PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
APPLICATION
[1] This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) for judicial review of a decision, dated April 6, 2005 (Decision), of the Refugee Protection Division of the Immigration and Refugee Board (Board) that determined the Applicant was not a Convention refugee or a person in need of protection.
BACKGROUND
[2] The Applicant is a citizen of China. She says that she publicly practised Falun Gong in China from October 1998 until it was banned in July 1999. She claims to have practised secretly and independently thereafter until she joined a group in March 2003. The Applicant says her group was raided by the Public Security Bureau (PSB) in August 2003, and that she was arrested, detained, questioned and beaten by police. She was released two months later after signing a statement condemning Falun Gong and promising to cease practising. She was released on the conditions that she not leave her city of residence for two years and that she report to a PSB station twice weekly. She was warned that failure to comply with these conditions could lead to her arrest and further incarceration.
[3] The Applicant decided she could not live under the imposed conditions. She left her then eight-year-old son in the care of her parents and came to Canada, where she made a refugee claim. She alleges that she learned that the PSB subsequently searched her home in an attempt to locate her, and that a Neighborhood Committee periodically visits.
DECISION UNDER REVIEW
[4] The Board held that the Applicant's claim was not credible. The narrative contained in her Personal Information Form (PIF) was "strikingly similar" to that of six other PIFs, and "it truly resembles a "boiler-plate" story" (Decision at page 2). The Board provided a comparison chart summarizing the contents of each Falun Gong narrative (Decision at page 3). Each narrative alleged that the claimant practised Falun Gong and continued practising after it was banned. Each claimant then joined a group of Falun Gong practitioners, but the group was raided by the PSB. In each PIF, the claimant was arrested, interrogated, beaten, and then released. Also, each claimant signed a pre-printed form denouncing Falun Gong, and requiring that she or he report regularly to the authorities. Each claimant was also required to remain in his or her place of residence.
[5] The six other PIFs were disclosed to the Applicant prior to the hearing and she was invited to comment. She explained that fellow Falun Gong practitioners had similar experiences to her own, and that their Master, Li Hongzhi, instructed them to tell the truth. The Applicant was asked to explain the presence of untrue statements regarding her travels to Canada. She replied that had she remained in China she would have been beaten. The Board held that these answers "are indicative of a claimant who was capable of responding quickly and in an assertive manner" (Decision at page 4).
[6] The Board noted that the same interpreter, Mr. Mike Yang, had signed all seven PIFs, and that he had testified in one of the cases held prior the Applicant's hearing. Mr. Yang had referred the claimants to Mr. Savaglio, the Applicant's counsel. Mr. Yang said he had developed a list of questions regarding Falun Gong claims. The Board felt that the list had been employed from around February 2002 until mid-May 2004, despite the interpreter's claim that he used the questions for only a short time.
[7] Mr. Yang claimed he did not volunteer a story, and he only helped individuals he believed were genuine refugee claimants. He said he recorded claimant's statements to form a story, but he never doubted or challenged what the claimants said. The Board noted that Mr.Yang's claim that he assessed a claimant for genuineness was inconsistent with his assertion that he did not doubt or challenge the stories they provided. When confronted with similarities between the seven narratives, Mr. Yang said that over time his writing became automatic. The Board made no finding regarding Mr. Yang's credibility but held that it would be unacceptable for Mr. Yang to assume responsibility for the issue of the Applicant's credibility.
[8] The Applicant's counsel submitted that the similarity between the PIFs was a function of the similar situations of individuals applying for refugee status and the similar treatment they received from the Chinese authorities. Although the Board accepted that practitioners of Falun Gong are at risk of persecution in China, and that "guarantee statements" are part of the harassment and persecution, the Board noted that the documentation, including country reports and newspaper articles, describes a variety of individual experiences. For this reason, the Board gave the documents labeled as Exhibit C-8 little weight.
[9] The Board held that the Applicant was responsible for her own written narrative. Given the similarities between the PIF statements, the Board determined that the Applicant's PIF narrative was insufficiently personal to be credible, and drew a negative inference regarding the truth of her story.
[10] The Board also found the Applicant's explanation for her decision to leave China was not credible. She had left her son behind. She said she feared her migraine headaches and neck pains (experienced before becoming a practitioner of Falun Gong) would return. When asked why she could not continue to practise Falun Gong in private in China, she said that while doing the fifth exercise (a sitting position with legs crossed) she was unable to stand up, and if the PSB intruded, they would think she was practicing Falun Gong. The Board found this explanation implausible given the Applicant's previous ability to practise privately undetected for 32 months. The Board suggested that, in essence, the Applicant was asking the Board to believe that her difficulties in resuming the secret practise of Falun Gong outweighed the advantages of remaining in China with her son.
[11] The Board was also concerned with the Applicant's demeanour. At times she was assertive, but she would also interrupt the interpreter before he could finish translating a question. She gave inconsistent testimony, stating that she had to report to the Neighbourhood Committee instead of the PSB. She initially confused her date of arrest with her date of release, and she changed the year in which she claimed to have obtained photographs that showed her practising Falun Gong in Toronto. She also initially failed to mention that her Falun Gong group alternated the location and timing of meetings as a precautionary measure.
[12] The Board also took issue with the Applicant's explanation that she had not read Zhuan Falun, a book written by Master Li Hongzhi. She claimed she did not understand it. The Board found this answer "strange," given the Applicant's eleven years of formal education (Decision at page 10). The Board also noted that several parts of the book contain lectures that are interesting and are not abstract, and found that the Applicant's answers eroded her credibility.
[13] All in all, the Board held that, on a balance of probabilities, the Applicant's story was not credible. It did not believe she was arrested for practising Falun Gong or that the authorities were looking for her because she had left China.
[14] In reaching this conclusion, the Board took note of the original summons document supplied by the Applicant, but gave it little weight because fraudulent documents are readily available in this kind of situation. The photographs of the Applicant practising Falun Gong were also given little weight because anyone can join a Falun Gong group in Canada, and the Applicant had approximately fifteen months after arriving in Canada to learn Falun Gong. On a balance of probabilities, the Board held it was likely that the Applicant had learned Falun Gong to support her refugee claim.
ISSUES
[15] The Applicant raises one broad issue:
1. Whether the Board erred in law by basing its decision on an erroneous finding made in a perverse or capricious manner or without regard to the evidence?
APPLICANT'S SUBMISSIONS
[16] The Applicant says that finding her story was not credible because of the "boiler-plate" nature of her PIF narrative was patently unreasonable. She submits that both the interpreter's explanation and the evidence on the record corroborating the consistent mistreatment of Falun Gong practitioners reasonably explain the similarities between the PIFs.
[17] She also says the Board made a capricious decision to attach no weight to the photographs corroborating her participation in Falun Gong activities in Toronto. Also capricious and patently unreasonable was the finding that the Chinese summons to attend court for having failed to report to the authorities after her release was of little weight. She also submits that, even if she had only started practising Falun Gong upon arriving in Canada, the Board failed to properly assess the probability of persecution and/or harm if she returned to China.
[18] If the above do not, individually, constitute errors of law, then the Applicant submits that the Decision should be set aside if the errors are considered cumulatively (Molina v. Canada (Minister of Manpower and Immigration (1975), 12 N.R. 317 (F.C.A.)).
RESPONDENT'S SUBMISSIONS
[19] The Respondent submits that it was open to the Board to find that the "boiler-plate" narratives could not have existed independently. Given the similarities in the accounts, including word for word similarities at certain parts, there was sufficient evidence for the Board to infer that it was implausible for seven similar claims to be filed (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, [1993] F.C.J. No. 732 (QL) (F.C.A.)).
[20] The Respondent submits that it was open to the Board to give little weight to the photographs of the Applicant practising Falun Gong in Canada. The Board simply did not believe the Applicant's story. It did not believe that she would leave her child in China, or that she would be unable to get up from a cross-legged Falun Gong position if the PSB intruded.
ANALYSIS
[21] The Board's credibility findings should be evaluated on a standard of patent unreasonableness (Aguebor, above; Pissareva v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2001 (QL) (T.D.); Umba v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 17 (QL) (F.C.)). While the Board made a negative credibility finding, in my view it gave insufficient reasons to sustain its conclusions. While the patent unreasonableness standard requires a high level of deference to the Board, the Decision should nonetheless be quashed and the matter sent back for reconsideration.
[22] There are two findings by the Board that I find are sustainable. On the issue of the photographs provided by the Applicant, it was reasonable for the Board to accord them no weight. The photographs showed the Applicant practising Falun Gong in Toronto. They do not provide any evidence of the Applicant practising Falun Gong in China.
[23] I also believe it was open to the Board to discount the Applicant's testimony that she believed she could not practise Falun Gong in private in China. While I do not necessarily agree with the Board's conclusion, it was not patently unreasonable for the Board to find the Applicant's explanation was not credible. I note, however, that although the Board's questions as to why the Applicant could not practise Falun Gong in private in China may have assisted the Board in determining credibility, I find these questions disturbing within the context of a refugee hearing. Such questions presuppose that it might be acceptable for a person to be forced to practise Falun Gong in private. A Falun Gong supporter should not have to choose between practising alone and practising openly with her group. Nonetheless, the question was asked, the answer was somewhat puzzling, and an adverse inference was drawn from it. Read in that context, I am not convinced that the Board's finding was patently unreasonable.
[24] I turn now to the problematic issues. I have great difficulty with the Board's finding that the Applicant's story was not credible because of the "boiler-plate" nature of her PIF. Under the circumstances, this conclusion did not accord with common sense and rationality and, in my view, was patently unreasonable. The Board said:
I am aware of the requirement that I believe the claimant unless I have reason to believe otherwise (Maldonado); however, common sense tells me that seven such similar PIF narratives cannot come independently from seven different claimants who do not know each other, who have no knowledge of why the PIF narratives are so similar, who in many cases lived in widely separated Chinese cities, and who all happen to have employed the same interpreter and counsel. Given the submission of seven strikingly similar PIF narratives, on a balance of probabilities, I find this claimant's PIF narrative is insufficiently personal to be credible. The similarities are so striking that I take a negative inference with respect to the veracity of the story alleged by the claimant in this case. [Footnotes omitted.]
[25] The Board is, of course, entitled to rely on criteria such as rationality and common sense (Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (QL) (C.A.) to draw negative inferences. However, in this case, I do not believe that common sense dictates that simply because the seven PIFs were similar, it is more likely than not that the Applicant's narrative is not true. And I believe that such a conclusion ignores the evidence before the Board as to why the PIFs were similar.
[26] The Board correctly found that the seven PIF narratives are "strikingly similar". However, just because the narratives were recorded in a "boiler-plate" form does not mean that the claimants were all using a canned story. Rather, on the facts of this case, the evidence was that the boiler-plate format of the PIF narratives was developed by the translator.
[27] The translator, Mr. Yang, admitted that he used a list of questions to facilitate the process of recording the refugee claims. Although he said he only used the list for a short time, the Board held that it appeared as though the list was used from February 2002 until mid-May 2004 (Decision at page 5). The list of questions is found at page 299 of the Certified Tribunal Record. The order of the questions is noteworthy, and accords with the skeletal nature of the PIFs that were produced.
[28] I have no doubt that the use of a standard form of questions is problematic for several reasons. But for the purpose of this analysis, the most important factor is the obvious similarity between the questions and the format of each of the seven PIFs. Even if one were to believe that the translator was not using the list of questions for the Applicant's PIF, it is possible, and in my view highly probable, that the translator was using a template. This reasoning is a strong explanation as to why identical wording was used at some points in the PIFs. It also explains why the home of each Falun Gong practitioner where the raid occurred is mentioned in all cases, which was one consistent feature flagged by the Board as suspicious. The reason for this consistency is apparent when it is noticed that the translator's question #10 asks "At whose home were you practicing (sic)when the police came?"
[29] The Board was left "puzzled and without any sufficient explanation to account for the similarities of the PIF narratives, including the one in this case." This puzzlement is apparently due to the fact that the Board made "no adverse finding whatsoever regarding the credibility or integrity of Mr. Yang." Mr. Yang explained the similar narratives by saying that his writing would become automatic and that it "comes out of your head." These explanations appear to have been accepted by the Board. It would be more rational, and in my view make more sense, to infer that the translator was working off of a set format of some sort. Yet the Board then concluded with respect to Mr. Yang as follows:
[h]is account of how the PIF narratives came to be so similar notwithstanding, his explanation is too convenient to excuse the claimants from their responsibility to provide a PIF narrative that documents a credible account of their own personal experiences.
[30] The Board held that because the Applicant's PIF was similar to other PIFs, her account must be "insufficiently personal to be credible." In my view, this leap from determining that the PIFs were similar to concluding that the account in her PIF was not her personal experience is a reviewable error. Mr. Yang wrote the Applicant's account into a template. Within this template, the Applicant's personal experiences are still obvious. The PIF details the date she joined an underground Falun Gong movement, the events leading to her arrest, and her release.
[31] In short, I believe that the Board failed to use common sense when it did not take into consideration the translator's explanations for the similarities between the PIFs that he wrote. The Board erred by finding the Applicant's account must be "insufficiently personal to be credible." Although credibility findings are subject to a highly deferential standard, under the circumstances it was patently unreasonable to make inferences and conclusions that were not based on rationality or common sense as required by Shahamati.
[32] I would like to add two other instances where I am satisfied that the Board acted in a patently unreasonable manner by highlighting minor discrepancies to assess the Applicant's credibility.
[33] First, the Board said the Applicant failed to mention that her Falun Gong group met at 6:30 AM at least partly as a precaution to avoid being detected by the PSB. However, the Applicant provided a clear, reasonable explanation for this omission. She explained that the group met at this time to enable group members who worked to be able to commute to work after the Falun Gong session. She then admitted that this also served as a precautionary measure. In my view, it is understandable that the Applicant forgot this measure, since it fulfilled a dual role. She clearly explained the 6:30 AM meeting time, and in my view it was unreasonable to use this testimony to negatively assess her credibility.
[34] Second, I believe the Board acted in a capricious and patently unreasonable manner by finding the Applicant's admission that she has not read Zhuan Falun as indicative of a lack of credibility. The Applicant stated that she had not read Zhuan Falun because she "could not comprehend" it and because it is "very, very deep." The Board addressed her answer as follows:
Again, this answer seems strange given that the claimant has eleven years of formal education, and is allegedly so committed to FG that she left China and her family to continue practicing. Many claimants say the main benefit of group practice, in addition to the physical synergy, is the benefits derived from discussing Master Li's writings. I note that while a few parts of Zhuan Falun may be considered philosophical or abstract, there are many interesting lectures that are not abstract at all, and in this regard the claimant's comments make little sense, again indicative of credibility on her part [Decision, at pp. 10-11; citations omitted].
[35] These comments include Footnote 22, where the Board provides an example of a non-abstract, interesting lecture contained in Zhaun Falun. In my view, these comments cross the line of appropriate analysis by engaging in a highly relative and speculative treatment of what constitutes membership in a Falun Gong group. Some claimants may say that discussing Master Li's writings is a main benefit of group practise; however, it does not follow that this was the main benefit to joining Falun Gong for this Applicant. In fact, the Applicant explained that the major benefit to her was the relief from physical pain she had experienced since taking up the practise of Falun Gong. The Board's comments regarding the "interesting" reading to be found in Zhaun Falun, in my view, fail to consider the reasonableness of the Applicant's answer that, for her, the writings are generally complex and abstract.
[36] I find that the Board's treatment of the Applicant's answers regarding the 6:30 AM meeting session was an improper and overly zealous effort to find instances of contradiction in the Applicant's testimony. Both the treatment of her answer regarding meeting times, and of the Applicant's reasons for not having read Zhaun Falun, reflect an over-vigilant, microscopic examination of the evidence in order to find the Applicant not credible (Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (QL) (C.A.)).
[37] In my view, even if these findings related to credibility are not independently fatal to the Decision, the cumulative effect constitutes reviewable error in this case (Molina).
[38] As regards the similarity in PIF narratives, I see that Justice Campbell in Bao v. Canada(Minister of Citizenship and Immigration), 2006 FC 301 came to similar conclusions on a similar set of facts. I certainly agree with him that the erroneous credibility finding related to the similar PIFs was so central to the Decision as a whole that it would be extremely unsafe to allow this Decision to stand.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is allowed. The Decision dated April 6, 2005 is set aside and the matter is returned for reconsideration by a differently constituted Board of the Refugee Protection Division of the Immigration and Refugee Board.
2. There is no question for certification.
"James Russell"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2745-05
STYLE OF CAUSE: HONG ZHANG
APPLICANT
and
MINISTER OF CITIZENSHIP & IMMIGRATION
RESPONDENT
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 14, 2006
APPEARANCES:
Mr. John Savaglio
Ms. Catherine Vasilaros
SOLICITORS OF RECORD:
Mr. John Savaglio
Barrister & Solicitor
Pickering, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada