Date: 20001129
Docket: IMM-808-00
BETWEEN:
XING KANG CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning ascribed to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 4th of February, 2000.
[2] The applicant is a citizen of the Peoples' Republic of China from Fujian province. He was born the 25th of July, 1961 and therefore was 39 years of age at the date of the hearing before me. He has a grade three education. His work experience is as a farmer and in construction. He is married with three children. His wife's third pregnancy was unplanned and occurred despite compulsory birth control measures. To avoid a compulsory abortion, the applicant and his family left their home during his wife's third pregnancy and remained away and in hiding for approximately a year, during which time their third child was born. The family discovered that it was unable to maintain itself away from their home and the children were unable to attend school. In the result, the family returned to their home which they found to have been damaged by officials during their absence.
[3] The applicant testified before the CRDD that, upon the return of the family to their home, he was forced to undergo sterilization. Further, in order that the third child could attend school, the applicant was forced to register her as a member of the family household. To achieve registration of his daughter, the applicant had to accept the imposition of a fine in a quite substantial amount in relation to his annual income. He made a down payment on the fine. He was unable to pay the balance when required at the end of 1998.
[4] In all of the circumstances, the applicant undertook to flee his homeland. Along with many others, he arrived by ship off the coast of British Columbia on the 31st of August, 1999. His Convention refugee claim followed, based upon his fear of persecution if required to return to China by reason of the family's breach of the one-child policy, his failure to pay his outstanding fine and the fear that a further fine would be imposed for his illegal exit from China.
[5] The CRDD denied the applicant's claim to Convention refugee status. In its reasons for decision, it identified the issues before it as being the identity of the claimant, including the make-up of his family, his credibility and whether or not there existed an objective basis to his claimed fear of persecution. The CRDD accepted the applicant's identity and the make-up of his family.
[6] On the issue of credibility, the CRDD wrote:
| Now, across the broad spectrum of the evidence that we've looked at, embracing both the details you provided to Canada Immigration on arrival, the contents of your completed Personal Information Form . . . , and your oral evidence to date, the panel concludes that you are not a credible or reliable witness. The panel found many discrepancies in your evidence and very substantial areas of contradiction in the fabric of your testimony. |
[7] One area of the applicant's story that the CRDD found not to be credible was his claim that he was forced to undergo sterilization. It found that his explanation in support of this particular element of his claim was simply not coherent. It wrote:
| ...the panel spent considerable time trying to elicit a coherent accounting of that process [the process of forced sterilization], going so far at one point as to invite the claimant to actually draw a picture of what he alleged had been done to him. Notwithstanding the fact that he is an individual of limited education, something that the panel took into account when assessing his replies, his ability to describe what took place was so inadequate and so lacking in believable detail that the panel could only conclude that no such procedure had been performed. |
The CRDD noted the applicant's ". . . sketchy and confusing history about his recuperation from this alleged sterilization . . .". It noted that the applicant provided no documentation to corroborate his sterilization and that such documentation was normally provided to persons who underwent the procedure. It further noted that no reference to the forced sterilization was reflected in the notes of two interviews conducted by Immigration Officers with the applicant shortly after his arrival in Canada, those interviews being the equivalent of normal "port of entry" interviews. It wrote:
| Adding further to the panel's finding that this episode [the forced sterilization] did not occur is the fact that there was no reference to it in the Citizenship and Immigration Canada notes taken after the claimant's arrival in Canada, notwithstanding the fact that it was probably the single most dramatic and intrusive incident under-pinning his claim. |
The CRDD went on to elaborate a range of further difficulties that it perceived in the applicant's oral testimony, his Personal Information Form and other material before it that also contributed to its ultimate conclusion regarding credibility.
[8] Counsel for the applicant urged that the applicant's rights under paragraph 10(b) of the Canadian Charter of Rights and Freedoms2 were infringed in that, on his arrival on the west coast of Canada, he was arrested or detained and he was denied the right to retain and instruct counsel without delay and to be informed of his right to do so. Counsel further urged that the applicant's section 7 Charter rights to life, liberty and security of the person had been infringed. In the circumstances, counsel urged that the notes of interviews of the applicant conducted by Immigration officials were tainted and in the result the CRDD erred in a reviewable manner in relying on those tainted notes to support its finding against the applicant's credibility.
[9] At the opening of the hearing before me, counsel for the respondent urged that I should not entertain the applicant's arguments regarding infringement of the applicant's Charter rights because the issue had not been raised before the CRDD.
[10] In Poirier v. Canada (Minister of Veterans Affairs)3, Mr. Justice Marceau wrote at page 247:
| The powers of the Court, in the exercise of the role conferred on it by section 28 [of the Federal Court Act] of overseeing and controlling the legality of administrative decisions, are solely those of setting aside a decision which appears to it not to have been made in accordance with legal requirements and of referring the matter back to the tribunal for redetermination with appropriate directions. The Court cannot pronounce itself on a question which did not face the administrative authority, nor order the authority to answer one way or another a question which is not of its concern. [citation omitted] |
[11] In Tetreault-Gadoury v. Canada (Employment and Immigration Commission)4, Mr. Justice LaForest wrote at page 37:
| At the time the respondent raised her constitutional challenge before the Board of Referees, the jurisdiction of the Board to entertain such a challenge presented an unsettled legal question. The temptation to raise this unresolved jurisdictional question before the Court of Appeal directly was understandable. However, one cannot overlook the special nature of the Federal Court of Appeal's powers of review under s. 28 of the Federal Court Act. The powers of the Federal Court of Appeal under that section are limited to overseeing and controlling the legality of decisions of administrative bodies and to referring matters back to those bodies for redetermination, with directions when appropriate; . . . I am therefore of the view that, while the jurisdictional question was legitimately before the Court of Appeal, the court had no jurisdiction to make a final determination of the constitutional question. [citations omitted] |
For the foregoing, Mr. Justice LaForest cited the reasons of Mr. Justice Marceau in Poirier, supra.
[12] I am satisfied that precisely the same must be said of the powers of the Trial Division of this Court under section 18 of the Federal Court Act. Since the Charter issues raised on behalf of the applicant were not raised before the CRDD, I conclude that this Court has no jurisdiction to entertain argument on the Charter issues. In the result, I sustain the position of counsel for the respondent.
[13] That leaves only the issue of whether or not the CRDD's findings regarding the credibility of the applicant were reasonably open to it. Counsel for the applicant urged that they were not; that those findings were perverse and capricious and made without regard to the totality of the material before the CRDD. Counsel invited me to engage in a microscopic examination of the reasons of the CRDD which, while not entirely internally consistent, were sufficiently coherent to support its finding of want of credibility.
[14] In the result, at the close of the hearing before me, I advised counsel that I would dismiss this application for judicial review and an order will go accordingly.
[15] Counsel for the applicant urged that I certify a question to the following effect:
| Is the CRDD entitled to treat notes of Immigration Officers that are in the nature of Port Of Entry notes as a determinative factor in determining the credibility of an applicant before it? |
Counsel for the respondent urged that this application did not raise a question for certification.
[16] I am in agreement with the position of counsel for respondent. In particular, I determine not to certify a question such as that proposed on behalf of the applicant since it simply does not arise on the facts of this matter. I am satisfied that the CRDD did not treat the notes of Immigration Officers made at interviews conducted with the applicant under rather unique and unsatisfactory circumstances as a "determinative factor" in its consideration regarding the credibility of the applicant. No question will be certified.
____________________________
J. F.C.C.
Ottawa, Ontario
November 29, 2000
__________________
1 R.S.C. 1985, c. I-2.
2 Part I of the Constitution Act , 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
3 [1989] 3 F.C. 233 (F.C.A.).
4 [1991] 2 S.C.R. 22.
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