Docket: IMM-806-15
Citation:
2016 FC 33
Ottawa, Ontario, January 8, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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ZHENGUO JIA
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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
I.
Introduction
[1]
Zhenguo Jia is a citizen of China. He sought
refugee protection in Canada on the ground that he is a practitioner of Falun
Gong. The Refugee Protection Division [RPD] of the Immigration and Refugee
Board found that Mr. Jia was not a credible witness and was not a genuine Falun
Gong practitioner. The RPD therefore determined that he is neither a Convention
refugee under s 96 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], nor a person in need of protection as defined by s 97 of the
IRPA. Mr. Jia has brought an application for judicial review of this decision
pursuant to s 72 of the IRPA.
[2]
For the reasons that follow, I have concluded
that the RPD’s analysis sometimes lacked justification and transparency.
However, the RPD’s finding that Mr. Jia was not a genuine practitioner of Falun
Gong falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law. As this was the determinative issue
before the RPD, the application for judicial review must be dismissed.
II.
Background
[3]
Mr. Jia is 39 years old. He is from Hebei
Province in China. His claim for refugee protection was based on the following
assertions.
[4]
In September 2010, Mr. Jia began to suffer back
pain due to his work in the construction industry. In December 2011, Mr. Jia’s
friend Lin Hui informed him of the health benefits of practising Falun Gong, a
spiritual movement that is outlawed in China. In February 2012, Mr. Jia joined
Mr. Hui’s practice group and began to learn the Falun Gong exercises.
[5]
On July 29, 2012, Mr. Jia was practising his new
faith in a group session when it was raided by the Chinese Public Security
Bureau [the PSB]. Mr. Jia escaped and went into hiding. The PSB subsequently
searched his family’s home and brought his wife to their offices for
questioning. The PSB also arrested Mr. Hui and another member of Mr. Jia’s
practice group.
[6]
The PSB visited Mr. Jia’s home more than 20
times. On August 2, 2012, they left a Notice of Summons with his wife.
[7]
Fearing the PSB, Mr. Jia left China with the
help of a smuggler. He arrived in Canada on October 24, 2012, and submitted a
claim for refugee protection on October 26, 2012.
III.
The RPD’s Decision
[8]
The RPD was not satisfied that Mr. Jia was a
genuine practitioner of Falun Gong, either in China or in Canada, or that he
was sought by the PSB. The RPD found that Mr. Jia had fabricated his story to
support his refugee claim, and concluded that he would not face a serious risk
of persecution if he returns to China.
[9]
First, the RPD noted that Mr. Jia struggled to
provide answers to basic questions, and showed a lack of understanding of the
fundamental principles of Falun Gong.
[10]
Second, the RPD found many aspects of Mr. Jia’s
version of events to be implausible. For example, the RPD did not accept that
the PSB would fail to issue an arrest warrant after visiting his home more than
20 times, particularly given that he had not responded to the Notice of
Summons. The RPD placed little weight on the documents submitted by Mr. Jia to
corroborate his claim, because it determined that they were likely fraudulent.
[11]
Third, Mr. Jia testified that his family
continued to lead their lives free of intimidation by the PSB. The RPD found
this to be inconsistent with documentary evidence indicating that family
members of Falun Gong practitioners are subject to punishment and persecution.
[12]
Finally, the RPD rejected Mr. Jia’s claim that
his attendance at a Falun Gong event in Toronto made him a sur place
refugee.
IV.
Issues
[13]
This application for judicial review raises the
following issues:
A.
Was the RPD’s finding that Mr. Jia was not a
genuine practitioner of Falun Gong reasonable?
B.
Was the RPD’s finding that Mr. Jia is not sought
by the PSB reasonable?
C.
Was the RPD’s finding that Mr. Jia was not a sur
place refugee reasonable?
V.
Analysis
[14]
The RPD’s findings regarding Mr. Jia’s
credibility and his sur place claim are both subject to review by this
Court against the standard of reasonableness (Li v Canada (Minister of
Citizenship and Immigration), 2011 FC 941 at paras 14-15; Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
A.
Was the RPD’s finding that Mr. Jia was not a
genuine practitioner of Falun Gong reasonable?
[15]
A refugee claimant’s sworn testimony is presumed
to be true unless there are reasons to doubt its veracity (Maldonado v Canada
(Minister of Employment and Immigration), [1979] FCJ No 248, [1980] 2 FC
302 at para 5). In assessing a refugee claimant’s sworn testimony, the RPD is
entitled to consider its plausibility, and to apply common sense and
rationality (Ye v Canada (Minister of Citizenship and Immigration), 2014
FC 1221 at para 29). Where the evidence before the RPD is inconsistent with the
claimant’s sworn testimony, the presumption of truth is rebuttable (Adu v
Canada (Minister of Employment and Immigration), [1995] FCJ No 114, 53 ACWS
(3d) 158 (FCA)).
[16]
Mr. Jia says that the RPD engaged in an
overly-stringent examination of his religious knowledge. He relies on several
decisions of this Court which hold that the threshold for an adequate knowledge
of a religion is low (e.g., Huang v Canada (Minister of Citizenship and
Immigration), 2008 FC 346 at paras 10-11 [Huang]; Lin v Canada
(Minister of Citizenship and Immigration), 2012 FC 288 at paras 59-61).
[17]
The RPD is entitled to probe whether a
claimant’s story is credible by asking questions about the basic tenets of his
faith (Zhu v Canada (Minister of Citizenship and Immigration), 2008 FC
1066 at para 17). It is open to the RPD to disbelieve a claimant whose
knowledge does not correspond to the duration and depth of his religious activities.
However, it is unreasonable for the RPD to assess the genuineness of a
claimant’s religious belief by engaging in what amounts to a trivia quiz (Wu
v Canada (Citizenship and Immigration), 2009 FC 929 at para 22).
[18]
In this case, the questions put to Mr. Jia were
not particularly difficult. Contrary to Huang, I do not believe that the
RPD held Mr. Jia to a “better than average working
knowledge” of the principles of Falun Gong. Rather, the RPD assessed
whether Mr. Jia had “a reasonable working knowledge of
the contents of the text and some of its applications to his chosen lifestyle,
even if he did not understand all of its substance.” The RPD’s factual
determinations are entitled to deference by this Court, and this Court will
intervene only if the RPD unreasonably expects more than a particular claimant
can offer (Su v Canada (Minister of Citizenship and Immigration), 2013
FC 4 at para 16, citing Hou v Canada (Minister of Citizenship and
Immigration), 2012 FC 993 at para 54 [Hou]). It is true that the RPD
asked Mr. Jia some questions that veered towards trivia, such as “where in the text Zhuan Falun did Master Li discuss the
concept of health?” However, for the most part the RPD asked open-ended
questions about how Mr. Jia applied the principles of Falun Gong to his daily
life. On balance, I am satisfied that the RPD did not engage in a microscopic
analysis of the sincerity of Mr. Jia’s religious beliefs.
[19]
The RPD observed that Mr. Jia’s practice of
Falun Gong exercises was “simply analogous to the practice
of Qigong, an ancient Chinese form of training […] and as Master Li the founder
of Falun Gong has indicated, does not define that individual as a genuine Falun
Gong practitioner.” In so doing, the RPD appears to have repeated the
error found in Huang v Canada (Minister of Citizenship and Immigration),
2012 FC 1002 at para 16, where Justice Mandamin held that it was unreasonable
to discount a claimant’s Falun Gong exercises “as no
better than qigong exercises” because this involves interpreting the claimant’s
subjective understanding of a religious requirement, contrary to the Supreme
Court of Canada’s decision in Syndicat Northcrest v Amselem, 2004 SCC
47.
[20]
However, this was not the sole basis for the
RPD’s finding that Mr. Jia was not a genuine practitioner of Falun Gong. The
RPD based its assessment on Mr. Jia’s sworn testimony, his credibility, and the
discrepancy between his evidence and established facts pertaining to the
practice of Falun Gong. The RPD was principally concerned about Mr. Jia’s inability
to provide spontaneous answers to questions, and his inability to “identify simple common aspects of his practice of Falun Gong.”
A review of the transcript confirms that Mr. Jia was prompted on almost every
question. I am therefore satisfied that the RPD’s rejection of Mr. Jia’s
credibility, considered as a whole, falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
B.
Was the RPD’s finding that Mr. Jia is not sought
by the PSB reasonable?
[21]
Mr. Jia argues that the RPD’s conclusion that he
is not sought by the PSB was based on findings that were factually incorrect
and improperly speculative. He disputes the RPD’s finding of implausibility
regarding the PSB’s failure to issue an arrest warrant for him after more than
20 visits to his home. He also takes issue with the RPD’s rejection of the
Notice of Summons and prison visitation card as fraudulent.
[22]
The RPD acknowledged that the documentary
evidence regarding the issuance of arrest warrants is inconsistent. The RPD
cited only one document, “Criminal Procedure Law of the People’s Republic of
China”, to support its finding that a Notice of Summons is “the documentary basis for the subsequent issuance of an
arrest warrant.” The RPD did not refer to a Response to Information
Request [RIR] dated July 6, 2010, which states that the issuance of arrest
warrants is “rare.” The RPD’s conclusion appears
to rest on assumptions and subjective beliefs about how the PSB would
rationally behave in the circumstances. I agree with Mr. Jia that the RPD’s
finding on this point was improperly speculative.
[23]
I acknowledge that it may have been open to the
RPD to find that the PSB’s inaction was inconsistent with Mr. Jia’s testimony
regarding the number of times that the PSB visited his home (Cao v Canada
(Minister of Citizenship and Immigration), 2012 FC 1398 at para 35; Zhang
v Canada (Minister of Citizenship and Immigration), 2011 FC 654), and Mr.
Jia’s admission that his family had not been intimidated by the PSB. The RIR dated
October 18, 2013, states that family members of Falun Gong practitioners suffer
various degrees of persecution, and Chinese authorities have detained
supporters of Falun Gong members in Hebei Province. However, this Court has
warned against unwarranted findings of implausibility in this regard: Chen v
Canada (Minister of Citizenship and Immigration), 2014 FC 749 at paras
53-54.
[24]
The RPD provided three reasons for rejecting the
authenticity of the documents that Mr. Jia offered to corroborate his claim: (i)
the availability of fraudulent documents throughout China; (ii) Mr. Jia’s
departure from China using a fraudulent Canadian visa; and (iii) the fact that
the Notice of Summons was not produced “with any known
security features and is printed on plain stock.” The RPD expressed
similar concerns regarding the prison visitation card, noting that the document
was a photocopy and not an original; the photocopy did not permit a clear view
of the photograph or the contents of the document; information may have been
written over the official stamp; and the seal was not continuous.
[25]
The RPD’s analysis raises a number of concerns.
First, I agree with Mr. Jia that the general availability of fraudulent
documents in China is not sufficient reason to doubt the authenticity of
documents (Lin v Canada (Minister of Citizenship and Immigration), 2012
FC 157 at para 53). Second, I agree that the RPD’s adverse finding of
credibility based on Mr. Jia’s past use of a fraudulent document in China was
unreasonable (Rasheed v Canada (Minister of Citizenship and Immigration),
2004 FC 587 at para 18). Third, it appears that the RPD began with the premise
that Mr. Jia’s credibility was doubtful, and then proceeded to assess the
genuineness of the corroborative documents in a cursory manner.
[26]
In my view, the RPD’s reasons for finding that
Mr. Jia was not sought by the PSB were lacking in justification and
transparency. However, given its reasonable finding that Mr. Jia was not a
genuine practitioner of Falun Gong, this is insufficient to overturn the RPD’s
decision.
C.
Whether the RPD’s finding that Mr. Jia was not a
sur place refugee was reasonable
[27]
The RPD is entitled to conduct its sur place
analysis in light of its finding that the original refugee claim is not genuine
(Zhou v Canada (Minister of Citizenship and Immigration), 2015 FC 5 at
para 23 [Zhou]; citing Hou at para 57). The RPD must nevertheless
determine, either implicitly or explicitly, whether events that have occurred
since a claimant’s departure from his country of origin have caused him to
become a member of a persecuted group, and whether he would now face
persecution upon his return.
[28]
I am satisfied that the RPD properly considered
the evidence that was before it, and reasonably concluded that Mr. Jia acquired
his knowledge of Falun Gong following his arrival in Canada “in order to advance a fraudulent refugee claim” (Meng
v Canada (Minister of Citizenship and Immigration), 2015 FC 365 at para
27). It was therefore reasonable for the RPD to place little or no weight on
photographs of Mr. Jia attending a protest outside the Chinese consulate, and
unsworn letters from alleged Falun Gong practitioners (Zhou at paras
22-25).
[29]
Although the country condition reports confirm
that Chinese authorities are motivated to monitor Falun Gong practitioners in
Canada and have the means to do so, there was no evidence to suggest that Mr.
Jia had himself been identified by Chinese authorities. When Mr. Jia was asked
whether he was worried about participating in such activities in Canada, he
said that he was not. This led the RPD to find that Mr. Jia did not have a
well-founded, subjective fear of persecution based upon his actions in Canada.
In my view, this finding was reasonable.
VI.
Conclusion
[30]
For the foregoing reasons, the application for
judicial review is dismissed. No question is certified for appeal.
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