Ottawa, Ontario, December 16, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Yuhua Xu, the Applicant, is a Chinese citizen who has spent much of the past few years in Canada. She lived in Canada from August to December of 1999, returned to the People's Republic of China (the "PRC"), and then returned to Canada on March 13, 2000. Her return was based on a student visa which expired in 2004. The Applicant filed her refugee claim on February 2, 2004. The Applicant is a practising member of Falun Gong (a.k.a. Falun Dafa) and allegedly fears that that if she is returned to China, she will be arrested, imprisoned, and tortured by Chinese authorities. The Applicant claims to have begun practising Falun Gong in 1998, in the PRC.
[2] In a decision dated April 26, 2005, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") determined that the Applicant was neither a Convention refugee nor a person in need of protection. The Applicant seeks judicial review of this decision.
Issues
[3] This application raises the following issues:
1. Did the Board err by making patently unreasonable negative credibility inferences and implausibility findings?
2. Did the Board err by failing to consider the risk to the Applicant, as a Falun Gong practitioner who would continue her public participation in Falun Gong, upon her return to China?
Preliminary Matter
[4] The Applicant requests that her name in the style of cause should be amended from Yuhaua Xu to Yuhua Xu. The Order will reflect this change.
Analysis
Standard of Review
[5] It is accepted by the parties that the applicable standard in respect of both issues before me is that of patent unreasonableness (Asashi v. Canada (Minister of Citizenship and Immigration), 2005 FC 102, at para. 6 (F.C.); Canada (Minister of Citizenship and Immigration) v. Elbarnes, 2005 FC 70, at para. 19 (F.C.); Aguebor v. Canada (Minister of Employment and Immigration), (1993) 160 N.R. 315, at pp. 316-317 (F.C.A)).
[6] I am also guided by the wording of s. 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7) and should only grant relief where the Board's decision was based on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the evidence.
Issue #1: Did the Board err by making patently unreasonable negative credibility inferences and implausibility findings?
[7] While accepting that the Applicant was an active Falun Gong practitioner in Canada, the Board found that the claimant lacked credibility, citing a number of concerns with her testimony. The Applicant submits that a number of the Board's conclusions were patently unreasonable. Specifically, the Applicant asserts that:
- The Board wrongly concluded that it was implausible that the Applicant could have obtained a passport and leave the PRC in 1999 and 2000 without difficulty.
- The Board erred in finding it implausible that the Applicant could have renewed her passport without trouble in July of 2003.
- The Board erred in finding it implausible that the Applicant's parents would not have been harassed by PRC authorities because of the Applicant's activity with Falun Gong.
- The Board wrongly seized upon the discrepancy in dates found in the Applicant's evidence regarding the death of Feng Lin Zhou.
[8] The essence of the Applicant's argument is that the Board made patently unreasonable implausibility findings on the basis of evidence that only showed that some Falun Gong members experienced difficulties in emigrating, obtaining passports, or renewing their passports, and that only some of their families were persecuted. The Applicant feels that this is not enough evidence upon which to draw an implausibility finding that the Applicant should have experienced the same. With respect, the Applicant asks me to reweigh the evidence and come to a different conclusion.
[9] In this case, although I may not have come to the same conclusions as the Board, there is evidence upon which it could have drawn its implausibility findings, which evidence is referenced in the Board's reasons. I cannot see that the Board has ignored any other, contradictory evidence. This is a question of whether the Board's conclusion was so absurd as to be characterized as capricious or perverse, and I cannot agree that it was.
[10] There may have been an error with respect to the Board's reliance on a discrepancy of dates for the death of Feng Lin Zhou. However, any such error would be immaterial.
[11] The Applicant also asserts that the Board placed undue weight on her delay in claiming protection. In my view, the Board's reliance on the Applicant's delay in claiming refugee protection was entirely reasonable. The Applicant did not make her refugee claim until well beyond the time when: (a) she began her public practice of Falun Gong; and (b) she became aware of the treatment of Falun Gong practitioners in China. In her testimony, the Applicant explained that making a claim earlier would have prevented her from travelling with her family because she would have been required to relinquish her passport. It is a fundamental tenet of refugee protection that a person in fear of persecution will make a claim for protection at the first possible opportunity. In the case of the Applicant, it appears that her travel plans were far more important than acquiring a safe haven from persecution. The Board did not err by considering the delay, particularly in light of the other credibility concerns.
[12] In sum, the Board's implausibility and credibility findings were based on a reasonable assessment of the evidence before it, and were neither capricious nor perverse.
