Date:
20120814
Docket:
IMM-8165-11
Citation:
2012 FC 993
Ottawa, Ontario,
August 14, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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XIN CAI HOU
(a.k.a. XINCAI HOU)
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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
[1]
The
applicant is a citizen of China, who claims to be a Falun Gong practitioner. He
came to Canada with the aid of a smuggler in 2009 and made a refugee claim. The
Refugee Protection Division of the Immigration and Refugee Board [RPD or the
Board] dismissed his claim in a decision dated October 18, 2011. In this
application for judicial review, the applicant seeks to set aside the RPD’s
decision.
[2]
The
RPD dismissed the applicant’s claim for two reasons. First, it found the
applicant to lack credibility due to numerous inconsistencies in his testimony
before the Board, several additional inconsistencies between what he stated
during his testimony and what he wrote in the Personal Identification Form
[PIF] he was required to complete by virtue of section 5(1) of the Refugee
Protection Division Rules, SOR/2002-228 and to the way in which he answered
questions from the RPD panel member who conducted the hearing. Second, the
Board held that the applicant’s knowledge of Falun Gong was inconsistent with
someone who claimed to have engaged in 17 years of continuous practice and
extensive study of Zhuan Falun, the central text of Falun Gong. In
assessing the genuineness of the applicant’s beliefs, the RPD gave little
weight to the letters of support and petitions the applicant filed regarding
his alleged practice of Falun Gong in Canada.
[3]
Based
on these factors, the Board disbelieved that the applicant had been a Falun Gong
practitioner in China and determined that his practice of Falun Gong in Canada was undertaken solely for the purpose of supporting a fraudulent refugee claim. The RPD
therefore concluded that if the applicant were returned to China he would not
be perceived to be a genuine practitioner and thus that he was not a Convention
refugee within the meaning of section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA or the Act] nor a person in need of
protection within the meaning of section 97 of the Act.
[4]
The
applicant argues that the RPD committed four reviewable errors in its decision.
He argues first that the Board made numerous errors in its credibility
determinations. Second, the applicant asserts that the RPD erred in finding him
to have limited knowledge of Falun Gong because it imposed an erroneously high
standard of knowledge and premised its finding in large part on a
misunderstanding of Falun Gong. Third, the applicant claims that the RPD panel
member who decided the case violated the principles of procedural fairness in
indicating during the hearing that the applicant’s knowledge of the Third “Talk”
in the Zhuan Falun was “pretty good” but then basing his decision in
part on the applicant’s lack of knowledge of this “Talk”. Finally, the
applicant argues that the RPD erred in considering his motivations for engaging
in the practice of Falun Gong in Canada, which the applicant asserts are
irrelevant to the assessment of whether he can advance a valid sur place
refugee claim or a claim based on his activities in Canada. The applicant
argues in this regard that the authorities relied upon by the RPD are not valid
and that the presence or absence of a good faith motive for engaging in
activities that may give rise to a sur place claim is not a relevant
consideration in Canadian law.
[5]
The
following issues, therefore, arise in this case:
1.
What
standard of review is applicable to assessment of each of the errors alleged by
the applicant;
2.
Are
any of the impugned credibility findings sufficiently erroneous so as to
warrant the decision’s being set aside;
3.
Did
the Panel member deny procedural fairness to the applicant in making the
impugned comments regarding the applicant’s knowledge of the Third “Talk” in
the Zhuan Falun;
4.
Did
the RPD commit a reviewable error in its assessment of the applicant’s
knowledge of Falun Gong; and
5.
Did
the RPD commit a reviewable error in its consideration of the applicant’s
motives for engaging in the practice of Falun Gong in Canada?
Each of these issues is examined
below.
What
standard of review is applicable to assessment of each of the errors alleged by
the applicant?
[6]
Turning,
first, to consideration of the applicable standard of review, the deferential reasonableness
standard applies to the Board’s credibility findings, to its assessment of the
applicant’s knowledge of Falun Gong and to its consideration of the applicant’s
motives for engaging in the practice of that religion in Canada. However, consideration
of the alleged violation of procedural fairness attracts no deference.
[7]
In
terms of review of credibility findings, it is well-established that
significant deference is due to the findings of a tribunal, including the RPD,
in matters of credibility (see e.g. Aguebor v Canada (Minister of Employment
and Immigration) (1993), 160 NR 315, [1993] FCJ No 732 (FCA) [Aguebor], at
para 4; Singh v Canada (Minister of Employment and Immigration) (1994),
169 NR 107, [1994] FCJ No 486 [Singh] at para 3; and Cetinkaya v Canada
(Minister of Citizenship and Immigration), 2012 FC 8, [2012] FCJ No. 13 at
para 17).
[8]
The
reasonableness standard of review is likewise applicable to the Board’s
assessment of the applicant’s knowledge of Falun Gong, the matter being one of
fact. In this regard, it is noteworthy that the applicant does not argue that
the Board committed an error of law in considering and testing the degree of
the applicant’s knowledge of Falun Gong but, rather, asserts that the
conclusion reached was erroneous. In most – but not all – of the cases where it
has examined the issue, this Court has applied a reasonableness standard to the
review of the RPD’s assessment of a claimant’s religious knowledge (see e.g. Jin
v Canada (Minister of Citizenship and Immigration), 2012 FC 595 at paras 5
and 17 [Jin] (Pinard); Cao v Canada (Minister of Citizenship
and Immigration), 2011 FC 1436, [2011] FCJ No 1739 at 19 [Cao II]
(Zinn); Chen v Canada (Minister of Citizenship and Immigration), 2011 FC 1176 at
paras 28-30,
[2011]
FC J No 1445 [Chen III] (Russell); Wang v Canada (Minister of
Citizenship and Immigration), 2011 FC 614 at paras 13 and 20 (Near); Cao
v Canada (Minister of Citizenship and Immigration), 2008 FC 1174 at paras
20-24, [2008] FCJ No 1507 [Cao I] (Mosley); Huang v Canada
(Minister of Citizenship and Immigration), 2008 FC 346 at paras 7 and 11,
[2008] FCJ No 452 [Huang I] (Mosley); Chen v Canada (Minister of
Citizenship and Immigration), 2007 FC 270 at para 9, [2007]
FCJ No 395 [Chen I] (Barnes)). Although Justice Campbell appears to
have recently applied the correctness standard in Zhang v Canada
(Minister of Citizenship and Immigration), 2012 FC 503 at para 17, in my
view, the approach taken in the majority of cases is the correct one because
the issue is one of fact and it is firmly established that factual determinations
of inferior tribunals are reviewable on the reasonableness standard (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 51,
[2008] 1 S.C.R. 190; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paras 25 and 46, [2009] 1 S.C.R. 339).
[9]
Insofar
as concerns the standard of review applicable to the RPD’s consideration of the
applicant’s motives for engaging in the practice of Falun Gong in Canada, the
standard is likewise reasonableness as in this case the Board’s consideration
of the applicant’s motives involves a question of mixed fact and law, and such
issues are reviewable on the reasonableness standard (Dunsmuir at para 51).
In this case, the Board needed to assess the sincerity of the applicant’s
beliefs to determine if he would be likely to continue the practice of Falun
Gong if he were returned to China because on these facts it is continued
practice which might have placed the applicant at risk. Motive is a relevant
consideration in gauging the sincerity of the applicant’s beliefs.
[10]
This
case must be distinguished from those where the alleged risk depends not on
whether the applicants are likely to continue practice of a faith in their home
country, but rather, on the mere fact of having been known to engage in a
particular activity in Canada which in and of itself might expose them to the
risk of persecution (see e.g. Ejtehadian v Canada (Minister of Citizenship
and Immigration), 2007 FC 158 [Ejtehadian], addressed in more
detail below in para 64). In such circumstances, considering an
applicant’s motivation for his or her behaviour in Canada might amount to an
error of law, arguably of the sort that would give rise to the standard of
correctness (see Ejtehadian at para 12). That is so because in such a case
– unlike the present – the likelihood of engaging in the practice if returned
to the home country is irrelevant to the risk faced by the applicant. Such risk
flows merely from having engaged in certain activities while in Canada. Here, on the other hand, the alleged risk flows from the likelihood that the
applicant would engage in the practice of Falun Gong if returned to China because the Chinese authorities do not persecute former Falun Gong practitioners.
Thus, it was necessary for the RPD to determine whether the applicant was a
sincere practitioner of that faith.
[11]
The
circumstances of this case must also be distinguished from much of the Court’s
jurisprudence in this area, which has involved situations where the Board has failed
to even consider the sur place aspect of a claim and dismissed
refugee claims solely due to its determination that an applicant began
practicing a religion to buttress a fraudulent refugee claim (see e.g. El Aoudie v
Canada (Minister of Citizenship and Immigration), 2012 FC
450, [2012] FCJ
No 487 [El Aoudie]; Hannoon v Canada (Minister of Citizenship
and Immigration), 2012 FC
448, [2012] FCJ
No 480 [Hannoon]; Yin v Canada
(Minister of Citizenship and Immigration), 2010 FC
544 [Yin]) . These cases have in effect held that the RPD’s failure to
assess a key aspect of a claim constitutes a reviewable error upon which it is
owed no deference (as was recently reasoned by Justice Phelan in another
immigration context in Nadarasa v Canada (Minister of Citizenship and
Immigration), 2012 FC 752 at para 26). In contrast, here I am reviewing the
Board’s consideration of the applicant’s motives in the context of the analysis
it undertook of the sur place claim. As mentioned, this is a question of
mixed fact and law and as such, warrants review on the reasonableness standard.
[12]
The
reasonableness standard is an exacting one and requires the reviewing court
afford deference to the tribunal’s decision; a court cannot intervene unless it
is satisfied that the reasons of the tribunal are not “justified, transparent
or intelligible” and that the result does not fall “within the range of possible,
acceptable outcomes which are defensible in respect of facts and law” (Dunsmuir
at para 47, cited above at para 8). In applying this deferential standard,
it matters not whether the reviewing court agrees with the tribunal’s
conclusion, would have reached a different result or might have reasoned
differently. So long as the reasons are understandable and the result is one
that is rational and supportable in light of the facts and the applicable law,
a court should not overturn an inferior tribunal’s decision under the
reasonableness standard of review.
[13]
In
assessing the reasonableness of a tribunal’s factual findings, it is firmly
settled that the reviewing court cannot and should not re-weigh the evidence (Khosa
at para 61, cited above at para 8). Indeed, the yardstick for determining the
reasonableness of the RPD’s factual determinations, including credibility
findings, is set out in paragraph 18.1(4)(d) of the Federal Courts Act, RSC,
1985, c F-7, which provides that the impugned finding must meet
three criteria for relief to be granted: first, the finding must be truly erroneous;
second, it must be made capriciously, perversely or without regard to the
evidence; and, finally, the tribunal’s decision must be based on the erroneous
finding (Rohm & Haas Canada Limited v Canada (Anti-Dumping Tribunal)
(1978), 22 NR 175, [1978] FCJ No 522 at para 5 [Rohm & Haas]; Buttar
v Canada (Minister of Citizenship and Immigration), 2006 FC 1281 at para
12, [2006] FCJ No 1607).
[14]
Turning,
finally, to the claimed violation of the principles of procedural fairness, it
is for the reviewing court to determine whether the RPD violated principles of
procedural fairness. The Board is owed no deference in this regard (see e.g. Turner v Canada (Attorney General),
2012 FCA 159, [2012] FCJ No 666 at para 43; Ke v Canada (Minister of
Citizenship and Immigration), 2012 FC 862 at para 36). As
the Federal Court of Appeal stated in Sketchley v Canada (Attorney General),
2005 FCA 404, [2006] 3 FCR 392 at para 53:
…[t]he decision-maker has either complied with the
content of the duty of fairness appropriate for the particular circumstances,
or has breached this duty.
[15]
Thus,
to summarise, the reasonableness standard of review applies to the Board’s
credibility findings, to its assessment of the applicant’s religious knowledge
and to its consideration of the applicant’s motives for practicing Falun Gong
in Canada, whereas the panel member’s conduct that is alleged to violate the
principles of procedural fairness is to be assessed to determine whether a
violation occurred.
Are
any of the impugned credibility findings sufficiently erroneous so as to
warrant the decision’s being set aside?
[16]
Prior
to analyzing the reasonableness of the impugned credibility findings, it is necessary
to summarize the various reasons the RPD offered for disbelieving the applicant
because the applicant attacks virtually every finding made by the RPD.
[17]
In
this regard, the Board first considered the discrepancy between the applicant’s
testimony and the statements made in the two versions of his PIF regarding the
reason for the alleged arrest of fellow Falun Gong members and basis for the
applicant’s flight from China. In his testimony before the RPD, the applicant
stated that the arrest occurred because the members of his Falun Gong group were
distributing pamphlets and he feared he would also be arrested because he had
likewise distributed Falun Gong flyers. However, he neglected to mention these facts
in either his original PIF, which he completed shortly after making his refugee
claim, or in his amended PIF, which he filed shortly prior to the hearing. When
questioned about the inconsistency, the applicant stated that he “didn’t dare to
disclose” the distribution of flyers, because he was uncertain of the situation
in Canada and feared the possible presence of Chinese spies. The Board did not
accept this explanation because the applicant had participated in a pro-Falun
Gong demonstration in front of the Chinese embassy in Toronto, just days before
completing his first PIF. It reasoned that it was neither plausible nor
credible that the applicant would have been too frightened to complete his PIF
form, a critical document in support of his refugee claim, and yet have engaged
in a very public demonstration at virtually the same time.
[18]
Next,
the Board commented on another contradiction in the applicant’s testimony. When
questioned about why he protested in front of the Chinese embassy, the
applicant said that he was not afraid to protest because he only later learned
that the embassy had cameras. Later in his testimony, however, he stated that
at the time he demonstrated he was aware there was a likelihood he would be
identified if he chose to participate in the demonstration. The RPD noted this
inconsistency and also noted that the applicant’s statement that he was not
afraid to protest contradicted the reason he had given for omitting his role in
leafleting from his PIFs. The Board drew negative inferences from these
contradictions.
[19]
The
Board then commented on an obvious inconsistency between the applicant’s
testimony and his PIFs and on the efforts the applicant made to try and explain
away the inconsistency. In his testimony, the applicant claimed that there were
eight members in his Falun Gong group in China, that four of them had been
arrested and that one of them had been “persecuted to death”. In his PIFs,
however, the applicant only mentioned one individual being arrested. When asked
to name the individuals he claimed were arrested, the applicant provided four names,
but not that of the person he had named in his PIFs. When the RPD pointed this
out to the claimant, he responded that the four individuals he had named during
his testimony belonged to a second Falun Gong group that he also belonged to.
The RPD rejected this explanation and found that the applicant’s “testimony evolved
in an effort to explain away an obvious inconsistency”. This also caused the
Board to draw a negative inference.
[20]
Next,
the Board commented on its questioning of the applicant as to why he had
omitted any mention of the four individuals’ arrests and one of their deaths
from his PIFs. The applicant claimed he had done so because he did not know “the
specific details of the persecution” and he did not want to mention it because
he would have trouble explaining himself at the hearing. The Board rejected
this explanation as being not credible.
[21]
The
Board then moved to consider a further discrepancy between the applicant’s
testimony and his PIFs, namely that the applicant claimed in his testimony that
his wife had received threats from the Chinese Public Security Bureau [PSB] but
neglected to mention this in his PIFs. The RPD once again drew a negative
inference due to this inconsistency. The RPD also drew a negative inference
from the fact that, apart from the alleged threats, the applicant’s wife and
son in China had experienced no problems, noting that the country documentation
before the Board indicated that “Chinese authorities use the family of
absconding [Falun Gong] practitioners as hostages to force the practitioner to
give up the practice”. The RPD reasoned that it was implausible that the
Chinese authorities would have merely threatened the applicant’s wife with
arrest if they knew of the applicant’s practice of Falun Gong.
[22]
The
Board then considered a further inconsistency in the applicant’s testimony,
noting that at one point he stated that the PSB was unaware of his Falun Gong
activities in China, and yet claimed the authorities would have been able to
identify him on a Falun Gong website protesting against the Chinese government.
The Board also noted that the applicant had offered no evidence to prove that
the Chinese authorities were aware of any alleged Falun Gong practice by the
applicant.
[23]
Based
on the foregoing, the RPD held that the applicant’s testimony that members of
his Falun Gong groups in China were arrested was not credible and that the
applicant was not being pursued by the Chinese authorities for his alleged
Falun Gong activities in China.
[24]
The
Board then moved on to consider the applicant’s knowledge of Falun Gong. The
Board held that the applicant did not display a level of knowledge consistent
with someone who claimed to have practiced Falun Gong for nearly 17 years and who
claimed to have read one of the “Talks” of the Zhuan Falun each week
since 1994 while in China and to have continued to read the Zhuan Falun
daily in Canada. In terms of examples, the RPD noted that the applicant
identified “Talk” three as his favourite, but was not able to provide
significant detail on the contents of the “Talk” and that the applicant was
unable to name more than one of the eight major distinguishing characteristics of
Falun Gong as described by Master Li in Zhuan Falun.
[25]
The
RPD then considered the letters of support and petitions the applicant filed
regarding his alleged practice of Falun Gong in Canada. One of these was from
Joel Chipkar, the Vice President of the Falun Dafa Association. The applicant
claims that the RPD ought to have accorded significant weight to this letter, as
Mr. Chipkar had been accepted as an expert witness by the RPD in other cases
and his letter stated that the Falun Dafa Association only provided letters of
support in cases where the Association was convinced of the genuineness of the
claimant’s practice of Falun Gong. The RPD, however, accorded little weight to
Mr. Chipkar’s letter and the other documents the applicant filed to support his
claim that he was a genuine Falun Gong practitioner in Canada.
[26]
In
terms of Mr. Chipkar’s letter, the RPD noted it did not provide any information
as to how Mr. Chipkar met the applicant, whether he had personally observed the
applicant’s practice of Falun Gong nor whether he had conducted a personal
assessment of the genuineness of the applicant’s beliefs. The RPD also noted
that Mr. Chipkar’s letter was a photocopy and that Mr. Chipkar had not been
called to testify, even though counsel had indicated that he was present and
intended to call him to give evidence. The RPD also noted that the letter and
the other documents from purported Falun Gong practitioners only attested to
the applicant’s Falun Gong practice and did not speak to the genuineness of the
applicant’s beliefs, which was the matter that the Board was required to
determine.
[27]
In
light of the foregoing, the Board concluded that the applicant’s allegation
that he was a genuine Falun Gong practitioner in China was not credible and,
further, that the applicant had not become a genuine practitioner in Canada.
[28]
In
reaching the latter conclusion, the RPD first quoted from a 1994 appeal case of
the Refugee Status Appeals Authority of New Zealand, where the chairman of the
panel stated:
If there is no good faith requirement in the sur
place situation, it places in the hands of the appellant for refugee status
means of unilaterally determining the grant to him or her of refugee status.
[29]
The
RPD then purported to cite from James Hathaway’s The Law of Refugee Status
(Toronto: Butterworths, 1991), claiming that Professor Hathaway had stated the
following with regard to sur place claims: “An individual who as a
strategem deliberately manipulates circumstances to create a real chance of
persecution which did not exist cannot be said to belong to this category [i.e.
of a sur place refugee claimant]”. As noted below, however, this quote is
not from Professor Hathaway’s book.
[30]
Finally,
the RPD held that the applicant’s claim had not been made in good faith and
concluded as follows at paragraphs 32 and 33 of the decision:
Having found that the claimant was not a genuine
Falun Gong practitioner in China and having found that this claim has not been
made in good faith, the panel finds, on a balance of probabilities, and in the
context of the findings noted above, that the claimant’s participation in Falun
Gong activities in Canada was only for the purpose of supporting a fraudulent
refugee claim. The panel finds on the balance of probabilities that the
claimant engaged in Falun Gong activities in Canada only to create the
circumstance in which he could file a refugee protection claim.
In the context as noted above, as well as in the
context of the cumulative findings and negative inferences noted above, the
panel finds, on a balance of probabilities, that the claimant is not a genuine
Falun Gong practitioner nor would he be perceived to be in China.
On the basis of the totality of the evidence and the
cumulative findings, the panel finds that the claimant has not satisfied his
burden of establishing a serious possibility that he would be persecuted or
that he would be personally subjected to a risk to his life or a risk of cruel
and unusual treatment or punishment or danger of torture by any authority in
the People’s Republic of China.
[31]
The
applicant alleges that the RPD committed eight reviewable errors in its
credibility assessment, arguing that:
1. The
finding of an inconsistency between the applicant’s testimony and his PIFs due
to the failure to mention the leafleting in the PIFs is unreasonable because
these events were “peripheral detail”;
2. The
finding that it was neither plausible nor credible for the applicant to have
been too fearful to properly complete his PIF yet chose to engage in a public
demonstration at the same time is “speculative and unreasonable” because
practitioners of Falun Gong typically protest even if they are uncertain about
their safety;
3. The
Board unreasonably rejected the applicant’s reasons for not mentioning his
other Falun Gong group in his PIFs because the RPD did not say why it rejected
the applicant’s explanation;
4. The
Board unreasonably speculated that if the applicant’s story were true his
family would have faced adverse consequences, ignoring the fact that the alleged
repeated PSB visits and warnings were adverse consequences;
5. The
RPD’s finding regarding the PSB not being aware of the applicant’s Falun Gong
practice in China was speculative because there was no basis for the finding;
6. The
RPD’s failure to accord appropriate weight to Joel Chipkar’s letter due to its
being a photocopy was unreasonable because this is irrelevant to the letter’s
probative value;
7. The
RPD’s reliance on the failure to call Mr. Chipkar is unreasonable because the Board
knew he had limited availability to testify; and
8. It
was unreasonable for the Board to reject the other documentary evidence, purporting
to confirm the applicant’s Falun Gong practice in Canada, because the RPD
failed to assess the documents and state why they were not corroborative of the
applicant’s identity as a Falun Gong practitioner.
[32]
Each
of these assertions invites this Court to engage in precisely the type of
analysis that has time and again been determined to be inappropriate in the
context of a judicial review application. In short, the applicant is inviting
me to reweigh the evidence. As noted, it is well-settled that this cannot and
should not be done in an application such as the present. Furthermore, the
applicant’s arguments are unconvincing. For these reasons, the applicant’s
challenges to the Board’s credibility findings must fail.
[33]
With
regard to the first two arguments, contrary to what the applicant asserts, the
allegation that he had been engaged in leafleting is not a “peripheral detail”
in the applicant’s version of events. As the RPD noted, this event was offered
by the applicant in his testimony as the central reason why the PSB was
allegedly seeking to arrest him. It was therefore a key element in the
applicant’s story and its omission from the PIFs was a factor that the RPD
could reasonably consider in impugning the applicant’s credibility.
[34]
The
assertion that it was somehow unreasonable for the RPD to have found implausibility
in the applicant’s explanation as to the reason he omitted this detail from his
PIFs is similarly without merit. In stating that practitioners of Falun Gong
often protest when they might be in danger, the applicant misses the point of
the Board’s reasoning. It found the applicant’s explanation to lack credibility
not because it is unbelievable that a Falun Gong adherent might incur risks
through protesting but, rather, because the applicant’s willingness to protest
publicly is inconsistent with his refusal by reason of an alleged fear to
include a key element of his claim in his PIF, a written form. The Board’s
implausibility finding flows directly from the evidence and, moreover, falls well
within the scope of the RPD’s expertise in assessing the likely behaviour of
refugee claimants.
[35]
The
third of the above arguments advanced by the applicant similarly lacks merit.
There was no need for the Board to belabour why it rejected the applicant’s
evolving story of belonging to a second Falun Gong group when the panel member
pointed out the fundamental inconsistency between the number and identities of
those the applicant claimed were arrested in his PIFs and in his testimony. The
explanation offered by the applicant in response was unconvincing and does appear
to have been made up on the spot.
[36]
It
was likewise reasonably open to the Board to find the applicant’s version of
events to be implausible, due to the inconsistency between his story and the
common pattern of behaviour of the PSB toward Falun Gong practitioners’
families reported in the country documentation. In this regard, the documentary
evidence indicates that supporters and family members of Falun Gong
practitioners are harassed, and in some cases arrested, by Chinese authorities.
This was reasonably noted and relied upon by the Board.
[37]
In
terms of the applicant’s fifth argument, the applicant again misses the point
of the Board’s decision. The RPD found that there was no evidence of the PSB
being aware of the applicant because none was provided other than the applicant’s
own claim, based on hearsay from his wife, that it was so aware. In light of
the numerous inconsistencies in the applicant’s testimony, it was reasonable
for the Board to reject the applicant’s assertion and to require independent
evidence to corroborate the claim that the PSB was aware of the applicant’s
Falun Gong activities. In the absence of any such evidence, the Board’s
conclusion that the PSB was not aware of the applicant’s activities is
certainly not speculative and its finding that there was no evidence to support
the claim is reasonable.
[38]
As
concerns the treatment afforded by the RPD to Joel Chipkar’s letter, the
applicant once again fails to accurately characterize the Board’s reasoning on
this point. As noted above, the Board’s decision to afford the letter little
weight turned principally on the lack of detail contained in the letter
concerning the genuineness of the applicant’s beliefs and practice of Falun
Gong. While the applicant is correct in noting that the fact that the document
was a photocopy is not probative of its reliability because copies are often
tendered in evidence before the RPD and the Board is not required to strictly
apply the rules of evidence, the RPD’s assessment of the weight to be given to
the letter did not turn on its being a photocopy. It turned rather on the
letter’s contents. While its contents purported to affirm the applicant’s
beliefs and practices, the letter contained no indication of the basis for this
information and, in particular, does not specify that its author had any
personal knowledge of the applicant’s religious involvement. It was accordingly
reasonable for the Board to have given it little weight.
[39]
Regarding
Mr. Chipkar’s failure to testify, it was open to the Board to comment on this
point in its decision. While it is true that counsel advised the RPD of Mr.
Chipkar’s limited availability, this does not change the fact that it is the
applicant who bears the burden of making out his or her case. As such, it was
incumbent on counsel to ensure that necessary witnesses were available. If this
was not possible, counsel could have sought an adjournment from the RPD. This
did not happen. Accordingly, it was fair for the Board to comment on the
failure to have Mr. Chipkar testify as being an additional reason to afford his
letter little weight.
[40]
In
terms of the other documents that the Board gave little weight, contrary to
what the applicant asserts, the RPD did provide a reason for its determinations
in this regard, and, as noted, stated that the other documents did not speak to
the genuineness of the applicant’s beliefs but rather merely attested to his
practice of Falun Gong in Canada. Given this, and in light of the many problems
with the applicant’s credibility on other points, these determinations were
reasonable.
[41]
For
these reasons, the Board’s credibility assessment is reasonable. Moreover,
given the inconsistencies in the applicant’s testimony, the Board’s credibility
findings provided it with a sound underpinning to determine that the applicant
was not a genuine Falun Gong practitioner – either in China or in Canada.
Did
the Panel member deny procedural fairness to the applicant in making the
impugned comments regarding the applicant’s knowledge of the Third Talk in the Zhuan
Falun?
[42]
Turning
next, to the alleged breach of procedural fairness, as noted, the RPD held that
the applicant’s knowledge of Falun Gong was not consistent with what the Board
would have expected from a practitioner with the length of experience in the
practice that the applicant claimed to possess. In assessing the applicant’s
knowledge, the RPD panel member posed a series of questions about Falun Gong
and the applicant’s claimed practice. Some of these questions related to “Talk”
three of the Zhuan Falun, of which the Board found the applicant to have
limited knowledge.
[43]
The
applicant argues that certain comments made by the panel member during the
hearing essentially amounted to a breach of the duty of procedural fairness
because the panel member expressed satisfaction with the applicant’s knowledge
of “Talk” three but then found such knowledge to be lacking in the decision.
The relevant exchange between the panel member and the applicant was as follows
(Certified Tribunal Record [CTR] at pp 243-244):
MEMBER: What’s your favourite talk?
CLAIMANT: I like them all.
MEMBER: Okay. Do you have a favourite though?
CLAIMANT: The third talk, in that talk, the master
says that he takes all of us as his disciples.
MEMBER: What else does he say in talk number 3?
CLAIMANT: He says he’s taking all students as his
disciples.
MEMBER: Is that the only thing the third talk is
about?
CLAIMANT: No.
MEMBER: So tell me the other things that the third
talk is about.
CLAIMANT: It talks about spiritual possession. It
also talks about cosmic language.
MEMBER: Anything else?
CLAIMANT: Yes, how Falun Dafa disciples should
spread the practice.
MEMBER: Yes.
CLAIMANT: I’m sorry, I can’t recall more.
MEMBER: That’s it, eh?
CLAIMANT: There are 10 sections -- 10 subtitles.
MEMBER: That’s pretty good though. You did a pretty
good job.
What is the purpose of exercise Number 3?
[44]
The
member then went on to ask a number of other questions regarding “Talk” number
three and other of the “Talks” in the Zhuan Falun, to which the
applicant gave very limited answers.
[45]
Counsel
for the respondent argues that is difficult to assess the foregoing passage as
it conveys nothing about the tone of the conversation. She moreover notes that
the Board member was obviously not satisfied with the applicant’s answers
regarding “Talk” three as he went on to pose several more questions about the
“Talk”. She also asserts that the extent of the applicant’s knowledge was
clearly an issue throughout the hearing, given the Board’s definition of issues
at the outset of the hearing and the fact that counsel for the applicant made
submissions on the depth of the applicant’s knowledge in her closing remarks. In
my view, there is considerable force in these arguments.
[46]
The
impugned comments made by the member, while unfortunate, do not amount to a
violation of procedural fairness because all parties, through their subsequent
behaviour, recognized that the Board member was not satisfied as to the sufficiency
of the responses the applicant had given regarding “Talk” three and the
applicant’s religious knowledge: the Board member continued to ask questions regarding
“Talk” three and counsel made submissions regarding the adequacy of the
applicant’s knowledge in her closing remarks.
[47]
The
assessment of the requirements of procedural fairness depends very much on the
circumstances of each case and is influenced by factors such as the nature of
the decision in question and the process followed making it, and, in
particular, the degree to which the decision-making process resembles that
followed by a court; the statutory scheme applicable to the tribunal; the
importance of the decision to the affected parties; the legitimate expectations
of the parties; and
the procedural choices made by the
tribunal (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] SCJ No 39 at paras 21-28). The case law of this Court indicates
that in circumstances like the present a violation of procedural fairness will
occur if the parties did not realize that an issue was under debate, but that
it will not occur where the Board makes inept comments but the parties are given
an indication that the issue is of concern and are afforded the opportunity to make
submissions on the matter.
[48]
For
instance, in
Velauthar v Canada (Minister of Employment and Immigration) (1992), 141
NR 239, 33 ACWS (3d) 1115 [Velauthar], the panel member instructed
counsel to prepare written submissions on a single issue – whether the claimant
satisfied the definition of refugee – and then proceeded to refuse his claim on
the basis of credibility. The Federal Court of Appeal found that, having
stipulated that only one point was at issue, the principles of natural justice
were violated by the panel deciding on another issue.
[49]
In
similar vein, in Li v Canada (Minister of Citizenship and Immigration),
[1994] FCJ No 1109, 49 ACWS (3d) 557, Justice Reed found there to have been a
breach of natural justice because the Board discouraged the applicant from
explaining a situation, and then relied upon the lack of explanation in its
refusal of his claim.
[50]
On
the other hand, in Haji v Canada (Minister of Citizenship and Immigration),
[2003] FCJ No 682, 2003 FCT 528 [Haji], the Court found the Velauthar
decision to be inapplicable because the panel had indicated at the outset of
the hearing that the issue in question was one the Board needed to determine
and gave the claimant’s lawyer the opportunity to make submissions on it at the
close of the case (see para 14). This finding was made even though the panel member’s
conduct during the hearing was consistent with the claimant being successful on
the issue. Even though the Board ruled against the claimant on the issue, there
was no violation of procedural fairness because the issue was clearly
delineated as being at play and an opportunity to make submissions on it was
afforded to the claimant.
[51]
This
situation here is quite similar to that in Haji. In both cases, the
issue in question – here, the degree of the applicant’s religious knowledge –
was clearly defined at the outset of the hearing as being at play and counsel
made submissions on it. Moreover, in terms of the applicant’s knowledge of
“Talk” three of the Zhuan Falun, the member’s
subsequent conduct in continuing to ask questions about the “Talk” after making
the impugned comment demonstrated
that he was not satisfied with the applicant’s answers. Thus, in these
circumstances, it should have been clear to the applicant and his counsel that
the applicant’s religious knowledge in general and his knowledge of “Talk”
three in particular were at issue. Accordingly, the RPD panel member did not
commit a breach of procedural fairness in making the impugned comments.
Did
the RPD commit a reviewable error in its assessment of the applicant’s
knowledge of Falun Gong?
[52]
In
addition to the breach of procedural fairness alleged by the applicant, counsel
for the applicant argues that the RPD required an unreasonably high degree of
knowledge from the applicant, claiming that “[t]he Federal Court jurisprudence
has imposed a very low standard on refugee claimants to demonstrate the
religious knowledge requirement in proving religious identity”, citing in this
regard Chen I and Huang I (Applicant’s Memorandum at paras 11-12,
both cited above at para 8). He also argues that the RPD’s finding that the
applicant could not identify any of the eight distinguishing characteristics
of Falun Gong described by Master Li in Zhuan Falun is unreasonable
because the characteristics are contained in Master Li’s The Great Way of
Spiritual Perfection and not the Zhuan Falun and that asking a Falun
Gong practitioner to identify the eight characteristics would be confusing to a
Falun Gong practitioner as Master Li asks that they not mechanically classify
his teachings. In support of these assertions, he relies on an affidavit from
Mr. Chipkar, filed in support of this judicial review application, in which Mr.
Chipkar makes the two foregoing points.
[53]
Counsel
for the respondent did not object to the admissibility of this affidavit, but
argues that the RPD’s finding on the eight characteristics was reasonable even
though the panel member erred in attributing it to Zhuan Falun as
opposed to the The Great Way of Spiritual Perfection. She notes in this
regard that the error was made only in the decision and that the member in his
questioning did not attribute the discussion of the characteristics to the Zhuan
Falun and so did not confuse the applicant (see CTR at p 245). She also relies
on Chen III at para 21 (cited above at para 8), where Justice
Russell noted similar questions were asked by the Board member and went on to uphold
the reasonableness of the Board’s decision. She finally asserts that the
applicant has mischaracterized the decisions of this Court on religious
knowledge and noted other decisions where inability to answer questions like
those posed in this case was found to be a reasonable basis for the Board to
conclude that the claimant’s beliefs were not genuine (citing Wang and Cao
II (both cited above at para 8).
[54]
Each
case in this area turns very much on its own facts, and the reasonableness of
the conclusions drawn regarding answers given to questions on religious
knowledge will depend on an applicant’s circumstances, the questions posed and
the answers given. In addition, the reasonableness of a decision will often depend
on the credibility determinations the Board makes with respect to other aspects
of the applicant’s claim as Justice Mosley held in Cao I at paras 27-29
(cited above at para 8). Where, like here, the applicant’s version of events
in his or her home country is devoid of credibility, and where, like here, the
applicant has not undergone a conversion experience in Canada nor provided any
strong evidence in support of the genuineness of his or her claimed beliefs,
the Board should be afforded considerable leeway in its assessment of a
claimant’s religious knowledge.
[55]
Indeed,
in all cases – and especially in cases like the present where the applicant’s
credibility is found to be wanting – the Court should not be too hasty to
substitute its opinion for that of the RPD, which has developed expertise
regarding the dictates of a number of religions. As Justice Near noted in Wang
(cited above at para 8), assessing the genuineness of the claimant’s religious
beliefs is a difficult task and “this challenging job has been delegated to the
Board as the finder of fact and this Court cannot, on judicial review, decide
to, in effect, reweigh the results of what can look like a round of Bible
trivia” (at para 18). In my view, in Wang at para 20, Justice Near set
out the proper approach to be adopted by this Court in assessing the
reasonableness of the RPD’s assessment of the genuineness of a claimant’s
religious beliefs. After reviewing an awkward set of questions the Board had
posed regarding what Jesus was like, he stated:
… this line of questioning illustrates the
difficulty of the assessment the Board is required to make. It does not
represent an error for which the Board’s decision should be over-turned. Absent
a showing of disregard for the evidence, or a misapprehension of the facts, I
am unwilling to disturb the Board’s conclusion in this regard – again deference
is warranted. The Board did not make the determination of the genuineness of
the Applicant’s faith based solely on the Applicant’s inability to attribute some
human characteristics to Jesus. Answers to other questions regarding the
Pentecostal faith were vague and lacking in detail. As the Respondent submits,
testimony lacking in detail that would reasonably be expected of a person in
the claimant’s position is a basis for rejecting claims as non-credible even if
the Applicant was able to answer some other questions, and with great detail.
[56]
Application
of this reasoning in the present case results in the determination that the
Board’s assessment of the applicant’s knowledge of Falun Gong was reasonable. More
specifically, it was reasonable for the Board to have questioned the applicant
as to his beliefs and the conclusion it drew was likewise reasonable.
[57]
Dealing
first with the nature of the Board’s questioning, on the facts of this case, the
Board had good reason to question the applicant’s sincerity, given his utter
lack of credibility with respect to what he claimed had transpired in China and
the unconvincing explanations he gave when he tried to explain the
inconsistencies that the Board drew to his attention. In light of the problems
with the applicant’s credibility, it was reasonable for the Board to carefully
scrutinize the applicant’s sur place claim. In addition, the applicant
made specific allegations with regard to the way in which he practiced his
faith and claimed to have read Zhuan Falun on a weekly basis for several
years in China, and then on a daily basis since having arrived in Canada. Given
this level of alleged study and the other aspects of the applicant’s evidence, the
Board’s questioning of the applicant regarding his knowledge of Falun Gong was
appropriate.
[58]
As
mentioned, the applicant filed an affidavit from Joel Chipkar in support of his
argument that certain of the questions posed were unreasonable. However,
neither the applicant nor his counsel objected to the Board’s questioning
regarding the eight characteristics of Falun Gong during the hearing and they
did not make the arguments before the Board that they make here. In my view, it
is inappropriate for the applicant, in the context of a judicial review
application, to in effect seek to have this Court rule that the questions posed
by the panel member were inappropriate by arguing that the Board’s reliance on
the answers given to the questions is unreasonable. If a claimant or his
counsel believes a question is unfair, the place to make that argument is
before the RPD and not before the Court. Thus, I am placing no weight on Joel
Chipkar’s Affidavit and find that the questions posed by the RPD regarding the
applicant’s knowledge of Falun Gong were reasonable. This finding is supported
by the decision of Justice Russell in Chen III, relied on by the
respondent.
[59]
Turning,
then, to the conclusion drawn regarding the applicant’s lack of knowledge of Falun
Gong, in my view, the Board’s assessment of the applicant’s knowledge was
reasonable. The answers given by the applicant to most of the questions he was
asked were cursory and, as noted by counsel for the respondent, the panel
member did not misattribute the source of the eight characteristics of Falun
Gong in his questioning of the applicant. The fact that the Board noted the
wrong work as the source of the characteristics in the decision is not enough
to render the Board’s determination regarding the paucity of the applicant’s
knowledge unreasonable since both the The Great Way of Spiritual Perfection
and the Zhuan Falun are texts setting out precepts of Falun Gong. More
importantly, there was evidence before the Board to support its finding that
the applicant’s knowledge was insufficient to prove he was a sincere
practitioner, given the perfunctory nature of the applicant’s responses to the
questions posed and his inability to answer other questions, including the
question on the eight characteristics. Thus, in accordance with the approach to
evaluating the reasonableness of the assessment set out in Wang (as
discussed above in para 55), the Board’s finding should not be disturbed. In
short, there is evidence to support the finding and it is therefore reasonable.
Did
the RPD commit a reviewable error in its consideration of the applicant’s
motives for engaging in the practice of Falun Gong in Canada?
[60]
The
applicant finally argues, as noted, that the Board erred in considering the
motives for the applicant’s practice of Falun Gong in Canada because Canadian case law establishes that motive is irrelevant to the assessment of
a sur place claim.
[61]
I
disagree with the applicant’s assertion; contrary to what the applicant claims,
Canadian case law does recognise that motive for engaging in a religious
practice in Canada may be considered by the RPD in an appropriate case.
However, a finding that a claimant was motivated to practice a religion in Canada to buttress a fraudulent refugee claim cannot be used, in and of itself, as a basis
to reject the claim. Rather, the finding that the claimant has been motivated
by a desire to buttress his or her refugee claim is one factor that may be
considered by the RPD in assessing the sincerity of a claimant’s religious
beliefs.
[62]
The
sincerity of those beliefs will be an issue in cases, like the present, where
continuing the religious practice in the country of origin might place the
claimant at risk. If the beliefs are not genuine, then there is no risk, as a
claimant would not practice his or her newly-acquired religion in the country
of origin if adherence to the religion is motivated solely by a desire to support
a refugee claim. On the other hand, there may well be situations where a
claimant might initially have been motivated to join a religion due to these
types of motivations, but along the route, may have developed faith and become
a true adherent of the religion. This appears to be what occurred in Ejtehadian
(cited above at para 10), where the claimant originally began practicing
Christianity to fuel his refugee claim, but later went on to join the
priesthood in the Mormon church.
[63]
The
starting point for the discussion of the notion of a sur place claim in
Canadian law is the decision of the Federal Court of Appeal in Ghazizadeh v
Canada (Minister of Employment and Immigration), [1993] FCJ No 465, 154 NR
236, where the Court held that the “… concept of a refugee ‘sur place’ requires
an assessment of the situation in the applicant’s country of origin after he or
she has left it”. The Court accordingly set aside the decision of the Board,
which had focused on the fact that the applicant had obtained an exit visa from
Iran, as opposed to the risk that subsequent events in the country had
created for him if he returned.
[64]
This
Court has assessed the requirements of religion-based sur place claims
in a series of recent cases. The first of these, Ejtehadian, arose
in the context of a claimant who became a Christian after he left Iran. The Board dismissed his claim because it determined that his conversion was not
genuine, finding that he had become a Christian in order to obtain a means of
remaining in Canada by claiming refugee status. Importantly, in that case,
unlike the present, there was evidence before the Board that apostates were
persecuted and executed in Iran and thus that the mere fact of apostasy (as
opposed to ongoing practice of religion) might have given rise to persecution.
In addition, it appears that the claimant underwent a conversion experience and
became a sincere practitioner because, as noted, he went on to join the Mormon priesthood.
Justice Blanchard overturned the RPD’s decision, noting that the Board had
misarticulated the test in a sur place claim and held that on the facts
of that case:
…[i]n assessing the Applicant’s risks of return, in
the context of a sur-place claim, it is necessary to consider the
credible evidence of [the applicant’s] activities while in Canada,
independently from his motives for conversion.
[65]
In
a series of recent cases involving claimants from China, this Court has applied
the holding in Ejtehadian and held that the Board cannot reject a sur
place claim due solely to lack of credibility or improper motive but,
rather, must assess the genuineness of the applicant’s religious practice to
determine if he or she will be at risk if returned to the country of origin
(see Jin, cited above at
para 8;
El
Aoudie,
cited above at para 11; Hannoon, cited above at para 11; Jia v Canada
(Minister of Citizenship and Immigration), 2012 FC
444, [2012] FCJ
No 463; Huang v Canada (Minister of Citizenship
and Immigration), 2012 FC 205 [Huang II]; Yin, cited
above at para 11; Chen v Canada (Minister of Citizenship and Immigration),
2009 FC 677, [2009] FCJ No 1391 [Chen II]). In many of those cases, the
RPD’s holdings were set aside because no analysis was undertaken of the
genuineness of the applicant’s religious practice and the RPD simply rejected
the claims out of hand based purely on improper motive (see El Aoudie; Hannoon; Yin;
Chen II). In Jin and Wang (cited above at para 8), on
the other hand, the Board noted the questionable motive for conversion but then
went on to assess the genuineness of the applicant’s conversion and found it to
be lacking. The Board based its findings on the claimants’ lack of credibility,
the fact that they had fabricated stories about being Christians in China and their lack of knowledge of the details of the religion they claimed to practice.
Because the claimants were found to not be genuine practitioners, the RPD held
they would not practice their claimed religions if returned to China and thus were determined to face no risk. And this Court upheld the Board’s findings
in those cases. In short, in circumstances very much like the present, the
RPD’s decisions were upheld.
[66]
Thus,
the statement from the 1994 appeal case of the Refugee Status Appeals Authority
of New Zealand, that the RPD relied on, does not reflect the law in Canada nor
does the assertion that “an individual who as a strategem deliberately
manipulates circumstances to create a real chance of persecution which did not
exist cannot be said to belong to” the category of sur place refugee
claimants (which the RPD misattributed to James Hathaway, as noted above in
para 31).
[67]
In
fact, as Justice Zinn noted in Huang II (cited above at
para 65),
far from taking the position a bad faith motive invalidates a refugee claim,
Mr. Hathaway instead endorses the analysis set out above. He writes in this
regard:
It does not follow, however, that all persons whose
activities abroad are not genuinely demonstrative of oppositional political
opinion are outside the refugee definition. Even when it is evident that the
voluntary statement or action was fraudulent in that it was prompted primarily
by an intention to secure asylum, the consequential imputation to the claimant
of a negative political opinion by authorities in her home state may
nonetheless bring her within the scope of the Convention definition. Since
refugee law is fundamentally concerned with the provision of protection against
unconscionable state action, an assessment should be made of any potential harm
to be faced upon return because of the fact of the non-genuine political
activity engaged in while abroad.
This issue is most poignantly raised when it is alleged
that the fact of having made an unfounded asylum claim may per se give
rise to a serious risk of persecution. While these cases provide perhaps the
most obvious potential for “bootstrapping”, there must nonetheless be a clear
acknowledgment and assessment of any risk to basic human rights upon return
which may follow from the state’s imputation of an unacceptable political
opinion to the claimant. The mere fact that the claimant might suffer some form
of penalty may not be sufficiently serious to constitute persecution, but there
are clearly situations where the consequence of return may be said to give rise
to a well-founded fear of persecution. For example, in Slawomir Krzystof
Hubicki evidence was adduced that under then-prevailing Polish criminal
law, the claimant would face imprisonment of up to eight years because he had
made a refugee claim in Canada. In such situations, the basis of claim is not
the fraudulent activity or assertion itself, but is rather the political
opinion or disloyalty imputed to the claimant by her state. Where such an
imputation exists, the gravity of consequential harm and other definitional
criteria should be assessed to determine whether refugee status is warranted.
[68]
In
light of the foregoing, the mere fact that the Board considered and relied on
the applicant’s motive for practicing Falun Gong in Canada does not invalidate
its decision. Rather, the question which must be answered is whether the RPD
reached a reasonable conclusion in determining that the applicant’s practice of
Falun Gong in Canada was not motivated by genuine faith. As in Jin and Wang,
I believe this conclusion is reasonable.
[69]
The
burden of establishing the sincerity of his beliefs rested with the applicant.
The Board’s determination that he had not discharged that burden was reasonable
because it was based on the Board’s assessment of the applicant’s credibility,
the fact that he had obviously fabricated a story about what occurred in China,
his limited knowledge of the precepts of Falun Gong (when considered in light
of the other factors and the length of time the claimant asserted he had
practiced) and the unconvincing nature of the statements offered in support of his
practice in Canada. There was ample evidence before the Board from which it
could reasonably draw the conclusion that the applicant’s practice of Falun
Gong in Canada was not sincere and, in this context, the fact that the Board
mis-cited authorities, while certainly undesirable, does not render its
decision unreasonable. The conclusion it reached is defensible in light of the
facts and applicable law and, under the formulation of the reasonableness
standard of review set out by the Supreme Court of Canada in Dunsmuir (cited
above at para 8) and subsequent cases, the RPD’s decision is accordingly
reasonable.
[70]
Therefore,
for these reasons, the Board did not violate the principles of procedural
fairness and its decision is reasonable. This application for judicial review
will thus be dismissed.
[71]
No
question for certification under section 74 of IRPA was presented and none
arises in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is certified; and
3.
There
is no order as to costs.
"Mary J.L.
Gleason"
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