Date: 20060310
Docket: IMM-2792-05
Citation: 2006 FC 314
Toronto, Ontario, March 10th, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
MIN HUA DONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns the rejection by the Refugee Protection Division ("RPD") of the Applicant's claim for protection based on a well-founded fear of persecution in China as a Falun Gong practitioner.
[2] The RPD's rejection is made on the basis of three implausibility findings stated in the following quotation from the decision:
The claimant stated that Master Li moved to New York in 1995, which is incorrect. The correct answer is February 1997. The claimant was asked the significance of March 13, 2002, to which he stated that it was then that Falun Gong practitioners were told not to set foot in the People's Republic of China, which is incorrect. Firstly, Falun Gong was banned in the People's Republic of China in July 1999 and secondly, the correct answer is that the Public Security Bureau were told that date that they could shoot Falun Gong practitioners on sight. In summary, the hesitation in reciting the verses, the claimant's inability to correctly demonstrate one of the exercises and a number of wrong answers to some basic Falun Gong questions, I find that the claimant is not, nor has ever been, a Falun Gong practitioner.
(Decision, p. 3)
[3] The standard the RPD is required to meet in making implausibility findings is stated in Vodics v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1000 as follows:
¶ 10 With respect to making negative credibility findings in general, and implausibility findings in particular, Justice Muldoon in Valtchev v. Canada(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, states the standard to be followed:
6. The tribunal adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a refugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards his testimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of events without evidence to support its conclusions.
7. A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]
[4] In the present case, I find that the RPD met the standard with respect to the issues of the recitation of the Falun Gong verses and performance of the exercises. In each of these areas of inquiry, the RPD states in the decision that its high level of expectation of perfection is based on the fact that, as a Falun Gong practitioner, the Applicant would have recited the verses and performed the exercises hundreds of times, and, therefore, absolute perfection is expected. However, I cannot make the same finding with respect to the Applicant's inability to meet the very high expectation set with respect to precise knowledge of dates.
[5] In my opinion, for the RPD's finding with respect to the dates issue to stand, it would have been necessary for the RPD to state exactly why the Applicant would be expected to have perfect knowledge of the events corresponding to the dates. The decision does not state anything about the Applicant's level of education or mental ability. The decision does not state why the dates concerned would be notorious to all Falun Gong members, which is the standard applied to the Applicant. In my opinion, on the application of the test for implausibility as set out in Valtchev, the RPD's failure to clearly and precisely set the standard of expectation for the Applicant's performance on the dates issue constitutes a reviewable error. As the dates issue is a critical element in the rejection of the Applicant's claim, I find the RPD's decision is patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision, and refer the matter back for redetermination before a differently constituted panel.
There is no question to certify.
"Douglas R. Campbell"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2792-05
STYLE OF CAUSE: MIN HUA DONG v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 9, 2006
REASONS FOR ORDER
AND ORDER: CAMPBELL J.
DATED: March 10, 2006
APPEARANCES:
Shelley Levine FOR THE APPLICANT
Ladan Shahrooz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Shelley Levine FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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