Ottawa, Ontario, October 26, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Luan claims he would face persecution in China, or otherwise needs Canada’s protection, because he is a member of the Falun Gong. His claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board. The panel did not believe him. It found he “…fabricated his story to enhance his refugee claim.” This is a judicial review of that decision.
[2] The panel did not delve into Mr. Luan’s knowledge of Falun Gong practices. Rather, it focussed on his personal history. Mr. Luan claims to have begun practicing Falun Gong in China in 1998, before it was outlawed. Afterwards, he continued to practice in secret with a group of friends His father, a prominent judge, protested but ultimately did not interfere.
[3] He came to Canada as a student, and while here kept in touch with Falun Gong friends by email. He would pass on information from websites not available in China, using a code to replace key words, the whole in the belief that the exchange of emails would not be spotted by the censors. However once sent, he would delete the messages.
[4] He even returned to China on two occasions and practiced there in secret with his friends. After returning to Canada, he came to learn a meeting of theirs had been raided. His mother made inquiries and found out that his good friend had been arrested. The police visited his parents’ home. Realizing that he was now found out, he claimed refugee status while in Canada.
THE DECISION
[5] The panel considered it unreasonable to expect that Mr. Luan’s father, as a judge, would allow him to practice Falun Gong. The panel thought it unlikely that his mother, who had a good job, would make inquiries and thus jeopardize herself and her job in order to find out how many had been arrested in the raid. The panel reached this conclusion mindful of documentary evidence indicating that authorities harassed relatives of dissidents and monitored their activities.
[6] It is conceded that a decision based on credibility should not be set aside unless patently unreasonable. Counsel for Mr. Luan says there were six findings of fact which were patently unreasonable, all of which related to credibility. While it is not necessary to tote up the number, I am satisfied that there were a number of patently unreasonable finding which were relevant to the decision.
[7] The only reference drawn to my attention in the country reports concerning a judge related to a judge who had attended a Falun Gong meeting, and was arrested. This does not accord with the panel’s finding that a father, who happened to be a judge, would not take steps to prevent his son from continuing to practice Falun Gong once it became illegal.
[8] Country conditions did not justify the findings that it was unlikely that Mr. Luan’s mother would make inquiries on his behalf. The panel considered that she would be monitored by the authorities. However, the country conditions relied upon were taken completely out of context.
[9] A prime document was issued by the IRB’s Research Directorate in November 2002. It indicated that there was not much harassment of families of Falun Gong practitioners by the Public Security Bureau, the Bureau said to have visited Mr. Luan’s parents. There were reports of harassment by “610 Offices” an alias for the supervising team in charge of dealing with Falun Gong, considered by many as hoodlums and terrorists.
[10] Mr. Luan was criticized for not producing a Falun Gong certificate. He said that there are no such certificates as it is not a club. There was no evidence that such certificates were available.
[11] Another criticism was the lack of detail he gave in his interview with the authorities. The Board’s own form only gives a few lines to state out the fundamentals of the claim. This simply cannot be compared to the Personal Information Form, which was filled out later, and gave ample detail.
[12] The findings of the panel were not properly drawn inferences from established facts. They were mere conjecture and so cannot withstand the slightest scrutiny (Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.)).
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The matter is referred back to the Refugee Protection Division of the Immigration and Refugee Board for new hearing before a differently constituted panel.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2717-05
STYLE OF CAUSE: Kun Luan v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 17, 2006
APPEARANCES:
|
Leonard H. Borenstein
|
|
|
Amy Lambiris |
SOLICITORS OF RECORD:
|
Lewis & Associates Barristers & Solicitors Toronto, Ontario
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|