Docket: IMM-2640-13
Citation:
2014 FC 1057
Ottawa, Ontario, November 10, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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YANYAN MA
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant was refused Canada’s protection by the Refugee Protection Division of the Immigration and Refugee Board
(the Board). She now seeks judicial review from this Court pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act].
[2]
The applicant asks for an order setting aside
the Board’s decision and returning the matter to another panel.
I.
Background
[3]
Yanyan Ma is a Chinese citizen. She arrived in Canada on October 9, 2011 and applied for refugee protection shortly thereafter. She claims
to fear persecution for practicing Falun Gong. Her first hearing broke down due
to interpretation issues, but she was heard again on March 12, 2013.
II.
Decision Under Review
[4]
The Board dismissed her claim in a decision
dated March 20, 2013.
[5]
The Board decided that the applicant lied about
practicing Falun Gong in order to secure protection. It gave the following
reasons for disbelieving her story:
1.
The applicant said that she originally knew
nothing about Falun Gong except that the government said it was an “evil cult”. Still, she immediately started practicing
it when her friend said that it cured heart disease. The Board did not believe
that someone as well-educated as the applicant would immediately believe such a
claim without any proof.
2.
The applicant was evasive.
3.
The applicant gave contradictory answers about
whether she thought it was safe to practice Falun Gong, sometimes saying that
they needed to post lookouts but taking a long time to admit that they feared
being raided by the Public Security Bureau. She also first said that she did
not know what the lookouts did, but later described what they did in detail.
4.
The applicant gave confusing testimony regarding
what she knew about the consequences of practicing Falun Gong for her and her
parents.
5.
About the alleged raid of her practice group,
the applicant said that she did not hear anyone yelling for her to stop when
she was fleeing. She also did not notice if anyone else escaped and made it to
the highway. The Board said this seemed unlikely.
6.
The Board found that the summons the applicant
submitted to the Board was likely not genuine because it did not identify any
reasons for its issuance.
7.
Although the applicant says that she hired
someone to smuggle her out of the country shortly after the alleged raid in
April 2011, she did not leave the country until October of that year. The Board
did not believe that a smuggler would wait so long, especially since that was
just before the fraudulent visa would expire. Further, the applicant alleged
that the smuggler let her keep her passport with the fraudulently obtained
visa. However, that could be traced back to the customs official who assisted
them and the Board felt that no smuggler would expose his or her accomplice to
that kind of jeopardy.
[6]
The Board accepted that the applicant did start
practicing Falun Gong when she came to Canada and correctly answered questions
about it. However, because she lacked credibility, the Board concluded that she
had done this just to bolster her fraudulent claim. There was also no hard
evidence that the Public Security Bureau would know about her practices in Canada or believe her to be a Falun Gong practitioner if she returned.
[7]
Consequently, the Board concluded that the
applicant was not entitled to protection under either section 96 or subsection
97(1) of the Act.
III.
Issues
[8]
This application raises only two issues:
A.
What is the standard of review?
B.
Did the Board unreasonably assess the
applicant’s credibility?
IV.
Applicant’s Written Submissions
[9]
The applicant does not discuss the standard of
review, but implicitly accepts that it is reasonableness. Still, she observes
that the Court may still overturn findings of credibility where the evidence
cannot support the reasons. Here, the applicant submits that the Board’s
findings were speculative and microscopic.
[10]
Specifically, she argues that it was perverse
for the Board to question the applicant’s deeply held spiritual belief in the
healing power of Falun Gong.
[11]
Also, the applicant says that her answers about
the safety of the practice group were not contradicted by her admission that
they posted lookouts. Rather, she was simply saying that the group was safe
because they took precautions like that. Further, there is nothing implausible
about the applicant knowing there could be consequences without knowing what
those consequences were.
[12]
The applicant also criticizes the Board’s
reasons about the raid. The member was not present, so his conjecture that
other practitioners would have run for the road was not a legitimate basis to
discredit the applicant.
[13]
Further, the documentary evidence shows that
summons documents are not required to list the reasons and the authorities
often act in procedurally irregular ways. Indeed, even the fact that the summons
was left with her family and not delivered directly to her was improper. The
applicant says the Board was wrong to assume that this summons would have been
obtained in any more procedurally competent manner.
[14]
As for the delay between the raid and the applicant’s
departure from China, she had no control over the smuggler’s schedule. The
Board has no expertise in the smuggling business and the applicant submits that
there could be any number of reasons why it took so long.
[15]
Finally, the applicant says it was perverse for
the Board to dismiss her knowledge of Falun Gong practices. It made this line
of questioning a futile charade, since her claim would be dismissed whether she
was right or wrong.
V.
Respondent’s Written Submissions
[16]
The respondent submits that the standard of
review is reasonableness and the Board is owed deference to its credibility
findings. The respondent then defends the Board’s decision by addressing the applicant’s
arguments.
[17]
First, the Board did not dismiss the content of
the applicant’s belief. Rather, it simply observed that it was implausible that
an intelligent woman like the applicant would be convinced that Falun Gong
could cure heart disease just because her friend said so.
[18]
Second, the respondent says that the applicant’s
testimony was evasive and confusing. She repeatedly backtracked, contradicted
herself and gave indirect answers about the safety of her group and the
lookouts they employed. Further, the applicant had eighteen years of education
and attended the Shenyang Broadcasting and Television University. The
respondent says it was implausible that she would be unaware of government
actions against Falun Gong practitioners and the applicant’s only argument to
the contrary is a bald assertion.
[19]
Third, the respondent notes that there were fifteen
members in the building when the group was allegedly raided. It says it was
reasonable for the Board to assume that some of them would also have gone to
the main road seeking transportation. As such, its finding that the applicant
lacked credibility for not noticing them is unassailable; the Board is entitled
to make implausibility findings.
[20]
Fourth, the Board expressly acknowledged that
the procedure for obtaining summons was not standardized throughout China. However, the respondent says that the applicant’s argument ignores the fact that the
Board had seen hundreds of summonses, all of which identified the reasons.
[21]
Fifth, the respondent attacks the applicant’s
argument about the smuggler. Although the applicant claims that there could be
any number of reasons for a smuggler’s delay, the respondent notes that the
applicant never identified any at the hearing. The applicant never challenged
the Board’s finding that a smuggler would not have exposed his accomplice by
letting the applicant keep her passport.
[22]
Finally, the respondent says that the totality
of the evidence revealed that the applicant only started practicing Falun Gong
in Canada to bolster her refugee claim. That was a reasonable finding and it
justifiably makes her ability to answer some basic questions about their
beliefs irrelevant.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[23]
Both parties accept that the standard of review
is reasonableness for the Board’s credibility findings. Both are right (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 53, [2008] 1 S.C.R. 190 [Dunsmuir];
Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No
732 (QL) at paragraph 4, 160 NR 315 [Aguebor]). The Board’s decision
should not be disturbed so long as it is justifiable, transparent, intelligible
and its outcome is defensible in respect of the facts and law (Dunsmuir
at paragraph 47). Put another way, I will set aside the panel’s decision only
if I cannot understand why it reached its conclusions or how the facts and
applicable law support the outcome (see Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 16, [2011] 3 S.C.R. 708).
[24]
The range of reasonableness will often be quite
wide for credibility findings. As Mr. Justice Luc Martineau has observed, “credibility is the heartland of the Board’s jurisdiction.” (see
Mohacsi v Canada (Minister of Citizenship and Immigration), 2003 FCT 429
at paragraph 18, [2003] 4 FC 771 [Mohacsi]). In Rahal v Canada
(Minister of Citizenship and Immigration), 2012 FC 319 at paragraph 42,
[2012] FCJ No 369 [Rahal], Madam Justice Mary Gleason said that this is
because “the tribunal had the advantage of hearing the
witnesses testify, observed their demeanor and is alive to all the factual
nuances and contradictions in the evidence.” As such, its findings
should not be lightly disturbed.
[25]
That said, the applicant is right to say that
they are not immune from review (see Yada v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 37 (QL) at paragraph 25, 140 FTR 264; Mohacsi
at paragraphs 18 to 22; Rahal at paragraphs 41 to 46).
B.
Issue 2 - Did the Board unreasonably assess the
applicant’s credibility?
[26]
Although the applicant makes some good points, I
ultimately agree with the respondent that the Board’s decision was reasonable.
[27]
First, I agree with the applicant that the
Board’s assumptions about the raid were problematic. Although other members of
her practice group likely would have run to the main road, it is not surprising
that a panicking person might not pay attention to that. More importantly,
these are very minor details that have no real relevance to her claim.
[28]
However, one error of that type is not
necessarily enough to render a decision unreasonable. As Madam Justice Judith
Snider explained in Konya v Canada (Minister of Citizenship and Immigration),
2013 FC 975 at paragraph 22, 63 Admin LR (5th) 27, “a
microscopic analysis is one in which the Board examines a fact which has no
material relevance to any issue; is outweighed by other evidence; and, is not
central to the issues in the case, but is used to dispose of the case.” The
Board did not use this finding that other members of the group would have made
it to the road to dispose of the case and it was but one minor element in a
general credibility finding that is otherwise reasonable for the following
reasons.
[29]
For one thing, the applicant supports her
argument about the Board questioning her beliefs by quoting from Wang v Canada (Minister of Citizenship and Immigration), 2012 FC 346 at paragraph 7, 9 Imm LR
(4th) 78. There, Mr. Justice Donald Rennie said that “[i]t
is not permissible for the Board to speculate on the plausibility of a claimant
obtaining personal benefits from a religious or spiritual practice, much less
base a negative credibility finding on such speculation.”
[30]
However, that is not what happened here. Rather,
the applicant’s testimony was that all that she had heard about Falun Gong
previously was that it was an “evil cult”. Still,
she said that she immediately believed that it cured her friend’s heart disease
based on nothing more than her friend’s statement. The Board considered a
conversion based on such flimsy evidence to be unlikely for someone as highly
educated as the applicant. I cannot say that inference was unreasonable (Aguebor
at paragraph 4).
[31]
As for her next argument, I agree with the
applicant that there is no necessary inconsistency between saying that a group
is safe and that it posts lookouts. The Board seemed to interpret the
applicant’s statement that it was safe as a declaration that it was generally
safe to practice Falun Gong, but it is at least arguable that she was simply
saying that her group was safe because it took precautions like posting
lookouts.
[32]
However, the fact that an alternate understanding
of the applicant’s testimony might also be reasonable does not make the
member’s decision unreasonable. He was there. He observed how the applicant was
answering these questions and those answers were confusing and indirect. He
judged her evasiveness. Having reviewed the transcript, that was a reasonable
finding that he was entitled to make.
[33]
As for the specific consequences to her and her
parents, I can see the applicant’s point. It is not that implausible that an
average citizen would not know the precise consequences of committing any
particular crime. However, the Board observed that the applicant was not the
average citizen and that she had eighteen years of education and attended the
Shenyang Broadcasting and Television University. The Board found it implausible
that someone with that background would take up a practice she knew to be
illegal and yet never concern herself with what the consequences might be.
Besides, on this subject too the Board found that she was evasive. In light of
that, the Board’s conclusion was reasonable.
[34]
So too was the Board’s treatment of the summons.
The Board dismissed the summons because it did not state the reasons for its
issuance and the Board found that it was “reasonable to
assume that, at minimum, the reason for the issuance of a summons would be
noted in the document.” The Board had also seen hundreds of genuine
summons, all of which stated the offence.
[35]
The applicant criticizes this finding, pointing
out that the documentary evidence showed that a summons only needs to state “the person, time, and place of appearance for questioning”
(Research Directorate of the Immigration and Refugee Board of Canada, RIR
CHN42444.E, China: Circumstances and authorities responsible for
issuing summonses/subpoenas (1 June 2004)). However, that referred to a
simple summons (zhuanhuan), while the document submitted by the
applicant purported to be an arrest summons (juzhuan zheng). Those are
obtained by a different procedure, which requires an application to be
presented that “will state clearly and support with
credible evidence that a crime has been committed, the person to be arrested –
summoned for interrogation is connected to the crime, and the suspect is not
likely to appear”. Given that, it was justifiable for the Board to
assume that the summons issuing from that process would include some of that
information as well.
[36]
Further, the Board said that some places in China did not follow the proper procedure, so the applicant criticized the Board for
assuming that this summons was procedurally regular even though it was not even
served on her personally. However, having found that the document was
fraudulent, the Board evidently did not believe that it was served on her
family by any actual officers of the Public Security Bureau. Therefore, no
inference could be drawn from the manner in which that service allegedly
happened.
[37]
That said, the Board’s treatment of the summons
was somewhat problematic for a different reason. Generally, documents purported
to have been issued by a foreign state are presumed to be valid (see Azziz v
Canada (Minister of Citizenship and Immigration), 2010 FC 663 at
paragraph 67, 368 FTR 281). Although the Board might be able to rely on its
expertise to rebut that presumption, the member never actually disclosed to the
applicant the reason he was concerned about the summons. In essence, he made
factual findings based on his personal knowledge that the applicant could not
have expected to address and that was unfair. However, in light of my analysis
above, I am satisfied that it could not have affected the result.
[38]
As for the smuggling operation, the Board does
not need to be an expert in the smuggling business to infer that a smuggler
would want to move a wanted person out of the jurisdiction as soon as possible.
I cannot say that was unreasonable and the applicant has not challenged the
Board’s inferences about the passport.
[39]
Since the Board reasonably found that the
applicant was lying about her Falun Gong practice in China, its inference that
she only started it in Canada to bolster her fraudulent refugee claim was
reasonable. This allowed it to reasonably dismiss her knowledge of Falun Gong
as it could have been accumulated in Canada.
[40]
The applicant comments that this makes the
Board’s questions on that subject a futile charade. That is not so. Although
they ultimately turned out to be irrelevant, there is no reason to assume that
the Board had made its decision before the interview concluded. It was no error
for the Board to ask questions that could have been relevant to its decision,
even though in hindsight they turned out not to be.
[41]
Consequently, the credibility findings were
defensible and I understand the Board’s reasons for making them.
[42]
I would therefore dismiss this application for
judicial review.
[43]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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