Li v. Canada (Minister of Citizenship and Immigration), 2003 FC 1514

Date: 20031222

Docket:    IMM-5838-02

Citation:    2003 FC 1514

Ottawa, Ontario, this 22^nd day of December, 2003

BETWEEN:

                                                                          YI MEI LI                                                                                                                                                                                                                        

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

GAUTHIER J.

[1]                 Mr. Yi Mei Li ("Mr. Li"), is a citizen of China who claims to fear persecution by reason of his perceived religious beliefs (Tian Dao follower). He asks the Court to quash a decision which held that he is not a Convention refugee [section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act")], nor a person in need of protection (section 97 of the Act).

[2]                 Mr. Li was the owner of a fishing farm in the Fujian Province. He had three partners. The authorities believed that the fishing farm was used for illegal religious purposes. One day, they stormed the farm and seized prohibited statues of Guan Yin and Ji Gong. Two of his partners who were Tian Dao followers were arrested and sentenced to five years in jail. They are still imprisoned.

[3]                 Alerted by his mother who paged him to warn him that the search was going on, Mr. Li went into hiding and with the help of stowaway agents (also referred to as snakeheads), he left China without a passport and an exit visa in violation of article 322 of the Criminal Law of the People's Republic of China. Mr. Li is not a Tian Dao follower but he claims that he is perceived as one by the Chinese authorities.

[4]                 He arrived in Vancouver on a boat operated by the snakeheads in April 2001. He claims that later in September 2001, he was kidnapped in Toronto by those same snakeheads because they felt that he was responsible for discovery of their boat by the Canadian police. It appears that the intervention of the police prevented the collection of all the money owed to the snakeheads by some of the other passengers. Mr. Li discloses that he fears the snakeheads in an addendum to his Personal Information Form ("PIF") dated July 2, 2002. He claims that he needs to be protected against them because the Chinese authorities cannot give him such protection.

[5]                 In its decision, the Refugee Protection Division (the "RPD") makes a negative credibility finding based on omissions and inconsistencies between the port of entry notes, his PIF and his testimony, particularly:

(i)                    In his PIF and the addendum of July 2, 2002, he does not mention the sentencing of his partners nor their current imprisonment.

(ii)                  In the addendum of July 2, 2002, the claimant states that the snakeheads threatened him if he did not pay more money to them; he does not mention his kidnapping or their actual attempt to extort $50,000 U.S. at that time.

(iii)                 At the port of entry, he mentioned that he had incurred a debt, that his business went bankrupt and that he was thus seeking asylum to support his family in China. No reference was made to his fear of being perceived as a Tian Dao follower.

[6]                 It also expressly finds that he would be protected against the snakeheads by his government.

Issues:

[7]                 Mr. Li argues that the RPD:

(i)    erred in assessing his credibility;      

(ii) failed to assess the impact of the threats made by the snakeheads;

(iii) erred in its finding that he would be adequately protected by the Chinese government;

(iv) erred by applying the wrong standard to his claim under subsection 97(1) of the Act.

Analysis:

[8]                 I shall apply the standard of review described in the recent decision of the Federal Court of appeal in Harb v. Canada (Minister of Citizenship and Immigration), (2003) FCA 39, [2003] F.C.J. No. 108 (QL) at para. 14.

[9]                 At the hearing, the applicant conceded that his strongest argument was in respect of the fourth issue. I will thus consider the first three issues briefly focussing my analysis on the RPD's evaluation of his claim under subsection 97(1) of the Act.

(i)                    Credibility:

[10]            Mr. Li argues that it is patently unreasonable for the RPD to give any weight to the fact that he failed to mention that his partners were not only arrested but also sentenced to jail and were still in prison. The Court finds that his claim of persecution because of perceived religious beliefs was based entirely on what happened at the farm to his partners who were Tian Dao followers. Thus, his omission was not on a peripheral issue. The RPD discusses his explanation that he was afraid to disclose this information because it might prejudice him in the case of an eventual return to China. The RPD rejected it because it is well known that information obtained in the context of a refugee claim is kept strictly confidential.

[11]            Mr. Li also submits that the RPD was patently unreasonable when it considered his omission to mention his kidnapping to be significant because he had clearly mentioned having received threats from them in the addendum to his PIF. Here again, the RPD deals with this argument in its decision and concludes that the kidnapping is central to its claim and cannot be considered a simple threat.

[12]            In this particular case, the omission was again significant given that the applicant expressly amended his PIF to deal with this new ground (fear from the snakeheads) (see Ozuak v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 746 (QL) and more generally on the Board's entitlement to draw adverse inferences regarding credibility based on omissions of facts from the PIF Akhigbe v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 332 (QL), Robles v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 520 (QL), Sanchez c. Canada (ministre de la Citoyenneté et de l'Immigration), [2000] A.C.F. no 536 (QL)).                    

[13]            The Court will not re-weigh the evidence and is satisfied that the RPD's negative finding with respect to Mr. Li's credibility was not unreasonable, let alone patently unreasonable.

(ii)        Threats from the snakeheads:

[14]            Mr. Li argues that the RPD failed to address his claim in that respect. The Court finds that a simple reading of the decision makes it clear that it did. At page 9 of the decision, the RPD deals expressly with the applicant's allegation that he would not receive adequate state protection from the Chinese government against the snakeheads. It states that his submission is not well founded.

[15]            Having found that Mr. Li's story was not credible because, among other things, of his omission to refer to his kidnapping by the snakeheads in his PIF and that such story was inconsistent with the one he gave to the authorities at the port of entry, the Court finds that the RPD did not have to say anything further on this aspect of his claim.

(iii)       State Protection:

[16]            Mr. Li submits that the RPD only addressed the willingness of the Chinese authorities to protect him from the snakeheads rather than deal with their ability to provide such protection. In that respect, the Court notes that the onus of establishing that his state cannot protect him lies with Mr. Li. Given that a state is presumed to be able to protect its citizen, he had to produce clear and convincing evidence establishing their inability to do so. At the hearing, Mr. Li could not point to any specific evidence that had been ignored by the RPD.

[17]            In its reasons, the RPD states that it did not find Mr. Li's allegation that there was a connection between the snakeheads and the Chinese government to be credible. As I said earlier, the RPD did consider the extensive documentary evidence presented and concluded that the Chinese government had applied various measures that showed a willingness to arrest and severely punish the snakeheads. At page 10 of its reasons, it states:

In another article it is reported that the frontier police arrested more than 800 stowaway agents, colloquially called snakeheads in 1999. One hundred five of them had been sentenced to prison.

[18]            The RPD also states that in the circumstances, it is reasonable to expect that Mr. Li will probably receive protection against reprisal by the smugglers.                       

[19]            The Court finds that it was open to the RPD to come to this conclusion on the evidence before it. It did not ignore any evidence. The Board made no reviewable error.

(iv)       The standard under subsection 97(1) of the Act

[20]            The most serious issue raised by the applicant is that the RPD applied the wrong standard to determine whether he was a person to protect under subsection 97(1) of the Act.

[21]            In its reasons, the RPD states:

The claimant alleges that people are beaten in prison and mistreated and that he may be subject to such mistreatment. It is true that the documentary evidence shows numerous instances of such mistreatment, however the panel finds that there is no persuasive evidence before it to find that the claimant will probably be subject to such mistreatment... (page 7)

The panel also concludes that there is no persuasive evidence to find that the claimant is at risk of losing his life or being subjected to cruel and unusual treatment or punishment or in danger of being tortured if he returns to China... (page 11)

[my emphasis] emphasis)

[22]            Relying on Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (QL), [1989] F.C.J. No. 67 (QL), the applicant submits that the standard applicable to determine the status of a Convention refugee under section 96 of the Act, should also apply when considering a claim under subsection 97(1). Given that a Convention refugee needs only establish that there is a reasonable chance of persecution on the basis of one of the grounds set out in the United Nations Convention Relating to the Status of Refugees, signed at Geneva on July 28, 1951, one cannot be required to establish that it is probable or likely that one would face a risk to one's life or of cruel and unusual treatment or punishment or a danger of being tortured if returned to one's country of origin. He argues that it would be unreasonable to ask the RPD to apply a different standard when assessing what is essentially the same evidence.

[23]            Subsection 97(1) of the Act reads as follows:

[24]            I will construe this provision using the purposive and contextual approach.

[25]            Paragraphs 3(3)(c), (d) and (f) of the Act states:

[26]            Both parties agree that paragraph 97(1)(a) was adopted to give effect to Canada's international obligation as a signatory to the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see General Assembly resolution 39/46 of 10 December 1984 (the "Convention")). The Convention entered into force on 26 June 1987.

[27]            In such circumstances, I shall consider the text of the Convention and how it has been construed internationally.

[28]            Article 3^[1] of the Convention states:

[29]            As it appears from its wording, this article only applies to "torture" as defined in Article 1 of the Convention. It is thus limited to the most severe cases of cruel and unusual treatment or punishment and applies only if such treatments are inflicted by or at the instigation or with the consent of a public official or person acting in an official capacity. This may explain why subsection 97(1)b) of the Act does not include the reference to "substantial grounds for believing".

[30]            Mr. Li relies heavily on the Federal Court of Appeal decision in Adjei supra. In that case, the Court discusses, among other things, the interpretation given by the English Courts to their legislation implementing the Convention relating to the status of Refugee. The Federal Court of Appeal says:

11       Despite the terminology sanctioned by the House of Lords for interpreting the British legislation, we are nevertheless of the opinion that the phrase "substantial grounds for thinking" is too ambiguous to be accepted in a Canadian context. It seems to go beyond the "good grounds" of Pratte J.A. and even to suggest probability. The alternative phrase "serious possibility" would raise the same problem except for the fact that it clearly remains, as a possibility, short of a probability.

[31]            In Adjei supra, the Federal Court of Appeal confirmed the interpretation given to section 96 by Pratte J. in Seifu v. Canada (Immigration Appeal Board), [1983] F.C.J. No. 34 (QL) who had said:

...in order to support a finding that an applicant is a Convention refugee, the evidence must not necessarily show that he "has suffered or would suffer persecution"; what the evidence must show is that the applicant has good grounds for fearing persecution for one of the reasons specified in the Act.

[my emphasis]

[32]            Like the Court of Appeal, in Adjei supra, I find that the expression "substantial grounds for believing" does not give us clear and precise indication as to what Parliament intended, but it does suggest probability.

[33]            The French version is not more precise. However, considering that the definition of "probable" in French includes « une opinion fondée sur des raisons sérieuses quoique non décisives » . (see, Le nouveau Petit Robert, édition 2002), it could again suggest probability.

[34]            In a general comment on the implementation of Article 3 of the Convention in the context of article 22 of the said Convention (see U.N. Doc. CAT/CIXX/Misc.1 (1997) or A/53/44, Annex IX) the United Nations Committee Against Torture states at para. 6 and 7 :

Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable.

The author must establish that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present. All pertinent information may be introduced by either party to bear on this matter.

[my emphasis]

[35]            The threshold test set out in Article 3 of the Convention as explained in the above comment by United Nations Committee Against Torture was discussed in the Federal Court of Appeal's decision in Suresh v. Canada (Minister of Citizenship and Immigration) (C.A.), [2000] 2 F.C. 592 (QL). The Court said at paragraphs 150 and 151:

...The question which remains is whether there are substantial grounds for believing that the appellant faces the risk of torture while in detention. At the same time, a more basic question must be addressed: what is the required requisite degree of risk of torture envisaged by the "substantial grounds" test?

It is generally acknowledged that the risk of torture must be assessed on the grounds that go beyond "mere theory"or "suspicion" but something less than "highly probable". The risk or danger of torture must be "personal and present". This is the approach adopted by the European Court of Human Rights in Chahal, supra, discussed earlier and by the United Nations Committee Against Torture: see General Comment on he Implementation of Article 3 in the Context of Article 22 of the Convention against Torture, U.N. Doc. CAT/CIXX Misc.1 (1997), paragraphs 6 and 7.

If we reject the two extreme threshold tests, "mere possibility" and "highly probable", we are left with the intermediate standard framed in terms of a "balance of probabilities". That threshold can be conveniently recast by asking whether refoulement will expose a person to a "serious" risk of torture.

[my emphasis]

[36]            In Ahani v. Canada (Minister of Citizenship an Immigration), [2000] F.C.J. No. 53 (FCA) (QL) the Federal Court of Appeal expanded on this topic:

The first is whether in the circumstances of this case the decision to return the appellant to Iran would constitute a breach of the principles of fundamental justice under section 7 of the Charter of Rights and Freedoms for the reason that refoulement would expose him to the risk of torture. It is common ground that in order to sustain this argument the appellant must first establish that there are substantial grounds for believing that refoulement would expose him to a risk of torture. In other words, the appellant must establish, on a balance of probabilities, that he would be exposed to torture at the hands of the Iranian authorities, or as set out in Suresh a "serious" risk of harm.

[my emphasis]

[37]            The Supreme Court of Canada did not address this issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3 (QL). It appears to have used interchangeably the expression "substantial grounds for believing" and "substantial risk of torture". The Supreme Court of Canada only dealt with the prima facie burden of proof which a claimant must meet to trigger an obligation for the Minister to assess whether the "refoulement" or extradition would involve a substantial risk to an individual's fundamental right to be protected from torture or serious ill-treatment (see para. 127 and 129).

[38]            Even if the comments of the Federal Court of Appeal in Suresh supra and Ahani supra, were not made in the context of an analysis of section 97 (which did not then exist) but rather in the context of an alleged breach to section 7 of the Canadian Charter of Rights and Freedoms, (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11) they remain quite persuasive as are those of Gibson J. in Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315, [1998] F.C.J. No. 381 (QL) who said at para. 18:

In assessing the evidentiary basis necessary to support the Charter argument in this case, I consider it appropriate to be guided by the international jurisprudence cited above, as well as Canadian jurisprudence. In [Nguyen [1993] 1 F.C. 696 (C.A.) (QL) at page 708, 709], Marceau J.A. referred to evidence illustrating torture "will be" inflicted at international law, the citations above from the Committee suggests a standard of "substantial grounds for believing that he would be of danger of being subjected to torture". Both, in my view, establish a high evidentiary threshold. Indeed, a high threshold is consistent with Supreme Court jurisprudence on the necessary factual foundation to support a Charter claim.[...]

[39]            It appear that generally in the international cases dealing with the Convention, the Courts and the Committee Against Torture simply refer to the wording of article 3 without defining it in terms of possibility versus probability. The following passage from Mutombo v. Switzerland, Committee against Torture, Communication No. 13/1993, U.N. Doc. A/49/44 at 45 (1994), provides a good illustration:        

The Committee considers that in the present case substantial grounds exist for believing that the author would be in a danger of being subjected to torture. The Committee has noted the author's ethnic background, alleged political affiliation and detention history as well as the fact, which has not been disputed by the State party, that he appears to have deserted from the army and to have left Zaire in a clandestine manner and, when formulating an application for asylum, to have adduced arguments which may be considered defamatory towards Zaire. The Committee considers that, in the present circumstances, his return to Zaire would have the foreseeable and necessary consequence of exposing him to a real risk of being detained and tortured. Moreover, the belief that "substantial grounds" exist within the meaning of article 3, paragraph 1, is strengthened by "the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights", within the meaning of article 3, paragraph 2.

[my emphasis]

[40]            With respect to paragraph 97(1)b) which deals with other inhuman or degrading treatment or punishment not covered by Convention, the decision of the European Court on Human Rights in Soering v. United Kingdom (1989) 11 EHRR 439, which deals with an alleged violation of article 3 of the European Convention on Human Rights ("European Convention") is of interest. Even if Canada is not a signatory of this Convention, it is still relevant given that paragraph 97(1)b) deals with those inhuman treatments which do not amount to torture. It is not as compelling as the case law on the Convention, but in light of the Supreme Court decision in Suresh, supra, and the object of the Act, it is, I believe, also part of the general context I should consider.

[41]            The European Convention, article 3, prohibits torture and inhuman and degrading treatment or punishment. It does not specifically spell out an obligation to extradite fugitives as article 3 of the Convention does. For the first time in Soering, supra, the European Court on Human Rights, held that despite the absence of a specific article dealing with extradition, an obligation similar to that expressed in article 3 of the Convention was implicit given the general terms of article 3 of the European Convention which prohibits torture and inhuman and degrading treatment or punishment. It is noteworthy that the European Court, at para. 88, framed its question as follows:

The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would self engage the responsibility of a contracting State under article 3 [of European Convention on Human Rights].

[My emphasis]

[42]            This passage was later construed as imposing a rigorous approach. For example, in Vilvarajah and others v. United Kingdom, [1991] HHR 49 (30 October 1991) at para. 108, the European Court of Human Rights said:

The Court's examination of a risk of ill treatment in breach of article 3 (ART.3) at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making of the counsel of Europe (see the Soering judgment of 7 July 1989, series A, number 161 page 34 para. 88). It follows from the above principals that the examination of this issue in the present case most focus on the foreseeable consequences of the removal of the applicant to Sri Lanka in the light of the general situation there in February 1988 as well as, on their personal circumstances.

[43]            The Court agrees with the applicant that one must consider the fact that a lower standard applies under section 96 of the Act even though this provision deals with a different regime. It is part of the general context. However, I do not agree that it necessarily means that I must apply the same standard if there are other indications that this was not the intent of the legislator.

[44]            I shall first deal with Mr. Li's argument that applying a different standard would be unreasonable because it would place the RPD in the difficult position of having to apply different standard to the same evidence.

[45]            First, there are already significant differences between the test to be applied by the RPD when evaluating a claim under section 97 and one under section 96. In Shah v. Canada (MCI), [2003] F.C.J. No. 1418 at para. 16 (QL), Blanchard J., held that the test under section 97 of the Act does not require a determination of a subjective fear of persecution. In Nyathi v. Canada (MCI), [2003] F.C.J. No. 1409 at para. 21 (QL), the learned judge added that section 97 requires the RPD to apply a different test namely, whether a claimant's removal would subject that individual personally to the danger and risk stipulated in paragraphs 97(1)a) and b) of the Act. I agree with those findings.

[46]            Second, the Court notes that, like Canadian Courts, American Courts very early on construed the "well-founded fear" standard as requiring claimants to establish a reasonable possibility of persecution as opposed to a probability.    (See Immigration and Naturalization Services vs. Cardoza-Fonseca, 480 U.S. 421; 1987 US Lexis 1059; (Supreme Court of the United States)).

[47]            The United States are signatories to the Convention. It appears that the obligations under article 3 of the Convention were incorporated in their domestic law in 1999. In Thirukkamar Selvaratnam v. John Ashcroft, 2003 U.S. App. LEXIS 23968 (United States Court of Appeals for the Ninth Circuit), held:

Nor did the BIA [the Board of Immigration Appeals] err when it determined that Selvaratnam was not entitled to relief under the Torture Convention. It is true that the standard under that Convention is not identical with the standard for asylum, and a person's lack of credibility might result in denial of relief under the latter without absolutely foreclosing relief under the former....

[48]            Obviously, the American interpretation of the Convention is not binding on this Court but again, it is part of the enlarged context. It illustrates that there is no international consensus that the standard applicable to refugee claims must also apply to those claiming that they face a real risk of torture.

[49]            The Court is cognizant that legislation dealing with human rights must be given a broad interpretation, but one must be careful in doing so, not to encroach on other international obligations of Canada. Under the Convention, the right to be protected against torture is an absolute right. Because it appears to bear no exception, it may well conflict with Canada's obligations under bilateral or multilateral treaties such as those dealing with extradition. This factor militates against an interpretation that would go further than what is currently the object of an international consensus or an obligation under a treaty to which Canada is a signatory.

[50]            In view of the foregoing, the Court finds that pursuant to subsection 97(1) of the Act, there must be persuasive evidence (ie balance of probabilities) establishing the facts on which a claimant relies to say that he or she faces a substantial danger of being tortured upon his or her return. Second, the danger or risk must be such that it is more likely than not that he or she would be tortured or subjected to other cruel and other degrading treatments.    For the sake of clarity, this does not mean that the RPD will not continue to give the benefit of the doubt to a claimant. In fact, it must do so.

[51]            I am satisfied that the RPD properly analysed Mr. Li's claim under subsection 97(1), it reviewed the documentary evidence in that respect.

[52]            In the circumstances, the RPD made no reviewable error in its decision.

[53]            The parties did not raise any question for certification but the Court finds that the following questions are of general interest:

i)          Does section 97 of the Act requires that a person establish, on a balance of probabilities, that he or she will face the danger or risks described in paragraphs 97(1)(a) and b)?

ii)         What is the requisite degree risk of torture envisaged by the expression "substantial grounds for believing that"?

iii)         Is the same degree of risk required under paragraph 97(1)b)?

ORDER

            THIS COURT ORDERS that:

1.          The application for judicial review is dismissed.

2.         The following questions are certified:

i)          Does section 97 of the Act require that a person establish, on a balance of probabilities, that he or she will face the danger or risks described in paragraphs 97(1)(a) and b)?

ii)         What is the requisite degree risk of torture envisaged by the expression "substantial grounds for believing that"?

iii)         Is the same degree of risk required under paragraph 97(1)b)?

   "Johanne Gauthier"    

Judge                

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                                            IMM-5838-02

STYLE OF CAUSE:                                        YI MEI LI v. MCI

DATE OF HEARING:                                           August 27, 2003.

PLACE OF HEARING:                       Toronto, Ontario.

REASONS FOR ORDER AND ORDER:        Gauthier, J.

DATED:                                                                 December 22, 2003

APPEARANCES BY:                        Ms. Vania Campana

                                                                                                                     For the Applicant

                                                                 Mr. Ian Hicks

                                                                                                                     For the Respondent

SOLICITORS OF RECORD:           Ms. Vania Campana

                                                                 Barrister and Solicitor

                                                                 Lewis & Associates

                                                                 290 Gerrard Street East

                                                                  Toronto, Ontario.

                                                                 M5A 2G4

                                                                                                                     For the Applicant

                                                                 Mr. Ian Hicks

                                                                 Department of Justice

                                                                 130 King Street West, Suite 3400, Box 36

                                                                 Toronto, Ontario

                                                                 M5X 1K6

                                                                                                                        For the Respondent    

                                 FEDERAL COURT

Date: 20031222

Docket: IMM-5838-02

BETWEEN:

                                          YI MEI LI                                                                                                                        

                                              - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

             REASONS FOR ORDER AND ORDER