Issue #2:Did the Board err by failing to consider the risk to the Applicant, as a Falun Gong practitioner who would continue her public participation in Falun Gong, upon her return to China?
[13] The Applicant submits that the Board's conclusion is internally inconsistent with its findings and patently unreasonable. The Board accepted that the Applicant has publicly practised and associated with Falun Gong and demonstrated at PRC consulates while in Canada, and also has expressed an intention to continue practising Falun Gong if she is returned to China. The Board also noted the state of widespread persecution suffered by Falun Gong members in the PRC, at the hands of the authorities. In light of these findings, the Applicant submits that the Board should have concluded that there is a very strong possibility that the Applicant would be discovered by the PRC government and persecuted. The Applicant contends that this was the only patently reasonable conclusion available on the evidence.
[14] The question that I have to determine with respect to this issue is whether the Board failed to assess the risk to the Applicant upon her return to the PRC. The Board was obligated to consider whether the Applicant's fear was established on the basis of acts of persecution likely to be committed in the future against members of the group to which she belonged (Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (F.C.A.) at paras. 17-18).
[15] Having reviewed the record before me, I conclude that the Board came to a decision made without regard to the evidence. Specifically, in assessing the future possibility of risk, the Board appears to have ignored evidence that it referenced in its own reasons demonstrating widespread persecution, abuse, and torture of Falun Gong members in the PRC. The Board referenced this evidence to show that it was implausible that the Applicant had not experienced trouble with the PRC government in the past. Based upon these implausibilities, the Board concluded that it was unlikely that the PRC government had, at any time in the past, suspected that the Applicant was a member of Falun Gong.
[16] However, the Board does not address, the possibility that the Applicant might be discovered in the future to be a member of Falun Gong, if she is returned to the PRC. In light of the voluminous evidence cited by the Board that establishes a widespread system of persecution of Falun Gong members, and indications that those members are persecuted even when they do not publicly practise Falun Gong, the Board was obligated to consider the likelihood of the Applicant's discovery in the future by the PRC government. This was particularly relevant in this case where the Applicant's testimony - which was not questioned by the Board - was that her beliefs would likely require that she go beyond practising in secret if returned to the PRC. The Board was bound to consider this evidence and the possibility of future risk not only by the ruling in Salibian, above, at paras. 17-19, but also by common sense. Although Salibian speaks to whether a claimant is a Convention refugee, when evidence shows that similarly situated persons have been persecuted, in my opinion, this reasoning similarly applies to the question of whether the Applicant is a person in need of protection.
[17] I must clarify that I am not weighing the evidence and deciding that the Applicant is likely to be discovered or not, if returned to the PRC. The question arises from the evidence and is not answered in the Board's reasons.
[18] The closest the Board comes to discussing this question is in its discussion of whether expatriate members of Falun Gong are persecuted upon return to the PRC. However, this discussion appears limited to the narrow scope of risks that the Applicant may face immediately upon her return, in relation to being an illegal emigrant (which the Applicant is not). The Board fails to consider what risks the Applicant will face as she continues her life and her practice of Falun Gong in the PRC, whether a few months or years into the future. In my opinion, this concern is squarely within the consideration of whether the Applicant would be at risk to her life, or of cruel or unusual treatment or punishment, or of torture. Although the Board carefully considered the risk to the Applicant immediately upon her return, the Board failed to carry out a complete assessment of the risks into the future.
[19] To be clear, I am not suggesting that the only possible outcome of the Board's analysis is that the Applicant has satisfied the requirements of either section 96 or 97. The Board, in assessing the evidence before it, may question whether the Applicant is likely to practise in public or even to continue any practice of Falun Gong. Further, documentary evidence may come forward demonstrating a different treatment of Falun Gong practitioners. My conclusion is simply that the assessment of the evidence must be done on a forward-looking basis; that was not completed in this case.
Conclusion
[20] Because of the failure to provide any assessment of the future risk faced by the Applicant as an adherent of Falun Gong, the decision should be quashed and sent back to the Board for reconsideration.
[21] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The style of cause is amended from Yuhaua Xu to Yuhua Xu;
2. The application is allowed and the matter referred back for re-determination by a different panel of the Board;
3. No question of general importance is certified.
"Judith A. Snider
___________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2907-05
STYLE OF CAUSE: YUHUA XU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: December 7, 2005
APPEARANCES:
| Ms. Wendy E. Bouwman Oake
|
|
| Ms. Camille Audain
|
SOLICITORS OF RECORD:
| Andrew, March & Oake LLP Edmonton, Alberta
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontairo |