Docket: IMM-10227-12
Citation: 2013 FC 1028
Toronto, Ontario, October
10, 2013
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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YINGZHI LIU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
(delivered orally)
[1]
This application for Judicial Review of a
decision of the Immigration and Refugee Board (the Board) dated October 18,
2012 deals with a refugee claimant who alleges that he practiced Falun Gong in China. It is not contested that the Board reasonably concluded that, as a result of serious
problems with his testimony about events in China, his evidence on that subject
was rejected and his general credibility was diminished.
[2]
Against that background two issues are raised:
1. In
deciding whether the applicant’s practice of Falun Gong in Canada was genuine did the Board apply a standard of proof more onerous than a balance of
probabilities?
2. In
deciding whether the applicant’s practice of Falun Gong in Canada was genuine did the Board prejudge the issue?
Issue 1
[3]
At paragraph 12 of his decision the Board said:
[12] In the context
of my finding regarding the claimant’s alleged Falun Gong practice in China, I further find that his general credibility is in doubt. The Federal Court has
indicated that it is reasonable if a claimant’s testimony regarding events in
China or that is in the claimant’s home country, is found not to be credible,
it is reasonable for the RPD to raise the bar regarding a judgment
concerning the genuineness of practice in this country. I, therefore find, on a
balance of probabilities, that it is reasonable to assume that a person who was
not a Falun Gong practitioner in China when he arrived in this country would
not become a practitioner upon arrival other than to support a fraudulent claim
for protection.
[My emphasis]
[4]
The Board did not identify the Federal Court
decision to which he referred and he paraphrased its conclusion. The question
is what the Board meant by the phrase “raise the bar.” The applicant says it
means that he applied an improperly high standard of proof. However, in my view
the Board was merely saying that, once an applicant is found to have lost
general credibility it becomes more difficult for him to satisfy the Board on
the proper standard of proof that his evidence is truthful. Because there is a
reasonable way to interpret the Board’s statement which does not involve an
error, it is my view that such an interpretation should be accepted.
Issue 2
[5]
The applicant acknowledges that Falun Gong was
central to his claim and that the Board was therefore obliged to question him
about his knowledge of its practices.
[6]
However, once the Board found him lacking in
general credibility the applicant says the questioning shows that it was a foregone
conclusion that the refugee claim would be dismissed because:
i) If his answers were poor the finding of a
lack of general credibility would be reinforced.
ii) If his answers were accurate the Board could
nevertheless dismiss them as irrelevant given the finding of a
general lack of credibility.
[7]
The Board took the second approach in this case
when it said at paragraph 11 of its decision:
[11] The claimant
was asked a number of questions regarding Falun Gong theory and practice. He
answered most of them correctly but his responses to questions regarding the
nature of cultivation and attachments, were vague and only partial. Merely
being able to answer a few basic questions regarding Falun Gong theory and
practice is not in itself a satisfying basis for judging the genuineness of his
Falun Gong identity.
[8]
I have concluded that the Board was obliged to
question the applicant about Falun Gong’s practice and the simple fact that
such questions were asked – without more – cannot be the basis for a finding
that the Member prejudged the question of whether the applicant’s practice in Canada was genuine. As well I do not accept the applicant’s submissions that the claim
would necessarily be dismissed. In my view, it was open to the Board to
conclude that the applicant displayed such an in-depth knowledge of Falun Gong and
a commitment to the practice that, even though he had not practiced it in China he had become a genuine practitioner in Canada.
Certification
[9]
No question was post for certification.
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