Date: 20090928
Docket: IMM-810-09
Citation: 2009 FC 973
Ottawa, Ontario, September 28,
2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
YI
FEI REN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Background
[1]
The Applicant is a citizen of the People’s
Republic of China. He claims he
is a Falun Gong practitioner and that he has a well-founded fear of persecution
should he be returned to his country of citizenship. He arrived in Canada with fraudulent documents on April
10, 2006 and presented a few days later a claim as a person in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act (the “Act”).
[2]
A hearing to adjudicate this claim was held on
December 1, 2008 and August 27, 2008 before a Panel of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the “Panel”). The claim was rejected in a decision of the Panel
dated January 14, 2009 (the “Decision”).
[3]
The Applicant submitted to this Court an
Application for leave and for judicial review of this Decision, and leave was
granted by Justice Mandamin on June 24, 2009.
[4]
A hearing on this judicial review was held
before me in Toronto on
September 22, 2009.
The Decision under Review
[5]
The Panel’s Decision was based almost
exclusively on credibility issues. In a nutshell, the Panel found the Applicant
completely lacked credibility, had lied to Canadian officials about his past,
and was trying to gain access to Canada based on a bogus Falun Gong story in order to circumvent Canadian
immigration laws and regulations.
Position of the Applicant
[6]
The Applicant has challenged virtually every
finding of fact by the Panel.
[7]
The Applicant submits that the basic and central
principle of refugee law is that when a refugee swears the truth of certain
allegations, this creates a presumption of truthfulness unless there is a valid
reason to rebut the truthfulness of the allegations. In this case the Applicant
alleges that the Panel was overzealous, hypercritical and cynical in its
assessment of the evidence and thus reached conclusions concerning the
Applicant’s credibility and the evidence that were not reasonable.
[8]
The Applicant further argues that the Panel did
not mention the documentary evidence submitted by the Applicant, specifically
fine receipts and a notice of detention in China, and ignored the documents indicating the Applicant’s active
participation in Falun Gong activities in Canada.
Position of the Respondent
[9]
The Respondent notes that the Decision rested
entirely on a negative credibility finding concerning the Applicant. Since
credibility findings are at the heart of the discretion of the Panel, this
Court should not interfere.
[10]
The Respondent further argues that the Panel did
not err by bringing to the forefront the inconsistencies, implausible claims
and contradictions in the evidence before it, and thus making a negative
inference as to the credibility of the Applicant. Though it is true that a
refugee claimant’s allegations are presumed to be true, this presumption can be
refuted based on inconsistencies and contradictions in testimony.
[11]
In regard to the documentary evidence, the
Respondent notes that it is well-established that a Panel of the Refugee
Protection Division is presumed to have taken all of the evidence into
consideration, regardless of whether it indicates having done so in its
reasons. The fact some of the documentary evidence is not mentioned in the
Board’s reasons is not fatal to its decision, nor does it indicate that it was
misconstrued or ignored. In addition, the cumulative effect of inconsistencies
and omissions may be such that the credibility of a litigant is so undermined
so as to result in a general finding of lack of credibility.
Analysis
[12]
It is trite law that factual findings of administrative tribunals must
not be disturbed on judicial review save exceptional circumstances. This Court
must not revisit the facts or weigh the evidence (Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190, at para. 51 and 53: “Where the question is
one of fact, discretion or policy, deference will usually apply
automatically.”; Canada (Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339, at para. 46: “More generally it is clear from s.
18.1(4)(d) [of the Federal Courts Act] that Parliament intended
administrative fact finding to command a high degree of deference”).
[13]
A high standard of review has consistently been held to apply to
decisions of the Refugee Protection Division concerning findings of fact or of
credibility in the context of claims under sections 96 and 97 of the Act: Aguebor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732
(F.C.A.), at para. 4; He v. Canada (Minister of Employment and Immigration),
[1994] F.C.J No. 1107 (F.C.A.); Long v. Canada (Minister of
Employment and Immigration), 2007 FC 494, at para. 16 (Shore J.); M.S.M.
v. Canada (Minister of Employment and Immigration), [2005]
F.C.J. no. 165, at para. 14 (Lemieux J.); Zheng v. Canada
(Minister of Employment and Immigration), 2007 FC 673, at para. 1 (Shore
J.); Wu v. Canada (Minister of Employment and Immigration),
2008 FC 673, at para. 6 (Harrington J.).
[14]
In this case the Applicant has failed to
convince me that the findings of the Panel as to his credibility do not fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir v. New Brunswick, supra
at para. 47; Canada (Citizenship and Immigration) v. Khosa, supra
at par. 59).
