Docket: IMM-3167-14
Citation:
2015 FC 693
Ottawa, Ontario, May 29, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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XUWEN GAN
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LIFEI ZHU AND
YUXI GAN
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Applicants
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants are a family from China. The mother, Lefei Zhu, is a Falun Gong practitioner. The Refugee Protection Division
Member found that she was not credible and thus denied her claim and those of
her family who had relied on her claim.
[2]
The Member had more than one issue with her evidence
leading him to the view that she was not a credible witness; however, the
principal reasons for his finding was that “it is not
plausible that the female claimant would risk the consequences inherent in joining
a Falun Gong practice group, rather than finding another solution to her
alleged health problem.”
[3]
I find this implausibility finding to be
unreasonable, for the reasons that follow. Because this finding coloured the
Member’s assessment of her remaining evidence, it is not safe to rely on the
decision. The applicants’ claims must be re-examined.
[4]
In 2004, Ms. Zhu suffered from headaches and
insomnia. She testified that she came to believe that they were caused by her
boyfriend leaving her and she was suffering from heartbreak. She sought
assistance from a doctor who lived next door. He treated her with traditional
Chinese medicines and Western medicines, but they did not help. Her aunt, who
had been a Falun Gong adherent for many years, encouraged her to start
practicing Falun Gong to purify her body and restore her health. Ms. Zhu began
practicing Falun Gong secretly, even though she knew that it was a banned practice
in China.
[5]
On October 9, 2011, the Chinese Police [PSB] discovered one of their
secret practicing sites and three members of their group were arrested,
including Ms. Zhu’s aunt. Ms. Zhu was able to escape but went into hiding at
the home of a friend. The police came to the home of her husband the next day
and arrested him. He was beaten, interrogated and released the next day.
[6]
The Member’s implausibility finding rested on
other findings, as follows: (i) It was not believable that Ms. Zhu would join
the Falun Gong given the risks involved; Ms. Zhu’s headaches and insomnia, are
not uncommon health conditions, are easily treatable, and she only made cursory
attempts at solving these health problems; using Falun Gong to treat these
health conditions is not sufficient motivation to compel a reasonable person to
deliberately place herself and her family in jeopardy; and it was not credible
that Ms. Zhu did not seek further medical attention at a hospital for her
health concerns.
[7]
The respondent submits that the Member’s finding
that it was not believable that Ms. Zhu would join the Falun Gong given the
risks associated with joining and her motivating factor being common health
conditions like headaches and insomnia was a reasonable finding open to him.
The respondent submits that this case is akin to this court’s decision in Lin
v Canada (Minister of Employment and Immigration), 2008 FC 1052 [Lin]
at para 19, where Justice Teitelbaum wrote:
The applicant
further takes issue with the Board's finding that given the likelihood of
capture and severe punishment, it was implausible that the applicant would take
up Falun Gong to reduce stress. The applicant argues that the fact that people
are still being arrested in China for practising Falun Gong is prima facie evidence
that people are still taking up the practice to create tranquility, despite
fear of capture. It was not unreasonable for the Board to draw this negative
inference. Firstly, the apprehension of Falun Gong practitioners is not prima facie evidence
of the motivation of those practitioners. Secondly, as the respondent
submitted, a negative inference can be reasonably drawn where it is implausible
that a person would act in a way to put him and his family in harm's way (Rani v. Canada, [2006] F.C.J. No. 94, 2006
FC 73). Thirdly, when assessing credibility, the Board is entitled to rely
upon criterion such as rationality and common sense (see Shahamati
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415). In the case
at hand it was reasonable for the Board to draw a negative inference from the
implausibility that a person would begin to practice Falun Gong to reduce
stress when the risk associated with the practice would likely cause additional
stress. (emphasis added)
[8]
In my view, Lin is distinguishable and does not support the
respondent’s submission. In Lin, the court found it to be implausible
that a person would commence a practice to reduce stress when that practice
would most likely increase one’s stress. Here, the Member found it
implausible that the female claimant would undertake a practice that could put
her family at risk, rather than further seeking out medical help.
[9]
The respondent also relies on my decision in Jiang v Canada (Minister of Citizenship and Immigration), 2012 FC 1067 [Jiang] which
reviewed a decision of a failed claimant who had taken to Falun Gong rather
than seeking medical assistance for her depression. In addition to other
findings, including embellishment, it seemed to the Board “reasonable that she would have investigated
alternatives rather than simply accepting the risk of practicing Falun Gong.”
At paragraph 16, I observed: “I cannot
say that the Member’s view that a well-educated person would first try to
address depression, a condition that is medically treated (a fact not
challenged by the applicant), through legal means first before resorting to a
practice that could subject her to arrest and imprisonment is unreasonable.”
[10]
Jiang is quite
dissimilar to the facts before the court in this application. First, Ms. Zhu
is not well-educated. The record shows that she attended school only to Grade
9. More importantly, unlike Ms. Jiang, Ms. Zhu did try both Chinese and
Western medical treatment before she resorted to Falun Gong and then did so
only because the medical treatments had not been effective.
[11]
This court has frequently cautioned Members to
resist implausibility findings except in well-defined situations. Justice
Rennie in Chen v. Canada (Minister of Citizenship and Immigration), 2015
FC 225 notes:
Caution must be exercised when rejecting
evidence on the basis of plausibility; Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, para 7. There are two reasons
for this. First, it is inherently subjective. Second, as I noted in Ndjavera
v Canada (Citizenship and Immigration), 2013 FC 452 at para 11:
"Refugee claimants come from diverse backgrounds and the events described
in their testimony are often far removed from the ordinary life experience of
Canadians. What appears implausible from a Canadian perspective may be
ordinary or expected in other countries."
[12]
The situation before the Member does not fall within
an exception to this general principle. Here the Member had the evidence of a
woman who was educated (but not well-educated), who was devastated by the loss
of her boyfriend, who sought medical treatment from a doctor living next door,
who tried both Chinese and Western medical treatments for some three months,
whose conditions persisted, and who had an aunt who had practiced Falun Gong
for many years without incident persuade her that it would help. In that
scenario, I fail to see how trying Falun Gong could be said to be implausible,
even knowing that it was outlawed and put her potentially at risk.
[13]
I accept that some of the Member’s other
concerns regarding credibility of Ms. Zhu and her husband are reasonable;
however, as the Member’s main credibility finding was based on the unreasonable
implausibility finding, I cannot say that the result would necessarily have
been the same had it not been made. Accordingly, this application must be allowed.
[14]
Neither party proposed a question for
certification, and I see none.
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