Federal Court Decisions

Date: 20020426

Docket: IMM-1509-01

Neutral citation: 2002 FCT 480

Ottawa, Ontario, this 26th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                     JUN ZHU CHEN

(a.k.a. Junzhu Chen)

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review in respect of the decision of a panel of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated February 28, 2001 (March 6, 2001 is the date of notice), wherein the Board determined that the applicant is not a Convention refugee.

[2]                 The applicant seeks an order setting aside the decision of the Board and referring the matter back for determination by a differently constituted panel.

Background

[3]                 The applicant, Jun Zhu Chen, a citizen of China, claims a well-founded fear of persecution in China on the basis of her perceived religion, political opinion and membership in a particular social group, that is, due to her Falun Gong beliefs and practices.

[4]                 The applicant was born in Shanghai, China. The applicant claims that she was advised to practice Falun Gong by a physiotherapist in order to help with migraine headaches. Having recovered completely from the headaches within six months, she began organizing and promoting a new Falun Gong group. The applicant claims to have participated in the "4.25" demonstration in Zhongnanhai.

[5]                 At the beginning of May, 1999, the applicant went to Nanjing to meet with a Falun Gong organizer, Mr. Fang. However, prior to this meeting, she found out that Mr. Fang had been arrested. She then learned from her mother that the Public Security Bureau ("PSB") had been to the applicant's house looking for her and had seized all of her Falun Gong materials. The applicant never went home again, but heard that the PSB had been back, and had accused her of organizing and promoting Falun Gong, organizing a demonstration and acting against the government. The applicant left China on January 8, 2000. She arrived in Canada on January 9, 2000 and was admitted on a visitor's visa. She claimed refugee status a week later, on January 16, 2000. She has no relatives in Canada. The applicant claims that the PSB is still searching for her, and points out that the Chinese government has since banned Falun Gong.

The Board's Decision

[6]                 The hearing before the Board was held on February 13, 2001. On March 6, 2001, the Board released its decision, finding that the applicant was not a Convention refugee. The Board found that the applicant was not credible. The Board wrote:

The panel is not satisfied with the veracity of the scenario presented by the claimant. First, the panel is well aware that in order to obtain a passport, it has to be authorized by the PSB. This finding is supported by the documentary evidence . . .

In light of the above, it is implausible that the claimant obtained a genuine passport without detection from the authorities. The panel took into consideration the fact that the same organism that allegedly was persecuting her, has the authority to provide her a passport and the respective permits.

Furthermore, the claimant was asked repeatedly how she got her passport. She stated that the agent provided it to her prior to boarding the plane. The panel rejects this allegation. The CVV clearly states that the claimant received the passport and the visa in person at the Canadian Embassy months prior to her travel. Moreover, the claimant went in person to the Canadian Embassy on two occasions in order to obtain her CVV, despite the allegations that she was in hiding, in order to escape the PSB persecution.

In light of the above, the panel has no doubt that the claimant's testimony was shattered by the evidence before the panel. The allegation that she only received her passport prior to her departure is simply untruthful. The claimant was unable to provide a coherent explanation for any of the contradictions and the implausibilities.

In conclusion, the panel cannot accept that the claimant was able to obtain her passport, and exit permit, her visa and a second exit permit, issued and allowed by the same authority that was persecuting her and, furthermore, to exit the country without experiencing any difficulties. Moreover, she was able to visit the Canadian Embassy on two occasions and to obtain her visa with false information, all of this when she was allegedly in hiding. To suggest other wise [sic] strains credulity well past any reasonable point.

As the above credibility concerns are crucial to the claim, the panel finds that they affect the claimant's evidence generally. Consequently, the panel does not believe that the claimant experienced the alleged events that she described in her PIF narrative and that she is wanted by the Chinese authorities for practicing Falun Gong.

[7]                 This is the judicial review of the Board's decision.

Applicant's Submissions

[8]                 The applicant submits that the Board did so err, and argues that these errors are sufficiently serious to warrant the quashing of the Board's decision.

[9]                 The applicant cites Salibian v. Canada (M.E.I.), [1990] 3 F.C. 250, in which the Federal Court of Appeal held, at paragraph 17, that the following are the criteria against which claims to Convention refugee status are to be evaluated:

It can be said in light of earlier decisions by this Court on claims to Convention refugee status that

(1)            the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;

(2)            the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;

(3)            a situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition; and

(4)            the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin (see Seifu v. Immigration Appeal Board, A-277-82, Pratte J.A., judgment dated 12/1/83, F.C.A., not reported, cited in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), at page 683; Darwich v. Minister of Manpower and Immigration, [1979] 1 F.C. 365 (C.A.); Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (C.A.), at pages 133 and 134).

[10]            Applying criteria (1) and (2), the applicant submits it was incumbent on the Board to make a finding as to whether the applicant was an adherent of Falun Gong. The applicant submits that the documentary evidence clearly shows that Falun Gong is a banned practice in China and that its practitioners are dealt with harshly. The applicant submits that the Board did not make a finding with regard to the applicant's association with Falun Gong, notwithstanding its finding that the events in her PIF did not take place. Such a finding must be made in clear and unmistakable terms (see Armson v. Canada (M.E.I.), [1989] F.C.J. No. 800, 101 N.R. 372 (F.C.A.)). Specifically, the applicant points out that the Board failed to mention the pictures of the applicant with Falun Gong groups in Toronto, these photos being evidence of the applicant's continued practice of Falun Gong.

[11]            The applicant cites the decision of the English Court of Appeal (Civil Division) in Ahmed v.Secretary of State for the Home Department, [1999] E.W.J. No. 5882, which states, at paragraph 20, that the determinative question in claims for asylum is whether there is "a serious risk that on return the applicant would be persecuted for a Convention reason" (citing the same court in Danian v.Secretary of State for the Home Department, [1999] E.W.J. No. 5459). In order to answer this question, the applicant submits that the Board must first make a finding with regard to the applicant's identity as a Falun Gong practitioner. The applicant submits that failure to make this finding meant that the Board was unable to answer the central question of whether the applicant risked future persecution, thereby erring in law.

[12]            The applicant emphasizes that, as the definition of Convention refugee is forward-looking, the relevant question is whether the applicant was a Falun Gong practitioner at the time of the hearing. The applicant submits that it is not relevant whether the applicant was a Falun Gong practitioner in the past, nor whether she had been persecuted in the past.

Respondent's Submissions

[13]            The respondent submits that the Board's general finding that the applicant was not credible was sufficient to dispose of any outstanding issues, in that it rejected the applicant's evidence in totality. The respondent points out that the applicant has not contested the Board's credibility findings.

[14]            With regard to the applicant's pro-Falun Gong activities in Canada, the respondent emphasizes certain inconsistencies in the applicant's testimony and submissions at the hearing. Specifically, the applicant initially got the date wrong of a pro-Falun Gong rally, changing her answer from July 20 to July 1. She also made a mistake regarding the location of the rally, initially saying that it was held at City Hall and then agreeing that the building in the background appears to be Queen's Park. The respondent notes that the applicant has not claimed that her participation in the Queen's Park rally could establish a well-founded fear of persecution.

[15]            The respondent submits that the issue to be determined in this judicial review is the adequacy of the reasons given by the Board. The respondent cites Ozdemir v. Canada (M.C.I.), 2001 FCA 331; [2001] F.C.J. No. 1646 (QL), in which the Court of Appeal commented on the criteria to be considered when assessing reasons, at paragraphs 9 and 10:

Decision-makers are not bound to explain why they did not accept every item of evidence before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.

Nor will a reviewing court infer from the failure of reasons for decision specifically to address a particular item of evidence that the decision-maker must have overlooked it, if the evidence in question is of little probative value of the fact for which it was tendered, or if it relates to facts that are of minor significance to the ultimate decision, given the other material supporting the decision.

[16]            The respondent admits that this decision was made in the context of a Post Claims Determination Officer, and that more detailed reasons would normally be expected of a tribunal that renders its decision following an adjudicative hearing (Ozdemir, para. 11). However, the respondent submits that the evidence that the applicant participated in a pro-Falun Gong rally was a minor aspect of her claim, and therefore not caught by any requirement for greater detail.

[17]            Issues

1.          Did the Board err in not addressing the issue of whether the applicant was presently a believer and practitioner of Falun Gong?

2.          Did the Board err in failing to address the issue of whether the applicant might face persecution on her return due to her adherence to Falun Gong?

Relevant Statutory Provisions, Regulations and Rules

[18]            The definition of "Convention refugee" found in section 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, reads as follows:

"Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

« réfugié au sens de la Convention » Toute personne_: a) 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_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.

Analysis and Decision

[19]            Issue 1

Did the Board err in not addressing the issue of whether the applicant was presently a believer and practitioner of Falun Gong?

I have reviewed the Board's decision and I have come to the conclusion that the Board did not make any finding with respect to whether the applicant was a member of the Falun Gong group. The Board did not believe the applicant's story with respect to her persecution in China but it did not address whether she was a member of the group. This finding was necessary in order to determine whether or not the applicant was a Convention refugee. The decision does not address the Falun Gong activities in Toronto. This evidence should have been considered (see Jian Jiang v. M.C.I. 2002 FCT 64; [2002] F.C.J. No. 84 (QL)). It was a reviewable error for the Board not to make this determination.

[20]            Issue 2

Did the Board err in failing to address the issue of whether the applicant might face persecution on her return due to her adherence to Falun Gong?

As has already been stated in paragraph 8 of this decision, the Federal Court of Appeal in Salibian, supra set out the criteria against which claims to Convention refugee status are to be evaluated. For ease of reference, the first two of these criteria are repeated:

It can be said in light of earlier decisions by this Court on claims to Convention refugee status that

(1)            the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;

(2)            the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged; . . .

[21]            The Board in this case made a finding that it did not believe that the applicant herself had been persecuted but that is not the end of the matter. The applicant can show that the fear the applicant has is based on the acts committed or likely to be committed against others who belong to the same group as does the applicant. There is evidence in the record that members of the Falun Gong group have been persecuted in China. The applicant's refugee claim could succeed based on her membership in the Falun Gong if the Board was to find that members of the Falun Gong group were or were likely to be persecuted. This is why it was so important to determine in clear language whether or not the applicant was a member of Falun Gong. The Board did not complete the analysis with respect to persecution due to the applicant's membership in Falun Gong as it did not determine whether or not she was a member of Falon Gong. This was a reviewable error by the Board.

[22]            The application for judicial review is allowed.

[23]            Neither party wished to propose a serious question of general importance.

ORDER

[24]            IT IS ORDERED that the application for judicial review is allowed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 26, 2002