Ottawa, Ontario, November 2, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, Shu Cheng Gan, challenges a decision of the Immigration and Refugee Board (Board) which denied his claim to refugee protection. He contends that the Board made a number of errors in its treatment of the evidence which, taken together, are sufficient to justify a rehearing of his claim.
Background
[2] Mr. Gan came to Canada from China in January 2005. He claimed refugee protection on the strength of an alleged vendetta by a local political leader who owed Mr. Gan money. According to Mr. Gan, when he attempted to collect the debt the political leader had him arrested on the basis of an accusation that he had harboured Falun Gong members. Mr. Gan claimed that while he was detained he was beaten and tortured. After three days of abuse and a period of unconsciousness, Mr. Gan awoke to find that the door to the interrogation room was unlocked and unguarded. He then escaped from custody and went into hiding. About six months later, with the assistance of a snakehead, Mr. Gan came to Canada.
The Board Decision
[3] The Board found that Mr. Gan lacked credibility. It described his testimony as evasive, vague, implausible, inconsistent and, in places, untruthful. The Board decision identifies several specific instances where his testimony was not believed, most notably his story of escaping custody. It also found that Mr. Gan’s delay in leaving China, and his application for a business visa as a means of escape, were inconsistent with his story. The Board’s credibility conclusion was summed up in the following passage:
The various credibility problems listed here extend to all areas of the claimant’s story and so taint that the panel is obliged to reject the story in its entirety as never having happened.
Issues
1. What is the standard of review?
2. Did the Board commit any reviewable errors in its treatment of the evidence?
Analysis
[4] Because the grounds for Mr. Gan’s application concern alleged errors in the Board’s fact and credibility findings, the standard of review is, of course, patent unreasonableness. It is well-established that considerable deference is owed to the evidence-based conclusions reached by the Board and, in particular, to those involving credibility. A useful statement in this regard can be found in Chen v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1611, 2002 FCT 1194 at para. 5:
Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The Court should not substitute its opinion for that of the Board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
Similarly, deference is owed to the Board’s plausibility inferences: see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, [1993] F.C.J. No. 732 (C.A.) at para. 4.
[5] Mr. Gan argues that the Board decision contains several obvious errors of fact which undermine its adverse credibility conclusion. He says that the Board erred on the following points:
1. the Board was wrong in stating that Mr. Gan had to be asked “around five times when he became aware that his wife was homeless before he would give a date”;
2. the Board erred in saying that his Personal Information Form (PIF) amendment failed to state that the promissory notes securing the debt bore the thumbprint of the local political leader;
3. the Board unfairly characterized Mr. Gan’s testimony about when he last spoke with his wife as evasive;
4. the Board attributed too much significance to a mistake made by Mr. Gan concerning the date his business was sealed by the authorities;
5. the Board erred by finding Mr. Gan’s story of his escape from custody to be improbable;
6. the Board mischaracterized Mr. Gan’s testimony about acquiring the detention notice as evasive;
7. the Board’s plausibility conclusion concerning Mr. Gan’s application for a business visa and his delayed departure from China was untenable; and
8. the Board placed too much significance on Mr. Gan’s mistake about the details of his payments to the snakehead.
[6] Mr. Gan asserts that the above-noted “errors” by the Board render its credibility findings patently unreasonable and irrational. He also contends that the Board was over-zealous and engaged in a microscopic assessment of ancillary issues and thereby lost sight of the larger picture.
[7] In order to assess Mr. Gan’s specific concerns about the Board’s treatment of the evidence, it is necessary to review each of the issues he raises in a fuller context.
[8] Although the Board did overstate the number of times it asked Mr. Gan about his wife’s homelessness, it is also apparent that he was not entirely forthcoming in his testimony on this issue. A significant aspect of the Board’s concern was Mr. Gan’s failure to mention his wife’s situation in his refugee application documents. In any event, this overstatement by the Board did not significantly detract from its overall scepticism of his evidence on this point.
[9] Mr. Gan is correct that there is an obvious mistake in the decision where it states that he had not mentioned the thumbprint on the promissory notes in his PIF amendment. This mistake is, however, largely mitigated by a correct reference to the evidence in the preceding paragraph of the decision. It is reasonable to conclude from this that the Board made a typographical and not a substantive error on this point.
[10] Mr. Gan takes issue with the Board’s finding of evasion around his evidence of contact with his wife. While Mr. Gan’s answers to the questions posed to him by the Board were technically accurate, the Board’s obvious concern was with his initial failure to volunteer evidence that he had been in indirect contact with her through his mother. The Board’s additional concern on this point was that Mr. Gan had said he did not know of his wife’s whereabouts. While the characterization of some of this evidence as “evasive” seems somewhat harsh, it is not a conclusion that can be fairly described as irrational or totally unsupported by evidence.
[11] Mr. Gan argues that the Board overstated the significance of his testimony concerning the date his business was sealed by the Chinese authorities. He first stated that it was sealed after his escape from custody, but said later that it was done on the day of his arrest. He then incorrectly gave July 21, 2004 as the date of his arrest. Once again, the Board expressed an additional concern that this evidence had been omitted from his refugee application documents. There is no basis for Mr. Gan’s criticism of the Board’s decision on this point. His testimony was inconsistent and it was open to the Board to place whatever weight it felt appropriate on that evidence.
[12] Mr. Gan says that the Board’s characterization of his evidence concerning his escape from custody as implausible was patently unreasonable. This, however, was a conclusion that was open to the Board to reach on the evidence before it. Indeed, it strains credulity that the Chinese Police would be so incompetent that they would leave the door to the interrogation room unlocked and, at the same time, leave no one in the building to guard against Mr. Gan’s escape. The Board reasonably found this “important” evidence to be the lynchpin of his story and concluded that the event was fabricated. This was a reasonable conclusion to reach and, indeed, this was the central credibility finding made by the Board.
[13] Mr. Gan’s complaint about the Board’s criticism of his evidence concerning the detention notice is similarly unfounded. The Board’s concern had to do with his failure to be responsive to its questions and, in particular, to a question as to why the detention notice was not referenced in his PIF. This was one example, among several, where Mr. Gan’s answers to the Board’s questions were not responsive, giving rise to an appearance that he was not credible.
[14] Mr. Gan is critical of the Board’s finding of improbability arising out of his delay in leaving China. Clearly the Board found it doubtful that a person in Mr. Gan’s claimed situation of jeopardy would take the time to seek a business visa. This, too, is a plausibility finding that was reasonable and open to the Board to make. It is not the role of the Court to substitute its own views for those of the Board on matters such as this.
[15] Mr. Gan contends that the Board placed too much importance on the details of his payments to the snakehead who assisted his passage to Canada. Once again, Mr. Gan’s testimony was inconsistent and it was open to the Board to find that he was being evasive. It bears repeating that the weight to be applied to this evidence is solely within the prerogative of the Board and is not a basis for setting aside a decision even where the Court might have treated the evidence differently.
[16] It is not sufficient for an Applicant seeking judicial review to identify errors with respect to a few of the Board’s findings of fact or some weaknesses in its analysis of the evidence. A decision will be maintained if it can be seen to be supported by other factual findings reasonably made.
[17] In this case, the Board did make a few minor errors in its factual holdings and observations, but they are not of sufficient import that they undermine the Board’s overall conclusion that Mr. Gan was not believable. Indeed, the Board’s assessment of his credibility was well supported by a significant number of adverse findings and, therefore, should not be disturbed.
[18] The facts of this case bring it within the holding of this Court in Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81, [1993] F.C.J. No. 437. There Justice Joyal described the approach to be taken where an Applicant is able to identify some errors in a Board decision:
For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
I have now read through the transcript of the evidence before the Board and I have listened to arguments from both counsel. Although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached. And this is where I fail to find any kind of error.
It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals. Yet we must always remind ourselves of what the Supreme Court of Canada said on a criminal appeal where the grounds for appeal were some 12 errors in the judge's charge to the jury. In rendering judgment, the Court stated that it had found 18 errors in the judge's charge, but that in the absence of any miscarriage of justice, the appeal could not succeed.
This is the point I am trying to establish here. One may look at the decision of the Board, then one may balance it off against the evidence found in the transcript and the evidence of the claimant himself in trying to justify his objective as well as subjective fears of persecution.
On the basis of that analysis, I find that the conclusions reached by the Refugee Board are well-founded on the evidence. There can always be conflict on the evidence. There is always the possibility of an opposite decision from a differently constituted Board. Anyone might have reached a different conclusion. Different conclusions may often be reached if one perhaps subscribes to different value systems. But in spite of counsel for the applicant's thorough exposition, I have failed to grasp forcefully the kind of error in the Board's decision which would justify my intervention. The Board's decision, in my view, is fully consistent with the evidence.
[19] In conclusion, I can find nothing in the Board’s findings or in its approach to the issue of Mr. Gan’s credibility which is sufficiently troubling or material that it would constitute patent unreasonableness. In the result, I would dismiss this application for judicial review.
[20] Neither party proposed a certified question and, therefore, no question will be certified.
JUDGMENT
THIS COURT ADJUDGES that the application for judicial review is dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2108-06
STYLE OF CAUSE: Gan v. MPSEP
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 10, 2006
APPEARANCES:
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Mr. Mark B. Thompson
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Mr. Peter Bell
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SOLICITORS OF RECORD:
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Mr. Mark B. Thompson Barrister and Solicitor Richmond, BC
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
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