Federal Court Decisions

Date: 20060907

Docket: IMM-7603-05

Citation: 2006 FC 1073

Ottawa, Ontario, September 7, 2006

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

MING FANG CHEN

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

I.          Introduction

[1]               The Immigration and Refugee Board (Board) denied the Applicant’s claim for refugee protection brought on the basis of her involvement in illegal Falun Gong activities in China. The Applicant seeks judicial review of that decision principally challenging the Board’s credibility finding that she would not have engaged in these activities because of the risk of arrest and imprisonment.

II.         Facts

[2]               The Applicant claimed that she was employed by her uncle in China and, at that time, did not engage in Falun Gong activities. At the request of her uncle, she photocopied and delivered Falun Gong materials to two of her uncle’s friends. She claimed that her father was arrested which caused her to flee to Canada where she took up Falun Gong practice.

[3]               The Board found the Applicant not to be a credible witness. It found her story implausible because she knew that this might lead to her arrest and imprisonment. Having made this credibility/plausibility find, the Board discounted the rest of her story including her father’s imprisonment and the bona fides of her conversion in Canada to Falun Gong.

[4]               The Applicant raised three issues in this judicial review:

·                    the failure of the Board to inquire further into her Falun Gong belief and practice;

·                    the failure to properly assess her conversion to Falun Gong; and

·                    the failure of the Board to properly consider and articulate its credibility/plausibility finding. This issue is the principal issue in this judicial review.

III.       Analysis

[5]               On the issue of further questioning as to her Falun Gong beliefs, there is no obligation on the Board to engage in such questioning, particularly where an applicant was represented, as she was, by counsel. (El Jarjouhi v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No 466 (QL))

[6]               The Board did assess the Applicant’s recent conversion to Falun Gong but held that she was not a bona fide practitioner and likely began her practice in Canada to advance her refugee claim (Decision, page 3). The Board’s conclusions on this matter are directly linked to its principal credibility/plausibility finding against the Applicant.

[7]               As to this credibility/plausibility finding that she did not engage in the photocopying and distribution of Falun Gong materials due to the legal risks to her, it is well established law that such findings are entitled to the highest degree of curial deference. (Aguebor v. Canada (Minister of Employment and Citizenship) (1993), 160 N.R. 315; Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1194)

[8]               Contrary to the Applicant’s submissions, the Board did articulate its reasons for this key finding. It examined such factors as her age and relationship with her uncle which might motivate her to copy and distribute. The Board also examined such factors as the Chinese government’s practice of censorship, surveillance, monitoring and arrest and detention.

[9]               It is evident that against this background and given her personal lack of commitment to Falun Gong, the Board concluded that this Applicant would not likely be prepared to take the risk associated with assisting in the copying and distribution of Falun Gong materials.

[10]           There was ample evidence before the Board upon which it could conclude that the Applicant’s story was not credible. This includes her own contradictory answers that she was prepared to copy the Falun Gong materials because there was little risk in so doing and her subsequent answer that, having done so, she had to distribute the materials because of the high risk of possessing them.

[11]           In my view, the Board had evidence from which it could reasonably conclude as it did. Further, the Board sufficiently articulated its rationale for reaching that conclusion.

[12]           Therefore, this application for judicial review must be dismissed. There is no question for certification.

JUDGMENT

            IT IS ORDERED THAT this application for judicial review is dismissed.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-7603-05

STYLE OF CAUSE:                          MING FANG CHEN

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      September 6, 2006

REASONS FOR JUDGMENT

AND JUDGMENT:                          Phelan J.

DATED:                                             September 7, 2006

APPEARANCES:

SOLICITORS OF RECORD: