Date: 20070514
Docket: IMM-3513-06
Citation: 2007 FC 510
Ottawa, Ontario, May 14, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
LIZHEN
LIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Immigration and Refugee Board (Refugee Protection Division)
(the Board) dated May 30, 2006, which determined that the applicant was neither
a Convention refugee nor a person in need of protection.
[2]
The
applicant requests that the Board’s decision be referred for redetermination to
a differently constituted panel of the Board.
Background
[3]
The
applicant, Lizhen Lin, is a citizen of China. She alleged
having a fear of persecution because she was Roman Catholic. The applicant set
out the circumstances leading to her claim for refugee protection in her
Personal Information Form (PIF) narrative.
[4]
The
applicant claimed that her family was Roman Catholic and that she had been a
Christian since childhood. She joined a Christian youth group in 2003. The
applicant believed that her father had miraculously recovered from a car
accident as a result of her prayers. On August 15, 2004, the applicant attended
a youth group service at a fellow Christian’s home. The group was tipped off by
a lookout that the Public Security Bureau (PSB) was approaching the house. They
helped the priest escape and the applicant fled with the crowd. She ran and hid
in her uncle’s home.
[5]
Three
days later, the applicant learned that the PSB had gone to her house to arrest
her. The PSB informed her family that she was engaged in illegal religious
activities. Two youth group members had been arrested by the PSB. The applicant
stated that the PSB continued to go to her home while she was in hiding and
after she had left China for Canada. A few weeks later, the
applicant’s family arranged for a smuggler to take her to Canada.
[6]
The
applicant applied for a Canadian visitor’s visa on June 30, 2005 and was
granted student status until August 2007. She arrived in Canada on July 18,
2005, and made a refugee claim on July 26, 2005. The applicant’s refugee
hearing took place on May 8, 2006 and her claim was refused by decision dated
May 30, 2006. This is the judicial review of the Board’s decision.
Board’s Reasons
[7]
The
determinative issue was whether the applicant was sought by the PSB and whether
there was a serious possibility that she would be persecuted. The Board
analyzed the credibility of the applicant’s PIF narrative with respect to her
pursuit by the PSB and the nature of her exit from China. The Board
noted the following inconsistencies in her evidence:
- When
asked by immigration officials why she sought refugee status, she stated
that the PSB had come to her home to arrest her and she escaped because
she had been informed that they were coming. Her PIF and testimony
indicated that when she was told that the PSB were coming to raid the
church service, she escaped with the crowd and hid in her uncle’s house.
- During
the interview, she stated that she was aware of the arrests before she
went into hiding. In her PIF and testimony, she stated that she was
informed of the arrests after she went into hiding. The applicant
reiterated the PIF narrative of events when asked to explain the
inconsistency. The Board drew a negative inference from this
inconsistency.
[8]
The
applicant’s responses to questions about her alleged eleven months in hiding
were inconsistent and evasive. The Board found that the applicant’s testimony
regarding her months in hiding lacked credibility.
- When
asked where her uncle’s home was located, she explained that she could
walk there in less than an hour.
- She did
not know whether the PSB had questioned her uncle.
- When
asked how her uncle had explained her presence to neighbours, she answered
that she seldom went out.
- She did
not know if the neighbours knew she was there but indicated that she had
met two neighbours.
- When
asked again how her uncle explained her presence, she answered that he said
she was attending school. She did not know why this story was accepted
since she rarely went out.
[9]
In
her interview and PIF, the applicant stated that her passport was genuine. However,
at the hearing she indicated that a smuggler had obtained it illegally, and
that she and her parents had not been involved. The Board noted that Chinese
citizens seeking country documents must appear at a local public security
bureau office in person and must fill out a form and submit additional
documents. The applicant’s testimony concerning the smuggler’s role in
obtaining her passport was not plausible and was inconsistent with her PIF and
interview. The Board found that the passport was genuine.
[10]
The
Board also found that the applicant’s description of her passage through the Beijing airport
lacked credibility. She testified that she was not required to do anything
while moving through customs with her passport, since everything was done by
the smuggler. The Board noted country documents indicating that Chinese
citizens travelling overseas had to present a valid passport and visa and have
their identity verified by an immigration official. It was not plausible that a
person being pursued by the PSB could exit China using her
own passport. The Board concluded that the PSB were not pursuing her and that
she was not a member of an underground Christian community that was raided by
the PSB. The applicant was therefore neither a Convention refugee nor a person
in need of protection.
Issues
[11]
The
applicant submitted the following issues for consideration:
1. Did
the Board err in drawing a negative inference from inconsistencies between the
applicant’s information from her immigration interview, and her PIF and
testimony?
2. Did
the Board err in its negative findings concerning the applicant’s period in
hiding?
3. Did
the Board err in drawing a negative inference from the applicant’s evidence
concerning her passport?
4. Did
the Board err in finding that the applicant’s description of her passage
through the Beijing airport lacked credibility?
5. Did
the Board err in failing to consider and make a determination regarding the
applicant’s identity as a Christian?
Applicant’s Submissions
[12]
In
Jamil v. Canada (Minister of Citizenship and Immigration) (2006), 55
Imm. L.R. (3d) 37, 2006 FC 792, the Court held that inconsistencies between
interview notes and a claimant’s testimony or PIF regarding minor details may
lead to a misconstruction of the evidence. It was submitted that only major
inconsistencies would be sufficient to affect the applicant’s credibility. The
applicant submitted that the substance of her claim was not set out in the
interview notes. It was submitted that the different sequence of facts in her
PIF narrative was not reasonable grounds to impugn her credibility. The
applicant noted that in the circumstances of the interview, the recounting of
events might not have been logical or chronological, and should not have been
used to undermine her credibility.
[13]
It
was submitted that the Board had no basis for finding it implausible that the
applicant did not know how her uncle explained her presence to the neighbours.
The applicant submitted that her answers were plausible, since she did not know
what her uncle had told the neighbours, and seldom saw them. It was submitted
that the Board had no basis for finding it implausible that the neighbourhood
committee would not have known that she was present. The applicant submitted
that the neighbours did not necessarily know about her situation, and the Board
did not cite any documentation regarding the operation of neighbourhood
committees in China.
[14]
The
applicant acknowledged that the Board may make implausibility findings which
are rationally supported by the evidence (see Zhou v. Canada (Minister of
Citizenship and Immigration) (2006), 146 A.C.W.S. (3d) 140, 2006 FC
70). However, it was submitted that in the case at hand, the Board’s
implausibility findings were patently unreasonable.
[15]
The
applicant submitted that there were no inconsistencies in the evidence
regarding her passport. The interview notes indicated that her passport was
obtained from a local passport office, but did not indicate that the applicant
procured it herself. It was submitted that the Board failed to consider that a
passport could be both genuine and improperly obtained. The applicant submitted
that given extensive corruption in China, the Board’s finding
that the passport must have been obtained by the applicant in person was not
supported by the documentary evidence. The applicant submitted that the Board
misconstrued the evidence in finding that there were inconsistencies in her
evidence regarding the nature of her passport. The applicant had amended her
PIF in writing in order to indicate that her passport had been improperly
obtained.
[16]
The
applicant submitted that the Board misconstrued evidence in finding it
implausible that a person pursued by the PSB could exit China using her
own passport. It was submitted that the Board failed to consider documentary
evidence regarding the sophisticated methods used to smuggle people. It was
submitted that plausibility findings should only be made where the facts are
outside the realm of possibility, or where the documentary evidence
demonstrated that the events could not have occurred as asserted (see Valtchev
v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R.
267, 2001 FCT 776).
[17]
The
applicant submitted that the Board erred in failing to assess the applicant’s
evidence in support of her Christian identity. It was submitted that the Board
was obligated to make a finding regarding her religious identity in clear terms
(see Chen v. Canada (Minister of
Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 238, 2002 FCT
480).
Respondent’s Submissions
[18]
The
respondent submitted that the standard of patent unreasonableness applied to
the Board’s credibility determinations (see Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886
(F.C.A.)). The applicant therefore had to point to a conclusion of the Board
that was not supportable in any way on the evidence (see Sinan v. Canada (Minister of
Citizenship and Immigration) (2004), 128 A.C.W.S. (3d) 1173, 2004 FC
87).
[19]
The
respondent submitted that the applicant gave different versions of her story.
Her interview notes indicated that she was attending church when she heard that
people were being arrested. She stated that the police came to her home to
arrest her, but she was tipped off and escaped. Her PIF and testimony indicate
that there was a raid during an evening service at a “believer’s house” and a
lookout warned that the PSB was coming. The participants helped the priest
escape and the applicant ran away to hide at her uncle’s home. She was informed
of the arrests after she went into hiding.
[20]
The
respondent submitted that the Board was entitled to find that the applicant
lacked credibility on the basis of serious contradictions and inconsistencies
in her story. The respondent noted that the applicant was only able to
reiterate the PIF narrative of events when asked about the inconsistencies. It
was submitted that contradictory testimony could cast doubt upon the totality
of a claimant’s oral evidence (see Dan-Ash v. Canada (Minister of
Employment and Immigration)
(1988),
93 N.R. 33, 5 Imm. L.R. (2d) 78 (F.C.A.)). The respondent submitted that a
claim may be rejected for lack of credibility where a claimant’s testimony
lacked the level of detail expected of a person in their position (see He v.
Canada (Minister of
Citizenship and Immigration) (2001), 110 A.C.W.S. (3d) 353, 2001 FCT
1256). It was submitted that the Board did not have to accept a witness’
testimony because it was not contradicted at the hearing.
[21]
The
respondent submitted that the Board was entitled to make findings based upon
implausibility, and could reject evidence if it was not consistent with the
overall probabilities of the case (see Gonzalez v. Canada (Minister of
Citizenship and Immigration) (1999), 88 A.C.W.S. (3d) 1062 (F.C.T.D.)).
It was submitted that it was not sufficient for the applicant to provide
alternative explanations for the Board’s findings. The respondent submitted
that the Board’s findings were reasonable and no reviewable error was committed
(see Sommariva v. Canada (Minister of
Citizenship and Immigration) (1996) 110 F.T.R. 319, 33 Imm. L.R. (2d)
25 (F.C.T.D.)).
[22]
The
respondent submitted that it was reasonable for the Board to question the ease
with which the applicant claimed to have passed through the airport using her
passport. It was noted that the document cited by the applicant indicated that
only in exceptional cases were mistakes made in the identity verification
process, and people who were wanted would not normally be able to leave China.
[23]
The
Port of Entry (POE) form required detailed information about the use of
smugglers, however the applicant only indicated that she had obtained a
passport from a local office in China. It was submitted that
it was reasonable to infer that a smuggler was not involved in obtaining the
passport, which was inconsistent with the applicant’s contention that a
smuggler had obtained the document. In Adu v. Canada (Minister of
Employment and Immigration) (1995), 53 A.C.W.S. (3d) 158 (F.C.A.)), the
Court held that a claimant’s sworn testimony may be rebutted where the
documentary evidence fails to mention what would normally be expected. The
respondent submitted that the Board was entitled to prefer documentary evidence
regarding the procedure for obtaining passports in China over the applicant’s
testimony (see Zhou v. Canada (Minister of Employment
and Immigration) (1994), 49 A.C.W.S. (3d) 558 (F.C.A.)).
[24]
The
respondent submitted that the Board provided a reasonable explanation for
believing that the applicant had obtained the genuine passport herself. In
addition, there was no evidence before the Board that the bribery of officials
was a factor in her case.
[25]
The
Board concluded that the applicant was not a Christian who was pursued by the
PSB on the basis of cumulative negative credibility findings. In Djouadou v. Canada (Minister of
Citizenship and Immigration) (1999), 94 A.C.W.S. (3d) 1183 (F.C.T.D.), the
Court held that the Board did not have to consider documentary evidence
regarding country conditions where a claimant’s testimony lacked credibility. Should
the Board have committed an error in this regard, it was submitted that the
cumulative effect of the deficiencies in the applicant’s testimony supported
the negative credibility finding. It was submitted that where a claim was
decided on a lack of credibility, and these findings were not patently
unreasonable, the credibility finding was determinative of the application for
judicial review (see Dezsone v. Canada (Minister of Citizenship and Immigration) (2005), 143 A.C.W.S.
(3d) 1081, 2005 FC 1549).
Analysis and Decision
Standard of Review
[26]
The
Board’s credibility findings warrant a high level of deference and are subject
to review on the standard of patent unreasonableness (see Aguebor
above).
[27]
Issue
1
Did the Board err in drawing a negative
inference from inconsistencies between the applicant’s information from her
immigration interview, and her PIF and testimony?
The Board’s
negative credibility finding was based upon inconsistencies in the applicant’s
POE notes, her PIF and her testimony regarding: (1) her pursuit by the PSB; (2)
her time in hiding; (3) the nature of her passport; and (4) her passage through
the Beijing airport. In Jamil
above, Justice Lemieux stated the following regarding the Board’s consideration
of the evidence in making credibility findings, at paragraph 25 of the
decision:
These cases as applied by the Federal
Court of Appeal itself and by this Court proscribe credibility findings arrived
at by, for example:
- Findings for which there was no
evidence;
- Findings of the tribunal based on
conjecture, resulting in unjustified and unsupported inferences regarding the
circumstances leading to an application for refugee status;
- Inconsistencies drawn between POE
notes and an applicant's testimony or the applicant's PIF where a tribunal
dwells on details and not on the substance of the claim and leads to
misconstruction of the evidence. Any such inconsistencies should be major and
not minor and sufficient by itself to call into question the applicant's
credibility. (See Mushtaq v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1066 (F.C.); and
- The tribunal must be reasonable in
rejecting an applicant's explanation when confronted with a contradiction and
must not be quick to apply North American logic and reasoning to a claimant's
behaviour, (see Lubana, supra, at para 12);
-
The
tribunal must assess the applicant's claim against the totality of the
evidence.
Pursuit by the PSB
[28]
The
POE notes state the following with respect to the applicant’s pursuit by the
PSB:
I have been attending church activities
and I heard that people were being arrested. The police wants to arrest me. The
police have come to my home to arrest me. They came during the night some people
tipped me off about this and I was able to escape.
[29]
The
applicant’s PIF stated the following regarding her pursuit by the PSB:
On August 15, 2004 I was attending a
service at a believer’s house…When our activity went for about an hour, a
lookout ran into the house and told us to run because the PSB were coming. As
soon as we heard the news we helped the priest escape and then I escaped with
the crowd. After my escape I ran to my maternal uncle’s house for hiding.
3 days after I was in hiding at my maternal
uncle’s house my maternal uncle went to my house and learned from my family
that the PSB went to my house to arrest me. The PSB said that I was engaged in
illegal house church activities and being a leader in the house church. My
family told me that the PSB arrested 2 believers in my youth group.
[30]
The
applicant described this incident as follows during the hearing:
RPO: Okay. So let’s turn then to what
happened. When was the day that the PSB discovered the youth group?
…
CLAIMANT: Oh, that was August 15th.
…
RPO: When did the service begin that day?
CLAIMANT: 8:00 p.m.
RPO: Now, turning back to my first question
concerning this event, I want you to describe in detail what happened, from
your personal perspective, starting with a few moments before the service was
interrupted. What were you doing when the service was interrupted?
CLAIMANT: I was reciting Our Father. And the
lookouts rushed in and they informed us that police came. So, we assist the
father to leave, to flee from the rear door. And after that we also fled the
scene.
…
RPO: And am I correct, from that time on
you were in hiding in China?
CLAIMANT: Yes.
RPO: Did you ever return home?
CLAIMANT: No.
[31]
During
the hearing, the applicant was asked to explain the discrepancies in her
evidence regarding the day that she was pursued by the PSB:
RPO: Okay, well I have, we all have before
us a copy of this record of examination. And in your response to why you are
seeking refugee status you stated the following:
You said you’d been attending church
activities, you heard that people were being arrested. “The police want to
arrest me, the police have come to my house to arrest me…They came during the
night. Some people tipped me off about this and I was able to escape.”
…
Do you recall making these statements?
CLAIMANT: It seems to be different from what I
said before.
RPO: Well, it’s certainly different from your
Personal Information Form. I’m not sure, when you say it’s different from what
you said before, what are you-
CLAIMANT: At the beginning, yes, at the time I
said that I participated in the activities and the police came to arrest people
and I fled the scene, because we were informed by the lookout. So, when the
people come to arrest me it’s the night of our activity.
…
RPO: I don’t understand why you said
something different when you were asked to explain. Why would you say, I was at
a church service, it was raided, (inaudible)?
CLAIMANT: Because at that time I say so, but I
don’t know why – it seems to be what is written down, it’s being reversed or
upside down.
RPO: Yeah, it’s different, and I’m giving
you an opportunity to explain why, why it says something different.
CLAIMANT: Because what I said, what my answer
was describing the night of our activity and the police came to arrest us and
the lookouts came to inform us.
…
RPO: If I understand your explanation
you’re saying that this description I’ve just read to you is a description of
what happened when the PSB raided the service?
CLAIMANT: Yes. Yeah, we fled that night, but
later I learned the police came to our house.
…
RPO: My question is do you have any
explanation why, when you were asked to explain during this examination why you
couldn’t go home, you didn’t use the same sequence?
CLAIMANT: I answered in that sequence but I
don’t know why on the paper it shows different.
[32]
Later
during the hearing, counsel attempted to clarify the applicant’s testimony:
COUNSEL: “I have been attending church
activities and I heard that people were being arrested. The police wants to
arrest me.” What exactly were you referring to there?
CLAIMANT: I am referring to the day of the
activity, the incident that happened. And the police showed up to arrest us and
the lookout came to inform us and we assist father and let him go first and
then we leave afterwards.
COUNSEL: When you said earlier, “They came
during the night”, some people tipped me off about this.” What are you
referring to there? Specifically, when you say “some people tipped me off”, who
are you referring to?
CLAIMANT: It’s the lookout that ran in and
informed me.
[33]
The
circumstances surrounding the incident during which the applicant was allegedly
pursued by the PSB were:
(1)
the
applicant attended a youth group service;
(2)
a
lookout informed her that the PSB was approaching;
(3)
the
applicant escaped the PSB;
(4)
the
applicant hid at her uncle’s home; and
(5)
the
PSB went to the applicant’s home to arrest her that night.
[34]
These
elements of the applicant’s story are present in the version of events provided
in the POE notes and PIF narrative, albeit in a different order. It appears
that the applicant was attending an evening service when the group was informed
by a lookout that the PSB was approaching. The group helped the priest flee and
the applicant escaped with the crowd. The applicant sought refuge at her
uncle’s home; meanwhile the PSB went to her family home to arrest her that
night.
[35]
In
my view, the Board misconstrued the applicant’s evidence. During the hearing
the applicant explained the content of the POE notes and indicated that the
night that she fled from the PSB after being tipped off was the day the PSB
raided the service. While the events are in a different chronological order in
the PIF narrative and POE notes, I do not believe that this discrepancy is
sufficient to ground a negative credibility finding. I find it understandable
that the initial version of the applicant’s story, which contained the elements
of the narrative of events provided in her PIF, might vary in order from that
to which she testified.
[36]
I
now wish to deal with Issue 5.
[37]
Issue
5
Did the Board err in failing to consider
and make a determination regarding the applicant’s identity as a Christian?
I
have found that the Board erred in finding the applicant not credible in her
story regarding the events which took place at the service held on August 15,
2004. This would have provided evidence that the applicant was a Christian.
[38]
In
Chong v. Canada (Minister of Citizenship and Immigration,) [1998]
F.C.J. No. 999 (QL), Justice Rothstein stated:
1. The issue in this judicial review is
whether the panel of the CRDD addressed the basic issue of whether the
applicant was a practicing Roman Catholic in China and as a result would have a
well-founded fear of persecution. The panel's reasons were directed to
that portion of the applicant's evidence that it thought he was making up
"to embellish his claim". The panel disbelieved the
embellishments. However it did not expressly deal with whether the
applicant was a practicing Roman Catholic in China and suffered persecution as
a result.
