Docket: IMM-5048-13
Citation:
2014 FC 1221
Ottawa, Ontario, December 16, 2014
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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JIAWEN YE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant seeks judicial review of a
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board of Canada, dated July 9, 2013, wherein the RPD found that the
Applicant was neither a Convention refugee nor a person in need of protection
under sections 96 and 97, respectively, of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA).
Background Facts
[2]
The Applicant is a citizen of China. She claims that she fears persecution as a result of being an adherent of the spiritual
discipline of Falun Gong.
[3]
After graduation from vocational school the
Applicant was unable to find employment. The stress of this situation caused
her to suffer symptoms of depression and insomnia. Although she sought medical
assistance, it did not help. In October 2010, a family friend, Uncle Jialin
Liu, visited her and became concerned for her health. He introduced her to
Falun Gong. She began to study the discipline and its primary documents and met
with other practitioners in secret. Her symptoms improved, which
correspondingly enabled her to obtain employment.
[4]
On August 3, 2011, while she was on a business
trip away from her hometown of Guangzhou City, the Applicant received a call
from Uncle Liu’s wife informing her that he had been arrested the night before
by the Public Security Bureau (PSB). His wife suggested that the Applicant go into
hiding, which she did at a friend’s home in the suburb of Guangzhou City. During this time, and before she left China, she learned that the PSB had gone to her
home on four occasions to arrest her and that two more practitioners had been
arrested. She arrived in Canada on December 18, 2011 and filed a claim for
refugee protection. She later learned that another practitioner had been
arrested and that the PSB had gone to her home twice more looking for her.
Decision Under Review
[5]
The RPD denied the Applicant’s claim for refugee
protection stating that the determinative issue was credibility (Sellan v Canada (Minister of Citizenship and Immigration), 2008 FC 44; 2008 FCA 381 at para 3). The
RPD set out numerous reasons for this finding including that:
▪
When the Applicant was asked how long she
practiced Falun Gong in China, she hesitated and eventually responded that it
was over a span of six months, which would have been from October 2010 to April
2011. However, in her Personal Information Form (PIF), the time frame
referenced by the Applicant was from October 2010 to August, 2011, a period of
10 months;
▪
Other than her passport, which was issued in the
province of Guangdong on May 5, 2011, the Applicant was unable to provide any
corroborating evidence establishing that she worked or resided in Guangzhou
City from October 2010 until August 2011, when she went into hiding;
▪
The Applicant indicated that on the day in
October 2010 when she met with Uncle Liu, he left her home without having
spoken to her parents. Given the Applicant’s age, being 18, her mental state
at the time, and, that it was her parents who had arranged the meeting, the RPD
found that it would have been reasonable to expect that her parents would have
discussed what Uncle Liu had suggested to treat their daughter. She further
testified that her parents were not aware that Uncle Liu practiced Falun Gong,
which the RPD found unlikely given the length of time they had known him and
the level of trust they displayed in him by allowing him to counsel the
Applicant;
▪
There was no corroborating evidence that Uncle
Liu or other practitioners had been arrested, nor any evidence to suggest that
the Applicant’s family had been questioned or harassed after her departure. In
addition, it was reasonable to expect that the PSB would have contacted her
employer and that someone there would, in turn, have contacted the Applicant to
alert her to the inquiries. Yet, the Applicant had no knowledge of such
activities nor had she contacted her employer to ascertain whether the PSB had
inquired about her;
▪
The RPD did not believe that the Applicant was
able to avoid detection by the PSB from August 10, 2011 to December 12, 2011
given that she remained in Guangzhou City. Further, while in hiding the
Applicant twice applied for, and was ultimately successful in obtaining, a
student visa to the United States in December 2011. The RPD was not convinced,
even if she was making the applications with the help of a snakehead, that she
could have maintained such a low profile so as to avoid detection, nor that she
could have avoided detection when she departed China using her own passport. Her
PIF also did not mention the alleged bribing of an official by the snakehead that
she claimed facilitated her departure; and
▪
Although her testimony was that the PSB visited
her parents’ home on 10 occasions, the last visit being March 26, 2013, the Applicant
did not amend her PIF to reflect this, or that the PSB was recently and
actively looking for her. The Applicant was also unable to provide
corroborating evidence, such as a summons. Given the level of interest the PSB
had displayed as to her whereabouts, and the fact that she had eluded capture,
it was reasonable to conclude that a warrant for her apprehension would have
been issued.
[6]
As a result of the credibility concerns above,
the RPD found that Applicant had not demonstrated the existence of a
well-founded fear of persecution.
[7]
Further, while the Applicant submitted evidence
in support of her contention that she practices Falun Gong every day, and with
other adherents in Miliken Park, the RPD was not satisfied that her practice
was genuine and that she would continue this practice if removed to China, placing
her at risk in that country.
[8]
The RPB concluded, having considered all the
evidence, that the Applicant is not a Convention refugee as she had not
established, on a forward looking analysis, that there is a reasonable chance
or serious possibility that she would be persecuted on a Convention ground, or
that there would be a risk to her life or that she would be subjected to cruel
and unusual treatment or punishment should she be required to return to China.
Issues
[9]
I would frame the issues in this matter as
follows:
1. Did the RPD hold the Applicant to an incorrect standard of proof or
apply the wrong test in assessing the section 96 claim?
2. Did the RPD misapprehend the evidence?
Standard of Review
[10]
The Supreme Court of Canada has held that a
standard of review analysis does not necessarily need to be conducted when the
standard has been adequately established by prior jurisprudence (Dunsmuir v New Brunswick, 2008 SCC 9 at para 57 [Dunsmuir]).
[11]
It has previously been well established that
decisions of the RPD involving questions of credibility are within the domain
of the RPD’s expertise and are be reviewed on a standard of reasonableness (Zhou v Canada (Minister of Citizenship and
Immigration), 2013 FC 619
at para 26; Demirtas v Canada (Minister of Citizenship and
Immigration), 2011 FC 584 at para 23; Ma v Canada (Minsiter of Citizenship
and Immigration), 2014 FC 1057 at para 24; Rahal v Canada (Minister of Citizenship
and Immigration), 2012 FC 319 at para 42 [Rahal]). Reasonableness
is concerned with justifiability, intelligibility and transparency in the
decision making process, and the Court should not intervene with the
conclusions of the decision maker unless they fall outside the range of
possible, acceptable outcomes, defensible in respect of the facts and the law (Dunsmuir,
above, at para 47).
Analysis
ISSUE 1: Did the RPD hold
the Applicant to an incorrect standard of proof or apply the wrong test is
assessing the section 96 claim?
Applicant’s Position
[12]
The Applicant submits that the use of the word
“convinced” by the RPD in its decision indicates that it erred by imposing a
higher standard of proof than the applicable standard, which is the balance of
probabilities. Whether or not the Applicant was a genuine Falun Gong
practitioner was a question of fact attracting the balance of probabilities
standard of proof, she did not have to convince the RPD of this. Similarly,
the RPD erred in imposing an elevated standard of proof on the Applicant to
establish that her fear of persecution in China was well-founded (Alvarez v Canada (Minister of Citizenship and Immigration), 2011 FC 154 at para 5 [Alvarez]; Bui
v Canada (Minister of Immigration and Citizenship), 2001 FCT 1178 at para 4).
[13]
Further, in paragraph 31 of its reasons, the RPD
misstated the test regarding a well-founded fear of persecution. The RPD stated
that it was not satisfied that the Applicant was a genuine Falun Gong
practitioner, and that if returned to China today, that such practice “would”
place her life at risk or heightened risk. The Applicant submits that the
legal test for well-founded fear of persecution is that a claimant must
establish “good grounds” or “reasonable chance” for fearing persecution (Adjei
v Canada (Minister of Employment and Immigration), [1989] 2 FC 680 (FCA) at
paras 5 and 12). The RPD erred in its interpretation and application of the
legal test, which is a reviewable error (Ponniah v Canada (Minister of
Employment and Immigration) , [1991] FCJ No 359 (FCA); Wang v Canada
(Minister of Employment and Immigration), [1994] FCJ No 1150 at paras 2-3; Chichmanov
v Canada (Minister of Employment and Immigration), [1992] FCJ No 832
(FCA); Tariq v Canada (Minister of Citizenship and Immigration), 2001
FCT 540 at para 29; Yip v Canada (Minister of Employment and
Immigration), [1993] FCJ No 1285 at para 7; Alvarez, above, at para
5; Arrinaj v Canada (Minister of Citizenship and Immigration), 2005 FC
773 at para 44).
Respondent’s Position
[14]
The Respondent takes the view that the RPD
sufficiently indicated its awareness of the appropriate standard of proof and
that its decision did not rest on this, but on the Applicant’s lack of
credibility. Absent some credible evidence to support or corroborate her
claim, it failed on any standard (Chen v Canada (Minister of Citizenship and
Immigration), 2012 FC 95 at para 42 [Chen]; Lui v Canada (Minister of Citizenship and Immigration), 2013 FC 1028 at para 4). Having
determined that the Applicant was not credible, and as she failed to
corroborate her claim, the RPD reasonably found that there was insufficient
evidence that her claim was objectively well-founded. The RPD also properly
stated the serious possibility of persecution test in its conclusion (Ndjizera
v Canada (Minister of Citizenship and Immigration), 2013 FC 601 at para 29
[Ndjizera]).
Analysis
[15]
In order to properly evaluate the first issue,
it is important to recognize that this Court is charged with reviewing the
reasonableness of the RPD’s decision – that is, the RPD’s findings of fact as
applied to the legal test for refugee protection (Ndjizera, above, at
para 26). The burden of proof in refugee proceedings, the balance of
probabilities, is the standard upon which an Applicant must establish a given
fact. The legal test for protection is whether, in view of those facts, the
Applicant faces a serious possibility of persecution.
[16]
The burden of proof and its application was
addressed by Justice O’Reilly in Alam v Canada (Minister of Citizenship and
Immigration), 2005 FC 4 [Alam]:
[4] The Board concluded its analysis of
Mr. Alam's case with the following statement: "The claimant did not
discharge his burden of proof sufficiently to establish, on a balance of
probabilities, his claim is well-founded".
[5] While the burden of proof on a
claimant for refugee protection is well-known and widely accepted, it is
notoriously difficult to express in simple terms. Justice Mark MacGuigan stated
the proper test in Adjei v. Canada (Minister of Employment &
Immigration), [1989] 2 F.C. 680, [1989] F.C.J. No. 67 (C.A.) (QL):
It was common ground that the objective
test is not so stringent as to require a probability of persecution. In other
words, although an applicant has to establish his case on a balance of
probabilities, he does not nevertheless have to prove that persecution would be
more likely than not.
…
What is evidently indicated by phrases
such as "good grounds" or "reasonable chance" is, on the
one hand, that there need not be more than a 50% chance (i.e., a probability),
and on the other hand that there must be more than a minimal possibility. We
believe this can also be expressed as a "reasonable" or even a
"serious possibility", as opposed to a mere possibility. (At p. 683.)
[6] This is an awkward standard of proof
to articulate. This Court has recognized that various expressions of this
standard are acceptable, so long as the Board's reasons taken as a whole
indicate that the claimant was not put to an unduly onerous burden of proof.
For example, Justice Carolyn Layden-Stevenson found that the Board had
expressed itself adequately when it stated: "Nothing in the evidence
before me indicates that should the principal claimant's mother return to
Albania, on balance of probabilities, there is a serious possibility that she
would be targeted for persecution" (Brovina v. Canada (Minister of
Citizenship and Immigration), 2004 FC 635, [2004] F.C.J. No. 771 (QL), at
para. 11). Similarly, Justice Pierre Denault found the following to be
acceptable:
Based on the evidence, the panel finds
that on a balance of probabilities, there is no objective basis to support the
claim in subjective fear, and there is no "reasonable chance" that
the claimant would face persecution for any of the grounds stated in the
Convention Refugee Definition in the Immigration Act, if she returned to Russia. (Seifelmlioukova v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 1163 (T.D.) (QL), at para. 3)
[7] By contrast, in cases where the
Board seemed to be demanding too much proof from a claimant, the Court has
ordered a new hearing. For example, Chief Justice Julius Isaac found that the
Board had erred when it stated that it was "not convinced that the
claimant faces a reasonable chance that he would be persecuted for his
political opinions should he return to Bulgaria" (Chichmanov v. Canada
(Minister of Employment and Immigration), [1992] F.C.J. No. 832 (C.A.)(QL);
see also Mirzabeglui v. Canada (Minister of Employment and Immigration),
[1991] F.C.J. No. 50 (C.A.) (QL)). In Adjei, above, Justice MacGuigan
disapproved of the Board's expression of the standard of proof when it said
that the evidence before it was "insufficient for it to conclude that
there are substantial grounds for thinking that persecution would result. .
.".
[8] The lesson to be taken from Adjei
is that the applicable standard of proof combines both the usual civil standard
and a special threshold unique to the refugee protection context. Obviously,
claimants must prove the facts on which they rely, and the civil standard of
proof is the appropriate means by which to measure the evidence supporting
their factual contentions. Similarly, claimants must ultimately persuade the
Board that they are at risk of persecution. This again connotes a civil
standard of proof. However, since claimants need only demonstrate a risk
of persecution, it is inappropriate to require them to prove that persecution
is probable. Accordingly, they must merely prove that there is a
"reasonable chance", "more than a mere possibility" or
"good grounds for believing" that they will face persecution.
[9] The case law referred to above shows
that where the Board has articulated the gist of the appropriate standard of
proof (i.e. the combination of the civil standard with the concept of a
"reasonable chance"), this Court has not intervened. On the other
hand, where it appears that the Board has elevated the standard of proof, the
Court has gone on to consider whether a new hearing is required. Further, if
the Court cannot determine what standard of proof was applied, a new hearing
may be necessary: Begollari v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1340, [2004] F.C.J. 1613 (T.D.) (QL).
[10] Where the Board imposes a burden of
proof that is too high, there is a chance that an unsuccessful claimant might
otherwise have succeeded. However, in some cases, an error would be purely
academic. This would be the case in situations where the claimant's evidence is
so weak that it could not possibly meet even the "reasonable chance"
standard: Brovina, above.
[11] Accordingly, the Court's role on
judicial review in these circumstances is to determine whether the Board
applied the appropriate standard of proof. If not, the Court must then decide
whether the error requires a new hearing.
(also see Chan
v Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at para
120 [Chan]; Ramanathy v Canada (Minister of Citizenship and
Immigration), 2014 FC 511 at paras 15-17).
[17]
The Applicant cites the use of the term
“convinced” by the RPD as demonstrating that it applied a standard of proof
higher than the civil standard:
…the panel is not convinced that the claimant
was able to keep such a low profile for four months… (decision at para 22)
Given the credibility findings mentioned
earlier in these reasons, the panel is not remotely convinced that the claimant
bribed an official at the port of exist given that China has exit controls
(decision at para 22)
The panel has not been convinced that the
claimant is a Falun Gong practitioner (decision at para 31)
[18]
In Lemoine v Canada (Minister of Citizenship
and Immigration), 2010 FC 1031 at para 8, the decision under review had
found that the claimant in that case had not clarified the RPD’s credibility
concerns to its “satisfaction”. Justice O'Reilly concluded that when the Board
used the term, they were “merely stating an overarching
basis for its ensuing adverse credibility findings” and that read as a
whole, the reasons did not evidence an incorrect application of the standard.
