Date:
20130104
Docket:
IMM-2826-12
Citation:
2013 FC 4
Ottawa, Ontario,
January 4, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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BO JIN SU
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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
I. Overview
[1]
Mr
Bo Jin Su claims to be a practitioner of Falun Gong who is being sought by the
Public Security Bureau (PSB) in China. He claimed refugee protection in Canada based on religious persecution in China.
[2]
A
panel of the Immigration and Refugee Board rejected Mr Su’s claim finding that
he is not a genuine Falun Gong practitioner. The Board examined Mr Su’s
knowledge of Falun Gong and determined that his understanding was somewhat
rudimentary, not sufficient to show that he is a true believer. Because it did
not accept that Mr Su was a genuine practitioner, the Board placed no weight on
his supporting documents which purported to show that the PSB had issued a
summons for him and confiscated some of his property. It also gave no weight to
a document showing he had visited a fellow Falun Gong practitioner in prison.
[3]
Mr
Su argues that the Board’s decision was unreasonable. It faulted him for a lack
of knowledge of areas of Falun Gong he admitted he had trouble grasping. This,
however, should not have led the Board to disbelieve the sincerity of his
beliefs, or to reject documents showing the difficulties he will face if he
returns to China. Mr Su asks me to quash the Board’s decision and order another
panel of the Board to reconsider his claim.
[4]
I
agree that the Board’s decision was unreasonable and must, therefore, allow
this application for judicial review.
[5]
The
sole issue is whether the Board’s decision was unreasonable.
II. The Board’s Decision
[6]
The
Board found that Mr Su was able to perform most aspects of the five exercises
of Falun Gong. However, it concluded that that was not enough to show genuine
belief. A practitioner must also understand the underlying philosophy of Falun
Gong.
[7]
Mr
Su explained that he had performed weekly Falun Gong exercises with a group in China over the course of two years, but he did not read anything about the philosophy of Falun Gong
until he came to Canada. He began reading Zhuan Falun, which contains nine
lectures setting out Falun Gong philosophy. The Board asked him about the
concepts explored in that book.
[8]
The
Board asked Mr Su where the concept of karma was covered in Zhuan Falun. Mr Su
incorrectly stated that karma is in Lecture 5. It is in Lecture 4.
[9]
The
Board asked Mr Su about the concept of a “celestial eye”. Mr Su hesitated in
his answer but eventually described its five levels. Asked if his “celestial
eye” was open, Mr Su first said yes then, after a break in the hearing, said
no. The Board found Mr Su’s knowledge to be inadequate.
[10]
The
Board found that Mr Su could perform most Falun Gong exercises and understood
the principles underlying some of them. However, Master Li, the founder of
Falun Gong, requires precision in the exercises and an understanding of the philosophy
underlying them. Mr Su did not possess that level of proficiency.
[11]
The
Board concluded that Mr Su’s knowledge and understanding of Falun Gong could
have been acquired in Canada to support a fraudulent refugee claim.
Accordingly, it gave no weight to photographs showing Mr Su practicing Falun
Gong in Toronto, or documents from China supporting his claim to have been
pursued by the PSB. Fraudulent documents, the Board noted, can easily be
obtained in China.
[12]
Therefore,
the Board dismissed Mr Su’s claim.
III. Was the Board’s
Decision Unreasonable?
[13]
The
Minister reminded me that the Board’s findings are entitled to deference and
that I should only intervene if the Board’s conclusion is neither intelligible
nor supported by the record. The Minister maintains that the Board’s decision
is reasonable as it is based on Mr Su’s shaky testimony.
[14]
I
disagree. In my view, the Board went beyond determining whether Mr Su had a
well-founded fear of persecution or other mistreatment in China. In addition, the Board’s doubts, even if reasonable, should not have led it to give
no weight to the documentary evidence that supported Mr Su’s claim.
[15]
The
Board must obviously determine whether the basis for an applicant’s claim is
credible. Where the essence of the claim is an allegation of religious
persecution, a question that naturally arises is whether the person is actually
an adherent of the named religion. Similar questions sometimes arise in respect
of claims of political persecution, and claims based on sexual orientation.
[16]
The
Board is obviously entitled to explore whether the claimant’s story is
credible, which includes asking questions about the basic tenets of the
religion in question (Zhu v Canada (Minister of Citizenship
and Immigration), 2008 FC 1066, at para 17). A claimant whose knowledge
does not correspond with the duration or depth of their religious activities
may not be believed. But a claimant whose knowledge is flawed or even recently
acquired may still be sincere, and the person may have a well-founded fear of
persecution if removed from Canada. It is no easy task to make these
determinations. Fortunately, the Court relies on, and defers to, the Board to
make them, and hesitates to intervene except where the Board unreasonably
expects more than the particular applicant can deliver. Often, the claimant’s
evidence about other aspects of the application will help the Board determine
the credibility of his or her religious affiliation (Hou v Canada
(Minister of Citizenship and Immigration), 2012 FC 993, at para 54).
[17]
In
this case, the applicant, Mr Su, had a rudimentary education. He testified that
he joined a group practising Falun Gong in China but did not have any exposure
to its underlying philosophy. Based on their activities, he and his fellow
practitioners were sought by the PSB. On arrival in Canada, Mr Su tried to
learn more about the philosophy of Falun Gong but he had trouble understanding
Master Li’s lectures. He had studied them only for about six months at that
point. This was not, in my view, a sufficient basis to conclude that Mr Su was
not genuine about his involvement in Falun Gong. The Court has often counselled
the Board to exercise care in these kinds of cases due to the difficulty of
determining the genuineness of a person’s religious beliefs (Lin v Canada (Minister of Citizenship and Immigration), 2012 FC 288, at para 59-61; Wang
v Canada (Minister of Citizenship and Immigration), 2012 FC 346,
at para 9).
[18]
Here,
the Board’s questioning of Mr Su was not, in itself, objectionable. However, I
cannot find in the record a justifiable basis for the Board’s conclusion that
Mr Su was not a genuine Falun Gong practitioner. He may well be a flawed
follower of Master Li, but his knowledge was fairly extensive, and his
understanding of the philosophy of Falun Gong, while perhaps not profound, was
considerable. There were no other areas of his testimony where the Board
doubted his credibility. Therefore, the Board’s conclusion that Mr. Su was not
a genuine Falun Gong practitioner is unreasonable.
[19]
It
follows, therefore, that the Board erred in discounting the documentary
evidence supporting Mr Su’s claim. The documents from China showed that the PSB was looking for him. The Board did not consider the possibility
that, even if it did not regard Mr Su as a Falun Gong practitioner, the PSB
might pursue him simply because he was performing the exercises. The PSB might
not have been as concerned as the Board was about whether Mr Su could
distinguish the contents of Lecture 5 from Lecture 4 in Zhuan Falun. The documentary
evidence could have confirmed Mr Su’s account of events and were obviously
relevant to his claim.
[20]
Overall,
therefore, I find that the Board’s decision was unreasonable, based both on its
finding that Mr Su’s beliefs were not genuine and its refusal to consider the
documentary evidence supporting his application.
IV. Conclusion and
Disposition
[21]
The
Board unreasonably concluded that Mr Su’s shortcomings as a student of Falun
Gong demonstrated that he was not a genuine practitioner. Further, the Board’s
finding caused it to unreasonably discount the evidence supporting Mr Su’s
claim to fear the PSB in China based on his involvement in a Falun Gong group.
Accordingly, I find the Board’s decision to be unreasonable and must allow this
application for judicial review. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to
another panel of the Board for reconsideration.
2.
No
question of general importance is stated.
“James W. O’Reilly”
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