Date: 20070507
Docket: IMM-3660-06
Citation: 2007 FC 494
Ottawa, Ontario, May 7, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
YUNQIU
LONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The lack of credibility described in incongruities,
contradictions and inconsistencies are never in the very words themselves. The
words simply convey the falsehood inherent to the time, the place, the
situation, the circumstances, the events and the individuals.
JUDICIAL PROCEDURE
[2]
This is an application for judicial review,
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of
the Immigration and Refugee Board (Board) rendered on
June 19, 2006, wherein the Board found the Applicant to be neither a Convention
refugee nor a person in need of protection pursuant to section 96 and
subsection 97(1) of the IRPA.
BACKGROUND
[3]
The Applicant, Ms.Yunqiu Long, is a citizen of China. She alleges a fear
of persecution on the basis that she is a Falun Gong practitioner.
[4]
Ms. Long was introduced to Falun Gong by her husband’s cousin and became
a practitioner in 1998.
[5]
After Falun Gong was banned on July 22, 1999, Ms. Long and her husband
practiced Falun Gong in secret at their home.
[6]
At the end of 1999, Ms. Long and her husband agreed to help the cousin
distribute Falun Gong brochures.
[7]
In November 2004, Ms. Long alleges that her husband’s cousin was arrested
by the Public Security Bureau (PSB).
[8]
On February 23, 2005, Ms. Long alleges that she received a telephone
call from her son. According to Ms. Long, he informed her that the PSB had
arrested her husband and that they were looking to arrest her. She was also
told that the PSB alleged that she and her husband were involved in illegal
Falun Gong activities.
[9]
Following this incident, Ms. Long went into hiding and made arrangements
to come to Canada. She entered Canada on June 20, 2005 and claimed refugee protection
approximately nine days later.
DECISION UNDER REVIEW
[10]
The Board determined that Ms. Long’s narrative was not credible as there
were major inconsistencies in her testimony pertaining to the contents of the
telephone conversation with her son.
[11]
Furthermore, the Board found that if Ms. Long had been wanted by
the PSB, she would not have been able to leave China using her genuine passport
at the Beijing Airport, as she alleged she had done, especially in light of her
admission that her name had been verified in a computer at the airport.
[12]
As a result, the Board concluded that Ms. Long was neither a
Convention refugee nor a person in need of protection as per section 96 and
subsection 97(1) of the IRPA.
ISSUE
[13]
Did the Board make a patently unreasonable finding of fact?
STATUTORY SCHEME
[14]
Section 96 of the IRPA reads as follows:
|
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social group
or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
|
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
|
[15]
Subsection 97 (1) of the IRPA states the following:
|
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries of nationality
or, if they do not have a country of nationality, their country of former
habitual residence, would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced
by the person in every part of that country and is not faced generally by
other individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
|
97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
STANDARD OF REVIEW
[16]
With respect to questions of credibility, the proper standard of
review is that of patent unreasonableness. The Board is a specialized tribunal
and has complete jurisdiction to assess an Applicant’s credibility on the basis
of implausible testimony, contradictions and inconsistencies in the evidence.
Where the Board’s inferences and conclusions are not so unreasonable as to
warrant the Court’s intervention, its findings are not open to judicial review,
regardless of whether the Court agrees with the inferences or conclusions
drawn. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2005]
2 S.C.R. 100; Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph 14;
Aguebor v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 732 (QL) (F.C.A.), at paragraph 4.)
ANALYSIS
Did the Board make a
patently unreasonable finding of fact?
Credibility
finding of the Board was not patently unreasonable
[17]
A finding of lack of credibility made by the Board which is based on
problems internal to the Applicant’s testimony is the heartland of the
discretion of triers of fact, and where such findings are made by the Board,
this Court ought not to interfere. (He v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 1107 (QL), at paragraph 2.)
[18]
The Board is entitled to make an adverse finding of credibility based on
the implausibility of the Applicant’s narrative and can make reasonable
findings based on common sense and rationality. (Aguebor, above, at
paragraph 4.)
[19]
Moreover, the Court ruled in Maldonado v. Canada
(Minister of Employment and Immigration), [1980] 2 F.C. 302, at paragraph
5, that sworn testimony of the claimant is presumed true, unless there is a
valid reason to doubt its truthfulness.
[20]
The Board’s decision is not patently unreasonable. The finding was open
to the Board on the face of the evidence before it. Ms. Long’s testimony was
filled with inconsistencies and was generally implausible. The inherent logic
of her testimony was flawed.
