Toronto, Ontario, June 5, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a citizen of the People’s Republic of China (PRC) who bases her Convention refugee claim on a fear of persecution as a Falun Gong practitioner. In a decision dated May 2, 2006, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board) rejected the claim. The Applicant seeks judicial review of that decision.
[2] Credibility was the determinative issue for the Board. In rejecting the claim, the Board made a lengthy series of detailed findings, on the evidence before it, where the Board was unable to accept the evidence of the Applicant. After commenting that the Applicant was not a straightforward or trustworthy witness and failed to reply directly to questions put to her, the Board went on to examine and make findings in particular areas of concern, the most important of which are as follows:
- The Hukou (household registration document) used to support her residence in the PRC and to establish her presence where the alleged persecution took place was fraudulent.
- The Applicant was unable to establish her residence in the PRC after April 1, 2004, since she failed to produce corroborating documents beyond this date.
- The Applicant was unable to correctly perform a certain Falun Gong exercise when requested.
- The Applicant did not have any corroboration from the leader of her practice group in Canada.
- The Applicant failed to begin Falun Gong practice until some three weeks after her arrival in Canada, which the panel found to be implausible given her alleged devotion.
- The Applicant’s testimony regarding her husband’s whereabouts was inconsistent.
- Although allegedly in hiding in the PRC for about six weeks, the Applicant did not list this address on her Personal Information Form (PIF) and stated at the hearing that she did not know the address.
Issues
[3] I would frame the sole issue as follows:
1. Did the Board reach its decision based on capricious or perverse findings of fact or without regard to the evidence before it?
Analysis
[4] The standard of review on issues of credibility is patently unreasonable (Aguebor v. Canada (Ministry of Employment and Immigration) (1994), 160 N.R. 315 (F.C.A.) at 316-317; Brar v. Canada (Ministry of Employment and Immigration), [1986] F.C.J. No. 346 (F.C.A.)). The Court is reluctant to set aside such decisions that “are at the heart of the specialized jurisdiction of the Board as the trier of fact” (Solis v. Canada (Minister of Citizenship and Immigration), 87 A.C.W.S. (3d) 532, [1999] F.C.J. No. 372 at para. 3). On this standard of review, the Board’s decision will only be overturned if the Board reached its decision based on capricious or perverse findings of fact or without regard to the evidence before it (Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d)).
[5] Before me and in the written submissions, the Applicant submits that each of the above findings was perverse. She refers to many of the findings as “picky” and argues that the Board rejected reasonable explanations for most of the credibility findings. Having reviewed each of the alleged errors, I am not persuaded that the Board’s overall conclusion on credibility should be disturbed.
[6] The main problem with the Applicant’s arguments is that she fails to consider the decision as a whole. Had the Board rejected the claim on the sole basis, for example, that the Applicant did not list an address on her PIF, I might have found in her favour. However, here, the Board made a lengthy series of findings. Each of the findings was open to the Board on the evidence before it, even if this Court or the Applicant would not have interpreted the evidence as the Board did. It is apparent from reading the decision that the Board found that the cumulative effect of all of these evidentiary problems pointed inextricably to a conclusion that the Applicant’s story was not to be believed.
[7] Further, with one possible minor finding, each of the findings is relevant to the decision. The minor exception – which, in my view, is immaterial to the decision as a whole – is the issue of when the Applicant began to practise Falun Gong. I am not entirely certain why the failure to list May 30, 2004 on her PIF rather than May 2004 was important. However, all other findings were not only reasonably open to the Board on the evidence before it, they were very relevant to the issue of whether the Applicant’s story was to be believed. For example, the ability to perform an exercise correctly would certainly place in question the veracity of a claim to be a Falun Gong practitioner. On this particular point, I do not agree with the Applicant that the Board was requiring her to perform the exercise perfectly. The record and the decision certainly explain what the problems were with the Applicant’s exhibition of the exercise before the Board.
[8] The Applicant relies on Djama v. Canada (M.E.I.), [1992] F.C.J. No. 531 (F.C.A.), for the principle that the Board errs when it fixates on the details of what the claimant stated to be his or her history caused them to forget the substance of the facts on which the claimant based his or her claim. In my view, the Applicant mischaracterizes the decision of the Board. The substance of the claim before the Board was the Applicant’s assertion that she was a Falun Gong practitioner. The Board must base its conclusion on the evidence before it and explain to the Applicant how it reached its decision. How else can the Board accomplish this than by examining all of the evidence before it? At the end of its examination, there was simply nothing credible to support the claim of the Applicant.
[9] The Applicant also questions the way that the Board used its specialized knowledge on Hukous. The Applicant relies on Habiboglu v. Canada (Minister of Citizenship and Immigration), 2005 FC 1664 at para. 29, for the proposition that the Board must give claimants a chance to make representations on the reliability and use of the information and to give evidence in support of the representations. Otherwise, it constitutes a breach of natural justice that voids the hearing unless there are other findings which would support the Board’s decision and a redetermination would result in the same outcome.
[10] In this case, the transcript shows that the Board did provide notice to the Applicant that it would be relying on its specialized knowledge regarding Hukous. The document in which the Hukou is described was included in the documentary evidence before the Board and the Applicant at the hearing. The concerns of the Board were put to the Applicant, thereby giving her an opportunity to put forward evidence of her own in this regard. It is true that the documentary evidence states that in some instances the Hukou is not bound. However, based on the fact that the Applicant’s Houkou was not bound together with problems regarding the address on the Hukou and other problems with the evidence put forward, it was not unreasonable for the Board to conclude that, on a balance of probabilities, the Applicant had produced a fraudulent Hukou.
[11] In sum, I can see no reason to intervene in this decision. The application for judicial review will be dismissed. No question will be certified.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is dismissed; and
2. No question of general importance is certified.
“Judith A. Snider”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3427-06
STYLE OF CAUSE: YU YING LIU v. MCI
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Ms. Claire Le Riche FOR RESPONDENT
SOLICITORS OF RECORD:
David Yerzy
Barrister and Solicitor FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario