Date: 20080423
Docket: IMM-3703-07
Citation: 2008 FC 533
Ottawa, Ontario, April 23, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
XIU JIE ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
application for judicial review is allowed because the negative inferences
drawn by the Refugee Protection Division of the Immigration Refugee Board
(Board) were not properly grounded in the evidence. As such, they do not
withstand review on either the standard of reasonableness or the standard
contained in paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7.
[2] Drawing
an inference is a matter of logic. As stated by the Newfoundland Supreme Court
(Court of Appeal) in Osmond v. Newfoundland (Workers’
Compensation Commission) (2001), 200 Nfld. & P.E.I.R. 203 at
paragraph 134:
Drawing an inference amounts to a
process of reasoning by which a factual conclusion is deduced as a logical
consequence from other facts established by the evidence. Speculation on the
other hand is merely a guess or conjecture; there is a gap in the reasoning
process that is necessary, as a matter of logic, to get from one fact to the
conclusions sought to be established. Speculation, unlike an inference,
requires a leap of faith.
[3] The
same court explained the difference between inference and speculation in
another way:
An inference is different from
speculation. It must be grounded in some proven fact and established to be
probable in the circumstances.
See: Newfoundland
(Workers’ Compensation Commission) v. Miller (2001), 199 Nfld. &
P.E.I.R. 186 at paragraph 11 (Nfld. C.A.).
[4] In
the present case, the Board heard Ms. Zhang’s claim for refugee protection.
She testified that she is a Falun Gong practitioner and, as such, she fears
persecution in the People’s Republic of China (China).
[5] The
Board found that Ms. Zhang neither is, nor was, a Falun Gong practitioner. The
Board reached this conclusion for the following reasons:
1.
First, a negative inference was drawn by the Board from Ms. Zhang’s
apparent lack of knowledge about the book “Nine Commentaries of the Chinese
Communist Party” (Nine Commentaries). The Board noted that Ms. Zhang was
questioned about the content of the book. Her responses, which included the
(correct) statement that the book commented on the corruption of the Chinese
Communist Party, were found by the Board to be incorrect. According to the
Board, if Ms. Zhang believed in the principles of truth, compassion, and
forbearance, then she could have said that she did not read the book instead of
making up her response.
2.
Second, to buttress the first inference, a negative inference was drawn
by the Board from Ms. Zhang’s use of her own genuine passport to leave China.
The Board focused on Ms. Zhang’s testimony that, while she went through three
security checkpoints at the Beijing airport, her snakehead had told her that
her name was not “put through” the computer and that he had bribed “the
customs.” The Board considered that the documentary evidence indicated that a
person leaving China has to pass through at least three security checkpoints
and their passport is checked to see if they are wanted by the Public Security
Bureau. The Board wrote: “The claimant did not know how many people the
snakehead had to bribe. I reject this explanation. Although the People’s
Republic of China does have a problem with corruption, I do not find it
plausible that the smuggler would be able to bribe possibly hundreds of officials,
as there would be no guarantee as to which border police would be on duty or as
to which line the claimant (and smuggler) would be directed to.”
[6] While
not a central finding, the Board also noted that Ms. Zhang failed to show any
depth of knowledge of the Falun Gong book “Zhuan Falun”. The Board did
acknowledge, however, that Ms. Zhang was able to list the topics covered
in each chapter of the book.
[7] Finally,
the Board did accept that Ms. Zhang was able to answer a number of questions
about Falun Gong, to demonstrate a Falun Gong exercise, and to recite some
Falun Gong verses. However, the Board concluded that Ms. Zhang’s knowledge
could have easily been learned in Canada in order to manufacture her claim.
[8] Turning
to the Board’s first inference, the Nine Commentaries is not a Falun Gong
publication. The Board does not explain why it is logical to infer that a
person is not a Falun Gong practitioner because of their inability to answer
questions about the Nine Commentaries. Counsel for the Minister was unable to
point to any evidence that establishes a link between the Nine Commentaries and
Falun Gong practitioners. This inference was not, therefore, properly grounded
in the evidence.
[9] As
to the second inference, the United Kingdom Home Office, in its 2005 Country
Report in respect of China, described “several highly specialized roles” within
the smuggling network, including corrupt public officials. The report noted:
Corrupt public officials
are the authorities in China and many transit countries who are paid to aid
illegal Chinese immigrants. Some corrupt government officials act not only as
facilitators but also as core members or partners of a smuggling organization.
Subjects who belonged to large smuggling groups often indicated that local
Chinese officials headed their groups.
[10] Response
to Information Request CHN36091.E (February 6, 2001) described the security and
exit control procedures at Beijing airport in the following terms:
Theoretically the travel
documents should be checked twice and if travel to Canada 3 times. The
documents would be checked by the airlines when the passenger checks in for the
flight, they are then checked by the Frontier Inspection when the passenger
proceeds to the exit control. On flights direct to Canada the travel documents
are supposed to be checked at the boarding gate by the airline.
The exit control system at Beijing
Airport is computerised and all names are supposed to be checked through the
computer system. Like any system, errors can be made or names not entered
correctly so, people who are wanted should not be able to depart, but it could
happen.
[11] In
view of this evidence, the Board engaged in speculation when it concluded that
possibly hundreds of officials had to be bribed. One official with access to
the computer system would be sufficient.
[12] With
respect to Ms. Zhang’s knowledge of “Zhuan Falun”, Ms. Zhang explained which
lecture in the book was most meaningful to her. She listed the topic covered
by each chapter of the book. There is no evidence in the transcript that Ms. Zhang
was asked any other question about the book. Further questions were required
in order for the Board to conclude, on the evidence, that Ms. Zhang
displayed no in-depth knowledge about this publication.
[13] Finally,
it is possible that Ms. Zhang acquired her knowledge of Falun Gong in Canada.
It is equally possible that her knowledge was acquired in China. There was no
proven fact, and certainly none cited by the Board, from which the Board could
infer that it was more probable that Ms. Zhang’s knowledge was acquired in Canada.
It was, therefore, speculative, and not grounded in the evidence, for the Board
to dismiss Ms. Zhang’s knowledge about Falun Gong. On the evidence it was
possible, but not established to be probable, that her knowledge of Falun Gong was
acquired in Canada.
[14] For
these reasons, the application for judicial review will be allowed.
[15] Counsel
posed no question for certification, and I agree that no question arises on the
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is allowed, and the decision of the
Refugee Protection Division dated August 21, 2007 is hereby set aside.
2.
The matter is remitted for redetermination by a differently constituted
panel of the Refugee Protection Division in accordance with these reasons.
“Eleanor R. Dawson”
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