Date: 20071022
Docket: IMM-5613-06
Citation: 2007 FC 1087
Ottawa, Ontario, October 22, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ZI JUN LI
YING CHENG
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated September 28,
2006 concluding that the applicants are not Convention refugees or persons in
need of protection.
FACTS
[2]
The
applicants are a married couple claiming refugee protection in Canada on account
of their involvement in illegal Falun Gong activities in the People’s Republic
of China (China). Both
applicants were identified by the Board to be citizens of China.
[3]
The
applicants claim to have begun practicing Falun Gong in December 1998 after
being introduced to it by their friend, Qiang Wang. The applicants state that
they were attracted to the practice because they felt it would help their back
problems and arthritis. They were instructed by Qiang Wang, practiced Falun
Gong in the park with others, and talked about their feelings and experiences
with Falun Gong every Sunday. The applicants maintain that, gradually, Falun
Gong became part of their lives and changed their lives.
[4]
On
July 12, 1999, the Chinese government announced that Falun Gong was an illegal
organization and attempted to suppress its practitioners. Shortly thereafter,
the applicants heard that their friend and teacher, Qiang Wang, had been
arrested for being involved in Falun Gong. On August 7, 1999, the male
applicant was arrested at work and taken to the police station where he was
handcuffed, forced to kneel down by the wall, and given nothing to eat. The
applicant was asked about his relationship with Qiang Wang and his involvement
in Falun Gong. The applicant remained in custody for five days and claims that
he was only released after his parents made a payment to the police and after
he signed a statement of repentance indicating that he would discontinue
practicing Falun Gong. In her Personal Information Form (PIF), the female
applicant also claims to have been arrested on August 7, 1999, and to have been
treated in a manner similar to her husband.
[5]
After
his arrest, the male applicant was fired from his job and was forced to join a
class to repent for his involvement in Falun Gong. The male applicant also
claims that he has been unable to find regular employment, and that he and his
wife have been forced to sell their home.
[6]
On
July 10, 2005, the applicants sought the aid of an agent and came to Canada in an
attempt to gain refugee status.
Decision under review
[7]
On
September 28, 2006, the Board concluded that the male applicant was not a
credible and trustworthy witness and, therefore, that the “claimants were not
Falun Gong practitioners in China.” The Board’s findings were based on
several grounds, including:
1)
plausibility
concerns regarding when and with whom the applicants practiced Falun Gong in China between 1999
and 2005;
2)
the
applicants’ failure to answer questions that any Falun Gong practitioner would
reasonably be expected to answer;
3)
significant
omissions from the applicants’ PIFs when compared to the male applicant’s
testimony before the Board; and
4)
the
applicants’ long delay in leaving China.
ISSUE
[8]
The
issue raised in this application is whether the Board erred in concluding that
the applicants are not Convention refugees or persons in need of protection.
STANDARD OF REVIEW
[9]
With respect to the Board’s factual findings, including
determinations of credibility, the standard of review is patent
unreasonableness. Only if the Board’s findings are unsupported by the evidence
before it will the decision under review be patently unreasonable. Otherwise,
the Court will not revisit the facts or weigh the evidence before the Board: Jessani v. Canada (Minister of Citizenship and Immigration),
2001 FCA 127, 270 N.R. 293 at paragraph 16. For plausibility findings, as long
as the inferences drawn by the panel are not so unreasonable as to warrant
intervention, its plausibility findings are not open to review (Aguebor v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732
(C.A.) at paragraph 4).
ANALYSIS
Issue: Did the Board err
in concluding that the applicants were not Convention refugees or persons in
need of protection?
[10]
The
Board’s decision to reject the applicants’ refugee claims centred primarily on
the finding that the male applicant was not a credible and trustworthy witness.
As the Board stated:
The
[Board] determines that the principal claimant, on a balance of probabilities,
is not a credible and trustworthy witness and, on a balance of probabilities,
the claimants were not Falun Gong practitioners in China….
The
panel has serious credibility concerns with respect to the
central aspect of the claimants’ claims with respect to the claimants’ being
Falun Gong practitioners.
[11]
The
applicants submit that three of the Board’s credibility findings were flawed.
Specifically, the applicants argue that the Board erred in concluding:
1)
that
it is not plausible that a true Falun Gong practitioner would not practice
every day, but only when they had the time;
2)
that
it is not plausible that the applicants would wait nearly six years before
leaving China; and
3)
that
it is not plausible that the male applicant would meet with fellow Falun Gong
practitioners, but not practice together.
[12]
With
respect to the first submission that the Board erred in finding that it is not
plausible that a true Falun Gong practitioner would not practice every day, I
am not persuaded that this is a patently unreasonable finding.
[13]
In
relation to this plausibility finding, the Board stated:
The panel notes that the principal
claimant did testify at his hearing that he did continue to practice Falun Gong
in China after July 2005 when he left China but he did not practice
every day but when he had time he practiced by himself at home. The panel does
not find it plausible that a true Falun Gong practitioner would not practice
every day and would only practice when he had time.
(Emphasis added.)
Upon reading the transcript, it is clear
that the Board made a patently unreasonable finding of fact in the above
passage. The applicant testified he did continue to practice Falon Gong in China after his
arrest up until July 2006 (when he left China), but that
“after I was released, I didn’t practice every day. Whenever I have time, I
practiced by myself at home. The error in the Board’s reasons is simply the
Board mistakenly used the word “after”, instead of the word “before”. With
respect to the plausibility finding, that a true Falon Gong practitioner would
practice every day and not when he had time, this is not so unreasonable as to
warrant the Court’s intervention. It is not unreasonable that a person devoted
to Falon Gong would practice every day even in private when he couldn’t practice
Falon Gong in public.
[14]
With
respect to the applicants’ submission that the Board erred in concluding that
it was not plausible that the applicants would wait nearly six years before
leaving China, this is a plausibility
finding reasonably open to the Board on the evidence, and no reviewable error
was committed. If the applicants were being persecuted, they would have tried
to leave earlier.
[15]
With
respect to the applicants’ third submission, I find the Board erred in concluding
that it is implausible that true Falun Gong practitioners would meet every week
but not practice together. In its reasons, the Board states:
In addition, the principal claimant did
testify that he did practice in a group after his release but indicated, “Yes,
I met in a group.” They met at the [Public Security Bureau] station and yes
they met every week but they never practiced together. The panel does not find
it plausible that the principal claimant would meet every week with fellow
Falun Gong practitioners and not practice together.
In my opinion, after reviewing the
testimony at the hearing, it was not reasonably open to the Board on the
evidence to reach such a conclusion. The male applicant’s testimony outlines
that he and the other Falun Gong practitioners met weekly at the Public
Security Bureau because they were ordered to do so by the police. These
meetings were, according to the applicants, mandated, and not any kind of
personal gathering related to the practice of Falun Gong.
[16]
However,
this error alone is not enough to vitiate the Board’s conclusion that the
applicants were not persecuted as Falun Gong practitioners, and came to Canada for that
reason. As the respondent states, there are a number of other grounds upon
which the Board made its determination that the applicants failed to establish
their persecution as Falun Gong practitioners, many of which are significant.
One such ground warrants mentioning; namely, the fact that there were
significant derivations between the applicants’ PIFs and the male applicant’s
testimony before the Board. For instance, the male applicant testified that
after his original arrest on August 7, 1999, he was arrested approximately ten
other times between 1999 and the end of 2002. Nowhere in the applicant’s PIF is
there any mention of these subsequent arrests, leading the Board to draw a
negative credibility finding with respect to this omission. In my opinion, the
Board reasonably concluded that such a significant event “should have been
included in the claimant’s PIF narrative.”
[17]
Finally,
the applicants also submit that the Board erred in finding that the female
claimant is not a Falun Gong practitioner, as there was not “one scintilla of
evidence before the Board to support that conclusion.” The applicants’ argument
is premised on the view that the Board cannot determine that the female
claimant is not a Falun Gong practitioner based solely on the finding that the
principal claimant is not a credible and trustworthy witness. In support of
this argument, the applicants point to Alam v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1751 (QL), where Mr.
Justice Rouleau held at paragaraph 18:
¶ 18 It has been clearly
established that a refugee tribunal must have regard to the totality of
evidence before it when assessing the credibility of a refugee claimant. The
tribunal can reject a claim on the ground that the claimant is not credible but
it must state that ground clearly and it must give reasons for the credibility
finding.
[18]
The
respondent, however, asserts that because the female applicant’s claim and
narrative were substantially similar to her husband’s claim, the Board did not
need to explain separately the reasons for rejecting her claim. In support of
this, I point to Akramov v. Canada (Minister of Citizenship and Immigration),
2006 FC 122, 287 F.T.R. 93, where Mr. Justice Beaudry concluded that since the
Board found that the principal applicant had not clearly established the
circumstances surrounding his claim, it was not unreasonable for the Board to
conclude that the secondary applicants had not established their claims either.
[19]
I
must therefore conclude that the Board’s decision is not patently unreasonable,
and that this application must accordingly be dismissed.
[20]
Both
parties and the Court agree that this application does not raise a question
which should be certified for an appeal.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for judicial review is dismissed. No
question is certified.
“Michael
A. Kelen”
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