Docket: IMM-4216-14
Citation:
2015 FC 823
Ottawa, Ontario, July 6, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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YANLING CHEN
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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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JUDGMENT AND REASONS
[1]
The applicant seeks judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board [RPD]
that determined that she was neither a Convention refugee nor a person
in need of protection because she had failed to establish that she was a member
of Falun Gong in China or that she was wanted by the Public Security Bureau
[PSB].
[2]
The decision was based on the assessment of the RPD as to “the overall improbability of the claimant’s
story.”
[3]
Ms. Chen is a 53 year-old citizen of China who says
that she was introduced to Falun Gong by a friend in May 2010, after she caught
a cold a few months prior. Ms. Chen says that she was enticed by Falun Gong
since doctors were unable to cure her cold and other health issues (insomnia).
On May 10, 2010, she started to attend an underground Falun Gong practice
group. She contends she did so although being aware the practice was banned in
China. After joining the Falun Gong practice, her symptoms started to improve
and she started to introduce others to her practice group.
[4]
On July 18, 2011, she says that the PSB raided
her underground Falun Gong practice group. She says she was able to avoid
detection by the PSB and went into hiding at a friend’s home. The next day,
she was informed by her husband that two individuals were caught during the PSB
raid. She says that on July 20, 2011, the PSB went to her house to look for
her, accused her of being involved in Falun Gong, and ordered that she
surrender herself. On July 3, 2011, they returned and asked her husband why she
had not surrendered herself.
[5]
Fearing persecution as a Falun Gong
practitioner, Ms. Chen left China on October 29, 2011. She arrived in Canada
on November 5, 2011, and claimed refugee protection three days later.
[6]
The RPD reviewed the documentary evidence on
China with respect to Falun Gong. In its view, given that Falun Gong
practitioners have faced persecution in China since its ban in 1999, it would
be reasonable to expect that Ms. Chen would have a compelling reason for
joining Falun Gong. The RPD however did not see Ms. Chen’s motivation as
convincing since she joined Falun Gong due to “a cold
and insomnia.” Given, in the view of the RPD, that these illnesses
could be treated with Western and Chinese medicine, and the founder of the movement
had stated the practice was not a method to cure illness; the RPD was of the
view that a cold did not justify the extraordinary course of action of joining
Falun Gong. It also noted that during her testimony, Ms. Chen did not
demonstrate a depth of knowledge, passion or intensity to justify taking the
risk of joining the Falun Gong movement.
[7]
The RPD also noted that Ms. Chen had not provided
any medical documents corroborating her claim that she approached doctors to
address her cold and insomnia. It rejected Ms. Chen’s explanation that the
records were in China and her husband could not locate them, since, in its
view, it would be expected these records would be kept with care. Therefore,
the RPD concluded that the contents of the medical documents would not have
corroborated Ms. Chen’s allegations.
[8]
Further, the RPD noted an inconsistency between Ms.
Chen’s narrative and testimony. In her narrative, Ms. Chen claimed after the
PSB raid she went to a friend’s house, where she was allowed to stay and call
her husband. However, at the hearing, she testified that she was not allowed
to stay at the friend’s house, and after speaking with her husband, she took a
bus to another friend’s house in another city. When confronted with this
inconsistency, Ms. Chen expressed the narrative was correct and that she had
memory problems. The RPD rejected the explanation since Ms. Chen had no
problem recalling all the dates in her narrative, and also noted that her
testimony regarding her stay at her friend’s house was confusing.
[9]
Moreover, the RPD stated that other aspects of Ms.
Chen’s testimony rendered her claim untrustworthy. For example, there was no
evidence that Ms. Chen’s husband or family in China had suffered any
persecution as a result of her involvement in Falun Gong. Additionally, the RPD
attributed little probative value to letters submitted in support of Ms. Chen’s
claim since, in its view, the letters were insufficient to overcome the
credibility concerns.
[10]
In light of the above, the RPD rejected Ms. Chen’s
claim since she failed to provide sufficient credible or trustworthy evidence.
[11]
Ms. Chen identifies two issues: 1) Whether the
RPD assessment of her credibility was reasonable; and 2)
Whether the RPD erred by failing to address the sur place aspect of her
claim?
[12]
I find that the decision under review must be
set aside on the basis of the first issue and accordingly, it is unnecessary to
deal with the second issue raised by Ms. Chen. I would note, however, that if the RPD’s conclusion that Ms. Chen was not a member of a Falun Gong
practice group in China was reasonable and upheld, then there was no evidence
requiring the Board to conduct a sur place analysis.
[13]
I agree with the respondent that there were
inconsistencies and contradictions in the evidence of Ms. Chen; however, the
primary basis for the credibility finding of the RPD was its view as to the
implausibility of her story as to why she joined the Falun Gong. It is that
finding, in my view, that is unreasonable. It is impossible for the court to
reach a clear conclusion as to whether the result would have been the same had
the RPD not made that error and accordingly the claim for Convention refugee
status or protection must be determined by a different panel.
[14]
The implausibility finding made in this decision
is identical to that made in the decision reviewed in Gan v Canada (Minister
of Citizenship and Immigration), 2015 FC 693 [Gan]; namely, the
finding that it is not plausible that the claimant would risk the consequences
inherent in joining Falun Gong, rather than finding another, less perilous
solution to health problems.
[15]
As in Gan, the RPD relies, in part, on my
decision in Jiang v Canada (Minister of Citizenship and immigration),
2012 FC 1067 [Jiang]. Both in Gan and in this case, the RPD cites
Jiang as if it endorses the implausibility finding made therein. It
does nothing of the sort. The RPD, when citing decisions of this court must do
so with an understanding that the court is sitting in review, not on appeal.
As such, all Gan stands for is that the court did not find the decision
under review to be unreasonable. The RPD must also have in front of mind, when
citing a court decision, the facts relevant to that case. The reasonableness
of any decision will turn largely on the facts, including the analysis of those
facts by the RPD.
[16]
At paragraph 9 of Gan, I summarized Jiang
as follows, and then noted how dissimilar it was to the facts in Jiang:
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.”
[17]
Jiang is
distinguishable from the facts here. Ms. Chen is not “highly
educated” but has a grade 10 education. Unlike Ms. Jiang, Ms. Chen
tried medical treatment, without success, before turning to Falun Gong.
Contrary to the suggestion of the RPD that Ms. Chen suffered from the common
cold, her Basis of Claim narrative discloses that her health complaints and
impact were more serious:
I often had congestion in my chest,
shortness of breath, feeling weak, and etc. Doctors couldn’t find the cause of
my problems, therefore, didn’t have effective way to cure me. My health
conditions affected my work and life, for example, rest at home and short
temper.
[18]
The situation before the RPD here is much closer
to that in Gan than Jiang in that the RPD had the evidence of a
woman who was educated (but not well-educated), who had suffered chronic
illness that affected her home and work life, who sought medical treatment
without success, whose conditions persisted, and who had a friend who had
practiced Falun Gong for years without incident who persuaded 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 one potentially at
risk.
[19]
Accordingly, as noted earlier, this application
must be allowed. Neither party proposed a question for certification nor is
the one on the facts before the court.
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