Ottawa, Ontario, the 23rd day of May, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant is a 23 year old national of China who sought refugee protection in Canada on the grounds that she would be persecuted in her country of origin as her parents are Falun Gong practitioners and she has taken up the practice since arriving in Canada in November 2002.
[2] The Refugee Protection Division of the Immigration and Refugee Board denied the applicant’s claim on June 22, 2006. The Board’s decision turned on the credibility of the applicant’s account. Several inconsistencies were identified between her statements to an Immigration Officer at the Port of Entry through a Mandarin interpreter and her Personal Information Form (PIF), amended several times prior to the hearing, particularly with respect to how she arrived in Canada, and her assertion that she was perceived by the Chinese authorities to a Falun Gong practitioner.
[3] In addition to not accepting the credibility of her story regarding the above, the Board also did not accept the evidence that the applicant was a true Falun Gong practitioner in Canada.
[4] The Board acknowledged that the claimant had named, demonstrated, and recited the verses of the first and fourth exercise of Falun Gong correctly, had provided photographs of her practicing Falun Gong and attending Falun Dafa events in Canada, and had provided a letter verifying she was a practitioner from a fellow practitioner. The Board further recognized that it was “open to the panel to find that the claimant is a Convention refugee because she would be unable to practice Falun Gong if she returns to China”. The Board went on to find however that given its determination “that the claimant is not a credible witness…on a balance of probabilities…the claimant has acquired her knowledge of Falun Gong in Canada to bolster a manufactured refugee claim”.
[5] As no other evidence was introduced to support the argument that the applicant faced a serious possibility of persecution should she be returned to China, and there was no evidence submitted to support a finding that she faced a danger of torture, the Board determined she was not a Convention refugee or a person in need of protection, and rejected her claim.
ISSUES
[6] The issues raised in the written representations filed on this application were as follows:
1. Did the panel err in making its credibility findings by ignoring or misconstruing evidence with respect to the inconsistencies which the Member identified?
2. Did the panel err because it failed to make a clear and definitive finding concerning the applicant’s Falun Gong identity as of the date of the hearing?
[7] As was noted by the Court in Liu v. Canada (Minister of Citizenship and Immigration), 2006 FC 695 at para. 27 [Liu]: “[i]t is settled law that findings of the Board regarding 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.))”.
[8] The applicant carries a heavy burden in challenging a credibility finding by the Board: Moore v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1772 (T.D.) (QL) at para. 8. While counsel for the applicant contended in oral argument that the Board’s findings with respect to two of the identified inconsistencies were patently unreasonable, he did not address all of them nor did he persuade me that the Member ignored or misconstrued the evidence. I am satisfied therefore, that the credibility finding was open to the Board and that it was not a live issue on this review.
[9] That leaves the question of whether the panel erred in failing to make an express and definitive finding with respect to the risk of future persecution due to the applicant’s current identification as a Falun Gong practitioner.
[10] As the Court observed in Umba v. Canada (Minister of Citizenship and Immigration), 2004 FC 25 at para. 26 [Umba], sections 96 and 97 of the Act set down some specific requirements: “[c]onsequently, the Board must determine from the particular facts before it whether an individual is a Convention Refugee and whether that person has the status of a "person in need of protection". It is therefore a question of mixed fact and law”. The Court went on to apply a reasonableness standard to the question of mixed fact and law at issue in that case: Umba, above at paras. 29 - 31. The Court has similarly found in other cases that this standard applies to questions of mixed fact and law before the Board, see for example: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39 at paragraph 14; Sharma v. Canada (Minister of Citizenship and Immigration), 2003 FCT 289 at paragraph 12.
[11] According to the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, a decision will be found to be unreasonable:
55… only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived…
56 This does not mean that every element of the reasoning must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision…
ANALYSIS
[12] The applicant submits that the Board erred in that it did not make a clear and definitive determination as to the applicant’s Falun Gong identity as of the date of the hearing, and therefore did not correctly apply the definition of a Convention refugee as being forward looking. The applicant highlights that a person does not need to have suffered persecution in the past in order to demonstrate a well founded fear of persecution, but only needs to demonstrate that she belongs to a group against which persecutory acts might occur: Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.) [Salibian].
[13] The applicant further asserts that the Board failed to provide clear reasons for why it disbelieved all of the evidence submitted supporting the applicant’s Falun Gong identity in Canada: Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.). The applicant acknowledges that while the Board did find that the evidence had been put together to “bolster a manufactured refugee claim” and “while perhaps this may have been the applicant’s initial motivation for acquiring Falun Gong knowledge, the panel failed to provide reasons to rebut the evidence provided by the applicant on the day of her hearing”.
[14] The respondent asserts that the Board expressly considered whether it should find that the applicant is a Convention refugee because she would be unable to practice Falun Gong if she returned to China. The Board was not however required to make this finding, as it concluded that she was not a credible witness and had associated with Falun Gong in Canada in order “to bolster a manufactured refugee claim”. The respondent argues that the Board’s recognition of the evidence, and conclusion in this regard, were sufficient in the circumstances.
[15] The respondent highlights the decision in Yang v. Canada (Minister of Citizenship and Immigration), 2003 FC 971 [Yang] as well as the decision in Liu in support of this contention. In Yang, the Board found that the claimant had chosen Falun Gong as a convenient way to become a Canadian resident by claiming refugee status. In light of this finding, on judicial review the Court concluded that the Board was not required to have specifically considered whether the applicant’s activities in Canada might result in persecution in China: Yang, above at paras. 2 - 6. Similarly in Liu, at paragraphs 43-44, the Court found that it was not a reviewable error that the Board never made an explicit finding regarding the credibility of the applicant’s claim to be a Falun Gong practitioner, since the Board had analyzed the evidence of the applicant’s attendance at Falun Gong events in Toronto and concluded that its probative value was low.
[16] As was noted in Salibian at paragraph 19: “in order to claim Convention refugee status, there is no need to show either that the persecution was personal or that there had been persecution in the past”. The applicant is correct, therefore, in asserting that a person does not need to have suffered persecution in the past in order to demonstrate a well founded fear of persecution, but only need demonstrate that she belongs to a group against which persecutory acts might occur.
[17] It seems to me, however, that this was recognized by the Board in the present case, as it acknowledged “[i]t is open to the panel to find that the claimant is a Convention refugee because she would be unable to practice Falan Gong if she returns to China”. The Board went on to conclude however that “on a balance of probabilities… the claimant has acquired her knowledge of Falun Gong in Canada to bolster a manufactured refugee claim”.
[18] The same issue was dealt with by the Court in Yang. In Yang, the Board had less evidence before it about Ms. Yang’s Falun Gong activities in Canada then in the present case; the Court having characterized it as “scant” (at para. 4). That being said, the decision of the Court turned on the fact that the Board had clearly rejected all of Ms. Yang’s story, concluding that she had come to Canada with an ulterior motive: to make a false refugee claim (at para. 5).
[19] In Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 480 [Chen] the applicant argued, as in the present case, that the Board had erred in not determining whether she was a member of Falun Gong and whether, as a member, she faced persecution if she returned to China, specifically citing Saliban. The Court found that the Board had not completed the necessary analysis to determine whether the applicant was presently a believer and practitioner of Falun Gong (at para. 21).
[20] Chen was distinguished in both Yang and Liu. In Yang the Court highlighted that the Board had carefully outlined its grounds for disbelieving all of Ms. Yang’s claim, including her supposed membership in Falun Gong. On this basis the Court concluded:
6 … On this basis, I find that this case differs from those where the Board does not make such a sweeping credibility assessment: see, for example, Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 480, [2002] F.C.J. No. 647. In Chen, the Board made no finding about the applicant's membership in Falun Gong. Justice O'Keefe, rightly, found that the Board had failed to consider the risk that the Chinese government might mistreat Ms. Chen when she returned to China, even though the Board did not believe that she had actually been persecuted there. Here, by contrast, the Board did not believe that the applicant was even a member of Falun Gong in China. It characterized the entire claim as a sham. I cannot conclude that the Board failed to address any issue of significance. [Emphasis mine]
[21] In Liu, the overall credibility of the applicant’s story was similarly at issue, and it was the credibility of the applicant’s claim to be a Falun Gong practitioner that was at addressed by the Court. The Court held that though the Board never made an explicit finding, in this regard it did not amount to being an error as in Chen (at para. 43). In reaching this conclusion, the Court noted that the Board had analyzed the evidence of the principle applicant’s attendance of Falun Gong events in Toronto, “but it came to the conclusion that its probative value was low, since the principal applicant admitted that the pictures were taken specifically for the purposes of the hearing, and that anyone could attend this event” (at para. 44).
[22] The Board in the present case made clear findings that it 1) did not believe that the applicant had been perceived to be a Falun Gong practitioner while in China, and 2) it did not believe that the applicant was presently a sincere Falun Gong practitioner. While I accept that sincerity may be acquired from practice over time, as counsel argued, the Board in this case clearly concluded that the evidence with respect to the applicant’s practice of Falun Gong in Canada had been put together solely to support the refugee claim. In those circumstances, while it may have been prudent to do so, it was not necessary for the Board to go the further step and state definitively that the applicant would not suffer persecution if returned to China because she is not a genuine practitioner.
[23] The Board’s reasoning withstands a somewhat probing examination on this issue. It is therefore reasonable in the present case in light of the underlying credibility findings.
[24] No serious questions of general importance were proposed and none will be certified.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. No questions are certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3939-06
STYLE OF CAUSE: HUI QING LI
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: MOSLEY J.
APPEARANCES:
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Hart Kaminker
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David Cranton
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SOLICITORS OF RECORD:
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HART KAMINKER Barrister & Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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