Ottawa, Ontario, June 26, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Li Juan Gu's claim to be a Convention refugee and a person in need of protection was dismissed by the Refugee Protection Division of the Immigration and Refugee Board (Board) because it found her evidence was not credible.
[2] The standard of review to be applied to the Board's findings of credibility is patent unreasonableness. A high level of deference is given because under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 it is the Board that is responsible for making findings of fact and credibility in respect of refugee claimants, and it is the Board that has the opportunity to observe first-hand the demeanour of claimants and other witnesses who appear before it. Notwithstanding the deference owed to the Board's findings of credibility, I have concluded in this case that its findings were patently unreasonable. Therefore, for the reasons that follow, this application for judicial review is allowed.
[3] No discrepancies between Ms. Gu's oral testimony and her Personal Information Form were identified by the Board, nor did it rely upon any contradictions or inconsistencies within her testimony. Rather, the Board relied upon three instances where it found Ms. Gu's evidence to be implausible, and upon its conclusion that her delay in claiming protection revealed a lack of subjective fear. Specifically, the Board found:
1. Given China's elaborate administrative and security system, combined with the Chinese government's harsh intolerance towards Falun Gong, it was implausible that Ms. Gu's group would be able to practise Falun Gong for more than four years without detection.
2. Given that the Chinese government monitors the internet, it was implausible that Ms. Gu sent Falun Gong information by e-mail to her fellow practitioners once a week from June to December of 2003.
3. It was implausible that when Ms. Gu returned to China for a visit in June of 2003 she would continue her practice of Falun Gong, albeit in secret.
4. Ms. Gu delayed in claiming refugee protection in Canada.
[4] Dealing first with the Board's conclusions that aspects of the testimony were implausible, where the Board finds a lack of credibility based on inferences, including inferences concerning the plausibility of the evidence, there must be a basis in the evidence to support the inferences (see, for example: Miral v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 254 (F.C.T.D.) at paragraph 25). Put another way, inferences must be based upon more than an intuitive reaction to evidence.
[5] With respect to the first finding of implausibility, the Board concluded that the group Ms. Gu clandestinely practised Falun Gong with would probably have been observed and reported "because the panel finds that there is probably no concept of privacy in China, which would probably allow the practice to go undetected for such a prolonged period". This finding was based only upon a listing by the Board of the various entities that make up China's administrative and security system. The country condition information cited by the Board did not speak to the effectiveness of the security apparatus in apprehending clandestine practitioners. The Board's inference was, therefore, not supported by the evidence identified by the Board. The documentary evidence shows that the Chinese government continues to attempt to identify persons who practise Falun Gong, therefore there are those in China who have not yet been detected by the government.
[6] Turning to the second finding of implausibility, the evidence before the Board with respect to the efforts of the Chinese government to monitor use of the internet was as follows:
· Internet use continued to grow in China, even as the Chinese government continued to intensify its efforts to monitor and control its use. During 2003, the Chinese government blocked many web sites.
· The authorities monitor facsimile transmissions, e-mail, and internet communications.
· China's internet control system was allegedly the largest in the world. The government blocked at least 19,000 internet sites during a six-month period in 2002 and may have blocked as many as 50,000 sites. Blocking technology was also used to block e-mails containing sensitive content. The government generally did not prosecute citizens who received dissident e-mail publications, but forwarding such messages to others sometimes did result in detention.
[7] In making this implausibility finding the Board did not deal with Ms. Gu's testimony that at first it was very easy for her to send information through the internet, but that since the summer of 2002 censorship of internet mail had become more severe. Accordingly, to avoid such censorship, she testified that she transferred downloaded documents to a "Word" format and then sent the information by way of attachment. She testified that using this methodology she was successful in her attempts to send this information so that it was not blocked by the authorities. While the documentary evidence certainly supported the Board's conclusion that the Chinese government monitors internet communications, it was incumbent on the Board to explain why it rejected the claimant's explanation as to how she nonetheless avoided having her e-mails identified and blocked.
[8] The Board also doubted Ms. Gu's evidence on this point because it did not find it to be credible that she would put her fellow practitioners at risk of discovery by sending illegal materials by e-mail to China. This, however, with respect, ignored Ms. Gu's evidence that both she and the recipient of the e-mails worried about the prospect of discovery, but that they took the risk due to their commitment to Falun Gong. In rejecting this testimony, the Board ignored the fact that victims of persecution do continue to risk detection because of their commitment to their beliefs and their refusal to disavow or suppress such beliefs.
[9] The Board went on to find it implausible that when Ms. Gu returned to China for a visit she continued to practise Falun Gong in secret in China. Again, this ignores the fact that many people continue to practise their beliefs or express their political opinion notwithstanding the danger of persecutory treatment. It is because it is not reasonable to require such people to suppress their behavior that international protection exists for those who do establish a genuine, well-founded fear of persecution. Accordingly, it was not open, in my view, for the Board to reject Ms. Gu's testimony as implausible for the reason given.
[10] As for the Board's final finding, relating to the delay in claiming protection, it is not clear from the Board's reasons whether the delay it pointed to was Ms. Gu's failure to claim after she learned on December 18, 2003 of the arrest of her friend and fellow practitioner or whether the delay related to the time after February 27, 2004 when her mother told her that the Public Security Bureau was inquiring about her. The claim for protection was made on March 11, 2004.
[11] It is well settled law that a delay in seeking refugee status may be a relevant factor when assessing a claimant's credibility. However, delay in claiming protection cannot, in and of itself, justify the rejection of a claim to Refugee status or to protection. It follows that the Board's finding with respect to delay is, by itself, an insufficient basis for maintaining its denial of the claim.
[12] For these reasons, the application for judicial review will be allowed and the decision of the Board will be set aside. Counsel posed no question for certification and I agree that no question for certification arises on this record.
JUDGMENT
[13] THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division dated June 27, 2005 is hereby set aside.
2. The matter is remitted for redetermination before a differently constituted panel of the Refugee Protection Division.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4248-05
STYLE OF CAUSE: GU LI JUAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 13, 2006
APPEARANCES:
MAX CHAUDHARY FOR THE APPLICANT
DAVID CRANTON FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAX CHAUDHARY FOR THE APPLICANT
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA