Hou v. Canada (Minister of Citizenship and Immigration), (2012) 417 F.T.R. 19 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: June 11, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 417 F.T.R. 19 (FC);2012 FC 993

Hou v. Can. (M.C.I.) (2012), 417 F.T.R. 19 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. AU.028

Xin Cai Hou (a.k.a. Xincai Hou) (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8165-11; 2012 FC 993; 2012 CF 993)

Indexed As: Hou v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gleason, J.

August 14, 2012.

Summary:

Hou, a citizen of China, claimed to be a Falun Gong practitioner. The Refugee Protection Division of the Immigration and Refugee Board (RPD) dismissed his refugee claim, finding Hou to lack credibility and to have limited knowledge of Falun Gong. The RPD concluded that if Hou were returned to China he would not be perceived to be a genuine practitioner and thus that he was not a Convention refugee within the meaning of s. 96 of the Immigration and Refugee Protection Act, nor a person in need of protection within the meaning of s. 97 of the Act. In this application for judicial review, Hou sought to set aside the RPD's decision.

The Federal Court dismissed the application.

Aliens - Topic 1322.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Religion - [See all Aliens - Topic 1335 ].

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Credible basis for claim - [See first and fourth Aliens - Topic 1335 ].

Aliens - Topic 1323.7

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee "sur place" - [See fourth Aliens - Topic 1335 ].

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - [See second Aliens - Topic 1335 ].

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See first and third Aliens - Topic 1335 ].

Aliens - Topic 1335

Admission - Refugee protection - Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - The applicant, a citizen of China, claimed to be a Falun Gong practitioner - The Refugee Protection Division (RPD) dismissed his refugee claim, finding the applicant to lack credibility due to inconsistencies in his testimony, inconsistencies between what he stated during his testimony and what he wrote in the Personal Identification Form, and the way in which he answered questions from the RPD - On judicial review, the applicant alleged that the RPD committed eight reviewable errors in its credibility assessment - The Federal Court stated that each of the applicant's assertions "invites this Court to engage in precisely the type of analysis that has time and again been determined to be inappropriate in the context of a judicial review application. In short, the applicant is inviting me to reweigh the evidence. ... [I]t is well-settled that this cannot and should not be done in an application such as the present. Furthermore, the applicant's arguments are unconvincing." - The court concluded that the Board's credibility assessment was reasonable - Moreover, the Board's credibility findings provided it with a sound underpinning to determine that the applicant was not a genuine Falun Gong practitioner, either in China or in Canada - See paragraphs 32 and 41.

Aliens - Topic 1335

Admission - Refugee protection - Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - The applicant, a citizen of China, claimed to be a Falun Gong practitioner - The Refugee Protection Division of the Immigration and Refugee Board (RPD) dismissed his refugee claim - The RPD held that the applicant's knowledge of Falun Gong was not consistent with what the Board would have expected from a practitioner with the length of experience that the applicant claimed to possess - On judicial review, an issue was whether the RPD panel member denied procedural fairness to the applicant in making the impugned comments regarding the applicant's limited knowledge of the "Third Talk" in the Zhuan Falun, the central text of Falun Gong - The Federal Court held that the impugned comments, while unfortunate, did not amount to a violation of procedural fairness because all parties, through their subsequent behaviour, recognized that the Board member was not satisfied as to the sufficiency of the applicant's responses regarding "Talk" three, and counsel made submissions regarding the adequacy of the applicant's knowledge in her closing remarks - "The case law of this Court indicates that in circumstances like the present, a violation of procedural fairness will occur if the parties did not realize that an issue was under debate, but that it would not occur where the Board makes inept comments but the parties are given an indication that the issue is of concern and are afforded the opportunity to make submissions on the matter." - See paragraphs 46 and 47.

Aliens - Topic 1335

Admission - Refugee protection - Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - The Refugee Protection Division (RPD) concluded that if the applicant were returned to China he would not be perceived to be a genuine practitioner of Falun Gong and thus that he was not a Convention refugee nor a person in need of protection - On judicial review, the applicant argued that the RPD required an unreasonably high degree of knowledge of Falun Gong - The Federal Court stated that "[e]ach case in this area turns very much on its own facts, and the reasonableness of the conclusions drawn regarding answers given to questions on religious knowledge will depend on an applicant's circumstances, the questions posed and the answers given. In addition, the reasonableness of a decision will often depend on the credibility determinations the Board makes with respect to other aspects of the applicant's claim ... Where, like here, the applicant's version of events in his or her home country is devoid of credibility, and where, like here, the applicant has not undergone a conversion experience in Canada nor provided any strong evidence in support of the genuineness of his or her claimed beliefs, the Board should be afforded considerable leeway in its assessment of a claimant's religious knowledge. Indeed, in all cases - and especially in cases like the present where the applicant's credibility is found to be wanting - the Court should not be too hasty to substitute its opinion for that of the RPD, which has developed expertise regarding the dictates of a number of religions." - In the end result, the court determined that the Board's assessment of the applicant's knowledge of Falun Gong was reasonable - More specifically, it was reasonable for the Board to have questioned the applicant as to his beliefs, and the conclusion it drew was likewise reasonable - See paragraphs 54 to 56.

Aliens - Topic 1335

Admission - Refugee protection - Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - The Refugee Protection Division (RPD) concluded that if the applicant were returned to China he would not be perceived to be a genuine practitioner of Falun Gong and thus that he was not a Convention refugee nor a person in need of protection - On judicial review, the applicant argued that the RPD erred in considering the motives for the applicant's practice of Falun Gong in Canada because Canadian case law established that motive was irrelevant to the assessment of a sur place claim - The Federal Court disagreed with the applicant's assertion - "Canadian case law does recognise that motive for engaging in a religious practice in Canada may be considered by the RPD in an appropriate case. However, a finding that a claimant was motivated to practice a religion in Canada to buttress a fraudulent refugee claim cannot be used, in and of itself, as a basis to reject the claim. Rather, the finding that the claimant has been motivated by a desire to buttress his or her refugee claim is one factor that may be considered by the RPD in assessing the sincerity of a claimant's religious beliefs. The sincerity of those beliefs will be an issue in cases, like the present, where continuing the religious practice in the country of origin might place the claimant at risk." - The mere fact that the Board considered and relied on the applicant's motive for practising Falun Gong in Canada did not invalidate its decision - "Rather, the question which must be answered is whether the RPD reached a reasonable conclusion in determining that the applicant's practice of Falun Gong in Canada was not motivated by genuine faith. ... I believe this conclusion is reasonable." - The Board's determination that the applicant had not discharged the burden of establishing the sincerity of his beliefs was reasonable as it was based on the Board's assessment of the applicant's credibility - There was ample evidence before the Board from which it could reasonably draw the conclusion that the applicant's practice of Falun Gong in Canada was not sincere - See paragraphs 60 to 69.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court (incl. standard of review) - The applicant, a citizen of China, claimed to be a Falun Gong practitioner - The Refugee Protection Division (RPD) of the Immigration and Refugee Board dismissed the applicant's refugee claim - On judicial review, the applicant sought to set aside the Board's decision, arguing that the RPD committed four reviewable errors in its decision - The Federal Court determined the standard of review applicable to assessment of each of the errors alleged by the applicant - "[T]he reasonableness standard of review applies to the Board's credibility findings, to its assessment of the applicant's religious knowledge and to its consideration of the applicant's motives for practising Falun Gong in Canada, whereas the panel member's conduct that is alleged to violate the principles of procedural fairness is to be assessed to determine whether a violation occurred." - See paragraph 15.

Cases Noticed:

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 7].

Singh (Jora) v. Minister of Employment and Immigration (1994), 169 N.R. 107 (F.C.A.), refd to. [para. 7].

Cetinkaya v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 46; 2012 FC 8, refd to. [para. 7].

Jin v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 458; 2012 FC 595, refd to. [para. 8].

Cao v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 876; 2011 FC 1436, refd to. [para. 8].

Chen v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 720; 2011 FC 1176, refd to. [para. 8].

Wang v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 360; 2011 FC 614, refd to. [para. 8].

Cao v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 851; 2008 FC 1174, refd to. [para. 8].

Huang v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 238; 2008 FC 346, refd to. [para. 8].

Chen v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 158; 2007 FC 270, refd to. [para. 8].

Zhang v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 264; 2012 FC 503, refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 8].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 8].

Ejtehadian v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 106; 2007 FC 158, dist. [para. 10].

El Aoudie v. Canada (Minister of Citizenship and Immigration) (2012), 408 F.T.R. 126; 2012 FC 450, dist. [para. 11].

Hannoon v. Canada (Minister of Citizenship and Immigration) (2012), 408 F.T.R. 118; 2012 FC 448, dist. [para. 11].

Yin v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 516; 2010 FC 544, dist. [para. 11].

Nadarasa v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 408; 2012 FC 752, dist. [para. 11].

Rohm and Haas Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (F.C.A.), refd to. [para. 13].

Buttar v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 729; 2006 FC 1281, refd to. [para. 13].

Turner v. Canada (Attorney General) (2012), 431 N.R. 327; 2012 FCA 159, refd to. [para. 14].

Ke v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 414; 2012 FC 862, refd to. [para. 14].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 14].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 47].

Velauthar v. Minister of Employment and Immigration (1992), 141 N.R. 239; 33 A.C.W.S.(3d) 1115 (F.C.A.), refd to. [para. 48].

Li v. Canada (Minister of Citizenship and Immigration) (1994), 49 A.C.W.S.(3d) 557 (T.D.), refd to. [para. 49].

Haji v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 292; 2003 FCT 528, refd to. [para. 50].

Ghazizadeh v. Minister of Employment and Immigration (1993), 154 N.R. 236 (F.C.A.), refd to. [para. 63].

Jia v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 207; 2012 FC 444, refd to. [para. 65].

Huang et al. v. Canada (Minister of Citizenship and Immigration) (2012), 405 F.T.R. 215; 2012 FC 205, refd to. [para. 65].

Chen v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 691; 2009 FC 677, refd to. [para. 65].

Authors and Works Noticed:

Hathaway, James, The Law of Refugee Status (1991), generally [paras. 29, 67].

Counsel:

Michael Korman, for the applicant;

Ildikó Erdei, for the respondent.

Solicitors of Record:

Otis & Korman, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on June 11, 2012, before Gleason, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated August 14, 2012, at Ottawa, Ontario.