[21]
The following findings made by the Board are clear and detailed and
outline the various inconsistencies and implausibilities in Ms. Long’s
testimony:
i) The Board
found that the Applicant’s story that she was wanted by the PSB was not
credible, given that she contradicted herself in testifying about the alleged
conversation with her son. At the hearing, Ms. Long first stated that she did
not ask her son if the PSB issued a receipt for the documents (newspapers,
books) the PSB allegedly took when they arrested her husband. When the Board
pointed out that her counsel would have advised her that she needed documents
to corroborate her claim, Ms. Long changed her testimony and said that she had
asked her son if the PSB had left anything. The Applicant was unable to
adequately explain this inconsistency. (Transcript of the Hearing, at pages
25-27.)
ii) The Board
found that it was not plausible that Ms. Long would be able to leave China
undetected, using her own passport, if she was indeed wanted by the PSB. The
Board referred to country documentation about the type of security clearances
at the airport for persons leaving China. Ms. Long testified that she was able
to leave China, via the Beijing Airport, using her own genuine passport, and
that her name was checked in the computer.
[22]
As such, the Board did not err in bringing to the forefront the
inconsistencies, contradictions and implausibilities in the evidence before it,
and thus making a negative inference as to the credibility of the Applicant. In
this regard, Justice James Hugessen of the Federal Court of Appeal in Canada
(Minister of Employment and Immigration) v. Dan-Ash, [1988] F.C.J. No. 571
(QL) (F.C.A.), states the following:
…unless one is prepared to postulate
(and accept) unlimited credulity on the part of the Board, there must come a
point at which a witness's contradictions will move even the most generous
trier of fact to reject his evidence.
[23]
Furthermore, contrary to Ms. Long’s allegation that the Board
should have specifically mentioned whether it believed that she was a Falun
Gong practitioner and whether it believed her evidence regarding the incident
that propelled her to leave her native country, this Court has held that such
an explicit finding is unnecessary and does not render the Board’s decision
patently unreasonable. (Liu v. Canada (Minister of Citizenship
and Immigration), 2006 FC 695, [2006] F.C.J. No. 880 (QL).)
[24]
As the Board found Ms. Long not to be credible generally, it was
open to it to make the overall finding that the Applicant’s testimony was not
credible. As noted by Justice Mark MacGuigan in Sheikh v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C. 238, [1990] F.C.J. No. 604
(QL) (F.C.A.):
…even without disbelieving every
word an applicant has uttered, a first-level panel may reasonably find him so
lacking in credibility that it concludes there is no credible evidence relevant
to his claim on which a second-level panel could uphold that claim. 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…
(Reference is
also made to: Chavez v. Canada (Minister of Citizenship and
Immigration), 2005 FC 962, [2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré
v. Canada (Minister of Citizenship and Immigration), 2005
FC 964, [2005] F.C.J. No.1213 (QL), at paragraph 10.)
The
Board did not err in failing to mention Dismissal Declaration in its
decision
[25]
Ms. Long argues that the Board erred in failing to mention in its
reasons a Dismissal Declaration (declaration) from her employer.
[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.
[27]
The declaration tendered by Ms. Long stated that she and another person
participated in “Falun Gong organization and related activities.” It is
important to note that there was no name mentioned of the writer in this
notice, no details of the alleged Falun Gong activities, no date, and no
explanation as to how the writer knew of the activities. The notice stated that
“they have been absent of duty for a long time since February 23, 2005 till
now…” but did not state any reason for such absence. Given the absence of
details, or explanation about how the writer knew of secret criminal
activities, this notice has little, if any probative value. (Dismissal Declaration,
at page 115.)
[28]
Furthermore, the Board specifically questioned Ms. Long at length about
the declaration. In the course of doing so, the Board drew attention to
contradictions between her testimony and the declaration. The Applicant
testified that she was not supposed to be at work on February 23 or 24, 2005,
as every week she had two days off, and she intended to visit her friend on
those days; however, the declaration states that she was absent from work since
February 23, 2005. (Transcript of the hearing, at page 297, Dismissal
Declaration, at page 115.)
[29]
Moreover, the Board noted contradictions between Ms. Long’s Personal
Information Form (PIF), the declaration, and the Background Information Form.
In her PIF, Ms. Long stated that she was employed from July 1984 to June 2005;
however, in the declaration, it is stated that she was absent from February 23,
2005 and dismissed “from the very date on”. Moreover, in her Schedule 1
Background Information Form, Ms. Long stated that she was employed by the same
employer up to the “present” time. (PIF, at page 13, Schedule 1 Background
Information Form, at page 99, Dismissal Declaration, at page 115.)
[30]
In light of the transcript of the hearing and the Board’s decision, it
appears that the Board understood the facts of Ms. Long’s claim and found the
evidence in support of it insufficient to support a positive determination. Consequently,
the conclusion of the Board was reasonable and the intervention of the Court is
not justified.
CONCLUSION
[31]
For all the above reasons, the judicial review is dismissed.
JUDGMENT
THIS
COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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