Date: 20040608
Docket: IMM-8108-03
Citation : 2004 FC 816
Vancouver, British Columbia, Tuesday, the 8th day of June, 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
PAN WEI XIONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated September 29, 2003, wherein it was determined that the applicant was not a "Convention refugee" nor a "person in need of protection" pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[2] The central issue is one of credibility. Here, the applicant alleges a well-founded fear of persecution based on his belonging to the Falun Gong movement.
[3] The applicant was married. In December 1999, his wife was forced to have an abortion because they already had one child. This was very hard for both the wife and the applicant who saw her suffering, and allegedly led to his deepening practise of Falun Gong. Though living at the same address, his wife and he lived in separate quarters because they were seeking a divorce. He said that it was not that they did not love each other, but rather that they could not register their child at school unless they could prove either that the wife had an IUD (which her body rejected) or that they were divorced - one of the means of enforcement of China's one-child policy. The divorce was granted in November 2002, a month before the applicant left for Canada.
[4] In mid-2000, the applicant bought a second apartment for investment purposes. The applicant allegedly agreed to let individuals meet and practise Falun Gong exercises in it. In the middle of November 2000, several cadres from the Neighbourhood Committee inspected the applicant's home and found him in possession of Falun Gong materials. He was allegedly sent to re-education for about one month. After his re-education, where he was forced to deny "the truth of Falun Gong", the applicant sought to atone for what he considered his weakness (i.e. denouncing Falun Gong publicly) by allowing members of the movement to meet in his spare apartment.
[5] On the evening of June 3, 2002, a Falun Gong meeting took place in the applicant's spare apartment. There was a police raid and the people gathered were allegedly arrested. The applicant was on guard across the street when the authorities raided the meeting. The applicant allegedly warned the occupants by phone and then fled the scene. According to the agreement of those people who met, if the apartment was raided, the people who were arrested would tell the police the names of the ones who had been able to escape.
[6] After this, the applicant allegedly went into hiding; he left China at the end of December 2002 and sought refugee status in Canada in February 2003. The applicant submitted that, given the treatment of Falun Gong members by the Chinese authorities (as confirmed by country reports), he would face certain arrest and ill-treatment if he returned to China, because he is known to authorities. The applicant has allegedly learned that the police sealed the apartment where the raid had occurred, and questioned his father-in-law and his neighbour as to his whereabouts.
[7] The Board found that the applicant lacked credibility and that his story was a complete fabrication. The Board simply did not believe that the incidents alleged by the applicant occurred, that he knew how to practise Falun Gong or that he in fact did practise it when he was still in China. The Board identified several credibility gaps in its decision. The Board's concerns were expressed in clear and unmistakable terms.
[8] First, the divorce certificate was issued in November 2002, and the fact of the divorce was stamped by the police station on his household registration booklet, precisely at the time that the applicant claims he was in hiding from the authorities. On the one hand, says the Board, he is wanted by the authorities; on the other, they stamped his household registration booklet without any problem and without trying to arrest him. The Board thought that as a matter of fact the applicant was not in hiding, that he was leading a normal life, and that he got his booklet stamped in the usual way after a divorce, with no issue of the authorities being after him.
[9] Second, the applicant claimed to be a practitioner of Falun Gong, but also stated that he did not practise the five specific exercises mandated by the leader, Li Hongzhi; he was content simply to meditate and improve his xinxing (literally, heart-mind) which is the basic attitude of Falun Gong leading to the development of truth, compassion and forbearance. The Board found this to be inconsistent with normal Falun Gong practice, and did not believe that he in fact practised Falun Gong when he was in China.
[10] Third, the Board did not find satisfactory the explanation of how the applicant came into possession of a Hong Kong passport. The applicant explained that, to escape torture, the Falun Gong followers who had been arrested at the meeting in his apartment would have identified him to the police as their leader. In return for using his name to save themselves, they would have helped him obtain the Hong Kong passport.
[11] Fourth, there was a contradiction between the handwritten declaration of the applicant, where he stated that police officers had come to his door but that he had escaped, and his Personal Information Form ("PIF") and oral testimony, where he stated that he had stood some 100 metres away from his apartment when he had observed the authorities going to his apartment where a Falun Gong meeting was occurring. He also stated in oral testimony that the authorities had looked for him the next day at his workplace; yet this was not mentioned in the PIF narrative. The Board stated that this was another contradiction "fortifying the finding against his credibility".
[12] Fifth, the applicant had learned only recently, from calling his former neighbours in China, that his apartment where the raid had been carried out had been sealed by the authorities. The Board found no explanation as to why sealing the apartment, if related to the raid as the applicant alleged, would not have occurred some time soon after the raid, so that the applicant would have been aware of it before leaving China, some six months after the raid. This, too, contributed to the Board's conclusion that the whole story was fabricated.
[13] Finally, the Board found it entirely implausible that his wife would not have known, while they were still living at the same address albeit in separate quarters, that he was a member of the Falun Gong nor that he had been sent to a re-education camp.
[14] To summarize, the Board ruled, on the basis of lack of credibility, that the applicant had not established that he had a well-founded fear of persecution based on the government suspecting him of being a leader or even an ordinary member of a Falun Gong group.
[15] The applicant submits that the Board did not address the central issue of the applicant's claim, i.e. that lending his apartment for meetings of the Falun Gong put him at serious risk with the authorities once the raid had been carried out and arrested members had denounced him as leader. Secondly, the applicant submits that the Board erred in finding that a Falun Gong practitioner must practise the exercises and submits in this regard that the seminal text of the movement written by the movement's founder himself supports the applicant's position that an individual can practise Falun Gong through the cultivation of xinxing without performing the exercises. Thirdly, the applicant further argues that the Board did not give the applicant sufficient opportunity to explain whatever contradictions it found in his testimony.
[16] Despite the able efforts made by his counsel at the hearing, the applicant has not convinced me that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it. In this regard, I accept the submissions made by the respondent in his memorandum of argument and further memorandum of argument, and which I do not need to repeat here.
[17] Taken in its entirety, the evidence supports the Board's finding that the applicant is not credible. The Board reviewed the documentary evidence and considered the explanations given by the applicant, which it found implausible. These findings of fact should attract the highest level of deference unless the applicant can demonstrate that they are not supported by the evidence or that they are patently unreasonable. As a whole, the Board's decision is not patently unreasonable. Neither can I accept here that there has been any material breach to the rules of procedural fairness. In view of the particular circumstances of this case, I am ready to accept that the Board was not obligated to put all of its concerns before the applicant (Tekin v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 506 at para. 14 (T.D.) (QL), 2003 FCT 357.
[18] That being said, I am also satisfied that a review of the reasons demonstrates that the Board did not believe the applicant allowed Falun Gong practitioners to use his apartment. Whether it is sufficient to only practise xinxing or if the exercises are a necessary part of Falun Gong is an issue of fact which is better left to the Board to decide. The Board relied on the documentary evidence to make its findings. It is not the role of this Court to re-weigh the evidence. I also find that any error made by the Board in this regard is inconsequential and that it does not affect the Board's general conclusion that the applicant's story is a fabrication.
[19] For all these reasons, the present application must fail. This case does not raise a question of general importance.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed.
" Luc J. Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8108-03
STYLE OF CAUSE: Pan Wei Xiong v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 2, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Martineau
DATED: June 8, 2004
APPEARANCES:
Nora Ng FOR THE APPLICANT
Peter Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR THE APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Vancouver, British Columbia