Docket: IMM-4160-16
Citation:
2017 FC 420
Toronto, Ontario, May 1, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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YUNCHUN WU
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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]
Presently under review is the decision of the
Refugee Appeal Division (RAD) dated September 6, 2016, in which the Applicant’s
claim for refugee protection as an adherent of Falun Gong in China and Canada
was dismissed. The scenario at the base of the Applicant’s claim is that, to
improve his health, he was introduced to Falun Gong by a friend, became an
adherent, and as a result was pursued by the authorities in China which caused
him to flee to Canada.
[2]
On appeal from a negative decision of the Refugee
Protection Division (RPD), on its own independent evaluation of the evidence
before the RPD, the RAD rejected the Applicant’s claim on the basis of
contested implausibility findings resulting in the conclusion that the
Applicant did not begin the practice of Falun Gong in China (Decision, para.
44) and was not a Falun Gong practitioner in China (Decision, para. 58).
[3]
However, as a central feature of the claim for
protection, the Applicant also advanced the argument that, as a Falun Gong practitioner
in Canada, he has a sur place claim of risk to more than a mere possibility of persecution should
he be required to return to China. The RAD dealt with this argument by focussing
on the Applicant’s knowledge of Falun Gong. In the result, the RAD found that the
Applicant is not “a genuine Falun Gong practitioner
because of his lack of knowledge about the basics of Falun Gong”
(Decision, para. 81), and therefore, would not be perceived to be a
practitioner by “any authority in China”, and “on a balance of probabilities could return to China without
fear of persecution for the alleged practice of Falun Gong” (Decision,
para. 83).
[4]
At issue is the evidence from which the RAD has
concluded that a certain level of knowledge is required before a person can be
a “genuine” practitioner of Falun Gong and be
perceived as a practitioner of Falun Gong. The evidence applied to reach
the conclusion is stated in the decision at paragraph 68:
The foundation of Falun Dafa consists of a
body of fundamental knowledge essential for the task of undertaking proper
cultivation towards higher stages of attainment. It comprises Master Li 's
teachings collected in a number of books, the most important of which being
Zhuan Falun (Revolving the Law Wheel); and
China Falun Gong is a good summary of
principle and exercise recommended for the beginners. Much of the teachings are
highly classified knowledge that are hitherto imparted exclusively from master
to trusted disciples since antiquity in China (NDP for China (October 30,
2015).
[Emphasis added]
[5]
The conclusion reached by the RAD on the
basis of the evidence is stated in the decision at paragraphs 69 to 71:
As the foundation of Falun Gong is a body of
fundamental knowledge,[Emphasis in the original] essential for the task
of undertaking proper cultivation, it would be rather difficult for a
purported Falun Gong practitioner to have little of this fundamental knowledge
[Emphasis added]. In the RAD's view, the Appellant who claims to adhere to a
knowledge-based practice may well be different than the expectations of someone
who claims to follow a faith-based belief system. While this does not justify a
microscopic analysis of an Appellant's evidence, it does create the
expectation that the refugee Appellant who purports to be a Falun Gong
practitioner be able to testify to that essential fundamental knowledge
[Emphasis in the original].
The RAD has considered the totality of the
evidence, and although the Appellant does possess some knowledge of Falun
Gong, the RAD finds that his allegations of being a genuine Falun Gong
practitioner are not credible. The RAD found above in this decision,
that the Appellant was not a Falun Gong practitioner in China. Below, the RAD
outlines its concerns regarding the Appellant's knowledge and his practice in
Canada. According to his testimony, the Appellant had some knowledge about
the speeches of Master Li. The Appellant has allegedly practiced Falun Gong
since October 12, 2013 until his RPD hearing on May 4, 2016.
The RAD finds that his knowledge about the
basic philosophies is either incorrect or weak. In order to be considered the [sic]
genuine Falun Gong practitioner in China, this practice should have involved
the study of the philosophies of Master Li Hongzhi.
[Emphasis added]
(Decision, para. 69 to 71)
[6]
In my opinion, the evidence does not support the
conclusion. The evidence establishes that to reach the higher stages of
attainment, a body of fundamental knowledge is essential. The evidence does not
establish that a person who is learning the knowledge cannot be a genuine practitioner
and cannot be perceived as such as found by the RAD. As a result, I find the
RAD’s conclusion on the evidence is erroneous.
[7]
The erroneous conclusion had an unwarranted
detrimental impact on evidence produced by the Applicant. In addition to his
own sworn evidence that he is a practitioner of Falun Gong in Canada, which was
not accepted by the RAD as truthful, the Applicant introduced documentary
evidence attesting to the fact that he is a practicing Falun Gong in Canada.
That evidence was handled in the following manner:
In observing the documentation submitted by
the Appellant, the RAD gives the letter no weight because of the finding above [that
the Appellant would not be considered to be a genuine practitioner because of
his lack of knowledge about the basics of Falun Gong (Decision, para. 81)], plus
the fact that the letter was unsworn, a comment also made by the RPD. There was
no corroborating evidence to support the author’s expertise that would enable
her to evaluate the Appellant’s genuiness as a genuine practitioner (Decision,
para. 82).
[8]
The letter reads as follows;
Conformation [sic] Letter
My name is Li, Dongshu, and a Falungong
practitioner. I went to Meilijing Garden to practice Falungong with team
members on Saturdays and Sundays. I met Wu, Yunchun there on September 7, 2014,
and it was his first time that he practiced Falungong with us in Meilijing
Garden. Since then, we went to Meilijing Garden for practicing Falungong on
Saturdays and Sundays. He practiced and studied Falungong with us and also
attended other team activities.
I confirm that Wu,Yunchun is a real
Falungong practitioner.
Li, Dongshu
November 27, 2014
(Certified Tribunal Record, p.547)
[9]
In my opinion the RAD viewed the letter with
suspicion because it did not conform to the conclusion already made, and, as a
result, it was dismissed out of hand. In my opinion, the RAD had no reasonable
basis to do so. There was no reason to expect that the letter should have been “sworn” and the letter certainly was not filed as an expert
opinion. The letter was filed as a statement corroborating the Applicant’s
sworn evidence, and, as a result, it required proper consideration which it did
not receive.
[10]
As result, I find that the RAD’s rejection of
the sur place claim was
made in reviewable error of fact.
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