Date: 20070330
Docket: IMM-2156-06
Citation: 2007 FC 345
Vancouver,
British Columbia, March 30, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
XUE,
ZHIZHONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated March 28, 2006, which determined that the applicant
was neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requests that the decision be referred back for redetermination by a
differently constituted panel of the Board.
Background
[3]
The
applicant, Zhizhong Xue, is a citizen of China who alleged
a fear of persecution on the basis of his religion, membership in a particular
social group and political opinion. His fears are based upon his status as a
practitioner of Falun Gong.
[4]
The
applicant described the circumstances leading to his claim for refugee status
in the narrative portion of his Personal Information Form (PIF). He was
introduced to the practice of Falun Gong by his aunt when he was experiencing a
stressful period in his life. He started practicing Falun Gong in January 1998
and began feeling better. The government of China banned Falun
Gong in July 1999, and he was forced to practice secretly.
[5]
The
applicant went to Canada in July 2001 in order to study and practice
Falun Gong freely. He continued to practice Falun Gong and sent related
materials to his aunt in China. He moved in with a female roommate in
December 2001 and they began a romantic relationship. The applicant returned to
China in February
2002 and told his mother about the relationship. He remained in China until April 2002.
The couple married in March 2003, but the relationship soon deteriorated. They
divorced in October 2004 and the applicant decided that he would return to China. However, on
November 15, 2004, he received a telephone call from his mother indicating that
this aunt and other Falun Gong practitioners had been arrested in China. On November
20, 2004, his mother telephoned and advised him not to return to China, as the
police had information about his Falun Gong practice in China and abroad.
The applicant claimed that his wife had informed the authorities about his
practice of Falun Gong.
[6]
The
applicant applied for refugee status in Canada on December
15, 2004, and his refugee hearing took place over two sessions (November 16,
2005 and January 16, 2006). By decision dated March 28, 2006, the Board
determined that he was neither a Convention refugee nor a person in need of
protection, as he was not credible with respect to material aspects of his
claim. This is the judicial review of the Board’s decision.
Board’s Reasons
[7]
The
Board determined that the applicant had failed to establish a well-founded fear
of persecution, and was not credible with respect to material aspects of his
claim. Although delay was not a determinative factor, the Board noted that it
was important in determining a claimant’s subjective fear. The applicant
arrived in Canada as a student but returned to China for five
months in 2002. When he returned to Canada, he failed to claim
refugee status until he was out of legal status. He explained that he had
status in Canada during his
studies and having married a Canadian, believed he would obtain status. The
Board did not accept this explanation, since he alleged that he feared
persecution in China. He therefore failed to establish a well-founded
fear of persecution because he did not make an earlier claim for refugee
status.
[8]
The
Board also found that material aspects of the applicant’s claim lacked credibility.
His testimony was vague and evasive, and there were significant
inconsistencies, omissions and implausibilities between the documentary evidence
and his own evidence. The Board acknowledged that he had a rudimentary
knowledge of Falun Gong, but found that he did not have a fundamental knowledge
of the underlying principles of the practice. He could not explain the concept
of “cultivation” and testified that he was unaware of the philosophy of Falun
Gong. The Board determined that he had not embraced the spiritual component of
Falun Gong and was not a practitioner.
[9]
The
applicant’s demonstration of Falun Gong exercise number 4 was incomplete. The
Board did not accept the explanation that he was nervous and the room was cold.
The demonstration contained many errors, which the applicant denied. On a
balance of probabilities, the Board found that he was not a practitioner of
Falun Gong. The Board reviewed the documentary evidence in support of his
claim, including photos of his practice sessions. The Board found that the
photos were submitted for the purpose of supporting the applicant’s refugee
claim and little weight was placed upon them. The Board determined that the
applicant did not face a serious possibility of persecution on a Convention
ground, or a risk to life, cruel or unusual treatment or punishment, or a risk
of torture, if he were to return to China.
Issues
[10]
The
applicant submitted the following issues for consideration:
1. Did the Board err in
finding that the applicant was not a practitioner of Falun Gong?
2. Did the Board err in
assessing the applicant’s evidence regarding his delay in making a refugee
claim?
Applicant’s Submissions
[11]
The
applicant submitted that the Board’s finding that he did not display knowledge
of “cultivation” and was unaware of Falun Gong philosophy, was not supported by
the evidence. It was submitted that he was not questioned about “cultivation”
during the hearing, nor did he testify that he was unaware of the philosophy of
Falun Gong. The applicant submitted that an adverse credibility finding must
have a proper evidentiary foundation, or else risk being overturned (see Giron
v. Canada (Minister of
Employment and Immigration) (1992), 143 N.R. 238, 33 A.C.W.S. (3d) 1270 (F.C.A.)).
It was submitted that there was no evidence that he was not a Falun Gong
practitioner; therefore, the decision could not stand.
[12]
The
applicant submitted that the Board erred by failing to provide clear reasons
for rejecting his explanation for having delayed his refugee claim. It was
submitted that the circumstances giving rise to delay must be examined in order
to determine whether it was indicative of a lack of fear (see Beltran v.
Canada (Minister of
Employment and Immigration (1996), 69 A.C.W.S. (3d) 911 (F.C.T.D.)). The
applicant submitted that the Board had to give clear reasons for rejecting his
claim on credibility grounds (see Armson v. Canada (Minister of
Employment and Immigration) (1989), 101 N.R. 372, 9 Imm. L. R. (2d) 150
(F.C.A.)).
Respondent’s Submissions
[13]
The
respondent conceded that the applicant was neither questioned about the concept
of “cultivation”, nor did he testify that he was unaware of the philosophy of
Falun Gong. However, it was submitted that these mistakes were immaterial to
the Board’s ultimate finding that he was not a practitioner of Falun Gong. It
was submitted that the Board supported its reasonable decision with many other
findings. For example, the applicant’s testimony was vague and evasive.
[14]
The
respondent submitted that it was reasonable for the Board to conclude that the
applicant did not display a fundamental knowledge of Falun Gong. The applicant
did not volunteer information about Falun Gong activities in Toronto, despite his
claim to have practiced there. He did not have any pictures of himself
practicing prior to May 2005, nor were there copies of the emails he allegedly
sent to his aunt. It was submitted that the information provided by the
applicant regarding Falun Gong was minimal. He was unable to complete exercise
number 4 at the hearing, and it was reasonable for the Board to reject his explanation
for being unable to do so. The respondent submitted that the errors committed
by the Board did not render the decision patently unreasonable and did not
justify setting aside the decision.
[15]
The
respondent submitted that the Board’s consideration of the applicant’s delay
was reasonable. He did not make a refugee claim when he arrived in Canada in 2001 and
returned to China in 2002. Upon
returning to Canada from China, he again failed to claim refugee status.
It was submitted that the Board’s reasons for rejecting the explanations for
his delay were reasonable. The Board did not find his explanation to be
adequate if he truly feared persecution in China. It was
submitted that it was reasonable to expect an individual who truly feared harm
to claim refugee status at the first opportunity (see Espinosa v. Canada (Minister of
Citizenship and Immigration) (2003), 127 A.C.W.S. (3d) 329, 2003 FC
1324). The respondent submitted that the applicant’s delay pointed to a lack of
subjective fear of persecution.
Analysis and Decision
Standard of Review
[16]
It
is well established that the Board’s credibility findings warrant a high level
of deference and are reviewable on the standard of patent unreasonableness (see
Juan v. Canada (Minister of Citizenship and Immigration)
(2006), 149 A.C.W.S. (3d) 1103, 2006 FC 809 at paragraph 2).
[17]
Issue
1
Did the Board err in finding
that the applicant lacked credibility?
The Board found that the applicant was not a Falun Gong
practitioner because he could not explain the meaning of “cultivation” and was unaware
of the philosophy of Falun Gong. The Board stated at page 4 of its reasons:
During the hearing, the claimant was both
vague and evasive and at times he did not testify in a straightforward manner.
There were significant inconsistencies, omissions and implausibilities between
the documentary evidence and the testimony provided at the hearing.
Despite some rudimentary knowledge of
Falun Gong, the panel finds that the claimant’s testimony did not display any
fundamental knowledge of the underlying principles of Falun Gong. For example,
the claimant was unable to explain the Falun Gong concept of cultivation, a
central component of Master Li’s teachings. Furthermore, the claimant testified
that he was not aware of the philosophy of Falun Gong The panel therefore finds
that the claimant had not embraced the spiritual portions of Falun Gong. The
panel notes that both the spiritual and physical components are fundamental in
the teachings of Falun Gong for the alleged practitioner to in fact be a Falun
Gong practitioner. The panel therefore finds since the claimant testified to
not knowing any of the teachings of Master Li beyond the five exercises, the
panel therefore finds that the claimant is not a Falun Gong practitioner as he
alleges.
[18]
Both
parties are in agreement that the Board’s finding that the applicant did not
know the meaning of the word “cultivation” was an error, as the transcript
discloses that the applicant was never asked about “cultivation”.
[19]
A
further review of the transcript shows that the applicant did not state that he
was unaware of the teachings of Falun Gong, nor did he testify that he did not
know any of the teachings of Master Li beyond the five exercises. There is no
evidence to support the Board’s findings in this regard. In fact, the applicant
testified as follows during the hearing (see page 378, vol. 2 of the tribunal
record):
COUNSEL FOR THE CLAIMANT: Okay. What is
the point of Falun Gong? If somebody has never heard of Falun Gong at all, and
was to ask you what the purpose of Falun Gong was. What would you say?
