Date: 20070523
Docket: IMM-3939-06
Citation: 2007 FC 544
Ottawa, Ontario, the 23rd day of May, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
HUI
QING LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a 23 year old national of China who sought refugee protection in
Canada on the grounds that she would be persecuted in her country of origin as
her parents are Falun Gong practitioners and she has taken up the practice
since arriving in Canada in November 2002.
[2]
The
Refugee Protection Division of the Immigration and Refugee Board denied the
applicant’s claim on June 22, 2006. The
Board’s decision turned on the credibility of the applicant’s account. Several
inconsistencies were identified between her statements to an Immigration
Officer at the Port of Entry through a Mandarin interpreter and her Personal
Information Form (PIF), amended several times prior to the hearing, particularly
with respect to how she arrived in Canada, and her assertion that she was perceived by the
Chinese authorities to a Falun Gong practitioner.
[3]
In
addition to not accepting the credibility of her story regarding the above, the
Board also did not accept the evidence that the applicant was a true Falun Gong
practitioner in Canada.
[4]
The
Board acknowledged that the claimant had named, demonstrated, and recited the
verses of the first and fourth exercise of Falun Gong correctly, had provided
photographs of her practicing Falun Gong and attending Falun Dafa events in
Canada, and had provided a letter verifying she was a practitioner from a
fellow practitioner. The Board further recognized that it was “open to the
panel to find that the claimant is a Convention refugee because she would be
unable to practice Falun Gong if she returns to China”. The Board went on to find however that given
its determination “that the claimant is not a credible witness…on a balance of
probabilities…the claimant has acquired her knowledge of Falun Gong in Canada to bolster a
manufactured refugee claim”.
[5]
As no other evidence was
introduced to support the argument that the applicant faced a serious
possibility of persecution should she be returned to China, and there was no
evidence submitted to support a finding that she faced a danger of torture, the
Board determined she was not a Convention refugee or a person in need of
protection, and rejected her claim.
ISSUES
[6]
The
issues raised in the written representations filed on this application were as
follows:
1. Did the panel err in making its credibility findings
by ignoring or misconstruing evidence with respect to the inconsistencies which
the Member identified?
2. Did the panel err because it failed to make a clear
and definitive finding concerning the applicant’s Falun Gong identity as of the
date of the hearing?
[7]
As was noted by the Court in Liu v. Canada (Minister of Citizenship and Immigration), 2006 FC 695 at para. 27 [Liu]: “[i]t is settled law that findings
of the Board regarding a claimant's credibility are findings of fact that are
subject to judicial review according to the standard of patent unreasonableness
(Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Dr.
Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.))”.
[8]
The applicant carries a
heavy burden in challenging a credibility
finding by the Board: Moore v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1772 (T.D.) (QL) at para. 8. While counsel
for the applicant contended in oral argument that the Board’s findings with
respect to two of the identified inconsistencies were patently unreasonable, he
did not address all of them nor did he persuade me that the Member ignored or
misconstrued the evidence. I am satisfied therefore, that the credibility
finding was open to the Board and that it was not a live issue on this review.
[9]
That
leaves the question of whether the panel erred in failing to make an express
and definitive finding with respect to the risk of future persecution due to
the applicant’s current identification as a Falun Gong practitioner.
[10]
As
the Court observed in Umba v. Canada (Minister of
Citizenship and Immigration), 2004 FC 25 at para. 26 [Umba], sections
96 and 97 of the Act set down some specific requirements: “[c]onsequently, the
Board must determine from the particular facts before it whether an individual
is a Convention Refugee and whether that person has the status of a "person
in need of protection". It is therefore a question of mixed fact and
law”. The Court went on to apply a reasonableness standard to the
question of mixed fact and law at issue in that case: Umba, above at
paras. 29 - 31. The
Court has similarly found in other cases that this standard applies to
questions of mixed fact and law before the Board, see for example: Harb v. Canada (Minister of Citizenship and
Immigration), 2003 FCA 39 at paragraph 14; Sharma
v. Canada (Minister of Citizenship and Immigration), 2003 FCT 289 at paragraph 12.
[11]
According to the Supreme Court of
Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, a
decision will be found to be unreasonable:
55… only if
there is no line of analysis within the given reasons that could reasonably
lead the tribunal from the evidence before it to the conclusion at which it
arrived…
56 This does not mean that every
element of the reasoning must independently pass a test for reasonableness. The
question is rather whether the reasons, taken as a whole, are tenable as
support for the decision…
ANALYSIS
[12]
The
applicant submits that the Board erred in that it did not make a clear and
definitive determination as to the applicant’s Falun Gong identity as of the
date of the hearing, and therefore did not correctly apply the definition of a
Convention refugee as being forward looking. The applicant highlights that a
person does not need to have suffered persecution in the past in order to
demonstrate a well founded fear of persecution, but only needs to demonstrate
that she belongs to a group against which persecutory acts might occur: Salibian
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250
(C.A.) [Salibian].
[13]
The
applicant further asserts that the Board failed to provide clear reasons for
why it disbelieved all of the evidence submitted supporting the applicant’s
Falun Gong identity in Canada: Hilo v. Canada (Minister of Employment and
Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.). The applicant
acknowledges that while the Board did find that the evidence had been put
together to “bolster a manufactured refugee claim” and “while perhaps this may
have been the applicant’s initial motivation for acquiring Falun Gong
knowledge, the panel failed to provide reasons to rebut the evidence provided
by the applicant on the day of her hearing”.
[14]
The
respondent asserts that the Board expressly considered whether it should find
that the applicant is a Convention refugee because she would be unable to
practice Falun Gong if she returned to China. The Board was not however required to make
this finding, as it concluded that she was not a credible witness and had
associated with Falun Gong in Canada in order “to bolster a manufactured
refugee claim”. The respondent argues that the Board’s recognition of the
evidence, and conclusion in this regard, were sufficient in the circumstances.
[15]
The
respondent highlights the decision in Yang v. Canada (Minister of
Citizenship and Immigration), 2003 FC 971 [Yang] as well as the
decision in Liu in support of this contention. In Yang, the Board
found that the claimant had chosen Falun Gong as a convenient way to become a
Canadian resident by claiming refugee status. In light of this finding, on
judicial review the Court concluded that the Board was not required to have
specifically considered whether the applicant’s activities in Canada might
result in persecution in China: Yang, above at paras. 2 - 6. Similarly
in Liu, at paragraphs 43-44, the Court found that it was not a
reviewable error that the Board never made an explicit finding regarding the
credibility of the applicant’s claim to be a Falun Gong practitioner, since
the Board had analyzed the evidence of the applicant’s attendance at Falun Gong
events in Toronto and concluded that its probative value was low.
[16]
As was noted in Salibian at
paragraph 19: “in
order to claim Convention refugee status, there is no need to show either that
the persecution was personal or that there had been persecution in the past”.
The applicant is correct, therefore, in
asserting that a person does not need to have suffered persecution in the past
in order to demonstrate a well founded fear of persecution, but only need
demonstrate that she belongs to a group against which persecutory acts might
occur.
[17]
It seems to me, however, that this was recognized
by the Board in the present case, as it acknowledged “[i]t is open to the panel
to find that the claimant is a Convention refugee because she would be unable
to practice Falan Gong if she returns to China”. The Board went on to conclude however that “on a balance of
probabilities… the claimant has acquired her knowledge of Falun Gong in Canada to bolster a manufactured refugee claim”.
[18]
The same
issue was dealt with by the Court in Yang. In Yang, the Board had
less evidence before it about Ms. Yang’s Falun Gong activities in Canada then
in the present case; the Court having characterized it as “scant” (at para. 4).
That being said, the decision of the Court turned on the fact that the Board
had clearly rejected all of Ms. Yang’s story, concluding that she had come to Canada
with an ulterior motive: to make a false refugee claim (at para. 5).
[19]
In
Chen v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 480 [Chen] the applicant argued,
as in the present case, that the Board had erred in not determining whether she
was a member of Falun Gong and whether, as a member, she faced persecution if
she returned to China, specifically citing Saliban. The Court found that
the Board had not completed the necessary analysis to determine whether the applicant was presently a believer and
practitioner of Falun Gong (at para. 21).
[20]
Chen was
distinguished in both Yang and Liu. In Yang the Court highlighted
that the Board had carefully outlined its grounds for disbelieving all of Ms.
Yang’s claim, including her supposed membership in Falun Gong. On this basis
the Court concluded:
6 … On this basis, I find that this case
differs from those where the Board does not make such a sweeping credibility
assessment: see, for example, Chen v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 480,
[2002] F.C.J.
No. 647. In Chen, the Board made no finding about the applicant's
membership in Falun Gong. Justice O'Keefe, rightly, found that the Board had
failed to consider the risk that the Chinese government might mistreat Ms. Chen
when she returned to China, even though the Board did not believe that she had
actually been persecuted there. Here, by contrast, the Board did not believe
that the applicant was even a member of Falun Gong in China. It characterized the entire claim as a sham. I cannot conclude that the Board failed to address any
issue of significance. [Emphasis mine]
[21]
In Liu, the overall credibility of the
applicant’s story was similarly at issue, and it was the credibility of the
applicant’s claim to be a Falun Gong practitioner that was at addressed by the
Court. The Court held that though the Board never made an explicit finding, in
this regard it did not amount to being an error as in Chen (at para. 43).
In reaching this conclusion, the Court noted that the Board had analyzed the
evidence of the principle applicant’s attendance of
Falun Gong events in Toronto, “but it came to the conclusion that its probative
value was low, since the principal applicant admitted that the pictures were
taken specifically for the purposes of the hearing, and that anyone could
attend this event” (at para. 44).
[22]
The Board in the present case made clear findings that
it 1) did not believe that the applicant had been perceived to be a Falun Gong
practitioner while in China, and 2) it did not believe that the applicant
was presently a sincere Falun Gong practitioner. While I accept that sincerity
may be acquired from practice over time, as counsel argued, the Board in this
case clearly concluded that the evidence with respect to the applicant’s
practice of Falun Gong in Canada had been put together solely to support the
refugee claim. In those circumstances, while it may have been prudent to do so,
it was not necessary for the Board to go the further step and state definitively
that the applicant would not suffer persecution if returned to China because she is not a genuine practitioner.
[23]
The
Board’s reasoning withstands a somewhat probing examination on this issue. It
is therefore reasonable in the present case in light of the underlying
credibility findings.
[24]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT
that the application is dismissed. No questions are certified.
“Richard
G. Mosley”
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