Docket: IMM-5518-13
Citation:
2015 FC 21
Ottawa, Ontario, January 8, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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JIN YUAN YE
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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]
Mr. Ye challenges a decision of the Refugee
Protection Division [RPD] denying his claim for protection based on his
affiliation with the Falun Gong in China, and his sur place claim based
on his recent adherence to Falun Gong. For the reasons that follow, this
application must be allowed, in part.
[2]
In August of 2010, Mr. Ye helped his aunt to
produce Falun Gong pamphlets. His aunt was a Falun Gong practitioner but he
was not. On January 4, 2011, she told the applicant that many of her Falun
Gong peers were apprehended by the Public Security Bureau [PSB] and both she
and Mr. Ye went into hiding. The PSB visited the aunt’s home, as well as the
home of Mr. Ye’s parents. The PSB had previously arrested three Falun Gong
members, and it accused Mr. Ye of participating in the production of illegal
Falun Gong material.
[3]
Fearing persecution, Mr. Ye fled to Canada and made a refugee claim. While he was not a Falun Gong practitioner when he was
living in China, he says that he has become one since his arrival in Canada.
[4]
The determinative issues for the RPD were the
applicant’s credibility and his lack of affiliation with the Falun Gong. The
negative credibility findings were drawn from the following issues with the
applicant’s evidence:
•
The applicant’s conflicting responses as to
whether he could provide a copy of the Falun Gong pamphlet he had printed;
•
The applicant’s aunt inability to name the
arrested Falun Gong members, and the applicant’s inability to provide proof of
their arrest;
•
The fact that there was no way the applicant
could be identified as a supporter of the Falun Gong from the pamphlet;
•
The lack of clarity as to the number of times
the PSB had visited the applicant’s parents’ home;
•
The lack of a summons or arrest warrant for the
applicant; and
•
The lack of retribution or consequences faced by
the applicant’s parents given his purported affiliation with the Falun Gong.
[5]
The RPD also found that the applicant was not
being persecuted but was only being prosecuted for violating a law of general
application. Further, it was found that the applicant was not facing a
political charge and even if convicted, his punishment would not shock the
conscience of Canadians. As such, it was held that Mr. Ye had failed to
establish a nexus to a Convention refugee ground.
[6]
The RPD held that it did not have to consider a sur
place refugee claim based on his adherence to Falun Gong because it did not
accept his evidence that he was now a Falun Gong practitioner as credible, and
because the RPD imposed a “good faith” requirement
in making a refugee claim and found that Mr. Ye had not established that he had
become a Falun Gong practitioner in good faith.
[7]
I do not accept the applicant’s submission that
the RPD made unreasonable findings with respect to credibility. The totality
of the evidence upon which that finding was made supports it to be reasonable.
[8]
There was no evidence that the PSB could have
identified the applicant from the pamphlet and there is no corroborative
evidence that it had done so. Counsel’s suggestion that the PSB could have
ascertained his identity by other means is mere speculation.
[9]
The RPD found that the lack of adverse
consequences to Mr. Ye’s parents was support for its conclusion that his
evidence was fabricated. Unlike Zhou v Canada (Minister of Citizenship and
Immigration), 2012 FC 1252, here the RPD did refer
to country documentary evidence in the record to support its finding that if
the wanted person is not given up “the family is
subject to punishment as well.”
[10]
I also do not accept the submission that the RPD
unreasonably held that even if the claims made by Mr. Ye were true, that he
would be prosecuted by a law of general application and not persecuted for
political opinion.
[11]
Mr. Ye testified that he was not an adherent or
supporter of Falun Gong. His actions in printing the pamphlets were to assist
his aunt. There is no political opinion nexus because Mr. Ye had no political
opinion. He submits that even if he did not have the requisite political
opinion, there is evidence in the record that “persons
who assist Falun Gong practitioners could face fines, threats and ‘harassment’,
even though they are non-practitioners.” This, he says, is sufficient
to establish the Convention nexus and support his claim for protection.
[12]
It would have been preferable had the RPD
addressed this issue. However, a review of the record shows that the argument
now advanced by Mr. Ye was not made to the RPD. Frankly, the evidence in the
record that he now relies upon is meagre. There is but one reference offered
in his memorandum which refers to “correspondence”
from a representative of the Falun Dafa Association of Canada that mentions
that there have been “reports” of such conduct by
the authorities and then provides one example that is entirely lacking in
specificity or documented support. Accordingly, in my view, the evidence in
the record of persecution to those assisting Falun Gong practitioners is not
sufficient to establish that it is more likely than not that Mr. Ye would be
persecuted for his role is printing pamphlets for his aunt.
[13]
More troubling from the court’s perspective is
the RPD’s discussion of Mr. Ye’s sur place claim. The RPD examined the
corroborative evidence of Mr. Ye’s current adherence to Falun Gong and gave it
little weight. Given that the documents purporting to establish membership were
handwritten and not on letterhead, or notarized, that was a reasonable
assessment of their evidentiary weight.
[14]
The RPD acknowledged that Mr. Ye was able to do
the exercises and respond to questions but notes that “he
was unable to provide any specific details with respect to the benefits of
Falun Gong.” I agree with counsel that Mr. Ye was not asked that
specific question; however, the transcript reveals a lengthy discussion of the
benefits of Falun Gong and Mr. Ye’s responses were very general in nature.
[15]
The basis for the finding of the RPD that he has
no valid sur place claim, appears to be two-fold. First, the RPD “imports” its previous credibility findings into its
assessment of the sur place claim. This has been previously accepted to
be unobjectionable: See Jiang v Canada (Citizenship and Immigration),
2012 FC 1067 and the cases cited therein. However, the previous credibility
finding appears to have been viewed by the RPD through a “good
faith” requirement it claims exists for sur place claims.
Specifically, the RPD imports a requirement of “good
faith” in making a sur place refugee claim based on two sources:
a decision from the New Zealand Refugee Status Appeals Authority (Refugee Appeal
No. 2254/94, Sept 21, 1994) and James Hathaway’s book the Law of Refugee
Status (Toronto: Buttersworths, 1991).
[16]
Justice Gauthier, as she then was, held in Ghasemian
v Canada (Minister of Citizenship and Immigration), 2003 FC 1266 at paras
29 - 31, that such a “good faith” requirement is
not required:
Mrs. Ghasemian says that the Board also erred
when it looked at her motive for conversion and applied the wrong test by
rejecting her claim on the basis that it was not made in good faith i.e. she
did not convert for a purely religious motive. She relies on the decision of
the English Court of Appeal in Danian v. Secretary of State for the Home
Department, [1999] E.W.J. No. 5459 online: QL.
In that case, the English Court of Appeal found
that even though Mr. Danian's "refugee sur place" claim was based on
outspoken political opinions, allegedly made for the sole purpose of supporting
his claim, the tribunal still had the obligation to determine whether he would
face persecution if returned to his country of origin.
Although the decision in Danian, above,
is not binding on this Court, I find its reasoning quite persuasive and agree
that opportunistic claimants are still protected under the Convention if
they can establish a genuine and well-founded fear of persecution for a
Convention ground. (emphasis added.)
[17]
It is impossible to ascertain what impact the
error of imposing a good faith requirement on a sur place claim had on
the RPD’s assessment of Mr. Yi’s claim, and therefore, and to this extent only,
his application must be allowed.
[18]
No question for certification was proposed.
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