Docket: IMM-7920-14
Citation:
2015 FC 1140
Ottawa, Ontario, October 9, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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YAN HUI 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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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [the Board]
dated November 3, 2014, wherein it was determined that the Applicant is not a
Convention Refugee pursuant to section 96 of the Immigration and Refugee
Protection Act 2001 c 27 [IRPA] and is not a person in need of protection
under section 97 of the IRPA.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant, a 40 year old citizen of China,
alleges that he has been a Falun Gong practitioner since September 2013. He
joined to deal with his stress and a herniated disk, which had caused his
health to suffer. His Falun Gong group was raided by the Public Security Bureau
[PSB] on February 2, 2014. He was not there at that time and went into hiding
after the raid.
[4]
The Applicant states that the PSB went to his
house to look for him while he was hiding and that they accused him of engaging
in illegal Falun Gong activities, demanding that he surrender himself to them
immediately. He made arrangements to flee China and traveled to Canada to seek
refugee protection.
II.
Impugned Decision
[5]
The Board was satisfied that the Applicant had established
his personal identity but rejected his claim, the determinative issue being
credibility.
A.
Falun Gong Profile
[6]
The Applicant testified to his Falun Gong
practise in China and Toronto, providing details of his reading of the Zhuan
Falun, a core publication of Falun Gong, and involvement in group practice.
[7]
The Applicant testified that Falun Gong cannot
cure diseases but it can cleanse the body and make it healthier. The Board
noted to the Applicant that he was wrong in this belief. It noted that Master
Li indicates in the Zhuan Falun that a practitioner can work through the
wrong-doing committed in past lives, repay his karmic debt and cure his
illness. When asked why he did not know this, the Applicant replied that in
China he did not have a copy of the Zhuan Falun. He would listen to the
instructor talk about it. It was only in Canada that he got the book and read
the theory. He also stated that the book is very deep in various places and
that he did not understand it all clearly.
[8]
The Board rejected the Applicant’s explanations
and found that a genuine Falun Gong practitioner, who sought out the practise
of Falun Gong to improve his health, would be familiar with the teachings as
they pertain to illness. Overall, a negative inference was drawn and the
Applicant’s credibility as a Falun Gong practitioner was undermined.
B.
How the Applicant’s Health Improved
[9]
The Applicant stated it took two months for his
health to improve after he began practising Falun Gong. The Board noted that
his description was not consistent with the teachings in the Zhuan Falun, as
Master Li indicates that one must make amends for past wrong-doings and the
Applicant had made no mention of this.
[10]
After being advised of the Board’s concerns, the
Applicant stated that he practises Falun Gong to get rid of karma and that
karma was there because of things that were not good. The Board gave no weight
to this answer, stating that it had given the answer to the Applicant.
[11]
The Board acknowledged that the Applicant
possessed some knowledge of Falun Gong practise. However, it found that the
Applicant was unable to explain how he applied the general principles. The
Board found that the Applicant’s account of how his health improved was
inconsistent with the principles of the Zhuan Falun and, if the Applicant’s
health improved, it was for other reasons.
C.
Hukou
[12]
The Applicant submitted a hukou in support of
his claim. The hukou is a document which sets out the family composition of its
holder and the place where the holder lives. The Board noted that the condition
of his hukou was poor and rejected the Applicant’s explanation for the
condition of the document. The Board also noted evidence in the National
Documentation Package for China that referred to fraudulent documents being
easily obtained. Overall, it assigned no weight to the hukou.
D.
Summons
[13]
The Applicant also submitted in support of his
claim a summons purportedly issued by the PSB. The Board expressed concern
about a lack of address in the summons. Acknowledging that police procedure in
China lacked uniformity, the Board dismissed the Applicant’s explanation that
everyone knows where the PSB is and how to get there. The Board also based this
conclusion on country reports indicating there are specialized offices dealing
with Falun Gong matters.
E.
Photos and Confirmation Certificate
[14]
The Applicant submitted several photos and a “Confirmation Certificate” in support of his claim.
The Board was unable to conclude on the basis of the photos themselves, or the
Applicant’s description of the activity depicted therein, that the Applicant was
a genuine practitioner. Little weight was assigned to these documents.
[15]
Overall, the Board assessed the Applicant’s
credibility on the cumulative effect of the evidence, finding that he is not a
genuine Falun Gong practitioner.
III.
Issues and Standard of Review
[16]
In my view, the Applicant’s arguments (canvassed
below) amount to a consideration of whether the Board’s decision was
reasonable. The parties agree, and I concur, that the standard of review
applicable to issues of credibility and the weighing, interpretation and
assessment of evidence is reasonableness (Shatirishvili v Canada (MCI), 2014
FC 407).
IV.
Submission of the Parties
A.
Applicant’s Position
[17]
First, the Applicant argues that the Board
rejected the Applicant’s claim based on misconstruction of the Zhuan Falun
text. The Applicant submits that he was entirely correct about Master Li’s
views about Falun Gong as a cure for illness, as the Master states it is not a
cure for illness but rather can improve a person’s health and help to rid the
body of karma.
[18]
The Applicant refers to relevant paragraphs in
the text and submits that it is clear from the passages excerpted that he was
correct in his answer to the Board’s inquiry.
[19]
Second, the Applicant submits that the Board
erred in the balance of its assessment of his Falun Gong knowledge. By the time
the Board considered the Applicant’s remaining testimony about the practise and
philosophy of Falun Gong, it had already determined that he is not a
practitioner, which tainted all its subsequent findings.
[20]
The Applicant submits that even if his health
benefits were not actually the result of his Falun Gong practise, this does not
mean that he is not a genuine practitioner. The jurisprudence cautions against
inquiring into the validity of an applicant’s religious practice rather than
the sincerity of one’s religious beliefs (Huang v Canada (MCI), 2012 FC
1002 [Huang] at para 13). The RPD also failed to appreciate that simply
practising Falun Gong exercises in China was enough to put him at risk of
arrest and detention (Wang v Canada (MCI), 2012 FC 346 [Wang] at para 9).
[21]
Third, the Applicant submits that the RPD
rejected credible documents. With respect to the hukou, the Applicant notes
that the RPD is generally considered not to have any special expertise in
relation to the validity of foreign identity documents. This finding of the
Board was also inconsistent with its conclusion that the Applicant had
established his identity, as there was no reason why a citizen of China would
not have an authentic hukou (Lin v Canada (MCI), 2012 FC 288 at para 49
[Lin]).
[22]
Regarding the summons, the Applicant states the
Board’s finding was speculative. It cited no evidence to support its conjecture
as to what information should have been included in the summons. There was no
reference in the country documents to any requirement that a summons contain the
information that the Board considered to be missing (Lin at paras 51-53).
B. Respondent’s Position
[23]
The Respondent argues that if the Board
misunderstood the evidence, the Applicant ought to have told the Board so during
the hearing. Rather, the Applicant gave explanations that the Board found
unreasonable.
[24]
The Respondent maintains that, in assessing the bona
fides of the Applicant’s Falun Gong adherence, the Board is entitled to
question his understanding of its principles and his practise of its tenets. It
was reasonable for the Board in assessing the Applicant’s claim to focus on the
teaching of Falun Gong surrounding the curing of illness, because the Applicant
joined Falun Gong for the purpose of curing medical issues, which he claimed
had in fact occurred.
[25]
The Respondent also submits that the Applicant’s
suggestion that the Board had already determined that he was not a genuine Falun
Gong practitioner, following its consideration of his evidence on the teachings
of Falun Gong surrounding illness, is not supported by the record. The Board
simply drew a negative credibility inference as a result of this evidence.
[26]
With respect to the hukou, the Respondent argues
that the Board has expertise in assessing the credibility of a claimant’s
statements and that this particular Board member had received training in
relation to documents from China.
[27]
The Respondent states that the Board’s negative
inference regarding the summons is not undermined by the absence of any
evidence that a summons should contain the information the Board considered to
be missing. The Respondent notes that jurisprudence from this Court has held
that the Board may consider whether fraudulent documents are readily available
in a given place.
V.
Analysis
[28]
While the Board made findings rejecting the
Applicant’s hukou and assigned little weight to the summons and the photos and
confirmation certificate he submitted in support of his claim, it is clear that
the Board’s decision turns principally on its findings that the claimant lacked
basic knowledge of Falun Gong principles and teachings. Based on those
findings, the Board concluded that the Applicant is not a genuine Falun Gong
practitioner and would not be perceived as such in China or Canada. The success
of this judicial review application therefore turns on the reasonableness of
those findings as to the genuineness of the Applicant’s belief.
[29]
This Court has expressed the concerns that can
arise in connection with assessing the genuineness of religious belief based on
questioning as to religious knowledge (see Zhang v Canada (Minister of
Citizenship and Immigration), 2012 FC 503, at para 12). However, it has
also acknowledged the deference due to the Board and difficult task assigned to
the Board in such claims (Hou v Canada (Minister of Citizenship and Immigration), 2012 FC 993).
[30]
As I stated in (Gao v Canada (Minister of
Citizenship and Immigration), 2015 FC 1139 at paragraph 26):
[26] My reading of the jurisprudence is that it is not improper for
the Board to engage in religious questioning in an effort to gauge the
genuineness of a claimant’s beliefs, but that such questioning and resulting
analysis must indeed focus on the genuineness of those beliefs and not whether
they are theologically correct. This can be a difficult task for the Board, as
it is entitled to consider whether the claimant holds a level of religious
knowledge that would be expected of someone in the claimant’s position but
should not reach an adverse conclusion based on minutiae or holding the
claimant to an unreasonably high standard of religious knowledge.
[31]
In the case at hand, my conclusion is that the
Board’s reasoning demonstrates that it did not perform this task in a
reasonable manner. Its principal basis for its finding that the Applicant was
not a genuine Falun Gong practitioner was what it considered to be an incorrect
answer to its question whether Falun Gong can cure diseases. The Applicant
stated that Master Li teaches that Falun Gong cannot cure diseases but that it
can cleanse the body and make it healthier. He said it helps a person get rid
of bad things in one’s body, to get rid of karma, and then health would improve
naturally. The Board considered this answer to be incorrect, noting that the
Zhuan Falun states that a practitioner can work though the wrong-doing
committed in past lives, repay his karmic debt, and by doing so, cure illness.
[32]
In his written submissions on this application,
the Applicant quotes excerpts of the Zhuan Falun to support his position that
his interpretation of the teachings of Master Li was correct and that the Board
had misinterpreted the text. The Respondent in turn relies on the same excerpts
to support an argument that the Board was correct and argues that, in any
event, the Board’s interpretation of the text need only be reasonable and
within the range of acceptable outcomes. However, with respect, the fact that
the Respondent must rely on this latter argument supports the Applicant’s
position that the Board has held the Applicant to too high a standard in
assessing the correctness of his understanding of religious principles.
[33]
It is not the Court’s role to engage in a
theological analysis as to which of the parties has offered the most compelling
interpretation of the Zhuan Falun text. The fact that the Respondent relies on
the argument that the Board’s interpretation is a reasonable one, within the
range of acceptable interpretations, supports the conclusion that there are
more than one possible and reasonable interpretations. It accordingly follows
that it cannot be reasonable for the Board to conclude that, because the
Applicant did not express an interpretation consistent with that of the Board,
he did not understand basic Falon Gong principles and therefore is not a
genuine practitioner. While expressed as a finding of the genuineness of his
belief, the Board’s analysis really goes to the soundness of the Applicant’s
theology, in an area in which the argument before this Court suggests there is
room for divergence of theological thought or at least the manner in which such
thought is expressed.
[34]
The Board’s reasoning can accordingly be
compared to that which was rejected by Justice Mandamin in Huang at para 17:
[17] In result, I
conclude the RPD held the Applicant to an unrealistically high standard of
knowledge of Falun Gong and imposed its own understanding of Falun Gong upon
the Applicant. I find the RPD’s conclusion that the Applicant was not a genuine
practitioner of Falun Gong is unreasonable. Since this finding underpins other
findings of the RPD that the Applicant was not sought by the PSB in China, the
RPD decision cannot be sustained.
[35]
I would contrast this case with the decision in Hou
upon which the Respondent relies, in which the Court upheld the Board’s
finding that that the claimant’s knowledge was insufficient to prove he was a
sincere practitioner, based on the perfunctory nature of his responses to
questions posed and his inability to answer other questions. In the case at
hand, the Applicant did not fail to answer the Board’s questions. As pointed
out by the Applicant in argument, he in fact answered it several times and with
consistency. The Board simply disagreed with his answer.
[36]
The Board also based its adverse credibility
finding on the Applicant’s answer to its question what he did which caused his
health to improve. The sequence of the dialogue with the Board is important in
considering this aspect of the Board’s decision. The transcript of the hearing
demonstrates that, after the Applicant testified that it took a little over two
months for him to feel better after he started practising Falun Gong, the Board
asked him what he did in those two months. He responded with an explanation of
following his friend and subsequently teaching himself and said that this was
everything he did that made him feel better. Later in his testimony, the Board
confronts him about the fact he didn’t mention making amends for his
wrongdoing, and he points out that he had earlier referred to the need to get
rid of karma and cleanse his body.
[37]
I agree with the Applicant’s submissions that it
was not reasonable for the Board to reach the conclusion it did based on this
testimony. The Applicant gave a factual answer to what he did in the relevant
two months. It was not obvious from the Board’s question that it was looking
for an explanation of the theory behind how the practice of Falun Gong can lead
to health improvements. His previous answers as to getting rid of karma and
cleansing the body demonstrate an understanding of that theory, and I do not consider
it reasonable for the Board to have found the Applicant’s credibility to be
undermined based on the way he answered this question.
[38]
The Board then goes on to conclude that any
improvement in the Applicant’s health was for reasons other than Faun Gong.
However, whether the Applicant has actually achieved a health benefit from his
religious practice cannot logically be part of an analysis as to whether his
beliefs are genuinely held. In that respect, the Board has erred in the same
manner identified in paragraph 7 of Wang:
[7] The Board focused heavily on the
applicant’s testimony that he was initially motivated to join and practice
Falun Gong as a result of his insomnia. The Board rejected the claim that
his practice yielded positive results in this regard because the teachings of Falun Gong prohibit practicing out of pure
self-interest. The respondent has characterized this as a finding of fact
and therefore deserving of deference. If it is a finding of fact, it is
undoubtedly a perverse one. It is not permissible for the Board to
speculate on the plausibility of a claimant obtaining personal benefits from a
religious or spiritual practice, much less base a negative credibility finding
on such speculation.
[39]
I therefore conclude that the Board’s decision
is unreasonable and must be remitted for redetermination by a different member
of the Board.
[40]
The parties were canvassed and did not propose
any question of general importance for certification for appeal.
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