ZEHE CHEN Applicant v. THE MINISTER OF CITIZENSHIP, 2022 FC 890

Date: 20220614 Docket: IMM-3516-21 Citation: 2022 FC 890 St. John’s, Newfoundland and Labrador, June 14, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:ZEHE CHENApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent REASONS AND JUDGMENT [1] Mr. Zehe Chen (the "“Applicant”") seeks judicial review of the decision of the Immigration and Refugee Board, Refugee AppealDivision (the "“RAD”"), determining that he is neither a Convention Refugee or a person in need of protection , pursuant to

section 96and subsection 97(1), respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "“Act”"). [2] The Applicant is a citizen of China. He bases his claim for protection upon his status as a Falun Gong practitioner. The Immigrationand Refugee Board, Refugee Protection Division (the "“RPD”") rejected his claim on credibility concerns.

The RAD confirmed thosefindings. [3] The Applicant argues that the RAD’s credibility findings are unreasonable. [4] The Minister of Citizenship and Immigration (the "“Respondent”") submits that the decision is reasonable, having regard to theevidence submitted. [5] Following the decision in Canada (Minister of Citizenship and Immigration) v.

Vavilov (2019), 2019 SCC 65 , 441 D.L.R.(4th) 1 (S.C.C.), the decision is reviewable on the standard of reasonableness. [6] In considering reasonableness, the Court is to ask if the decision under review "“bears the hallmarks of reasonableness – justification,transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on thatdecision”"; see Vavilov, supra at paragraph 99. [7] The RAD focused on the Applicant’s medical booklet and his knowledge of the principles of Falun Gong in making its negativecredibility findings.

The Applicant argues that it was unreasonable for the RAD to make negative credibility findings about his practiceof Falun Gong and his fear of persecution on the basis of its "“study”" of the medical booklet. [8] I agree. In my opinion, the reasons of the RAD do not meet the requirements of "“justification, transparency and intelligibility”"required by the decision in Vavilov, supra. [9] In the result, the application for judicial review will be allowed, the decision will be set aside and the matter remitted to a differentlyconstituted panel of the RAD for re-determination.

There is no question for certification. JUDGMENT in IMM-3516-21 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 Immigration and Refugee Board, Refugee Appeal Division for re-determination. There is noquestion for certification. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3516-21

STYLE OF CAUSE: ZEHE CHEN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF TELECONFERENCE BETWEEN TORONTO, ONTARIO AND ST. JOHN’S, NEWFOUNDLAND AND LABRADOR DATE OF HEARING: APRIL 20, 2022 REASONS AND JUDGMENT: HENEGHAN J. DATED: JUNE 14, 2022 APPEARANCES : Stephanie Fung FOR THE APPLICANT Sally Thomas FOR THE RESPONDENT SOLICITORS OF RECORD : S. Duong Law, P.C. Barrister and Solicitor Markham, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT