and documentary. In the absence of any
credible or trustworthy evidence on which each Board member could have
determined that the claimant was a Convention refugee, a finding that the
claimant was not a credible witness will justify the conclusion that the claim
lacks any credible basis.
[9]
Prior to answering the certified question, the
Court of Appeal made several statements concerning the proper interpretation of
the phrase “no credible basis”:
(1)
the Board is to have regard to all the evidence
before it which includes the claimant’s oral submissions and any documentary evidence
or other oral testimony;
(2)
a no credible basis finding may only be made if
there was no credible or trustworthy evidence on which the Board could
(emphasis in original) have upheld the claim;
(3)
if the only evidence linking the claimant to the
alleged persecution is the claimant’s oral testimony and the claimant is not
found to be credible, there will be no credible or trustworthy evidence to
support the claim;
(4)
country reports are not normally a sufficient
basis on which the Board can uphold a claim because they are not
claimant-specific;
(5)
if there is some (emphasis in original)
credible or trustworthy evidence a no credible basis finding is not precluded if
that evidence is insufficient in law to sustain a positive determination of the
claim.
Rahaman at paras 27-30
[10]
Over the years since Rahaman, these
statements or principles have been applied many times in this Court. While
there have been some refinements made to the statements, the essence remains
that if the Applicant’s testimony is not credible, then there must be the
presence of some credible or trustworthy evidence sufficient to sustain a
positive determination of the claim if a no credible basis finding is to be
avoided. It is still the case that country condition documents alone do not
meet that test.
[11]
Before I can assess whether the no credible
basis finding was reasonable, I must first determine whether the RPD reasonably
concluded that the Applicant’s testimony was not credible. There were clear
contradictions between the Applicant’s testimony and the country condition
documents relied on by the RPD. While more than one conclusion could have been
drawn from these contradictions, I find that the conclusions drawn by the
RPD—that the PSB was never looking for the Applicant and he was never a genuine
Falun Gong practitioner—were defensible on the evidence before it and were
sufficiently explained so as to meet the requirements of the reasonableness
standard of review. Having found the Applicant to face no threat on return to
China, it was reasonable for the RPD to conclude that the Applicant is neither
a Convention refugee nor a person in need of protection.
[12]
The next question is whether the RPD reasonably
determined that there was no credible basis for the Applicant’s claim. On this
matter, the Applicant has failed to convince me that any credible or
trustworthy evidence was ignored by the RPD. His testimony was not believed. Apart
from the country condition documents referred to by the RPD, which the RPD preferred
to the Applicant’s testimony, no evidence to support the claim was presented to
the RPD other than his marriage certificate to his wife. That document clearly
does not support his refugee claim in any way. Without any remaining evidence
to support the Applicant’s claim, the RPD’s no credible basis finding was
clearly in line with the Court of Appeal’s guidance in Rahaman and the
decision as a whole is reasonable.
[13]
The application for judicial review is therefore
dismissed. There is no question for certification on these facts.
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