Date: 20050411
Docket: IMM-8850-04
Citation: 2005 FC 477
Toronto, Ontario, this 11th day of April, 2005
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
CHUN JIU JIANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The basis of Mrs. Jiang's claim for refugee protection is that as a practicing adherent of Falun Gong she has a well-founded fear of persecution in her native China. The Refugee Protection Division of the Immigration and Refugee Board found that she was not a Falun Gong practitioner and therefore was not a Convention refugee or a person otherwise in need of Canada's protection. This is a judicial review of that decision.
[2] Mrs. Jiang came to Canada in 2003 on a three-month visitor's visa, which was extended a further three months so that she could help care for her son's baby in Montreal. She only claimed refugee protection four months after her arrival here.
[3] She says she developed an interest in Falun Gong in late 1998, and practiced openly until the group was outlawed the following year. She continued to practice secretly at home, and no one else but her husband knew about it.
[4] On arrival here, she joined a group of Falun Gong practitioners in Montreal, claims to have been involved in the sending of literature and video discs to China, and got swept up in a protest outside the Chinese Embassy in Ottawa, where she was likely photographed and videotaped. The very next day, she claimed refugee status.
[5] She was in regular telephone communication with her husband, and a few weeks later he told her that he had been visited by the authorities who were aware of her Falun Gong activities in Canada. The police ordered him to induce her to name those in Montreal who practice Falun Gong and to identify the leaders and financial donors. Just before her refugee hearing, her husband told her that he continued to be "disturbed" by the authorities.
[6] Documentary evidence before the Board indicated that families of known Falun Gong practitioners are severely punished and exposed to high pressure tactics. The Board member considered it very significant that Mrs. Jiang's husband does not appear to have suffered serious consequences which normally would have been the case for family members. Furthermore, the "orders" from the authorities were verbal, while documentary evidence suggests that there should be "guarantee letters". The member concluded that Mrs. Jiang had not been identified to the authorities as a Falun Gong practitioner. That may be so, but the case turns on the following: "the Tribunal does not believe the claimant is a Falun Gong practitioner as alleged".
[7] It is well established that one cannot simply disbelieve a claimant, one has to give reasons. These are the reasons given by the Board member:
The claimant testified that despite the July 1999 ban on Falun Gong, she intended to return to China before the alleged incident of December 2003. This means that she was planning to do so, despite the fact that she knew of the persecution of Falun Gong practitioners. The claimant was asked if she was in fear of returning to China. Her response was not relevant to the question. The tribunal does not believe that, if she were a Falun Gong practitioner, she would risk returning to China knowing the current situation regarding Falun Gong practitioners in China...
[8] The simplest probing of the record shows that Mrs. Jiang explained clearly and in relevant terms why she was in fear of returning to China:
Q: ... Why, when you came to Canada, would you ever think of going back to China, as a Falun Gong practitioner?
A: Because at the beginning also, I was already a practitioner of Falun Gong, I was not ... my practice of Falun Gong was not discovered by the Chinese authorities. And I also understood that I can practice Falun Gong here, in Canada, safely. So that's why I thought I could go back safely.
[9] The basis of her fear was that she was now "discovered" by the Chinese authorities. Indeed, it might be difficult for the authorities not to "discover" her, if she deliberately paraded up and down in front of their embassy.
[10] Although the Board is not bound by the strict rules of evidence, nevertheless it has to keep in mind the distinction between direct and indirect evidence. For instance, paragraph 1.06 of the 15th edition of Phipson on Evidence points out that indirect or presumptive evidence is a fact which may be logically inferred from other facts which are proved. Direct evidence is obviously superior in that it contains only one possible source of error, "fallibility of assertion", while indirect evidence has in addition "fallibility of inference". In this case, the inference was patently unreasonable. What is at issue is what might happen to Mrs. Jiang if she were to return to China, not what allegedly happened to her husband.
[11] It may well have been open for the Board member to conclude on other grounds that Mrs. Jiang is not a Falun Gong practitioner, or in any event does not have a subjective fear of persecution. On the one hand, the delay of several months in filing a claim is disturbing; on the other she filed her claim before alleged corroboration from her husband (and we only have her word for it) that the authorities in China were on to her. It might have been appropriate to consider whether she was a refugee "sur place" or, since the only potentially provable public manifestation of her Falun Gong practice occurred in Canada, whether this was a conversion for convenience.
[12] Although speaking in the context of criminal courts, in R. v. Sheppard, [2002] 1 S.C.R. 869, Mr. Justice Binnie said at page 879, paragraph 15:
Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.
[13] In this case, the reasons given were patently unreasonable and it does not fall upon this Court in judicial review to explore whether more reasonable routes could have been followed to arrive at the same conclusion.
[14] For these reasons, judicial review is allowed. The matter is to be referred back for redetermination by a differently-constituted panel. There is no question of general importance for certification.
ORDER
The application for judicial review of the decision rendered 5 October 2004 by the Immigration and Refugee Protection Board in its file no. MA4-00928, is granted, and the matter referred back to a differently constituted panel for redetermination.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8850-04
STYLE OF CAUSE: CHUN JIU JIANG
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: APRIL 7, 2005
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: APRIL 11, 2005
APPEARANCES:
Michael N. Bergman FOR APPLICANT
Andrea Shahin FOR RESPONDENT
SOLICITORS OF RECORD:
Bergman & Associate FOR APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada