Date: 20011114
Docket: IMM-6303-99
Neutral Citation: 2001 FCT 1242
Ottawa, Ontario, this 14th day of November 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
FENG CHAI LI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
1. This is an application under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, as amended, for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated December 16, 1999, in which the CRDD held that the applicant was not a Convention Refugee.
2. The applicant requests that the CRDD's decision be set aside and that the matter be remitted for reconsideration before a differently constituted panel.
3. The applicant is from a small village in Fujian Province, China, and was fifteen years old at the time the CRDD made its decision. She claims to have a well-founded fear of persecution based on grounds of religion and imputed political opinion.
4. In her Personal Identification Form ("PIF"), the applicant submits that her mother and brother were arrested on June 22, 1999, during the government crackdown on the practice of Falun Gong. The applicant believes they were arrested because her mother was seen at a Falun Gong activity the previous day. Believing that she would be arrested as well, the applicant fled to an aunt's house, where she stayed for two months until arrangements were made for her to come to Canada.
5. The applicant states that her father has lived in the United States for many years.
6. The applicant was brought to Canada by human smugglers or "snakeheads". She spent approximately ten days in Vancouver and two days in Toronto, during which time she was kept in hotel rooms with other minors. She was then taken to Montréal. On September 2, 1999, the applicant was detained at the Canada/U.S. border when she and nine others were caught attempting to enter the United States illegally.
7. In addition to claiming a fear of persecution on religious grounds, the applicant argues that she is a refugee sur place because Chinese authorities would view her illegal exit and subsequent refugee claim as expressing political opinion. She claims that she would suffer fines, beatings and imprisonment if sent back to China. This fear is augmented due to the media coverage surrounding her arrest and the CRDD hearing. Sur place refugee arguments were made in nine other applications for judicial review heard together with the applicant's. A separate set of reasons have been prepared to address this common issue and are attached as Appendix A to these reasons.
THE CRDD DECISION
8. The CRDD determined that the applicant was not a credible witness. As a result, it did not believe that the applicant's mother and brother were ever arrested.
9. The CRDD noticed that the applicant became "very anxious" when attempting to answer why her mother and brother were arrested. She gave a contradictory account of when she and her aunt discussed Falun Gong. She also gave inconsistent testimony regarding what she did after the arrests: she stated that she had money to go to Fujo to stay with an aunt but that no one in Fujo knew that she was coming; later she said she went to an aunt in Hou Er to get money and that she called her aunt in Fujo to tell her she was coming. When confronted with the discrepancy, the applicant "appeared to be confused and did not offer an explanation".[1] The applicant testified that she stayed with the Hou Er aunt for two weeks, while her PIF states she stayed with her for two months.
10. The applicant testified that no one met her when she arrived in Fujo. The CRDD found it unbelievable that her aunt would not have met her, given the applicant's young age and the fact that she was fleeing from arrest.
11. The CRDD noted that the applicant's answers appeared to be rehearsed, particularly when questioned by her lawyer, and that inconsistencies occurred primarily when questioned by the Refugee Claims Officer ("RCO") or by CRDD members.
12. The CRDD also noted that the Chinese government's prohibition of Falun Gong occurred on July 22, 1999, not June 22, 1999, as stated by the applicant in her PIF.
13. Counsel for the applicant contends that the CRDD failed to observe child refugee guidelines when assessing the applicant's credibility.
ANALYSIS
14. Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 at para. 4 (C.A.)(QL), (1993), 160 N.R. 315, is generally cited as authority for the standard of review to be applied to the CRDD's credibility findings:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
15. The Immigration and Refugee Board Chairperson's Guidelines on Child Refugee Claimants[2] provide that:
In general, children are not able to present evidence with the same degree of precision as adults with respect to context, timing, importance and details. They may be unable, for example, to provide evidence about the circumstances surrounding their past experiences or their fear of future persecution. In addition, children may manifest their fears differently from adults.[3]
...
... When assessing the evidence presented in support of the refugee claim of a child, the panel should take note of the following:
1. If the child has given oral testimony, then the weight to be given to the testimony must be assessed. In determining the weight to be given, the panel should consider the opportunity the child had for observation, the capacity of the child to observe accurately and to express what he or she has observed, and the ability of the child to remember the facts as observed. These factors may be influenced by the age, gender and cultural background of the child as well as other factors such as fear, memory difficulties, post-traumatic stress disorder and the child's perception of the process at the CRDD.
2. A child claimant may not be able to express a subjective fear of persecution in the same manner as an adult claimant. Therefore, it may be necessary to put more weight on the objective rather than the subjective elements of the claim. The Federal Court of Canada (Appeal Division) has said the following on this issue:
... I am loath to believe that a refugee status claim could be dismissed solely on the ground that as the claimant is a young child ... he or she was incapable of experiencing fear the reasons for which clearly exist in objective terms.
3. When assessing the evidence presented in the claim of a child refugee claimant, the panel may encounter gaps in the evidence. For example: a child may indicate that men in uniforms came to the house but not know what type of uniforms they were wearing or a child may not know the political views of his or her family. The child may, due to age, gender, cultural background or other circumstances, be unable to present evidence concerning every fact in support of the claim. In these situations, the panel should consider whether it is able to infer the details of the claim from the evidence presented.[4]
16. The CRDD's credibility assessment does not reveal a failure to follow or appreciate the Child Refugee Guidelines. While the CRDD made a negative inference from the applicant's inability to keep her dates and times straight, this does not reflect an inappropriate expectation that the applicant would, for example, "present evidence with the same degree of precision as adults with respect to context, timing, importance and details". It is reasonable to expect a fifteen-year-old to know the difference between two months and two weeks. The CRDD made no reviewable error in this regard.
17. Moreover, this Court is particularly reticent to interfere with credibility findings based on demeanor and internal inconsistencies. As stated by Jerome A.C.J. in Tong v. Canada (Secretary of State), [1994] F.C.J. No. 479 at para. 3 (T.D.) (QL):
A claimant's demeanor, consistency, ability to present specific facts, and concordance with objective evidence in the record may be thought of as internal credibility, viz, the apparent veracity (or lack thereof) of a witness' testimony, taken within itself and within the record, that is, in the light of demeanor, frankness, readiness to answer, coherence and consistency - what I might call the heartland of credibility. Confusion, failure to respond, evasions, inconsistencies and contradictions will create a perception of lack of credibility.
18. The CRDD found that the applicant was at times "very anxious", offered inconsistent and contradictory accounts of events, appeared confused and failed to offer explanations for discrepancies in her evidence, and appeared to have rehearsed answers. While a compassionate person could conclude that these were manifestations of the applicant's understandable anxiety in a difficult situation, a fair-minded person could also conclude that the applicant was anxious because she was not being truthful. It was for the CRDD, who had the benefit of seeing and hearing the applicant to make this assessment. I would not interfere with this finding solely on the basis of disagreeing with the result, which is the substance of the argument before me.
19. I find no reason to interfere with the CRDD's assessment of the applicant's credibility.
20. The application for judicial review is dismissed.
ORDER
For the reasons stated above, the application for judicial review of the decision of the Convention Refugee Determination Division, dated December 17, 1999, reasons for which are dated December 16, 1999, is dismissed.
The following question is hereby certified:
Where the fact that an applicant has applied for convention refugee status has been reported in the media in Canada, and the applicant makes a claim of refugee sur place as a result of that reporting, is it necessary for the applicant to prove
a) that the media reports came to the attention of the authorities in the country in respect of whom the applicant alleges a well-founded fear of persecution and
b) that the information contained in the media reports was sufficient to allow the authorities to identify the applicant
in order to succeed with respect to the refugee sur place claim?
"J.D. Denis Pelletier"
Judge
Docket: IMM-6303-99
APPENDIX A
Refugee Sur Place
21. The application for judicial review of ten applicants were heard together because of certain common issues, one of which was whether the applicants had become refugee sur place. Each of the applicants made a claim before the Convention Refugee Determination Division ("CRDD") on the basis of well-founded fear of persecution of imputed political opinion and refugee sur place based on the media attention surrounding their arrest, detention and subsequent applications for refugee status. Videotaped recordings of television coverage were submitted to the CRDD, as well as two newspaper articles. It was alleged that, due to the media attention, Chinese authorities would know that the applicants had claimed refugee status in Canada and would view the claims as political statements against the Chinese regime. In addition, the applicants claim that they would be severely punished for their illegal exit. The applicants submitted no evidence of actual differential treatment by Chinese authorities resulting from the existence of media exposure of their refugee claims.
22. These reasons apply to all of the applicants in respect of their allegation that the CRDD improperly assessed their claim to refugee status based on the notion of refugee sur place.
23. The CRDD identified the following questions as "central" to the sur place issue:
Would China be aware of this claim for refugee status? Would China consider leaving the country illegally and claiming refugee status as expressions of political opinion? If so, what would the consequences be for the claimant?[5]
24. The CRDD went on to address the question of whether punishment of the applicants by the Chinese government for their illegal exit would amount to persecution under the Convention. The CRDD cited the principles set forth in Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540, [1993] F.C.J. No. 584 (C.A.) (QL), that ordinary laws of general application are presumed to be valid and neutral and that the applicant must show that the law in question is persecutory in relation to a Convention ground.[6] The CRDD recognized the principle that a law of general application may be persecutory if the sanction is "totally out of proportion to the offence committed".[7] It emphasized, however, that for any refugee claim to be successful, any disproportionate sanction must be related to a Convention ground.
25. Citing a September 22, 1999 Response to Information Request, the CRDD noted that Chinese authorities have wide discretion in imposing sanctions for illegal exit. However, it found that nowhere in the document was it stated that imprisonment could be for more than three years, and nowhere was it suggested that China would perceive exiting illegally from the country or claiming refugee status as an expression of political opinion or as a factor that would influence the sanction. The CRDD referred to the following quotation:
[...] returnees are rarely imprisoned owing to a number of factors: the pervasiveness of the phenomenon of illegal immigration from Fujian, the volume of returnees from Australia, Japan, Taiwan, the United States and elsewhere, and the extensive influence of the snakeheads.[8]
26. An Australian 1994 Country Profile was also quoted:
In answer to claims in newspaper reports that deportees recently returned to Fujian were expected to pay high fines and attend reeducation centres if the fines were not paid, a Fujian official gave this reply. They had been detained at a PSB center for identity and health checks. After completion of the checks they would be returned to their home towns, all in the Fuzhou area. There would be some light pecuniary penalty. Although the Government regarded them as law breakers it was more appropriate to consider them as victims of illegal migration rackets. The official conceded that second offenders and evil organizers would be dealt with harshly.[9]
27. Another Response to Information Request was cited to show that returned migrants also have insufficient objective grounds to fear harassment by snakeheads upon return to China.[10]
28. The CRDD drew the following conclusions:
In summary, and applying the guidelines of Zolfagharkhani, the Chinese law concerning illegal exit is a law of general application, presumed valid and neutral. Even though the claimant alleged that the Chinese regime is generally oppressive, the claimant has not met his burden to demonstrate that the intent or principal effect on him of this law would be persecutory in relation to a Convention ground. In view of this conclusion, it is irrelevant whether the claimant could or could not be identified in the videos submitted in evidence and whether China would or would not know about the present claim for refugee status.[11]
29. Counsel for the applicants submit that the CRDD erred in deciding that it was irrelevant whether the applicants would be identified from the media exposure. Mr. Markaki argued that the CRDD only considered the issue of whether punishment for illegal exit was persecutory, without specifically dealing with how the applicants' well-publicized refugee claims would be viewed by Chinese authorities and the effect it might have on their punishment. It was submitted that this question should have been addressed by the CRDD "even in the absence of specific documentary evidence but on its knowledge of country conditions and the general documentary evidence which describes China as an oppressive regime which does not tolerate any political opposition or criticism of any kind".[12]
30. There are few guidelines and little jurisprudence on the proper evaluation of sur place claims. According to the UNHCR Handbook, a person can become a refugee sur place for reasons other than changing circumstances in her or his country of origin:
A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.[13]
31. The Supreme Court in Canada (Attorney General) v. Ward allowed for the possibility of imputed political opinion[14]:
[...] the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.
The ground of political opinion therefore appears to be flexible enough to encompass the sur place claim made by the applicants.
32. In my view, the essential problem for the applicants is the fact that no evidence was before the CRDD, documentary or otherwise, that substantiated their sur place allegation. The problem is implicit in the Supreme Court's statement in Ward that "[t]he absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution" (emphasis added). I can agree with Mr. Markaki that the CRDD limited its analysis to documentary evidence of punishment for illegal exit in China. However, I cannot agree that the CRDD should have determined how the Chinese government might view making a claim for refugee status "even in the absence of specific documentary evidence". If there is a distinction to be made respecting the treatment given to returnees who have claimed refugee status in Canada and other returnees, and if that treatment amounts to discrimination based on imputed political opinion, it should have been a matter of evidence before the CRDD. As Justice Nadon held in Kante v. Canada (Minister of Employment and Immigration)[15]:
The law is clear that the burden of proof lies with the Applicant i.e. he must satisfy the Refugee Division that his claim meets both the subjective and objective tests which are required in order to have a well founded fear of persecution.
33. In the absence of documentary evidence that the applicants would be persecuted based on political opinion imputed from their refugee claims, it was reasonable for the CRDD to draw no conclusion based upon evidence of publicity. It is not open to the CRDD to engage in speculation whether it is to the applicants' benefit or detriment.
34. In analysing the CRDD's decision, I am also guided by the principle articulated by Gibson J. in Biko v. Canada (Secretary of State), [1994] F.C.J. No. 1741 (T.D.) (QL):
The CRDD's decision must be interpreted as a whole. I would add to that that it must be interpreted as a whole in the context of all of the evidence that was before the CRDD.
35. Given the absence of evidence that would establish objective grounds for the applicants' fear of persecution based on imputed political opinion, and bearing in mind that the applicants had the burden of proof in this regard, I find that the CRDD did not commit a reviewable error in its evaluation of the applicants' sur place claim.
36. At the conclusion of this hearing, counsel asked me to certify the following question on the issue of refugee sur place:
Does knowledge by a country of a generally oppressive character of a refugee claim made by a national make this individual a refugee sur place?
37. In my view, such a question is not particularly clear because of the imprecision in the notion of "a country of a generally oppressive character". The issue in this case was whether a sur place claim could be maintained in the absence of evidence, that the making of a refugee claim by certain individuals had specifically come to the attention of the Chinese authorities. In my view, a more appropriate question, and one which I am prepared to certify, is:
Where the fact that an applicant has applied for convention refugee status has been reported in the media in Canada, and the applicant makes a claim of refugee sur place as a result of that reporting, is it necessary for the applicant to prove
a) that the media reports came to the attention of the authorities in the country in respect of whom the applicant alleges a well-founded fear of persecution and
b) that the information contained in the media reports was sufficient to allow the authorities to identify the applicant
in order to succeed with respect to the refugee sur place claim?
[1] Tribunal Record at page 8
[2] Guidelines issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act, September 30, 1999. See http://www.cisr.gc.ca/legal/guidline/childref/pro_isse.stm. [hereafter Child Refugee Guidelines]
[3] Ibid, Guideline 3, "Eliciting the Evidence"
[4] Ibid, "Assessing the Evidence"
[5] See IMM-6306-99, Applicants' Record at page 11
[13] Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1998, page 22
[14] (1993), 103 D.L.R. (4th) 1 at page 39
[15] [1994] F.C.J. No. 525 (T.D.) (QL)
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