Date: 20071001
Docket: IMM-3231-06
Citation: 2007 FC 990
Ottawa, Ontario, October
1, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
FENG YI QIAN
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 a decision
of the Refugee Protection Division of the Immigration and Refugee Board (the
Board), dated May 25, 2006, wherein the Board determined that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requests that the decision of the Board be declared invalid, quashed,
or set aside and referred for redetermination to a differently constituted
panel of the Board.
Background
[3]
Feng
Yi Qian, the applicant, is a citizen of China. He alleged
having a fear of persecution by the Chinese authorities on the basis of his
status as a practitioner of Falun Gong. The circumstances which led to the
applicant’s claim for refugee protection were set out in the narrative portion
of his Personal Information Form (PIF). He allegedly began practicing Falun
Gong on March 12, 2004 because he was suffering from a stomach problem. The
practice of Falun Gong cured his health problems, and the applicant continued
to engage in the practice.
[4]
The
applicant claimed that he joined a Falun Gong group and distributed Falun Gong
leaflets. On March 26, 2005, the Public Security Bureau (PSB) allegedly raided
his practice group, but the applicant managed to escape and go into hiding. The
applicant was later informed that two fellow Falun Gong practitioners had been
arrested and sentenced to jail. He therefore feared suffering the same fate.
The applicant alleged that the PSB continue to look for him and have advised
his family that they intended to charge him. As a result, he escaped China and arrived
in Canada on May 28,
2005.
[5]
The
applicant claimed refugee status on June 1, 2005. The applicant’s refugee
hearing took place on April 19, 2006, and his claim was refused by decision of
the Board, dated May 25, 2006. This is the judicial review of the Board’s
decision.
Board’s Decision
[6]
The
Board concluded that, on the balance of probabilities, the applicant was not a
Falun Gong practitioner because he lacked knowledge of basic Falun Gong
philosophy. The Board gave four reasons for having reached this conclusion:
1. When
asked to perform the fourth exercise, the applicant
touched
his body on at least four occasions. Practitioners cannot touch themselves
during this exercise as the energy in the hands will be taken back into the
body.
2. The
applicant could not correctly state the universal principle
of Falun Gong.
3. The
applicant could not correctly state what happened when
one reached the perfect state according
to Falun Gong
teachings.
4. The applicant stated that it
took 10 minutes to do the fourth exercise but when he performed it, it only took
2 minutes. The applicant stated that he had performed a condensed version and
that if he had done the exercise three times, as should have been done, then it
would have taken 10 minutes. The Board found that there was no indication in
the documentary evidence that the exercise was to be repeated three times.
[7]
The
Board also held that it was implausible that the PSB was interested in
arresting the applicant because it did not believe that he had distributed
Falun Gong flyers. The applicant had stated that on ten occasions he delivered
approximately 250 Falun Gong flyers to apartments buildings at around 7 p.m. He
claimed that he was not seen by anyone on any of these occasions because it was
dinnertime and the national news was on. The Board found it implausible that no
one would have seen him, given that people would be returning home from work or
shopping at that time.
[8]
The
Board drew a negative inference from the fact that the applicant was unable to
state what was written on the flyers. He gave a vague answer that the flyers
told the truth about the Tiananmen self-immolation incident, which he
maintained took place in October 2001. The Board noted that the incident had in
fact taken place on January 23, 2001. When confronted with this fact, the
applicant stated that that he might have seen too many flyers, and that he did
not really read the flyers, as he has a limited education. The Board noted that
the applicant had submitted letters written by his father and held that he must
have been able to read at least parts of the flyers.
[9]
The
Board determined that the applicant was neither a Convention refugee, nor a
person in need of protection.
Issue
[10]
The
issue to be determined is:
Did the Board err in finding
that the applicant was not a practitioner of Falun Gong?
Applicant’s Submissions
[11]
The
applicant submitted that the Board’s findings with respect to whether he was a
Falun Gong practitioner were patently unreasonable. The applicant stated in his
affidavit that he did not touch his body while performing the fourth exercise
and noted that the Board member was 10 to 15 feet away while he was performing
the exercise.
[12]
The
Board found that the applicant could not correctly state the principle of Falun
Gong. The Board stated that the correct answer was “Truthfulness, Compassion
and Forbearance”. The applicant submitted that the Board’s finding was not
based on any documentary evidence that was before it, and noted that the Board failed
to cite any documentary evidence before it. It was noted that this question was
not in the “Question and Answer” series about Falun Gong included in the
documentary material.
[13]
Likewise,
the applicant submitted that the Board’s statement that the correct answer to
the perfect Falun Gong state was “when the celestial eye opens”, was not
supported by any of the documentary evidence. The applicant acknowledged that
there was information about the opening of the celestial eye in the documentary
evidence, but noted that it did not state that the opening of the celestial eye
was the perfect state. The applicant noted that the Board again failed to cite
a source for this answer.
[14]
The
applicant submitted that the documentary evidence supported his testimony to
the effect that the fourth exercise was meant to be done more than once, and
that the documentary evidence stated that the movement can be repeated more
than nine times as long as it was a multiple of nine.
[15]
The
applicant stated in his affidavit that during the course of the hearing, he
correctly named the fifth exercise of Falun Gong, and correctly testified that
the exercise should take approximately one hour. He also correctly testified
that the Falun was located in the abdomen, it turned either clockwise or
counter-clockwise when performing the exercises, and it kept turning even when
one was not practicing. He testified that Master Li stated that one can seek
medical treatment for medical ailments. Finally, he correctly testified that a
practitioner was to imagine themselves as two empty barrels when performing the
third exercise.
[16]
Finally,
the applicant submitted that he could not read the Falun Gong flyers, but could
read the letters from his father because the flyers used more sophisticated
language.
Respondent’s Submissions
[17]
The
respondent submitted that the applicable standard of review for issues of
credibility is patent unreasonableness (see Chen v. Canada (Minister of
Citizenship and Immigration) (1999), 174 D.L.R. (4th) 165, 49 Imm. L.R.
(2d) 161 (F.C.A.)). It was submitted that negative credibility decisions are
properly made, so long as the Board gives reasons for so doing in clear terms.
The respondent submitted that the Board may base a negative credibility finding
upon contradictions, inconsistencies and implausibilities in a claimant’s
testimony, and can also rely on criteria such as rationality and common sense
(see Leung v. Canada (Minister of Employment and Immigration) (1990), 74
D.L.R. (4th) 313, 129 N.R. 391 (F.C.A.)).
[18]
The
Board stated that the applicant touched his body on four separate occasions.
The respondent submitted that the Board member was a disinterested observer and
had no reason to state that the applicant touched his body during the fourth
exercise if he had not in fact done so. The applicant claimed that it would
take ten minutes to perform the exercise, but he only took two minutes to
perform the condensed version. He also claimed that the exercise could be done
three times. The Board noted that the exercise was to be performed in multiples
of nine, not three.
[19]
With
respect to the Board’s question about the universal principle of Falun Gong,
the respondent did not set out which documentary materials stated that the
universal principle was “truth, compassion and forbearance”, but rather
submitted that the materials in the National Documentation Package treated
these three principles as synonymous with the practice of Falun Gong.
[20]
The
respondent submitted that the applicant’s answer about the perfect state was
incorrect, and that he should have mentioned the opening of the celestial eye,
as it was a central tenet of the practice of Falun Gong, and was essential for
the spiritual development of a practitioner. With respect to the number of
times the fourth exercise should be performed, the respondent submitted that
nowhere in the documentary evidence did it state that the exercise could be
performed three times but rather, it stated that the exercise could be repeated
in multiples of nine.
[21]
The
respondent submitted that the applicant provided implausible and contradictory
testimony regarding the distribution of Falun Gong flyers. The Board correctly
noted that the applicant was unable to state the date of the Tiananmen
self-immolation incident, which was featured on the flyers he had allegedly
delivered. The Board did not accept the applicant’s explanation for not knowing
the date of the incident, as he was able to read a letter from his father. It
was noted that the applicant testified to the effect that he had not read the
pamphlets, and that he had read too many pamphlets, in order to explain the
error with respect to the date. Finally, the respondent submitted that even if
some of the Board’s findings with respect to credibility were unreasonable, the
fact that the remaining findings were reasonable meant that the decision should
not be set aside (see Anthonipillai v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 1774 (F.C.T.D.)).
[22]
The
respondent noted the applicant’s concern that the Board had made findings
regarding the practice of Falun Gong without citing documentary references. It
was submitted that during the hearing, the Board disclosed its use of
specialized knowledge regarding Falun Gong from its experience with Chinese
claims, pursuant to Rule 18 of the Refugee Protection Division Rules,
S.O.R./2002-228. The respondent submitted that the Board met its document
disclosure requirement by providing the RPD Index for China version 9 November
2005 (see Hassan v. Canada (Minister of Employment
and Immigration) (1993), 151 N.R. 215 (F.C.A.)).
[23]
The
respondent noted that under the former Immigration Act’s equivalent
provisions, the Court held that simply informing the applicant of the use of
specialized knowledge at the hearing was sufficient (see Elmi v. Canada
(Minister of Citizenship and Immigration) (1999), 163 F.T.R. 122, 50 Imm.
L.R. (2d) 89 (F.C.T.D.)). It was submitted that the applicant and his counsel
were given a chance to make representations regarding the Board’s use of
specialized knowledge, but failed to do so.
Analysis and Decision
Standard of Review
[24]
The
Board’s finding that the applicant was not a practitioner of Falun Gong was
factual in nature, and is subject to review on the standard of patent
unreasonableness (see Chen above).
[25]
Issue
Did
the Board err in finding that the applicant was not a practitioner of Falun Gong?
The Board
noted the following issues in determining that the applicant was not a
practitioner of Falun Gong: (1) his performance of the fourth exercise, (2) his
answer to questions regarding basic principles of Falun Gong and (3) the
circumstances under which he distributed Falun Gong flyers.
His performance of the
fourth exercise
[26]
The
Board’s decision indicated that the applicant touched his body four times while
performing the fourth exercise. However, a review of the transcript of the
hearing shows that the member stated that the applicant touched his jacket four
times during the exercise. The practice guide states that a practitioner’s
hands should be no more than 10 cm from the body during the practice. The
refugee protection officer stated the following in closing remarks:
Finally, as to the claimant’s current
practice of Falun Gong, I have no concerns. In my observation, he was able to
perform the exercises in a fairly fluent fashion. I wasn’t concerned with the
hitting of the jacket. I don’t see how he could have performed that exercise
without kind of bumping into his jacket, so, I have no concern with respect to
his current practice of Falun Gong. And, I also note that we have a number of
photographs in – showing the claimant at various demonstrations and so on.
(Tribunal Record, page 173)
[27]
I
am satisfied from the evidence taken as a whole that it has not been
established that the applicant touched his body four times during the exercise.
[28]
The
Board drew a negative interference from the applicant’s statement that the
fourth exercise took ten minutes when it only took him about two minutes to
perform it. A reference to the transcript of the hearing shows that the
applicant asked the Board before he commenced the exercise whether the Board wanted
the whole exercise or the condensed version. The Board did not answer his
question. The exchange reads as follows:
Q. Do you know the fourth exercise?
INTERPERTER: Fourth one?
Q. The fourth, yes.
A. Falun (inaudible), Falun Heavenly
Circulation exercise.
Q. So, can you demonstrate that exercise
for us?
A. Yes.
Usually, that would take 10 minutes. Do
you want me to do the whole thing or should be condensed form, or…
Q. Condensed form.
MEMBER: Just demonstrate the exercise,
please. That’s what you’ve been asked to do.
(SHORT PAUSE FOR DEMONSTRATION OF
EXERCISE)
(Tribunal Record, page 142)
[29]
From
my review of the evidence, I am of the view that the applicant was aware of the
number of times that the exercise had to be performed.
[30]
Considering
that the applicant asked to do the shorter version and that the refugee
protection officer stated that the officer had no concern about the applicant’s
practice of Falun Gong. I find the Board committed an error in drawing a
negative inference against the applicant based on the time taken by the
applicant to do the exercise.
[31]
The
Board found that the applicant did not distribute Falun Gong flyers. Making
this finding, the Board rejected the applicant’s submission that no one saw him
distribute the flyers, and relied on the applicant’s incorrect answer as to the
date of the Tianannen
Square
self-immolations. The Board was in error as the transcript shows the applicant
testified that he bumped into people when distributing the flyers. The
transcript also shows that the applicant candidly said he did not know the date
of the Tianannen
Square
incident. It was only when he was asked for an approximate date that he
provided the wrong date. I am of the view that it was patently unreasonable for
the Board to ignore this evidence.
[32]
Based
on my findings above, I am of the view that the cumulative erroneous findings
of the Board result in the Board’s decision being patently unreasonable. The
decision is set aside and the matter is referred to a different panel of the Board
for redetermination.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[34]
IT
IS ORDERED that the decision of the Board is set aside and the matter is
referred to a different panel of the Board for redetermination.
“John A.
O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
|
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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