CLAIMANT: The Falun Gong adheres to the
highest principle of the Universe, and trying to attain an improvement of the
mind and nature.
COUNSEL FOR THE CLAIMANT: Okay. And,
what is the principle of the Universe?
CLAIMANT: Truth on earth, compassion,and
forbearance.
[20]
I
would conclude that the Board’s finding with respect to the applicant’s knowledge
of Falun Gong teachings had no evidentiary basis.
[21]
The
Board also questioned the applicant’s credibility on the basis of his failure
to complete exercise number 4. The hearing transcript states (see pages 427 to
430, vol. 2, of the tribunal record):
CLAIMANT: (doing demonstration)
MEMBER: That’s exercise number
four?
CLAIMANT: Yes.
MEMBER: Completed?
CLAIMANT: Should you have it repeat
nine times.
MEMBER: You didn’t do it nine
times, though. Why not? I didn’t ask you to stop. You stopped. Why did you
stop?
CLAIMANT: I can do it, if you like.
. . .
MEMBER: Sir, how many times did you
repeat the exercise? --- how many repetitions are in exercise number four?
CLAIMANT: Nine times.
MEMBER: And how many times did you
do it?
CLAIMANT: Three times.
. . .
MEMBER: So, why would you stop at
three?
. . .
CLAIMANT: I thought you mean you only
need (inaudible) to watch me doing only once.
MEMBER: I didn’t tell you how many
times to do it. I asked you to do exercise number four. In fact, sir, I noticed
you trembling throughout the entire exercise. Would you agree that you were
trembling?
. . .
CLAIMANT: Yes.
. . .
MEMBER: Sir, I have had exercise
done before, done in this room, on many, many, many occasions. I’ve never seen
anybody tremble. I’ve asked you that question twice. You haven’t been able to
answer that question for me. And, frankly, sir, I’m not sure whether or not you
could do exercise number 4 with the nine repetitions.
CLAIMANT: Yes, I can do it.
MEMBER: You haven’t explained to me
why you stopped, and you haven’t explained to me why you trembled, to my
satisfaction.
. . .
COUNSEL FOR CLAIMANT: Mr. Xue,
how were you feeling during the exercise?
CLAIMANT: So, I felt the energy, the
flow of my energy passage from Yin to Yang.
COUNSEL FOR CLAIMANT: Were you
nervous?
CLAIMANT: Yes.
. . .
CLAIMANT: It is so chilly here in this
room. It’s difficult for me to tell you why I felt so nervous.
COUNSEL FOR CLAIMANT: Okay.
And, what is the purpose of exercise 4?
CLAIMANT: To keep the move of the
wheels (phonetic) circulating and to rectify the impurities from the body.
[22]
It
appears that other than having trembled during the exercise, the only error
committed by the applicant, as discussed at the hearing, was his repetition of
the exercise three times, rather than nine times. The applicant explained that
he thought the Board would only need to see him do it once, and that it would
take a long time to complete the entire exercise. The applicant explained that
he was nervous and felt cold while performing the exercise.
[23]
In
my view the Board erred in finding that the applicant lacked credibility on the
basis of his performance of the exercise. The applicant provided adequate
explanations for the manner in which it was performed and offered to do the
full variation of the exercise.
[24]
Respondent’s
counsel made submissions that a review of the transcript showed other examples
which supported the Board’s negative credibility finding. However, these
examples were not referred to in the Board’s decision. I have no way of knowing
whether the Board member considered these examples in finding that the
applicant was not credible.
[25]
In
conclusion, on this issue, I am of the view that based upon the content of the
Board’s decision, its finding that the applicant was not credible was patently
unreasonable.
[26]
Issue
2
Did the Board err in
assessing the applicant’s evidence regarding his delay in making a refugee
claim?
I am of the view that the Board
member was in error in finding that the applicant did not establish a
well-founded fear of persecution because of his failure to make an earlier
claim. The applicant testified that he did not make an earlier claim because
his fear did not arise until November 2004, when his mother told him that the
PSB were looking for him as they had evidence that he was a Falun Gong
practitioner in both China and abroad. At page three of its decision,
the Board stated:
. . . When the claimant was asked why he
did not make a claim at an earlier opportunity, he testified that he had status
in Canada during his studies and having
married a Canadian, he believed he would obtain status.
[27]
This
statement is not supported by the hearing transcript. The Board’s finding is
not supported by the evidence as these were not the reasons given by the
applicant for his delay in making a claim.
[28]
The
application for judicial review is therefore allowed, and the matter is
referred to a different member of the Board for redetermination.
[29]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[30]
IT
IS ORDERED AND ADJUDGED that the application for judicial review is
allowed and the matter is referred to a different member of the Board for
redetermination.
"John
A. O'Keefe"
ANNEX
Relevant
Statutory Provisions
The relevant statutory
provisions of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 are set out in this section.
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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