Date: 20021023
Docket: IMM-5531-01
Neutral citation: 2002 FCT 1107
Toronto, Ontario, Wednesday, the 23rd day of October,2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
XIAO LING YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD) dated November 13, 2001, wherein the CRDD determined that the Applicant was not a Convention refugee.
[2] The Applicant is a citizen of China. She claims a well-founded fear of persecution based on her association with the Falun Gong. The CRDD found that the Applicant was not credible and did not believe that she faced a serious threat of persecution upon her return to China. It said:
As I find the claimant's testimony not persuasive, I find that she is a practitioner of convenience, for the sake of her refugee claim, and not out of conviction. Such a person would not continue her activities upon her return to China.
[3] With regard to the Applicant's evidence not being persuasive, the CRDD made the following statement:
The claimant was given ample opportunities to provide details in her oral testimony. She did not volunteer information, she had to be asked many questions, and her replies sounded wooden and rehearsed She was invited to show her knowledge allegedly acquired in 4 years of continuous practising by describing how she would persuade somebody to join. Her very short answers were full of platitudes, such as that the basic philosophy behind Falun Gong consists of dispelling selfish thoughts and cultivating one's mind and heart. I found that her performance in the hearing room contradicted the statement that she was a long-time practitioner of Falun Gong who was involved in organizing and teaching.
[4] In my opinion, before the conclusion can be reached that the Applicant did not meet the standard of knowledge set by the CRDD, the CRDD must specifically state the content of the standard expected. That is, either from the CRDD's own knowledge acquired off the record, or from the evidence on the record itself, the content of the Falun Gong belief system must be precisely established in order that the Applicant's statements about it be properly judged.
[5] In testing the Applicant's knowledge of Falun Gong, the CRDD panel member used a mechanism which is evident in the following passage in the transcript of the hearing:
PRESIDING MEMBER: So, now pretend I'm somebody that is interested, so now persuade me that I should join, what would you tell a newcomer that they should know to join?
CLAIMANT: I learned to teach the newcomers.
PRESIDING MEMBER: That's not what I'm asking. We're doing a little bit of role playing here. I want to -- I'm interested in Falun Gong, but I don't really know too much, and you're now to persuade me that I should join.
CLAIMANT: First of all I would talk to that person about the benefits to be derived from practice in Falun Gong.
PRESIDING MEMBER: Okay. So, tell me the benefits?
COUNSEL: I'd just like to remind you that a couple of times at the beginning of this hearing Mr. Sukul had to reassure my client because he thought she was nervous. I believe that this is --
PRESIDING MEMBER: But she is just coming around now, she's actually looking at me, and she's telling me.
COUNSEL: I'd just like to keep that in mind.
PRESIDING MEMBER: Yes. Yes. So, tell me about the benefits?
CLAIMANT: That practising Falun Gong does not only bring benefits to one's health, it can also teach people to be good persons, to abide by the principles of truth, compassion and a forbearance.
PRESIDING MEMBER: And how do I go about getting that?
CLAIMANT: Truth, speak the truth, honesty. Compassion, but perform good deeds, and be -- stick to your principles or morality.
PRESIDING MEMBER: And what does that mean?
CLAIMANT: Try to be as helpful as possible to others. Do not harbour evil thoughts.
PRESIDING MEMBER: Now, how am I supposed to achieve all that?
CLAIMANT: That's cultivate your mind and your heart.
PRESIDING MEMBER: Yes, but how?
CLAIMANT: Try to abide by the principles all the time.
PRESIDING MEMBER: So, that's it?
CLAIMANT: Cultivate. Cultivate your mentality, your spirituality.
PRESIDING MEMBER: Just thinking about it will make a difference?
CLAIMANT: Try to help others as much as possible. And have high ideals.
PRESIDING MEMBER: So, are those the basics of Falun Gong, is that what you're saying?
CLAIMANT: And also try to despair from your mind the selfish thoughts.
PRESIDING MEMBER: And where did you learn all that?
CLAIMANT: First of all that's very important, the cultivation of your mind and your spirituality.
PRESIDING MEMBER: What did I just ask you? Can you repeat the question that I asked you?
INTERPRETER: I'm sorry.
PRESIDING MEMBER: No, just ask her to repeat the question that I asked her?
CLAIMANT: I do not fully understand.
PRESIDING MEMBER: Well, I just wanted you to repeat the question that I asked you. Because you answered -- I asked you a question, but you answered something completely different. So, I was wondering whether you understood my question, and that is why I want you to repeat the question? The question was, where did you learn all that?
CLAIMANT: In China.
PRESIDING MEMBER: In China. And how did you learn all that?
CLAIMANT: First of all from my friend, and also from reading books related to Falun Gong.
(Tribunal Record, pp.254-257)
[6] In my opinion, for the mechanism to be properly applied, it was incumbent on the CRDD to specifically state the expectation of knowledge that the Applicant did not meet. Since this was not done in the reasons for the decision, I find that there is no basis for the conclusion reached by the CRDD panel member as quoted above. In fact, I find that the conclusion reached is remarkably unfair and amounts to conjecture.
[7] As a result, in my opinion, the decision is patently unreasonable.
ORDER
Accordingly, the decision is set aside and the matter is referred back for redetermination by a differently constituted panel.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of counsel and solicitors of record
DOCKET: IMM-5531-01
STYLE OF CAUSE: XIAO LING YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, OCTOBER 23, 2002
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, OCTOBER 23, 2002
APPEARANCES BY: Mr. Hart A. Kaminker
For the Applicant
Ms. Allison Phillips
For the Respondent
SOLICITORS OF RECORD: Kranc & Associates
500 - 425 University Ave.
Toronto, Ontario
M5G 1T6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20021023
Docket: IMM-5531-01
BETWEEN:
XIAO LING YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
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