Date: 20061011
Docket: IMM-13-06
Citation: 2006 FC 1211
Vancouver, British Columbia, October
11, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
DONG SHENG GUO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Dong Sheng Guo claims to fear
persecution in China because he
is a Falun Gong practitioner who is wanted by the Chinese Public Security
Bureau. The Refugee Protection Division of the Immigration and Refugee Board
rejected his claim finding that the applicant was simply not credible.
[2]
The applicant now seeks judicial review of the
Board’s decision asserting that the Board’s credibility findings were patently
unreasonable. The applicant also raises an issue with respect to the order of
questioning followed at the hearing in light of this Court’s decision in Thamotharem
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 8,
2006 FC 16.
[3]
For the reasons that follow, I am satisfied that
the application should be allowed.
I. Analysis
[4]
The Board found that the applicant was vague and
evasive in his testimony and that he did not testify in a straightforward
manner. Moreover, the Board found there to be inconsistencies between the
applicant’s oral testimony and the documentary evidence, and that aspects of
the applicant’s story were implausible.
[5]
In accordance with the Board’s practice at the
time, the hearing proceeded with the member questioning the applicant first.
Although the applicant was represented by counsel, no objection was raised at
the hearing with respect to this procedure.
[6]
I have read the entire transcript of the hearing
and what is readily apparent to me is that the Board member and the applicant
frequently did not understand one another and were often speaking at
cross-purposes. Many of the member’s questions were lengthy or somewhat
convoluted, and it is quite clear that the applicant did not always understand
exactly what it was that the member wanted to know.
[7]
This is exemplified by a lengthy exchange that
occurred between the Board member and the applicant regarding the extent of the
applicant’s knowledge of Falun Gong organizations in Canada. Another example of this is a series of questions and answers
relating to the nature and extent of the applicant’s dealings with the PSB.
[8]
On other occasions, the questions asked by the
member were compound in nature and it was not always clear which part of the
member’s question was actually being answered by the applicant. An example of
this is an exchange between the member and the applicant regarding a
demonstration of a Falun Gong exercise provided by the applicant at the
hearing.
[9]
In this regard, the member said “Okay. Can you
tell me why you were doing the movements at all? Did your hands ever touch any
part of your body?” The applicant’s response was “Yes”, immediately after which
the member asked the applicant an entirely different question. It is not at all
clear from this whether the applicant’s positive response was to the first
question posed by the member or the second one.
[10]
What is clear, however, is that when the member
returned to this issue a couple of questions later, the applicant tried to make
it very clear that he had never admitted to having touched his body.
Nevertheless, the member’s finding that the applicant was not credible was
based, in part, on this exchange.
[11]
It is commonly recognized that refugee claimants
testify in unfamiliar surroundings, are usually not conversant with the
process, may be intimidated by people in authority, may suffer from
psychological difficulties, and frequently face significant linguistic and
cultural obstacles in attempting to communicate their stories. As a
consequence, whether a claimant is questioned first by his or her own counsel
or by the presiding member, it is obviously important that the questions posed
be simple and clear.
[12]
This is especially so where, as here, the
communication between member and claimant had to be filtered through an
interpreter.
[13]
While it is undisputed that findings of
credibility made by Board members must be accorded considerable deference, in
the particular circumstances of this case I am satisfied that it was patently
unreasonable for the member to have based his finding that the applicant was
vague and evasive in his testimony on answers that clearly evidenced a lack of
understanding of the questions posed.
II. Conclusion
[14]
For these reasons, the application for judicial
review is allowed.
III. Certification
[15]
The applicant asks that questions be certified with respect to the Board’s
reverse order of questioning policy. Given that my decision does not turn on
the propriety of the reverse order of questioning policy itself, I decline to
certify any of the questions proposed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This application for judicial review is allowed and the
matter is remitted to a differently constituted panel for re-determination; and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-13-06
STYLE OF CAUSE: DONG
SHENG GUO v.MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 5, 2006
REASONS FOR JUDGMENT AND JUDGMENT: MACTAVISH J.
DATED: October 11, 2006
APPEARANCES:
Marvin Moses FOR
APPLICANT
Negar Hashemi FOR
RESPONDENT
SOLICITORS
OF RECORD:
Marvin Moses
Law Office FOR APPLICANT
Toronto, ON
John H. Sims,
Q.C. FOR
RESPONDENT
Deputy Attorney
General of Canada
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