Date: 20050407
Docket: IMM-370-04
Citation: 2005 FC 463
Toronto, Ontario, April 7th, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
YUK WAI KO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of adecision of the Refugee Protection Division ("RPD") dated January 23, 2003, wherein the Applicant's claim for refugee protection under s.96 and s.97 of the Immigration and Refugee Protection Act (the "IRPA") was rejected.
[2] The Applicant, a 45-year-old female citizen of China, claims refugee protection on the ground of membership in a particular social group: a practitioner of Falon Gong. The RPD rejected the Applicant's claim on the finding that her evidence that she is a Falon Gong practitioner is not credible. A central feature of arriving at this conclusion is the application of the RPD's specialized knowledge of the practice of Falon Gong. By judging the Applicant's evidence against this knowledge, the RPD found the Applicant's evidence to be "inconsistent" and "unusual".
[3] With respect to reaching such an implausibility finding, great caution should be taken. This point is made by Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, as follows:
¶ _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]
The point is also made in Rule 18 of the Refugee Protection Division Rules:
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SPECIALIZED KNOWLEDGE
Notice to the parties
18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
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CONNAISSANCES SPÉCIALISÉES
Avis aux parties
18. Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la personne protégée et le ministre -- si celui-ci est présent à l'audience -- et leur donne la possibilité de :
a) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion;
b) fournir des éléments de preuve à l'appui de leurs observations.
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[Emphasis added]
[4] In my opinion, the intention of Rule 18 is to have the RPD's specialized knowledge stated on the record in a refugee protection hearing before any conclusions are drawn, thus giving the parties an opportunity to learn of the knowledge to be applied, and to have the opportunity to question it. It is agreed that this practice was not followed in the present case.
[5] In my opinion, since Rule 18 sets a mandatory standard which was not met, the RPD's decision was rendered in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-370-04
STYLE OF CAUSE: YUK WAI KO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: APRIL 6, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: APRIL 7, 2005
APPEARANCES BY:
John Weisdorf, Q.C. FOR THE APPLICANT
Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Weisdorf McCallum Tatsiou
Barristers and Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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