Vancouver, British Columbia, October 11, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Dong Sheng Guo claims to fear persecution in China because he is a Falun Gong practitioner who is wanted by the Chinese Public Security Bureau. The Refugee Protection Division of the Immigration and Refugee Board rejected his claim finding that the applicant was simply not credible.
[2] The applicant now seeks judicial review of the Board’s decision asserting that the Board’s credibility findings were patently unreasonable. The applicant also raises an issue with respect to the order of questioning followed at the hearing in light of this Court’s decision in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 8, 2006 FC 16.
[3] For the reasons that follow, I am satisfied that the application should be allowed.
I. Analysis
[4] The Board found that the applicant was vague and evasive in his testimony and that he did not testify in a straightforward manner. Moreover, the Board found there to be inconsistencies between the applicant’s oral testimony and the documentary evidence, and that aspects of the applicant’s story were implausible.
[5] In accordance with the Board’s practice at the time, the hearing proceeded with the member questioning the applicant first. Although the applicant was represented by counsel, no objection was raised at the hearing with respect to this procedure.
[6] I have read the entire transcript of the hearing and what is readily apparent to me is that the Board member and the applicant frequently did not understand one another and were often speaking at cross-purposes. Many of the member’s questions were lengthy or somewhat convoluted, and it is quite clear that the applicant did not always understand exactly what it was that the member wanted to know.
[7] This is exemplified by a lengthy exchange that occurred between the Board member and the applicant regarding the extent of the applicant’s knowledge of Falun Gong organizations in Canada. Another example of this is a series of questions and answers relating to the nature and extent of the applicant’s dealings with the PSB.
[8] On other occasions, the questions asked by the member were compound in nature and it was not always clear which part of the member’s question was actually being answered by the applicant. An example of this is an exchange between the member and the applicant regarding a demonstration of a Falun Gong exercise provided by the applicant at the hearing.
[9] In this regard, the member said “Okay. Can you tell me why you were doing the movements at all? Did your hands ever touch any part of your body?” The applicant’s response was “Yes”, immediately after which the member asked the applicant an entirely different question. It is not at all clear from this whether the applicant’s positive response was to the first question posed by the member or the second one.
[10] What is clear, however, is that when the member returned to this issue a couple of questions later, the applicant tried to make it very clear that he had never admitted to having touched his body. Nevertheless, the member’s finding that the applicant was not credible was based, in part, on this exchange.
[11] It is commonly recognized that refugee claimants testify in unfamiliar surroundings, are usually not conversant with the process, may be intimidated by people in authority, may suffer from psychological difficulties, and frequently face significant linguistic and cultural obstacles in attempting to communicate their stories. As a consequence, whether a claimant is questioned first by his or her own counsel or by the presiding member, it is obviously important that the questions posed be simple and clear.
[12] This is especially so where, as here, the communication between member and claimant had to be filtered through an interpreter.
[13] While it is undisputed that findings of credibility made by Board members must be accorded considerable deference, in the particular circumstances of this case I am satisfied that it was patently unreasonable for the member to have based his finding that the applicant was vague and evasive in his testimony on answers that clearly evidenced a lack of understanding of the questions posed.
II. Conclusion
[14] For these reasons, the application for judicial review is allowed.
III. Certification
[15] The applicant asks that questions be certified with respect to the Board’s reverse order of questioning policy. Given that my decision does not turn on the propriety of the reverse order of questioning policy itself, I decline to certify any of the questions proposed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed and the matter is remitted to a differently constituted panel for re-determination; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-13-06
STYLE OF CAUSE: DONG SHENG GUO v.MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 5, 2006
REASONS FOR JUDGMENT AND JUDGMENT: MACTAVISH J.
APPEARANCES:
Negar Hashemi FOR RESPONDENT
SOLICITORS OF RECORD:
Marvin Moses Law Office FOR APPLICANT
Toronto, ON
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada