Docket: IMM-4836-11
Citation: 2012 FC 288
Ottawa, Ontario, March 5,
2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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LIEN LIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 29 June 2011 (Decision), which refused the Applicant’s application to be
deemed a Convention refugee or a person in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 57-year-old citizen of the People’s Republic of China (PRC) who
says he is a Falun Gong practitioner. He has a son and daughter living Canada.
[3]
In
2008, one of the Applicant’s friends introduced him to the practice of Falun
Gong. He says he began practising Falun Gong exercises at his home in December
2008 and joined a group in January 2009. The Applicant says that his group was
raided by agents of the Public Security Bureau (PSB) on 22 August 2009. The
instructor and two members of the group were arrested at that time. After the
raid, the Applicant went into hiding and, on 23 August 2009, PSB agents went to
his home to look for him. While they were at his home, the PSB interrogated his
mother and brother, and then left a Notice of Summoning (Notice), which
required him to attend at the PSB office in Chang Le. The PSB also searched for
him at the homes of his other siblings in the PRC.
[4]
In
February 2010, the Applicant learned from his mother that his group instructor had
been sentenced to four years imprisonment. The other two members of his group
were each sentenced to three years imprisonment. The Applicant was afraid that
he too would be imprisoned, so he hired a smuggler and fled the PRC. The
Applicant travelled to Hong Kong on 10 October 2009 and then to Toronto on the same
day.
[5]
On
16 November 2009, the Applicant claimed protection in Canada. The RPD heard
his claim on 19 May 2011 and made its Decision on 29 June 2011. The RPD notified
the Applicant of its Decision on 6 July 2011.
DECISION
UNDER REVIEW
Allegations
[6]
The
RPD reviewed the Applicant’s story of his conversion to Falun Gong, the raid on
his group, the PSB’s interrogation of his family, and the imprisonment of his
fellow practitioners.
Identity
[7]
Prior
to the hearing, the Applicant submitted several documents to the RPD to prove
his identity: his Resident Identity Card (RIC), household register card
(Hukou), a Divorce Certificate, and an out-patient record from the Medical
Institute of Fu Zhou City (Out-patient Record). To establish the authenticity
of his documents, the RPD sent them to the RCMP Forensic Science and
Identification Services Laboratory (RCMP Lab) for analysis. In its report
(Forensic Report) the RCMP Lab said it did not have a genuine specimen for
comparison, so the authenticity of the Applicant’s RIC was inconclusive. The
Forensic Report also noted that the RIC was printed with an inkjet printer and
that this was not known as a means for printing genuine RICs.
[8]
At
the hearing, the RPD presented the Applicant with the Forensic Report and asked
him to comment. He said that his RIC was in his possession at all times, except
when it was with the smuggler he hired to bring him to Canada. The RPD
found that this answer did not address the issues raised in the Forensic Report
and gave more weight to the Forensic Report than to the Applicant’s testimony,
noting that the Forensic Report was authored by experts in counterfeiting. The
RPD found that the RIC was not authentic.
[9]
The
RPD also noted that the Applicant’s Hukou and Divorce Certificate contained the
same identification number as the RIC he had submitted. For this reason, the
RPD found that these documents were also fraudulent. The Out-patient Record
contained limited information about the Applicant’s citizenship so the RPD
placed little weight on it in determining whether he was actually a citizen of
the PRC. The RPD also noted that the Immigration and Refugee Board’s Response
to Information Request (RIR) CHN103134.E indicates that fraudulent documents
are readily available in the PRC.
[10]
In
addition to his identity documents, the RPD examined an affidavit from the
Applicant’s daughter in Canada. In her affidavit, she said that the
Applicant was her father and that he was a citizen of the PRC. The daughter’s
affidavit persuaded the RPD that the Applicant is a citizen of the PRC.
Other
Documents
[11]
In
addition to the concerns it had with the Applicants identity documents, the RPD
was troubled by other documents he submitted to prove his claim. The translated
copy of the Notice the Applicant submitted indicated that he was summoned to
the PSB in Chang Le City under the “Regulations of the ‘Criminal Law of the
People’s Republic of China, Article 92, section 1”. The RPD noted
that a document printed from http://www.com-law.net: Criminal Law of the
People’s Republic of China, established that Article 92(1) of the Criminal
Law of the PRC refers to “citizens’ lawful income, savings, houses and other
means of livelihood” which gives no authority to anyone to issue a Notice.
[12]
The
RPD also referred to RIR CHN42444.E, which identifies different kinds of
summonses issued in the PRC. The RPD found that there was a significant
difference between the appearance and content of the information in the Notice
and the examples in RIR CHN42444.E. The RIR said that a Notice of Summons to
testify refers to Article 92 of the PRC Criminal Procedure Law.
[13]
At
the hearing, Applicant’s counsel identified a potential problem in the
translation of the Notice. Counsel said that he thought it did not say
“criminal law of the People’s Republic of China,” as the translator
he had hired said it did. The RPD’s interpreter examined the Notice at the
hearing and translated it as saying “the first section of the article 92 of the
People’s Republic of China criminal litigation law.” Although the
translation at the hearing and the translation the Applicant submitted both
referred to Article 92, in the Decision the RPD said that the difference in
interpretation did not account for the difference in the article number. The
RPD found that the Notice was fraudulent, based on its concerns about the
Applicant’s other documents and the differences between the Notice before it
and the examples in RIR CHN42444.E.
[14]
The
Applicant also submitted a visiting card from Bai Sha Prison in Fu Zhou City (Visiting
Card). The RPD found that this document did not show that a member of the
Applicant’s group had been arrested. It based this finding on the Applicant
having tendered other false documents and RIR CHN103134.E, which indicate that
fraudulent documents were readily available in the PRC.
Falun
Gong Practice
[15]
The
RPD found that the Applicant was not a Falun Gong practitioner in the PRC, that
there had been no raid or arrests, and that the authorities in the PRC were not
looking for him.
[16]
The
RPD noted that it was difficult to assess if the Applicant is a genuine Falun
Gong practitioner and said that it had taken into account his three years of
formal education. It also said it had considered the fact that he had only
practised Falun Gong for 2 ½ years. The RPD reviewed the Applicant’s testimony
that he had practised alone every day while he was in the PRC and had practiced
in a group once per week. He said his practice involved learning the movements
of Falun Gong exercises and listening to his instructor talk about the benefits
of Falun Gong. When the RPD asked the Applicant about the Zhuan Falun – the
main text of Falun Gong – he could not remember details. He also testified that
he practised alone at home in Canada and joined a group here one month after he
arrived.
[17]
Although
the Applicant had testified that he had attended classes to learn about Falun
Gong, the RPD found that he had given vague answers when asked about what he had
learned. The RPD found that the Applicant had knowledge of the major Falun Gong
books, and what “falun” was, but also found that he had difficulty explaining
the purposes of Falun Gong exercises. He was unable to identify some aspects of
the first and fourth exercises. The RPD found that the Applicant was not a
genuine Falun Gong practitioner. It relied on a quotation from Master Li – the
founder of Falun Gong – and said that failure to understand the philosophies of
Falun Gong makes practising Falun Gong exercises no more beneficial than any
other qigong exercises.
Conclusion
[18]
The
RPD found that the Applicant had not discharged the burden on him to establish
a serious possibility that he would be persecuted or that he faced a risk to
his life or of cruel and unusual treatment or punishment or a risk of torture
if he were returned to the PRC. The RPD denied his claim.
STATUTORY
PROVISIONS
[19]
The
following provisions of the Act are applicable in this proceeding:
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Convention refugee
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,
(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
(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.
Person in Need of Protection
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
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
[…]
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Définition de «
réfugié »
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) 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) 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.
Personne à protéger
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) 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) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(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) 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) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[…]
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ISSUES
[20]
The
Applicant raises the following issues in this application:
a.
Whether
the RPD’s conclusion that his documents were fraudulent was reasonable;
b.
Whether
the RPD’s conclusion that he was not a genuine Falun Gong practitioner was
reasonable.
STANDARD OF
REVIEW
[21]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, 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 well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[22]
Both
issues the Applicant has raised in this case challenge the RPD’s findings of
fact. It is well established that findings of fact are to be examined on a
standard of review of reasonableness. (See Dunsmuir, above, at paragraph
51, Mugesera v Canada (Minister of
Citizenship and Immigration) 2005 SCC 40 at paragraph 38, and Williams
v Canada (Minister of
Citizenship and Immigration) 2005 FCA 126 at paragraph 17). The standard
of review on both issues in this case is reasonableness.
[23]
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
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 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.”
ARGUMENTS
The Applicant
The RPD Unreasonably Found
the Applicant’s Documents were Fraudulent
[24]
The
Applicant says that the RPD does not have any expertise in evaluating foreign
documents. He says that Rasheed v Canada (Minister of
Citizenship and Immigration) 2004 FC 587 establishes that documents
should be presumed valid unless there is evidence to suggest they are not. A
finding that one identity document is fraudulent is not enough to establish
that all of the documents a claimant submits are untrustworthy.
[25]
In
this case, the RPD based its finding that his documents are fraudulent on a
finding that the Applicant’s RIC is fraudulent. When it found the RIC was
fraudulent, the RPD went beyond the Forensic Report’s statement that the
authenticity of his RIC was inconclusive. The RPD also found that the features
of the Applicant’s RIC were inconsistent with the features of genuine RICs
without explaining the inconsistencies. Contrary to the RPD’s finding, the
Applicant says that his RIC is actually consistent with other genuine RICs so the
RPD had no reasonable basis to conclude that his RIC is fraudulent.
[26]
The
RPD found that the Applicant had established his identity, but he says that its
finding that the RIC is fraudulent tainted its assessment of the rest of his
claim. The RPD found that his Hukou and Divorce Certificate are fraudulent
because they contain the same identity number as appeared in the RIC. The
unreasonable finding on the RIC was key to the RPD’s findings on the Hukou and
Divorce Certificate. This means that these findings are also unreasonable.
[27]
In
addition to rejecting his RIC, Hukou, and Divorce Certificate, the RPD found
that the Notice was not an authentic document. Although the RPD accepted that
the Notice refers to article 92 of the Criminal Procedural Law, not the
Criminal law, it found that the Notice was fraudulent. This finding was
unreasonable because the examples in RIR CHN42444.E, which the RPD relied upon,
are outdated. The examples in the RIR are from 2004 and do not show what a summons
issued in 2009, like his, would look like. Further, the RIR does not say that
the examples it contains are the only form of summons in the PRC or that
summonses are the same all over the PRC. Rather, RIR CHN42444.E says that
“there can be substantial regional variances in law enforcement, in which some differences
are written into polices, but ‘in most instances rule of the book gives way to
norms in the street.’” The RPD unreasonably rejected the Notice based on a
misguided interpretation of RIR CHN42444.E.
[28]
The
RPD also rejected the Notice because the section of the criminal law listed in it
was different from that in the example in RIR CHN42444.E. The Applicant says
that the article referenced in the Notice and in the example is actually the
same, so it was unreasonable for the RPD to reject the Notice on this basis.
The RPD also acted unreasonably when it rejected the Notice and the Visiting Card
based on its finding that the Applicant’s other documents were fraudulent.
[29]
Because
the RPD’s finding that the Applicant’s documentation was fraudulent was
unreasonable, and this impugned the Applicant’s credibility, the Decision must
be returned for reconsideration.
The RPD’s finding the Applicant is not a
genuine Falun Gong Practitioner was Unreasonable
[30]
Although
it found that the Applicant knows about Falun Gong and provided photographs of him
participating in Falun Gong activities, the RPD found that he is not a genuine practitioner.
He says that, given his limited formal education and recent introduction to
Falun Gong practice, this finding was unreasonable.
[31]
The
Applicant says Chen v Canada (Minister of
Citizenship and Immigration) 2007 FC 270 establishes that there is a
very low standard on refugee claimants to demonstrate religious knowledge to
prove their religious identity. He has met this low standard because he said
that his practice of Falun Gong involved learning the exercises of Falun Gong, describing
the benefits of involvement in Falun Gong, and showing how his life had improved
since he started practising Falun Gong.
[32]
The
Applicant also points to Huang v Canada (Minister of
Citizenship and Immigration) 2008 FC 346 which cautions against
examining claimants religious knowledge microscopically. In the instant case, the
RPD similarly engaged in an inappropriately microscopic examination of the
Applicant’s beliefs. Rather than looking at the genuineness of his beliefs, the
RPD compared his knowledge against its own standard of what a person in the
same circumstances should believe. This approach was unreasonable, so the
Decision must be returned for reconsideration.
[33]
The
RPD said in the Decision that
Even taking into consideration his
limited formal education and his allegedly recent practice of Falun Gong, the
determination he was not a Falun Gong practitioner in China and the authorities
are not interested him, together with the determination that the claimant has
provided fraudulent documentation to embellish his claim, leads the panel to
determine that the claimant does not abide by the central guiding principles of
Falun Gong, which are Truthfulness, Compassion, and Forbearance.
[34]
This
shows that the RPD’s analysis of whether or not the Applicant is a genuine
Falun Gong practitioner was tainted by its unreasonable finding that his RIC is
fraudulent. The entire Decision is unreasonable.
The
Respondent
The
RPD’s Credibility Findings Were Reasonable
[35]
The
Respondent says that the RPD identified several credibility concerns which
rebutted the presumption that the Applicant’s documents were truthful:
a.
The
RIC he submitted was not consistent with genuine RICs;
b.
The
Applicant did not adequately address the inconclusive Forensic Report in his
testimony;
c.
The
Applicant’s Hukou and Divorce Certificate contained the same national identity
number as the fraudulent RIC;
d.
The
Out-patient Record contained limited information on his citizenship;
e.
The
Notice was different from examples in RIR CHN42444.E;
f.
The
Bai Sha Prison visiting card was suspect because the other documents the Applicant
submitted were fraudulent.
[36]
The
Respondent notes that the RPD is entitled to prefer and rely on documentary
evidence over a claimant’s testimony, even if it finds that a claimant is
credible and trustworthy. In this case, the RPD had concerns about the
Applicant’s credibility, so it reasonably preferred the documentary evidence over
his testimony. It was reasonable for the RPD to find that the Applicant was not
credible based on its findings that his identity documents, the Notice, and the
Visiting Card were fraudulent.
[37]
When
the RPD found that the Hukou and the Divorce Certificate were fraudulent, the
RPD acted reasonably. These documents contained the same national identity
number as did the fraudulent RIC, so their authenticity stood or fell with that
document. In addition to the fraudulent RIC, the RPD found that, based on
documentary evidence which showed that fraudulent documents are easy to obtain
in the PRC, the Hukou and Divorce Certificate were fraudulent. The RPD’s
finding that the RIC is fraudulent was reasonable, so the other findings which
flow from it were also reasonable.
[38]
Although
the Applicant has challenged the RPD’s reliance on RIR CHN42444.E in examining
the Notice, the Respondent points out that this was the most up-to-date
information available to the RPD. The RPD’s reliance on this document was
reasonable. Though there may be regional variation in the form of notices of
summoning, the Applicant has not shown that the standards disclosed in RIR
CHN42444.E were not practised in his region. It was therefore reasonable for
the RPD to reject the Notice on this basis.
The Applicant
is not a Genuine Falun Gong Practitioner
[39]
Whether
or not the RPD’s credibility finding was reasonable, its finding that the Applicant
is not a genuine Falun Gong practitioner was fatal to his claim. In addition to
its concerns about the Applicant’s documents, the RPD also had concerns about
the genuineness of his Falun Gong beliefs. Even though he testified that he
practised Falun Gong regularly, he was unable to provide details about Zhuan
Falun. He also gave vague answers about what he had learned in classes in Canada, and he had
difficulty explaining the purposes of the exercises.
[40]
The
RPD found that the Applicant had some knowledge of Falun Gong but also found
that he did not abide by the central philosophies of Falun Gong. The transcript
indicates that he was unable to explain the purposes of the second, third,
fourth, and fifth exercises. The Applicant has said that the RPD’s analysis of
his Falun Gong beliefs was unreasonably microscopic, but the RPD actually considered
the Applicant’s particular circumstances and the documentary evidence before
it. The RPD looked at his limited education and his practice of Falun Gong; it
also considered its determination that authorities in the PRC were not looking
for him and the fact that he had submitted fraudulent documentation. Based on
all of these factors, it was not unreasonable for the RPD to conclude that he
did not abide by the tenets of Falun Gong and to reject his explanation of why
he did not know much about Falun Gong.
[41]
A
finding that the Applicant is not a genuine Falun Gong practitioner is a
finding of fact within the RPD’s specialized knowledge and should be given
deference. In this case, the RPD’s findings had a basis in the record and are
within the Dunsmuir range of possible, acceptable outcomes. The Court
should not substitute its decision for the RPD’s even if it would have arrived
at a different conclusion.
ANALYSIS
[42]
For
the most part, I agree with the Applicant’s assessment of the reviewable errors
that arise from this Decision.
[43]
The
RPD’s findings regarding the RIC permeate the whole Decision and other documents
and evidence the Applicant provided were not reasonably assessed. The Forensic
Report found that the authenticity of the RIC was “inconclusive” but the RPD rejected
the RIC as genuine because:
a.
“In
the remarks section [of the Forensic Report], it is noted that the examined
People’s Republic of China national identification card was printed by inkjet,
which is not known as being used to print genuine PRC national identity cards”;
and
b.
“Further,
the features of the card are inconsistent with the information available on
genuine Chinese national identification cards.”
[44]
The
RPD then says that it “gives more weight to the laboratory report since it
comes from sources who are experts in the field of counterfeiting.”
[45]
This
conclusion makes no sense to me. The RPD declined to accept the Applicant’s
testimony by relying upon a Forensic Report which says that authenticity is
“inconclusive,” and also refers to inconsistencies that are never explained. The
RPD then relies on these unexplained inconsistencies without question. The
Respondent has not pointed to any such inconsistencies, and there is nothing
before me to show how the Applicant’s RIC was inconsistent in any material way
with the description contained in the RPD’s own documentation. It is difficult
to see how the Applicant could address “inconsistencies” when the RPD itself did
not know what they were and so could not put them to him.
[46]
In
any event, the Forensic Report itself is obviously evidence that, whatever the
inconsistencies were, they were not sufficient to show that the RIC was
inauthentic. The Forensic Report even appears to contradict itself: it says
that there are no genuine specimens with which to compare the Applicant’s RIC,
but also says that “the features of this card are inconsistent with the
information available on genuine Chinese National Identification Cards.”
Although the Forensic Report may have been authored by experts in
counterfeiting, I do not see how these experts could say that the RIC was
inconsistent with information available when, by their own admission, they had
no genuine samples.
[47]
In
this context, the RPD’s finding that the RIC was inauthentic has no reasonable
basis to support it. Yet this finding is then used to find the Applicant’s other
documents inauthentic which, in turn, are then used to bolster a finding that
the Applicant is not a genuine Falun Gong practitioner.
[48]
Justice
Layden-Stevenson has the following to say on point in Lin v Canada (Minister of
Citizenship and Immigration) 2006 FC 84 at paragraph 12:
The fact that the first RIC was found to be fraudulent does not
necessarily mean that the second RIC, the child's birth certificate, the school
certificate and the household registration card are also fraudulent. As noted,
the board rejected all of the tendered documents on the basis that the RIC was
fraudulent and because of the prevalence of fabricated Chinese documentation.
No effort was made to ascertain the authenticity of the other documents. Ms.
Lin maintained that they were authentic and that she did not know that the RIC
was not genuine. She had no explanation other than the card had been in the
possession of the snakehead until he was paid. The board was not satisfied with
that explanation because she had not provided it earlier in her PIF. Why she
would have provided such information at a time when she claims not to have
known the card was fraudulent does not appear to have been considered. The PIF
does state that the RIC was in China.
[49]
It
is also unreasonable that, having concluded that the Applicant is indeed a
citizen of the PRC, the RPD does not take that factor into account when
assessing the authenticity of the Applicant’s documentation. Why would an authentic
citizen not have an authentic RIC?
[50]
The
RPD’s unreasonable finding regarding the RIC then unreasonably taints its
assessment of the balance of the Applicant’s claim. The RPD rejects his other
identity documents on the basis of its unreasonable findings about his RIC. The
reasoning is, basically, “because the RIC is not authentic the other documents
are inauthentic.” Hence, if the original finding was unreasonable, as I believe
it was, then the subsequent findings about the Applicant’s identity documents
are equally unreasonable.
[51]
As
the Applicant points out, the RPD then went on to reject nearly all of the
other documents he submitted to support his claim. The RPD began by finding
that the Notice is fraudulent. The Applicant submitted the Notice along with its
English translation. At the hearing, it was determined, through consultation
with the assigned RPD-certified interpreter, that the English translation of
the Notice the Applicant supplied contains an error. The English translation
refers to Article 92(1) of the Criminal Law of the PRC, which is not the
statute actually referenced in the Applicant’s original Notice. The RPD
accepted that the Notice actually refers to the Criminal Procedure Law
and that the English translation contains an error. However, the RPD
nevertheless impugned the authenticity of the document. In this regard, the RPD
referred to documentation from its own National Documentation Package which
provides examples of Chinese Notices of Summons. The RPD compared the Notice to
these examples and determined that it was significantly different in
appearance.
[52]
I
accept the Applicant’s argument that this finding was entirely unreasonable. RIR
CHN42444.E, which the RPD relied upon, dated from June 2004. It is highly
unlikely that this document could be a reliable authority as to what a Notice issued
in 2009 would look like. In any event, RIR CHN42444.E specifies that the
example summonses are “samples.” The document does not say that these are the
only forms of summonses issued by Chinese authorities; nor does it say that the
style and content of summonses is uniform throughout China. On the
contrary, as the Applicant points out, the document shows that procedural laws
are not uniformly implemented in the PRC. In particular,
[…]while procedural laws in China are
expected to be uniformly implemented and concerted efforts have been made by
the Minister of Public Security to improve policing standards, in practice, the
“PSP [Public Security Bureau] has yet to arrive as a rule of law institution.”
According to the associate professor, there can be substantial regional
variances in law enforcement, in which some differences are written into
policies, but “in most instances rule of the book gives way to norms in the
street.”
[53]
Accordingly,
based on the information in the RIR, the fact that the Notice is different in
certain aspects from the samples attached to the RIR is neither surprising nor
suspicious. I agree with the Applicant that the RPD erred by rejecting his Notice
on the basis of an overly strict and ultimately misguided interpretation of an
outdated document.
[54]
The
RPD also found that the Notice was not genuine because the article from China’s
Criminal Procedure Law referenced in it is different from the one
referenced in the sample Notice of Summons in the RIR CHN42444.E. However, both
the Applicant’s Notice and the sample Notice of Summons referenced the same article.
As the RPD stated, the sample Notice of Summons refers to “Article 92.” The
Applicant’s Notice also refers to Article 92. Accordingly, in my view, the RPD’s
finding here is clearly erroneous.
[55]
It
is also significant to note with respect to the Notice that the RPD again relies
on its “previous determinations with respect to other identity documents as not
being authentic” as a basis for rejecting the authenticity of the Notice. The RPD
uses the same reasoning to reject the authenticity of the Visiting Card the
Applicant submitted as evidence that one of his fellow practitioners was
arrested. Again, it is clear the RPD’s initial unreasonable finding with
respect to the Applicant’s RIC tainted its entire analysis of his claim.
[56]
The
RPD also buttressed its finding that the Applicant is not a genuine Falun Gong
practitioner with its findings on inauthentic documents:
Although the claimant has some knowledge
of Falun Gong and has provided pictures of participating in Falun Gong
activities, the panel determines, based on a balance probabilities [sic],
that he is not a genuine Falun Gong practitioner. Even after taking into
consideration his limited formal education and his allegedly recent practice of
Falun Gong, the determination that he was not a Falun Gong practitioner in
China and that the authorities are not interested in him, together with the
determination that the claimant has provided fraudulent documentation to
embellish his claim, leads the panel to determine that the claimant does not
abide by the central guiding principles of Falun Gong, which are Truthfulness, Compassion
and Forbearance. Failure to understand the philosophies of Falun Gong makes practicing
Falun Gong exercises no more beneficial than practicing any other qigong
exercises. Master Li notes, “Why do I tell you to study, read and memorize
Zhuan Falun? To guide your cultivation! Those who only do the exercises but
don't study are not disciples of Dafa (Falun Gong) whatsoever.”
[57]
The
RPD appears to say that the Applicant does not abide by the central guiding
principle of “Truthfulness” because he has “provided fraudulent documentation
to embellish his claim.” It would seem to follow that, if the Applicant’s
documents were not fraudulent, then this would be highly material to his claim
that he is a true Falun Gong practitioner.
[58]
As
the Applicant points out, his testimony ultimately did not persuade the RPD
that he knew enough about Falun Gong. However, as the RPD itself acknowledged,
the Applicant had only three years of formal education and his practice of Falun
Gong is relatively recent. In addition, the Applicant spoke credibly on many
aspects of the practice. For instance:
i.
When
asked about his practice, the Applicant stated that it involved learning the
movements and his instructor talking about the theories and benefits of Falun
Gong;
ii.
When
asked for specific information relayed by his instructor, the Applicant
indicated that he was told about the founder of Falun Gong, that many people
participated, that there were health benefits and that he would feel better
mentally and be more truthful;
iii.
When
asked about Falun Gong in general, the Applicant spoke briefly about
cultivation and the mind, said his temper was not as quick as it used to be,
and said that he experienced health improvement. He also identified that
practice to a certain level would lead to Truth, Compassion and Forbearance. He
also indicated that practice would lead to being helpful, peaceful and not
deceitful.
iv.
The
Applicant had knowledge of the major Falun Gong books, knowledge of what “forbearance”
is, knowledge of what a “falun” is. He also commented on “karma” and the “third
eye.”
[59]
It
is significant to note on this point that this Court’s jurisprudence imposes a
very low standard on refugee claimants to demonstrate religious knowledge as a
requirement for proving religious identity. In Chen, above, for example,
the Court set aside the RPD’s decision where it determined that the claimant
was not a genuine Christian based in part on the its finding of inadequate
religious knowledge. Justice Barnes found the RPD’s assessment of the
claimant’s religious knowledge was erroneous and said that:
[16] The Board’s assessment of Mr. Chen’s religious knowledge
is also problematic. For a person exposed to Christian practices and doctrine
for only 2 1/2 years, Mr. Chen exhibited a reasonable level of knowledge. It
was unfair to criticize him for an inability to locate the story of Noah’s Ark in the Bible. Many
Christians who have grown-up in the faith would fare no better than Mr. Chen:
see Feradov v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 135, 2007 FC 101 at para. 16.
[60]
Similarly,
in Huang, above, Justice Richard Mosley determined that the RPD acted
unreasonably when it concluded that the claimant was not a Christian based on insufficient
knowledge of Christianity. Justice Mosley found that the RPD had engaged in an
overly stringent and microscopic examination of the claimant’s religious
knowledge. He said, at paragraphs 10 and 11, that the claimant
was raised
in a country where the Christian faith is not part of the social fabric. From
the transcript of the hearing, it is clear that his few points of error on
doctrinal issues are vastly outweighed by his knowledge of the Christian faith.
The RPD appears to have been overly focused on those few points of error or
misunderstandings to a level which reached the microscopic analysis criticized
in Attakora v. Canada (Minister of Employment and Immigration) (F.C.A.), (1989), 99 N.R. 168, [1989] F.C.J. No. 444, and
subsequent cases.
The Board
member’s standard for knowledge of Christian doctrine was unrealistically high,
and she was clearly weighing his description of a standard service at the
underground church against her own idea of how a service unfolds. I cannot find
her decision reasonable, given the personal circumstances of the applicant and
his evidence.
[61]
Given
the low bar this Court has set for claimants seeking protection to demonstrate
religious knowledge, it is my view that, as in Huang, the RPD in this
case engaged in an overly stringent and microscopic examination of the
Applicant’s knowledge of Falun Gong. It erroneously weighed his testimony on
this issue against its own misguided idea of what a person in the Applicant’s
circumstances should or would know or understand. I agree with the Applicant
that, in so doing, the RPD based its finding that he is not a Falun Gong
practitioner on unattainable and unreasonable requirements for knowledge of the
practice. The RPD also failed to consider the fact that, as Justice Francis
Muldoon said in Valtchev v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 1131, “refugee claimants
come from diverse cultures, and actions which appear implausible when judged
from Canadian standards might be plausible when considered from within the
claimant’s milieu.”
[62]
For
the above reasons, the Decision is unreasonable and must be returned.
[63]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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