[15]
The Applicant takes issue with the finding of
the Panel that his credibility was tainted by the fact he lied to Canadian
immigration officials by not disclosing that he had resided in the United States of America from April 2001 to
January 2005, had pursued unsuccessfully a refugee claim there and had
subsequently returned to China.
The Applicant says this adverse credibility finding is not reasonable since the
Panel failed to accept his contrition about this lack of truthfulness. The
Applicant argues that he is a simple and uneducated man and that he unwisely
relied on the advice of the “snakehead” who brought him to Canada and who told him not to reveal this
information. He now asks the Canadian authorities to forgive him.
[16]
I find no merit to this argument. Refugee
determinations in Canada are
based on voluntary and truthful declarations from claimants. The Applicant
decided not to reveal key information to Canadian authorities since he believed
this would facilitate his access to Canada. His failures to declare his stay in the USA, his unsuccessful
refugee claim there and his eventual return to China in 2005 clearly affect his credibility, and it was entirely
reasonable for the Panel to draw an adverse inference from this.
[17]
The Applicant also takes issue with the Panel’s
finding that he had not provided the documentation related to his refugee claim
in the USA. The Applicant notes
that the Panel was provided with various decisions from the American
authorities concerning the withdrawal of at least part of the claim by the
Applicant, as well as documentation concerning various appeals related to this
claim, and consequently argues that the Panel thus misconstrued the evidence.
[18]
I do not accept this argument. The material
provided by the Applicant concerning his refugee claim in the USA is far from satisfactory. It is difficult
to understand how exactly this claim was treated in the USA and even what
exactly were the issues at stake in these proceedings, particularly after the
Applicant appears to have withdrawn, in part, his refugee claim. The record
shows the Panel required more information on this claim, including information
as to why the Applicant had withdrawn part of his claim. The Applicant failed
to provide any such information stating that he was a simple man who was
entirely reliant on his American counsel. I find the Panel’s findings in this
matter to be reasonable.
[19]
The Applicant also took issue with a statement
in the Panel’s Decision referring to the fact that the Applicant had previously
tried to be sponsored for immigration to Canada by his first wife, but that this had not been completed, as his
first wife had divorced him. I fail to see in what way a simple statement of an
undisputed fact by a Panel can somehow be deemed not to be reasonable. The
Applicant believes this fact to be irrelevant, but obviously the Panel did not.
I see no reviewable error here.
[20]
The Applicant also failed to explain why he had
answered three times in his testimony that, out of fear, he did not practice
Falun Gong when he returned to China in 2005, only to state the contrary later in his testimony. When
confronted with this contradiction, the claimant stated he was “too nervous
today. I didn’t sleep well yesterday, I’m frail”. Counsel for the Applicant
offered an explanation for this contradiction, namely that the Applicant was
practising Falun Gong at home while in China but not in a practice group. Though this after the fact explanation
is certainly interesting, it is not the explanation his client gave when
confronted with the contradiction. In these circumstances it was reasonable for
the Panel to infer a negative credibility finding from such contradictory
statements.
[21]
The Applicant raised many other issues through a
microscopic examination of the Decision. The Applicant contested the
conclusions drawn by the Panel that his return to China in 2005, without being arrested at his arrival at the airport, did
not support his story. He also contested the Panel’s view that the fact his
wife had never been harassed or arrested by the police did not support the
claim. The Applicant also took issue with certain conclusions of the Panel
based on certain date discrepancies, and on the fact that the Panel discounted
the Applicant’s Falun Gong activities in Canada. In argument, the Applicant took issue with just about every
conclusion of fact and of credibility made by the Panel.
[22]
After a careful review of the decision, the
record and the transcript of the hearings, I find that none of these issues
warrant the intervention of this Court. The Decision essentially turns on the
finding by the Panel that the Applicant lacked credibility. This finding is
reasonable in light of the record placed before me.
[23]
As noted by Teitelbaum J. in Jiang v. Canada
(Minister of Employment and Immigration), 2008 FC 775, at para. 12-13:
The applicant submits that the tenor of the Board's reasons
is generally microscopic and overreaching and thus constitutes a reviewable
error. I note that while it is true that the Board should not engage in a
microscopic and overzealous interpretation of the evidence (Gill v. Canada (Minister of Citizenship and Immigration), 2004 FC 921, [2004] F.C.J. No. 1144 (QL) at para. 13), there is a corresponding obligation on
the reviewing court to read the Board's decision as a whole and within the context
of the evidence (Miranda v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 437 (QL)).
Indeed, this view was reiterated, albeit in the criminal
context, by the Supreme Court of Canada in R. v. Gagnon,
[2006] 1 S.C.R. 621,
[2006] S.C.J. No. 17
(QL), at para. 19, where it held that:
A trial judge's language must
be reviewed not only with care, but also in context. Most language is amenable
to multiple interpretations and characterizations. But appellate review does
not call for a word-by-word analysis; rather, it calls for an examination to
determine whether the reasons, taken as a whole, reflect reversible error.
Similarly, in my view, it is imperative to avoid minutely
dissecting the reasons provided by an administrative tribunal.
[24]
Similar comments can be found in Miranda v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 437 (Joyal J.); Ni v. Canada (Minister of Employment and Immigration),
2001 FCT 1240, at para.12 (Pelletier J.); Gan v. Canada
(Minister of Employment and Immigration), 2006 FC 1329, at para. 18 (Barnes
J.).
[25]
There remains only one issue which merits further attention by
this Court, and this concerns the treatment afforded some of the documentary
evidence. I refer in particular to the fine receipts and a
notice of detention in China which
were submitted by the Applicant. No mention is made of these documents in the
Decision.
[26]
The record shows conclusively that the Panel
was aware of the Applicant’s claims that he had been fined and also imprisoned
in China as a follower of Falun
Gong. Indeed the record shows the Applicant was questioned on these matters by
the Panel. Though the Panel made a clear adverse finding as to the Applicant’s
lack of credibility, it did not explain specifically in its Decision why it had
discarded the fine receipts and notice of detention documents. The issue
therefore to consider is if a conclusion of general lack of credibility can be
sufficient so as to dispense the Panel with explaining in its Decision the
reasons for which it did not give weight to these documents.
[27]
As noted by the Federal Court of Appeal in Sheikh
v. Canada (Minister of Employment and Immigration), [1990]
F.C.J. No. 604 (F.C.A.): “In other words, a general finding of a lack of
credibility on the part of the applicant may conceivably extend to all relevant
evidence emanating from his testimony.” See also Touré v. Canada
(Minister of Employment and Immigration), 2005 FC 964, at para. 5 (Pinard
J.); Long v. Canada (Minister of Employment and Immigration),
supra, at para. 24.
[28]
Moreover, as noted by Justice Shore in Long v. Canada
(Minister of Employment and Immigration), supra, at para. 26:
It is well-established that, unless proven otherwise, the
Board is presumed to have taken all of the evidence into consideration,
regardless of whether it indicates having done so in its reasons. Moreover, as
the Federal Court of Appeal noted in Hassan v. Canada
(Minister of Employment and Immigration), [1992] F.C.J. No. 946
(QL) (F.C.A.), the fact that some of the documentary
evidence is not mentioned in the Board's reasons is not fatal to its decision
nor does it indicate that the evidence was ignored or misconstrued. This is
especially so where the evidence not mentioned has little probative value.
Hence, it is open to the Board to assess the evidence and give it little or no
probative value. As stated by Chief Justice Bora Laskin, of the Supreme Court
of Canada, in Woolaston v. Canada (Minister of Manpower and Immigration),
[1973] S.C.R. 102:
I am unable to conclude that
the Board ignored that evidence and thereby committed an error of law to be redressed
in this Court. The fact that it was not mentioned in the Board's reasons is not
fatal to its decision. It was in the record to be weighed as to its reliability
and cogency along with the other evidence in the case, and it was open to the
Board to discount it or to disbelieve it.
[29]
In the particular context of this case, and
taking into account both the findings of the Panel as to the Applicant’s
general lack of credibility, and the fact the Applicant withheld key
information from Canadian immigration officials upon his arrival in Canada, the
Court does not believe it is appropriate for it, in these particular
circumstances, to grant the judicial review on the sole basis that the Panel
failed to explicitly explain in its Decision the reasons for which it placed no
weight on the concerned documents.
Conclusion
[30]
Consequently the application for judicial review
is denied.
Certified Question
[31]
No question was proposed for certification and none is warranted
in this case.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the
application for judicial review is denied.
"Robert
M. Mainville"
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