Docket: IMM-4321-13
Citation:
2014 FC 1010
Toronto, Ontario, October 23, 2014
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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YUAI LIANG
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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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ORDER AND REASONS
[1]
The Applicant, a citizen of China, applies for refugee protection in Canada for herself, her husband, and their daughter, as a past
Falun Gong practitioner in China, and as a current practitioner in Canada. The Applicant’s claim is based on subjective and objective fear that, should she be
required to return to China, she will suffer more than a mere possibility of
persecution under s. 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27, or probable risk under s. 97.
[2]
By a decision dated June 3, 2013, the Refugee
Protection Division of the Immigration and Refugee Board (RPD) rejected the
Applicant’s claim on a negative finding of credibility with respect to the
evidence tendered by the Applicant. I find that, with respect to the present
Application, the following findings of the RPD are key:
Having found that the claimant was not a
practicing Falun Gong practitioner in China, the panel must consider
whether the claimant is a genuine practicing Falun Gong practitioner in this
country. Having previously found the claimant's testimony with regard to her
Falun Gong affiliation in China not credible, the panel finds, on a balance of
probabilities, and in the context of all of the findings and negative
inferences drawn above, that her claim that she was a Falun Gong practitioner
in China was fraudulent. The claimant has alleged that her desire to initiate
the practice of Falun Gong took place in China. She alleges her continued
practice of her alleged belief system in Canada is based on her adherence to
the practice in China.
Having found that she was not a Falun Gong practitioner in China and having no evidence of conversion in Canada, the panel finds, on a balance of
probabilities, and in the context of the findings noted above, that the
claimant joined a Falun Gong group in Canada only for the purpose of supporting
a fraudulent refugee claim. In the context, as noted above, and on the basis of
the totality of evidence disclosed and in the context of the claimant's
knowledge of Falun Gong, the panel finds that the claimant is not a genuine
adherent of Falun Gong, nor would she be perceived to be in China.
[Emphasis added] (Decision, paras. 48 and 49)
[3]
A key feature of the Applicant’s claim is
expressed in the following sur place claim argument advanced before the RPD:
With respect to the claimants' affiliation with
Falun Gong in Canada, it is submitted that even if the Panel were to have
concerns with respect to the claimants' testimony concerning the events in
China, the member has to consider whether or not the claimants are genuine
Falun Gong practitioners in Canada and would therefore face persecution based
on their identities as a Falun Gong practitioner. In this respect, it is my
submission that the Board needs to be forward looking and that the claimants
have provided evidence in support of their ongoing practice of Falun Gong in Canada and their continued adherence to their belief system.
The claimants provided corroborative evidence
of their practice of Falun Gong in Canada, such as an abundance of photographs
of the claimants at Falun Gong events.
When you look at the totality of the evidence
presented, I would submit that there was enough credible evidence before the
Panel to find that they are in fact a Falun Gong practitioner as of today's
date.
Further, I would submit that there is
sufficient credible and consistent evidence before the Panel for it to find
that these particular claimants are of somebody who is of interest to the PSB
and should they return to China.
With respect to the claimants' objective fear,
it is submitted that the documentary evidence easily resolves this issue. The
documentary evidence is unequivocal in terms of the treatment of Falun Gong
practitioners in China and the fact that the PSB does actively pursue them for
arrest and that they are sentenced. As such, the claimants would face more than
a mere possibility of persecution should they return to China today.
(Tribunal Record, p. 116)
[4]
But for the last phrase emphasised above in
paragraph 49 of the decision, which is a finding unsupported by the evidence
and is, therefore, speculative, the RPD rejected the Applicant’s claim without addressing
the Applicant’s sur place argument. In my opinion, the Applicant’s sur place claim was vitally important,
and as a result, I find that the RPD’s decision was rendered in breach of the
duty of fairness owed to the Applicant.
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