Date:
20090520
Docket: IMM-4377-08
Citation: 2009 FC 502
Ottawa, Ontario, this 20th
day of May 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Zhiqiang
HE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the “Board”),
dated August 21, 2008, determining that the applicant is not a Convention
refugee or a person in need of protection.
[2]
The
applicant, Zhiqiang He, is a citizen of China. He claims
to be a Convention refugee and a person in need of protection within the
meaning of section 96 and subsection 97(1) of the Act, based on persecution he
would face in China as a
practitioner of Falun Gong.
[3]
In
early 2003, the applicant says that he was diagnosed with a serious gastric
ulcer. He claims to have later been diagnosed with stomach cancer, around which
time he was introduced by a friend to Falun Gong. After becoming a
practitioner, the cancer was eliminated.
[4]
On
October 21, 2005 around 10 p.m., while on a business trip to Canada, the
applicant claims that he was discovered practising Falun Gong in his
hotel room by his boss, Mr. Wang, who is a party member. Mr. Wang said he would
report him to the police in China upon their return the following day.
[5]
The
claimant says that he left the hotel in the middle of the night. After learning
in December 2005 from his wife that the Public Security Bureau (“PSB”) had come
to their home in China to arrest him, he claimed refugee protection.
[6]
A
hearing before the Board took place on July 24, 2008. In a letter dated
September 17, 2008, the applicant was informed that the Board had determined he
was neither a Convention refugee nor a person in need of protection.
* * * * * * *
*
[7]
In
its reasons, dated August 21, 2008, the Board accepted the applicant’s
identity, but had significant concerns about his credibility:
§
First,
while the applicant produced a medical report indicating that he had been
diagnosed with gastric ulcers, he was unable to produce any evidence that he
had ever been diagnosed with stomach cancer. Nor was he able to provide an
explanation for the lack of such evidence, when asked. The panel was therefore
not persuaded that the applicant had been diagnosed with stomach cancer.
§
More
significantly, the Board was “deeply troubled that the claimant appears to have
come up with four similar but different versions of” the confrontation in the
hotel room with his boss, which the Board identified as the “pivotal event” in
his narrative. These four versions are found in his initial Personal Information
Form (“PIF”), his amended PIF, his intake interview, and his oral statements at
the Board hearing. According to the panel, the applicant was quite confused
about the sequence of events in his oral testimony. The panel member writes, “I
really, at this point, still do not have a clear idea as to exactly what the
claimant is alleging that happened when Wang came into his hotel room”.
[8]
Additionally,
the Board found it implausible that the applicant’s boss would have recognized
the sitting position he was in (namely, the fifth Falun Gong exercise)
as a Falun Gong exercise, given that “any number of oriental disciplines
use a similar position”. The panel member also found it illogical that the
applicant’s boss would “tip him off” by informing him of his intention to
report him to the authorities, rather than keeping his suspicions to himself
and quietly accusing him when they returned.
[9]
With
regard to the section 97 analysis, the panel member noted that the applicant,
as he demonstrated at the hearing, was able to perform the fourth Falun Gong
exercise, and to correctly answer a number of questions about Falun Gong.
The Board was not, however, persuaded that the applicant’s knowledge of Falun
Gong predated his coming to Canada, given how easy it would have been “for
any intelligent individual to, ex post facto in Canada, acquire
sufficient knowledge about Falun Gong to become proficient in the exercises
(the claimant now is part of a Falun Gong group which practice in a
park) and to become knowledgeable of the philosophy of Master Li so that he
could pass himself off as a Falun Gong practitioner”. Given that he
disbelieved the applicant’s claim to have become involved with Falun Gong
in connection with his alleged stomach cancer, the panel member was unable to
identify any explanation for the applicant having taken up the practice in China in the first
place. He concluded: “In the circumstances, I think it more probable that the
claimant has learned the mechanics and routines of this discipline to bolster his
claim for refugee status, and I so find”.
* * * * * * *
*
[10]
Dealing
first with the applicant’s argument based on procedural unfairness, the latter
specifically argues that his right to a fair hearing was violated to the extent
that the manner of questioning during the hearing was confusing and failed to
give him a full opportunity to respond.
[11]
Having
read the transcript, I am not satisfied that the panel’s interventions were
such as to deny the applicant an opportunity to present his case. I also note
that the applicant was represented by counsel at all times during the hearing,
and at no point did counsel raise a concern about the fairness of the
proceeding.
[12]
Turning
now to the applicant’s attack on the Board’s negative credibility findings, it
is well established that such findings are accorded considerable deference (Aguebor
v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)).
[13]
In
his decision, the panel member expresses concern that the applicant provided
four “similar but different” accounts of the confrontation in his hotel room on
October 21, 2005. It is plain from the record that there are certain
differences among the statements made before the tribunal, the intake officer
and in the applicant’s PIF narratives. I agree with the respondent that the finding
of inconsistency was reasonable and that the Court is being asked to re-weigh
the evidence.
[14]
The
Board also doubts the veracity of the applicant’s claims about his cancer
diagnosis, which is what allegedly led him to begin to practice Falun Gong
in China. Although
the applicant claims to have been diagnosed by a doctor with this condition,
and informed by doctors after further testing was done that “the cancer had
been eliminated”, he had no documentation to corroborate his statements.
[15]
On
balance, I find that the Board’s credibility findings, though imperfect, were
not outside “the range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, at paragraph 47).
[16]
Finally,
the applicant argues that the Board erred in finding that he was not a sincere Falun
Gong practitioner, and in failing to take into account whether the Chinese
authorities would consider him one.
[17]
More
specifically, the applicant asserts that the Board was unreasonable in
emphasizing the absence of evidence that he had in fact had stomach cancer,
when what was significant was whether the applicant believed he had stomach
cancer. Furthermore, the applicant claims that the panel failed to consider how
he would be perceived by the Chinese authorities, having acknowledged that
since being in Canada he had joined a group of practitioners who do
their exercises in the park weekly.
[18]
In
my view, the Board was not unreasonable in drawing a negative inference based
on the applicant’s failure to provide any evidence that he had ever been
diagnosed with cancer, given the significance of this condition to his account
of his initial encounter with the Falun Gong in China.
[19]
In
its analysis under subsection 97(1) of the Act, however, the Board appears to
have accepted that the applicant, even if he was not a bona fide practitioner
of Falun Gong prior to his arrival in Canada, had since become familiar
with its practices and associated with a group of practitioners. Indeed, the applicant
produced photographs of himself in front of a site clearly protesting against
the Chinese government’s treatment of Falun Gong. Country documentation
shows that Falun Gong practitioners in Canada and other
countries are monitored by Chinese government informants. Therefore, whether
the applicant is a sincere practitioner or not, a relevant consideration under
subsection 97(1) was the potential risk to his life or risk of cruel and
unusual treatment or punishment, in view of his perceived involvement in Falun
Gong through his activities in Canada. In the circumstances,
even though “the claimant’s general lack of credibility applies to any analysis
under section 97(1)”, as stated by the Board, it was unreasonable of the
tribunal not to give any specific consideration to this significant and
relevant factor, which is sufficient to warrant the intervention of this Court.
* * * * * * *
*
[20]
Consequently,
the application for judicial review is granted and the matter is remitted to a
differently constituted panel for reconsideration.
JUDGMENT
The application for judicial
review is granted. The decision of the Refugee Protection Division of the
Immigration and Refugee Board (the “Board”), dated August 21, 2008, is
dismissed and the matter is remitted to a differently constituted panel of the
Board for reconsideration.
“Yvon
Pinard”
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