Liu v. Canada (Minister of Citizenship and Immigration), docket IMM-3143-96

     IMM-3143-96

B E T W E E N:

     ZHI GAN LIU

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

     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 of subsection 2 (1) of the Immigration Act¹. The decision is dated the 30th of July, 1996.

     The factual background to the applicant's Convention refugee claim is reasonably succinctly set out in his Personal Information Form, the relevant portion of which reads as follows:

I, LIU, ZAI GAN am a citizen of China. I came to Canada as a result of my fear of religious persecution. Specifically, I am a Protestant.

In 1989, I joined the house church in my village. I was introduced to the church and the religion by my former classmate, Wang Li Ming. I was Baptised in December 1989 at Huang Yi's home, by Pastor Lin. I was then given the religious name, Peter. Thereafter, I attended services about twice per month. The house church was located in Huang, Yi's home.

I refused to adhere to the Patriotic Church as it is under the control of the Chinese government and not God.

My activities for my Church included recruiting members. I was able to recruit 15 of the 60 believers who attended my Church.

I acted as liaison and organizer of the church, contacting the pastor and the believers respectively, to arrange for religious services.

When new believers would attend the church, I would organize for their Baptism. In addition, I assisted to provide religious material on education to new members of my congregation.

About August 14, 1993 a service was to take place at the House Church in order to Baptise three new believers. I arranged this event. About 30 believers participated. The service began at 9:00pm, however, only 10 minutes into the service, the P.S.B. raided the Church. The lookout person notified those in attendance of the approaching P.S.B. giving members time to flee. I fled with the Pastor and two other believers. We ran to the wooded area. The Pastor and the other two believers went to one of the believers' home. I went to my cousin's home which was about 30 killometers away. The following day, my cousin went to my home to inquire into the situation. My parents told my cousin that the P.S.B. had raided the home and seized religious materials. The P.S.B. further told my parents that I had organized underground religious activities and that the owner of the house church and one of the believers were arrested at the scene. The P.S.B. left a summons for my arrest.

Several days later, my cousin learned from his friend that the place where the Pastor was hiding was also raided and the Pastor and several others were arrested. They were accused of counter-revolutionary religious activities and that they were to be sentenced.

I was so afraid that I would be arrested. As such, my cousin made arrangements for me to escape from China. After I arrived in Canada, I called my cousin who told me that the Pastor was sentenced to imprisonment and that two of the believers were also sentenced.

I now fear returning to China as I am certain that I would be arrested, sentenced to prison and tortured. In addition, I would never be allowed to freely practice my religion in China.

     The foregoing was, of course, supplemented by the oral testimony of the applicant before the CRDD.

    

     The hearing before the CRDD took place on three separate dates spread over almost exactly a year. The CRDD panel was assisted at the first two sittings by one Refugee Claim Officer, and at the third sitting by a different Refugee Claim Officer. Further observations were received from the second Refugee Claim Officer on the last hearing date. Post-hearing submissions were submitted by counsel for the applicant some three weeks later. Counsel submitted further documentary evidence some two months after the last hearing date. The CRDD decision and reasons issued some three and one half months after the last sitting date. The CRDD concluded:

The panel is not satisfied that the claimant was present in China subsequent to May 1992. The panel finds the claimant's testimony regarding his membership in the church group, his position and responsibilities in it, the incident of August 1993, and the summons issued against him by the PSB, not to be credible or trustworthy. Moreover, since this evidence is crucial to the claim, it is our view that there is no credible or trustworthy evidence upon which to base a positive determination.

     In reaching its conclusion, the CRDD wrote:

...the panel is not persuaded from the claimant's demeanour that he was fisherman.

     The CRDD found pivotal aspects of the applicant's testimony not to be credible. While the CRDD noted that:

...the claimant was quite cool and composed throughout the hearing and thoughtfully answered each question after taking his time...,

it later noted that:

...answers had to be dragged from the claimant on various occasions especially when he had to describe the procedure used to relay information to the church members about the date of the church service.

     In its reasons for decision, the CRDD cited six implausibilities arising from the applicant's testimony. It further found two discrepancies which it brought to the claimant's attention so that he could respond to them. With respect to four other discrepancies in the applicant's testimony on which the CRDD relied, it acknowledged on the face of its reasons that they had not been brought to the attention of the applicant.

     The following issues were identified by counsel for the applicant and argued before me as bases upon which the decision of the CRDD should be set aside:

first, whether the applicant was denied the right to a fair hearing in accordance with the rules of natural justice when the CRDD allegedly misled the applicant as to the case he had to meet and failed to confront the applicant with alleged inconsistencies in his testimony;

second, whether the CRDD based its decision on conclusions not supported by the evidence; and

finally, whether the finding that the applicant did not have a well-founded fear of persecution was based on a misconstruction of the evidence, disregard of the evidence and improper inferences.

     At the opening of the first hearing before the CRDD, the issues that the CRDD considered to be critical to the applicant's case were identified. At the opening of the third session, a further issue was added, that being the identity of the applicant. Counsel for the applicant before the CRDD objected strenuously to the addition of the issue of identity. A brief adjournment was granted to enable the applicant and his counsel to consult with regard to the issue. Counsel did not ask for a further adjournment to prepare for the issue or to bring forward further witnesses. An opportunity was provided for post-hearing submissions, that opportunity was taken up, and the issue of identity was addressed. Further, an opportunity was provided to bring forward further documentary evidence and that opportunity was also utilized.

     My decision in Rehman, et al. v. Canada (Secretary of State)² was cited for the proposition that this late addition of an issue that the CRDD considered to be of importance constituted a reviewable error on the part of the CRDD. I cannot agree. In Rehman, I wrote at page 299:

Thus, from the outset of the hearing, it was made clear to the claimants and to their counsel that identity and citizenship were not at issue.

     Later, at page 300 I wrote:

...despite the assurances given to the applicants and their counsel at the opening of the hearing regarding their identities and citizenship not being an issue, for the first time when they received the decision of the CRDD, the applicants learned that they were not believed to be who they claimed to be and were not believed to be citizens of Kenya.

     Thus, on the facts of that case, the applicants were given no opportunity to address the issues of identity and citizenship. Here, while identity was not identified as an issue at the earliest possible time, it was identified as an issue while the applicant still had an opportunity to address it and the applicant took advantage of the opportunity to do so and asked for no additional opportunity. I am satisfied that the CRDD committed no reviewable error in this regard.

     As indicated earlier, the CRDD identified four inconsistencies in the testimony of the applicant, relied on them in its reasons, but failed to confront the applicant with these inconsistencies and provide an opportunity to respond to them.

     In Gracielome v. Canada (Minister of Employment and Immigration)³, Mr. Justice Huggessen wrote:

It is worth noting that in none of the three cases [of apparent inconsistency] were the applicants confronted with the alleged contradictions or asked for explanations. On the contrary, it is apparent that each example was found by the majority after the fact, from a painstaking analysis of the transcripts of the evidence. In these circumstances, the board is in no better position to weigh contradictions than is this Court.

    

     I do not read the foregoing as standing for the proposition that failure to identify inconsistencies in testimony and provide an opportunity to respond to them amounts to a reviewable error.

     In Vorobieva v. Canada (Solicitor General)⁴, Mr. Justice Rouleau wrote:

It is now well established that in determining that a claimant's evidence is not credible, the board errs in law if it searches for inconsistencies in a claimant's evidence to support a negative finding of credibility and further, the rules of natural justice require the Board to confront a claimant with any inconsistencies or contradictions in their evidence and to give the claimant an opportunity to respond to these alleged inconsistencies...

     For the foregoing proposition, Mr. Justice Rouleau cites Gracielome and Owusu-Ansah v. Minister of Employment and Immigration⁵ which, like Gracielome, I conclude, with great respect, does not fully support the proposition enunciated by Mr. Justice Rouleau.

     In Guo v. The Minister of Citizenship and Immigration⁶, Heald, D.J. wrote:

The relevant jurisprudence establishes that inconsistencies in the claimant's evidence from which a board may find a refugee claimant not credible must be put to the claimant and the claimant afforded an opportunity to explain the alleged inconsistencies. A review of this record indicates that this applicant was not confronted with the alleged inconsistencies in her evidence and given an opportunity to respond, as is required by the rules of natural justice. Specifically, the applicant should have been given the opportunity to explain the alleged inconsistency with respect to her evidence relating to her chinese work unit card and the PSB list of seized items. A failure to afford such an opportunity to the claimant constitutes an error in law.

     For the foregoing proposition, Mr. Justice Heald cites Gracielome and Vorobieva.

     With great respect, on the facts before me, I am of the view that the decisions in Vorobieva. and Guo place too heavy an onus on the CRDD. In this matter, as indicated earlier, the hearing before the CRDD took place over three sessions, widely separated. The CRDD was assisted by two different Refugee Claim Officers. The CRDD did identify certain inconsistencies in the evidence of the applicant and drew those to his attention, in the presence of his counsel, so that both he and his counsel were aware that the CRDD was concerned about inconsistencies. Four other inconsistencies on which the CRDD eventually relied, were not drawn to the applicant's attention.

     During the course of the hearing, it is fair to assume that the members of the CRDD panel were in no better position to identify inconsistencies than were the applicant and his counsel. The change in Refugee Claim Officers between the second and third hearing dates meant that the Refugee Claim Officer assisting the CRDD at the last hearing date was limited in his capacity to identify inconsistencies. In such circumstances, while it would have been preferable for the CRDD to have drawn to the applicant's attention all of the inconsistencies in his testimony on which it might rely, I conclude that its failure to do so neither constituted a breach of the rules of natural justice nor an error in law. As indicated earlier, the applicant and his counsel were on notice that the CRDD was concerned about inconsistencies. The onus was on the applicant to make out his case. He had the assistance of counsel and he was in a position equal to that of the CRDD to identify further inconsistencies.

     As indicated earlier, in addition to the inconsistencies on which the CRDD relied, it identified a range of implausibilities. It concluded that the evidence before it was not sufficient to support a conclusion that the applicant was a resident of China after May of 1992, and while it found the applicant's demeanour to be quite cool and composed throughout the hearing with his answers provided thoughtfully after taking his time, it also found that answers had to be "dragged" from the applicant on various occasions. Whether or not I or counsel for the applicant might have made the same findings is not, of course, a relevant question. On the testimony and other material before the CRDD, I conclude that all of these findings, other than that regarding the applicant's residence in China after May, 1992, were reasonably open to it. The applicant's testimony regarding his presence in China after May, 1992 was uncontradicted. His sworn, uncontradicted evidence must, in the absence of reason to disbelieve it, be taken to be true. The CRDD cited no reason to disbelieve this aspect of the applicant's testimony.

     The CRDD also found that it was

...not persuaded from the claimant's demeanour that he was a fisherman.

     Without further explanation, it is difficult to determine how the applicant's occupation could be determined from his demeanour. That being said, I conclude that this particular finding was not central to the CRDD's decision.

     Neither of the foregoing findings was, I conclude, central to the CRDD's decision.

     For the foregoing reasons, this application for judicial review will be dismissed.

     Neither counsel recommended certification of a question. I regard the question of the responsibility of the CRDD to identify inconsistencies in testimony and to confront an applicant with those inconsistencies so that he or she may reply to them to be a serious question. That being said, I have limited my conclusion in that regard to the very specific facts of this case. I therefore conclude that my determination in this regard is not one of general importance and therefore is not an appropriate question for certification.

     No question will be certified.

                                                

                                                 Judge

Ottawa, Ontario

August 29, 1997

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                      IMM-3143-96                 

STYLE OF CAUSE:              ZHI GAN LIU         

                             - and -

                             THE MINISTER OF CITIZENSHIP

                             AND IMMIGRATION

    

DATE OF HEARING:              AUGUST 12, 1997     

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR ORDER BY:      GIBSON, J.

DATED:                          AUGUST 29, 1997

APPEARANCES:

                         Ms. Naomi S.D. Solomon

                             For the Applicant

                         Mr. Godwin Friday

                             For the Respondent

SOLICITORS OF RECORD:

                         Lewis and Associates

                         175 Harbord Street

                         Toronto, Ontario

                         M5S 1H3

                             For the Applicant

                          George Thomson

                         Deputy Attorney General

                         of Canada

                             For the Respondent

                     FEDERAL COURT OF CANADA

                     Court No.:      IMM-3143-96

                     Between:

                     ZHI GAN LIU

     Applicant

                     - and -

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

     Respondent

                     REASONS FOR ORDER

    

__________________

¹R.S.C. 1985, c I-2

²(1995), 92 F.T.R. 297

³(1989), 9 Imm. L.R. (2d) 237 (F.C.A.)

⁴(1994), 84 F.T.R. 93 (F.C.T.D.)

⁵(1989), 98 N.R. 312 (F.C.A.)

⁶16 Sept. 1996, A-928-92 (unreported) (F.C.T.D.)