Date: 20080603
Docket: IMM-4841-07
Citation: 2008 FC 698
Toronto, Ontario, June 3,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
JIAN QIN LIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
A
citizen of the People’s Republic of China, the applicant claims
that he was denied refugee protection by the Refugee Protection Division
(RPD) of the Immigration and Refugee Protection Board, due to a finding of a
lack of credibility in his account of persecution for having been mistaken as a
supporter of the Falun Gong. The applicant seeks a judicial review of that
decision pursuant to s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act) and requests that the matter be referred back to
a differently constituted panel for redetermination.
I. Facts
[2]
In
March 2005,
Mr. Lin claims he opened a store in his home town of Changle City in Fujian Province. His store sold books
as well as audio and video material to customers whom he alleges were all from
his home town. From time to time, some of the customers who were familiar with
the applicant would ask him to help sell their products in his store. In May of
2006, his friend Mr. Chen did just that.
[3]
The
applicant
alleges that on May 10, Mr. Chen gave him approximately fifty (50) books and
DVDs on consignment and told him that the contents of the DVDs were about
Buddhist teachings and Qi Gong. The applicant claims he agreed to sell these
items and in fact, did, after having watched 2 of the DVDs. However, he claims
he did know about Falun Gong and thought the material was about what Mr. Chen
had said. Three days later, after he had sold ten (10) of the DVDs, members of
the Public Security Bureau (PSB) acting on complaints from customers that these
materials were about the Falun Gong, descended on his store, confiscated all
the merchandise and detained his cousin who was minding the store that day in
the absence of the applicant who was in San Ming City.
[4]
As
owner of
the store, the applicant claims he was wanted by the PSB. They allegedly
visited his home, interrogated his parents regarding his activities and
whereabouts and accused him of being involved in the illegal promotion of the
Falun Gong. His mother informed him of this visit and told him not to return
home. Mr. Lin hid in his relatives’ home in Sang Ming City where he says the police also came often. As a
result, he decided he could not safely stay in China, fled and arrived in Canada on August 6, 2006 to
claim refugee protection. The applicant claims that after his arrival, he
learned that the police continued their search for his whereabouts.
[5]
After hearing the
applicant’s refugee claim the RPD, in its decision dated October 26, 2007, determines that he is
neither a Convention refugee nor a person in need of protection and denied his claim.
II. The Impugned Decision
[6]
In
light of a number of inconsistencies, implausible statements and embellishments
found in the information provided by the applicant to an immigration officer
upon landing, in his Personal Information Form (PIF), and his testimony, the
RPB determines that there is no basis to the claim due to the applicant’s lack
of credibility, and concludes that there is no serious possibility that Mr. Lin
would be persecuted or be subjected personally to a risk to his life or to
cruel and unusual treatment or punishment or be in danger of torture by any
authority if he were to return to China.
[7]
Following the Board’s
determination that the applicant is not a Convention refugee according to
section 96, or a "person in need of protection" according to section
97 of the Act, the claim for refugee status is therefore
dismissed. The determinative issue rests mainly on the applicant’s lack of
credibility.
III. Legislation
|
Immigration
and Refugee Protection Act
(S.C.
2001, c.27)
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.
|
Loi sur l’immigration et la protection des réfugiés,
(L.C. 2001, ch. 27)
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.
|
|
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.
(2) A person in Canada who is a member of a class of persons prescribed
by the regulations as being in need of protection is also a person in need of
protection.
|
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.
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
IV. Issues
[8]
The issues
submitted by the parties can be rephrased as follows:
·
Did
the Board err in finding that the applicant lacked credibility on the basis of
a misunderstanding of the evidence and a finding of fact that was perverse,
capricious or without regard to the evidence?
[9]
The applicant
argues that considering he had submitted an amended PIF to correct certain
discrepancies, in concluding as it did and in ignoring this amended PIF the RPD
committed an error of such magnitude and reflective of such significant and
critical misunderstanding of the evidence that was before it, that it
constituted a fundamental error that cannot withstand judicial scrutiny.
[10]
The respondent
argues for his part that the applicant’s PIF omitted several significant facts
that were only introduced at the hearing. Among the omissions found by the RPD,
the applicant’s PIF did not state that the PSB had put him on a wanted list, or
that he needed a smuggler to bribe the airport officials in order to leave the
country; these allegations were only introduced at the applicant’s oral
hearing. Therefore and in view of these omissions, the RPD was entitled to
conclude as a result that the applicant lacked of credibility. In support of
this argument the respondent cites Sanchez v. Canada (Minister
of Citizenship and Immigration.), [2000] F.C.J. No. 536, 98 A.C.W.S. (3d)
1265. The respondent adds that the RPD does not err in finding it implausible
that the applicant would not know that the material sold in his store was about
the Falun Gong after having watched the DVDs, and that he would have be able to
exit China using his own passport if his name was on a wanted list by national
authorities. The respondent argues that the Board is entitled to make such
reasonable findings based on implausibility, common sense and rationality.
V. Standard of Review
[11]
The
respondent submits that the Board’s findings with respect credibility and
implausibility are findings of fact reviewable on the standard of
unreasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9). The
decision maker’s credibility analysis is central to its role as trier of fact,
and consequently its Credibility findings are entitled to the highest degree of
curial deference and therefore set a heavy onus on the applicant seeking to set
aside such a finding.
[12]
The grant of deference supports a reasonableness standard of review and
implies, as the Court held at paragraph 49 of Dunsmuir, above, that
courts will give “due consideration to the determinations of decision makers”
when reaching a conclusion. Accordingly, the Court’s analysis of
the Board’s decision will be concerned with “the existence of justification,
transparency and intelligibility within the decision-making process [and also
with] […] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47).
VI. Analysis
[13]
The
applicant submitted no valid argument
to justify the Court’s intervention. The
applicant has failed with his burden to demonstrate that the impugned
decision is based on erroneous findings of fact made in a
perverse or capricious manner, or that the decision was made without regard for
the material before it.
[14]
Having reviewed
the evidence in record, this Court notes that in its reasons the Board does not
make mention of the amended PIF. This amendment was introduced less than one
month before the RPD hearing. However, the RPD benefits from the presumption
that it has considered all of the evidence before it,
though this presumption is not so strong as to overcome an omission to comment
on important evidence which on its face strongly supports a conclusion
different than the one actually reached (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, 157
F.T.R. 35).
[15]
Nonetheless, the Court finds that this is not the case here since the RPD’s
negative inferences were drawn and well supported by evidence other than the
amended PIF, and did not rest solely on this one aspect of the narrative.
Further, the Court does not see that this information affects as such the
overall negative credibility finding of the applicant. Therefore any errors
linked thereto are not material to the result.
[16]
The implausibility withstand review based on the evidence, and
it was well open to the Board to conclude that the applicant lacked credibility
given the improbabilities of his narrative and the discrepancies between
information provided in his initial landing interview, his PIF, at the hearing
and with due regard to the amendments to the PIF which are not relevant to the
decision reached.
[17]
In brief
the impugned “decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law”, and therefore deserves
defence from this Court. For these reasons this Court concludes that the RPD
did not commit a reviewable error and therefore the judicial review will be
dismissed.
[18]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING REASONS THIS COURT dismisses the
application.
“Maurice
E. Lagacé”
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