Docket: IMM-1759-17
Citation:
2017 FC 1020
Ottawa, Ontario, November 8, 2017
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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LIYI LIANG
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WEILIANG HUANG
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Applicants
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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]
This is the judicial review of a decision of the
Refugee Appeal Division [RAD] upholding a decision of the Refugee Protection
Division [RPD] denying the Applicants’ refugee claim based on the female
Applicant’s practice of Falun Gong.
For
purposes of the appeal and this judicial review, the female Applicant is the
key applicant (hereafter called the Applicant) because the claim for her and
her husband is based on her claim to be a Falun Gong practitioner.
II.
Facts
[2]
The Applicants are citizens of China. They fear
persecution based on the Applicant’s Falun Gong activities.
[3]
It was alleged that the Public Security Bureau
[PSB] came to the Applicant’s house, interrogated her husband, and ordered that
he turn his wife in to the authorities. The PSB then left a summons for her at
her house.
The
husband also claimed that the PSB came to his workplace looking for him.
[4]
The couple went into hiding and hired a smuggler
who arranged for their exit from China in September 2015. They then went to the
United States where they did not claim protection but moved to Canada where
they made their refugee claim.
The
Applicant alleges that she continues to practice Falun Gong, which is the basis
for her sur place claim.
[5]
The RPD denied the claim largely on credibility
grounds. With minor exceptions, the RAD made the same findings and reached the
same conclusion as the RPD.
[6]
The RAD concluded that:
•
the exit from China was not credible due to the
Applicant’s lack of knowledge of the smuggler’s method of getting them out of
the country and it was implausible that a single smuggler could elude China’s
Golden Shield system;
•
the documentary evidence, such as the summons, was
not authentic;
•
the Applicant’s Falun Gong identity was not
established due, in part, to her lack of knowledge of key tenets of that
belief;
•
the sur place claim was not made out
because the Applicant was never a Falun Gong believer and had joined a Falun
Gong group in Canada to support her claim; and
•
the Applicant did not have subjective fear as
evidenced by her failure to claim in Korea, Hawaii or Seattle.
III.
Analysis
[7]
The standard of review in this situation is not
controversial. As established in Canada (Minister of Citizenship and
Immigration) v Huruglica, 2016 FCA 93, [2016] 4 FCR 157, on a judicial review
of an appeal from the RPD to the RAD, the standard of review is reasonableness.
[8]
The central issues in this judicial review are
the reasonableness of the findings with respect to the exit from China and with
respect to the Applicant’s identity as a Falun Gong practitioner.
A.
Exit from China
[9]
In finding that the Applicant’s story of leaving
China was not credible, the RAD remarked on the fact that the Applicant did not
know the smuggler’s exit plan or how the smuggling was completed.
The
RAD does not say how a person would necessarily know these details nor did it
consider that smugglers are likely not the most open communicators on how they
conduct their illegal activities.
[10]
There are a number of cases in this Court that
hold that it would be possible to leave China on one’s own passport with the
aid of a smuggler and elude the Golden Shield computer system. There are some
cases which hold the opposite.
While
the jurisprudence of the Court is mixed, it is due in large part to the
different facts in each case.
[11]
The RAD explained away or distinguished the
jurisprudence favourable to the Applicant as it was entitled to do. The
decisions turn on their facts.
[12]
In the present case, the Applicant alleged that
the computer system was avoided because her passport was stamped, not scanned
into the system.
[13]
The RAD never addressed this allegation. It was
obliged to address that evidence and explain why it did not or would not accept
it. This situation and what was required was set out in Yang v Canada
(Citizenship and Immigration), 2016 FC 543, 266 ACWS (3d) 715, not cited by
the parties until the hearing, in which the Court held:
[12] Further, the determination that
the Applicant could not leave China on her own passport is simple speculation
on how one can leave China. There was no evidence that one had to bribe every
official in the “chain of departure”. The decision does not address the
Applicant’s evidence that the customs officer did not scan her passport or type
anything into the computer but merely stamped the passport.
[13] Before finding it implausible to
exit China, the RAD (and RPD) had to address the Applicant’s evidence. If it
believed, there must be an explanation of how it was implausible for her to
leave; if not believed, there must be an explanation for that credibility
finding.
[14] There was sufficient evidence of
corruption of officials and a bribery scheme that the RAD had to explain why it
was not reasonable that such occurred in this case.
As found by Justice
Boswell in Ren v Canada (Citizenship and Immigration), 2015 FC 1402 at
para 16, “[i]t is not implausible that a person could leave China on their own
passport with the assistance of a smuggler who bribed the appropriate person;”.
[14]
This failure to address a critical fact renders
the finding on exit from China unreasonable. However, that error is not
dispositive unless the error influenced other more important aspects of the
decision.
Regardless
of how the Applicants may have left China, the dispositive issue here is the
Applicant’s identity as a Falun Gong practitioner.
B.
Falun Gong Identity
[15]
The RAD’s finding on this point took into
consideration other aspects of the claim, but largely turned on the Applicant’s
ability to answer questions about fundamental concepts of Falun Gong,
specifically “attachments” and “righteous thoughts”.
[16]
The RAD was significantly influenced by the lack
of knowledge the Applicant demonstrated in her answers, which included
describing an attachment, which is similar to a “vice”
in common parlance, as a virtuous quality.
[17]
Questioning an applicant on religious beliefs is
a delicate matter involving subjective viewpoints, theological and
philosophical bases, and language and cultural differences. Such an exercise cannot
be reduced to a checklist or a trivia quiz.
[18]
However, in Gao v Canada (Citizenship and
Immigration), 2015 FC 1139, 259 ACWS (3d) 137, the Court described a
situation very similar to this case:
[25] I believe that Justice Rennie
succinctly captured the applicable principle at paragraph 9 of Wang v Canada
(Minister of Citizenship and Immigration), 2012 FC 346:
[9] The Board is tasked with
assessing the applicant’s credibility and not the soundness of his theology. A
claimant may have a poor understanding of the minutiae of the religious
doctrine but that does not, necessarily, mean his faith is not genuine. While
there is a logical correlation between the depth of religious knowledge and the
credibility of a claim of persecution, here, the deviations from doctrine were,
at best, minor and cannot safely sustain the finding that the applicant was not
a genuine adherent.
[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.
[19]
In my view, the RAD approached this task
properly and fairly and was aware of the delicate nature of this type of
questioning. It was not simply the answers to the specific questions (for
example, the concept of attachments) which influenced the RAD, but the details,
comfort, and sense of familiarity conveyed, as well as the Applicant’s lack of
credibility about her Falun Gong activities in China.
[20]
In respect of the sur place claim, having
cast doubt on the Applicant’s allegation that she practised Falun Gong in
China, it was reasonable for the RAD to incorporate these conclusions into the sur
place analysis. Further, there was no evidence that the Applicant’s
activities in China had or would come to the attention of Chinese authorities.
[21]
It was open to the RAD to conclude that the Applicant’s
Falun Gong activities in Canada were performed to improve her refugee claim and
not the result of a genuine belief.
[22]
Therefore, I conclude that there was a
reasonable basis for the RAD’s finding that the Applicant was not a Falun Gong
practitioner.
[23]
I further conclude that the RAD’s analysis of
the Applicant’s alleged Falun Gong identity was not corrupted by the error
regarding the Applicant’s exit from China. The two issues are distinctly
different in this case, and there was no cross-fertilization between them.
IV.
Conclusion
[24]
This judicial review will therefore be
dismissed. There is no question for certification.
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