Date: 20101210
Docket: IMM-2131-10
Citation: 2010 FC 1258
Ottawa, Ontario, December 10, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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FU LIN HAN
(A.K.A FULIN HAN)
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division (the Board), dated March 17, 2010, where the Board
found that the applicant is not a Convention refugee nor a person in need of
protection.
[2]
The
application for judicial review shall be allowed for the reasons that follow.
[3]
The
applicant is a citizen of the People’s Republic of China (China) who fears
persecution for having assisted a Tibetan separatist.
[4]
The
determinative issues in this claim are the credibility of the claimant’s oral
testimony and Personal Information Form (PIF) as well as his risk of
persecution if he were to return to China.
[5]
The
Board’s decisions on credibility should be reviewed on a standard of
reasonableness (Aguirre v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] F.C.J.
No. 732 (QL) at para 14). Accordingly, the Court will only intervene if the
decision does not fall within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[6]
In
this case, the Court cannot accept that the Board's negative findings fall
within a range of possible and acceptable outcomes.
[7]
First,
the Board, relying on its own experience in hundreds of cases (para 6 of the
decision) that people absconding from the police use a taxi or a passing
motorcyclist to take them away from pursuing police, assumes that the
applicant's employee would want to get away from pursuing police as quickly as
possible. This may be true, but in this case there is a reasonable explanation
why the employee chose to wait for the applicant. The answer can be found at
page 483 of the tribunal's record. The applicant asked that question to his
employee and this latter replied that he was afraid to be caught by the police
because there had been a meeting about a demonstration, the next day and it was
discovered by the police. There was a raid, while running to escape he fell
and hurt his arm and his wrist got dislocated. The Court finds that this is a
plausible explanation.
[8]
Second,
in reading the transcript, the Court cannot accept the Board's conclusion that
the applicant gave an inconsistent testimony concerning the date that the
police was aware that its employee was allegedly involved in Tibetan separatist
activity (tribunal’s record, pages 487 and 488).
[9]
Third,
the Board stated that it was either implausible or not credible that the
applicant would contact a stranger who advertises travel services in the press
and told this man about his alleged problem before he was aware if this man was
involved in fraudulent travel documents. At page 491 of the tribunal’s record,
the applicant explains that he had to tell the truth to this stranger because
he was afraid that when he would pass customs, he would be arrested. The
negative inferences drawn by the Board on this is not supported by the
evidence.
[10]
Finally,
the Court is of the opinion that this matter should be remitted for
reconsideration because at paragraphs 11, 12 and 13 of its decision, the Board
made an analogy between assistants of Falun Gong practitioners and Tibetan
supporters, concluding that they were in no greater jeopardy than those who
assist Falun Gong practitioners. In so doing, the Board referred to country
conditions documents on Falun Gong practitioners.
[11]
There
is not a word in the decision about country conditions documents related to China's human
rights record in Tibetan areas of China (pages 82, 113, 332 and
477, tribunal's record). No analysis was made by the Board as to whether or
not these country conditions could apply to the applicant.
[12]
The
Court's intervention is warranted.
[13]
The
parties did not propose question for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review be allowed. The matter
is remitted back for re-determination by a newly constituted Board. No
question certified.
“Michel
Beaudry”
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