Docket: IMM-257-17
Citation:
2017 FC 1163
Toronto, Ontario, December 18, 2017
PRESENT: THE
CHIEF JUSTICE
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BETWEEN:
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SHOUWEN LIAO
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant, Mr. Liao, is a citizen of China
who claims to be a practitioner of Falun Gong. Shortly after his arrival in
Canada he sought refugee protection based on his fear of persecution in China,
as a result of his pursuit of Falun Gong practices.
[2]
Mr. Liao’s application for protection was
rejected by the Refugee Protection Division [RPD] of the Immigration and
Refugee Board of Canada on the basis of concerns that it identified with
respect to the credibility of his claims and certain supporting documents he had
provided.
[3]
Mr. Liao then appealed to the Refugee Appeal
Division [RAD], which confirmed the decision. He now submits that the RAD
erred:
i.
in its assessment of his evidence regarding the
concept of “attachments” in Falun Gong;
ii.
in its assessment of his knowledge of the
concept of “righteous thoughts”; and
iii.
in failing to return his claim to the RPD for
redetermination.
[4]
I disagree. For the reasons that follow, this
application will be dismissed.
II.
The RPD’s Decision
[5]
The RPD identified the determinative issue as
being Mr. Liao’s credibility.
[6]
In rejecting his application for refugee
protection, the principal findings made by the RPD were as follows:
i.
Mr. Liao did not have a level of understanding
of the importance of the concept of “righteous thoughts”
to the practice of Falun Gong commensurate with the length of time he claimed
to have been practising Falun Gong;
ii.
He did not have the level of knowledge of “exercise two” that one would expect of someone who
had been practising Falun Gong for approximately one year;
iii.
He did not have the knowledge of the concept of “attachments” that could be expected in the
circumstances;
iv.
Contrary to his assertions, it was unlikely that
the Public Security Bureau [PSB] in China was looking for him. The RPD reasoned
that authorities who would seek him out four times, as he alleged, would also
pursue some punitive action against his family members. However, no such action
occurred;
v.
The summons that he states was given to his
parents by PSB authorities was not genuine; and
vi.
There was insufficient evidence to establish on
a balance of probabilities that his participation in Falun Gong activities in
Canada had been brought to the attention of Chinese authorities. As a result,
the sur place aspect of his claim had not been established.
III.
The RAD’s Decision
[7]
Before the RAD, Mr. Liao did not raise any issue
with the findings that were made by the RPD in connection with “exercise two,” the above-mentioned summons, or the
rejection of his sur place claim. Accordingly, those aspects of the RPD’s
decision are deemed by the Court to have been reasonable (Quintero
Cienfuegos v Canada (Citizenship and Immigration), 2009 FC 1262, at para 26;
Liu v. Canada (Citizenship and Immigration), 2015 FC 207, at para 28; Zhu
v. Canada (Citizenship and Immigration), 2017 FC 615, at para 20; Huang
v. Canada (Citizenship and Immigration), 2017 FC 762, at para 62).
[8]
Nevertheless, Mr. Liao challenged the findings
that had been made by the RPD with respect to his understanding of the concepts
of “righteous thoughts” and the “attachments.”
[9]
At the outset of its review, the RAD noted that
Mr. Liao had not submitted any new evidence in support of his application for
refugee protection, and had not requested an oral hearing.
[10]
After reviewing the evidentiary record, the RAD
found that it was “clear from the record that [Mr.
Liao] did not understand the meaning and purpose of Righteous Thoughts,”
and that it was therefore open to the RPD to draw a negative inference regarding
his credibility. The RAD then made essentially the same finding in respect of
his understanding of the “attachments.”
[11]
In addition, the RAD observed that Mr. Liao had
made no submissions concerning his failure to correctly identify the purpose of
“exercise two.” It noted that knowledge of the
exercises and their purposes is central to Falun Gong practice.
[12]
The RAD also assessed the alleged summons, even
though Mr. Liao had not made any submissions in respect of it. The RAD did so
after essentially found that the RPD had erred in finding that the document was
not genuine, without having specifically assessed it. Upon reviewing the
document, the RAD confirmed the RPD’s conclusion that it was fraudulent.
[13]
Based on all of the foregoing, the RAD found
that there was “insufficient truthful and credible
evidence in the record to find that [Mr. Liao] was a Falun Gong practitioner in
China who is being pursued by the PSP,” or that he is now a genuine
Falun Gong practitioner. Therefore, the RAD confirmed the RPD’s decision that
Mr. Liao is neither a Convention refugee nor a person in need of protection.
IV.
Issues
[14]
The three issues that have been raised on this
application are as follows:
i.
Did the RAD err in its assessment of the
evidence regarding Mr. Liao’s understanding of the concept of “righteous thoughts”?
ii.
Did the RAD err in its assessment of the
evidence regarding Mr. Liao’s understanding of the concept of “attachments” in Falun Gong?
iii.
Did the RAD err in failing to return Mr. Liao’s
claim to the RPD for redetermination?
V.
Standard of Review
[15]
The first two issues raised by Mr. Liao are
questions of fact, whereas the third issue is a question of mixed fact and law.
Each of those issues is reviewable on a standard of reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9, at paras 51-53 [“Dunsmuir”]).
[16]
In conducting a review on a reasonableness
standard, the Court will assess whether the decision under review falls “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law” (Dunsmuir, above,
at para 47). The Court’s focus will be on the reasonableness of the
decision as a whole (Construction Labour Relations v Driver Iron Inc.,
2012 SCC 65, at para 3; Communications, Energy and Paperworkers Union of
Canada, Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34, at
para 54).
VI.
Analysis
A.
The RAD’s assessment of Mr. Liao’s knowledge of “righteous thoughts”
[17]
Mr. Liao submits that it was unreasonable for
the RAD to have drawn an adverse inference regarding his credibility, based on
his weak understanding of the meaning of the “righteous
thoughts” concept in Falun Gong. This submission was based on two
general grounds. First, he maintains that the concept of “righteous thoughts” is not mentioned in the Zhuan
Falun, the primary text of the Falun Gong. Second, he asserts that the RAD
should have considered that he had only been a practitioner for less than one
year, and that during that period he did not have access to Falun Gong’s
outlawed text. In addition, he was in hiding for approximately one month. Under
these circumstances, he submits that it should not have been surprising to the
RAD that he lacked detailed knowledge of the concept of “righteous thoughts.”
[18]
In my view, it remained reasonably open to the
RAD to conclude that, while Mr. Liao had some knowledge of the concept of “righteous thoughts,” it was clear from the record
that he did not understand the meaning and purpose of them.
[19]
When asked by the RPD about “righteous thoughts,” Mr. Liao replied that “to give out righteous thoughts is to allow yourself to
concentrate your cultivation and to upgrade your mind nature.”
[20]
However, documentary evidence quoted by the RPD
explained that righteous thoughts should be directed towards reducing the
general level of evil in the cosmos, rather than to cultivating one’s own mind.
The RPD therefore drew a negative inference with respect to Mr. Liao's
credibility.
[21]
When subsequently asked whether there was a
method for sending righteous thoughts, Mr. Liao replied “yes, it’s a movement.” In response to the panel’s
request that he demonstrate this, he showed three hand positions, including the
“conjoined” position. However, the RPD found
that this was erroneous, as that position was not mentioned in the
documentation from which it quoted.
[22]
Based on the foregoing record, the RAD’s conclusion
that Mr. Liao did not understand the meaning and purpose of “righteous thoughts” was not unreasonable. In my view,
that conclusion fell “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law”
(Dunsmuir, above, at para 47). It was also not unreasonable for the
RAD to find that it was open to the RPD to cite the document mentioned in the
paragraph immediately above, which was a document included in the RPD’s
national documentation package.
B.
The RAD’s assessment of the Mr. Liao’s knowledge
of “attachments”
[23]
Mr. Liao submits that the RAD erred by
misapprehending the evidence on the record in respect of the “attachments.” Specifically, he notes that when asked
by the RPD to explain the concept of “attachments”
in Falun Gong, he replied: “attachments come from
addiction to smoking and alcohol” as well as from “jealousy.” The RPD stated that his reference to
addiction to smoking and alcohol was incorrect. However, the Zhuan Falun
explicitly refers to such addictions as “attachments.”
This was not acknowledged by the RAD.
[24]
Although the RAD appears to have failed to
appreciate this error on the part of the RPD, I find that that the overall
determination that it made in respect of Mr. Liao’s knowledge of the “attachments” was rationally supported and reasonable.
That determination was that Mr. Liao’s knowledge of this concept was “at best, superficial.”
[25]
As noted by the RAD, “the
giving up of ‘attachments’ is [a] central element of Falun Gong theory.”
According to a passage from the Zhuan Falun that was quoted by the RPD,
the giving up of attachments is not confined to giving up a few specific
things. Rather, practitioners are advised to “lose all
[of] everyday people’s attachments and various desires.” With this in
mind, the RAD’s finding that Mr. Liao’s knowledge of the attachments was, at
best, superficial, was not unreasonable.
[26]
In reaching this finding, the RAD acknowledged
that it can be difficult to make a judgment as to the genuineness of a person’s
belief and practice of Falun Gong. For this reason, the RAD stated that it is
necessary to consider the totality of the evidence, rather than seizing on an
absence of knowledge about a particular aspect of Falun Gong. In this regard,
the RAD noted that there remained a large body of concepts and practices that
were not considered by the RPD, but that Mr. Liao’s counsel did not ask any
questions in respect of them.
[27]
Elsewhere in its decision, the RAD noted that
Mr. Liao had erred when explaining the purpose of “exercise
two.” As discussed above, it also found that he did not understand the
meaning and purpose of “righteous thoughts.”
[28]
In this overall context, the RAD’s finding that
Mr. Liao’s knowledge of the “attachments” was ,
at best, superficial fell well “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law” (Dunsmuir, above, at para 47).
C.
The RAD’s failure to return Mr. Liao’s claim to
the RPD for redetermination
[29]
Mr. Liao submits that it was unreasonable for
the RAD not to return his application to the RPD for redetermination, after
having found that the RPD had erred in fact and in law, as contemplated by
paragraph 111(2)(a).
[30]
Section 111 states as follows:
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111 (1) After considering the appeal,
the Refugee Appeal Division shall make one of the following decisions:
(a) confirm the determination of the
Refugee Protection Division;
(b) set aside the determination and
substitute a determination that, in its opinion, should have been made; or
(c) refer the matter to the Refugee
Protection Division for re-determination, giving the directions to the
Refugee Protection Division that it considers appropriate.
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111 (1)
La Section d’appel des réfugiés confirme la décision attaquée, casse la
décision et y substitue la décision qui aurait dû être rendue ou renvoie,
conformément à ses instructions, l’affaire à la Section de la protection des
réfugiés.
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Referrals
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Renvoi
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(2) The Refugee Appeal Division may
make the referral described in paragraph (1)(c) only if it is of the opinion
that
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(2)
Elle ne peut procéder au renvoi que si elle estime, à la fois :
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(a) the decision of the Refugee
Protection Division is wrong in law, in fact or in mixed law and fact; and
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a) que
la décision attaquée de la Section de la protection des réfugiés est erronée
en droit, en fait ou en droit et en fait;
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(b) it cannot make a decision under
paragraph 111(1)(a) or (b) without hearing evidence that was presented to the
Refugee Protection Division.
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b) qu’elle
ne peut confirmer la décision attaquée ou casser la décision et y substituer
la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue
du réexamen des éléments de preuve qui ont été présentés à la Section de la
protection des réfugiés.
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[31]
With respect to the RPD’s error of fact, or of
mixed fact and law, Mr. Liao notes that the RAD found that there was
insufficient evidence on the record for the RPD to find that he was not being
pursued by the PSB.
[32]
However, despite having made this finding, the
RAD was not obliged to refer the matter back to the RPD for a redetermination. Paragraph
111(2)(a) states that the RAD may make the referral described in
paragraph 111(1)(c), if it is of the opinion that the RPD’s decision was wrong
in fact, in mixed law and fact, or in law. This makes it clear that the RAD
retains discretion to take one of the actions described in paragraphs 111(1)(a)
and (b), rather than taking the action described in paragraph 111(1)(c), even
where it finds that the RPD made one of the types of errors mentioned in
paragraph 111(2)(a).
[33]
Based on the findings that the RAD made with
respect to Mr. Liao’s insufficient knowledge of the concepts of “righteous thoughts” and the “attachments,”
it was reasonably open to the RAD to refrain from referring the matter back to
the RPD, notwithstanding the factual error that it had identified. This is
particularly so given some of the other findings or observations that it made,
including with respect to his failure to correctly identify the purpose of “exercise two.”
[34]
Turning to the alleged errors of law, Mr. Liao
asserts that the RAD found that the RPD had made two such errors. These related
to the manner which the RPD assessed (i) the genuineness of his adherence to
Falun Gong, and (ii) the summons that he alleges was issued by the PSB.
[35]
With respect to the genuineness of his adherence
to Falun Gong, the RAD stated that the lack of knowledge of some aspects of
Falun Gong theory was not, in itself, a sufficient basis for making a judgment
as to the genuineness of Mr. Liao’s claims in this regard. The RAD added that
it is necessary to consider the totality of the evidence. It then proceeded to
conclude that Mr. Liao had not led any evidence with respect to the large
body of concepts and practices of Falun Gong, and that there was therefore insufficient
evidence to find that he is a genuine Falun Gong practitioner.
[36]
Having regard to the totality of the evidence
that was before the RAD, I am satisfied that it was reasonably open to it to make
this determination, and to confirm the RPD’s conclusion on this point. It may well
be an error to conclude that someone is not a genuine practitioner of Falun
Gong, based on that person’s lack of some aspects of Falun Gong. However, the
RAD identified shortcomings in respect of Mr. Liao’s knowledge of each of the
three aspects of Falun Gong theory that he was asked about. In addition, it
noted that Mr. Liao’s counsel did not lead evidence or ask questions about any other
concepts and practices in Falun Gong. Based on this evidentiary record as a
whole, it was not unreasonable for the RAD to confirm the RPD’s conclusion that
there was insufficient evidence to find that he is a genuine Falun Gong
practitioner, without sending the matter back to the RPD for redetermination.
[37]
Regarding the summons that Mr. Liao provided
to corroborate that the PSB is looking for him, the RAD found that the RPD had erred
by finding that it is fraudulent simply because (i) it had already been made
several negative credibility findings against Mr. Liao, and (ii) fraudulent
documents are widely available in China. The RAD stated that the RPD was required
to assess the document on its own, which it had failed to do. The RAD therefore
proceeded to conduct its own assessment of the alleged summons, and to ultimately
reach the same conclusion as the RPD.
[38]
Mr. Liao submits that sending the matter back
for redetermination would have allowed for further questioning by the RPD, to
test the issue of the genuineness of the document. In any event, he submits
that the RAD could not make a decision regarding the summons without hearing
evidence from him. In support of this latter submission, he notes that the RAD
made an error when it stated that the document was issued on March 23, 2016,
rather than on March 22, 2016, the date upon which he stated the document had
been given to his parents. This error was acknowledged by the Respondent.
[39]
As I have previously noted, the RAD is not
obliged to return a matter to the RPD where it concludes that the RPD has erred
in fact, law, or mixed fact and law. This is so even with respect to errors
that the RPD may have made in assessing credibility, including the genuineness
of documents. In each case, “the RAD ought to determine
whether the RPD truly benefited from an advantageous position, and, if so,
whether the RAD can nevertheless make a final decision in respect of the
refugee claim” (Canada (Citizenship and Immigration) v Huruglica,
2016 FCA 93, at para 70 [“Huruglica”]. If the weight given to
testimony or a document is not essential to determining whether the RPD’s
decision should be confirmed or set aside, the RAD may make its own decision,
without referring the matter back to the RPD (Huruglica, above, at para
73).
[40]
In my view, the weight to be given to the
alleged summons was not essential to enabling the RAD to make a conclusion with
respect to Mr. Liao’s refugee claim. On the contrary, there was more than a
sufficient record available to the RAD to permit it to confirm or overturn the
adverse credibility findings that the RPD had made in relation to Mr. Liao, and
to then make a decision with respect to his refugee claim. The RAD’s
confirmation of those findings and the rejection of Mr. Liao’s refugee claim fell
well “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law” (Dunsmuir,
above, at para 47).
[41]
As is often the case with documents, the RAD was
able to assess the genuineness of the alleged summons, based on its review of the
document itself. Among other things, the RAD was able to determine from the
face of the document that it was not a chuanpiao (ordinary summons), as
had been alleged by Mr. Liao. Rather, it was an arrest summons which the RAD
stated is normally issued if a person fails to respond to a chuanpiao.
Moreover, the document referred to the authority of Criminal Code 50 of the
Criminal Law of the People’s Republic of China. However, the RAD noted that
article 50 does not concern the issuance of a summons or an arrest summons.
Rather, it concerns the possibility of a reduced sentence for a person who has
been sentenced to death. In light of those findings, the error made by the RAD
with respect to the date of the alleged summons was immaterial to the RAD’s
overall determination that the document was fraudulent.
[42]
Notwithstanding the foregoing, I acknowledge
that the RAD did err by raising an issue with respect to the genuineness of the
summons, and then not providing Mr. Liao an opportunity to address that issue.
[43]
Where the RAD raises an issue that has not been
raised by any of the parties to the proceeding, and then proceeds to conduct an
assessment of that issue that goes meaningfully beyond that which was conducted
by the RPD (Dahal v Canada (Minister of Citizenship and Immigration),
2017 FC 1102, at paras 34-35), the RAD should provide the parties with an
opportunity to address the issue (Ching v. Canada (Citizenship and
Immigration), 2015 FC 725, at para 71).
[44]
However, on the particular facts of this case,
the RAD’s failure to provide Mr. Liao with such an opportunity did not
constitute a material error (Mobil Oil Canada Ltd. v. Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202, at
228-229; Canada (Attorney General) v. McBain, 2017 FCA 204,
at paras 9-10; Etienne v. Canada (Public Safety and
Emergency Preparedness), 2014 FC 1128, at para 24).
This is because it is evident from the findings that the RAD made regarding the
alleged summons that it is not what he claims it is, notwithstanding the minor
error made by the RAD with respect to the date of the document. Moreover, the
adverse determination that was made concerning the genuineness of the alleged
summons was just one of several adverse determinations that were made with
respect to Mr. Liao’s credibility, a number of which Mr. Liao did not challenge
on appeal. Stated differently, there was a substantial basis on the record to
support the RAD’s confirmation of the RPD’s determination, on credibility
grounds, that Mr. Liao is neither a Convention refugee nor a person in need of
protection.
VII.
Conclusion
[45]
For the reasons set forth above, this
application is dismissed.
[46]
At the conclusion of the hearing of this
application, counsel to the parties stated that there was no serious question
of general importance for certification under paragraph 74(d) of the IRPA. I
agree.
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