Date:
20121001
Docket:
IMM-271-12
Citation:
2012 FC 1154
Ottawa, Ontario,
October 1, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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HONG BIN SUN
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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
seeks judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the Board), dated December 16, 2011,
which found that the applicant was neither a Convention refugee nor a person in
need of protection pursuant to sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons
that follow the application is granted.
Background
[2]
The
applicant is a citizen of China. He claims that he began practicing Falun Gong
to manage a chronic and disabling back injury in late October of 2008. The
applicant explained that he knew Falun Gong was illegal but his friend assured
him that it could be practiced in secret without problems. After practicing
Falun Gong on his own, the applicant states that he joined his friend’s group,
attending sessions at different homes. On July 25, 2009, he states that the
Public Security Bureau (PSB) raided their gathering. He escaped and hid in
another city until he could leave the country. On November 16, 2009, he
applied for refugee protection in Canada.
[3]
The
applicant claims that the PSB came to look for him at his home on July 27, 2009
and have continued to look for him since. Before the Board, he said that three
members of his group have been arrested.
Decision Under Review
[4]
The
Board found that the applicant lacked credibility, based on the following
considerations:
·
The
applicant was asked why he became involved with Falun Gong, in light of the
government crackdown against practitioners. The applicant stated that he was
unaware of the extent of the risk. The Board did not find this credible
because the campaign against Falun Gong is widespread and public.
·
The
applicant stated that he and his fellow practitioners did not discuss the risk
they faced. The Board considered this unbelievable.
·
The
applicant stated that after the raid he went into hiding at the home of his
wife’s aunt, in another city. The Board questioned this because the applicant
had previously lived in that city and the PSB also could have tracked him down
through the family connection. The applicant then said that the woman was
actually his wife’s older friend, not a relative.
·
The
applicant’s Hukou, a household registration document, did not indicate that he
was being sought by the authorities, even though it was issued after the
alleged raid. The documentary evidence stated that this information would be
registered on a Hukou. The applicant explained that he is not officially
wanted because the authorities do not want to publicize that they are pursuing
Falun Gong practitioners.
·
The
applicant stated that his family mailed the Hukou to him in Canada, after two unsuccessful attempts. The post office returned the Hukou the previous
times to the false addresses his family had used. The Board did not find this
story believable.
·
The
claimant provided a letter that he said was from his employer terminating his
employment because he practiced Falun Gong. The Board gave little weight to
the letter because there was writing on top of the seal, indicating that it was
not authentic.
[5]
The
Board then considered whether the applicant had become a refugee sur place.
The applicant provided letters from Falun Gong practitioners to corroborate his
current practice. He also provided photos of himself practicing Falun Gong.
The Board determined that he had become involved in Falun Gong in Canada to support his fraudulent refugee claim. The Board concluded that he is not a
genuine practitioner and would not be perceived as such by Chinese authorities.
Standard of Review and Issue
[6]
The
issue for this judicial review is whether the Board reasonably decided that the
applicant is not a Convention refugee nor a person in need of protection: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[7]
The
Board based its negative credibility finding on perceived inconsistencies and
implausibilities in the applicant’s evidence. I find that the Board’s
consideration of his evidence was unreasonable on a number of issues.
[8]
The
Board is entitled to rely on common sense in determining whether an applicant’s
testimony is plausible. The Board cannot, however, engage in speculation or make
findings that lack an evidentiary foundation: Bains v Canada (Minister of Citizenship and Immigration), [1998] FCJ No
1144.
[9]
The
applicant explained that when he began practicing Falun Gong he was unaware of
the extent of the risk he faced. He further stated that he and his fellow
practitioners did not discuss the risk. The Board found it “reasonable to
assume that most Chinese citizens would be aware of the dangers of being
associated with Falun Gong.”
[10]
The
Board misconstrued the applicant’s testimony. He did not claim that he was
unaware there were dangers. Rather he testified that he did not know the extent
of the danger until the PSB raid. The applicant testified that he and his
group practiced in secret with a watchperson on guard. Such precautions
demonstrate an understanding that there was risk. He stated: “I only knew it
is like illegal gathering; I also knew that the numbers of the Falun Gong
practitioner was getting bigger and bigger and the government was afraid of
that…”. He explained that the Chinese media did not cover the persecution of
Falun Gong members. His testimony on this issue is plausible.
[11]
The
Board found that the applicant gave inconsistent testimony regarding who he
stayed with while in hiding. The applicant stated that he hid from the PSB
with his wife’s aunt. He later explained that she is really his wife’s friend
and that the family was in the habit of calling her aunt. He testified that “…
in China if you are a female senior who is your mother’s generation but not
your aunt, no blood relationship, can be called aunt as well.”
[12]
The
Board expected that he would have clarified his relationship to the woman prior
to being questioned. However, the applicant cannot be expected to have
anticipated that this peripheral detail would become relevant. The Board also
erred in neglecting to consider the applicant’s explanation that in Chinese
“aunt” can refer to someone who is not a relative. The Board must take care to
ensure that negative credibility findings are not the result of cultural
assumptions or misunderstandings.
[13]
During
the hearing, the applicant spontaneously volunteered that it took three
attempts for his family to send his Hukou. He said that the post office
rejected it the first two times. He also volunteered that the family did not
use their home address when mailing the Hukou but rather used other people’s
addresses. The applicant testified that, when rejecting the mail, the post
office returned it to those addresses.
[14]
The
Board found this testimony undermined the applicant’s credibility. In
particular, the Board thought that the post office would have returned the Hukou
to the listed residence or directly to the PSB. This is speculative. It is
equally plausible that the post office would have returned the mail to the
address provided. The Board also stated that there was no evidence as to why
the post office refused to mail the Hukou. This concern has no bearing on
applicant’s claim. It is unreasonable to base a negative credibility finding
on such a tangential issue.
[15]
The
Board also considered whether the applicant had become a refugee sur place.
The Board determined that the applicant was not a genuine practitioner of Falun
Gong in Canada based on the earlier negative credibility finding. For the
reasons I have described, those findings were based on speculation and an
unreasonable examination of tangential issues. Accordingly, given the findings
on the principle claim, the Board’s conclusion on the sur place claim
must be set aside.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. No question for certification has been proposed and the
Court finds that none arises.
"Donald J.
Rennie"
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