PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
MINISTRY OF CITIZENSHIP 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 (IRPA) with respect to a decision of Diane L. Tinker of the Refugee Protection Division of the Immigration and Refugee Board (RPD) denying Shuai Long Wang's (Applicant) claim for refugee protection. In its decision dated August 4th, 2005, the RPD determined that the Applicant is neither a Convention refugee nor a person in need of protection as per section 96 and 97 of IRPA. The RPD based its decision on credibility considerations.
I. Issues
[2] The issue is whether the RPD committed a reviewable error in finding that the Applicant lacks credibility.
II. Conclusion
[3] The RPD did not commit any reviewable error and the application for judicial review is dismissed.
III. Facts
[4] The Applicant submits that he fears persecution in the People's Republic of China (PRC) as a Falun Gong practitioner. He allegedly started to practice Falun Gong in January 2003 in order to improve his health.
[5] On October 5, 2003, the Public Security Bureau (PSB) raided his Falun Gong practice group and arrested all the members present. The Applicant was absent and went in hiding. The PSB came to the Applicant's home looking to arrest him. The Applicant therefore made arrangements to leave his country and arrived in Canada on November 28, 2003.
III. Impugned Decision
[6] The RPD found that the PSB is not, nor has ever been, interested in arresting the claimant for the following reasons :
- The Applicant indicated that the PSB went to his home looking to arrest him but he went through several security checks at the airport without being arrested (Tribunal's Record, p. 422-423);
- The Applicant testified that he was not wanted under a warrant (Tribunal's Record, p. 423), but his claim is based on his contention that he left PRC because the PSB wanted to arrest him;
- The Applicant testified that the smuggler helped him to go through security checks, but was unable to give any further details (Tribunal's Record, p. 423);
- Regarding the seriousness of the offence of being a Falun Gong practitioner, the Applicant stated in his testimony that it is "not that important" in PRC (Tribunal's Record, p. 423) but his PIF indicates that all his fellows believers were arrested, jailed and even tortured (see Tribunal's Record, p. 21);
[7] Further, the RPD found, on the following grounds, that the Applicant is not, nor has ever been, a Falun Gong practitioner:
- The Applicant stated that he has practised Falun Gong every day since January 5, 2003 (Tribunal's Record, p. 416) but failed to demonstrate or name one of the basic exercises;
- The Applicant shook while demonstrating the exercise. He explained at one point in his testimony that he was nervous (Tribunal's Record, p. 420 and 421), but later explained that his thyroid was the cause of his tremors (Tribunal's Record, p. 428 - see also p. 432);
- The Applicant was asked several times to explain why he practices Falun Gong, but never mentioned the spiritual aspect of it (Tribunal's Record, p. 427). He explained that he probably did not fully understand the question (Tribunal's Record, p. 431), but was instructed at the beginning of the hearing to indicate if he did not understand a question (Tribunal's Record, p. 407 and 415);
- The Applicant was unable to state the exact purpose or principle of the first Falun Gong exercise (Tribunal's Record, p. 419);
- He was unable to express what Falun Gong practitioners are supposed to imagine themselves being prior to the commencement of the third exercise (Tribunal's Record, p. 419-420).
[8] For these reasons, the RPD found that the Applicant's story was not credible.
IV. Analysis
[9] The decision of the RPD as to the Applicant's entitlement to refugee protection is primarily based on the credibility of his allegations. It is well established that the standard of review as to the assessment of credibility of an applicant by the RPD is patent unreasonableness (See Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada(Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at para. 4).
[10] Having read the transcript of the hearing, I do not find that the RPD committed any error of fact. Baldly, the Applicant asks the court to reweigh the evidence presented before the RPD.
[11] Some of the elements on which the RPD relied to find that the Applicant is not credible are less persuasive than others but, taken as a whole, the decision should stand. There are several inconsistencies and implausibilities in the Applicant's story, and most of them appeared from the answers given by the Applicant during his testimony.
[12] For the sake of clarity, I will nevertheless scrutinize four of the alleged errors of the decision.
[13] First, the Applicant argues that his explanation about the way he managed to travel via smuggling is not implausible. At page 423 of the Tribunal's Record is the answer he gave when asked by the RPD member how the smuggler helped him to go through the security checks:
Q: How was it that you were able to get through the airport without problems and come to Canada?
A: Okay, first, we are not, like wanted under the warrant and second, the Snakehead he has a way to get around it.
Q: What way does the Snakehead have to get around it?
A: I don't know how he did.
Although the RPD member could have explained the exact reason why this is implausible, it is clear enough from the above passage and the decision that it was hard for him to believe that the Applicant went through three security checks and was not able to give any details about the work done by the person who helped him escape the country.
[14] Second, the Applicant argued that Falun Gong is not necessarily practiced for spiritual reasons. That may well be true. However, what was found to be implausible by the RPD was not that the Applicant omitted to mention that he was motivated by spiritual reasons, but that he tried to justify his failure to show his spiritual motivation (see Tribunal's Record, p. 431) and tried to argue that he did not fully understand the questions that were rephrased on several occasions (Tribunal's Record, p. 426-427). In this context, it was not patently unreasonable for the RPD to conclude that the Applicant's credibility is undermined.
[15] Third, the Applicant submits that there is no inconsistency between the Applicant's testimony that he shook while performing Falun Gong moves because he was nervous and his statements about his thyroid condition. In my view, the inconsistency is obvious from the transcripts of the hearing. The Applicant did not mention his thyroid problem when asked for the first time, but gave this excuse later in his testimony. It was therefore not patently unreasonable for the RPD to find that this is an inconsistency, although it is not the most persuasive element in the decision.
[16] Finally, when asked specific questions about basic Falun Gong moves, the Applicant was unable to give accurate answers. The RPD noted that the Applicant did not know what the principle of the first exercise was when he indicated that it was to relax the body, when the member indicates that the correct answer was "to open up energy channels". The question clearly referred to "principle" and the Applicant was not able to answer (Tribunal's Record, p. 419). Considering that the Applicant alleges that he is a daily practitioner of Falun Gong, it was certainly not unreasonable for the RPD to expect a more precise answer. The Applicant was also asked what he was supposed to think of when performing the third exercise. He answered "an empty barrel" when the RPD states that the correct answer is "two empty barrels". The Applicant submits that the Chinese language does not distinguish between singular and plural. The transcript however shows that the Applicant was given an opportunity to choose between singular and plural (Tribunal's Record, p. 419-420):
Q: In the third exercise Master Li wants you to imagine yourself being something before you start the exercise, what is it?
[...]
A. It's a empty barrel.
Q. One empty barrel?
A. Yes.
[17] For the above reasons, the application for judicial review is dismissed.
[18] Counsels were invited to submit a question for certification, but they declined.
JUDGMENT
THE COURT HEREBY ORDERS THAT:
- The application for judicial review is dismissed and no questions are certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5025-05
STYLE OF CAUSE: SHUAI LONG WANG v. MINISTER OF CITIZENSHIP AND IMMIGRATION
APPEARANCES:
Shelley Levine
Leanne Briscoe
SOLICITORS OF RECORD:
Levine and Associates
Barristers & Solicitors
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent