Ottawa, Ontario, July 11, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated September 12, 2005. The Board found that the applicant was neither a Convention refugee nor a person in need of protection, and rejected his claim for asylum.
ISSUE
[2] Did the Board commit a reviewable error in its assessment of the applicant's credibility?
[3] For the following reasons, the answer to this question is affirmative and the present application shall be granted.
FACTS
[4] The applicant is a citizen of China. He was born on September 14, 1982, in Changle, Fujian province.
[5] In June 2002, a friend of the applicant named Wen Chen came to his home seeking shelter, and claiming that he was wanted by the Chinese Public Security Bureau (PSB) because of his involvement in Falun Gong.
[6] The applicant provided shelter to Mr. Chen for approximately two months.
[7] Several days after Mr. Chen's departure, the applicant learned from another friend that he had been captured and tortured by the PSB because of his Falun Gong activities. In the course of his detention, Mr. Chen had given the applicant's name to the PSB.
[8] While the applicant was not a Falun Gong practitioner himself, he felt that he was in danger, and fled by train to Shanghai. During his absence, the PSB visited his home and left a summons with his parents. The summons stated that he was suspected of being involved in Falun Gong.
[9] The applicant stayed in Shanghai for approximately twenty days, and then went to Guangdong province for another twenty days. He eventually came to the conclusion that it was impossible for him to hide indefinitely, and that he would eventually get arrested by the PSB if he remained in China.
[10] The applicant then returned to Shanghai, where he made arrangements to flee the country.
[11] The applicant arrived in Canada via Thailand and Korea on December 19, 2002, and filed a claim for asylum upon his arrival at the VancouverInternational Airport.
DECISION UNDER REVIEW
[12] The Board found that the applicant was not credible with respect to material aspects of his claim, and noted "inconsistencies, omissions and implausibilities between the claimant's documentary evidence and the oral testimony provided at the hearing".
[13] The Board drew an adverse credibility inference from the fact that the applicant had failed to mention that his father had lost his employment because of his son's suspected involvement in Falun Gong.
[14] The applicant submitted evidence of his father's loss of employment during his oral testimony, and explained that he had not mentioned the reprisals against his father in his Personal Information Form (PIF) because he had understood that the information requested in the PIF was exclusively about what happened to him.
[15] The Board did not accept this response as adequate, because the PIF form clearly instructs claimants to describe "measures taken against [him] and a family member".
[16] The Board drew another negative credibility inference from the fact that the applicant had failed to list the locations where he went into hiding between June and November 2003 when he listed his addresses over the last decade in his PIF.
[17] In its reasons, the Board writes that "..When the claimant was asked why he had failed to include this information, he testified that he failed to include this information because he was in hiding. The panel did not accept this response as adequate and furthermore finds that the claimant is inconsistent with respect to the documentary evidence provided in support of his claim".
[18] The Board concluded its reasons by stating that in light of the totality of the evidence before it and the examples it had cited, it found that was insufficient credible evidence in support of the applicant's claim.
ANALYSIS
Standard of review
[19] Findings of the Board as to a claimant's credibility are findings of fact that are subject to judicial review according to the standard of patent unreasonableness (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
[20] The applicant submits that the Board committed reviewable errors in its reasons relating the two instances of allegedly incredible evidence.
[21] Regarding his omission to mention in his PIF that his father had lost his employment, the applicant contends that this omission was a technical rather than substantive error.
[22] The applicant urges that the Board failed to distinguish between an omission of evidence that undermines the substance of a claimant's evidence and a mere technical omission which does not undermine the applicant's evidence.
[23] The applicant submits that the Board therefore failed to properly consider the evidence before it.
[24] Regarding the alleged contradictions about the applicant's address, the applicant contends that the Board's reasons are unclear, and that in failing to express itself clearly it denied him an opportunity to understand why his claim has been denied.
[25] The applicant's argument is based upon the following paragraph of the Board's reasons:
Additionally, the panel notes that the claimant allegedly harboured a Falun Gong practitioner for a period of approximately three days, in July 2003. The panel notes that the claimant allegedly went into hiding from July 2003 until his departure in November 2003. However in both his PIF and the Intake notes at the offices of Citizenship and Immigration Canada, the claimant failed to include this information in response to his addresses over the last decade. When the claimant was asked why he had failed to include this information, he testified that he failed to include this information because he was in hiding. The panel did not accept this response as adequate and furthermore finds that the claimant is inconsistent with respect to the documentary evidence provided in support of his claim.
[26] The respondent cites many inconsistencies in the claimant's testimony, which he submits justified the Board's decision to dismiss his claim.
[27] That may be so. However, the matter before this Court is not an appeal of the substance of the Board's decision to dismiss the applicant's claim. In the context of judicial review proceedings, this Court's duty is to examine the Board's decision and to determine whether or not its reasons for dismissing the applicant's claim were patently unreasonable.
[28] After having carefully read the Board's reasons, I am of the opinion that the Board did commit reviewable errors in its reasons for its decision.
[29] The applicant's omission to mention his father's loss of employment in his PIF was certainly not helpful to his claim, but this kind of omission should not be fatal to his claim in the same way that a direct contradiction would be. It is further interesting to note that the Board does not comment on the credibility of the substance of the applicant's allegation.
[30] Furthermore, while the applicant did apparently failed to include his addresses in Shanghai and in Guangdong province, he did mention that he fled there in his PIF.
[31] Again, the Board relied on a technical omission rather than a contradiction to justify its adverse credibility finding, and failed to explicitly come to a finding regarding the credibility of his allegation of having fled to Shanghai and Guangdong.
[32] In Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.) (QL), the Federal Court of Appeal set aside the Board's decision because it found that it had been overzealous and "over-vigilant in its microscopic examination of the evidence", while there was considerable evidence in support of the claimant's allegations.
[33] In the case at bar, the two reasons given by the Board to dismiss the applicant's claim cannot withstand the scrutiny of judicial review.
[34] The parties did not submit question for certification and none arise.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is granted. The Board's decision is set aside and the matter is returned for reconsideration by a differently constituted panel.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5806-05
STYLE OF CAUSE: GUO LIN LI
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2006
APPEARANCES:
SOLICITORS OF RECORD:
Levine Associates FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario