Vancouver, British Columbia, March 30, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 28, 2006, which determined that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant requests that the decision be referred back for redetermination by a differently constituted panel of the Board.
Background
[3] The applicant, Zhizhong Xue, is a citizen of China who alleged a fear of persecution on the basis of his religion, membership in a particular social group and political opinion. His fears are based upon his status as a practitioner of Falun Gong.
[4] The applicant described the circumstances leading to his claim for refugee status in the narrative portion of his Personal Information Form (PIF). He was introduced to the practice of Falun Gong by his aunt when he was experiencing a stressful period in his life. He started practicing Falun Gong in January 1998 and began feeling better. The government of China banned Falun Gong in July 1999, and he was forced to practice secretly.
[5] The applicant went to Canada in July 2001 in order to study and practice Falun Gong freely. He continued to practice Falun Gong and sent related materials to his aunt in China. He moved in with a female roommate in December 2001 and they began a romantic relationship. The applicant returned to China in February 2002 and told his mother about the relationship. He remained in China until April 2002. The couple married in March 2003, but the relationship soon deteriorated. They divorced in October 2004 and the applicant decided that he would return to China. However, on November 15, 2004, he received a telephone call from his mother indicating that this aunt and other Falun Gong practitioners had been arrested in China. On November 20, 2004, his mother telephoned and advised him not to return to China, as the police had information about his Falun Gong practice in China and abroad. The applicant claimed that his wife had informed the authorities about his practice of Falun Gong.
[6] The applicant applied for refugee status in Canada on December 15, 2004, and his refugee hearing took place over two sessions (November 16, 2005 and January 16, 2006). By decision dated March 28, 2006, the Board determined that he was neither a Convention refugee nor a person in need of protection, as he was not credible with respect to material aspects of his claim. This is the judicial review of the Board’s decision.
Board’s Reasons
[7] The Board determined that the applicant had failed to establish a well-founded fear of persecution, and was not credible with respect to material aspects of his claim. Although delay was not a determinative factor, the Board noted that it was important in determining a claimant’s subjective fear. The applicant arrived in Canada as a student but returned to China for five months in 2002. When he returned to Canada, he failed to claim refugee status until he was out of legal status. He explained that he had status in Canada during his studies and having married a Canadian, believed he would obtain status. The Board did not accept this explanation, since he alleged that he feared persecution in China. He therefore failed to establish a well-founded fear of persecution because he did not make an earlier claim for refugee status.
[8] The Board also found that material aspects of the applicant’s claim lacked credibility. His testimony was vague and evasive, and there were significant inconsistencies, omissions and implausibilities between the documentary evidence and his own evidence. The Board acknowledged that he had a rudimentary knowledge of Falun Gong, but found that he did not have a fundamental knowledge of the underlying principles of the practice. He could not explain the concept of “cultivation” and testified that he was unaware of the philosophy of Falun Gong. The Board determined that he had not embraced the spiritual component of Falun Gong and was not a practitioner.
[9] The applicant’s demonstration of Falun Gong exercise number 4 was incomplete. The Board did not accept the explanation that he was nervous and the room was cold. The demonstration contained many errors, which the applicant denied. On a balance of probabilities, the Board found that he was not a practitioner of Falun Gong. The Board reviewed the documentary evidence in support of his claim, including photos of his practice sessions. The Board found that the photos were submitted for the purpose of supporting the applicant’s refugee claim and little weight was placed upon them. The Board determined that the applicant did not face a serious possibility of persecution on a Convention ground, or a risk to life, cruel or unusual treatment or punishment, or a risk of torture, if he were to return to China.
Issues
[10] The applicant submitted the following issues for consideration:
1. Did the Board err in finding that the applicant was not a practitioner of Falun Gong?
2. Did the Board err in assessing the applicant’s evidence regarding his delay in making a refugee claim?
Applicant’s Submissions
[11] The applicant submitted that the Board’s finding that he did not display knowledge of “cultivation” and was unaware of Falun Gong philosophy, was not supported by the evidence. It was submitted that he was not questioned about “cultivation” during the hearing, nor did he testify that he was unaware of the philosophy of Falun Gong. The applicant submitted that an adverse credibility finding must have a proper evidentiary foundation, or else risk being overturned (see Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238, 33 A.C.W.S. (3d) 1270 (F.C.A.)). It was submitted that there was no evidence that he was not a Falun Gong practitioner; therefore, the decision could not stand.
[12] The applicant submitted that the Board erred by failing to provide clear reasons for rejecting his explanation for having delayed his refugee claim. It was submitted that the circumstances giving rise to delay must be examined in order to determine whether it was indicative of a lack of fear (see Beltran v. Canada (Minister of Employment and Immigration (1996), 69 A.C.W.S. (3d) 911 (F.C.T.D.)). The applicant submitted that the Board had to give clear reasons for rejecting his claim on credibility grounds (see Armson v. Canada (Minister of Employment and Immigration) (1989), 101 N.R. 372, 9 Imm. L. R. (2d) 150 (F.C.A.)).
Respondent’s Submissions
[13] The respondent conceded that the applicant was neither questioned about the concept of “cultivation”, nor did he testify that he was unaware of the philosophy of Falun Gong. However, it was submitted that these mistakes were immaterial to the Board’s ultimate finding that he was not a practitioner of Falun Gong. It was submitted that the Board supported its reasonable decision with many other findings. For example, the applicant’s testimony was vague and evasive.
[14] The respondent submitted that it was reasonable for the Board to conclude that the applicant did not display a fundamental knowledge of Falun Gong. The applicant did not volunteer information about Falun Gong activities in Toronto, despite his claim to have practiced there. He did not have any pictures of himself practicing prior to May 2005, nor were there copies of the emails he allegedly sent to his aunt. It was submitted that the information provided by the applicant regarding Falun Gong was minimal. He was unable to complete exercise number 4 at the hearing, and it was reasonable for the Board to reject his explanation for being unable to do so. The respondent submitted that the errors committed by the Board did not render the decision patently unreasonable and did not justify setting aside the decision.
[15] The respondent submitted that the Board’s consideration of the applicant’s delay was reasonable. He did not make a refugee claim when he arrived in Canada in 2001 and returned to China in 2002. Upon returning to Canada from China, he again failed to claim refugee status. It was submitted that the Board’s reasons for rejecting the explanations for his delay were reasonable. The Board did not find his explanation to be adequate if he truly feared persecution in China. It was submitted that it was reasonable to expect an individual who truly feared harm to claim refugee status at the first opportunity (see Espinosa v. Canada (Minister of Citizenship and Immigration) (2003), 127 A.C.W.S. (3d) 329, 2003 FC 1324). The respondent submitted that the applicant’s delay pointed to a lack of subjective fear of persecution.
Analysis and Decision
Standard of Review
[16] It is well established that the Board’s credibility findings warrant a high level of deference and are reviewable on the standard of patent unreasonableness (see Juan v. Canada (Minister of Citizenship and Immigration) (2006), 149 A.C.W.S. (3d) 1103, 2006 FC 809 at paragraph 2).
[17] Issue 1
Did the Board err in finding that the applicant lacked credibility?
The Board found that the applicant was not a Falun Gong practitioner because he could not explain the meaning of “cultivation” and was unaware of the philosophy of Falun Gong. The Board stated at page 4 of its reasons:
During the hearing, the claimant was both vague and evasive and at times he did not testify in a straightforward manner. There were significant inconsistencies, omissions and implausibilities between the documentary evidence and the testimony provided at the hearing.
Despite some rudimentary knowledge of Falun Gong, the panel finds that the claimant’s testimony did not display any fundamental knowledge of the underlying principles of Falun Gong. For example, the claimant was unable to explain the Falun Gong concept of cultivation, a central component of Master Li’s teachings. Furthermore, the claimant testified that he was not aware of the philosophy of Falun Gong The panel therefore finds that the claimant had not embraced the spiritual portions of Falun Gong. The panel notes that both the spiritual and physical components are fundamental in the teachings of Falun Gong for the alleged practitioner to in fact be a Falun Gong practitioner. The panel therefore finds since the claimant testified to not knowing any of the teachings of Master Li beyond the five exercises, the panel therefore finds that the claimant is not a Falun Gong practitioner as he alleges.
[18] Both parties are in agreement that the Board’s finding that the applicant did not know the meaning of the word “cultivation” was an error, as the transcript discloses that the applicant was never asked about “cultivation”.
[19] A further review of the transcript shows that the applicant did not state that he was unaware of the teachings of Falun Gong, nor did he testify that he did not know any of the teachings of Master Li beyond the five exercises. There is no evidence to support the Board’s findings in this regard. In fact, the applicant testified as follows during the hearing (see page 378, vol. 2 of the tribunal record):
COUNSEL FOR THE CLAIMANT: Okay. What is the point of Falun Gong? If somebody has never heard of Falun Gong at all, and was to ask you what the purpose of Falun Gong was. What would you say?
CLAIMANT: The Falun Gong adheres to the highest principle of the Universe, and trying to attain an improvement of the mind and nature.
COUNSEL FOR THE CLAIMANT: Okay. And, what is the principle of the Universe?
CLAIMANT: Truth on earth, compassion,and forbearance.
[20] I would conclude that the Board’s finding with respect to the applicant’s knowledge of Falun Gong teachings had no evidentiary basis.
[21] The Board also questioned the applicant’s credibility on the basis of his failure to complete exercise number 4. The hearing transcript states (see pages 427 to 430, vol. 2, of the tribunal record):
CLAIMANT: (doing demonstration)
MEMBER: That’s exercise number four?
CLAIMANT: Yes.
MEMBER: Completed?
CLAIMANT: Should you have it repeat nine times.
MEMBER: You didn’t do it nine times, though. Why not? I didn’t ask you to stop. You stopped. Why did you stop?
CLAIMANT: I can do it, if you like.
. . .
MEMBER: Sir, how many times did you repeat the exercise? --- how many repetitions are in exercise number four?
CLAIMANT: Nine times.
MEMBER: And how many times did you do it?
CLAIMANT: Three times.
. . .
MEMBER: So, why would you stop at three?
. . .
CLAIMANT: I thought you mean you only need (inaudible) to watch me doing only once.
MEMBER: I didn’t tell you how many times to do it. I asked you to do exercise number four. In fact, sir, I noticed you trembling throughout the entire exercise. Would you agree that you were trembling?
. . .
CLAIMANT: Yes.
. . .
MEMBER: Sir, I have had exercise done before, done in this room, on many, many, many occasions. I’ve never seen anybody tremble. I’ve asked you that question twice. You haven’t been able to answer that question for me. And, frankly, sir, I’m not sure whether or not you could do exercise number 4 with the nine repetitions.
CLAIMANT: Yes, I can do it.
MEMBER: You haven’t explained to me why you stopped, and you haven’t explained to me why you trembled, to my satisfaction.
. . .
COUNSEL FOR CLAIMANT: Mr. Xue, how were you feeling during the exercise?
CLAIMANT: So, I felt the energy, the flow of my energy passage from Yin to Yang.
COUNSEL FOR CLAIMANT: Were you nervous?
CLAIMANT: Yes.
. . .
CLAIMANT: It is so chilly here in this room. It’s difficult for me to tell you why I felt so nervous.
COUNSEL FOR CLAIMANT: Okay. And, what is the purpose of exercise 4?
CLAIMANT: To keep the move of the wheels (phonetic) circulating and to rectify the impurities from the body.
[22] It appears that other than having trembled during the exercise, the only error committed by the applicant, as discussed at the hearing, was his repetition of the exercise three times, rather than nine times. The applicant explained that he thought the Board would only need to see him do it once, and that it would take a long time to complete the entire exercise. The applicant explained that he was nervous and felt cold while performing the exercise.
[23] In my view the Board erred in finding that the applicant lacked credibility on the basis of his performance of the exercise. The applicant provided adequate explanations for the manner in which it was performed and offered to do the full variation of the exercise.
[24] Respondent’s counsel made submissions that a review of the transcript showed other examples which supported the Board’s negative credibility finding. However, these examples were not referred to in the Board’s decision. I have no way of knowing whether the Board member considered these examples in finding that the applicant was not credible.
[25] In conclusion, on this issue, I am of the view that based upon the content of the Board’s decision, its finding that the applicant was not credible was patently unreasonable.
[26] Issue 2
Did the Board err in assessing the applicant’s evidence regarding his delay in making a refugee claim?
I am of the view that the Board member was in error in finding that the applicant did not establish a well-founded fear of persecution because of his failure to make an earlier claim. The applicant testified that he did not make an earlier claim because his fear did not arise until November 2004, when his mother told him that the PSB were looking for him as they had evidence that he was a Falun Gong practitioner in both China and abroad. At page three of its decision, the Board stated:
. . . When the claimant was asked why he did not make a claim at an earlier opportunity, he testified that he had status in Canada during his studies and having married a Canadian, he believed he would obtain status.
[27] This statement is not supported by the hearing transcript. The Board’s finding is not supported by the evidence as these were not the reasons given by the applicant for his delay in making a claim.
[28] The application for judicial review is therefore allowed, and the matter is referred to a different member of the Board for redetermination.
[29] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[30] IT IS ORDERED AND ADJUDGED that the application for judicial review is allowed and the matter is referred to a different member of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 are set out in this section.
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97.(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97.(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2156-06
STYLE OF CAUSE: XUE, ZHIZHONG
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 14, 2007
APPEARANCES:
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Leonard Borenstein
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John Provart
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SOLICITORS OF RECORD:
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Lewis & Associates Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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