Docket: IMM-5059-18
Citation: 2019 FC 823
Ottawa, Ontario, June 17, 2019
PRESENT: Madam Justice Strickland
| BETWEEN:
|
| CAIYI LUO
ZHENFENG LUO
|
| Applicants
|
| And
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a September 19, 2018 decision of the Refugee Protection Division [RPD], denying the Applicants’ refugee claims, finding that they are not Convention refugees or persons in need of protection, pursuant to ss 96 and 97, respectively, of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
Background
[2]
The Applicants, Caiyi Luo [Applicant] and her son, Zhenfeng Luo [Minor Applicant], are citizens of China. On October 9, 2012, the Applicant made a refugee claim on the basis of a fear of persecution for reason of political opinion. Specifically, she alleges that she was wanted by the Public Security Bureau [PSB] for protesting against the expropriation of her land, as she describes in her Basis of Claim [BOC] narrative, which narrative was adopted by her son. In an addendum to that narrative she adds that she fears that, if she returns to China, she will be arrested by the PSB because of the PSB’s treatment of her family and that her son could be treated badly by the authorities because of her dealings with the government. She states that she believes that her household register is no longer valid and because of this, her son will not be allowed to go to school or get any government assistance. Her land has been confiscated by the government and she fears punishment by the government.
[3]
Through a smuggler, arrangements were made for her and her son to leave China. On July 24, 2012, they arrived in Canada and subsequently made their claim for refugee protection. The Applicant claims that after she arrived in Canada, she learned that the PSB had gone back to her home twice and threatened her husband, seeking her whereabouts.
Decision Under Review
[4]
The RPD stated that the determinative issues were credibility, identity and persecution versus prosecution. It found that the lack of documentation to substantiate important aspects of the Applicant’s allegations caused it to draw negative inferences in regards to the Applicant’s overall credibility (Mercado v Canada (Citizenship and Immigration), 2010 FC 289). Further, it noted that the Applicant’s testimony did not have to be accepted simply because it was not contradicted at the hearing. The RPD is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole (Alizadeh v Canada (Minister of Employment and Immigration) (1993), 38 ACWS (3d) 361 [1993] FCJ No 11 (QL) (FCA)).
[5]
The RPD did not accept important aspects of the Applicant’s claim including that her son had been dismissed from school, that her husband was continuously being threatened by the PSB, that the PSB had visited her home, that two other villagers had been arrested, and that the Applicant’s property was worth more than the compensation she was being offered for it, or that it even existed. In addition, the RPD found that it was reasonable to conclude that a summons would have been issued against the Applicant because, in her BOC form, she states that the PSB went to her home to arrest her.
[6]
The RPD found, on a balance of probabilities, and based on its negative credibility findings, that the Applicant’s allegation that she was involved in altercations with the authorities, arising from the expropriation of her property was not credible. The RPD further found that the Applicant had not provided sufficient credible and reliable evidence to establish that she was being pursued by the PSB.
[7]
In the alternative, even if the Applicant’s allegation of PSB pursuit was credible, the RPD found that the Applicant would face prosecution based on the fact that she had broken a law of generalized application by her actions against government officials in carrying out their duty, and she was not facing persecution.
[8]
In summarizing its findings, the RPD concluded that the Applicant had not provided, on a balance of probabilities, sufficient credible evidence to support her allegations:
- No summons had been issued;
- The Applicant had not established her allegation that fellow villagers were detained, even if arrested;
- There was insufficient credible evidence upon which to make a finding that the PSB were pursing the Applicant;
- There was insufficient credible evidence upon which to make a finding that the Minor Applicant was, in fact, dismissed from his school; and
- There was insufficient credible evidence with respect to the property concerned.
Issues and Standard of Review
[9]
The sole issue arising in this application for judicial review is whether the RPD’s decision was reasonable.
[10]
The RPD’s findings of fact and its application of the law to those facts in determining whether an applicant is a Convention refugee or person in need of protection, including its assessment of an applicant’s credibility, are reviewable on a reasonableness standard (Gaprindashvili v Canada (Citizenship and Immigration), 2019 FC 583 at para 20). That standard is concerned with justification, transparency and intelligibility within the decision-making process as well as with whether the 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).
[11]
Credibility determinations lie within the heartland of the RPD’s discretion, and, as such, are entitled to considerable deference (Siad v Canada (Secretary of State) (1996), [1997] 1 FC 608 (FCA); Guven v Canada (Citizenship and Immigration), 2018 FC 38 at paras 17-19 [Guven]).
Parties’ Positions
[12]
In her written submissions, the Applicant challenges the RPD’s finding that she would face prosecution, rather than persecution. However, when appearing before me, counsel for the Respondent advised that the Minister was taking no position on this issue. Accordingly, the issue was not argued at the hearing.
[13]
As to the reasonableness of the RPD’s decision, the Applicants submit that the RPD unreasonably assessed their credibility. They assert that the RPD erred by requiring corroborative evidence and in drawing negative credibility inferences from the alleged lack of documentation substantiating portions of the Applicants’ claim (Guven; Ismaili v Canada (Citizenship and Immigration), 2014 FC 84 [Ismaili]; Galamb v Canada (Citizenship and Immigration), 2018 FC 135).
[14]
Further, they assert that the RPD made factual findings without regard for the evidence. Specifically, the RPD erred in finding that it was implausible that the PSB searched for the Applicant and wanted to arrest her without leaving a summons. The Applicant submits that the evidence in the National Documentation Package [NDP] demonstrates that it was unreasonable for the RPD to find the behaviour of the police to be implausible.
[15]
The Applicants submit that the RPD’s remaining credibility findings concerning delay in claiming refugee protection, that the Applicant’s husband was not threatened by the PSB and that the PSB did not visit her home are unreasonable because the RPD failed to put them to her at the hearing, drew negative credibility inferences from the Applicant’s inability to explain third-party behaviour, and failed to provide reasons for its credibility conclusions in clear and unmistakable terms. The RPD erred in relying on these flawed credibility findings to disbelieve the entirety of the Applicant’s evidence in support of her claim, which was supported by the country condition information that the RPD did not address.
[16]
For its part, the Respondent submits that reading the decision as a whole, it was justified, transparent, and intelligible, and fell within the range of reasonable outcomes. The Applicants failed to provide any documentation to substantiate the material allegations of their claims. These findings were based on the totality of the evidence and were reasonably open to the RPD to make. Further, the RPD’s findings are entitled to significant deference by the Court and should not be disturbed unless they are made in a perverse or capricious manner. The Applicants challenge these findings, but have not established that the RPD erred. Contrary to the Applicants’ allegations, it was reasonably open to the RPD to require that they provide some corroboration to support their allegations.
Analysis
[17]
I find it necessary to make a few preliminary points. First, as the Respondent submitted in oral argument, the RPD’s reasons should not be read microscopically (see, for example, Dag v Canada (Citizenship and Immigration), 2017 FC 375 at para 20). In this matter, the Applicant dissects the RPD’s short decision and microscopically examines it, basing her challenge on that approach. In my view, the RPD’s reasons are straightforward and can be assessed in the same manner.
[18]
The second point concerns credibility and corroborative evidence. This is an issue that has been addressed many times by this Court, including my decision in Ismaili (at paras 31-55), Justice Kane’s decision in Guven (at paras 35-38), and the jurisprudence cited in those decisions. In short, it is beyond dispute that the onus is always on the claimant to prove his or her claim (Ismaili at para 32; Samseen v Canada (Citizenship and Immigration), 2006 FC 542). This is also reflected in Rule 11 of the Refugee Protection Division Rules, SOR/2112-256, which states that claimants must provide acceptable documents establishing their identity and other elements of their claims and, if they do not, they must explain why the documents were not provided and what steps they took to obtain them.
[19]
However, when a refugee claimant swears to the truth of certain allegations, there is a presumption that those allegations are true unless there is a reason to doubt their truthfulness (Maldonado v Canada (Employment and Immigration), [1980] 2 FC 302 (FCA) [Maldonado]; also see He v Canada (Citizenship and Immigration), 2019 FC 2 at paras 22-25 [He]). This is because, for example, a refugee may have been forced to flee their home on little or no notice, taking little or nothing with them, and such circumstances of flight render it impossible or unreasonable to expect them to provide supporting documentary evidence. Thus, there is no general requirement that a claimant provide corroborating documents.
[20]
Accordingly, it has been held that it is an error to make an adverse credibility finding solely on the basis of the absence of corroborative evidence (He at paras 22, 24; Guven at para 37; and Ismaili at para 53). However, where there is a valid reason to doubt the claimant’s credibility or where the claimant’s story is implausible, the lack of documentary evidence can be a valid consideration for the purposes of assessing credibility if the applicant is unable to provide a reasonable explanation for the lack of corroborative evidence (Guven at para 38; Ismaili at para 36). The RPD is entitled to take into account a claimant’s lack of effort to obtain corroborative evidence to establish the elements of their claim and to draw a negative inference from this (Ismaili at para 33).
[21]
Other jurisprudence has found that there is an exception to, or distinction from, the Maldonado principle of truthfulness in that a decision-maker may draw an adverse inference regarding a claimant’s testimony if he or she fails to produce evidence that the decision-maker reasonably expects should be available in the claimant’s circumstances, and the claimant does not provide a reasonable explanation for failing to produce that evidence (Murugesu v Canada (Citizenship and Immigration), 2016 FC 819 at para 30; Radics v Canada (Citizenship and Immigration), 2014 FC 110 at paras 30-32 [Radics]; also see Tellez Picon v Canada (Citizenship and Immigration), 2010 FC 129 at para 12; Ryan v Canada (Citizenship and Immigration), 2012 FC 816 at para 19; Rojas v Canada (Citizenship and Immigration), 2011 FC 849 at para 6 [Rojas]; Ding v Canada (Citizenship and Immigration), 2014 FC 820 at para 15; Lakatos v Canada (Citizenship and Immigration), 2014 FC 785 at para 26; Mowloughi v Canada (Citizenship and Immigration), 2019 FC 270 at para 65; Delosevic v Canada (Citizenship and Immigration), 2012 FC 831 at para 14; Jin v Canada (Public Safety and Emergency Preparedness), 2018 FC 359 at para 28). That is, a failure to provide corroborating documentation is only a proper consideration for the decision-maker, in this case the RPD, where there are valid reasons to doubt a claimant’s credibility, or, where the decision-maker does not accept the claimant’s explanation for failing to produce documentary evidence when it would be reasonably expected to be available (Radics at para 30). In that circumstance, “precision was required as to the nature of the documentation expected and a finding made to that effect”
(Rojas at para 6).
[22]
Whether corroborative evidence can reasonably be demanded depends upon the facts of each case (Lopera v Canada (Citizenship and Immigration), 2011 FC 653 at para 31).
[23]
As to credibility findings based on implausibility, the RPD can make adverse findings of credibility based on the implausibility of an applicant’s story provided that the inferences drawn can reasonably be said to exist. However, such findings should only be made in the clearest of cases such as where the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the applicant (Valtchev v Canada (Citizenship and Immigration), 2001 FCT 776 at para 7; Lin v Canada (Citizenship and Immigration), 2014 FC 683 at para 19).
[24]
Having set out these general principles, I will now consider them in the context of the RPD’s decision, which turned on its finding that the Applicant had not provided sufficient credible evidence to support her claim.
Dismissal from school
[25]
The RPD stated that the Applicant testified that that her son had been dismissed from school at the end of June 2012 and this had led to her flight to Canada. When asked if she had any documentation supporting the dismissal, she testified that she did not but that her son had been told that he could not return to school. Her son’s testimony was that he had in fact received a notice of dismissal, which he had given to his father. The RPD noted that counsel for the Applicants had submitted that the Applicant might not necessarily be aware of the dismissal letter. The RPD found that this was possible, but it did not accept the submission. This was because the Applicant was represented by competent counsel who would have asked about the existence of any documentation. In the absence of corroborative evidence, the son’s young age when the dismissal allegedly occurred (age 11) and his lack of knowledge for the reasons for his dismissal, the RPD did not accept that the dismissal had occurred.
[26]
I note that the transcript of the hearing indicates that the Applicant testified that because her son had been dismissed from school she had brought him to Canada. When asked about the dismissal notice, she stated that there was no letter. When asked, in the absence of a letter, how she knew that her son had been dismissed from school, she testified that his teacher told him that his mother was being charged by the police so not to come back to school. The Minor Applicant was asked if he remembered why he was dismissed from school. He testified that the teacher took him to the principal’s office and gave him a letter that he gave to his father. The RPD pointed out to him that his mother had said that there was no letter. The Minor Applicant stated that maybe she was not aware of the letter, which, in my view, was mere speculation on the boy’s part. When asked by his counsel if he remembered why he was told he could not go back to school, the Minor Applicant replied that he did not know.
[27]
It was reasonable in these circumstances for the RPD to expect the Applicant to have submitted a copy of the dismissal letter and to draw an adverse inference from her failure to do so. The Applicant placed great emphasis on her son’s dismissal from school in her claim for refugee protection. The dismissal occurred before she left China and she claims that, as a result, she took her son with her when she left China. As pointed out by the RPD, she was represented by counsel who would have advised her to provide any and all supporting documentation. A dismissal letter would have been significant evidence supporting her claim. Further, her husband remains in China and, had she inquired, he could have provided the letter that the Minor Applicant claims exists – or confirmed the Applicant’s evidence that it did not exist. The conflicting evidence as to the existence of a dismissal letter, combined with the fact that the Minor Applicant’s evidence failed to support the Applicant’s testimony that her son’s teacher told him not to come back to school because his mother was being charged by the police served to rebut the presumption of truthfulness. It is also reasonable to expect that if an eleven-year-old child was told by his teacher that he was no longer able to attend school because his mother was being charged by the police, he would recall that circumstance.
[28]
I do not agree with the Applicant’s suggestion that the RPD made an unreasonable plausibility finding as to the Applicant’s lack of knowledge of the existence of the dismissal letter. The Applicant did not assert that she was not aware of a letter; she clearly stated that one did not exist and that she knew about the dismissal because of what the teacher told her son.
Detention of villagers
[29]
In her BOC narrative the Applicant states that she was one of five individuals chosen as village representatives. The RPD noted that the Applicant had testified that two other village representatives had been arrested. She had allegedly heard of this through her mother-in-law who had informed her husband. However, she had no further information such as the length of detention, any proof of arrests or the whereabouts of those villagers. Given the vagueness of this evidence, the RPD assigned little weight to it. The RPD also found that the Applicant had not provided, on a balance of probabilities, sufficient credible evidence to support her allegation that her fellow villagers were detained, even if they were arrested.
[30]
I would first note that the RPD did not find this evidence not to be credible solely on the basis of an absence of documentary evidence; it found the evidence to be vague. Moreover, and contrary to the Applicant’s submissions, the onus was on the Applicant to provide evidence in support of this allegation or to explain why she was unable to do so. Only then was the RPD obliged to consider whether the Applicant’s explanation as to why she could not adduce such evidence was reasonable. The Applicant points to no evidence in that regard which was overlooked by the RPD nor does she offer an explanation as to why no evidence was available. I also do not agree with the Applicant’s submission that the RPD’s failure to consider whether she would be able to adduce such evidence – in the absence of an explanation by the Applicant – was an error and evidenced its zeal to discredit the Applicant at every opportunity.
[31]
As to the RPD’s finding that the Applicant’s evidence was vague, the Applicant submits that a lack of knowledge about the length of the arrests does not undermine that the arrests occurred, given that the Applicant learned of the information though her husband and his mother. Be that as it may, the allegedly arrested villagers were her neighbours, and the Applicant failed to explain why her husband and mother-in-law would not have informed her, over the intervening six years, if the villagers had returned to their homes or of other developments. I find no error in the RPD’s finding that this evidence was vague and, accordingly, its affording it little weight.
Property in China
[32]
The RPD’s reasons note the Applicant’s testimony that she was being offered unfair compensation for her property but that she had provided no documentation such as photos, the compensation offered, or an appraisal. The lack of any information in that regard led it to conclude that there was no evidentiary basis for the Applicant’s claim that her property was worth more than the compensation offered, or that it even existed.
[33]
I note that in her BOC narrative the Applicant states that at the end of February 2012 she received a notice of land acquisition from the village committee. This advised that 500mu of land would be expropriated to build a factory. The Applicant states that the compensation articles listed in the notice were very harsh and unfair and would be insufficient to support her family’s daily life. Hers and about 15 other households were affected. The Applicant also states that she and the other village representatives drafted and signed a petition concerning the unfair treatment they received.
[34]
Given that the Applicant offered no explanation as to why she did not provide the notice of expropriation, a copy of the petition or in fact any documentation to support this central aspect of her claim, it was open to the RPD to conclude that she had provided insufficient credible evidence with respect to the property. Although not recognized as such by the RPD in its reasons, this is a very significant finding as the Applicant’s entire claim is premised on Applicant’s assertion of the expropriation and the events that arose from it.
Treatment of family members
[35]
The RPD stated that the Applicant testified that, since she left China, her husband was continuously being threatened by the PSB. It stated that, having asked the Applicant to be more specific, it concluded that the PSB was allegedly inquiring as to the whereabouts of the Applicant, but was not threatening her husband.
[36]
The Applicant submits that the RPD erred by simply drawing the conclusion that the PSB was allegedly inquiring as to the whereabouts of the Applicant, but was not threatening him, without stating why the Applicant’s evidence was not believed. Upon review of the transcript, I note that the Applicant’s testimony was that her husband had not accompanied her to Canada because he was not being pursued by the authorities and also that the PSB “threatened her husband to disclose her whereabouts.”
The RPD revisited this point and asked the Applicant if it was correct that she said her husband did not come to Canada because he was not being threatened, to which she agreed. The RPD also noted that later in her testimony she had said that her husband was being threatened but nothing happened, with which she also agreed. In short, her evidence was not particularly clear. However, it would not seem to reasonably support the RPD’s conclusion that the PSB was allegedly inquiring as to the whereabouts of the Applicant, but were not threatening her husband. Nor, however, does it suggest that her husband was at risk because of her actions.
PSB visits
[37]
The RPD stated that when asked how often the PSB had been to her husband’s residence, the Applicant testified to four occasions prior to her departure and twice after her arrival in Canada in 2012. Further, that the PSB had not returned since September 2012, and that she believed that this was because they were aware that she had left China. However, she could not explain how this information would have come to the attention of the PSB, particularly as she left using a fraudulent passport. The RPD found that this was speculation on the part of the Applicant. It concluded that, on a balance of probabilities, the PSB had not visited her home, referencing its reasons concerning the absence of a summons and the arrest of other villagers.
[38]
Upon review of the transcript, the context of this exchange is that the RPD was questioning the Applicant as to the number of times the PSB had visited her home and confirmed with her that they had not left a summons. When asked why she thought she would be at risk if she returned to China, given that the PSB had not been to her home in over six years and had never issued a summons seeking to question or arrest her, she stated that it was because the PSB had found out that she had left the country that they no longer went to her house. When asked how she knew that they had found this out, she stated that it was that because they had visited her house several times and had not seen her. The RPD then stated that she was just speculating. It noted that she had travelled on a fake, not genuine passport, and again asked how the PSB knew that she had left. She replied that she did not know about this.
[39]
The Applicant submits that it was unreasonable for the RPD to draw a negative credibility inference because of her inability to explain third-party behaviour (Lin v Canada (Citizenship and Immigration), 2014 FC 683 at para 21). This may be so, but I am not convinced that the RPD did so in this case. The salient point would appear to be that, for whatever reason, the PSB have not visited her home in China since 2012. The RPD found that there was insufficient credible evidence to find that the PSB are pursuing the Applicant. And, while the Applicant submits that a finding that she speculated on why the PSB stopped coming to her home does not rationally lead to an inference that the PSB never visited her home, the RPD did not make that finding.
Summons
[40]
The RPD noted that the country conditions documents indicate that a summons is often left with or shown to family members when the police want a person to come to their headquarters. A summons is also the documentary basis for the subsequent issue of an arrest warrant if there is no response to the summons. While that policy is not always implemented, it was reasonable that one would have been issued in this instance as, in her BOC, the Applicant stated that the PSB went to her home to arrest her. This was noteworthy when considering that two villagers had already allegedly been arrested and that the Applicant claimed she left China because of her son’s dismissal from school (because the police were going to charge her), which it found not to be credible.
[41]
The Applicant submits that the RPD erred in finding that it was implausible that the PSB searched for the Applicant, and wanted to arrest her, but did not leave a summons. The evidence in the NDP shows that it was unreasonable for the RPD to find the police’s behaviour implausible. This behaviour was not outside the realm of what could reasonably be expected since the documentary evidence demonstrates that the events could have taken place as the Applicant described based on the lack of adherence to procedure and corruption in the police force. Thus, the RPD made plausibility findings about the behaviour of the PSB without regard for the evidence. Further, the RPD erred in fact in stating that the evidence indicated a summons is often left with or shown to family members. The RPD erroneously relied on the legislation indicating how the PSB should behave as opposed to the evidence that provides insight into how the PSB actually behaves.
[42]
The RPD referenced item 9.3 of the NDP, “China: Implementation of the Criminals Procedure Law of the People’s Republic of China in regard to arrest warrants and summonses, particularly Guangdong, Fujian and Laioning”
but explicitly noted that a summons is not always implemented. This is reflective of the content of that article, and I am not persuaded that the RPD misapprehended the evidence or reached its conclusion without regard for the evidence. The Applicants rely on the statement in Wang v Canada (Citizenship and Immigration), 2018 FC 1124, that “This Court has cautioned decision-makers against “drawing adverse credibility inferences on the basis of expectations about what Chinese authorities are likely to do, or an assumption that law enforcement practices will be consistently uniform””
(at para 39, also see paras 42, 43). Here, however, the RPD also considered the lack of a summons in the context of the Applicant’s vague evidence as to the arrest of the other villagers and the allegations concerning her son’s dismissal from school, which the RPD rejected, and the Applicant’s evidence of routine visits by the PSB to her home in China. This Court has previously found that negative credibility findings based on the absence of an arrest warrant may be reasonable when reviewed in the overall context of an applicant’s evidence when, as here, the RPD has acknowledged the mixed documented evidence (Cao v Canada (Citizenship and Immigration), 2015 FC 790 at para 4; Ni v Canada (Citizenship and Immigration), 2018 FC 948 at paras 19-21; Huang v Canada (Citizenship and Immigration), 2017 FC 1193 at para 9). Viewed in context, this finding was open to the RPD.
Other credibility findings
[43]
The Applicant also asserts that the RPD drew other negative credibility inferences resulting in unreasonable credibility determinations, including concerns expressed about the Applicant’s delay in claiming refugee protection. In that regard, the RPD stated that while delay was not identified as an issue at the hearing, in terms of credibility, it had concerns as to the Applicant’s intentions upon entering Canada. The Applicant testified that she had no idea about the ability to make a refugee claim or the process for doing so and although upon entry into Canada she told the authorities that she was entering for a two-month vacation, she in fact intended to remain, although through what kind of status, she did not say. It is true that in this statement the RPD expresses a concern. But, contrary to the Applicant’s submissions, this does not amount to a negative credibility inference. Rather, it appears to be an orphan statement, undeveloped and unintelligible.
Conclusion
[44]
In summary, the RPD’s reasons are segmented, disjointed and lack the level of clarity and cohesion one would hope for. However, the decision ultimately rests on the RPD’s finding that the Applicant failed to provide sufficient credible evidence to support her allegations. While there are flaws in the some of the RPD’s reasoning, its assessment of credibility is to be afforded deference and, viewing its reasons and the record in whole, including the complete and unexplained absence of any corroborating evidence, the flaws are not sufficient to warrant this Court’s interference. The decision falls within the range of possible acceptable outcomes based on the facts and the law.
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