Docket: IMM-587-15
Citation:
2016 FC 258
Ottawa, Ontario, February 29, 2016
PRESENT: The Honourable Mr. Justice O'Reilly
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BETWEEN:
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XINGCHANG LIANG
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BAOYUAN LI
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HAILIN LI
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Ms Xingchang Liang and her two children sought
refugee protection in Canada based on their fear of persecution in China for being practitioners of Falun Gong. Ms Liang says that her husband, also a
practitioner, was arrested and died in police custody. She suspects that his
body was harvested for organs because it was cremated without the family’s
consent.
[2]
A panel of the Immigration and Refugee Board
dismissed the applicants’ refugee claim based mainly on a lack of reliable
evidence. The applicants contend that the Board’s expectation that they should
have been able to obtain documentary evidence to support their allegations was
unreasonable. In addition, they maintain that the Board unreasonably discounted
the other evidence in their favour. They ask me to quash the Board’s decision
and order another panel to reconsider their claims.
[3]
I agree with the applicants that the Board’s
decision was unreasonable. I will therefore allow this application for judicial
review.
[4]
The sole issue is whether the Board’s decision
was unreasonable.
II.
The Board’s Decision
[5]
The Board did not believe that the applicants
were genuine Falun Gong practitioners. They presented no corroborating evidence
showing that Ms Liang’s husband turned to Falun Gong to address problems with
his health, or that his health had improved as a result. Further, they had no
proof that they had practiced Falun Gong in China. While the applicants
displayed knowledge of Falun Gong, the Board concluded that this did not show a
genuine belief since information about Falun Gong was widely available. In
addition, the Board doubted the applicants’ assertion that Chinese authorities
would pursue them if they returned given that they had been allowed to leave
the country without difficulty.
[6]
The applicants had expressed concern that
Chinese officials may be aware of their Falun Gong practices in Canada which
would expose them to a risk of persecution if they returned to China. The Board
found that there was no evidence that Chinese officials had attended or watched
any of the events in which the applicants were involved. Further, the Board
noted that only a small number of persons who practice Falun Gong discreetly
experience problems in China.
[7]
The Board found that the death and cremation
certificates supplied by the applicants did not mention that Ms Liang’s husband
had been arrested or charged, that he had died in custody, or that the police
had ordered his cremation. At the hearing, Ms Liang testified that she had
tried to visit her husband while he was in custody. The Board noted that this
information was not in her written narrative and, therefore, found that it was
an embellishment.
III.
Was the Board’s decision unreasonable?
[8]
The Minister argues that the Board’s decision
was not unreasonable. The Board was entitled, according to the Minister, to
point out the lack of corroborating evidence and draw adverse inferences from
it. Similarly, the Board’s findings that the applicants had left China without difficulty and could easily have acquired some knowledge of Falun Gong in Canada were not unreasonable on the evidence. Further, the Minister submits that the risk
to the applicants in China was merely speculative. There was no evidence that
Chinese officials specifically targeted them.
[9]
I disagree with the Minister’s submissions.
[10]
First, while the Board was entitled to draw an
adverse inference from the absence of some corroborating documents (eg,
relating to Ms Liang’s husband’s health), it unreasonably expected the
applicants to obtain documentary proof of his arrest, detention and death in
custody from Chinese authorities. The Board also failed to note suspicious
information in the documents the applicants did provide – the place of death
was unidentified (“other and out of town”), the
cause of death was undetermined, and the cremation was carried out just three
days after death even though the body was supposed to be stored for fifteen
days.
[11]
Second, the Board did not appear to take account
of the fact that the applicants left China just over a week after Ms Liang’s
husband’s death. It was not implausible that Chinese authorities had not yet flagged
them for scrutiny on their exit from the country.
[12]
Third, Ms Liang’s children gave detailed answers
about their knowledge of Falun Gong (Ms Liang was not asked). It is unclear why
the Board concluded that this testimony did not support the genuineness of
their beliefs. It simply stated that the evidence was insufficient in light of
concerns about the applicants’ credibility.
[13]
Finally, the Board found that Chinese
authorities in Canada had not specifically targeted the applicants. While the
Board acknowledged the possibility that Chinese officials might have
photographed or videotaped demonstrations that the applicants had attended, it
appeared to overlook evidence that more than half the work done in Chinese
consulates focussed on Falun Gong practitioners. It was more than speculative
that the applicants might have been identified, raising the risk of their being
targeted on return to China.
[14]
Overall, therefore, in light of the evidence
before it, I find that the Board’s conclusion did not represent a defensible
outcome.
IV.
Conclusion and Disposition
[15]
The Board unreasonably expected the applicants
to provide documentary evidence that Ms Liang’s husband had been killed for his
Falun Gong practices. Further, it unreasonably discounted other evidence in the
applicants’ favour. Its negative conclusion did not represent a defensible
outcome. I must, therefore, allow this application for judicial review and
order another panel of the Board to reconsider their claim. Neither party
proposed a question of general importance for me to certify, and none is stated.
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