[19]
Further, a similar argument regarding the RPD’s
usage of “convinced” was recently rejected by Justice LeBlanc in Avagyan v
Canada (Citizenship and Immigration), 2014 FC 1004 at paras 36-38 [Avagyan].
There, the claimants asserted that by requiring that it be “convinced”, the RPD
imposed an excessive burden of proof. Justice LeBlanc found that the subject
statement was part of the assessment of the facts of the case and not a
statement regarding the applicable legal test. The RPD had properly assessed,
on the balance of probabilities, the evidence adduced by the claimant for
purposes of making its factual findings, then it assessed whether those facts
placed him at risk of persecution (Avagyan , above, at para 37; Pararajasingham
v Canada (Minister of Citizenship and Immigration), 2012 FC 1416).
[20]
In my view, the RPD’s use of the word
“convinced” in this case is also simply an expression of its assessment of the
credibility of the Applicant based on the factual basis of her claim and is not
a misstatement of the standard of proof.
[21]
Decisions should be read as an organic whole,
without a “without a line-by-line treasure hunt for
error” (Communications, Energy and Paperworkers Union of Canada,
Local 30 v Irving Pulp & Paper Ltd, 2013 SCC 34 at para 54; also see Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 14-15). Having reviewed the RPD’s reasons in whole, I am
not satisfied that by the use of the word “convinced” it imposed an onerous
standard of proof in this case.
[22]
In any event, and as set out below, based on the
evidence presented by the Applicant, her claim could not succeed on any
standard.
[23]
With respect to the section 96 test, the
Applicant takes issue with the RPD’s statement that it was not satisfied that
the Applicant is a genuine Falun Gong practitioner and that if required to
return to China, that such practice “would” place her life at risk or at
heightened risk. And, while in the concluding paragraph of its decision the
RPD did set out the correct test, the Applicant submits that this is simply the
use of boiler plate conclusionary language and is not indicative of the correct
application of the test. As noted above, the section 96 test is that a
claimant must establish on a balance of probabilities that there exists “serious
possibility” of persecution (Chan, above, at para 120).
[24]
The statement of the RPD which is at issue was
made in the context of the evidence the Applicant had submitted to corroborate
her claim that she is a Falun Gong practitioner in Canada, which the RPD did
not accept as satisfactory to establish this fact. It stated that “The panel has not been convinced that the claimant is a Falun
Gong practitioner and that if required to return to China today, that such
practice would place her life at risk or heightened risk. The panel
disbelieves the evidence as submitted based on the totality of the evidence”.
In my view, the RPD was making a credibility finding based on the evidence
before it, however, it did not correctly articulate the section 96 test.
[25]
This is not necessarily fatal, as stated in Alam,
above:
[13] Mr. Alam did have the burden to
prove, on a balance of probabilities, that his fear of persecution was
well-founded. However, the Board's statement leaves out the "reasonable
chance" or "more than mere possibility" threshold. Had the Board
simply said that Mr. Alam had failed to establish that there was a reasonable
chance he would be persecuted, no error or ambiguity would have arisen. But in
the absence of words indicating that it was applying the correct standard, the
Board seems to have required Mr. Alam to prove persecution on a balance of
probabilities. This is a clear error. Indeed, the respondent concedes that the
Board erred in this respect.
[14] The next question, then, is whether
the Board's error requires a new hearing. The Board found that Mr. Alam had
failed to prove the facts underlying his claim. It said:
After a review of the claimant's
demeanour, the willingness to alter his narrative to have it be consistent with
letters in evidence, the inconsistency of the place where the abduction
occurred, and the total lack of understanding as to what occurred at the
meetings of the group to which he was a member satisfies me that the claimant's
evidence is not credible.
[26]
In this case, the RPD made it abundantly clear
that it found the Applicant to lack credibility, its reasons for this and that
credibility was determinative. The RPD’s findings as to the future possibility
of persecution were reasonable in light of this credibility assessment. As
stated in Alam, above, “…where the Board has made
an error of law regarding a fundamental issue, such as the appropriate standard
of proof, the Court should generally order a new hearing unless it is clear
that the claim could not possibly succeed” (at para 16). In light of
the RPD’s multiple credibility findings, any mischaracterization of the section
96 test had no effect on the result in this case. Where the RPD makes a
general finding that the claimant lacks credibility, that determination is
sufficient to dispose of the claim unless there is independent and credible
documentary evidence in the record capable of supporting a positive disposition
of the claim. The claimant bears the onus of demonstrating there was such
evidence (Sellan v Canada (Minister of Citizenship and Immigration),
2008 FCA 381 at para 3; Toma v Canada (Citizenship and Immigration),
2014 FC 121 at para 22 [Toma]; Lopez v Canada (Minister of Citizenship
and Immigration), 2014 FC 102 at para 41). The Applicant did not provide
such evidence in this case.
ISSUE 2: Did the RPD misapprehend the evidence?
Applicant’s Position
[27]
The Applicant also submits that the RPD engaged
in speculative reasoning and viewed her evidence through an impermissible
microscopic lens. Examples of this include: the negative credibility
inferences drawn from the failure of her parents to speak with Uncle Liu after
his conversation with their daughter and that they were not aware of his Falun
Gong practices; the Applicant’s lack of knowledge as to whether the PSB visited
her employer after she went into hiding; and, her ability to leave China on her
own passport. Similarly, the RPD unreasonably required the Applicant to
establish how the PSB discovered her involvement in Falun Gong activities.
Respondent’s Position
[28]
The Respondent submits that the RPD did not restrict
its considerations of the Applicant’s credibility to microscopic issues. The
RPD articulated its reasons for finding the Applicant not credible, including
omissions from her PIF and the lack of plausible details to the story. Given
her lack of credibility, it sought some corroboration of the claim but the
Applicant provided none.
Analysis
[29]
The RPD may make negative credibility findings
based on inconsistencies in testimony and perceived implausibility, so long as
they are based on reasonable inferences. A claim may be evaluated on
plausibility, common sense and rationality (Rahal, above, at paras
41-46; Toma, above, at para 11). While I agree that the RPD’s reasoning
that the PSB would have visited the Applicant’s place of employment and that it
was reasonable to infer that others there would then have contacted the
Applicant, who was in hiding, to alert her to this, is not sound, overall, the
inferences of the RPD are not based on speculative reasoning. They do not
involve the RPD applying its subjective imagination or making findings that
lack any evidentiary basis (Avagyan , above, at para 29; R v McClure,
2001 SCC 14 at para 53). Further, the deficiencies listed by the RPD are
material as they go to the heart of the Applicant’s claim.
[30]
Determining the credibility of a claimant is
factual in nature. “The jurisprudence is clear in
stating that the Board's credibility and plausibility analysis is central to
its role as trier of facts and that, accordingly, its findings in this regard
should be given significant deference” (Lin v Canada (Minister of Citizenship
and Immigration), 2008 FC 1052 at para 13; Chen, above, at para
31). Given that the RPD is the party best placed to assess the credibility of
claimants within the refugee process, their conclusions are entitled to
considerable deference (Toma, above, at paras 9-11).
[31]
Given the considerable deference owed and the RPD’s
negative credibility findings for inconsistencies and implausibilities in the
Applicant’s narrative, the RPD’s ultimate decision falls within a range of
reasonable outcomes (Imaniraguha v Canada (Minister of Citizenship and
Immigration), 2014 FC 349 at paras 31-32). I see no error in the RPD’s
treatment of the evidence nor any basis to disturb its findings in this case.
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