2. The panel acknowledged that the
authorities do "go after people in positions in the Roman Catholic Church
such as priests and nuns in their crackdown on religion". In its
reference to the documentary material there are excerpts to this effect, but
also to "peasants" who were sentenced to time in a labour camp in
1992.
3. The respondent relies on Chang
v. Canada (Minister of Citizenship and Immigration), [1997]
F.C.J. No. 1010, (24 July 1997), Toronto IMM-2031-96 (F.C.T.D.). However
in that case the panel found that the applicant had not had any difficulty in
practicing his religion. In the present case, the panel does not
expressly state whether it believed that the applicant was a practicing Roman
Catholic or whether it believed that the applicant had difficulty as a
result. This was the primary issue before the panel. The
panel seems to have rejected the applicant's claim solely on the grounds that
it did not believe the embellishments that it thought he had made up. It was
open to the panel to do so but in this case it is not clear whether the panel
thought that the applicant's entire story was untrue or whether it simply did
not address the primary issue.
4. While I am reluctant to interfere with
a decision based on a credibility determination, I am not satisfied that in
this case the panel addressed and dealt with the primary issue before
it. See Wang v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 1802, (22 December 1997), Toronto
IMM-250-97 (F.C.T.D.). In an abundance of caution, I think that this
judicial review must be allowed and the matter remitted to a different panel
for redetermination. The new panel should include in its determination
whether it believes the applicant was a practicing Roman Catholic in China and
if so, whether this presented any difficulty for him amounting to persecution
and whether he has a well-founded fear of persecution in China as a result.
[39]
In
Chen v. Canada (Minister of Citizenship and Immigration) (2002), 20
Imm. L.R. (3d) 238, 2002 FCT 480, I stated at paragraph 19:
I have reviewed the Board’s decision and
I have come to the conclusion that the Board did not make any finding with
respect to whether the applicant was a member of the Falun Gong group. The
Board did not believe the applicant’s story with respect to her persecution in China but it did not address whether she was a
member of the group. This finding was necessary in order to determine whether
or not the applicant was a Convention refugee. The decision does not address
the Falun Gong activities in Toronto. This evidence should have
been considered (see Jian Jiang v. M.C.I. 2002 FCT 64; [2002]
F.C.J. No. 84 (QL)). It was a reviewable error for the Board not to make this
determination.
[40]
In
the present case, the Board found that the applicant was not a Christian in the
following part of the decision:
. . . It is on the basis of these
accumulated findings that I further find that agents of the PSB are not
pursuing the claimant and that she was not a member of an underground Christian
community in China raised by the PSB.
[41]
However,
it is now apparent that the applicant’s testimony about belonging to a
Christian youth group was credible. As well, there was other evidence in the
record that the applicant had knowledge of Christian beliefs. In addition, the
RPO made the following statement at the hearing:
With respect to her current knowledge of
Christianity and attendance at the Christian church, I have no major concerns.
She does have a letter from the church in Canada. There seemed to be some difficulties in
providing her knowledge of Christianity. I noted that there were problems
though with the translator just being able to provide clear descriptions and
translations. But overall I’m not concerned about her current knowledge of
Christianity. Those are my observations.
(Tribunal record page 382)
[42]
It
is not in dispute that Christians are persecuted in China. Since the
Board made its finding that the applicant was not a member of an underground
Christian community raided by the PSB on the basis of the accumulated
credibility findings and one of these findings, (the pursuit by the PSB at the
church) has been set aside, the Board may well come to a different conclusion
about whether the applicant was a Christian. The Board made a reviewable error
in not considering the other evidence that related to the applicant’s claim
that she was a Christian.
[43]
I
need not deal with the other credibility findings.
[44]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for redetermination.
[45]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[46]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c.27.:
|
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.
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
(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.
(2) A
person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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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.
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;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant:
(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.
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
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