Date: 20030703
Docket: IMM-5271-02
Citation: 2003 FC 831
Vancouver, British Columbia, July 3, 2003
Present: The Honourable Madam Justice Temblay-Lamer
BETWEEN:
WEI GUO PAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[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 (the AAct@) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the ABoard@) dated October 11, 2002, wherein the Board determined that the applicant was not a Convention refugee, and not a person in need of protection.
[2] The applicant is a citizen of China. He claims a well-founded fear of persecution by reason of his association with the Falun Gong.
[3] The Board rejected his claim on the basis that he was not credible, and gave reasons for why it did not find his evidence credible. The Board commented on the applicant=s demeanour and reticence when answering questions, and found that it was not indicative of someone who was recalling actual events or personal knowledge.
[4] It is well established that the Board is entitled to decide adversely with respect to an applicant=s credibility based on contradictions and inconsistencies in an applicant=s story, or based on evidence that is implausible. Where such findings are clearly made and reasons are given, this Court should not interfere, even if the evidence could conceivably lead to a difference conclusion (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). An assessment of demeanour should also not be interfered with by a reviewing Court, as it lacks the advantages available to the trier of fact (Wen v. Canada, (Minister of Employment and Immigration), [1994] F.C.J. No. 907 (Q.L.)).
[5] According to the applicant, the crux of the Board=s adverse credibility finding was founded on his inability to explain the difference between the numbers in his ID card and his household transfer certificate.
[6] After the hearing, his counsel sent a supplemental letter, dated October 1, 2002, indicating that the sister of the applicant also had differences between her ID card and her household registration card.
[7] The applicant points out that the Board made its decision without this letter. The Board failed to consider a material piece of evidence which not only contradicted the Board=s conclusions, but was also central to the Board=s assessment of the applicant=s character. In failing to consider the totality of the evidence before it, the Board made a serious error of law.
[8] The respondent submits that the applicant did not comply with either the procedural or substantive requirements when he submitted his post-hearing evidence.
[9] Section 37 of the Refugee Protection Division Rules (SOR/2002-228) requires an applicant to make a written application to provide evidence to the Board after the hearing, which was not done in the present case.
[10] I agree with the respondent that the applicant did not comply with the procedural and substantive requirements when he submitted his post-hearing evidence. However, more importantly, the evidence indicates that the Board member did not see the letter prior to signing his Reasons. Thus, the Board member was functus officio and as such, was not able to consider any further evidence and submissions (Tambwe-Lubemba et al v. Canada (Minister of Citizenship and Immigration) (2000), 264 N.R. 382 (F.C.A.)).
[11] The applicant further argues that the Board made errors of fact about the theory and practice of Falun Gong and the prosecution of its practitioners.
[12] In raising this issue, the applicant is challenging the weight the Board gave to the documentary evidence. The documentary evidence indicates that Falun Gong practitioners are being punished both criminally and administratively, and that a summons can be used in either circumstances. The Board considered the applicant=s testimony in the context of this evidence and determined that a lack of summons was indicative of the police=s lack of interest in him. This finding was reasonable in the circumstances and does not constitute an error on the part of the Board.
[13] With regard to the applicant=s answers to questions about the Falun Gong, the Board considered and weighted the applicant=s testimony in the context of the documentary evidence, and concluded that he did not have an in depth knowledge of Falun Gong. The Board=s adverse credibility finding was also based on the applicant=s inability to expand on basic concepts and elaborate on his answers. When asked to explain the benefits of Falun Gong, he would only simply cite a fact relating to Falun Gong. As stated by the Board in its decision, the applicant=s knowledge of Falun Gong betrayed a superficial familiarity that could have been gained by reading introductory literature on the subject. This finding was also reasonable in the circumstances.
[14] The applicant further argues that the Board erred in drawing an adverse inference based on his delay in leaving the country.
[15] In my view, it was reasonable for the Board to conclude that the fact that the applicant took over a year and three months to leave China when the police were looking for him was inconsistent with someone fearing persecution. It was also reasonable for the Board to determine that the applicant=s explanation, that he was waiting for his cousins to secure visas for him, was unsatisfactory given the atmosphere of anti-Falun Gong hysteria that prevailed in China at this time. If the applicant was indeed a Falun Gong practitioner, it is unlikely that he would have remained in such a dangerous environment without making some more immediate attempt to leave the country than seeking a legal visa.
[16] In summary, I am of the view that the Board=s conclusions with respect to the applicant=s credibility were reasonable and supported by the evidence. The applicant has failed to show that the Board=s credibility findings were arbitrary, capricious, or made without regard to the evidence.
[17] For all these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
(Sgd.) ADanièle Tremblay-Lamer@
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5271-02
STYLE OF CAUSE: WEI GUO PAN v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 2, 2003
REASONS FOR ORDER AND ORDER: TREMBLAY-LAMER J.
DATED: July 3, 2003
APPEARANCES:
Ms. Nora Ng FOR APPLICANT
Ms. Caroline Christiaens FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada