Docket: IMM-5187-11
Citation: 2012 FC 346
Ottawa, Ontario, March 22,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
ZHANG SHENG WANG
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
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 July 20, 2011,
finding that the applicant was neither a Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) 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.
Facts
[2]
The
applicant is a citizen of China.
He alleges fear of persecution based on his practice of Falun Gong. The
applicant states that he began practicing Falun Gong in October 2007, to try
and cure his insomnia. He began to feel the benefits after about three months
and continued to practice with friends at a member’s house.
[3]
The
applicant states that on October 19, 2008 he was practicing Falun Gong with
other members at a house when a lookout warned them that the Public Security
Bureau (PSB) was on its way. The applicant was able to escape and hid at a
friend’s house. The applicant learned that two practitioners had been arrested
and the PSB were looking for the others. The applicant’s father told him that
the PSB had come looking for him at his father’s house, leaving a summons
accusing him of being involved in illegal Falun Gong practice.
[4]
With
the help of a smuggler the applicant fled to Canada on January 25, 2009 and made his claim for
refugee protection on February 2, 2009.
Standard of Review and Issue
[5]
The
issue raised by this application is whether the Board’s decision is reasonable:
Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[6]
The
application must be granted solely due to the Board’s treatment of the
applicant’s evidence regarding his practice of Falun Gong. While the Board
made other credibility findings in its decision, which were reasonably open to
it, the Board identified the genuineness of the applicant’s belief in Falun Gong
as the “core” of the claim. Since the Board committed a reviewable error in
its analysis of the genuineness of that belief, the decision must be set aside
despite reasonable concerns with other parts of the applicant’s evidence.
[7]
The
Board focused heavily on the applicant’s testimony that he was initially
motivated to join and practice Falun Gong as a result of his insomnia. The
Board rejected the claim that his practice yielded positive results in this
regard because the teachings of Falun Gong prohibit practicing out of pure
self-interest. The respondent has characterized this as a finding of fact and
therefore deserving of deference. If it is a finding of fact, it is
undoubtedly a perverse one. It is not permissible for the Board to speculate
on the plausibility of a claimant obtaining personal benefits from a religious
or spiritual practice, much less base a negative credibility finding on such
speculation.
[8]
There
are other examples in the Board’s decision of this kind of scrutiny into the
applicant’s belief in Falun Gong. For example, the Board makes a negative
credibility finding due to the applicant’s testimony that he considers himself
both a Buddhist and a Falun Gong practitioner. The Board states that the
teachings of Falun Gong are “categorical” that practicing both Buddhism and
Falun Gong will not bring about positive results. It is not open to the Board
to opine on whether the manner in which a claimant engages in a spiritual
practice is right or wrong according to its foundational texts.
[9]
The
Board is tasked with assessing the applicant’s credibility and not the
soundness of his theology. A claimant may have a poor understanding of the
minutiae of the religious doctrine but that does not, necessarily, mean his
faith is not genuine. While there is a logical correlation between the depth
of religious knowledge and the credibility of a claim of persecution, here, the
deviations from doctrine were, at best, minor and cannot safely sustain the
finding that the applicant was not a genuine adherent.
[10]
Thus,
while acknowledging that there were several credibility problems in the
applicant’s evidence about his alleged persecution in China, the decision cannot
stand in light of the Board’s consideration of the applicant’s spiritual
belief.
[11]
The
application for judicial review is granted.
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"
Email this Content