Huang v. Canada (Citizenship and Immigration)

Huang v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-08-10
Neutral citation
2017 FC 762
File numbers
IMM-53-17
Decision Content
Date: 20170810
Docket: IMM-53-17
Citation: 2017 FC 762
Ottawa, Ontario, August 10, 2017
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
GUIMEI HUANG
JIAHAO WU
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada [IRB], dated December 14, 2016 [Decision], which rejected the Applicants’ claims for refugee protection pursuant to ss 96 and 97(1) of the IRPA.
II. BACKGROUND
[2] The Applicants are citizens of the People’s Republic of China. They are a mother [Principal Applicant] and son [Minor Applicant] and allege that they fear persecution for reasons relating to the Principal Applicant’s practice of Falun Gong.
[3] The Principal Applicant began practicing Falun Gong in May 2013. She says she was introduced to the practice by a friend who believed that Falun Gong would help her relax and improve her health, which had deteriorated after her husband left her for another woman in 2011 and then disappeared in September 2012. The Principal Applicant claims she attended group practice with her friend on Saturdays and also practiced daily at home.
[4] In May 2014, the Principal Applicant traveled to Japan and was required to work overtime upon her return. Consequently, she did not attend her Falun Gong practice group. On the second day after her return from Japan, the Principal Applicant says her mother-in-law telephoned to inform her that the Public Security Bureau [PSB] had arrested the other four members of her practice group and demanded the Principal Applicant report to them immediately. The Principal Applicant hid at the home of her former schoolmate; during this time, she claims the PSB continued to seek her and also threatened her parents-in-law. The Principal Applicant subsequently hired a smuggler to help her and her son flee to Canada.
[5] On August 22, 2014, the Applicants arrived in Canada and made claims for refugee protection. Their application was heard on July 11 and 26, 2016 and rejected by the Refugee Protection Division [RPD] of the IRB on August 8, 2016. The Applicants appealed the RPD’s decision to the RAD.
III. DECISION UNDER REVIEW
[6] In a Decision dated December 14, 2016, the RAD confirmed the RPD’s decision and dismissed the Applicants’ appeal.
A. Reason for Joining Falun Gong
[7] The RAD concurred with the RPD that the lack of corroborative evidence regarding the issue that prompted the Principal Applicant to join Falun Gong, namely her husband’s disappearance in 2012, called into question why she would turn to an illegal cult.
B. Practice of Falun Gong
[8] The RAD concurred with the RPD and drew a negative inference due to the inconsistency between the Principal Applicant’s Basis of Claim [BOC] form and testimony at the RPD hearing regarding the frequency of her Falun Gong practice. The RAD rejected the explanation that the inconsistency was due to incorrect instructions from her counsel’s staff because the BOC instructions were clear and the Principal Applicant had been represented by competent counsel.
C. Arrest of Four Co-Practitioners
[9] The RAD concurred with the RPD that it was not reasonable or plausible for the Principal Applicant to omit from her claim that she had asked her former schoolmate to ask about the other co-practitioners. The RAD rejected the explanation that her counsel’s staff had instructed her to omit the information because the instructions were clear to state all important information and the detainment of all her co-practitioners was an integral portion of the evidence.
D. Copy of Zhuan Falun
[10] The RAD concurred with the RPD that the inconsistency in the testimony before the RPD regarding where the Principal Applicant kept her copy of her Zhuan Falun book called into question whether she actually had a copy or ever read it. The RPD had found it was unreasonable and implausible that the Principal Applicant would read this complex book once and then cease to study it after previously testifying that she read it daily.
E. Applicant’s Residency and Place of Hiding
[11] The RAD concurred with the RPD that, on a balance of probabilities, the Principal Applicant had not been in hiding as claimed in May 2014. At the RPD hearing, the Principal Applicant had testified that she had stayed in her original residence because she could not find a hiding place, but then changed her testimony to state that she had stayed with her former schoolmate. The RPD was not satisfied with the explanation and lack of corroborative evidence in this regard and, consequently, drew a negative inference. The RAD agreed.
F. Minor Applicant’s Expulsion
[12] The RAD concurred with the RPD’s finding that the Minor Applicant was not expelled from school. The Principal Applicant claimed she did not bring up her son’s expulsion at the RPD hearing because she misunderstood the question; however, the RPD did not find any corroborative evidence that her son or any of her family members had suffered ill-effects due to her practice of Falun Gong, despite the 8 alleged visits by the PSB. Based on the lack of evidence, the RAD rejected the explanation and agreed with the RPD’s finding.
G. Summons
[13] The RAD drew a negative inference from the lack of a summons issued by the PSB for the Principal Applicant. While the PSB’s policy on the issuance of a summons was not uniform across the country, the RAD noted that it was unreasonable for the PSB to not issue a summons in circumstances where the PSB had been vigorous in pursuing the Principal Applicant by attending her family home up to 8 times and arresting all her co-practitioners, who were allegedly still in detention.
H. Exit
[14] The RAD concurred with the RPD’s findings that it was not credible or plausible for the Principal Applicant to leave China using her own passport after coming to the attention of the PSB. The RAD further concluded that this finding undermined the Principal Applicant’s credibility regarding her allegations that she was pursued by the PSB as a result of her Falun Gong practice.
[15] In reviewing the documentation, the RAD noted that the Golden Shield, China’s national security computer network, contained information about criminal fugitives and passport information as well as extensive tracking and control mechanisms. The documentation indicated that the Golden Shield was used by airport security officials and had been used to detain people who were in the database. Additionally, the documentation indicated that the Golden Shield had been used to track down Falun Gong practitioners.
[16] The RAD then quoted the Exit and Entry Administration Law of China, which requires documentation for all travel and prohibits suspects or defendants in criminal cases from exiting the country. The RAD also referred to other documentation indicating that the Chinese border authorities have implemented exit control procedures and can prevent departure with or without complete control formalities, such as reporting up the hierarchy to the High People’s Court. The documentation also states that airport travellers pass through at least four checkpoints that require the presentation of a passport before exiting. Moreover, the Chinese authorities can deny exit if a traveller does not hold valid documentation or is a suspect in a criminal case.
[17] The RAD also reviewed the Principal Applicant’s evidence of the smuggler she used to exit China and found it to be vague and lacking in detail. The RAD found it reasonable to expect that the Principal Applicant, an individual expecting to avoid arrest and detention by leaving the country, would inquire about the services provided by a smuggler, particularly because she had testified that she joined Falun Gong only after being reassured there were safety measures in place. However, the RAD also noted that its plausibility conclusion was based on recent information in the National Documentation Package for China [NDP]. The RAD found it reasonable to expect that the Golden Shield and other systems would be used to prevent the compromise of airport security controls by a single individual, such as an official bribed by a smuggler. Furthermore, the RAD found that the evidence suggested the Principal Applicant’s passport had been examined numerous times during her exit and that it was improbable that a smuggler would have known who to bribe in order to facilitate safe passage through the airport.
[18] In support of the RAD’s finding, the Decision cited the RAD decision of X (Re), 2015 CanLII 72857 (CA IRB) [X (Re)], which found it unlikely that a wanted person could depart China from an international airport using their own passport.
[19] In light of the Principal Applicant’s allegation that the PSB continued to pursue her, the RAD found it reasonable to expect the authorities would have entered her information into the Golden Shield. While corruption exists, the documentation indicates that corrupt practices occur in departments concerning the management of funds, not airport security systems. Accordingly, the RAD did not accept that the Principal Applicant could bypass all of the security controls in place.
I. Sur Place
[20] The RAD concurred with the RPD that the Principal Applicant had not provided sufficient credible evidence to establish her identity as a Falun Gong practitioner or that she was wanted by the PSB. The RAD also found that the RPD could import credibility findings from the Principal Applicant’s testimony regarding her practice in China in the determination of her sur place claim. The RAD then found that there was insufficient credible evidence to establish that the Chinese authorities would be aware of the Principal Applicant’s alleged Falun Gong activities in Canada.
IV. ISSUES
[21] The Applicants submit that the following are at issue in this application:
Does the RAD’s analysis give rise to a reasonable apprehension of bias and a jurisdictional error?
In the alternative, did the RAD make unreasonable credibility findings?
V. STANDARD OF REVIEW
[22] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[23] Allegations of bias, if found, can give rise to a breach of procedural fairness and are reviewed under the correctness standard: Gaziova v Canada (Citizenship and Immigration), 2017 FC 679 at para 24.
[24] The standard of review applicable to the RAD’s factual findings regarding the Applicants’ credibility and assessment of the evidence, including an alleged deliberate omission of jurisprudence, is reasonableness: Chen v Canada (Citizenship and Immigration), 2017 FC 539 at para 19.
[25] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[26] The following provisions of the IRPA are relevant in this application:
Convention Refugee
Définition de réfugié
96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
96 A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97 (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
VII. ARGUMENTS
A. Applicants
(1) Apprehension of Bias and Jurisdictional Error
[27] The Applicants submit that the Decision raises a reasonable apprehension of bias and jurisdictional error, which is in itself sufficient to warrant judicial intervention.
[28] The Applicants argue that the RAD member deliberately omitted jurisprudence contradicting the finding that they would not have been able to leave China on their own passports if they were fugitives. The Applicants submit evidence in the form of an affidavit sworn by Michael Korman, an immigration counsel, that the RAD member deciding the case was aware of jurisprudence that overturned RAD decisions where the plausibility of claimants’ exits from China using their own passports was an issue on appeal, including: Zhang v Canada (Citizenship and Immigration), 2008 FC 533 at paras 5, 9, 10 [Zhang]; Sun v Canada (Citizenship and Immigration), 2015 FC 387 at paras 13, 26 [Sun]; Ren v Canada (Citizenship and Immigration), 2015 FC 1402 at para 16 [Ren]; Yang v Canada (Citizenship and Immigration), 2016 FC 543 at paras 12-14 [Yang]. Mr. Korman presented the aforementioned jurisprudence to the RAD member during the representation of his own clients in prior hearings, thereby demonstrating that the RAD member knew of these decisions. However, the Decision cites only X (Re), above, a decision that is not favourable to the Applicants.
[29] The test for an apprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369 at 394. The Applicants submit that the RAD’s conduct creates a perception that the jurisprudence favouring the Applicants was intentionally ignored because Applicants’ counsel was unaware of the jurisprudence, thus giving rise to a reasonable apprehension that the RAD member was biased. Furthermore, the Applicants submit that the RAD exceeded its jurisdiction by intentionally omitting this jurisprudence and became an adversary rather than an impartial decision-maker.
(2) Credibility Findings
[30] In the alternative, the Applicants submit that the RAD made unreasonable credibility findings that warrant judicial intervention.
(a) Exit from China
[31] In addition to the submissions on bias above, the Applicants submit that the finding on the plausibility of the Applicants exiting China on their own passports is unreasonable because it is based on the speculative assumption that the smuggler could not ensure their unobstructed passage. Moreover, the RAD acknowledged “isolated incidents of successful evasion” and that “it might be possible for a smuggler to bypass some of the security controls.” The RAD also did not question the RPD’s finding that corruption in China existed. Consequently, the Applicants submit that it is not clear how it is implausible for a smuggler to evade border controls by bribing airport officials and bypassing security measures.
[32] In support of this argument, the Applicants rely on jurisprudence in which the Court has overturned decisions where the issue concerns whether an applicant could exit China via the airport on their own passports: Zhang; Sun; Ren; Yang, all above; and Yao v Canada (Citizenship and Immigration), 2016 FC 927 at para 9 [Yao].
(b) Motivation for Joining Falun Gong
[33] The Applicants submit that it was unreasonable for the RAD to reject their explanation for the lack of evidence concerning the Principal Applicant’s husband’s departure in 2011 and his disappearance in 2012. The Principal Applicant explained that her family had not provided affidavits because they were illiterate and did not want to get involved. Additionally, her friend told her to forget about the events in China and did not know how to write the contents of the letter. The Applicants submit that it is reasonable to expect that illiterate family and friends will not be able to provide written evidence, and will be reluctant about involvement in an international refugee claim against the country in which they still reside. The RAD’s finding is based on pure conjecture and is therefore unreasonable: Yu v Canada (Citizenship and Immigration), 2015 FC 167 at para 12.
(c) Summons
[34] The Applicants take the position that it was unreasonable for the RAD to conclude that the Principal Applicant was not credible in her allegations of pursuit by the PSB due to a lack of a summons. The RAD acknowledges that the PSB was not consistent in issuing summonses and does not cite evidence to support its assumption that the PSB would have issued a summons in the Principal Applicant’s circumstances. Moreover, this Court has found if the norm in an applicant’s region is for the PSB to not leave a summons, then the norm is presumed to be followed regardless of the number of visits from the PSB: Liang v Canada (Citizenship and Immigration), 2011 FC 65 at paras 13-14 [Liang]. Furthermore, even if a summons had been issued, there is no evidence that the Principal Applicant would be aware of it since her family and friends would not necessarily be notified. Accordingly, the Applicants submit that this conclusion is arbitrary, speculative, and lacks transparency.
(d) Copy of Zhuan Falun
[35] The Applicants argue that, contrary to the RAD’s finding, the Principal Applicant’s testimony regarding the whereabouts of her Zhuan Falun book is not an omission or a contradiction. The Principal Applicant had stated that she read the book every day; later, she stated that she hid the book after she finished reading it. This is neither inconsistent nor an omission and is not a basis for an adverse credibility finding.
(e) Minor Applicant’s Expulsion
[36] The Applicants also submit that the RAD’s rejection of the Principal Applicant’s explanation for not raising the issue of her son’s expulsion from school is unreasonable. The Principal Applicant misunderstood the question and thought she was asked whether her son had ever attended school, not whether he attended after the PSB began their pursuit of her. She did not raise the issue because she did not know there was a misunderstanding.
(f) Sur Place
[37] The Applicants take the position that the RAD’s assessment of the sur place evidence was unreasonable. By the time the analysis reached the sur place submissions, the RAD had already determined the Principal Applicant was not credible and her allegations were false, thereby tainting the sur place analysis: Liu v Canada (Citizenship and Immigration), 2014 FC 972 at para 8. The Applicants also take issue with the RAD’s failure to appreciate that the Chinese authorities monitor the movements of Falun Gong practitioners in Canada, as demonstrated by the documentary evidence, and use facial recognition technology to identify people of interest. This evidence, in conjunction with the fact that the PSB has the Principal Applicant’s photograph from her resident identity card, demonstrates more than the mere possibility that the Chinese authorities are aware of her pro-Falun Gong activities in Canada and that she could be identified, as found in Liang v Canada (Citizenship and Immigration), 2016 FC 258 at para 13.
B. Respondent
(1) Credibility Findings
[38] The Respondent submits that the RAD’s credibility findings are reasonable.
(a) Exit from China
[39] The Respondent submits that, given the documentary evidence regarding the use and reach of the Golden Shield, it was reasonable for the RAD to find it highly unlikely that a smuggler would have prior knowledge of who to bribe in order to facilitate safe passage through the airport, particularly since the Applicants traveled on their own passports and alleged that the PSB were in continuous and vigorous pursuit. It was also reasonable for the RAD to expect that the local authorities would have entered the Principal Applicant’s information into the Golden Shield. Moreover, the RAD was reasonable in finding that despite the possibility that some security controls could be bypassed, it was highly unlikely that all of the controls could be bypassed.
[40] The Respondent views the Applicants’ argument that the RAD should have considered the possibility that all the controls could be circumvented as an alternate inference from the evidence. However, it is insufficient to demonstrate that another conclusion could have been reached; the Applicants have the onus to demonstrate that the RAD’s inferences were not supported by the evidence, which they failed to do. Additionally, the Applicants have failed to provide evidence that supports the alternative inferences, i.e. how the smuggler could have bypassed all of the security controls.
[41] The Respondent also takes the position that the RAD was reasonable in finding that the Principal Applicant’s evidence regarding the smuggler was vague and lacking in detail. It is reasonable to expect that an individual who leaves a country in order to avoid arrest and detention would want to know how the smuggler plans to ensure safe passage.
[42] Furthermore, the Respondent argues that the Applicants’ particular reliance on Sun and Ren, both above, are misplaced. The evidence in Sun regarding information sharing is outdated as it is dated July 2009, whereas the RAD relied upon a NDP dated April 29, 2016 that indicates the Chinese authorities have expanded the breadth and complexity of the information-sharing regime and have tightened airport security. Ren, on the other hand, is not applicable because the suggestion in that decision was that bribing a single individual would be sufficient in facilitating an exit from China without difficulty; in the present case, the Applicants’ arguments imply that the smuggler could remove the Principal Applicant’s information from the Golden Shield. Based on the evidence on the Golden Shield, it was reasonable to expect that the system could not be compromised by a single individual. Additionally, the Principal Applicant’s allegation that the PSB continues to pursue her undermines the suggestion that her information was removed from the system.
[43] The Respondent also argues that the jurisprudence cited by the Applicants in regards to this issue does not mean the RAD may never draw adverse inferences when a Chinese fugitive is able to exit the country using their own passport. Each decision must be based on the facts of each case, the analysis conducted, and the documentary evidence before the tribunal. Moreover, there are decisions from this Court in which such an adverse finding has been found to be reasonable: Ma v Canada (Citizenship and Immigration), 2015 FC 838 at para 53 [Ma]; Lin v Canada (Citizenship and Immigration), 2008 FC 698 at paras 10, 13, 16 [Lin]; Sui v Canada (Citizenship and Immigration), 2016 FC 406 at paras 37-43 [Sui].
(b) Motivation for Joining Falun Gong
[44] Despite the RPD’s request, the Principal Applicant failed to provide evidence to support her husband’s disappearance in 2012. As this was the reason she allegedly began practicing Falun Gong, it was reasonable for the RAD to concur with the RPD that the lack of corroborative evidence called into question the Principal Applicant’s motives for practicing Falun Gong. The Respondent also argues that the RAD’s concern was the absence of any evidence regarding her reasons for joining Falun Gong that would establish her claim, not whether her family and friends were illiterate.
(c) Summons
[45] Given the Principal Applicant’s assertion that the PSB remained in continuous and vigorous pursuit of her, the Respondent submits that it was reasonable for the RAD to conclude that a summons likely would have been issued if the allegations were true, even though the PSB’s policy on the issuance of summonses may not be uniform across China. As in Lan Cao v Canada (Citizenship and Immigration), 2012 FC 1398 at para 35, the documentary evidence did not directly contradict the RAD’s finding in this regard. Additionally, the Respondent argues that it was reasonable for the RAD to expect the Principal Applicant would have been aware of a summons if one were issued since she was in communication with her mother-in-law and the PSB had allegedly visited her mother-in-law’s home several times.
[46] Nonetheless, the Respondent submits that this issue is not determinative as there were other inconsistencies. The RAD’s credibility finding was based on the totality of the discrepancies; as such, even if this is an error the Decision may still be upheld: Nyathi v Canada (Minister of Citizenship and Immigration), 2003 FC 1119 at para 18.
(d) Copy of Zhuan Falun
[47] The Respondent takes the position that the testimony regarding the location of the Zhuan Falun book contains an inconsistency. The Principal Applicant originally stated that she read the Zhuan Falun book at home daily and only went to the practice site on the weekend, but she then stated that she hid the book at the practice site. The RAD rejected the explanation that she had hidden the book after finishing it because she had omitted her completion of the book and because the book was complex. Given the Principal Applicant’s testimony that she read the book daily in China, it was reasonable for the RAD to make its findings on this issue.
(e) Minor Applicant’s Expulsion
[48] In the Decision, the RAD found no evidence that family members had incurred any harm or threats, which, combined with the Principal Applicant’s failure to bring forth her son’s alleged expulsion from school at the RPD hearing, supported the finding that the Minor Applicant had not been expelled. The Principal Applicant had the onus of providing corroborating evidence and failed to do so. The Respondent submits that the RAD’s findings on this issue are reasonable because the mere fact that an applicant provides an explanation does not mean the explanation must be accepted; accordingly, it was open to the RAD to consider the explanation to determine whether it was sufficient and the Court should not re-weigh the evidence: Ma v Canada (Citizenship and Immigration), 2011 FC 417 at para 39.
(f) Other Discrepancies
[49] The Respondent submits that it was reasonable for the RAD to make a negative credibility finding based on a number of inconsistencies, some of which have not been challenged by the Applicants. These unchallenged inconsistencies include: the frequency of the Principal Applicant’s attendance at her Falun Gong group practice; the omission of information regarding the arrest of her co-practitioners; and the discrepancy regarding her place of hiding.
(2) Apprehension of Bias
[50] The Respondent argues that the Applicants have not met the high standard required to establish a reasonable apprehension of bias.
[51] First, the Decision is highly factual and contains a detailed analysis of the PSB’s information-sharing regime, Chinese airport security control procedures, sectors involving corruption problems, and the Principal Applicant’s allegations that the PSB continued to vigorously pursue her after she left China with the assistance of a smuggler. While there are cases in which the Court has disagreed with the RAD’s findings regarding an applicant’s ability to leave China, there are also cases where the Court has upheld those findings. Each decision is fact-specific and the Decision demonstrates the RAD’s grasp of the relevant issues and evidence. The fact that not every factor or piece of evidence was listed in the reasons is not fatal to the Decision or demonstrative of bias: Ma, above, at para 53; Lin, above, at paras 10, 13, 16; Sui, above.
[52] Second, the Applicants’ argument regarding this issue effectively disputes the RAD’s weighing of the evidence. Evidence that is ambiguous and equivocal does not warrant judicial intervention as long as the conclusion is not wrong on its face: Conkova v Canada (Citizenship and Immigration), [2000] FCJ No 300 at para 5. Moreover, the RAD member in question found that the jurisprudence of Zhang, Ren, and Sun, all above, was inapplicable in both RAD decisions because they were based on dated documentary evidence with limited information on the Golden Shield and Chinese border controls.
(3) Sur Place
[53] The Respondent submits the RAD’s assessment of the sur place claim is reasonable. The RAD did not dismiss the claim on the basis that the Principal Applicant was not a genuine Falun Gong practitioner; instead, the RAD found the Applicants had failed to present sufficient credible evidence that the Principal Applicant’s alleged Falun Gong activities in Canada had come to the attention of the Chinese authorities. The Applicants failed to meet the onus of showing an objective basis for their prospective fear of persecution. Given the credibility issues, it was reasonable for the RAD to find the Principal Applicant would not be perceived as a Falun Gong practitioner and, therefore, would not be pursued by the PSB. Additionally, it was reasonable for the RAD to find that a few photos of the Principal Applicant in an unknown place with an unknown group do not constitute sufficient evidence to establish that the Chinese authorities would be aware of her alleged Falun Gong activities.
C. Applicants’ Reply
(1) Apprehension of Bias
[54] The Applicants argue that the RAD’s knowing failure to mention contradictory jurisprudence that did not appear to be known to their counsel has nothing to do with weighing evidence. The RAD’s failure to consider the conflicting evidence does not constitute re-weighing.
[55] Additionally, the Applicants disagree that the RAD member’s omission of Zhang, Ren and Sun, all above, in previous RAD decisions is immaterial; these RAD decisions have been granted leave for judicial review before this Court based on the same issue. Moreover, the Applicants note that the Respondent is silent on the applicability of Yang and Yao, both above.
(2) Credibility Findings
(a) Exit from China
[56] Contrary to the Respondent’s submission, the Applicants submit that Ren and Sun, both above, are not distinguishable. In both decisions, as in the present case, the only evidence regarding what the smuggler did for the applicants was that bribes were paid to officials: Ren at para 6; Sun at para 8. Additionally, in Ren, the RPD relied on and cited from the same document regarding the Golden Shield that is cited in the Decision; accordingly, the Court’s decision dealt with the same evidence that is at issue in the present case. While the evidence regarding the Golden Shield in Sun is different from the documentation in the Applicants’ case, the Applicants submit that this does not lessen the decision’s relevance. In Sun, the Court found that it is impermissibly speculative to assume that a fugitive claimant could not exit China using his or her own passport and with the assistance of a smuggler; these are the circumstances of the present case. Finally, the Applicants submit that Yang and Yao are relevant because they were based on the NDP relied upon in the Decision.
(b) Motivation for Joining Falun Gong
[57] The Applicants reiterate that the explanation for the lack of corroborative evidence regarding the disappearance of the Principal Applicant’s husband in 2012 is not implausible and argue that the Respondent’s position on this matter is without merit.
(c) Summons
[58] The Applicants disagree with the Respondent on this issue and argue that there is no evidence whatsoever to suggest that the Chinese authorities serve summonses on criminal suspects, their family members, or even notify suspects or family members of the existence of a summons.
(d) Copy of Zhuan Falun
[59] The Applicants reiterate their argument that the Principal Applicant’s testimony regarding the location of the Zhuan Falun book is not inconsistent.
(e) Minor Applicant’s Expulsion
[60] The Applicants argue that the RAD’s finding that the Principal Applicant should have brought forth the subject of her son’s expulsion at the RPD hearing is illogical because she did not know there was a misunderstanding at that time. Furthermore, the failure to provide corroborative evidence on this matter does not justify a rejection of the Principal Applicant’s explanation; corroborative evidence is not required for refugee claimants and the RAD cannot disbelieve claimants merely due to its absence or make negative credibility findings in the absence of evidence to contradict such allegations: Ahortor v Canada (Minister of Employment and Immigration), [1993] FCJ No 705 at para 45.
(f) Sur Place
[61] The Applicants submit that the evidence submitted to establish the sur place claim consisted of more than just photos of the Principal Applicant practicing Falun Gong publicly in Canada. The Applicants had also submitted documentary evidence that speaks to the vigorous and aggressive measures of Chinese authorities in monitoring the activities of Falun Gong practitioners in Canada. This evidence, which included the Chinese authorities’ advanced facial recognition technology and possession of the Principal Applicant’s photograph, support the sur place claim.
VIII. ANALYSIS
[62] The RAD dismissed the Applicants’ appeal because they “failed to provide credible or trustworthy evidence to support [the Principal Applicant’s] allegation of FG practice and the PSB being in pursuit as a result.” This amounts to a general adverse credibility finding that is based upon a series of negative inferences related to key issues in the Applicants’ claim for protection. The Applicants do not challenge some of the RAD’s negative findings so that these aspects of the Decision must be taken as reasonable. This includes inconsistencies in how frequently the Principal Applicant attended group Falun Gong practices in China, a lack of information about the arrest of her co-practitioners in China, and discrepancies related to her place of hiding before she left China. Nevertheless, as the Respondent concedes, “it was the totality of these findings that led the RAD to conclude that the [Principal Applicant] was not credible with respect to her allegations of FG practice in China.”
A. Exit From China
[63] One of the central tenets of the Applicants’ case for review is that the RPD made unreasonable credibility findings about how the Principal Applicant could have left China using her own passport given the security measures in place at the airport, and that indeed the RAD went so far as to demonstrate a reasonable apprehension of bias in dealing with this issue because it failed to reference and apply supporting jurisprudence of which the RAD member was aware, but of which Applicants’ counsel was not.
[64] The RAD devotes considerable attention (paras 22-42 of the Decision) to this issue. The heart of the analysis is as follows:
[36] The RAD finds that evidence reveals that the Golden Shield system is an intensive security apparatus that is far-reaching and encompassing. The RAD finds that given the importance of this system to Chinese authorities in monitoring its citizens, it is reasonable to expect that the use of the apparatus is also monitored and that there are redundant systems in place to prevent the system from being compromised by a single individual. In addition, the RAD notes that the Appellant has alleged that the PSB have continued to pursue her after her departure from China. The RAD finds that this allegation undermines the suggestion that her name was somehow removed from the computer system.
[37] The RAD also notes that the evidence suggests that the Appellant’s passport was examined numerous times. The RAD finds it highly improbable that the smuggler would have the prior knowledge of who to bribe in order to facilitate safe travel through each checkpoint. The RAD also notes that Article 51 of the Exit and Entry Administration law of the People’s Republic of China requires that companies involved in the transportation of goods and passengers in and out of Chinese ports must declare information on the goods and passengers in advance of their departure or entry to the country. Chinese border authorities are provided what is described as “advance passenger information”·on arriving a