Docket: IMM-5988-11
Citation: 2012 FC 609
Ottawa, Ontario, May 18,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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KUAN JING
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Kuan Jing, seeks judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
August 15, 2011. The Board found that he was not a Convention refugee or
person in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27.
[2]
For
the following reasons, his application is dismissed.
I. Facts
[3]
The
Applicant is from Shenyang City, Liaoning Province in the People’s
Republic of China (China). He filed
a refugee claim in Canada alleging that the Public Security Bureau (PSB)
is looking for him because he attended an underground Christian church.
II. Decision
Under Review
[4]
The
Board found the Applicant had not provided sufficient credible or trustworthy
evidence to demonstrate that he was a member of an underground church in China. This was
based on inconsistencies in his testimony as to who broached the subject of
attending church as well as the omissions of his sister’s suicide as a reason
for his decision to attend and any reference to punishment he would receive for
his involvement.
[5]
Turning
to the Applicant’s claim of being a wanted man in China, the Board
found it unreasonable that he would put himself and family at risk by having
his father mail relevant documents on two occasions. Chinese government
authorities monitor communications. The Board also attributed little weight to
the summons provided by the Applicant, given the availability of fraudulent
documents in China and that the allegation of a raid on a church in Liaoning Province in 2009
was not supported by documentary evidence.
[6]
The
Board also questioned the Applicant’s motivation for attending a church while
in Canada. There was
no “evidence of a conversion-type experience between the time he arrived in Canada and the time
he attended church.” It considered documents related to his participation in
church activities, but found they did not address his motivation and concluded
any knowledge of Christianity was acquired to bolster his claim.
[7]
As
an alternative finding, the Board addressed whether the Applicant could return
to Liaoning Province and
practice his faith freely and openly. Documentary evidence showed that the
treatment of underground church members depends on local authorities. As a
regular church member, the Applicant’s participation in these activities was
modest. The Board ultimately determined that he could return to worship in Liaoning Province.
III. Issues
[8]
The
Applicant asks this Court to address several issues with the Board’s decision
as to:
(a) its
assessment of his credibility;
(b) the
sur place analysis; and
(c) consideration
of documentary evidence regarding the situation in Liaoning Province.
IV. Standard of Review
[9]
Questions
of fact, discretion and policy as well as questions where the legal issues
cannot be easily separated from the factual issues generally attract a standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 51). In particular, findings of fact and credibility
are reviewed based on reasonableness (see Aguirre v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at paras
13-14).
[10]
Employing
this standard, the Court should only interfere where the decision lacks
justification, transparency and intelligibility or falls outside the range of
possible, acceptable outcomes (Dunsmuir, above at para 47).
V. Analysis
A. Credibility
Assessment
[11]
The
Applicant asserts that the Board relied on technical omissions in determining
that he was not a practicing Christian in China based on the reasoning in Li
v Canada (Minister of Citizenship and Immigration), 2006 FC 868, [2008] FCJ
no 1104 at paras 29-31).
[12]
I
do not see how that principle applies in this case as the Board clearly
identified several issues with the Applicant’s story that, taken together, were
relevant to a determination of his claim.
[13]
The
Applicant was unclear in his testimony when describing how he was introduced to
the church. He suggested that a friend thought he could pray for his sister’s
soul but had omitted any reference to her suicide and Christianity assisting
him to deal with that situation. His Personal Information Form (PIF) failed to
mention any reassurances that he would not face serious consequences for his
church attendance.
[14]
Given
that these omissions were directly related to his decision to participate in
church activities as the basis of his claim, it was reasonable for the Board to
place emphasis on them. The Board is permitted to draw negative inferences
from the omission of significant facts (see for example Sanchez v Canada
(Minister of Citizenship and Immigration), [2000] FCJ no 536, 98 ACWS
(3d) 1265 at para 6 (CA); Basseghi v Canada (Minister of Citizenship and
Immigration), [1994] FCJ no 1867, 52 ACWS (3d) 165 at para 33; Kaleja v
Canada (Minister of Citizenship and Immigration), 2011 FC 668, [2011] FCJ
no 840 at para 18).
[15]
The
Applicant’s insistence that the Board engaged in speculation when finding it
unreasonable for his father to send documents is similarly not persuasive. It
is well established that the Board is entitled to base its credibility
findings on common sense and rationality (see Shahamati v Canada (Minister of
Employment and Immigration), [1994] FCJ no 415 (CA); Singh v Canada (Minister of
Citizenship and Immigration), 2007 FC 62, [2007] FCJ no 97 at para 1).
In this case, the conclusion was also reasonably supported by documentary
evidence.
[16]
Justice
André Scott recently found in Chen v Canada (Minister of Citizenship and
Immigration), 2012 FC 95, [2012] FCJ no 101 at para 38 that it was
reasonable for a panel of the Board to conclude “that receiving mail from China under her
own name undermined the Applicant’s allegations that she was wanted by the
Chinese authority.”
[17]
Contrary
to the Applicant’s submissions, I consider the Board’s decision to accord
little weight to the summons provided reasonable in the circumstances. The
conclusion was based both on the availability of fraudulent documents in China and lack of
documentation of church raids in the region at issue.
[18]
In
light of the credibility concerns, this conclusion did not violate the
presumption of truth in Maldonado v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302 (CA) as the Applicant
suggests. Rather, it is reflective of the Board’s role in weighing the
evidence (see confirmation of this principle in for example Brar v Canada (Minister of
Employment and Immigration), [1986] FCJ no 346 (CA)).
[19]
More
specifically, the Board can prefer its assessment of the documentary evidence
to the Applicant’s evidence as it did in this case (see for example Lin v
Canada (Minister of Citizenship and Immigration), 2010 FC 108; [2010] FCJ
no 124 at paras 20, 25; Aleshkina v Canada (Minister of Citizenship and
Immigration), 2002 FCT 589, [2002] FCJ no 784 at para 17; Zhou v Canada
(Minister of Employment and Immigration), [1994] FCJ no 1087 (CA)).
[20]
The
Board’s negative credibility assessment as to the Applicant’s participation in
an underground church and being wanted by the PSB was based on several concerns
associated with the evidence as presented. The findings were made in “clear
and unmistakeable terms” (Hilo v Canada (Minister of Employment and
Immigration), [1991] FCJ no 228, 15 Imm LR (2d) 199) and fall within the
range of acceptable outcomes. The Applicant’s dissatisfaction with the Board’s
conclusions and weight assigned to various pieces of evidence is not a basis
for the Court’s intervention.
B. Sur
Place Analysis
[21]
For
similar reasons, I cannot accept the Applicant’s claims that the Board failed
to conduct an independent assessment of his sur place claim to be a
practicing Christian in Canada.
[22]
The
Board specifically addressed the Applicant’s evidence of his attendance at
church shortly after his arrival in Canada, including the letter
provided from his pastor. It nonetheless concluded that this evidence referred
neither to a conversion-type experience in Canada nor his
motivation for participating in church activities. The Board simply did not
assign the Applicant’s preferred degree of weight to this evidence. It does
not follow that the conclusions reached lack justification, transparency or
intelligibility.
[23]
Indeed,
as the Respondent contends, it was reasonable for the Board to doubt the
veracity of the Applicant’s position in light of its previous credibility
findings. Justice Donald Rennie upheld similar reasoning by the Board in Ma
v Canada (Minister of
Citizenship and Immigration), 2011 FC 417, [2011] FCJ no 530
at paras 37-38). By contrast, the finding in Huang v Canada (Minister of
Citizenship and Immigration), 2008 FC 132, [2008] FCJ no 164 at para 8,
as raised by the Applicant, does not apply in this instance as the Board
proceeded to consider whether he would face persecution if returned to China.
C. Documentary
Evidence and Situation in Liaoning Province
[24]
I
also find that the Board conducted a detailed assessment of the documentary
evidence. Weighing all of this evidence, it stressed that the treatment of
underground church members varied according to local conditions. With respect
to Liaoning Province, there was “little evidence to persuade the panel that
officials are interested in persecuting underground Protestant Christians as
the claimant alleged” after 2007.
[25]
The
Applicant has not provided a legitimate basis for challenging this finding. The
size of the church was one of several factors considered by the Board in its
assessment. The finding in Liang v Canada (Minister of Citizenship and
Immigration), 2011 FC 65, [2011] FCJ no 74 based on its own unique
documentary record and related to a different region of China is not applicable
to the instant case.
[26]
Although
the Applicant takes issue with the conclusions reached on the situation in Liaoning, there is
nothing to suggest they are unreasonable. The Board is not required to refer
to every piece of documentary evidence (Hassan v Canada (Minister of
Employment and Immigration), [1992] FCJ no 946, 147 NR 317 (CA)). The
consideration of all evidence is presumed unless the contrary is shown (Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ no 598
(CA)).
VI. Conclusion
[27]
The
Applicant has not demonstrated the Board’s findings were unreasonable in the
circumstances. The application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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