Ottawa, Ontario, February 1, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
(a.k.a. DA ZHONG QU)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Qu, a Chinese citizen studying in Canada, claims to be a refugee sur place or a person in need of protection as a result of his participation in Falun Gong. The Refugee Protection Division of the Immigration and Refugee Board (RPD) refused his claim and he seeks judicial review of its decision. I have concluded that his application must be dismissed.
BACKGROUND
[2] Mr. Qu came to Canada on a student visa that authorized him to attend any technical trade school or institute in Canada. The visa was valid from August 20, 2001 to September 30, 2003. He claims that he began practising Falun Gong in Canada in December 2001. In February of 2002, he began group practice in Milliken Park on Saturdays and Sundays. He alleges that he sent Falun Gong emails to his friends in Chinaon 60 or 70 occasions.
[3] He returned to China to visit his family from January until March of 2003. While there, he practised Falun Gong with four schoolmates who had been Falun Gong participants since 2000. Mr. Qu had not been previously introduced to the group and had not practised Falun Gong with them in the past. He states that he took two Falun Gong booklets, that he had obtained in Toronto's Chinatown, back to Chinawith him and that he signed them and gave them as gifts to the classmates.
[4] After his return to Canada, his mother allegedly called him on August 31st and informed him that the Public Security Bureau (PSB) had come to their home to arrest him. The PSB apparently told his mother that Mr. Qu had been collaborating with a Falun Gong group outside of China. Mr. Qu claims that he became frightened. He pondered the situation because he knew the risk he faced if he were to return to China. He learned from a newspaper that he could make a refugee claim. On September 19, 2003, he claimed refugee status. He also claimed to be a person in need of protection. He states that, if returned to China, he would be arrested, jailed or sent to a labour camp.
THE DECISION
[5] The RPD concluded that Mr. Qu had failed to provide sufficient credible or trustworthy evidence establishing that he has grounds to fear persecution, or that he faces a risk to his life or cruel and unusual punishment. The board also concluded that he had failed to discharge the onus, arising from Article 1 of the Convention Against Torture, that he is at risk of torture if returned to his country of nationality.
[6] The decision turned on credibility. The board acknowledged that Mr. Qu could be a refugee sur place because of his Falun Gong actions in Canada. In assessing whether this was sufficient to justify a well-founded fear of persecution, the RPD said that a careful examination of the circumstances was required. Specifically, it was necessary to determine whether Mr. Qu's actions may have come to the attention of the Chinese authorities. The board then made a number of findings. It is necessary to delineate the board's findings because they will be important later.
[7] Mr. Qu claimed that three members of his group in China had been arrested. He thought that they were in prison, must have been tortured and must have revealed his name. The RPD found this belief to be speculative and insufficient to establish that the authorities were aware of Mr. Qu's involvement in Falun Gong. It was also not persuaded that he would continue to practise Falun Gong if returned to China.
[8] The board found Mr. Qu's testimony regarding the warrant for his arrest to be not credible. He did not mention the existence of a warrant in his personal information form (PIF) and did not provide a copy of the warrant. His explanation was that the PSB had shown it to his mother but had not left it with her. This was not enough to explain the omission from the PIF. The RPD drew a negative inference from the omission.
[9] Regarding Mr. Qu's claim that he sent Falun Gong related emails to friends in China, he stated that although the government monitors emails, people continue to send them and a black market exists for transmission. The board found it unreasonable that he would undertake such a risk, knowing the potential ramifications.
[10] The RPD also did not believe that Mr. Qu, knowing the danger, would practise Falun Gong for weeks, while in China, just to see how it was different. Some participation was understandable but such an extended practice was not.
[11] The RPD found it implausible, if Mr. Qu truly feared persecution, that he would risk taking Falun Gong materials with him to China, knowing that he would have to clear Chinese customs. In light of the fact that he had allegedly been sending emails that may have been intercepted by the government, and in view of his evidence that he believed it would be dangerous to transport these materials, it was implausible that he would have done so.
[12] Further, since he knew that the material was illegal, the board found it implausible that Mr. Qu would sign the material, give it to his friends as gifts, and risk being caught should the material fall into the wrong hands. The RPD, on a balance of probabilities, dismissed his explanation that he gave such gifts because he had "thought hard" of what gifts to give his friends. Mr. Qu was well-educated and had knowledge of the brutal actions of the police against Falun Gong members.
[13] The RPD noted that Mr. Qu came to Canada on a student visa that was valid until September 30, 2003. He made his refugee claim only 11 days before the expiration of the visa. The board drew a negative inference from the delay.
[14] In terms of objective fear, the RPD recognized the existence of Federal Court authority standing for the proposition that even where a claimant's voluntary action is motivated by an attempt to claim asylum, the claimant may still be entitled to protection. The board acknowledged and noted the evidence regarding the oppression of Falun Gong practitioners and their families, but also noted the absence of any evidence that Mr. Qu's mother had suffered reprisals.
[15] Moreover, Mr. Qu had failed to supply a Falun Gong certificate despite the fact that organizations exist in Canada. The board found his testimony on this point to be evasive because, rather than providing an answer, he questioned why a true practitioner would need such documentation.
[16] Finally, the RPD concluded that Mr. Qu's participation in Falun Gong was a result of convenience rather than conviction.
THE ALLEGATIONS OF ERROR
[17] In his written submission, Mr. Qu advanced various allegations of error with respect to the credibility findings. At the hearing, counsel abandoned those arguments and candidly conceded that "this is not a strong Falun Gong case". Counsel ultimately identified the issue as a narrow one: whether there was a breach of natural justice or procedural fairness so as to give rise to a reasonable apprehension of bias. The basis for this submission is that the RPD failed to provide Mr. Qu with an opportunity to respond to its specialized knowledge thereby creating a reasonable apprehension of bias.
[18] An examination of this issue necessitates reference to the transcript of the hearing to ascertain what transpired and how. It should be noted that counsel on this application is not the counsel who appeared before the RPD.
THE HEARING
[19] The hearing began with Mr. Qu responding to questions from the refugee protection officer (RPO). When asked why he began to practice Falun Gong, Mr. Qu answered that, at the time, he suffered from lots of stress, had problems falling asleep and was advised by his friend to try practising Falun Gong. The questioning continued uneventfully (relative to the matter in issue) and explored the areas of who, what, where, when, and so on. Mr. Qu responded to various questions regarding the origin of Falun Gong and with respect to its exercises. He described his habits in Canada as well as the details and circumstances surrounding his visit to China. Approximately half way through the hearing and after questioning regarding his fear, the RPD asked if Mr.Qu had seen a medical doctor regarding his insomnia. He said that he had and that the doctor had prescribed tranquillizers. The board then asked whether he suffered from insomnia because of his studies and being away from home. Mr. Qu answered "I discovered truly the benefits". The RPD member asked Mr. Qu to please answer the question that had been asked and the following exchange ensued:
PRESIDING MEMBER:
[...] So, just wait for my questions, please, and only answer the question. You're a foreign student here, international student, insomnia. I see many cases like you before me in similar situations actually. So it appears that insomnia is pretty much experienced by all international students.
COUNSEL:
I object.
PRESIDING MEMBER:
Please do object.
COUNSEL:
I don't have an insomnia case. I mean, ---
PRESIDING MEMBER
Well, I've had - this is at least my tenth one. So that's why I'm taking my specialized knowledge and I'm putting it on the table.
COUNSEL:
Well-
PRESIDING MEMBER:
Okay?
COUNSEL:
- I'm -
PRESIDING MEMBER:
I'm putting it on -
COUNSEL:
Then I would like an opportunity to respond to your specialized knowledge.
PRESIDING MEMBER:
That's fine, no problem. Now it appears that insomnia and other reasons that you may have, but in your case you say it was insomnia and you chose to go see a doctor and he gave you a tranquillizer, but it didn't help you but your friend said you can practice Falun Gong. From the cases I've had before me it appears this (sic) something that all of the international students have been practicing who've come before me.
COUNSEL:
I'm going to object again.
PRESIDING MEMBER:
Please?
COUNSEL:
How can you say that all international students have been practicing? You
may see a fairly small portion of international students -
PRESIDING MEMBER:
Madam, please? I just said the ones who have come before me. I didn't
say all. I said the ones that come before me.
COUNSEL:
Actually you before did say -
PRESIDING MEMBER:
Okay? So my question to you is [...]
[20] The board finished its question in relation to Mr. Qu's reasons for taking up Falun Gong and he answered it. The hearing continued and the RPO completed his questions. The RPD then invited Mr. Qu's counsel to conduct her examination. Counsel commented that, before presenting the case, counsel "would like first an opportunity to respond to the panel's specialized knowledge". The board member responded, "Sure".
[21] The "opportunity" to which counsel was referring was an opportunity to enable her to obtain the PIFs of other individuals for the purpose of establishing that the RPD member had "sat on cases that are students that have not claimed Falun Gong or have not claim (sic) insomnia".
[22] It is evident from the transcript that the RPD member was somewhat startled by the nature of the request. Counsel advised that should she obtain cases "that are different than that" she would "raise the issue of bias based on a preconceived notion that's not based on fact". The RPD member asked if there was a motion of bias and counsel indicated that she would like to consider the evidence before deciding.
[23] The board member then attempted to ascertain what it was that counsel was seeking. In response to a request for time, the member indicated it was not a problem, counsel could send representations by mail. Some confusion ensued following which the board member suggested that the examination continue and informed counsel, "you may raise the issue of bias at any time after". At that point, counsel clarified that she wanted an adjournment to consider whether the evidence that she proposed to examine would support a motion (presumably for recusal) on the basis of reasonable apprehension of bias.
[24] The RPD member understood the request to be one for an adjournment and ruled on it in the following terms:
[...] Your motion is denied. For the record I have indicated earlier during the hearing that the many cases I've heard, in particular the recent Chinese cases, on at least three to five cases regarding inter-national students the issue of insomnia and depression has been raised because of the claimants joining Falun Gong.
I have made the claimant aware of this knowledge. I faced that before and in each case the issue is why this leads the claimant to become a practitioner of Falun Gong. Obviously in each case, each case is decided on its own merits and facts and (sic) this case I have given the claimant the opportunity to respond with respect to why he would choose Falun Gong practice to deal with his insomnia. I will make my determination based on the totality of the evidence. Counsel, if you wish to make a motion of apprehension of bias I invite you to do it now.
[25] Counsel made her motion of apprehension of bias based on the fact that the RPD member had qualified her statement from "all" the cases (based on participation in Falun Gong and insomnia) to "three to five" cases. Counsel submitted that the qualification "raises a preconceived notion of the motivation of foreign students in making a refugee claim, overstates the facts and misrepresents the facts as they were then presented just now and that all of that raises at least an apprehension of bias in the mind of the claimant who would think that he would be considered as part of the group of all when in fact, it never was all".
[26] Counsel then asked whether she would be given an opportunity to lead any reply evidence. The board member explained that before rendering a decision, she would like to have some indication as to how counsel proposed to reply. It eventually became evident that, despite the earlier ruling, counsel was again requesting an adjournment.
[27] The RPD referred to the appropriate test for "reasonable apprehension of bias" [Committee for Justice and Libertyv. Canada(National Energy Board), [1978] 1 S.C.R. 369 at p. 386] and concluded that her initial comment, which she subsequently qualified, was not what counsel alleged. The board member stated, "there's no apprehension of bias arising out of panel members seeing similar cases provided that it is brought to the claimant's attention, the claimant is provided an opportunity to explain or comment and the case is dealt with on its own merits and facts". Counsel was asked to proceed.
[28] Counsel elected not to further examine Mr. Qu and the hearing concluded with the oral submissions regarding the claim.
RELEVANT STATUTORY PROVISIONS
| Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
170. The Refugee Protection Division, in any proceeding before it, ... (i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.
Refugee Protection Division Rules, SOR/2002-228 (the Rules)
18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to (a) make representations on the reliability and use of the information or opinion; and (b) give evidence in support of their representations. |
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27 (LIPR)
170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés : [...] i) peut admettre d'office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
Règles de la Section de la protection des réfugiés, DORS-2002-228 (les Règles)
18. Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la personne protégée et le ministre - si celui-ci est présent à l'audience - et leur donne la possibilité de : a) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion; b) fournir des éléments de preuve à l'appui de leurs observations. |
ANALYSIS
[29] I have carefully reviewed the transcript of the hearing in its entirety and I have taken some time here to review the pertinent portions from it. At the judicial review hearing, I inquired as to whether the comment of the RPD member truly constituted "specialized knowledge" within the meaning of section 170 of the IRPA. Counsel responded that since the presiding member considered it to be such, I should not consider it to be otherwise.
[30] I am not convinced that position is correct. It seems to me that the purpose of section 170 of the IRPA and section 18 of the Rules is to protect a claimant in circumstances where the intention of the RPD is to make use of the "specialized knowledge" in determining the claim. It is then that the obligation to provide notice to the parties of the intent to rely on the specialized knowledge arises. Following such notice, the parties must be provided the opportunity to make representations on the reliability and use of the information or opinion and to give evidence in support of those representations.
[31] In this matter, when the member's comment is viewed in the context in which it was made, it strikes me as being an effort to elicit information from Mr. Qu as to the underlying reasons for his stress and insomnia as well as his reasons for turning to Falun Gong as a remedy for those issues. The statement about other international students, in my view, was an innocuous comment that, once made, the board member "put on the table" as specialized knowledge out of an abundance of caution and perhaps rightfully so. I have scrupulously searched the transcript and can find no indication that the RPD member intended to use that information in determining Mr. Qu's claim. I regard the comment as careless and unfortunate. Moreover, the RPD member, subsequently, qualified her initial comment on the record.
[32] That said, I am prepared to proceed, as counsel urges, as if the comment did constitute "specialized knowledge" triggering the obligation set out in rule 18. In context, I find it difficult to fault the board member who, throughout, indicated a willingness to entertain responsive representations and to provide time for counsel to present them in writing. Counsel, however, was fixated on establishing that the RPD member was incorrect. Difficulty ensued because of counsel's proposed method to accomplish her goal. She indicated a desire to examine the personal information forms of other claimants (documents that are regarded as confidential). The board member was understandably confused by such a proposition.
[33] Again, I am prepared to proceed, in accordance with counsel's submission, as if the obligation, to allow the claimant to make representations and give evidence in response, is absolute. The claimant's option, assuming that it exists here, does not translate into an immediate adjournment, as of right. Regard must be had to the circumstances. There may be instances when an immediate adjournment is the only solution. There may be occasions when the board can continue to hear evidence and then adjourn to a later date for the purpose of taking further evidence. There may be circumstances when the hearing can be completed and further written submissions or documentary evidence will suffice. The RPD must be responsive to the situation and each claimant must be treated fairly. Hardfast rules serve no useful purpose because the circumstances will vary from one claimant to the next. Given the proposal of counsel in this case, I do not agree with Mr. Qu that an immediate adjournment was the only solution.
[34] Nonetheless, I will proceed as if I had concluded otherwise and will assume (for the purpose of this analysis) that an immediate adjournment was the appropriate and proper approach to be taken to enable Mr. Qu to make responsive representations to the RPD member's specialized knowledge. I will also assume, as urged by Mr. Qu's counsel, that denying the adjournment constitutes a breach of procedural fairness and a denial of natural justice. Does a denial of natural justice, without exception, vitiate the decision?
[35] This issue has been fully canvassed by my colleague, Madam Justice Tremblay-Lamer, in N'Sungani v. Canada(Minister of Citizenship and Immigration) (2004), 22 Admin. L.R. (4th) 225, 44 Imm. L.R. (3d) 105 (F.C.) at paragraphs 26 through 32 of the reasons for judgment where Justice Tremblay-Lamer summarized the applicable jurisprudence. I concur with and adopt the comments of my colleague. The noted paragraphs are set out here.
¶ 26 Indeed, the jurisprudence supports a more nuanced approach. Ordinarily, a breach of procedural fairness voids the hearing and the resulting decision but an exception to this rule exists (see Kabedi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 545 (F.C.)(QL); Yassine v. Canada (Minister of Employment and Immigration), (1994) 172 N.R. 308 (F.C.A.), [1994] F.C.J. No. 949 (F.C.A.)(QL)). This exception stems from Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, where the Supreme Court of Canada explained that a breach of procedural fairness does not require a new hearing in "special circumstances" where the claim in question is otherwise "hopeless" or the outcome reached was "inevitable": ibid., at paras. 52-54.
¶ 27 Professor Mullan underlines that "the [Supreme Court] has maintained that, save in truly exceptional circumstances, it is simply not appropriate to speculate whether the substantive determination would have been any different had the common law's requirements of procedural fairness been met": D.J. Mullan, Administrative Law (Toronto: Irwin Law, 2001).
¶ 28 However, precisely when this exception can be properly invoked is not obvious. As stated by the Federal Court of Appeal in Yassine, supra:
|
|
10 The limits within which Professor Wade's distinction should operate are yet to be established. Iacobucci J., writing for the Court at page 228, regarded the circumstances in Mobile Oil as "exceptional, since ordinarily the apparent futility of a remedy will not bar its recognition", citing Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643. It should be noted that Cardinal involved a complete denial of a hearing. Here it is not necessary to speculate as to the outcome, assuming of course that natural justice was denied and that there has been no waiver. [See Note 7 below] The adverse finding of credibility having been properly made, the claim could only be rejected. It would be pointless to return the case to the Refugee Division in these circumstances. [footnote omitted] |
¶ 29 It is worth noting that in that case, the Board did in fact give notice that it intended to utilize added information, provided counsel with an opportunity to submit representations in reply, and that no objection was made at the hearing before the Board. For the purposes of considering the exception in Mobil Oil, supra, however, Stone J.A. was willing to assume that procedural fairness had been breached. A new hearing was not ordered because the finding of adverse credibility was "wholly decisive" and "properly made".
¶ 30 Conversely, in Hu v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 788 (T.D.)(QL), O'Keefe J. was unwilling to deny the application for judicial review because he could not discern "how much influence the use of [evidence from a separate hearing] had on the Board's ultimate credibility findings. Furthermore, the non-credibility finding was central to the outcome of the case": ibid., at para. 26. In that case, as in the instant matter, no notice of the Board's reliance on specialized knowledge was provided.
¶ 31 Other decisions reject the application of the Mobil Oil, supra exception where the conclusions reached are not inevitable (Fani v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1030 (T.D.)(QL); Yue v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 863 (T.D.)(QL)).
¶ 32 In my view, the principal established in Yassine, supra stands with a caveat taken from Hu, supra: provided credibility determinations were properly arrived at, and wholly determinative of the application, then the Mobil Oil, supra exception can be invoked to deny a new hearing, assuming there is no reason to suspect that the specialized knowledge in dispute in any way shaped the Board's credibility findings.
[36] In this matter, the specialized knowledge, at its highest, relates to the fact that the RPD member had encountered other international students who practise Falun Gung as a result of insomnia. That knowledge was disclosed to Mr. Qu. Having carefully reviewed the transcript and the board's reasons, I can find no indication that the RPD factored that knowledge into its credibility determinations regarding Mr. Qu and his claim. Thus, I conclude that the RPD did not rely on its specialized knowledge in assessing Mr. Qu's credibility. Were it otherwise, I would nonetheless conclude that the board disclosed its specialized knowledge and, in the circumstances, gave Mr. Qu every opportunity to respond to it. The RPD arrived at its credibility determinations by reference to Mr. Qu's evidence, his responses to the questions asked of him, and the circumstances of his claim.
[37] In my view, the credibility findings are sound. What is more, Mr. Qu abandoned any attack that he had in relation to them. They therefore stand unchallenged. The board member's specialized knowledge did not shape its credibility findings. The findings were properly arrived at and are wholly determinative of the application. In the circumstances, it would serve no useful purpose to remit the matter for a new hearing.
[38] Although I believe that it goes without saying, I add that counsel fell far short of meeting the onus of establishing a reasonable apprehension of bias.
[39] For the foregoing reasons, this application will be dismissed. Counsel did not suggest a question for certification nor is one appropriate.
ORDER
THIS COURT ORDERS THAT the application is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1171-05
STYLE OF CAUSE: DAZHONG QU
(a.k.a. DA ZHONG QU)
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 25, 2006
REASONS FOR ORDER: LAYDEN-STEVENSON J.
APPEARANCES:
| Ms. Cathy Clarke
|
|
| Ms. Ladan Shahrooz |
SOLICITORS OF RECORD:
| Lewis & Associates Barristers and Solicitors Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Toronto, Ontario |