2018 FC, 2018 FC 1172

Date: 20181121 Docket: IMM-125-18 Citation: 2018 FC 1172 Ottawa, Ontario, November 21, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:XUEFANG WANGApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Ms. Xuefang Wang (the "“Applicant”") seeks judicial review of a decision of the Immigration and Refuge Board, Refugee AppealDivision (the "“RAD”"), confirming the decision of the Refugee Protection Division (the "“RPD”") that she is neither a Conventionrefugee nor a person in need of protection pursuant to

section 96 and subsection 97(1), respectively, of the Immigration and RefugeeProtection Act, S.C. 2001, c.27 (the "“Act”"). [2] The Applicant is a citizen of China. She sought protection on the basis of her practice of Falun Gong.

Among other things, shechallenges the RAD’s conclusions that she was not sought by the Public Security Bureau (the "“PSB”"), that she was not a genuine FalunGong practitioner in China and that she failed to establish a sur place claim on that basis in Canada. [3] The Minister of Citizenship and Immigration (the "“Respondent”") submits that the RAD reasonably concluded that the Applicantwas not credible and failed to show that she was in need of protection. [4] The first issue to be addressed is the applicable standard of review. [5] The appropriate standard of review for this Court when reviewing a decision of the RAD is reasonableness; see the decision inCanada (Minister of Citizenship and Immigration) v.

Huruglica (2016), 2016 FCA 93 , 396 D.L.R. (4th) 527 (F.C.

A) atparagraph 35. Accordingly, the Court should not interfere if the RAD’s decision is intelligible, transparent, justifiable, and falls within arange of outcomes that are defensible in respect of the facts and the law; see the decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47. [6] The disposition of the sur place claim is a question of law and reviewable on the standard of correctness; see the decision inEjtehadian v.

Canada (Minister of Citizenship and Immigration), 2007 FC 158. [7] I have reviewed the Certified Tribunal Record, including the documentary evidence submitted by the Applicant to the RPD, andconsidered the submissions of the parties. [8] The RAD erred, in my opinion, in rejecting the sur place claim advanced by the Applicant. It did not address the risk to theApplicant if perceived by the Chinese authorities as a Falun Gong practitioner. [9] In the result, the application for judicial review is allowed, the decision set aside and the matter remitted to a differently constitutedpanel of the RAD.

There is no question for certification arising. JUDGMENT in IMM-125-18 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter remitted toa differently constituted panel of the Refugee Appeal Division for re-determination. There is no question for certification arising. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: imm-125-18 STYLE OF CAUSE: XUEFANG WANG v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: tORONTO, ONTARIO DATE OF HEARING: AUGUST 15, 2018 JUDGMENT AND REASONS: HENEGHAN J. DATED: November 21, 2018 APPEARANCES : Ms. Stephanie Fung For The APPLICANT Ms. Aleksandra Lipska For The RESPONDENT SOLICITORS OF RECORD : Lewis and Associates Barristers and Solicitors Toronto, Ontario For The APPLICANT Attorney General of Canada Toronto, Ontario For The RESPONDENT