Date: 20020314
Docket: IMM-6240-00
Neutral Citation: 2002 FCT 285
BETWEEN:
WEI WEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] This is an application for judicial review of the November 1, 2000 decision of the Convention Refugee Determination Division ("CRDD"). The CRDD determined that Wei Wei ("the applicant") was not a Convention refugee and did not have a credible basis for his claim.
Background
[2] The applicant is a 22 year-old citizen of the People's Republic of China ("PRC"). He claimed refugee status on the basis of a well-founded fear of persecution because of his membership in a particular social group, Falun Gong practitioners.
[3] The applicant began practising Falun Gong in China after he was introduced to it by a classmate in the summer of 1995. The applicant attended at a practising station and the instructor gave him a book entitled "Zhuangfalun". Through his reading the applicant became interested in the virtues of Falun Gong: kindness, patience and truthfulness.
[4] The applicant stated that after about a month of practising Falun Gong, he told his parents about his involvement. During the summer months, the applicant attended the practising station almost every day, but once school started, he participated only on weekends. The applicant testified that the group practised outdoors in a square near the sea. There were about 30 people in the group and the instructor was Mr. Zi Quiang Zhang.
[5] In August 1998, the applicant went to Switzerland to study the English language. He stayed there for about four months, visiting Holland and France briefly during that time. While studying abroad, the applicant continued to practise Falun Gong although he practised mostly alone.
[6] The applicant testified that most people where he lived in Switzerland spoke French. He was interested in learning English in an English-speaking environment. Thus, while on his trip to France, the applicant applied for a student visa from the Canadian Embassy in Paris. Upon his return to Switzerland, he received his Canadian visa. However, the applicant returned to his family home in Dalian, for the Chinese New Year festival and resumed practising Falun Gong with his group.
[7] In March 1999, the applicant went to the Sintungfong School in the mountains near Beijing to study English. For two months he practised Falun Gong on his own. During this time he did not have access to information concerning the treatment of Falun Gong practitioners in the country. Upon his return to Dalian, he learned that many Falun Gong practitioners had been arrested and thousands of people were demonstrating in Beijing. The applicant did not participate in the demonstrations because he was preparing to leave for Canada.
[8] The applicant arrived in Canada on May 6, 1999. He enrolled in Sheridan College where he studied English until August 1999. In Canada, the applicant continued to practise Falun Gong. Initially the applicant lived in Brampton and practised alone. However, he soon moved to Toronto and joined a group practising outdoors in Allan Gardens.
[9] Towards the end of July, the applicant stated that he learned through the internet that Falun Gong had been banned in China and that many more practitioners were arrested. The Chinese Government had declared that Falun Gong was an evil cult and had prohibited all citizens from practising.
[10] The applicant testified that he received a call from his parents in early August 1999. He learned that his teacher, Mr. Zi Quiang Zheng, had been arrested and some officers had attended the applicant's house asking for him. The applicant testified that he was frightened by this news and was afraid to return to China. At the end of August, he made his refugee claim.
The CRDD Decision
[11] The CRDD found that the applicant lacked credibility due to inconsistencies and contradictions in his testimony. Also, they drew an adverse inference from the fact that the applicant had delayed in making his claim. In the panel's view, the applicant fabricated his involvement in Falun Gong so he could stay and study in Canada.
[12] The CRDD also found that even if the applicant was a Falun Gong practitioner in China, he did not have a well-founded fear of persecution. For this finding the panel relied on a newspaper article, a statement from the Central Committee of the Communist Party of China, and a "Public Notice" posted on the bulletin board of a Falun Dafa website.
Issues
[13] The applicant raised the following issues:
1. Did the CRDD err in law in ignoring and/or misinterpreting the evidence before it when it determined that the applicant was not a Falun Gong practitioner and did not have a credible basis for his claim?
2. Did the CRDD err in law in ignoring and/or misinterpreting the evidence before it when it determined that the applicant did not have a well-founded fear of persecution if he was a Falun Gong practitioner?
3. Did the CRDD err in law in misinterpreting the Convention refugee definition?
4. Did the CRDD err in law in applying subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 and in its finding that the applicant had no credible basis for his claim?
Analysis
Issue # 1
1. Did the CRDD err in law by ignoring and/or misinterpreting the evidence before it when it determined that the applicant was not a Falun Gong practitioner and did not have a credible basis for his claim?
[14] The applicant submits the CRDD's determination that he is not a Convention refugee is based primarily on its negative credibility assessment. The applicant argues the CRDD misinterpreted the evidence and drew unfounded inferences not supported by the evidence. Furthermore, its fixation on detail caused it to ignore the substance of the facts on which the applicant based his claim.
[15] The respondent submits that an assessment of credibility is incremental in nature. Cumulatively, seemingly small inconsistencies and contradictions may be sufficient to impugn an applicant's credibility. While conceding that some of the CRDD's findings in the present case are weak, the respondent maintains that these findings are not fundamental to the determination and that there are ample findings to support the negative credibility assessment.
[16] I turn now to the specific credibility findings of the CRDD.
1) Phone call from the applicant's parents.
[17] The CRDD noted an inconsistency between the applicant's Personal Information Form ("PIF") and his oral testimony concerning the telephone call from his parents in early August 1999 informing him that officials had come to their home to arrest the applicant. The reasons state:
The claimant testified in his PIF that his father called him and informed him that the PSB had gone to his house to arrest him. Orally he said that his mother called him. When the discrepancy was pointed out to him, he then said that both his father and mother talked to him.
[18] At the hearing, the applicant testified his parents telephoned him in early August 1999. In response to the RCO's question "who called you?" the applicant stated it was is mother. When it was pointed out to the applicant that in his PIF he stated his father had telephone, he corrected himself stating his father had telephoned and that he had spoken to both his parents during the telephone call. He explained that since his parents were living together, "whoever I mention [in the PIF] would be fine".
[19] In my opinion, the CRDD failed to address the applicant's logical explanation for this minor inconsistency. Furthermore, whether the father or the mother actually placed the call relates to a matter irrelevant to the substance of the applicant's claim.
2) The month the applicant stated practising Falun Gong.
[20] With respect to this aspect of the applicant's testimony, the CRDD reasons state:
The claimant stated that he started practising Falun Gong in the summer of 1995. When asked whether his parents knew about his involvement in Falun Gong, he said that he told them one month after he started practising. When asked to specify the timing, the claimant said that it was the month of June. He was further asked whether the summer months in China varied from the summer months in North America, he said that they did not. He was asked why did he say then it was June. He said that he did not remember.
[21] The applicant stated he started practising Falun Gong in the summer of 1995. He also stated he told his parents about his involvement approximately a month later. After a series of ambiguous questions from the RCO and the panel member, the applicant stated he told his parents sometime after June. The panel member responded as follows:
But you said you were involved in Falun Gong and started practising in the summer of 1995.
...
So how could it be? You let your parents know about your practise one month after you started. How could it be June, the month of June? If you started practising in summer, one month after, how is it that it was June?
The applicant responded "I didn't say it was June".
[22] The CRDD did not clarify where the alleged inconsistency lies, however, it appears to be based on the CRDD's interpretation of the applicant's evidence that he told his parents in June. From this understanding and based on the applicant's evidence that he had been practising Falun Gong for about a month before telling his parents, the CRDD found an inconsistency between the applicant's statement that he started practising in the summer, and the statement that he had started practising in May. Whether May is arguably a summer month does not require any further discussion. I agree with the applicant's submission that the perceived inconsistency is based on a misstatement of his evidence. The applicant stated he told his parents sometime after June. Given the applicant's response, if some confusion still existed regarding the relevant dates, clarification should have been sought at the time.
3) Practising in Switzerland.
[23] The CRDD noted that the applicant's PIF states he practised Falun Gong alone while he was in Switzerland. In his oral testimony, the applicant stated that he sometimes practised with two other students.
RCO ... And when you were there, did you practice Falun Gong?
CLAIMANT Yes.
RCO Did you practice with other Falun Gong members?
CLAIMANT There were only two, so we were together in a house.
...
RCO Were these fellow students?
CLAIMANT Yes.
RCO And where would you practice?
CLAIMANT In a room
RCO In a room? Sir, how come - I just want to question this. Why did you not indicate this information on your Personal Information Form? You have indicated here that you practised Falun Gong or Falun Dafa by yourself.
CLAIMANT Because there were only two. It wasn't like in China where there were 30 some people who practised together.
RCO Well, my question is: Why did you say in your Personal Information Form that you practised Falun Dafa - that's what you have -- "by myself".
CLAIMANT They were not -- we were not practising together all the time. Those two were not really that enthusiastic about Falun Dafa.
[24] The applicant submits that, in its fixation on minute perceived inconsistencies between the applicant's PIF and his oral testimony, the CRDD missed the logic of the applicant's explanations. I agree. The applicant's explanation is that he was not part of a group that practised together while he was in Switzerland. Therefore, he felt that he was practising on his own. This, in my view, is a further example of where the CRDD appears to be intent on finding an inconsistency and not giving attention to the applicant's explanation.
4) Arrest of Falun Gong practitioners.
[25] The CRDD noted that the applicant failed to include in his PIF that his parents notified him during their August phone conversation that some of his fellow Falun Gong practitioners were arrested in China.
[26] In both his oral testimony and his PIF, the applicant stated that his parents told him his teacher, Mr. Zi Quiang Zhang, had been arrested. However, on his PIF, the applicant did not include that some other members of his group were also arrested.
[27] The applicant submits that this omission on the PIF may have been a result of an error on the part of the translator. I agree with the respondent's submission that there is no evidence to take this assertion beyond mere speculation. In my view, it was reasonably open to the CRDD to find that the failure to include this additional information was a significant omission from the PIF. The fact that others with whom the applicant had been practising were arrested is significant information and relevant to his claim.
5) Parents' attitudes towards the banned book.
[28] Having regard to the fact that the "Zhuangfong" was banned in 1996, the CRDD found it implausible that the applicant's parents would have allowed him to read the book until he left China. The CRDD noted that reading the "Zhuangfong" would have been "very dangerous and he [the applicant] was very young to comprehend its implications".
[29] The applicant argues that the CRDD had no evidence before it to indicate that the applicant's parents opposed the practise of Falun Gong or that they knew the "Zhuangfong" was a banned book. In fact, the applicant stated that, while his parents' initially had concerns that the practise of Falun Gong would interfere with his studies, they came to support his practise and to respect the teachings of Falun Gong. Further, the applicant points out that the documentary evidence supports his position that Falun Gong practitioners in his town did not experience any problems and practised openly until the ban in 1999. It should also be noted that the documentary evidence is not clear as to when the book was banned and tends to support the applicant's testimony that the real crackdown against "Zhuangfong" was not until 1999.
[30] Adverse findings of credibility based on implausibilities in a claimant's testimony must be based on reasonably drawn inferences. The respondent did not point to any evidence in support of the inference that the applicant's parents would not have permitted him to read the "Zhuangfong" at a time when he was able to freely practise Falun Gong. In my opinion, this finding of implausibility is based on conjecture and is not supported by the evidence.
6) Address of Falun Gong practises in Toronto.
[31] The CRDD also drew a negative inference from the fact that the applicant was not able to provide an accurate address and time for the practises of his Falun Gong group in Toronto.
[32] The applicant, in his oral testimony, stated that he practises Falun Gong from 6:00 to 7:30 a.m. Monday through Friday, and from 8:00 to 9:00 a.m. on weekends at Allan Gardens. When questioned about the location, he responded that Allan Gardens is at Sherbourne and Gerrard streets in Toronto. The applicant indicated that his group practises outdoors.
[33] Counsel for the respondent conceded that the applicant did provide the relevant information during his oral testimony.
7) Delay in Claiming
[34] The CRDD indirectly impugned the applicant's credibility on the basis of the delay by the applicant in making his claim. The CRDD found that the three week delay between the time the applicant received the telephone call from his parents and the date on which he filed his claim undermined his subjective fear of persecution.
[35] In response to the applicant's explanation that the delay was due to his inexperience to the procedure for making a refugee claim, the CRDD stated:
... After living for four months in Canada and going to China Town in Toronto, according to his testimony, I find it implausible that the claimant would be unaware regarding the refugee system in Canada.
[36] Counsel for the respondent acknowledged that the CRDD's reasoning on this point was flawed.
Conclusion
[37] While recognizing the high degree of deference a reviewing court should accord to a tribunal's assessment of credibility, in the present case, the CRDD's finding is sufficiently flawed that it constitutes reviewable error.
Issue #2
2. Did the CRDD err in law in ignoring and/or misinterpreting the evidence before it when it determined that the applicant did not have a well-founded fear of persecution if he was a Falun Gong practitioner?
[38] Although I have concluded that the CRDD's negative credibility assessment does not withstand scrutiny, it is still necessary to consider the respondent's argument that the panel would have denied the claim even if they had found the applicant to be credible.
[39] The CRDD found that even if the applicant was a Falun Gong practitioner, his fear of persecution was not well-founded. The CRDD relied exclusively on two sources for its finding. The first piece of documentary evidence relied on was an August 30, 2000 article from the Toronto Star. The article reads as follows:
Top leaders in Beijing may have orchestrated their toughest-sounding political campaign in a decade, but old methods of enforcement and intimidation are no longer effective...
...
... Most Falun Dafa protesters have been held for a few days or weeks and then sent home with little more than a slap on the wrist. When released, few suffer any social stigma. The Communist Party has lost its normal authority, and those who oppose it are no longer seen as enemies.
[40] The second piece of documentary evidence relied on by the CRDD is a statement from the Central Committee of the Communist Party of China reported in the New York Times on August 24, 1999:
The Central Committee of the Communist Party and the Cabinet had issued a statement calling for the severe punishment of Falun Dafa "core members", adding, however that "only a ‘tiny majority' of Falun Gong followers would be charged with crimes" and that "most Falun Gong practitioners will be forgiven" if they do not continue to practise.
[41] The applicant submits that the CRDD made an erroneous finding of fact without regard to the hundreds of pages of documentary evidence detailing the detention, arrest, torture, and confinement in mental institutions of Falun Gong practitioners.
[42] The reasons of Evans J. (as he then was) in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 are particularly relevant to the circumstances of the present case. After noting that an administrative agency is not required to identify and explain every piece of evidence contrary to its finding, Evans J. stated at paragraphs 16 and 17:
... That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.) In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[43] In the present case, the CRDD opted to rely on two pieces of documentary evidence without any analysis or consideration of the extensive documentary evidence that directly contradicts its finding regarding the objective basis for the applicant's well-founded fear. I am persuaded that in this instance the CRDD made an erroneous finding of act without regard to the evidence.
[44] I also wish to add that with respect to the second article, I agree with the applicant's submission that it is perverse to base a finding that an individual will face no persecution on a statement made by an entity or person alleged to be the persecutor.
[45] Therefore, it is not necessary to consider the remaining two issues raised by the applicant.
[46] For these reasons, the application for judicial review is allowed, the November 1, 2000 decision is set aside and the matter is remitted for reconsideration by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
March 14, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6240-00
STYLE OF CAUSE: Wei Wei v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 12, 2001
REASONS FOR ORDER OF JUSTICE DOLORES M. HANSEN DATED: March 14, 2002
APPEARANCES:
Ms. Barbara Jackman FOR THE APPLICANT
Ms. Ann Margaret Oberst FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Jackman, Waldman & Associates FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada