Docket: IMM-2307-11
Citation: 2011 FC 1436
Ottawa, Ontario,
December 8, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
YONG
BIN CAO
|
|
|
|
Applicant
|
|
and
|
|
|
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
For the reasons that follow, this application for judicial review
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board [Board] determining that the applicant was neither a Convention refugee
nor a person in need of protection is dismissed.
Background
[2]
The applicant is a citizen of the People’s
Republic of China [PRC]. In
August 2007, his mother was diagnosed with cancer of the uterus. Uncle Lui, a
neighbour of the applicant’s family introduced the applicant’s mother to Falun
Gong in an attempt to help her with her health issues.
[3]
Although the Falun Gong philosophy has been
illegal in the PRC since 1996, the applicant’s mother nevertheless began practicing
it. With the applicant occasionally acting as a lookout, she would practice
with Uncle Lui and his group on the weekends. She would also practice alone in
her home during the week. The positive effects were noticeable by all,
including the mother’s doctor.
[4]
In December 2007, the applicant joined his mother
and the group and started practicing the philosophy. On September 7, 2008,
after almost a year of practice, the Public Security Bureau [PSB] raided Uncle
Lui’s home while the group was practicing. Although the applicant managed to
escape, his mother was arrested.
[5]
There is no evidence that the PSB was looking
for the applicant at the time, but at his father’s request, he stayed with his
aunt. The PSB went to the family’s home and informed his father that his
mother had been arrested and was being “rehabilitated.” The PSB entered the
home and seized Falun Gong books from the mother’s room.
[6]
On November 27, 2008, with the assistance of his
father and a smuggler, the applicant came to Canada. On June 2, 2009, he learned that the PSB had again attended the
family home; this time for the purpose of finding him. He filed for refugee
protection on June 11, 2009.
[7]
The Board determined that Mr. Cao was not
credible and trustworthy regarding specific aspects of his testimony. It also
found that the knowledge he had of Falun Gong was only acquired in Canada to support a fraudulent refugee
claim. The following aspects of his testimony led the Board to conclude that
he was not credible.
[8]
The Board noted that the applicant had no
knowledge of any proposed escape plan in the event that the practice site was
raided. It noted that the escape plan had been outlined and explained to the
applicant’s mother, but that she had not shared the information with him. The
Board found that it was unreasonable for the mother to not have shared this
information in the ten months that he practiced with the group.
[9]
The Board stated that although the applicant was
given a number of opportunities to identify what other actions the PSB had
taken when they went to the father’s home on the days that followed the raid,
it was only after several of these opportunities that the applicant stated that
Falun Gong books had been seized. The Board found that since the seizure would
have been evidence of the mother’s direct involvement in Falun Gong, as well as
justification of the mother’s arrest, it was unreasonable that the applicant
would have forgotten this.
[10]
The Board cited documentary evidence that
provides that “[i]f [Falun Gong] practitioners do not cooperate with the
authorities, their family members are subject to punishment as well ....[that]
includes harassment by the police (random visit by police to the home),
arbitrary interrogation, losing [a] job, losing [the] chance of promotion,
losing [a] pension/state housing, etc.” The Board noted that the PSB was aware
of the applicant’s involvement in Falun Gong and that they allegedly attended
at his home in search of him on June 2, 2009. The Board found that it was unreasonable
and not plausible that there have been no repercussions at all for the
applicant’s father.
[11]
The Board also questioned the applicant’s
knowledge of Falun Gong and determined that while he did have “a basic grasp of
the history, concepts and beliefs” he was not “a genuine Falun Gong
practitioner or supporter.”
[12]
The Board noted that, when asked when Master Li,
the founder of Falun Gong, left China, the applicant answered 1999 before correcting himself and saying
it was in 1996. According to the Board, the correct answer was 1996. The
Board also noted that the applicant failed to correctly identify in which city
the founder of Falun Gong currently resides. Moreover, the applicant was not
able to give significance to the events that occurred on January 23, 2001. The
Board stated that on that date, a well publicized incident occurred when a
number of Falun Gong followers set themselves ablaze in a protest attempt on Beijing’s Tiananmen Square. The Board
determined that the applicant was not familiar with a number of the significant
dates and events that one would expect a Falun Gong adherent to know.
[13]
The Board found that the applicant’s definition
of “evil cultivation” did not correspond with the one found in Zhuan Falun
written by Master Li. The Board noted that the applicant indicated that “evil
cultivation” means ridding oneself of toxins and referenced “evil thinking” whereas
Lecture Five of the Zhuan Falun describes “evil cultivation” as the
pursuit of fame, interest and money by some people or that it is “karma”, a
black substance of negative energy. The Board did note that the applicant was
aware that “karma” was a black matter and that a person can accumulate a lot of
it if the person does bad things.
[14]
The Board found that although the applicant
could correctly name the five elements discussed in Zhuan Falun he did
not remember what would happen if one was able to transcend them.
[15]
The Board then noted other aspects of the
applicant’s testimony which correctly corresponded with the philosophy. He correctly
identified all five Falun Gong exercises, he was aware that one of the
exercises wants you to imagine yourself between two large empty barrels, and he
knew the names of the movements associated with Exercise One.
[16]
In an attempt to further explore the applicant’s
knowledge, the Board asked the applicant to stand at the back of the room and
perform the third of the five Falun Gong exercises. The Board observed that the
applicant correctly performed all of the associated movements, but that during
the first of the three required repetitions, he did not do one movement the
correct number of times. The applicant admitted having missed one of the
movements “due to stress.” The Board stated that it did not expect these
errors from an experienced Falun Gong practitioner.
[17]
Although the applicant came to Canada in November 27, 2008, he did not
begin practicing with a group in Canada until May of 2009. The Board found that since Master Li indicates
that practicing in groups is beneficial, it would be unreasonable for a true
practitioner to not seek out a group for that length of time. The Board also
noted that the applicant has only attended one Falun Gong event since his
arrival, that event being the May 13, 2010 Parade in Toronto.
[18]
For those reasons, the Board found that the
applicant was not committed to the practice, beliefs and concepts associated
with Falun Gong.
Issues
The applicant
submits the following issues:
1.
Did the Board err in its determination that the applicant was not being
sought by the Chinese authorities for his participation in Falun Gong
activities in China?
2.
Did the Board err by applying too high a test for establishing knowledge
of Falun Gong?
3.
Did the Board err by basing its findings regarding the applicant’s Falun
Gong knowledge on information contained in a book that was not in evidence in
the proceeding?
Analysis
[19]
The first and second issues involve factual
findings and are reviewable under the reasonableness standard. The third issue
is a question of procedural fairness and is reviewable under the correctness
standard.
[20]
Under the first issue the applicant submits that,
contrary to the Board’s finding, his father did face repercussions for his
wife’s and son’s involvement in Falun Gong. He refers to the documents cited
in the Board’s decision which states that “[t]he punishment [to family members
of Falun Gong practitioners] includes harassment by the police (random visit by
police to the home), arbitrary interrogation, losing [a] job…” and notes that
his father was visited and questioned by the PSB. Therefore, he submits, that
action amounts to a repercussion supported by the documentary evidence and the
Board’s conclusion otherwise was unreasonable.
[21]
However, the record discloses that the applicant himself at the hearing
before the Board gave evidence that his father experienced no repercussions.
MEMBER: Have
there been any repercussions for your father?
CLAIMANT: No.
MEMBER:
Nothing has happened to him, he has not been denied health or to attend medical
--nothing has been denied of him any services at all?
CLAIMANT: No.
Because my dad did not practice Falun Gong so they cannot penalize him.
[22]
The Board can hardly be faulted by the applicant for taking him at his
word. Its finding in this respect was not unreasonable.
[23]
With respect to the second issue, the applicant
submits that that the Board’s decision contradicts its finding that “the
claimant had a basic gasp of the history, concepts and beliefs associated with
Falun Gong.” The applicant’s position is that in so finding the remainder of
the Board’s examination of his knowledge of the details of the Falun Gong
practise and historical detail was irrelevant and unnecessary. I disagree.
[24]
There is a significant distinction between having
knowledge of the basic history, concepts and beliefs of a religion and being an
adherent of that faith. For example, the Board Member in this case clearly has
knowledge of the basic history, concepts and beliefs of Falun Gong, but one
cannot deduce from that that he or she is a practitioner of Falun Gong. It was
for this reason that the Member engaged in thorough questioning, including asking
the applicant to perform Falun Gong exercises. This was relevant to the real
issue in dispute – whether the applicant had been a Falun gong practitioner in
PRC.
[25]
The applicant submits that the errors or
deficiencies in his evidence were “slight” and the Member overlooked the many
areas where he was able to respond correctly to the Member’s questions. I do
not necessarily share the view that the errors and deficiencies were slight,
nonetheless, there were more than a few and the applicant is really arguing
with the weight the Member gave to certain aspects of his evidence. That is
not a matter for the Court on review unless the Member’s characterization was
perverse or unless the record indicates that the Member emphasised microscopic
errors in order to find fault and a lack of credibility. Reading the decision
as a whole, I am unable to reach such a view of the Member’s analysis. His
concerns regarding the mother’s failure to advise her son of the escape plan,
the applicant’s failure to join a Falun Gong group for such a prolonged period,
and his failure to know some of the fundamentals of the movement of which he
claimed to be an adherent were sufficient bases to support the credibility
finding that was reached.
[26]
On the third and last issue, it is submitted
that the Board erred by basing its findings regarding the knowledge of Falun
Gong on a comparison between the oral testimony and the Zhuan Falun when
the book was not part of the evidence and should therefore not have been relied
upon.
[27]
I agree with the submissions of the respondent
that Zhuan Falun is the fundamental book of Falun Gong; the applicant’s
submission is equivalent to a Christian complaining that they were asked
questions regarding the Bible.
[28]
The Court has held that when evidence is
available from public sources, there is no obligation for the Board to inform
the applicant that it is going to be relied upon in the decision: Mancia v
Canada (Minister of Citizenship and Immigration), [1997] FCJ No 120. Given
the context of the refugee claim, I do not think either the applicant or his counsel
was taken by surprise with the Board’s reference to this book. The applicant
even admitted to having read the book prior to the hearing.
[29]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is
certified.
“Russel W. Zinn”
Email this Content