Docket: IMM-2700-17
Citation:
2017 FC 1156
Ottawa, Ontario, December 15, 2017
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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RONG GAO
QIWEN WENG
YUNCI WENG
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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
[1]
The Applicants, a husband, wife and their
daughter, all citizens of China, seek judicial review of the decision of the
Refugee Appeal Division of the Immigration and Refugee Board [RAD] dated May
25, 2017, which confirmed the decision of the Refugee Protection Division [RPD]
and refused their claims for refugee protection under sections 96 and 97 of the
Immigration and Refugee Protection Act, SC 2001 c 27 [the Act].
[2]
For the reasons set out below, the Application
for Judicial Review is dismissed.
I.
Background
[3]
The male Applicant arrived in Canada in February
2016 to visit his 15 year old son, who had arrived in Canada a month earlier as
a student, and to assist his son in settling into student life. The female
applicant and their daughter arrived in June 2016, also for the stated purpose
of visiting their son and brother, respectively. The Applicants later made
refugee claims alleging that their Falun Gong practice group in China had been
raided in July 2016 and that they were at risk of persecution if they were to
return. They claimed that their daughter, the minor applicant, would lose
social benefits and suffer discrimination because of their Falun Gong practice.
The Applicants also made a sur place claim based on their Falun Gong
activities in Canada.
[4]
The RPD refused the Applicants’ claims under
section 96 and 97 due to the Applicants’ lack of credibility. The RPD’s
findings were based on the adult Applicants’ responses to questions regarding
the tenets of Falun Gong. The RPD noted that the female Applicant claimed to
have practiced Falun Gong since August 2015 and claimed to have attended over
40 group practices in addition to her claimed Falun Gong practice in Canada,
yet she did not convey sufficient knowledge as would be expected. The RPD
similarly found that the male applicant’s knowledge was insufficient, given that
he had claimed to have practiced Falun Gong since October 2015, and attended 20-30
group practices in China and 10 in Canada. The RPD concluded that the adult Applicants
had “acquired snippets of knowledge of the concept of
Falun Gong for the purpose of forwarding refugee claims”.
[5]
The RPD gave little weight to a photocopy of a
letter from the minor Applicant’s school purporting to dismiss her due to the
adult Applicants’ Falun Gong practice because it was not an original copy,
despite the Applicants having provided original copies of other pertinent
documents, and further because the document contained no “security features”. The RPD gave no weight to a
letter from a fellow practitioner in Canada because it was not a sworn
statement and could not account for the events alleged to have occurred in
China.
[6]
With respect to the sur place claim, the
RPD found that there was insufficient evidence that their participation in
Falun Gong activities in public spaces in Canada had been brought to the
attention of Chinese authorities. Based on the credibility findings, the RPD
found that the Applicants had engaged in Falun Gong for the purpose of
forwarding refugee claims and not due to any genuine commitment.
[7]
The RPD further found, based on the Applicants’
own testimony that they came to Canada to be with their 15 year old son who was
studying in Canada, and concluded that they had never intended to return to
China.
II.
The Decision under Review
[8]
The RAD conducted an independent assessment of
the evidence on the record and agreed with the RPD’s findings that the
Applicants lacked credibility. The RAD found that both of the adult Applicants lacked
knowledge of Falun Gong commensurate with their stated experience.
[9]
The RAD addressed the Applicants’ submissions
that the RPD had erred in several ways, including: by not giving sufficient
weight to the fact of their limited experience with Falun Gong, and not considering
that their ability to practice was restricted in China; by making credibility
findings without considering their limited experience; by failing to assess the
raid on their practice group in China; and, by finding that their motivation
for coming to Canada was to be with their son and that they had no intention to
return.
[10]
The RAD found that the Applicants had claimed to
have practiced Falun Gong for substantial periods of time (13 months for the female
Applicant and 11 months for the male Applicant). The RAD noted that the
Applicants were not unsophisticated people and there was nothing to suggest any
impairment in their ability to understand or learn the tenets of Falun Gong. The
RAD found that it is reasonable to expect a person who claims to be a Falun
Gong practitioner to demonstrate a fundamental knowledge commensurate with his
or her experience and the Applicants did not do so.
[11]
The RAD reviewed the RPD’s credibility findings in
detail and concurred with them. The RAD noted that it had considered the
credibility findings, the individual profiles of the Applicants and all the
information in the record. The RAD concluded that on a balance of probabilities
the Applicants are not genuine practitioners of Falun Gong, and therefore, they
were not part of a practice group that was raided by the Public Security Bureau
[PSB], they are not wanted by the PSB and the minor Applicant (their daughter)
will not lose social benefits or be discriminated against because of the adult
Applicants’ Falun Gong practice.
[12]
The RAD gave little weight to the letter from
the minor Applicant’s school, noting it was not an original and had been faxed,
with no indication of its origin. The RAD also gave no probative value to the
letter from a fellow Falun Gong practitioner in Canada.
[13]
The RAD found that the RPD did not err by failing
to make a finding about the raid on the Applicants’ practice group in China.
The RAD noted that, according to their own evidence, the Applicants left China
to visit their son in Canada. The alleged raid occurred after they departed.
Moreover, since the RPD concluded that they were not genuine Falun Gong
practitioners, it follows that the raid did not occur and they are not wanted
by the PSB.
[14]
The RAD concurred with the RPD’ s finding that
the Applicants’ motivation for coming to Canada was to be with their 15 year
old son, but found that there was insufficient evidence to conclude that the
Applicants never intended to return to China.
[15]
With respect to the sur place claim, the
RAD found that the RPD’s credibility findings applied not only to the alleged
activities in China, but also to their activities in Canada. The RAD concurred
with the RPD that on a balance of probabilities, the Applicants’ claims to be
Falun Gong practitioners in China were made to establish fraudulent refugee
claims. The RAD further found that on a balance of probabilities, the
Applicants activities in Canada were also for the purpose of furthering a
fraudulent refugee claim. The RAD added that there was no evidence that the
Applicants claimed activities in Canada were observed or that they would be
perceived to be genuine Falun Gong practitioners.
III.
Standard of Review
[16]
In Canada (Minister of Citizenship and
Immigration) v Huruglica, 2016 FCA 93 at para 103, [2016] FCJ No 313 (QL) [Huruglica
FCA], the Court of Appeal clarified that the RAD has an appellate role and that
the RAD applies the standard of correctness when reviewing a RPD decision.
[17]
The RAD conducts an appeal of the RPD’s decision,
whereas the Court conducts a judicial review of the RAD’s decision. The Court applies
the standard of reasonableness to issues of fact, including credibility, and
mixed fact and law.
[18]
The Court must therefore, determine whether the RAD’s
decision “falls within a 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, [2008] 1 S.C.R. 190 [Dunsmuir]).
Deference is owed to the decision-maker and the Court will not reweigh the
evidence.
[19]
It is also well-established that boards and
tribunals are ideally placed to assess credibility: Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ No 732 at para 4 (QL),
160 NR 315 (FCA). The decision- maker’s credibility findings should be given
significant deference: Lin v Canada (Minister of
Citizenship and Immigration), 2008 FC 1052 at para 13, [2008] FCJ No 1329
(QL); Fatih v Canada (Minister of Citizenship and Immigration),
2012 FC 857 at para 65, 415 FTR 82; Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at
para 7, 228 FTR 43.
IV.
The Applicant’s Submissions
[20]
The Applicants submit that the RAD erred by microscopically
analyzing parts of their testimony with respect to their knowledge of Falun
Gong, particular Falun Gong stances, and the authors of key Falun Gong
literature. They further submit that the RAD was wrong to base their
subsequent findings, including that the raid on their practice group in China
did not occur, on these microscopic concerns.
[21]
The Applicants submit that their level of
knowledge of Falun Gong is immaterial to the PSB’s interest in them, which
arises from their participation in a practice group in China. The Applicants
submit that their mere presence at such a group puts them at risk from the
PSB. Therefore, the RPD should have assessed their evidence about the raid and
made a finding, and the RAD erred in finding that the RPD did not need to do
so.
[22]
The Applicants submit that their testimony about
the raid and the attendance of the PSB at their home should be taken as true.
They submit that they could not provide other evidence because the raid
occurred after they had departed China.
[23]
The Applicants do not dispute the findings
related to their sur place claim.
V.
The Respondent’s Submissions
[24]
The Respondent submits that the RAD reviewed the
RPD decision on the correctness standard in accordance with the guidance
provided in Huruglica and conducted an independent assessment of the
evidence to determine whether the RPD erred.
[25]
The Respondent submits that the RAD made several
determinative credibility findings that are dispositive to the claim. The
Respondent points to the RAD’s detailed assessment of the male Applicant’s
testimony about basic tenets of Falun Gong theory and about his practice of
Falun Gong and his vague and/or erroneous answers. Similarly, the female Applicant’s
testimony revealed insufficient knowledge of Falun Gong. The Respondent submits
that the RPD and the RAD did not impose an unduly high standard of knowledge;
rather that the Applicants did not know or distinguish between tenets,
exercises and books. The Respondent submits that these findings support the
RAD’s conclusion that the Applicants’ claim that they were members of a Falun
Gong practice group was fabricated.
[26]
The Respondent adds that the only document
tendered as corroborative evidence was reasonably given little weight because
it was a photocopy with no security features and it could have been created by
anyone.
[27]
The Respondent adds that the record reveals that
the Applicants left China to visit their son in Canada, not because of any raid
on their practice group, noting that the alleged raid occurred after they left.
There was no reason for the RPD to assess the raid, which was not even believed
to have occurred. The RAD correctly found that the RPD did not err. The
Respondent notes that the RPD and RAD both concluded that the Applicants were
not credible and were not Falun Gong practitioners, therefore they were not
part of any practice group that would have been raided.
[28]
With respect to the sur place claim, the
Respondent submits that the letter from a fellow Falun Gong member in Canada
was reasonably given no probative value. The Respondent adds that there was no
evidence that the Chinese authorities were aware of, or interested in, the
Applicants in China or in Canada.
VI.
The Decision is Reasonable
[29]
The RAD independently assessed the evidence and
reasonably found that the Applicants were not credible. Their responses
regarding their understanding and practice of Falun Gong were not sufficient
when considered in the context of the period of time they claimed to have
embraced and practiced Falun Gong. Contrary to the Applicants argument that the
RPD and the RAD microscopically assessed their testimony without considering
the period of time they had practiced and the conditions under which they practiced
in China, the RAD clearly took this into account, noting that their knowledge
was not “commensurate” with their experience.
[30]
The RAD also noted the need to be cautious and
respectful when questioning a refugee claimant about their religion or beliefs.
In the present case, the RAD did not hold the Applicants to an unduly high
level of knowledge, rather a more basic level as would be expected of the Applicants
given they claimed to have studied for 13 and 15 months, respectively. The RAD
noted that they were “not unsophisticated” and
there was no impediment to their ability to learn. The RAD found that their
knowledge did not even rise to the level of a basic understanding.
[31]
The RAD reasonably found that the Applicants
were not credible. The RAD both confirmed the RPD’s findings, which were made
based on hearing the testimony of the Applicants, and made their own
credibility findings based on an independent and detailed assessment of the
evidence. The credibility findings are well supported and are owed significant
deference.
[32]
The RAD reasonably found that the RPD did not
err by not making a finding with respect to the alleged raid on the practice
group in China. As the Respondent notes, the RPD and RAD both concluded that
the Applicants were not credible and were not Falun Gong practitioners, and,
therefore, they were not part of any practice group that would have been
raided.
[33]
The only evidence of this raid was the
Applicants testimony to the RPD which was based on information provided to them
by others, since the Applicants were already in Canada at the time of this
raid. Given that the RPD had found the Applicants not to be credible, the RPD
was not required to accept that their viva voce testimony recounting
information provided by others as true in the absence of any corroboration.
[34]
Although the Applicants have not raised the
reasonableness of the RAD’s finding with respect to the sur place claim,
the RAD’s finding is reasonable. Both the RPD and the RAD assessed the sur
place claim. The RAD reasonably found that the Applicants are not genuine
Falun Gong practitioners, in either Canada or China, based on their lack of
credibility, lack of knowledge and lack of corroborative evidence. The RAD was
not required to do more to assess their sur place claim as there was no
such credible claim to assess. Further, there was no evidence that the
Applicant’s activities in China had or would come to the attention of Chinese authorities
(Li v Canada (Minister of Citizenship and Immigration), 2012 FC 998 at para
32, 221 ACWS (3d) 939 [Li], Jiang v Canada (Minister of Citizenship
and Immigration), 2012 FC 1067 at paras 27-28, [2012] FCJ No 1149 (QL)).
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