Docket: IMM-2638-15
Citation:
2016 FC 543
Ottawa, Ontario, May 13, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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YONGWEN YANG
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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
I.
Introduction
[1]
This application for judicial review is grounded
in unwarranted implausibility conclusions. The decision under review is that of
the Refugee Appeal Division [RAD] upholding a decision of the Refugee
Protection Division [RPD] denying a claim under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act].
II.
Background
[2]
The Applicant is allegedly a practitioner of
Falun Gong in China. On April 8, 2014, she was warned to go into hiding because
some of her fellow practitioners were arrested by the Chinese Public Security
Bureau [PSB].
[3]
The Applicant’s parents arranged for her to flee
China with the assistance of a human smuggler (snakehead). The manner of her
leaving China is important. She was able to obtain a passport and, in the company
of a snakehead and with a fraudulent student visa, she was able to get past
airport and immigration security to Canada.
[4]
The RPD drew negative inferences from the
inconsistencies between the immigration visa officer’s interview notes, her BOC
narrative and amendments as well as her own testimony.
The
RAD accepted the RPD’s credibility findings and concluded that the events cited
did not happen.
[5]
The RPD drew a negative inference from the
Applicant’s family not being a target of the PSB. The RAD acknowledged that
being targeted is not always the case where a family member is a Falun Gong practitioner,
but found that given these circumstances, they should have been targeted.
[6]
The RPD had found it implausible that the
Applicant was able to exit China on her own passport through the snakehead’s
bribery of officials. It concluded that it was implausible that the smuggler
would be able to pay off all the necessary immigration officials, PSB officers,
customs officials and airline representatives.
[7]
The RAD found the RPD’s conclusions to be
reasonable. It concluded that given the profile and allegations of the
Applicant, it was not plausible that she would be able to leave China on her
own passport if she was wanted by the PSB.
III.
Analysis
[8]
It is settled law that the standard of review of
the RAD’s credibility findings and assessment of the evidence is reasonableness
(Khachatourian v Canada (Citizenship and Immigration), 2015 FC 182).
[9]
This is no means a perfect case for the
Applicant. There were some major inconsistencies in her narrative.
Inconsistencies can form the basis of credibility findings; however, where the
decision rests on implausibility, careful regard must be had of what is alleged
to be implausible.
[10]
In Chen v Canada (Citizenship and
Immigration), 2014 FC 749, 242 ACWS (3d) 909, the Court emphasized that
implausibility findings should only be made in the clearest of cases. The
determination that the PSB would have done more than make random visits to the
Applicant’s home if the Applicant was a suspect ignores the evidence that
harassment and random visits by police were a method of punishment by the PSB.
[11]
The RAD fails to adequately explain why the
Applicant’s narrative on this point is implausible – that it could not
reasonably happen.
[12]
Further, the determination that the Applicant
could not leave China on her own passport is simple speculation on how one can
leave China. There was no evidence that one had to bribe every official in the “chain of departure”. The decision does not address
the Applicant’s evidence that the customs officer did not scan her passport or
type anything into the computer but merely stamped the passport.
[13]
Before finding it implausible to exit China, the
RAD (and RPD) had to address the Applicant’s evidence. If it believed, there
must be an explanation of how it was implausible for her to leave; if not
believed, there must be an explanation for that credibility finding.
[14]
There was sufficient evidence of corruption of
officials and a bribery scheme that the RAD had to explain why it was not reasonable
that such occurred in this case.
As
found by Justice Boswell in Ren v Canada (Citizenship and Immigration),
2015 FC 1402 at para 16, “[i]t is not implausible that
a person could leave China on their own passport with the assistance of a
smuggler who bribed the appropriate person;”.
IV.
Conclusion
[15]
For these reasons, this judicial review will be
granted, the decision quashed and the matter returned to the RAD for a new
determination.
[16]
There is no question for certification.
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