YUANBIAO YE Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2019 FC 587

Date: 20190506 Docket: IMM-4688-18 Citation: 2019 FC 587 Toronto, Ontario, May 6, 2019 PRESENT: Mr. Justice Campbell BETWEEN:YUANBIAO YEApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] The decision under review in the present Application is the Refugee Protection Division’s (RPD) September 13, 2018 rejection ofthe Applicant’s claim for refugee protection as a person being sought and summoned by Chinese authorities for participating in ademonstration without a permit. [2] To make a refugee claim in Canada, on October 5, 2012, the Applicant flew to Canada via Hong Kong.

In the hearing before theRPD, the Applicant testified that he was able to depart from the Hong Kong airport without difficulty with the aid of smuggler.

In thecourse of dismissing the Applicant’s claim, the RPD made findings of negative credibility with respect to the Applicant’s evidence onthis issue. [3] The RPD found that if the Applicant was wanted by the authorities and a summons had been issued, the Applicant’s informationwould have been entered into the computer system known as the "“Golden Shield”" (Decision, para 33) and it is unlikely that theauthorities wanted the claimant because if he was wanted "“it is more likely than not that he would have been detained at exit control andprevented from leaving China and Hong Kong”" (Decision, para 34).

In making this finding the RPD relied upon the JurisprudentialGuides-Decision TB6-11632, which purports to act as a reliable source of general policy and practice statements with respect togovernmental operations in China. [4] The RPD’s finding under consideration in the present Application is essentially an implausibility finding. That is, the Applicant’saccount of how he left Hong Kong is not plausible because it runs counter to the evidence about the Golden Shield.

On this form ofanalysis, the RPD concluded that the Applicant is not a person in need of refugee protection. [5] I find that the decision in He v Canada (MCI), 2017 FC 1089 is parallel to the situation presently under review and, thus, thefollowing passages from that decision are relevant to the present outcome: The law with respect to the making of an implausibility finding is stated by Justice Muldoon in Valtchev v Canada (MCI),2001 FCT 776 at paragraphs 6 and 7: The tribunal adverts to the principle from Maldonado v.

M.E.I., (FCA), [1980] 2 F.C 302(C.A.) at 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is createdthat those allegations are true unless there are reasons to doubt their truthfulness. But the tribunal does not applythe Maldonado principle to this applicant, and repeatedly disregards his testimony, holding that much of itappears to it to be implausible. Additionally, the tribunal often substitutes its own version of events withoutevidence to support its conclusions.

A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided theinferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases,i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidencedemonstrates that the events could not have happened in the manner asserted by the claimant.

A tribunal must be carefulwhen rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actionswhich appear implausible when judged from Canadian standards might be plausible when considered from within theclaimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]. An inference is a conclusion reached on the basis of evidence and reasoning.

What might reasonably be said to be such aconclusion in a given situation is not established by speculation; it is established on a balance of probabilities on cogent andverifiable evidence. For a person who is Falun Gong and who has been persecuted by the PSB or police, two possible inferences arise from thatperson not being stopped when transiting security measures at an airport in China having used their own genuine passport:the person is lying that she or he is a Falun Gong practitioner; or no record exists on the Golden Shield system thatnegatively relates to him or her.

Accordingly, it is not possible to assume only that the former of the two possibleconclusions is true. In the present case there is no evidence to support a finding that a record was made as a result of PSB contact with theApplicants, no evidence to support a finding that such a record was placed on the Golden Shield system, or that any record

exists on the Golden Shield system that negatively relates to the Applicants . Since the RAD had no verifiable evidentiary base to reach the fundamentally important implausibility finding expressed in paragraph 6 above, I find that the decision under review is unreasonable. [Emphasis added] [ 6 ] Accordingly, in the present case, the RPD had no evidence that the policy and practice was actually active in the circumstances presently under review.

In my opinion, without evidence that a record implicating the Applicant actually exists on the Golden Shield, the RPD’s decision is unreasonable because it is based on mere speculation. JUDGMENT IN IMM-4688-18 THIS COURT’S JUDGMENT is that the decision under review is set aside and the matter is referred back to a different decision- maker for determination. There is no question to certify. “Douglas R.

Campbell” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-4688-18 STYLE OF CAUSE: YUANBIAO YE v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 23, 2019 JUDGMENT AND REASONS: CAMPBELL J. DATED: MAY 6, 2019 APPEARANCES : Nkunda I. Kabateraine For The Applicant Erin Estok For The Respondent SOLICITORS OF RECORD : Nkunda I. Kabateraine Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent