Date: 20081010
Docket: IMM-1459-08
Citation: 2008 FC 1153
Ottawa, Ontario, October 10,
2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
LIJUAN
WANG
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application for judicial review of a decision made by Diane L. Tinker, a
member of the Immigration and Refugee Board, Refugee Protection Division (the
Board) on March 5, 2008, wherein it was determined that the applicant is neither
a Convention Refugee nor a person in need of protection (the impugned
decision).
[2]
The
applicant, Lijuan Wang, is a citizen of the People’s Republic of China. She claims
to have a well-founded fear of persecution at the hands of the Communist
regime, and in particular the Public Security Bureau (PSB), by reason of her
political opinion as a Falun Gong practitioner. The applicant alleges that she
started practising Falun Gong in August 2005 on the advice of a friend who was
concerned about the applicant’s health following the applicant’s divorce and
diagnosis with angina. The applicant submits that on April 7, 2006, she was
advised that two fellow practitioners had been arrested while distributing
Falun Gong leaflets. As a result, the applicant immediately went into hiding at
a relative’s home. On April 9, 2006, while in hiding, the applicant learned
that the PSB had been to her home on April 9, 2006, looking to arrest her for
being involved in illegal Falun Gong activities. The applicant therefore made
arrangements to be smuggled out of the country. She arrived in Canada on July 24,
2006. The applicant alleges having learned that the PSB, subsequent to her
departure, was still trying to locate her and that the fellow practitioners who
had been arrested were still in jail. Thus, the applicant filed for refugee
protection a few days after her arrival in Canada. The
applicant asserts that she has been practising Falun Gong on a daily basis while
in Canada. She has
also found a practising centre at Milliken Park in Toronto.
[3]
On
March 5, 2008, the Board rejected the applicant’s claim as it found the
applicant to be non credible. The Board concluded that the applicant is not, and
never has been, a Falun Gong practitioner. First, the Board found that the
applicant’s failure to file a summons for her arrest, which she claimed was
actually left by the PSB at her home in China, was fatal
to her claim, and that her explanations for not producing it were
unsatisfactory. Second, the applicant’s story of departing China without going
through security check points, and boarding an Air Canada plane without a
boarding pass, was said to be implausible and inconsistent with the documentary
evidence.
[4]
Prior
to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,
2008 SCC 9 (Dunsmuir), this Court had held that the Board’s findings of
fact and credibility, and its assessment of the evidence are within its
specific expertise and therefore attract a highly deferential standard of
review, in line with the former patent unreasonableness standard (Aguebor v.
(Canada) (Minister of Employment and Immigration), [1993] F.C.J. No. 732 at
para.4, 160 N.R. 315). The standard is now “reasonableness,” meaning that this
Court will only intervene if the impugned decision is said to be unreasonable,
in the sense that it falls outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law”: Dunsmuir at para.
47. See also Da Mota v. Canada (Minister of
Citizenship and Immigration), [2008] F.C. J. No. 509 at para.14, 2008 FC
386; Diazgranados v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 822 at para. 6, 2008 FC
617.
[5]
In
Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 480,
[2002] F.C.J. No. 647 (QL) (Chen), the Court overturned the Board’s
decision where it failed to make a determination in clear language on whether
or not the claimant, since her departure from China, was a Falun Gong
practitioner. In doing so, the Court stated:
[19] I have reviewed the Board's
decision and I have come to the conclusion that the Board did not make any
finding with respect to whether the applicant was a member of the Falun Gong
group. The Board did not believe the applicant's story with respect to her
persecution in China but it did not address
whether she was a member of the group. This finding was necessary in order to
determine whether or not the applicant was a Convention refugee. The decision
does not address the Falun Gong activities in Toronto. This evidence should have been
considered (see Jian Jiang v. M.C.I. 2002 FCT 64; [2002] F.C.J. No. 84
(QL)). It was a reviewable error for the Board not to make this determination.
[…]
[21] The Board in this case made a
finding that it did not believe that the applicant herself had been persecuted
but that is not the end of the matter. The applicant can show that the fear the
applicant has is based on the acts committed or likely to be committed against
others who belong to the same group as does the applicant. There is evidence in
the record that members of the Falun Gong group have been persecuted in China. The applicant's refugee claim could
succeed based on her membership in the Falun Gong if the Board was to find that
members of the Falun Gong group were or were likely to be persecuted. This is
why it was so important to determine in clear language whether or not the
applicant was a member of Falun Gong. The Board did not complete the analysis
with respect to persecution due to the applicant's membership in Falun Gong as it
did not determine whether or not she was a member of Falon [sic] Gong.
This was a reviewable error by the Board.
[6]
The
Chen decision was recently applied in Huang v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 164, 2008 FC 132 (Huang)
and in Li v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 338 (QL), 2008 FC 266 (Li).
These three decisions, although not identical to the present case, are somewhat
analogous with regards to the alleged perverse reasoning and capricious character
of the impugned decision. In the case at bar, the essence of the whole
reasoning of the Board to deny the applicant’s claim is expressed in the
following passage: “In summary, I find that the claimant is not, nor has ever
been, a Falun Gong practitioner in the People’s Republic of China, due to her
ability to leave the country without incident”. Nowhere in the impugned
decision has the Board analysed the evidence pertaining to the Falun Gong
activities of the applicant in China or in Canada except to suggest that “[a]ny
knowledge that the claimant has learned about Falun Gong could easily have been
acquired here in Canada in order to manufacture this claim”.
[7]
Based
on Chen, Huang and Li, and having closely reviewed the tribunal’s
record, including the transcripts, overall, I find the Board’s conclusion
unreasonable. There is evidence in the record that members of the Falun Gong
group have been persecuted in China. The Board’s finding that the applicant
was able to leave China without incident does not necessarily lead to
the conclusion that the applicant is not, and never has been, a Falun Gong
practitioner either in China or in Canada. Indeed, despite the
fact that the Board had some credibility concerns with respect to the particular
means by which the claimant left China, an assessment of the applicant’s Falun
Gong activities, both in China and in Canada, was nevertheless necessary
considering the documentary evidence on record and the elaborate testimony of
the applicant on this very central issue of her claim. The Board’s failure to perform
such an assessment constitutes a reviewable error and justifies a
redetermination of the applicant’s claim.
[8]
Accordingly,
the present application must be allowed. The impugned decision is set aside and
the matter is referred back for redetermination by another member of the Board.
Counsel agree that this case does not raise a question of general importance
for certification, and none is stated.
Email this Content