Date: 20080514
Docket: IMM-4200-07
Citation: 2008 FC 600
Toronto, Ontario, May 14, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JIE DONG GONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Jie Dong Gong is a citizen of the People's
Republic of China (PRC) who came to Canada in 2000 and claimed refugee protection. Mr. Gong's claim
was based upon religious persecution. He stated that he was a sympathetic
supporter of some members of the Falun Gong and that he was associated with
members of the Falun Gong. His claim to protection was dismissed because the
Convention Refugee Determination Division of the Immigration and Refugee Board
(CRDD) found him to be an untrustworthy and unreliable witness. The CRDD found
that the events Mr. Gong described did not take place.
[2]
Subsequently, Mr.
Gong applied for a pre-removal risk assessment (PRRA) on the same facts. The
application was rejected and Mr. Gong brings this application for judicial
review in respect of that negative decision.
[3]
During oral argument,
counsel for Mr. Gong pursued only two issues. First, counsel argued that the
officer failed to assess Mr. Gong's case on the basis of imputed political
opinion. Second, counsel argued that the officer erred by concluding that the
documentary evidence did not "mention that FLG [Falun Gong] sympathizers
or those persons who inadvertently associate with FLG members are themselves
arrested and subjected to cruel and unusual treatment or punishment."
[4]
This application for
judicial review is dismissed because I have not been persuaded that the officer
erred as alleged.
[5]
Turning to the first
asserted error, Mr. Gong argues that the officer failed to consider the proper
basis of his claim. Mr. Gong submits that the issue is not whether he is a
member or merely an associate (or supporter) of the Falun Gong. Rather, the
issue is how the authorities in the PRC perceived him. Mr. Gong says that the
authorities believe he committed some wrongdoing and that he should be punished
for this.
[6]
In my view, the
officer did consider this basis of Mr. Gong's claim. At page 4 of his notes,
the officer begins his reasons by stating "I find that the applicant has
brought forward little evidence that he is wanted by the authorities in China or that those authorities view the applicant as a member of
FLG." The rationale for this conclusion is found at page 10 of the
officer's reasons, where the officer writes:
I
find that the applicant has brought forward little evidence that the Chinese
authorities view him as a member of the Falun Gong organization. The applicant
stated in his PIF that he is not a member of FLG and his quick release after
the initial arrest would seem to indicate that the Chinese authorities did not
view the applicant as a member of FLG.
I
find that the applicant has brought forward little evidence that subsequent to
his leaving China the Chinese authorities sought him out
for arrest, detention and interrogation. The applicant’s counsel stated in the
PRRA submission that after he left China, the applicant’s father was questioned
and harassed by the Chinese authorities but I note that the applicant did not
state so in his PIF nor, apparently, did he state so at his IRB hearing.
[7]
The officer looked at
Mr. Gong's evidence that he was released within twenty-four hours of his
arrest, upon the payment of bail and the promise that he would provide a
written confession and self-examination. That evidence, combined with the
absence of credible evidence that authorities in the PRC have any continued
interest in finding Mr. Gong, provided a reasonable basis for the officer's
conclusion that Mr. Gong had not established that he was wanted by the
authorities in the PRC or that they viewed him as a member of the Falun Gong.
[8]
During oral argument,
I raised with counsel the fact that it appears that, contrary to what the
officer wrote, Mr. Gong did testify before the CRDD that the Public Security
Bureau continued to have an interest in him. Such evidence was rejected by the
CRDD as being implausible. Counsel did not argue that anything flows from this
and I agree. In this regard, it is not clear what Mr. Gong's evidence was
before the CRDD. While I would be inclined to infer from the reasons of the
CRDD that his testimony was to the effect that his family was being questioned
by PRC authorities, if that was in fact the case, it would follow that Mr. Gong
submitted no new evidence on his PRRA application. That would be fatal to his
application because a PRRA applicant who is a failed refugee claimant must
demonstrate either a change in his or her circumstances or a change in country
conditions. See: Raza v. Canada (Minister of Citizenship and Immigration),
[2007] F.C.J. No. 1632 (C.A.) at paragraphs 10 to 13.
[9]
Turning to the second
asserted error, Mr. Gong takes issue with the officer's finding that Mr. Gong
brought forward "little evidence that […], non-FLG associates of FLG
members are at risk of persecution in China or at risk of torture, death or cruel and
unusual treatment or punishment". Even if there is very little evidence,
Mr. Gong argues that it points to a problem and that the officer erred when he
concluded that the documentary evidence did not "mention that FLG
sympathizers or those persons who inadvertently associate with FLG members are
themselves arrested and subjected to cruel and unusual treatment or
punishment." Mr. Gong points to evidence contained in:
·
Response to
Information Request CHN100430.E
·
Response to
Information Request CHN04002 SND
·
United States
Department of State report for China - 2006
·
Response to
Information Request CHN102560.E
[10]
I have reviewed this
documentation carefully. The documentary evidence makes, respectively, the
following points:
·
The organization
"Human Rights in China" had heard of instances where
non-Falun Gong practitioners were detained after Falun Gong literature was
slipped under their door.
·
A Falun Gong website
carried eleven accounts of family members of Falun Gong adherents being
arrested and questioned by the police. In one case, a person was said to have
been tortured. However, a professor who tracks independent evidence of the
harassment of Falun Gong family members suggested that "most harassment of
family members of adherents is probably relatively subtle. ‘My impression is
that the harassment of relatives consists less of torture and physical threats,
and more of discrimination and threats to a livelihood.’”
·
Police reportedly had
quotas for Falun Gong arrests.
·
Representatives of
the Falun Dafa Association of Canada noted that there were reports that those
who assist Falun Gong practitioners could face "fines, threats and
‘harassment.’”
[11]
In my view, such
evidence does not render unreasonable the officer's conclusion that the
evidence did not establish that those who sympathize or associate with Falun
Gong practitioners are "arrested and subjected to cruel and unusual
treatment or punishment." The documentary evidence Mr. Gong points to is,
on the whole, consistent with harassment or discrimination that falls short of
the conduct that sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, are directed to.
[12]
For these reasons,
the application for judicial review will be dismissed.
[13]
Counsel posed no question for certification,
and I agree that no question arises on this record.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application for judicial review is dismissed.
“Eleanor
R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4200-07
STYLE OF
CAUSE: JIE
DONG GONG, Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 28, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON J.
DATED: MAY 14, 2008
APPEARANCES:
LORNE WALDMAN FOR
THE APPLICANT
JAMIE TODD FOR
THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN & ASSOCIATES
BARRISTERS AND SOLICITORS
TORONTO, ONTARIO FOR
THE APPLICANT
JOHN H. SIMS, Q.C.
DEPUTY ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT
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