Date: 20120820
Docket: IMM-497-12
Citation: 2012 FC 1002
Ottawa, Ontario, August 20, 2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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CUIXIA HUANG
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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 applies for judicial review of the December
2, 2011 decision of the Refugee Protection Division of the Immigration and
Refugee Board (RPD) that refused the Applicant’s claims for refugee protection pursuant
to section 96 and subsection 97(1) of the Immigration and Refugee Protection
Act (IRPA).
[2]
The Applicant is a citizen of the People’s Republic of China (China). She says she was introduced to Falun Gong in 2006 by her grandmother who had been
practicing since 1995. The Applicant’s grandmother thought that Falun Gong
would help to alleviate the Applicant’s intense menstrual discomfort. The
Applicant had previously sought medical treatment for her condition, but to no
avail.
[3]
The Applicant came to Canada to study in May, 2009. On
October 30, 2009, the Applicant received a telephone call from her mother
informing her that the Public Security Bureau (PSB) attended her family home to
arrest her for participating in Falun Gong activities. The Applicant filed a
claim for refugee protection November 4, 2009.
[4]
The RPD found that the determinative issue in this case was
the Applicant’s credibility. The RPD based its assessment on the Applicant’s
Personal Information Form (PIF) narrative and her oral testimony concerning the
Falun Gong discipline and the reported actions of the PSB. The RPD found that
the Applicant was not a credible witness and that she was not wanted by the PSB
on account of Falun Gong activities in China. The RPD also found that should
the Applicant return to China, there is not a serious possibility that she
would be persecuted.
[5]
The issue in this application is whether the RPD made
unreasonable credibility and plausibility findings. More specifically, was the
RPD’s conclusion that the Applicant was not a genuine Falun Gong practitioner
reasonable?
[6]
The Supreme Court of Canada held in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 (Dunsmuir) that there are only two standards of
review: correctness for questions of law and reasonableness involving questions
of mixed fact and law and fact. Dunsmuir at paras 50 and 53 The Supreme
Court also held that where the standard of review has been previously
determined, a standard of review analysis need not be repeated. (Dunsmuir)
at para 57. This Court has held that implausibility and credibility
determinations are factual in nature. The appropriate standard of review
applicable to credibility and plausibility assessments is that of
reasonableness with a high level of deference.
[7]
The Applicant submits the RPD erred in finding that the
Applicant is not a genuine practitioner of Falun Gong. The Applicant argues
this finding was based in large part on the RPD’s unreasonable assessment of
the Applicant’s knowledge of Falun Gong. The Applicant submits the RPD applied
an overly stringent and microscopic examination of the Applicant’s religious
knowledge. Moreover, the Applicant submits the RPD erroneously weighed the
Applicant’s testimony on this issue against its own misguided idea of what a
person in the Applicant’s circumstances should or would know or understand.
[8]
The Respondent submits this Court has previously recognized
that the RPD is entitled to make its own assessment about the genuineness of a
claimant’s faith where it has provided detailed reasons for finding the
claimant’s faith was not genuine or concluded that the claimant’s religious
knowledge was acquired to support a fraudulent claim. The Respondent submits
that in keeping with these principles, it was not unreasonable for the RPD to
expect the Applicant, as an alleged Falun Gong member who has been practicing
for five years, to know the history, principle and practices of Falun Gong.
[9]
Courts have indicated that it is the sincerity of the
belief that matters, not whether the belief or practice is required in the
option of the religious officials and the Court is qualified to inquire into
this sincerity as a question of fact.
[10]
This Court has had several opportunities to address the
very issue at stake here. In Dong v Canada (Minister of Citizenship &
Immigration), 2010 FC 55 at para 20, Justice Kelen held:
In assessing a claimant’s
knowledge of Christianity, the Board should not adopt an unrealistically high
standard of knowledge or focus on a “few points of error or misunderstandings
to a level which reached the microscopic analysis”: Attakora v. Canada
(Minister of Employment and Immigration) (F.C.A.), (1989), 99 N.R. 168,
[1989] F.C.J. No. 444 (QL), and subsequent cases: Huang v. Canada (MCI),
2008 FC 346 (CanLII), 2008 FC 346, 69 Imm. L.R. (3d) 286, per Justice Mosley at
paragraph 10; Chen v. Canada (MCI), 2007 FC 270 (CanLII), 2007 FC 270,
155 A.C.W.S. (3d) 929, per Justice Barnes at paragraph 16.
[11]
More recently in Lin v Canada (Minister of Citizenship
& Immigration), 2012 FC 288 at para 61, Justice Russell stated:
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 & Immigration), [2001] F.C.J. No. 1131 (Fed. T.D.),
“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.”
[12]
The inquiry by courts (and tribunals) into religious belief
is to be approached with caution given the very subjective and personal nature
of a person’s religious belief. In Syndicat Northcrest v. Amselem, 2004
SCC 47(Amselem) the Supreme Court of Canada stated that claimants
seeking to invoke freedom of religion should not need to prove the validity of
their beliefs are objectively recognized as valid. The Supreme Court indicated
that a person must show sincerity of belief and not that a particular belief is
“valid”:
50 ...
Accordingly, courts should avoid judicially interpreting and thus determining,
either explicitly or implicitly, the content of a subjective understanding of
religious requirement, “obligation”, precept, “commandment”, custom or ritual.
Secular judicial determinations of theological or religious disputes, or of
contentious matters of religious doctrine, unjustifiably entangle the court in
the affairs of religion.
51 That
said, while a court is not qualified to rule on the validity or veracity of any
given religious practice or belief, or to choose among various interpretations
of belief, it is qualified to inquire into the sincerity of a claimant’s
belief, where sincerity is in fact at issue: see Jones,
supra; Ross, supra. It is important to emphasize, however, that
sincerity of belief simply implies an honesty of belief: see Thomas v.
Review Board of the Indiana Employment Security Division, supra.
...
53 Assessment
of sincerity is a question of fact that can be based on several non-exhaustive
criteria, including the credibility of a claimant’s testimony (see Woehrling,
supra, at p. 394), as well as an analysis of whether the alleged belief
is consistent with his or her other current religious practices. It is
important to underscore, however, that it is inappropriate for courts
rigorously to study and focus on the past practices of claimants in order to
determine whether their current beliefs are sincerely held...
[emphasis added]
[13]
The RPD conducted a rigorous and microscopic investigation
of the Applicant’s knowledge of Falun Gong. This is demonstrated in the
transcript of the hearing and the RPD’s decision. After reviewing the
Applicant’s responses to the questioning on Falun Gong practices and
philosophies, the RPD stated:
36 The panel finds the claimant has learned some concepts associated
with Falun Gong. The panel notes the claimant had identified the term karma in
earlier testimony, but through her response to these questions she has
demonstrated an inability to apply aspects she has learned to daily activities.
37 The panel
notes the claimant has fifteen years of education. As discussed earlier the
panel would realistically expect the claimant to have a better than average
working knowledge of the contexts of this text, most of its substance and
understand its application in daily life.
38 The panel
notes that a failure to understand the philosophies of Falun Gong makes
practicing Falun Gong exercises no more beneficial than practicing any other
qigong exercises. Given the claimant’s failure to demonstrate an
understanding of many of the principles and philosophies associated with Falun
Gong and relate some of the key concepts in Zhuan Falun, the panel finds on a
balance of probabilities that the claimant has not studied Zhaun Falun and is
therefore not a genuine practitioner. The panel draws a negative inference
from the claimant’s limited knowledge of Falun Gong and her action of attaching
very little significance to understanding and embracing the philosophy of Falun
Gong.
[emphasis added]
[14]
The RPD found the Applicant does have some knowledge of
Falun Gong concepts but she has failed to apply aspects to her daily life. The
RPD held the Applicant to a better than average knowledge of Falun Gong. These
assertions point to the RPD assessing the Applicant’s knowledge against a high
standard of knowledge of Falun Gong philosophies of instead of assessing the
Applicant’s sincerity of belief.
[15]
The RPD goes further to find the Applicant is not a member
of the Falun Gong discipline and declares “Any knowledge that the claimant has
learned about Falun Gong could easily have been acquired in Canada in order to advance a fraudulent refugee claim.” A finding of fraud necessarily
requires a high standard of proof since it involves a question of intent to
deceive. The RPD suggestion of fraudulent intent on the part of the Applicant
supports the inference the RPD is holding the Applicant to a high standard of
religious knowledge well beyond the relatively low standard of religious
knowledge necessary to ground sincerity of belief.
[16]
Finally, the RPD discounted the Applicant’s Falun Gong
exercises as no better than qigong exercises. In doing so, the RPD
transgresses on the Supreme Court of Canada’s guidance in Amselem at
para 50 that “courts should avoid judicially interpreting and thus determining,
either explicitly or implicitly, the content of a subjective understanding of
religious requirement.”
[17]
In result, I conclude the RPD held the Applicant to an
unrealistically high standard of knowledge of Falun Gong and imposed its own
understanding of Falun Gong upon the Applicant. I find the RPD’s conclusion
that the Applicant was not a genuine practitioner of Falun Gong is
unreasonable. Since this finding underpins other findings of the RPD that the Applicant
was not sought by the PSB in China, the RPD decision cannot be sustained.
[18]
The application for judicial review succeeds.
[19]
Neither party has proposed a question of general importance
for certification and I find none arises in this application.
JUDGMENT
THIS COURT’S JUDGMENT is that:
- The application
for judicial review is allowed, the decision of the RPD is quashed and the
matter is referred to a differently constituted panel for redetermination.
- No question of
general importance is certified.
“Leonard
S. Mandamin”
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