Federal Court Decisions

Date: 20131113

Docket:

IMM-10173-12

 

Citation: 2013 FC 1139

Ottawa, Ontario, November 13, 2013

PRESENT:    The Honourable Mr. Justice Shore

BETWEEN:
AI ZHEN ZHU SI MING YANG QI MING YANG
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

I. Overview

[1]               The test for reasonable apprehension of bias, as articulated by Justice Louis-Philippe de Grandpré in the often cited case of Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369:

…the apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information… [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

 

[2]               An applicant alleging bias must meet a very high threshold. He or she must provide “cogent evidence” demonstrating that something a Refugee Protection Division [RPD] member has done gives rise to a reasonable apprehension of bias (R v RDS, [1997] 3 SCR 484 at para 116-117). As stated in Arthur v Canada (Attorney General), 2001 FCA 223, allegations of bias cannot be done lightly:

[8]        … An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard … [Emphasis added].

 

[3]               In the present case, the Applicants’ key disagreement on the RPD’s credibility assessment is related to its rejection of some of the documentary evidence submitted by them. The Applicants contend that the RPD member’s credibility concerns regarding certain elements of the record were insufficient grounds for “disbelieving all of the Applicants’ allegations” and rejecting that evidence.

 

[4]               This contention is not in line with this Court’s jurisprudence. It is well-established that general findings of lack of credibility can affect all relevant evidence submitted by an applicant, including documentary evidence, and ultimately cause the rejection of the claim (Ayub v Canada (Minister of Citizenship and Immigration), 2004 FC 1411 at para 8-9, Nijjer v Canada (Minister of Citizenship and Immigration), 2009 FC 1259; Alonso v Canada (Minister of Citizenship and Immigration), 2008 FC 683).

 

II. Introduction

[5]               The Applicants seek a judicial review of a decision by the RPD of the Immigration and Refugee Board, dated September 10, 2012, wherein, it was determined that they are not Convention refugees under section 96 nor persons in need of protection under section 97 of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA].

 

III. Background

[6]               The Principal Applicant, Ms. Ai Zhen Zhu, and her two adult children, Si Ming Yang (a daughter) and Qi Ming Yang (a son, who is developmentally challenged), are citizens of the People’s Republic of China [China], from the Guangdong province.

 

[7]               The Principal Applicant indicates in her application that she began attending an underground Catholic house church in January 2009 (due to her son’s developmental challenges which had improved through music combined with words, which he was able to retain and express) and her husband joined her therein in September 2009.

 

[8]               In December 2009, the Principal Applicant states that the house church they attended was raided by the authorities. She was not in attendance; however, her husband was. He managed to escape and went into hiding. The same day, she joined her husband, leaving her children in the care of her sister who moved into her house.

 

[9]               On December 29, 2009, the Principal Applicant states that her sister informed her that the Public Security Bureau had come to her house to arrest her and her husband. A few days later the Public Security Bureau returned with a summons for their arrest. Shortly thereafter, she explains her daughter was expelled from school.

 

[10]           The Principal Applicant decided to leave China and arrived to Canada on January 22, 2010, using fake passports. She and her two children claimed refugee protection three days later.

 

[11]           The Applicants were first scheduled to attend a refugee hearing on December 22, 2011; however, the Principal Applicant indicated she was not feeling well that day and the hearing did not proceed.

 

[12]           The RPD set a show cause hearing for March 29, 2012, for which the Principal Applicant was asked to bring a medical note to explain her illness from the first hearing.

 

[13]           The Applicants appeared for the show cause hearing; and, as requested, the Principal Applicant provided a medical note explaining her illness of December 22, 2011; however, this hearing did not proceed as the interpreter was unable to understand the Applicants. The hearing was adjourned to June 14, 2012; however, the hearing was again postponed due to an adequate interpreter not being available.

 

[14]           On August 9, 2012, the Applicants appeared before the RPD, but the Principal Applicant was again absent due to illness. The hearing was adjourned, again, to August 30, 2012.

 

[15]           On August 30, 2012, the Applicants appeared again before the RPD. The Principal Applicant was present at this hearing and provided the RPD with a note from an Acupuncture and Osteopathic Clinic to explain her absence on August 9, 2012. This note indicated that the Principal Applicant had had flu symptoms, sore throat and fever on that date. The RPD noted that the medical note contained some irregularities (notably different coloured writing), but proceeded with the hearing.

 

[16]           Prior to commencing their representations on the merits of their claim, the Applicants requested that the RPD member recuse himself on the basis that a reasonable apprehension of bias existed. The Applicants also requested a further adjournment in order to prepare the recusal motion in writing.

 

[17]           At the hearing, the Applicants claimed that they feared the RPD member had a bias against Catholics from China due to his previous acceptance rate for refugee claims from that country and based on an article they had read in a Chinese newspaper regarding his acceptance rate. The Applicants also claimed that they feared that the RPD member’s off-the-record comments to another lawyer of their counsel’s firm regarding the unlikelihood of success in bias motions fettered his discretion.

 

[18]           The RPD dismissed both requests and proceeded with hearing the matter on the merits.

 

[19]           On September 10, 2012, the RPD found that the Applicants were neither Convention refugees nor persons in need of protection.

IV. Decision under Review

Recusal Motion

[20]           On the Applicants’ recusal motion, the RPD first denied the Applicants’ request to adjourn the hearing to give them time to make their recusal motion in writing. The RPD noted that the Applicants’ counsel had adequate opportunity to prepare a written motion prior to the hearing as she had been in possession of the relevant documents since June 2012 and it had been 20 days since the last attempted sitting.

 

[21]           The RPD also did not accept the Applicant’s allegation that a reasonable apprehension of bias existed. The RPD found:

• The affidavit submitted by another lawyer of the Applicants’ counsel’s firm was not made contemporaneously to the alleged conversation that took place with the RPD member, but rather, 13 days later; it would also have been paraphrased and subject to differing interpretations. Likewise, the Board found that it was implausible that the RPD member would have made such comments as it is not his usual practice to discuss bias motions outside the hearing room; therefore, the RPD member determined he was free to decide the other bias allegations before him;
• Statistical evidence of acceptance rates, in and of themselves, cannot constitute a bias argument. The statistics provided no analysis of the content of the RPD member’s decisions;
• The Applicants did not provide the RPD a copy of the news article that they claimed formed their opinion that the RPD member was biased against Catholics from China, therefore, it could give little weight to this evidence.

 

[22]           Based on these findings, the RPD found that the Applicants had provided insufficient grounds and evidence to support their bias motion. The RPD found that a reasonable, informed person, viewing the matter realistically and practically, would not conclude that, in these circumstances, the RPD member would fail to decide the Applicants’ claim fairly.

 

Credibility finding

[23]           The RPD determined that the Applicants were not credible and that they had not established a serious possibility of persecution or that they would be personally subject to a risk to their lives of cruel and unusual treatment or punishment if they were returned to China.

 

[24]           The RPD firstly found that the Principal Applicant’s failure to provide evidence of the news article that formed her family’s opinion of bias whichsignificantly diminished her overall credibility. The RPD drew a negative credibility inference from this fact as it raised concerns that she was willing to put forward unsubstantiated allegations in support of a bias motion.

 

[25]           The RPD also found that the Principal Applicant’s disclosure at the hearing that she also feared being returned to China after being forcibly sterilized diminished her credibility. She had not made any mention of this fact in her Personal Information Form [PIF] or in the other immigration forms. The RPD therefore assigned a negative credibility inference to what it perceived to be an embellishment of her narrative.

 

[26]           The RPD further found a number of irregularities in the evidence regarding key issues in the Principal Applicant’s claim and raised concerns about the authenticity of a number of documents provided as evidence, such as her medical note drafted in two different coloured pens, a faxed summons for her arrest, a faxed jail visiting card from a church member’s relative, and her daughter’s notice of suspension from school. Without any method to determine the genuineness of these documents, and given the prevalence of fraudulent documents that exist in China, as per the RPD’s specialization, as well as the Principal Applicant’s already diminished credibility, the RPD gave these documents significantly less weight than the objective documentary evidence on record. The RPD also gave the Principal Applicant’s oral testimony and her PIF less weight as it contained a number of inconsistencies and omissions.

 

[27]           On the whole, the RPD found that the Applicants’ allegations were not supported by the objective documentary evidence. The RPD concluded that the Applicants would not be at risk if returned to the Guangdong province because the weight of the evidence indicated that members of small unregistered house churches were not generally subject to persecution in Guangdong. In this regard, the RPD noted that the documentary evidence “does not support the claimant’s allegations that police and government officials are interested in closing underground Catholic churches in Guangdong” (Decision at para 34). The RPD also went on to state that “there is little or no persuasive evidence that officials are interested in persecuting regular underground Catholic Church parishioners” (Decision at para 53). The RPD further noted that there had been no record in any of the documentary evidence that the house church she attended in the Guangdong province had been raided or its members arrested. The absence of such corroboration to the Applicants’ testimony led the RPD to draw a further negative inference. As such, the RPD found that the Applicants’ allegation of persecution was not credible.

 

[28]           Based on the RPD’s credibility findings, as well as its overall conclusion that the Applicants’ version of events in China was inconsistent with the documentary evidence, the RPD concluded that the Applicants had not met their burden of establishing that their allegation of risk of persecution or torture was true.

 

V. Issues

[29]           (1) Did the RPD err by dismissing the Applicants’ recusal motion?

(2) Is the RPD’s credibility determination reasonable?

(3) Is the RPD’s assessment of the risk faced by the Applicants in the Guangdong province reasonable?

 

VI. Relevant Legislative Provisions

[30]           The following legislative provisions of the IRPA are relevant:

 

VII. Position of the Parties

[31]           The Applicants first assert that the RPD member committed a breach of natural justice by refusing to recuse himself. Citing the well-established case of Committee for Justice and Liberty, above, the Applicants submit that they were deprived of a fair hearing due to the RPD member’s bias, and that an informed person viewing the matter realistically and practically, and having thought the matter through, would also perceive bias on the part of the RPD member. In particular, the Applicants assert that their apprehension of bias was fully supported by:

• The published RPD recognition rates for 2011, which indicates that the RPD member accepted 0% of the 127 refugee claims he heard from China that year;
• The testimony of the Principal Applicant and her adult daughter who assert they would be deprived of a fair hearing if the RPD member presided over the case as they read in a Chinese news article that he was biased toward Catholic refugees from China;
• An affidavit from Ms. Lindsay Weppler, a lawyer working for the same law firm as the Applicants’ counsel, wherein, she recounts off-the-record comments made by the RPD member to the effect that motions for recusal based on recognition rates are a “waste of time”; and
• An access to information request made by counsel to the RPD concerning the distribution of refugee cases to RPD members, which indicated that the RPD member had no particularly complex refugee cases in 2011 that could be distinguished from those assigned to other RPD members.

 

[32]           The Applicants also advance that the RPD’s credibility findings were based on irrelevant considerations and that they were overly tainted by the Applicants’ bias motion. The Applicants challenge mainly the negative credibility inferences drawn by the RPD from the documentary evidence presented by them, notably the medical note, the Chinese newspaper article, the jail visiting card, the summons for the Principal Applicant’s arrest, and her daughter’s notice of suspension from school. The Applicants state that there was no reasonable basis to reject these documents.

 

[33]           The Applicants further argue that the RPD misconstrued the documentary evidence on file and applied an unduly limited definition of religious freedom. The Applicants contend that, similar to the case in Weng v Canada (Minister of Citizenship and Immigration), 2011 FC 1483, the RPD erred in asserting that there was no information regarding suppression or persecution in the Guangdong province simply because of a lack of information regarding underground Catholics in that province, and by focusing on the lack of evidence regarding raids or arrests. The Applicants submit that this, in and of itself, does not demonstrate that there is religious freedom in their province.

 

[34]           The Applicants also make reference to Liang v Canada (Minister of Citizenship and Immigration), 2011 FC 65, in support of their position that the RPD’s conclusion that they would not be persecuted in Guangdong was not reasonable. The Applicants argue that there are certain reports of persecution and destruction of house churches in the Guangdong province, which the RPD was required to consider.

 

[35]           In response to the Applicants’ claims regarding bias, the Respondent submits that the Applicants failed to meet the high threshold to establish a reasonable apprehension of bias (R v RDS, [1997] 3 SCR 484 at para 113). The Respondent contends that the Applicants failed to present any cogent evidence that demonstrates that the decision-maker did anything that gives rise to a reasonable apprehension of bias.

 

[36]           With regard to the RPD’s credibility findings, the Respondent submits that the Applicants are asking the Court to re-weigh the evidence and arrive at a different conclusion. The Respondent maintains that the RPD thoroughly reviewed all of the evidence and the Applicants failed to show a reviewable error.

 

VIII. Analysis

Standard of Review

[37]           The applicable standard for issues involving the RPD’s weighing of evidence or findings of credibility is the standard of reasonableness (Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732, (QL/Lexis) (FCA) at para 4).

 

[38]           Conversely, issues of procedural fairness such as that of reasonable apprehension of bias are reviewed on a standard of correctness (Azziz v Canada (Minister of Citizenship and Immigration), 2010 FC 663, 368 FTR 281; Dhaliwal v Canada (Minister of Citizenship and Immigration), 2010 FC 7 at para 27).

 

(1) Did the RPD err by dismissing the Applicants’ recusal motion?

[39]           The test for reasonable apprehension of bias, as articulated by Justice de Grandpré in the often cited case of Committee for Justice and Liberty, above:

…the apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information… [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

 

[40]           An applicant alleging bias must meet a very high threshold. He or she must provide “cogent evidence” demonstrating that something an RPD member has done gives rise to a reasonable apprehension of bias (R v RDS, above, at para 116-117). As stated in Arthur, above, allegations of bias cannot be done lightly:

[8]        … An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard … [Emphasis added].

 

[41]           In the present case, the Applicants argue that the published RPD recognition rates for 2011, the testimony of the Principal Applicant and her adult daughter, an affidavit from Ms. Lindsay Weppler regarding off-the-record comments made by the RPD member to the effect that motions for recusal based on recognition rates are a “waste of time”, and an access to information request concerning the distribution of refugee cases to RPD members give rise, collectively, to a reasonable apprehension of bias in this case, and that the RPD erred in not making such a finding. The Court disagrees with this proposition.

 

[42]           In assessing whether there was a reasonable apprehension of bias on the part of the Applicants, the RPD member considered all of the above documentary and testimonial evidence – except for the news article referred to by the Applicants in their testimony and the documentary evidence regarding the access to information request, neither of which were provided to the RPD; however, the RPD considered the evidence to be insufficient to substantiate their claim. The Court cannot reassess this evidence or reweigh the factors of the bias claim.

 

[43]           In its reasons, the RPD paid particular attention to the evidence advanced by the Applicants regarding the RPD member’s recognition rates of 2011; as it was the key aspect of their claim. The RPD found that, as no statistical analysis had been performed of an expert nature on this data, there were no reasonable conclusions that could be drawn from it. The Court agrees. The data presented by the Applicants provides no analysis of the rational that went into making these decisions nor does it assess any of the factors within these decisions that could reveal a bias. The Court cannot accept that these statistics, in and of themselves, are indicative of a bias. As stated by Justice Russel Zinn in Turoczi v Canada (Minister of Citizenship and Immigration), 2012 FC 1423, an “acceptance and rejection rate alone says nothing to the ‘informed person’” (at para 14).

 

[44]           As for the other evidence provided by the Applicants to support the bias motion, the Court finds the RPD was also reasonable in its assessment. The affidavit of Ms. Weppler relates to off-the-record comments for which this Court has no context and which were made nearly two weeks prior to Ms. Weppler signing her affidavit. Similarly, the Applicants’ testimonial evidence relied primarily upon documentary evidence (a Chinese news article) that was not even before the RPD; the Applicants could not provide a credible explanation for why they did not submit the article to the RPD before the hearing.

 

[45]           Based on these circumstances, the Court cannot see how an informed person, viewing the matter realistically and practically, and having thought the matter through, could have concluded any differently than the RPD member did in this case. The Court thus finds that the allegation of bias made by the Applicants’ counsel has no merit.

 

[46]           Moreover, the Court finds that the serious allegation of bias made by the Applicants’ counsel in the RPD member’s regard seems to be a rather disproportionate response to his negative decision on this issue. It would also appear provocative to attack a sitting member of the RPD with the language used by counsel; in example, the Court cites, at paragraph 17 of the Applicants” Memorandum of Law and Argument: “It is therefore submitted that the Board member’s assessment of Ms. Weppler’s evidence was self-serving and perverse.”

 

(2) Is the RPD’s credibility determination reasonable?

[47]           As clearly laid out in the jurisprudence, it is not sufficient for an applicant to demonstrate that different conclusions could have been reached based on the evidence in a judicial review (Lan Cao v Canada (Minister of Citizenship and Immigration), 2012 FC 1398, 422 FTR 108; Sun v Canada (Minister of Citizenship and Immigration), 2008 FC 1255 at para 3). Likewise, an applicant has the onus to demonstrate that the RPD’s findings in a decision are perverse, capricious or based on a misapprehension of the evidence before it (He v Canada (Minister of Citizenship and Immigration), 2010 FC 525).

