Docket: IMM-3708-13
Citation:
2014 FC 820
Ottawa, Ontario, August 22, 2014
PRESENT: The
Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
LIJIE DING
|
|
Applicant
|
|
And
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Lijie Ding claims to be at risk in China because she practices Falun Gong. The Refugee Protection Division of the Immigration
and Refugee Board rejected her refugee claim, primarily on credibility grounds.
[2]
Ms. Ding asserts that she was treated
unfairly in the refugee determination process by reason of the Board’s failure
to consider post-hearing evidence, and by its reliance on a document that was
no longer found in its National Documentation Package for China. She further asserts that the Board erred in requiring that she provide documentary
corroboration of the facts giving rise to her claim, and in finding that there
was a requirement of “good faith” in relation to
her sur place refugee claim.
[3]
As will be explained below, any breach of
procedural fairness that may have occurred was not material to the outcome of
the case. The Board did not err in finding that Ms. Ding’s credibility was
undermined by the lack of documentation corroborating important aspects of her
claim. While the Board did misstate the law with respect to sur place
claims, it went on to conduct a proper analysis of this aspect of Ms. Ding’s
claim. Consequently, the application will be dismissed.
I.
The Post-Hearing Documents
[4]
Ms. Ding was unable to produce the originals
of certain identity documents at her refugee hearing, although photocopies of
the documents were made available to the Board. Ms. Ding explained that
she had lost her original documents at the Toronto Public Library the day
before her refugee hearing. She claimed that she had reported the loss to
library staff and to the police, but provided no evidence to corroborate this
claim. There was no discussion at the hearing with respect to the filing of
post-hearing documents by Ms. Ding in relation to this or any other issue.
[5]
On the afternoon before the Board rendered its
decision, Ms. Ding’s counsel sent a two‑line letter to the Registrar
of the Board, asking that an attached letter from the Toronto Public Library be
forwarded to the Board member. The Library letter confirmed that Ms. Ding
had reported the loss of a bag at the Library on the day before her refugee
hearing.
[6]
Although the letter appears in the Certified
Tribunal Record, it is not clear that the Board saw the letter prior to
rendering its decision as no reference to the letter appears in the Board’s
reasons.
[7]
Ms. Ding acknowledges that she did not
follow the application procedure prescribed in the Board’s Rules for the
leading of post-hearing evidence, and no explanation was provided to the Board
for the late filing of the document. It is not even clear from counsel’s letter
that he was seeking to adduce the document as post-hearing evidence. In the
circumstances, I am not persuaded that there was a breach of procedural
fairness even if the Board did not consider the evidence in question.
[8]
Even if I had found that the Board’s failure to
address the correspondence constituted a breach of procedural fairness, the
fact is that at the end of the day, it accepted that Ms. Ding was a
Chinese citizen and that she was married – the very facts that the marriage
certificate and Hukou were intended to establish. While the Board did make a
negative credibility finding against Ms. Ding with respect to the loss of
her documents, it was only one of numerous negative credibility findings made
by the Board. As a consequence, any breach of procedural fairness was not
material to the outcome of the case.
II.
The Board’s Reliance on a Non- National
Documentation Package Document
[9]
Ms. Ding claimed that the Public Security
Bureau (PSB) had come looking for her at her home on at least eight occasions.
When asked if the PSB had left a summons for her at her home, Ms. Ding was
unable to respond to the question, and no such summons was produced by Ms. Ding
at her refugee hearing.
[10]
The Board noted that the PSB often leaves a summons
with family members when it is seeking an individual. While recognizing that
this does not always occur, the Board held that if the PSB visited Ms. Ding’s
home on eight occasions, this would suggest that it had more than a casual
interest in her. In these circumstances, the Board concluded that a summons
could reasonably have been expected to have been left at her home.
[11]
In support of this finding, the Board referred
to a 2004 Response to Information Request relating to the PSB’s use of
summonses, noting in a footnote to the decision that this document was no
longer contained in the Board’s National Documentation Package for China. Ms. Ding asserts that she was denied procedural fairness because the Board relied
on what was effectively extrinsic evidence, without giving her an opportunity
to address it.
[12]
I agree with Ms. Ding that it was unfair
for the Board to have relied on the document in question. The whole purpose of
a National Documentation Package is to ensure that everyone involved has access
to the relevant country condition information, and that refugee claimants are
aware of the documents that will be relied upon by the Board. While it was open
to the Board member to have had regard to the document in question, fairness
required that the Board first put Ms. Ding on notice of its intention to
do so and afford her an opportunity to address the document, if she deemed it
necessary.
[13]
That said, Ms. Ding has not identified any
material differences between the 2004 document cited by the Board and the
document that replaced it in the current National Documentation Package for China. Accordingly, once again, any breach of procedural fairness that occurred was not
material to the result in this case.
III.
The Lack of Corroborative Evidence
[14]
Ms. Ding argues that the Board erred in
making negative credibility findings based upon the lack of corroborating
documents supporting her claim.
[15]
This Court has frequently held that although
there is a presumption that sworn evidence is true and will not be undermined
by a lack of corroborative evidence, there is an exception to this rule. That
is, a negative inference may be drawn against a refugee claimant where the
Board does not accept the claimant’s explanation for failing to produce
evidence when it would reasonably be expected to be available: see, for
example, Rojas v. Canada (Minister of Citizenship and Immigration), 2011
FC 849 at para. 6, [2011] F.C.J. No. 1048. That is what happened here, and no
error has been demonstrated in this regard.
IV.
The “Good Faith” Issue
[16]
Ms. Ding claimed that she practiced Falun
Gong, both in China and in Canada, and that her practice in this country gave
rise to a sur place claim. Having found that she was not a Falun Gong
practitioner in China, the Board went on to consider whether Ms. Ding was
a genuine Falun Gong practitioner in Canada.
[17]
In addressing this question, the Board first
noted that “it is reasonable to expect ‘good faith’ in
making a refugee claim”. The Board then observed absent a good faith
requirement, refugee claimants could unilaterally create conditions requiring
the granting of refugee protection: Board decision at paragraph 33.
[18]
The parties agree that this is not a correct
statement of Canadian refugee law and that there is no good faith requirement
for sur place refugee claims: Ghasemian v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1266, [2003] F.C.J. No. 1591.
[19]
A refugee claimant may take steps – for example
speaking out in public against the government in question after arriving in Canada – purely for the purpose of bolstering his or her refugee claim. Even if that were
the case, the Board would still be required to consider whether the activities
in question could give rise to a well-founded forward-looking fear of persecution
in the claimant’s country of origin: Yang v. Canada (Minister of Citizenship
and Immigration), 2012 FC 849, [2012] F.C.J. No. 961.
[20]
That said, the fact that a claimant has
endeavoured to manipulate his or her situation in order to make a refugee claim
can still be relevant to the issue of credibility: Ghasemian, above at
para. 32.
[21]
Although the Board misstated the law in relation
to the question of good faith at the outset of its analysis, when its analysis
is read in its entirety it is apparent that the Board did not impose a
requirement of good faith on Ms. Ding in relation to her sur place
claim. Rather, the Board examined the totality of the evidence before it in
assessing whether Ms. Ding was in fact a genuine Falun Gong practitioner
in Canada.
[22]
The Board had numerous and serious credibility
concerns with respect to Ms. Ding’s story. These related to, amongst other
things, her delay in claiming refugee protection, her lack of documentary
corroboration for any of her claims, and the fact that her husband had been
able to live safely and carry on business in China notwithstanding her alleged
involvement with Falun Gong.
[23]
The Board was entitled to take its negative
credibility findings into account when assessing Ms. Ding’s sur place
claim: Jiang v. Canada (Minister of Citizenship and Immigration), 2012
FC 1067 at para. 27, [2012] F.C.J. No. 1149. Having found that Ms. Ding’s
general integrity was in doubt, the Board concluded that she had not
established that she was a genuine Falun Gong practitioner in Canada, or that she would be at risk in China. This conclusion was reasonably open to the Board on
the record before it.
V.
Conclusion
[24]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case does not raise a
question for certification.
Email this Content