Date: 20120524
Docket: IMM-6696-11
Citation: 2012 FC 594
Ottawa, Ontario, this 24th
day of May 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
WEI ZHENG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
On
September 29, 2011, Wei Zheng (the “applicant”), a citizen of China, filed the
present application
for judicial review of the decision of Linda Hart, member of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”),
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”). The Board dismissed the applicant’s claim for
refugee protection, concluding the applicant was not a Convention refugee or a
person in need of protection under sections 96 and 97 of the Act.
[2]
The
applicant attacks the Board’s assessment of her credibility and its conclusion
as to the lack of religious persecution in the Fujian region. Such determinations are findings
of fact. Therefore, the issue raised by the present application for judicial
review is whether the Board erred, basing its decision on erroneous findings of
fact made in a perverse or capricious manner or without regard to the evidence
before it; specifically
1.
Did the Board
err in its assessment of the applicant’s credibility?
2.
Did the Board
err in finding that the applicant would not face a risk of religious
persecution in the Fujian province?
[3]
Such
determinations are to be reviewed on a standard of reasonableness (Lin v.
Minister of Citizenship and Immigration, 2009 FC 254 at para 12 [Lin];
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]; Aguebor
v. Minister of Employment and Immigration (1993), 160 N.R. 315 at para 4 [Aguebor];
Yang v. Minister of Citizenship and Immigration, 2010 FC 1274 at para 13
[Yang]; He v. Minister of Citizenship and Immigration, 2010 FC
525 at para 7 [He]; Sun v. Minister of Citizenship and Immigration,
2008 FC 1255 at para 3 [Sun]; Yao v. Minister of Citizenship and
Immigration, 2011 FC 902 at para 20 [Yao]). Thus, this Court must
determine whether the Board’s decision is justified, transparent and
intelligible, falling within the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir, above, at
para 47).
* * * * * * * *
1. Did the Board err in its assessment of
the applicant’s credibility?
[4]
The
Board had complete jurisdiction to assess the applicant’s credibility and
evaluate the plausibility of her testimony (Aguebor, above, at para 4; Gonzalez
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 805 (F.C.T.D.)
(QL) at paragraphs 28-29 [Gonzalez]). While the applicant relies on Ilyas
v. Minister of Citizenship and Immigration, 2004 FC 1270, in the present
case, the Board properly addressed the evidence and the applicant’s testimony,
basing its conclusion on inconsistencies in the applicant’s evidence and
various implausibilities. The Board did not merely consider the applicant to
lack credibility because of what it considered someone should have done in the
applicant’s situation. Rather, the Board considered the applicant’s
explanations as to why she would have willingly returned to China and the
discrepancies in her United States and Canadian asylum claims, but considered
them insufficient, as it was entitled to do (He, above, at para 12). As
stated by my colleague Madam Justice Judith Snider at paragraph 10 of her
decision in Sinan v. Minister of Citizenship and Immigration, 2004 FC 87:
.
. . Just because an applicant gives an explanation does not mean that the
explanation must be accepted by the Board. It is open to the Board to consider
the response or explanation and determine whether it was sufficient.
[5]
Significant
deference is owed to the Board’s credibility findings and a few well
established principles should be kept in mind, as stated by Justice Snider in Sun,
supra, at paragraph 5:
1. The
Board, who has heard the oral testimony, is in the best position to gauge the
credibility or plausibility of a claimant’s account.
2. A
lack of credibility finding can be based on implausibilities, contradictions,
irrationality and common sense.
3. The
Board may draw an adverse inference with respect to credibility based on
omissions of significant information from a claimant’s Personal Information
Form (PIF).
4. The
Board has discretion to decide what weight to give to the evidence.
[6]
The
Board clearly explained why it did not consider the applicant to be credible.
Firstly, it considered it implausible that someone wanted by the police would
willingly return to their country of persecution, which is reasonable.
Moreover, the Board was entitled to rely on omissions in the applicant’s claims
as a basis for its adverse finding of credibility (Gonzalez, above, at
para 39). There are significant differences between both refugee claims. The
Board’s credibility finding is therefore reasonable, being justified and
falling within the range of possible, acceptable outcomes which are defensible
in respect of the facts and the law and it is not the role of this Court to
substitute its findings for those of the Board (Dunsmuir, above).
2. Did
the Board err in finding that the applicant would not face a risk of religious
persecution in the Fujian province?
[7]
The
applicant is right in that the Board did not specifically comment on the
supposed church raid of 2009. However, in Lin, above, the Court held
that the Board’s decision was unreasonable for it did not consider the
applicant’s particular circumstances nor did it make specific findings as to
the truthfulness of her story. In the case before this Court, the Board did not
find the applicant credible and she did not provide any evidence as to the
church raids, or any outstanding warrants that were issued against her as a
result. The Board disbelieved the applicant’s entire story, but believed she
truly was Christian. Thus, Lin is of no relevance.
[8]
It
should be noted at this point that case law is of limited utility in
determining the risk of religious persecution faced by an applicant, as stated
by Justice David Near in He, above, at para 26:
Each
case is different and is composed of a unique documentary record and one should
be cautious in applying country findings from one decision of this Court to
another (see Yu [2010 FC 310] at paragraph 22).
[9]
Thus,
the approach taken by both parties in citing various cases where there was or
was not found to be a risk of religious persecution in the Fujian province is
inappropriate. At times, the Court has concluded that there is a risk of
persecution in the Fujian province and at other
times it has not: the case law is not determinative, nor can it solely be
relied on to prove a risk. Members of the Board should also be weary of basing
their assessment of country conditions on jurisprudence.
[10]
Rather,
what this Court must determine is whether the Board’s conclusion as to a lack
of religious persecution in the Fujian province is reasonable. It is. The Board
thoroughly supported its conclusion, having regard to the evidence before it,
relying specifically on the documentary evidence. It did not ignore incidents
of persecution: such incidents are mentioned, but did not occur in the region
in which the applicant would return to, persecution greatly varying across China. Moreover, it has been
recognized that the Board is allowed to conclude based on a lack of reported
arrests that there is little persecution, one example of persecution being
insufficient (see Yang, above, at para 38). Such a conclusion can also
be based on a lack of reported incidents: it is reasonable for the Board to
assume, in these circumstances, that if incidents of persecution had occurred
in the Fujian province, they would
have been documented (see Yang, above, at para 41). Furthermore, the
Board explained why it gave little weight to certain documents, much like in Yao, above, at paragraphs
26 and 27.
[11]
For
these reasons, the intervention of this Court is not warranted. The Board’s
decision and findings are reasonable: the Board provided ample explanations and
based its findings on the entirety of the evidence before it.
* * * * * * * *
[12]
Therefore,
the present application for judicial review is dismissed.
[13]
There
is no question for certification.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada determining that the applicant was not a Convention
refugee or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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