 

[48]           In the present case, the Applicants’ key disagreement on the RPD’s credibility assessment is related to its rejection of some of the documentary evidence submitted by them. The Applicants contend that the RPD member’s credibility concerns regarding certain elements of the record were insufficient grounds for “disbelieving all of the Applicants’ allegations” and rejecting that evidence.

 

[49]           This contention is not in line with this Court’s jurisprudence. It is well-established that general findings of lack of credibility can affect all relevant evidence submitted by an applicant, including documentary evidence, and ultimately cause the rejection of the claim (Ayub, above, at para 8-9, Nijjer, above; Alonso, above).

 

[50]           The Court does not find that the RPD’s credibility determination was based on insufficient or irrelevant considerations. The RPD based its decision on irregularities in the Principal Applicant’s medical note, inconsistencies and omissions in her PIF and oral testimony. The RPD also drew a significant negative credibility inference from the Principal Applicant’s failure to provide documentary evidence that was central to her claim and readily available to her and her counsel (e.g. the access to information request, the Chinese news article regarding the RPD member’s recognition rates). These factors seriously discredited the Principal Applicant’s allegations. The Court finds that the RPD was reasonably open to conclude as it did.

 

(3) Is the RPD’s assessment of the risk faced by the Applicants in the Guangdong province reasonable?

 

[51]           On the whole, the Court does not find that the RPD erred in its conclusion regarding the potential risk faced by the Applicants if returned to China. In its reasons, the RPD clearly demonstrated that it had read and considered the totality of the documentary evidence on the record, and provided an adequate explanation of the basis upon which the decision was reached.

 

[52]           It is clear that the RPD was aware of the mixed evidence relating to the treatment of Catholics in the Guangdong province of China. In its ten-page findings, relating to the allegations of risks faced by the Applicants, the RPD acknowledged that the country conditions documentation revealed that there were “large discrepancies” in the treatment of Catholics throughout China and that the risk varied significantly from one province to another. The RPD also noted the existence of conflicting evidence with respect to the treatment of Catholics in the Guangdong province more specifically (Decision at para 44-45). The RPD ultimately found, however, that the Fujian and Guangdong provinces were more tolerant of Catholics than the other provinces.

 

[53]           The RPD further noted that there was limited objective documentary evidence on arrest or raids that have actually taken place in underground churches in these areas; which it considered to be an important indicator as to whether there was a serious risk of persecution in the Guangdong province. The RPD concluded that, if there had been raids or arrests of Catholics in Guangdong as alleged by the Applicants, there would logically be some documentation in this regard available, as such documentation regarding the treatment of Catholics was available in much more remote areas of China. The RPD referred to the cases of Nen Mei Lin v MCI, IMM-5425-08, Zhang v Canada (Minister of Citizenship and Immigration), 2011 FC 654 and Wang v Canada (Minister of Citizenship and Immigration), 2011 FC 636, in support of this position.

 

[54]           The Court concludes that it cannot interfere with the RPD’s decision in this matter as its findings were reasonably open for it to make based on the evidence. The RPD properly weighed the evidence that was before it. The decision, therefore, falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).

 

IX. Conclusion

[55]           For all of the above reasons, the Applicants’ application for judicial review is dismissed.

 

JUDGMENT

THIS COURT ORDERS that the Applicants’ application for judicial review be dismissed with no question of general importance for certification.

 

 

 

"Michel M.J. Shore"

 

 

FEDERAL COURT

SOLICITORS OF RECORD

 

DOCKET:	IMM-10173-12
STYLE OF CAUSE:	AI ZHEN ZHU SI MING YANG QI MING YANG v THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:

                                                            Toronto, Ontario

 

DATE OF HEARING:

                                                            November 7, 2013

 

REASONS FOR JUDGMENT AND JUDGMENT:

                                                            SHORE J.

DATED:

                                                            November 13, 2013

APPEARANCES:

Georgina Murphy	For The ApplicantS
Bridget A. O'Leary	For The Respondent

 

SOLICITORS OF RECORD:

Otis & Korman Barristers and Solicitors Toronto, Ontario	For The ApplicantS
William F. Pentney Deputy Attorney General of Canada Toronto, Ontario	For The Respondent