Docket: IMM-4882-16
Citation:
2017 FC 519
Ottawa, Ontario, May 19, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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YONGQIANG ZHU
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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 is an application for leave and judicial
review under section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the “Act” or “IRPA”) of the decision of the Refugee Protection
Division (“RPD”), dated November 7, 2016, wherein the RPD determined that
Yongqiang Zhu (the “Applicant”) was neither a Convention refugee nor a person
in need of protection under sections 96 and 97 of the IRPA on the basis that
the Applicant was not credible.
II.
Background
[2]
The Applicant is a citizen of China, born on
December 4, 1994. He alleges that he is a farmer with a limited education from
Heibei Province, China. On January 7, 2014, the Applicant states that he was
introduced to the practice of Falun Gong by a friend Li, Yongqi and that he
thereafter became a practitioner along with his friends Zhu, Hongwei and Zhu,
Hongtao.
[3]
On February 18, 2016, the Applicant’s Falun Gong
practice group was raided by the Chinese Public Security Bureau (“PSB”). The
Applicant was not at practice that day, and allegedly received this information
from Zhu, Hongwei. As a result, the Applicant went into hiding. That night, PSB
officers allegedly went to the Applicant’s home.
[4]
On July 5, 2016, the Applicant exited China with
the assistance of a snakehead and took a plane to Vancouver. The same day that
he landed in Vancouver, the Applicant flew to Toronto. On or about July 19,
2016, the Applicant’s visa was cancelled because a member of the group with
whom he was travelling, according to his visa, made a refugee claim. On or about
August 8, 2016, the Applicant also made a claim for refugee protection in
Canada, based on fears that he will be arrested, incarcerated, and physically
harmed by the PSB, should he be returned to China, because he is a Falun Gong
practitioner.
A.
The Decision
[5]
The RPD held that the Applicant is neither a
Convention refugee nor a person in need of protection, and rejected the
Applicant’s claim based on a number of negative credibility findings. In
particular, the RPD found that the claim had no credible basis for the
following reasons:
a)
The Applicant exited from China via the Beijing
airport, travelling on his own passport and with a boarding pass issued in his
name, while allegedly wanted by the Chinese Authorities;
b)
The Applicant was unable to provide any documentation
of the alleged visits to his parents by the PSB;
c)
The Applicant did not claim refugee protection
upon his arrival at the Toronto Airport, instead waiting over a month to make
his claim;
d)
In 2013, the Applicant misrepresented himself in
a United States visa application.
e)
The Applicant’s Falun Gong practice details were
not compelling and there was no evidence tendered to support his claims of
practicing Falun Gong in China or Canada.
[6]
In light of the negative credibility findings
against the Applicant, the RPD held that the cumulative effect undermined the
credibility of the Applicant in general. The RPD concluded that the Applicant
was not a credible or trustworthy witness, and that the lack of general
credibility extended to all relevant aspects of his testimony. Further, there
were no witnesses called and there were no witness testimonials tendered.
III.
Issue
[7]
The only issue is whether the credibility
findings made by the RPD are reasonable.
IV.
Standard of Review
[8]
The applicable standard of review is reasonableness
(Diaz v Canada (Citizenship and Immigration), 2016 FC 1343 at para 10 [Diaz]).
[9]
I find that the credibility findings made by the
RPD are reasonable, pursuant to section 107(2) of the IRPA. For the reasons
below, the application is dismissed.
V.
Analysis
A.
Ability to exit China via Beijing Airport
[10]
The RPD drew a negative credibility inference
from the Applicant’s claim that he was wanted by the PSB at the time that he
exited China, because the evidence submitted by the Applicant showed that he
departed China via Beijing airport using a genuine passport issued in his own
name.
[11]
The Applicant submits that the RPD erred in
drawing a negative inference based on his ability to exit China using his own
genuine passport. The Applicant relies upon jurisprudence from the Court for
the proposition that there is nothing implausible about a person, who is wanted
by the PSB, being able to exit China on his or her own genuine passport, in
situations where the appropriate official was bribed: see Zhang v Canada,
2008 FC 533 [Zhang 2008].
[12]
The Applicant claims that he travelled with the
snakehead in a group with ten other people; however, the Applicant stated that
he knows nothing about the ten other travellers and that he did not ask any of
them about their backgrounds, despite the fact that they were all travelling to
Toronto together.
[13]
The Applicant also could not provide any details
about what happened with his passport at the check-in counter, security
screening, or customs. He merely stated that he did not observe whether or not
his passport was scanned at the check-in counter to receive his boarding pass,
similarly he did not see the security agent scan his passport. At the customs
check point, the Applicant states that he presented his documents to the
customs agent but does not remember what they did with the documents. The
Applicant did not recall the snakehead directing him to a specific agent.
Further, the only conversation that he could remember overhearing between the
snakehead and any airport official was a discussion he believed to be about
liquid limits for air travel.
[14]
The RPD was cognizant of the fact that a
snakehead could make the requisite arrangements, including bribes, in order to
successfully pass through Beijing airport with a person who is wanted by the
PSB. However, the Applicant provided no evidence or testimony regarding special
procedures or methods employed by the snakehead to enable the group to evade
airport security measures; and, by his own account, he followed a generally
standard boarding procedure, as outlined in National Documentation Package.
Further, the RPD concluded that it was reasonable to infer, from the fact that
the Applicant’s boarding pass was in his own name, that the Applicant’s
passport had been scanned, so that his boarding pass could be issued, and that
his travel would be subject to detection by the authorities. Base on all the
above, the RPD held that it was appropriate to draw a negative credibility
inference.
[15]
I find that the RPD’s decision was reasonable. While
the Federal Court’s jurisprudence is mixed on the issue of exiting China under
one’s own identity while being wanted by authorities, the circumstances here are
more similar to cases such as Sui v Canada, 2016 FC 406, and Ma v
Canada, 2015 FC 838, where the claimants’ allegations were not found
credible. Further, the absence of a concrete explanation as to how the
Applicant managed to evade the security measures at Beijing airport,
distinguishes this case from Zhang 2008, above.
[16]
I agree with the Respondent that the RPD carefully
considered the evidence and reasonably drew a negative credibility finding
based on the Applicant’s claim and the evidence.
B.
Absence of summons from the PSB
[17]
The RPD also drew a negative credibility
inference upon the Applicant’s evidence that PSB officers attended his parents’
home on four occasions but did not leave any documentation to indicate their
interest in him.
[18]
The Applicant argues that it was unreasonable
for the RPD to draw a negative credibility inference based on this part his
claim, because the RPD acknowledged that, at the relevant time, the practice of
leaving a summons with family members was inconsistent in China. The RPD
inferred that a summons would have been left, based upon the number of PSB
visits to the Applicant’s parents’ home. However, there are some cases where
the Court found as a fact that the PSB in different regions may have different
norms regarding when they leave summonses.
[19]
The RPD relied upon the Response to Information
Request, dated October 20, 2015, regarding Regulations on summonses to inform the
finding that it was not credible that the PSB would visit the Applicant’s
parents four times and not leave a written summons. While acknowledging that there
can be inconsistencies in the practice of issuing written summonses to family
members, the RPD found that, in this case, it was unlikely that the PSB would
not leave any documentary evidence whatsoever.
[20]
In assessing the sworn testimony of an applicant,
the RPD is entitled to consider its plausibility and to apply common sense and
rationality (Ye v Canada, 2014 FC 1221 at para 29; Su v Canada,
2015 FC 666 at para 11 [Su]). I find that it is reasonable, in the
context of the surrounding evidence—in particular, the Applicant’s exit from
China using his own passport—for the RPD to have found a lack of credibility given
the absence of PSB documentation.
C.
The Applicant’s delay in making a refugee claim
[21]
The RPD drew a negative credibility inference
upon the Applicant’s evidence that he fled China in fear of arrest,
imprisonment, and physical harm as he did not claim for protection immediately
upon his arrival at either the Vancouver or Toronto airports.
[22]
The Applicant argues that this inference is
unreasonable because the delay in making the claim was brief (approximately 34
days). Moreover, the Applicant argues that he did not make a refugee
application immediately upon entering Canada because he did not know that he
could make a refugee claim to stay in Canada permanently. However, after being
questioned about why he and his family would spend a large sum of money to hire
a snakehead and obtain a fraudulent visa, the Applicant admitted that he came
to Canada with the hope that the Canadian government would protect him.
Further, he stated that the friend, in whose home he had been hiding in China,
told him that Canada had a refugee system and that the Canadian government
would help people such as him.
[23]
Given the Applicant’s contradictory testimony
regarding what he did and did not know about refugee claims in Canada, and when
he knew such information, I find that the RPD’s decision to draw a negative
credibility inference is reasonable.
D.
The Application for the US Visa
[24]
The RPD drew a general negative credibility
inference upon the Applicant’s evidence because he attempted to obtain a US
visa through fraudulent means in 2013, without a compelling reason for the
misrepresentation.
[25]
The Applicant submits that it was unreasonable
for the RPD to make this negative credibility inference because the
misrepresentation on the US visa has nothing to do with the issue before RPD. The
Applicant asserts that “a finding that a refugee
claimant is or is not credible is not determinative of the question of whether
that claimant is a convention refugee.” Further, the Applicant relies
upon the case Guney v Canada, 2008 FC 1134 [Guney], for the
proposition that the fact that a witness has been caught in a lie is
insufficient to discredit all of his or her evidence, where the evidence is
otherwise plausible.
[26]
I do not find that the RPD applied this general
negative credibility finding to discredit otherwise plausible evidence or to
simply dismiss the remainder of the Applicant’s testimony. Unlike the situation
in Guney, above, the evidence with regard to the Applicant’s Falun Gong
practice, persecution, and flight is not “otherwise
plausible and consistent” (Guney at para 17). The RPD did not disregard
any of the other evidence because of the fraudulent US visa application. This
is a case where evidence of a willingness to make misrepresentations to
immigration officials can cast doubt on the Applicant’s testimony, particularly
where there is no corroborating evidence.
E.
The Applicant’s Falun Gong Practice
[27]
The RPD found that the Applicant’s evidence
regarding his practice of Falun Gong was not persuasive in establishing that he
is a genuine Falun Gong practitioner.
[28]
The Applicant argues that the RPD wrongly
engaged in a microscopic and stringent examination of the Applicant’s knowledge
of Falun Gong. Further, the Applicant asserts that it was unreasonable for the
RPD to make a negative finding based upon the Applicant’s failure to obtain a
copy of Zhuan Falun, the central text for Falun Gong practitioners, as
he is a person of limited education, who would not understand most of the text.
The Applicant also contends that it is unreasonable that the RPD did not give
reasons for rejecting the Applicant’s explanations of why he does not own a
copy of Zhuan Falun.
[29]
The RPD determined that the Applicant’s reasons
for joining Falun Gong, which he knew was illegal and could lead to
persecution, lacked cogency. Further, he could not describe why any of the
principles of Falun Gong had personal appeal to him and could only discuss the
benefits of Falun Gong practice in a very general manner. The RPD also found
that the Applicant’s failure to obtain a copy of Zhuan Falun, once in
Canada, due to an apparent lack of effort on his part, detracted from his
credibility that he was a genuine practitioner. Although, the RPD did not give
explicit reasons for rejecting the Applicant’s explanation of why he does not
own a copy of Zhuan Falun, it can be inferred from the RPD’s reasons
that a genuine practitioner—who was coming to Canada, a place where the
practice of Falun Gong is legal, to study and practice Falun Gong—would have
made efforts to obtain a copy of the text so that he could further his
understanding.
[30]
However, certain of the Respondent’s submissions
on this issue appear to be from a different case. In one instance, the
Respondent refers to the Applicant as “her”, and
makes reference to a story about the Applicant fleeing the PSB raid, and hiding
in a field.
[31]
Nevertheless, notwithstanding the Respondent’s misstatements
referred to above on this issue, I find that the RPD made a reasonable finding
that the Applicant is not a genuine Falun Gong practitioner. In particular, I
find that the lack of corroborating evidence and the Applicant’s apparently
disinterest in obtaining a copy of Zhuan Falun, despite his testimony
that he is here in Canada because he wants to practice Falun Gong and improve
his life, supports a lack of credibility. In any event, the other credibility
findings by the RPD are cogent and determinative.
F.
Refugee Sur Place
[32]
The RPD considered whether the Applicant’s
alleged participation in Falun Gong in Canada has come or will come to the
attention of the Chinese authorities and whether the Applicant will face more
than a mere possibility of persecution as a result (Liu v Canada, 2014
FC 972 at para 8). The RPD concluded that because there is insufficient
evidence to show that the Applicant is a Falun Gong practitioner in Canada, it
follows that there is insufficient evidence to establish that the Chinese
authorities will take an interest in the Applicant because of his alleged Canadian
Falun Gong activities. I agree.
[33]
Based upon the evidence before me, I find that
the RPD’s decision was reasonable.
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