JIN RONG KANG Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2019 FC 185

Date: 20190212 Docket: IMM-2766-18 Citation: 2019 FC 185 Toronto, Ontario, February 12, 2019 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:JIN RONG KANGApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Jin Rong Kang (the "“Applicant”") seeks judicial review of the decision of the Immigration and Refugee Board, RefugeeProtection Division (the "“Board”") dismissing his application for protection as Convention refugee or person in need of protection,pursuant to

section 96 and subsection 97(1), respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "“Act”"). [2] The Applicant, a citizen of China, sought protection on the basis of his status as a Falun Gong practitioner.

The Board determinedthat he was not a genuine Falun Gong practitioner in China or in Canada and made other implausibility findings against him. [3] The decision of the Board in this case is reviewable on the standard of reasonableness; see the decision in Ye v Canada (Citizenshipand Immigration), 2014 FC 647 at paragraph 18. [4] According to the decision in Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, the standard of reasonablenessrequires that a decision be transparent, justifiable and intelligible, falling within a range of possible, acceptable outcomes that aredefensible on the law and the facts. [5] In my opinion, the decision of the Board does not meet this standard since it failed to reasonably asses the Applicant’s sur placeclaim in Canada.

It is not clear if the Board considered the evidence before it about the Applicant’s practice of Falun Gong in Canada.This is a reviewable error and the application for judicial review will be allowed. [6] It is not necessary for me to address the substantive arguments raised about the Board’s credibility finings. [7] In the result, the application for judicial review is allowed, the decision is set aside and the matter remitted to another panel of theBoard for re-determination. There is no question for certification arising.

JUDGMENT in IMM-2766-18 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter remitted toanother panel of the Board for re-determination. There is no question for certification arising. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2766-18 STYLE OF CAUSE: JIN RONG KANG v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: February 12, 2019 JUDGMENT AND REASONS: HENEGHAN J. DATED: February 12, 2019 APPEARANCES : Nkunda I. Kabateraine For The Applicant Catherine Vasilaros For The Respondent SOLICITORS OF RECORD : Nkunda I. Kabateraine Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada For The Respondent