PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] The lack of credibility described in incongruities, contradictions and inconsistencies are never in the very words themselves. The words simply convey the falsehood inherent to the time, the place, the situation, the circumstances, the events and the individuals.
JUDICIAL PROCEDURE
[2] This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) rendered on June 19, 2006, wherein the Board found the Applicant to be neither a Convention refugee nor a person in need of protection pursuant to section 96 and subsection 97(1) of the IRPA.
BACKGROUND
[3] The Applicant, Ms.Yunqiu Long, is a citizen of China. She alleges a fear of persecution on the basis that she is a Falun Gong practitioner.
[4] Ms. Long was introduced to Falun Gong by her husband’s cousin and became a practitioner in 1998.
[5] After Falun Gong was banned on July 22, 1999, Ms. Long and her husband practiced Falun Gong in secret at their home.
[6] At the end of 1999, Ms. Long and her husband agreed to help the cousin distribute Falun Gong brochures.
[7] In November 2004, Ms. Long alleges that her husband’s cousin was arrested by the Public Security Bureau (PSB).
[8] On February 23, 2005, Ms. Long alleges that she received a telephone call from her son. According to Ms. Long, he informed her that the PSB had arrested her husband and that they were looking to arrest her. She was also told that the PSB alleged that she and her husband were involved in illegal Falun Gong activities.
[9] Following this incident, Ms. Long went into hiding and made arrangements to come to Canada. She entered Canada on June 20, 2005 and claimed refugee protection approximately nine days later.
DECISION UNDER REVIEW
[10] The Board determined that Ms. Long’s narrative was not credible as there were major inconsistencies in her testimony pertaining to the contents of the telephone conversation with her son.
[11] Furthermore, the Board found that if Ms. Long had been wanted by the PSB, she would not have been able to leave China using her genuine passport at the Beijing Airport, as she alleged she had done, especially in light of her admission that her name had been verified in a computer at the airport.
[12] As a result, the Board concluded that Ms. Long was neither a Convention refugee nor a person in need of protection as per section 96 and subsection 97(1) of the IRPA.
ISSUE
[13] Did the Board make a patently unreasonable finding of fact?
STATUTORY SCHEME
[14] Section 96 of the IRPA reads as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. |
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
[15] Subsection 97 (1) of the IRPA states the following:
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
STANDARD OF REVIEW
[16] With respect to questions of credibility, the proper standard of review is that of patent unreasonableness. The Board is a specialized tribunal and has complete jurisdiction to assess an Applicant’s credibility on the basis of implausible testimony, contradictions and inconsistencies in the evidence. Where the Board’s inferences and conclusions are not so unreasonable as to warrant the Court’s intervention, its findings are not open to judicial review, regardless of whether the Court agrees with the inferences or conclusions drawn. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph 14; Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) (F.C.A.), at paragraph 4.)
ANALYSIS
Did the Board make a patently unreasonable finding of fact?
Credibility finding of the Board was not patently unreasonable
[17] A finding of lack of credibility made by the Board which is based on problems internal to the Applicant’s testimony is the heartland of the discretion of triers of fact, and where such findings are made by the Board, this Court ought not to interfere. (He v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1107 (QL), at paragraph 2.)
[18] The Board is entitled to make an adverse finding of credibility based on the implausibility of the Applicant’s narrative and can make reasonable findings based on common sense and rationality. (Aguebor, above, at paragraph 4.)
[19] Moreover, the Court ruled in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, at paragraph 5, that sworn testimony of the claimant is presumed true, unless there is a valid reason to doubt its truthfulness.
[20] The Board’s decision is not patently unreasonable. The finding was open to the Board on the face of the evidence before it. Ms. Long’s testimony was filled with inconsistencies and was generally implausible. The inherent logic of her testimony was flawed.
[21] The following findings made by the Board are clear and detailed and outline the various inconsistencies and implausibilities in Ms. Long’s testimony:
i) The Board found that the Applicant’s story that she was wanted by the PSB was not credible, given that she contradicted herself in testifying about the alleged conversation with her son. At the hearing, Ms. Long first stated that she did not ask her son if the PSB issued a receipt for the documents (newspapers, books) the PSB allegedly took when they arrested her husband. When the Board pointed out that her counsel would have advised her that she needed documents to corroborate her claim, Ms. Long changed her testimony and said that she had asked her son if the PSB had left anything. The Applicant was unable to adequately explain this inconsistency. (Transcript of the Hearing, at pages 25-27.)
ii) The Board found that it was not plausible that Ms. Long would be able to leave China undetected, using her own passport, if she was indeed wanted by the PSB. The Board referred to country documentation about the type of security clearances at the airport for persons leaving China. Ms. Long testified that she was able to leave China, via the Beijing Airport, using her own genuine passport, and that her name was checked in the computer.
[22] As such, the Board did not err in bringing to the forefront the inconsistencies, contradictions and implausibilities in the evidence before it, and thus making a negative inference as to the credibility of the Applicant. In this regard, Justice James Hugessen of the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Dan-Ash, [1988] F.C.J. No. 571 (QL) (F.C.A.), states the following:
…unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence.
[23] Furthermore, contrary to Ms. Long’s allegation that the Board should have specifically mentioned whether it believed that she was a Falun Gong practitioner and whether it believed her evidence regarding the incident that propelled her to leave her native country, this Court has held that such an explicit finding is unnecessary and does not render the Board’s decision patently unreasonable. (Liu v. Canada (Minister of Citizenship and Immigration), 2006 FC 695, [2006] F.C.J. No. 880 (QL).)
[24] As the Board found Ms. Long not to be credible generally, it was open to it to make the overall finding that the Applicant’s testimony was not credible. As noted by Justice Mark MacGuigan in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (QL) (F.C.A.):
…even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony…
(Reference is also made to: Chavez v. Canada (Minister of Citizenship and Immigration), 2005 FC 962, [2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré v. Canada (Minister of Citizenship and Immigration), 2005 FC 964, [2005] F.C.J. No.1213 (QL), at paragraph 10.)
The Board did not err in failing to mention Dismissal Declaration in its decision
[25] Ms. Long argues that the Board erred in failing to mention in its reasons a Dismissal Declaration (declaration) from her employer.
[26] It is well-established that, unless proven otherwise, the Board is presumed to have taken all of the evidence into consideration, regardless of whether it indicates having done so in its reasons. Moreover, as the Federal Court of Appeal noted in Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946 (QL) (F.C.A.), the fact that some of the documentary evidence is not mentioned in the Board’s reasons is not fatal to its decision nor does it indicate that the evidence was ignored or misconstrued. This is especially so where the evidence not mentioned has little probative value. Hence, it is open to the Board to assess the evidence and give it little or no probative value. As stated by Chief Justice Bora Laskin, of the Supreme Court of Canada, in Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102:
I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board's reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it.
[27] The declaration tendered by Ms. Long stated that she and another person participated in “Falun Gong organization and related activities.” It is important to note that there was no name mentioned of the writer in this notice, no details of the alleged Falun Gong activities, no date, and no explanation as to how the writer knew of the activities. The notice stated that “they have been absent of duty for a long time since February 23, 2005 till now…” but did not state any reason for such absence. Given the absence of details, or explanation about how the writer knew of secret criminal activities, this notice has little, if any probative value. (Dismissal Declaration, at page 115.)
[28] Furthermore, the Board specifically questioned Ms. Long at length about the declaration. In the course of doing so, the Board drew attention to contradictions between her testimony and the declaration. The Applicant testified that she was not supposed to be at work on February 23 or 24, 2005, as every week she had two days off, and she intended to visit her friend on those days; however, the declaration states that she was absent from work since February 23, 2005. (Transcript of the hearing, at page 297, Dismissal Declaration, at page 115.)
[29] Moreover, the Board noted contradictions between Ms. Long’s Personal Information Form (PIF), the declaration, and the Background Information Form. In her PIF, Ms. Long stated that she was employed from July 1984 to June 2005; however, in the declaration, it is stated that she was absent from February 23, 2005 and dismissed “from the very date on”. Moreover, in her Schedule 1 Background Information Form, Ms. Long stated that she was employed by the same employer up to the “present” time. (PIF, at page 13, Schedule 1 Background Information Form, at page 99, Dismissal Declaration, at page 115.)
[30] In light of the transcript of the hearing and the Board’s decision, it appears that the Board understood the facts of Ms. Long’s claim and found the evidence in support of it insufficient to support a positive determination. Consequently, the conclusion of the Board was reasonable and the intervention of the Court is not justified.
CONCLUSION
[31] For all the above reasons, the judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3660-06
STYLE OF CAUSE: YUNQIU LONG
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 18, 2007
APPEARANCES:
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Leonard Borenstein
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Asha Gafar
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SOLICITORS OF RECORD:
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LEWIS & ASSOCIATES Toronto (Ontario)
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada |