Docket: IMM-4126-16
Citation:
2017 FC 425
Ottawa, Ontario, April 28, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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XINYU SUN
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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.
Background
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [Act or IRPA], of a Refugee Protection Division’s [RPD, Board] August 15,
2016 negative decision [Decision], which found that the Applicant is not a
refugee nor a person in need of protection under sections 96 and 97 of the Act
on credibility grounds. For the reasons explained below, I am dismissing this
judicial review.
[2]
The Applicant is a citizen of China.
[3]
In August 2013, the Applicant says her friend
died in an automobile accident, which left her anxious and despondent. Another
friend thereafter introduced to her to the Church of Almighty God [Church], an
underground and illegal denomination in China, which she started attending in
September 2013.
[4]
In 2014, the Applicant claims that her parents
urged her to leave China to be able to practice her religion freely, and hired
a smuggler to prepare a Canadian student visa application, which was refused. A
second visa application was accepted, allegedly also submitted by the smuggler.
Although it was open to the Applicant to leave China at the time she received
her Canadian visa, she opted to remain to complete her school year as a
teacher.
[5]
In June 2015, the Applicant claims members of the
Church were arrested, and fearing her own safety at the hands of Chinese
authorities, she went into hiding. On August 27, 2015 she fled China with the
help of her smuggler, and came to Canada.
[6]
Two months after arriving in Canada, the
Applicant joined a branch of the Church in the Greater Toronto Area. In
December 2015, she says she met with an immigration consultant, at which time
she learned that she could claim refugee protection in Canada. She filed her
claim in 2016, ten months after her arrival in Canada.
[7]
The RPD rejected the claim based on a number of negative
credibility findings, namely:
i.
the Applicant’s unsatisfactory answers as to why
she joined the Church, given the high risks in China;
ii.
the unclear authors of the visa applications and
the Applicant’s responses in that regard;
iii.
the impact on subjective fear of persecution
resulting from delays in:
a)
leaving China,
b)
finding a Church branch in Toronto, and
c)
seeking refugee protection in Canada, and
iv.
the lack of genuineness of two letters from
Church members in Canada.
[8]
In light of the negative credibility findings
made against the Applicant, the RPD, noting the high rate of forgery in China,
gave little weight to certain Chinese documents, including a summons of arrest.
The Board concluded that the application was unfounded.
II.
Issues and Standard of Review
[9]
The only issue is whether the credibility
findings made the by the RPD were reasonable. The parties agree, as do I, that
the applicable standard of review is reasonableness (Diaz v Canada
(Citizenship and Immigration), 2016 FC 1343 at para 10 [Diaz]).
III.
Analysis
[10]
As a preliminary observation and contrary to the
Applicant’s submissions, I note that the Board in this case did not lose sight
of the presumption of the Applicant’s truthfulness. That presumption was explicitly
recognized by the RPD, noting that it could be refuted. I will now turn to the
Applicant’s credibility arguments.
[11]
Regarding the Church and the Applicant’s lack of
knowledge of its tenets, the Applicant argues that the RPD’s findings were
unreasonable because her Basis of Claim explains that she joined the Church in
light of her friend’s death, which provided a cogent explanation. However, the
RPD found the Applicant’s answers regarding her motivation for joining and her knowledge
of the Church, provided in both her written and oral testimony, to be vague
(containing ‘generalities’). After a review of
the evidence on the record, including the oral and written testimony, I
conclude that this finding was reasonable.
[12]
Furthermore, counsel conceded that the Applicant
provided inconsistent answers to the Board on the issue of her knowledge of a
Church branch in Toronto. This was certainly another reasonable credibility
finding of the Board.
[13]
With respect to the issue of subjective fear,
the Applicant says the Board’s findings regarding delays (in leaving China,
joining a Church branch in Canada, and claiming refugee status) were all
unreasonable. Taken together, I find that the Board’s observations regarding
subjective fear were reasonable: it is trite that one who fears for their life
can reasonably be expected to leave their country of origin and claim status at
the first opportunity, and the Court has been consistent in this regard (Chechkaliuk
v Canada (Citizenship and Immigration), 2016 FC 1415 at para 13).
[14]
Finally, the Applicant challenges two of the
RPD’s findings on the documentary evidence.
[15]
First, the Applicant challenges findings
regarding two letters authored by churchgoers, which purport to confirm the
Applicant’s involvement in the Church here in Canada. The Applicant contends
that the RPD’s assessment of the letters was unreasonable because they have all
the hallmarks of an authentic document, including letterhead, seal and
signature. In my view, the Applicant’s reliance on Paxi v Canada (Citizenship
and Immigration), 2017 FC 905 [Paxi] is of no assistance to her
position. Unlike Paxi, the Board in this case did not discount the
letters because they were not authentic. Instead, the Board went further and
engaged with the contents of the letters, noting that they were both very
brief, undetailed, and nearly identical. The letters state that their authors
and the Applicant have spread the Gospel. When asked how they had spread the
Gospel, the Applicant responded that she did not know what the authors of the
letters meant. The RPD noted that the authors of the letters were not present
to answer questions. Given the foregoing, the RPD’s analysis is entirely
defendable and the little weight given to the letters is accordingly
reasonable.
[16]
Second, the Applicant challenges the RPD’s
assessment of certain documents emanating from China, and most importantly (as
emphasized during the hearing), the failure to specifically address a summons
issued to the Applicant. Noting the high rate of forgery in China and the negative
credibility findings made against the Applicant, the RPD attributed little
weight to these documents. The Applicant contends that this line of reasoning
is unreasonable because the RPD cannot simply rely on the Applicant’s lack of
credibility and the knowledge that there is a high rate of forgery in China to
discount documentary evidence, based on Jian v Canada (Citizenship and
Immigration), 2014 FC 180 at paras 15-17 and Ren v Canada (Citizenship
and Immigration), 2015 FC 1402 at para 27.
[17]
However, credibility findings can and often do
impact on the weight given to accompanying documentary evidence: Wang v
Canada (Citizenship and Immigration), 2016 FC 972 at para 13; Huang v
Canada (Citizenship and Immigration), 2015 FC 1250 at paras 14-15.; Indeed,
recently, Justice Strickland, in Diaz at para 15 , reviewed the
applicable case law, and held the following:
The RPD also did not disregard the
corroborating personal documentary evidence without reasons. Rather, the RPD
made explicit reference to that evidence and explained that because it had
found the Applicants’ evidence to lack credibility, it considered the
documentary evidence to either be fraudulent or to have little probative value.
This approach was open to the RPD. The Applicants were found not to be credible
on central aspects of their claim […] it was open to the RPD to ascribe no or
little weight to the supporting documentary evidence in that circumstance. As
stated in Xu, it is reasonable to conclude that if an applicant has
fabricated his claim then the document that supported the claim is also a
fabrication (at para 4). Similarly, as stated by Justice Annis in Jia:
[19] Findings of credibility lie at the
heart of a Board’s expertise in determining the possibility of testimony and
drawing inferences from the evidence. It is well-established that an
applicant’s overall credibility may affect the weight given to the documentary
evidence (Granada v Canada (Citizenship and Immigration), 2004 FC 1766
(CanLII) at para 13; Hamid v Canada (Employment and Immigration), [1995]
FCJ No 1293 (QL) (TD) at para 21; Huang v Canada (Citizenship and
Immigration), 2011 FC 288 (CanLII) at para 21).
[emphasis added]
[18]
Likewise, in this case, given the credibility
findings on central aspects resulting in a determination that the claim was ‘unfounded’ - findings which were reasonable for the
reasons set out above - it was entirely open to the RPD to place little weight
on the Applicant’s documentary evidence, given the additional documentary
evidence before it relating to the prevalence of fraud: these elements, taken
as a whole, were fatal to the Applicant.
IV.
Conclusion
[19]
In light of the above, this application for
judicial review is dismissed.
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