Toronto, Ontario, January 24, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Wang, a citizen of the People’s Republic of China, alleges a fear of Chinese authorities on the basis of his status as a Christian and his involvement in an underground church in China. The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected his claim and determined that he was neither a Convention refugee nor a person in need of protection. It concluded that Mr. Wang’s lack of credibility negated his subjective fear. The credibility finding was fatal to the claim.
[2] Mr. Wang contends that the RPD was overzealous in its desire to find inconsistencies in his evidence by engaging in a microscopic analysis and failing to consider context and educational background. The number of errors (including misstated evidence) and the unfounded negative inferences are allegedly “so profound that they clearly undermine the totality of the RPD’s reasons”. Furthermore, the tone of the RPD’s reasons indicates that the misstatements of fact heavily and negatively influenced the manner in which the RPD viewed Mr. Wang’s credibility.
[3] I conclude that the credibility findings are clear and, with one exception, are not patently unreasonable. Although the tenor of the reasons is unnecessarily abrasive, I am satisfied that Mr. Wang received a fair hearing.
I. Facts
[4] Mr. Wang lived in the village of Xi Lu and claims to be a Christian. He alleges that the Public Security Bureau (PSB) discovered the existence of his underground church on December 18, 2002 and arrested the organizer and three members. Although he managed to escape, the PSB subsequently learned of his involvement and appeared at his home on December 19th and December 26th. Mr. Wang was not at home on either occasion because he was hiding at a friend’s house. During its second visit, the PSB apparently showed an arrest warrant to his family and stated that charges had been laid “to put [Mr. Wang] into jail”.
[5] With the assistance of an agent, Mr. Wang says that he fled China for Switzerland on January 9, 2003, using his valid Chinese passport. For over five months, he lived in Zurich with a snakehead, who had arranged his flight. After travelling by train from Zurich to Vienna, he flew from Austria to Canada on June 21, 2003, using a false Japanese passport provided by the snakehead. He destroyed both his legitimate and false passports before arriving in Canada. He claimed refugee status upon arrival.
II. The Decision
[6] The RPD, in a decision spanning 22 pages, cited a plethora of inconsistencies and implausibilities in Mr. Wang’s testimony. It was unable to find, on a balance of probabilities, that Mr. Wang ever practiced Christianity in China. The RPD stated:
My review of the totality of the evidence in this claim leads me
to conclude that there is not one iota of truth in this claimant’s
story. There were contradictions and inconsistencies in every
part of his evidence.
Therefore, the gravity of the inconsistencies, omission of incidents and implausibilities, in the absence of reasonable explanations, is such that it leads me to conclude that the lack of credibility extends to all relevant evidence emanating from the claimant and renders his entire testimony not credible.
[7] The RPD also noted that one of the exhibits in the documentation package explained that arrest warrants are noted on a Chinese citizen’s hukou (Chinese household registration system document). Thus, in light of the documentary evidence, it concluded that it was not credible that Mr. Wang, ostensibly sought by the PSB, would obtain a hukou issued in his name (six months after he had left the country) which did not mention that he was wanted by the authorities.
III. Issue
[8] The issue, as framed by Mr. Wang, is whether the decision was based on erroneous findings of fact such that the conclusions derived from these findings taint the totality of the reasons provided by the RPD and render them patently unreasonable.
IV. The Standard of Review
[9] It is common ground that findings of credibility are findings of fact and, as such, are to be reviewed on a standard of patent unreasonableness.
V. Analysis
[10] I do not intend to list the various inconsistencies noted by the RPD. Suffice it to say that the decision, throughout, is replete with findings of inconsistency and implausibility. Mr. Wang lists eight separate “erroneous” findings. However, he provides argument in relation to only four of them. I will confine my analysis to the four findings that have been challenged.
[11] First, Mr. Wang identifies an issue as to whether he mentioned in his personal information form (PIF) that he worked for the church. He submits that the RPD suggests that he did not include reference to his church employment in the narrative. Mr. Wang maintains that, when regard is had to the PIF narrative, it is clear that he did indeed refer to his work at the church.
[12] The point that caused the RPD to draw a negative credibility finding on this issue related to a discrepancy between the port of entry (POE) documents and the PIF. In the “employment” history section of each document, Mr. Wang provided two different job titles for the same period of time. At the POE, he stated that after working as a self-employed driver, he became a church worker. In his PIF, he wrote that he worked on the family farm during this period. The RPD did acknowledge that Mr. Wang referred to his church activities in his narrative. The real issue was that, at the POE, he characterized his church work as employment, but in his PIF and at the hearing, he maintained that his church work was not work at all. In these circumstances, it cannot be said that the RPD’s finding was unreasonable, let alone patently so.
[13] Second, Mr. Wang takes issue with the finding regarding the nature of the work he did for the church. He refers to the RPD comment that, at the POE, he stated that he “assisted the minister with preaching”. The RPD found that this was inconsistent with the evidence at the hearing where he indicated that he did not actually preach. Mr. Wang points to page 3 of the POE notes where it is stated, “subject explains that the Chinese government issued a warrant for his arrest because he was assisting a Taiwanese minister in preaching. His involvement was only as an interpreter not as a preacher, but, government thought that he was involved in preaching and religious freedom”. According to Mr. Wang, the RPD, intending to illustrate inconsistency regarding the issue of preaching, relied on an erroneous finding of fact.
[14] The RPD’s finding of inconsistency in this respect also involved Mr. Wang’s admission to “making speeches”. The POE interview notes include a list of questions asked and responses provided. In answering the question “do you have any fear of persecution in China”, Mr. Wang stated: “[e]very time I went to make some speeches I have problems everywhere”. Yet, at the hearing, he said that he did not make speeches. Again, in the circumstances, the RPD’s finding is not patently, or otherwise, unreasonable.
[15] Third, Mr. Wang contends that the RPD found an inconsistency with respect to his stated employment when it concluded that he had indicated in the background information document that he was a self-employed driver while on his PIF, he claimed to have worked on the family farm. Since a review of the PIF reveals that he did state that he was a self-employed driver, the RPD’s finding is erroneous.
[16] Mr. Wang is correct in this respect. The finding is patently unreasonable because the PIF does contain a statement that Mr. Wang was a self-employed driver. However, given the litany of inconsistencies identified by the RPD, this single error could not affect the totality of the decision. Moreover, there is inconsistency with respect to the dates provided for Mr. Wang’s employment history as a self-employed driver. At his POE interview, he stated that from January 1990, to January 1998, he worked as a self-employed driver. In his PIF, he stated that he worked as a self-employed driver from October 1990, to December 1998. Consequently, the issue is still a question of his employment from January 1998 to December 1998. Was Mr. Wang working as a self-employed driver, as a church worker, or on the family farm?
[17] Fourth, Mr. Wang asserts that the RPD overemphasized an inconsistency with respect to the date of the triggering event. In this submission, Mr. Wang implicitly acknowledges an inconsistency. His quarrel is with the weight the RPD assigned to the inconsistency. This argument is without merit. It is for the RPD, not the court, to determine the weight to be assigned to the evidence. Moreover, there is no indication as to the weight that was assigned to the inconsistency. The RPD emphatically stated that it was the cumulative effect regarding the glut of inconsistencies that lead it to its conclusion.
[18] As for Mr. Wang’s allegation that his lack of education ought to have been considered, I note that Mr. Wang had the benefit of counsel in the preparation of his PIF and at his hearing. He was not a self-represented litigant. However, the difficulty with this submission is that it lacks specificity and constitutes a bare assertion made in a vacuum. As such, it is not possible to assess it.
[19] I turn now to the allegation regarding the tenor of the RPD’s reasons. Mr. Wang points to five separate notations in the RPD’s decision, which he asserts contain “innuendo which goes far beyond a finding of inconsistency but is clearly ad hominem”. The allegation is a serious one and I regard it as such. As a result, I have carefully reviewed the reasons and the transcript of the hearing. Regrettably, I find that the tenor of the RPD’s decision is harsh and abrasive. The language used in the notations to which Mr. Wang refers is unnecessarily severe. Worse still, it does not reflect the degree of professionalism that is expected of a quasi-judicial tribunal. Claimants are entitled to respect and disparaging comments are unacceptable.
[20] However, having carefully reviewed the transcript, I am satisfied that the impugned comments are not indicative of the conduct of the hearing. Aside from occasional exasperation as a result of Mr. Wang’s failure to respond to questions, the RPD was dispassionate and courteous throughout the hearing. There is no question that Mr. Wang received a fair hearing. While the impugned comments are not to be condoned, I am cognizant that the reasons are 22 pages in length and that Mr. Wang takes issues with five notations in the 22 pages. That said, the RPD member is cautioned to exercise restraint with respect to his choice of language in the future.
[21] Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: Imm-1575-06
STYLE OF CAUSE: Xiong Wang v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 23, 2007
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES:
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Shelley Levine
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Lena Jaakkimainen
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SOLICITORS OF RECORD:
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Levine Associates Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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