Date: 20040917
Docket: IMM-5811-03
Citation: 2004 FC 1280
Ottawa, Ontario, this 17th day of September, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ZHI HUI TAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board, (the "Board"), dated July 7, 2002, which determined that the applicant is not a Convention refugee nor a person in need of protection.
[2] The applicant requests an order quashing the Board's decision and referring her claim back to a differently constituted Board for redetermination.
Background
[3] The applicant, Zhi Hui Tan, is a citizen of the People's Republic of China who alleges a well-founded fear of persecution on the basis of her perceived political opinion, namely, an individual that allegedly attempted to violate China's one child policy.
[4] In 1989, the applicant married Lin Jian He in a rural family ceremony. Since her husband was not of legal age at the time, the state would not issue a marriage certificate. The applicant's marriage was officially registered with the state in 2000.
[5] On October 26, 1990, the applicant gave birth to a daughter. The applicant alleges that she and her husband were fined by the state Birth Planning Committee for having a child out of legal wedlock and without a birth permission certificate. The applicant further alleges that seven months after giving birth, the Birth Planning Committee forced her to have an IUD birth control device inserted. The applicant states that she suffered medical side effects from the device, including nausea, cramps and lower back pain. The applicant applied to the state more than ten times since 1991 to have the IUD removed, but was not granted permission. The applicant was also refused permission to legally have a second child.
[6] In the narrative portion of her Personal Information Form ("PIF"), the applicant alleges that she was forced to undergo two abortions while in China. The first was in 1993, when she was two months pregnant and was approached in the market by Birth Planning Committee members. The second forced abortion alleged by the applicant was in 1998, after she had the IUD removed by a private doctor, and was eight months pregnant. Following the forced abortion, the applicant states that an IUD was re-inserted. The applicant also states that she was compelled to have quarterly ultrasound examinations by the state to verify that she was not pregnant. Those who refused, the applicant alleges, were fined or not permitted to work.
[7] In 1995, after she did not appear for an ultrasound as required, the applicant alleges that members of the Birth Planning Committee visited her house. The applicant's husband became angry and an altercation ensued. The applicant alleges that afterwards her husband was sent to a labour camp for a year, and the state left a notice with his parents that she was to be sterilized.
[8] The applicant travelled from China to Vancouver, British Columbia on October 29, 2001 using false travel documents. She immediately made a refugee claim at the Vancouver airport.
[9] In her written port of entry ("POE") statement, the applicant made no mention of her allegations regarding the forced abortions, the sterilization notice, or that her husband was sent to a labour camp for a year.
[10] On February 28, 2003, a hearing was held by the Board to determine the applicant's claim.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[11] The Board's decision, dated July 7, 2003, rejected the applicant's claim, stating that she was neither a Convention refugee nor a person in need of protection.
[12] The Board stated that even taking into account the difficulties of testifying through an interpreter in a stressful situation and cultural factors which may have impacted on her testimony, the evidence provided by the applicant was "evasive, convoluted, improbable, contradictory, implausible and, therefore, not credible".
[13] The Board disbelieved that the events in China as described by the applicant during the hearing ever occurred. In particular, the Board was concerned with inconsistencies, omissions and contradictions between her POE statement and PIF narrative, as well as implausibilities in key areas of her account of events.
[14] As the applicant conceded, her POE statement described the inhuman nature of the Chinese government's family planning policy and that she was forced to undergo a birth control procedure, but made no mention of many of the events described in her PIF narrative and oral testimony. The POE statement did not mention forced abortions, threats of arrest and sterilization, that her husband was sent to labour camp, or that she had been in hiding from the Birth Planning Committee. The applicant attempted to explain these inconsistencies by stating that she was nervous at the port of entry, that she did not want to disclose that her husband was in a camp, and that she was not given enough time to write down her POE statement.
[15] The Board was not satisfied by the applicant's explanations, and stated that it was "fictitious" that the applicant was not given ample opportunity at the port of entry to express her main reasons for seeking asylum in Canada. The Board also noted that there was no evidence of any difficulties with interpretation, so this was not a factor in accounting for the missing information.
[16] In its reasoning, the Board noted that while inconsistencies between a POE statement and PIF narrative are not necessarily fatal to a claim, where, as here, a claimant leaves out fundamental and crucial issues that form the basis of her petition for protection, a claimant's credibility is seriously undermined. In the Board's opinion, one would reasonably expect an individual in the applicant's position to explain the real cause of her persecution to the first available authority, however, here the applicant wrote a detailed statement in her native language and left out what was the most relevant information.
[17] Furthermore, the Board noted that the applicant's description of the circumstances leading up to her first allegedly forced abortion was implausible. The applicant stated that she was spotted by the authorities while walking on the street and asked to go for an ultrasound because she was "a little chubby" at the time. Based on the applicant's demeanor and her answers to questioning, the Board did not believe that this event occurred.
[18] The Board was not persuaded, on a balance of probabilities, that the applicant was sought by Chinese authorities because of her alleged violation of the family planning policy, nor that there is a reasonable chance or a serious possibility that she would be persecuted for a Convention ground should she return to China.
[19] Based on its negative credibility finding, and the increasing incidence of document forgery from China, the Board gave no weight to the applicant's documents attesting to the forced abortions and the notice of sterilization.
[20] The Board also decided that the applicant is not a person in need of protection pursuant to paragraphs 97(1)(a) and 97(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). This conclusion was based on the Board's disbelief of the applicant's testimony and that if returned to China, she would be at risk of relatively minor legal consequences, such as criticism, warnings and fines. The Board noted that the documentary evidence indicated that violators of the family planning policy are rarely imprisoned upon return to China, and the most severe penalties are reserved for repeat offenders or organizers of the smuggling trade.
[21] In sum, the Board was not persuaded that the applicant has good grounds for fearing persecution based on her alleged violation of the family planning policy in China, or for any Convention ground.
Applicant's Submissions
[22] The applicant challenges the Board's decision on two main grounds. First, that the Board's negative credibility finding was made in a perverse and capricious manner without regard to the evidence before it. Second, the applicant argues that the Board erred in failing to consider the objective evidence before it that she is a Convention refugee.
[23] The applicant submits that the Board's primary concern was the discrepancies between her POE statement and PIF narrative. The applicant states, however, that she consistently stated that the basis of her fear of persecution is her desire to have a second child and the Chinese authorities' refusal to allow her to do so. In the applicant's view, her POE statement and PIF narrative are consistent with each other and the oral testimony she provided at the Board hearing. The POE is simply less detailed based on the circumstances in which it was prepared. The applicant further submits that the Board should not accept POE notes on "pure faith", but instead should inquire into the context of the interview and the degree to which the claimant understood the questions.
[24] The applicant submits that the Board erred in failing to consider that the definition of a Convention refugee is a prospective one, and argues that credibility concerns regarding her account of past acts of persecution should not discredit her claim.
[25] The applicant further submits that if the Board assessed her current subjective fear, all of the applicant's evidence consistently communicate that her current fear of persecution results from the Chinese government preventing her from having a second child.
[26] The applicant points out that while a person's first story is usually the most genuine, that is not always the case depending on factors such as the applicant's cultural background, the length of the interview, the presence of an interpreter and the expectations of the applicant. The applicant submits that the Board erred in failing to evaluate the POE statement in light of these factors.
[27] In this case specifically, the applicant alleges that she did not understand what was expected of her when she was told to make a statement, had only a grade 6 education, was not instructed what to write, she was nervous, crying and was allowed very little time to complete her statement. The applicant argues that although the Board stated it considered the POE statement in context, it in fact did no such thing, and therefore erred.
[28] Alternatively, the applicant argues that even if the negative credibility finding was justified, the Board was under an obligation to assess the objective component of the applicant's claim to determine if she met the definition of a Convention refugee. Since the Board did not question that the applicant is a married woman with a child and wishes to have a second child, it is argued that the Board was obliged to assess this evidence in light of the documentary evidence that shows how similarly-situated women are treated by Chinese officials.
[29] Since the Board failed to go beyond its negative credibility finding and canvass the objective component of the applicant's claim, it is argued that the Board's decision should be quashed.
Respondent's Submissions
[30] The respondent submits that the standard of review of the Board's negative credibility determination is patent unreasonableness.
[31] The respondent notes that the Board recognized that omissions are not necessarily fatal to a refugee claim, in this case the nature of the omissions, the implausibility of the applicant's account and her demeanor during testimony are more than sufficient to ground a negative credibility finding. The respondent submits that the Board is entitled to draw an adverse inference on the basis of such evidence.
[32] The respondent argues that the Board's credibility findings were reasonably open to it and should not be quashed by this Court sitting on judicial review.
[33] The respondent disputes that the Board erred in failing to consider the objective basis for the applicant's claim, notwithstanding the negative credibility finding. The Board is not obliged, the respondent argues, to evaluate whether if a claimant's story were true, she would be a refugee.
[34] The respondent further submits that this case is distinguishable from those cited by the applicant where elements of a claimant's story were accepted that alone could establish a claim to refugee status based on the documentary evidence. The respondent submits that in the case at bar, the applicant based her claim upon very specific events which she alleges occurred. Since the Board did not believe those events occurred, the respondent submits that it was open to the Board to conclude there was "insufficient credible or trustworthy evidence to make a positive determination in this case".
[35] The respondent requests that this application be dismissed.
Issues
[36] 1. Did the Board make its negative credibility finding in a perverse and capricious
manner without regard to the evidence before it?
2. Did the Board err by failing to consider whether the applicant objectively had a
well-founded fear of persecution?
Relevant Statutory Provisions
[37] The Immigration and Refugee Protection Act, S.C. 2001, c. 27 states:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
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97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:à
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Analysis and Decision
[38] I propose to deal first with Issue 2.
[39] Issue 2
Did the Board err by failing to consider whether the applicant objectively had a
well-founded fear of persecution?
The applicant submits that even if the Board was justified in drawing a negative credibility inference, it made a reviewable error in failing to go further to consider the documentary evidence as to the conditions for similarly situated women in China before rejecting her claim for refugee status.
[40] The Board, in this case, only referred to the package of country condition documentation for China in relation to its conclusion that the applicant was not a "person in need of protection" pursuant to section 97 of IRPA. The Board did not reject the applicant's evidence that she was a woman from China with a child who was ineligible to have further children. The applicant's counsel raised the issue of similarly-situated women in China before the Board.
[41] The Board, however, failed to engage in any analysis of the objective nature of the applicant's fear of persecution, or whether the evidence of similarly-situated women in China impacted its assessment of the applicant's subjective fear of persecution. As I held in Baranyi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 664, [2001] F.C.J. No. 987 (QL) at paragraph 14:
Even in situations where the CRDD finds an applicant not to be credible it still must consider the documentary evidence. This Court in Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130 (FCTD) stated at page 132:
Clearly, where the only evidence linking the claimant to the persecution emanates from his or her testimony, rejecting the testimony means there is no longer a link to the persecution. It becomes impossible to establish a link between the person's claim and the documentary evidence.
This is obviously different from the present case, where there was evidence, including her NIC, emanating from sources other than the applicant's testimony, which can link her claim to the ongoing persecution of young Tamil women in Sri Lanka.
The documentary evidence may have established a well-founded fear of persecution on the applicant's behalf or it may not have. The CRDD should have assessed this evidence to determine whether or not it established a well-founded fear of persecution. I have reviewed the decision of the CRDD and I can find no reference to the documentary evidence to the effect that other Roma citizens of Hungary are or were being persecuted. In my opinion, the CRDD committed a reviewable error of law by failing to consider this evidence, whether you apply a standard of review of reasonableness simpliciter or patent unreasonableness.
[42] Similar reasoning applies in this case. I agree with the applicant that the Board failed to analyze the documentary evidence to determine the situation of women similarly-situated as the applicant. It is for the Board to make a determination of such evidence and not the Court. The Board has made a reviewable error.
[43] Because of my finding on Issue 2, I need not deal with Issue 1.
[44] The application for judicial review is therefore allowed and the matter is referred back to a differently constituted Board for redetermination.
[45] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[46] IT IS ORDERED that the application for judicial review is allowed and the matter is referred back to a differently constituted Board for redetermination.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
September 17, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5811-03
STYLE OF CAUSE: ZHI HUI TAN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 18, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: September 17, 2004
APPEARANCES:
Shane Molyneaux
FOR APPLICANT
Sandra Weafer
FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates
Vancouver, British Columbia
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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