Date: 20050208
Docket: IMM-6088-04
Citation: 2005 FC 202
Calgary, Alberta, February 8, 2005.
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
SHU XU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Mr. Shu Xu, is a citizen of the People's Republic of China ("PRC") who claims a well-founded fear of persecution at the hands of the Chinese authorities because he is a Falun Gong practitioner. Mr. Xu entered Canada on November 21, 2002. In a decision dated
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June 25, 2004, a panel of the Immigration and Refugee Board (Refugee Protection Division)
("the Board") rejected the Applicant's claim. The Applicant seeks judicial review of that decision.
ANALYSIS
[2] Both the Applicant and the Respondent agree that, where there are issues of credibility and findings of fact, the appropriate standard of review is patent unreasonableness (Conkova v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 300 (T.D.) at para. 5; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paras. 55-56). The issue here is simply whether the decision was patently unreasonable in that it was made in a perverse or capricious manner or without regard for the evidence.
[3] In its decision, the Board states that it has "serious concerns with the claimant's credibility respecting the central elements of his refugee protection claim". To support this position it raises the following points:
a. the Applicant entered Canada under a non-genuine passport but then submitted as proof of identity a valid PRC passport valid until October 31, 2004;
b. the Applicant testified orally to an incident in 2000, where he was detained for 24 hours and directed by the police to sign a document stating that he would no longer practice Falun Gong; when he refused they broke one of his fingers. This incident was not recorded on his Personal Information Form ("PIF");
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c. When asked during the initial interview with the immigration officer if he had ever been arrested, the Applicant answered in the negative but then gave oral testimony about the incident involving the police detaining him in 2000;
d. Where the Applicant claims to be a "key member" among Falun Gong practitioners and known to the police, it is implausible that he and his family were not the targets of police harassment.
e. Relying on certain documentary evidence, the Board also determined that the Applicant would not be at risk if returned to the PRC.
[4] I will consider each of these findings in turn.
The Passport
[5] The first concern I have noted was the question of the passport. The Board states in the middle of a paragraph dealing with documentary evidence but never explains why it was a
problem. I am left wondering whether or how this entered into the Board's reasoning. While he did travel on a false passport, this neither speaks to his identity, which was accepted by the Board, nor his credibility, which centred around apparent discrepancies in his oral and written testimony. If the Board felt that failure to provide his genuine passport undermined his credibility, it should have said so and explained why.
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Omission of 2000 Incidentand Detention from PIF and POE Interview
[6] When asked by the Board to explain about omitting the incident at the police station from his PIF statement, the Applicant said that "[t]he more important thing is what happened after". The Applicant is referring to the events of October 17, 2002, when members of the Public Security Bureau discovered that he and ten other persons were practising Falun Gong. The Applicant escaped into hiding, but two members of the group were arrested.
[7] The incident with the police occurred in the early part of 2000, while the events involving the Public Security Bureau that led to the Applicant leaving the PRC did not occur until 2002. The Applicant correctly points out that the PIF is not required to be a complete narrative of a person's claim for refugee status (Li v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 455 at para. 10). And like the Applicant in Li, supra there is no actual inconsistency here between the Applicant's PIF statement and his oral testimony.
[8] The Board notes in its Reasons that the Applicant was asked if he had ever been charged with any crime or subjected to a fine. The Reasons note that the answer to this was "no". The Reasons do not state that the Applicant also said, that "in China they never have any warrant for arrest.....The job for the police is they walk around and see who is practising Falun Gong...they would arrest that people. They don't need a warrant".
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[9] As to whether the intervention of the Court is needed, it is appropriate to draw on the words of Deanault JJ. in Li, supra at para 11, which say:
As for the second inconsistency noted by the tribunal - fear of being arrested or sent to a labour camp - while I personally think that the tribunal was a bit harsh in its conclusion (throughout his testimony, the applicant honestly does not appear to distinguish between arrest, jail and labour camp even when quizzed by the panel member and his own counsel), it is unusual for the Court to intervene in such a finding of fact made by the decision-maker.
[10] The situation here is similar; while I would not have rejected the explanation given by the
Applicant, it was not patently unreasonable for the Board to do so.
Lack of Harassment of Wife
[11] I come now to the point raised by the Board which said that, where the Applicant claims to be a "key member" among Falun Gong practitioners and known to the police, it is implausible that he and his family were not the targets of police harassment.
[12] The documentary evidence before the Board supports this implausibility finding. Even though it was dated in 2002, there was no more recent contradicting documentary evidence in the record. It was not unreasonable for the Board to rely on this evidence or to make the implausibility finding it did.
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Returning Falun Gong Practitioners
[13] I note that the Board, at no time, makes statement about whether or not they accept that the Applicant is, in fact, a practitioner of Falun Gong. Having determined that the Applicant is a national from the PRC, there is evidence in the country condition documents to support the
position that a citizen of the PRC who practises Falun Gong, whether as a senior member or not, may be at risk. The Board's own reasons state:
Since the government banned the Falun Gong in 1999, the mere belief in the discipline (and since January 2002, even without any public manifestation of its tenets) has been sufficient grounds for practitioners to receive punishments ranging from loss of employment to imprisonment. (emphasis added)
[14] While the Board does note that the "Chinese government does not generally mistreat returnees, unless the person has been deported to China more than once", this does not address the situation that the Applicant may be in - that of a practising Falun Gong member living in the PRC - should he be returned. The Board also refers to documentary evidence respecting Falun Gong practitioners who return to the PRC and who may have been active in the movement while abroad. This is not the essence of the Applicant's claim. Rather, the Applicant fears returning to the PRC because of his Falun Gong practices while he was in the PRC - not while he was in Canada. The Board could have rejected the Applicant's testimony that he was a Falun Gong practitioner while he was in the PRC or could have found that he was not known to the authorities to be a Falun Gong practitioner. It did not make these findings. Accordingly, I conclude that the Board, having accepted the Applicant's testimony of being a Falun Gong practitioner in the PRC, was obliged to assess the risk he would face upon his return to the PRC. Failing to do so is a fatal error to the decision.
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CONCLUSION
[15] In conclusion, I find that the decision should not stand. I do not reach this decision on the basis of the credibility findings. Even though it is very difficult to follow the Board's
reasoning, a slender thread of rationality can be cobbled together. However, the Board failed to assess the basis of the Applicant's claim. In other words, the Board did not consider whether, as a Falun Gong practitioner while in the PRC, he would be at risk upon his return. This constitutes a reviewable error.
[16] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed and the matter returned
to a different panel of the Board for re-determination.
2. No question of general importance is certified.
"Judith A. Snider"
JUDGE
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6088-04
STYLE OF CAUSE: Shu Xu v. The Minister of
Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: February 8, 2005
REASONS FOR ORDER AND ORDER : SNIDER, J.
DATED: February 8, 2005
APPEARANCES:
Mr. Richard M. Bennett FOR APPLICANT
Ms. Camille Audain FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Richard M. Bennett
Calgary, Alberta FOR APPLICANT
Mr. John H. Simms, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT