Date: 20050112
Docket: IMM-2631-04
Citation: 2005 FC 28
BETWEEN:
SU QING LI AND SU YAN LI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN, J.:
Background
[1] The Applicants sought refugee status and protection on the basis that they were devotees of Falun Gong. They waited three (3) years, from the beginning of their difficulties with Chinese authorities, before leaving China and a further six (6) months after arriving in Canada before seeking status.
[2] The Immigration and Refugee Board ("Board") rejected their application on grounds of credibility as to their basis for their fear of persecution and need for protection. The Board found that their delays were unreasonable; that there were significant inconsistencies and omissions in their evidence; that their treatment and that of their family remaining in China was inconsistent with a valid ground for fear of persecution; and that returning members (but not leaders) of Falun Gong were not necessarily subject to persecution.
[3] The Applicants, say that the Board made several errors in its decision including, principally:
- that the Board applied the wrong test in that it asked whether the Applicants would be arrested, imprisoned and tortured, rather than asking whether the Applicants had a reasonably based fear of arrest, imprisonment and torture.
- that the Board failed to make a clear and unmistakable finding as to whether or not the Applicants were members of Falun Gong.
- in the alternative, the Board reached unreasonable conclusions because the Board made a number of factual errors which individually or cumulatively constituted grounds for judicial review.
Analysis
[4] As to the legal test applied, the Court cannot agree with the Applicants' submission that the Board applied the wrong legal test. From a review of the whole of the decision, the Board followed the analysis found in Saliban v. Canada (MEI) [1990] 3 F. C. 250. The whole of the Board's analysis was directed to assessing the "reasonableness" of the Applicants' fear. The likelihood of arrest, detention and torture is a factor in the consideration of the reasonableness of the fear. The Board looked at other factors, as well, including, the Applicants' own delay which undermines this claim, the generally benign treatment of members of their family remaining in China, the relative case with which they left China, and the Chinese authorities actions against leaders or core members (of which the Applicants were neither) of Falun Gong.
[5] As to the Applicants' membership in Falun Gong, firstly the Board did not have to make a finding on this issue. It examined the Applicants' claim on the assumption that they were members of Falun Gong, at least, while in Canada and assessed the reasonableness of their fear. Secondly, the Board showed that it had serious doubts about whether the Applicants were practising members of Falun Gong in China, based upon its assessment of the plausibility of their story.
[6] In the Court's view, the Board was not required to make a factual finding of membership in Falun Gong since such a finding would not result in either refugee status or a conclusion that they were in need of protection. Membership in Falun Gong is not a per se finding of persecution; millions of people practice Falun Gong in China without arrest, detention, torture or persecution. The risk must be assessed on an individual basis, which is what the Board did.
[7] The Applicants also say that the Board made a number of errors in reaching their factual conclusions. These alleged errors relate principally to the credibility findings.
[8] Credibility findings are reviewed on the basis of patent unreasonableness. Given the thorough review of the facts undertaken by the Board, the Court cannot find that it reached a patently unreasonable conclusion.
[9] The Applicants point to a factual error made by the Board in its conclusion that the Applicants had legal representation assisted in the completion of their PIF's. That conclusion is simply wrong in fact.
[10] However, that finding was only one of a number of factors considered in assessing credibility. The finding was, in no sense, central or critical to the determination of credibility.
[11] The reason for the Board's conclusion is evident - the Applicants indicated on the PIF the name of their counsel. The Board erred in assuming that this also meant that counsel assisted in the completion of the PIFs.
[12] This is not an "erroneous finding of fact...made in a perverse or capricious manner or without regard for the material" before the Board, as described as grounds of review in s. 18.1 (4)(d) of the Federal Court Act.
[13] Therefore, it is neither, as an issue of fact or of law, a ground for judicial review.
[14] For these reasons the Court cannot find that the Board's decision contained grounds for judicial review. This application must be dismissed.
"Michael L. Phalen"
F. C. J.
Calgary, Alberta
January 12, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2631-04
STYLE OF CAUSE: SU QING LI AND SU YAN LI
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: January 11, 2005
REASONS FOR ORDER : PHELAN, J.
DATED: January 12, 2005
APPEARANCES:
Ms. Lori O'Reilly FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
O'Reilly Law Office
Calgary, Alberta FOR APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Email this Content