Federal Court Decisions

Date: 20060131

Docket: IMM-1817-05

Citation: 2006 FC 103

Ottawa, Ontario, January 31, 2006

PRESENT:    THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON

BETWEEN:

FANYOU MENG

Applicant

and

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]     Mr. Meng is a citizen of the People's Republic of China who claims to be a Falun Gong practitioner. The Refugee Protection Division (RPD) of the Immigration and Refugee Board determined that he was neither a Convention refugee nor a person in need of protection. Mr. Meng asks that the board's decision be set aside.

[2]     Despite the articulate submissions of Mr. Meng's counsel, I am not persuaded that reviewable error has been established.

[3]     Mr. Meng claimed that he began practising Falun Gong in China in May 1997, after being unable to find a remedy for his asthma. Following the government ban on Falun Gong in July 1999, he continued to practise in his home and, on Sundays, at the homes of fellow members.

[4]     He came to Canada on November 2, 2003, allegedly on business. He states that when he spoke with his wife on November 10, 2003, she warned him not to return to China because the police had been to their home looking for him on November 7^th. The police had apparently told Mr. Meng's wife that the friend who had introduced Mr. Meng to Falun Gong had been arrested at a Falun Gong gathering and had implicated Mr. Meng. Fearing imprisonment if he returned to China, Mr. Meng made a refugee claim on December 1^st.

[5]     Mr. Meng's evidence was fraught with inconsistencies and omissions. The RPD concluded as follows:

The gravity of the inconsistencies, omissions of incidents, implausibility in the absence of a reasonable explanation, coupled with the element of delay in claiming refugee status in Canada is such that it leads the panel to find that this lack of credibility extends to all relevant evidence emanating from the claimant and renders his entire testimony not credible.

The claimant's lack of credibility has negated his subjective fear and has proven fatal to his claim as, absent a subjective fear, the claimant must fail in his quest to be a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA).

I have also considered whether the claimant would face a risk of harm pursuant to subsection 97(1) of IRPA. While in general, a separate analysis from section 96 analysis is required for section 97 in the instant case the section 96 analysis also applies to section 97.

Having heard the claim, I am of the opinion that the claimant is not a Convention refugee or a person in need of protection and that there was insufficient credible evidence upon which a positive determination could have been made.

[6]     Mr. Meng concedes that if the negative credibility findings were properly drawn and extended to the section 96 claim, then the RPD cannot be faulted for not having conducted a separate section 97 analysis. The gravamen of Mr. Meng's argument is that the board's negative credibility findings were not related to the claim. Rather, they were based on irrelevant considerations.

[7]     I disagree. Mr. Meng's account of the threat from the authorities was not consistent. When questioned as to why the authorities would go to his home after he had been granted an exit visa, he stated that the Public Security Bureau (PSB) and the police do not work hand in hand. He later indicated that the two groups were working together investigating him. He also failed to mention during the record of examination that he was being investigated by the police although he did note that he was being investigated by his work unit. When asked why he had not mentioned the police investigation, he claimed to have thought that it was the same thing. The statement regarding the work unit was further complicated by the contents of the Schedule 1 Form which indicated that he was not employed at the time he claimed to be the subject of the work unit investigation.

[8]     The telephone call to his wife was a highly significant factor. Having arrived in Canada on November 2, 2003, he claimed that he couldn't contact his wife until November 10, 2003, because he could not speak English. A Chinese friend then assisted him in making the call. However, Mr. Meng completed his Schedule 1 Form in English, unassisted. Later, when addressing the delay in making his claim, he stated that there were no Chinese people in Bradford and it was not until December 1^st that he was able to obtain assistance.

[9]     Mr. Meng's evidence regarding the purchase of machinery in Canada (the alleged object of the business trip) was replete with inconsistencies and omissions. It serves no useful purpose to specifically delineate them here. However, many of them were relevant because they related directly to Mr. Meng's reason for coming to Canada. The inconsistencies were so numerous that the RPD concluded that Mr. Meng was attempting to immigrate through the refugee process. On the evidence, that conclusion was clearly open to the board.

[10]                        The cumulative effect of the inconsistencies and omissions were such that the RPD concluded that Mr. Meng's credibility was so seriously undermined that, coupled with his delay in making a claim, it extended to a general finding of lack of credibility. That conclusion, in the circumstances of this case, cannot be faulted. See: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) and Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537 (C.A.).

[11]                        As noted earlier, Mr. Meng concedes that if the negative credibility finding properly extended to the section 96 claim, it was not essential for the board to conduct a separate section 97 analysis.

[12]                        Counsel did not suggest a question for certification and none arises on these facts.

ORDER

THIS COURT ORDERS THAT the application is dismissed

"Carolyn Layden-Stevenson"

Mr. Ali Amini	FOR THE APPLICANT
Ms. Sharon Stewart Guthrie	FOR THE RESPONDENT

Amini Carlson Barristers and Solicitors Toronto, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Toronto, Ontario	FOR THE RESPONDENT