Date: 20070226
Docket: IMM-1773-06
Citation: 2007 FC 215
Ottawa, Ontario, February 26,
2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SHOU
DONG LIN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Shou Dong Lin
is a citizen of the People’s Republic of China whose claim to refugee protection was
rejected by the Refugee Protection Division of the Immigration and Refugee
Board (Board). The Board did not believe Mr. Lin's evidence.
[2] Mr.
Lin testified that his
parents operated a bookstore in China and, commencing in or around 1997, they
sold some books about Falun Gong. Sometime in 2000, the Public Security Bureau
(PSB) learned of this and attended the bookstore. On August 26, 2000, Mr. Lin,
his parents, and his older brother (who worked at the bookstore on weekends)
went into hiding for fear of being arrested. Until then, Mr. Lin had been
unaware that his family was selling Falun Gong materials. Mr. Lin testified
that he is afraid if he is forced to return to China he
will be captured by the PSB and used as a hostage in order to gain access to
his parents and brother who remain in hiding.
[3] The Board, after accepting Mr. Lin's
personal identity, wrote:
Where
I have found concerns in the claimant’s evidence is in respect to why his
family would collect money to have him sent out of China to Canada instead of having his parents or older
brother, who were more at risk from the PSB. The claimant’s response was that
his family decided that he should be the one that the family spend money to
send out of the country because while he was in hiding for approximately three
years he did not go to school. This was due to his fear of being apprehended
by the PSB for questioning. Therefore, by sending him to Canada the claimant would have the opportunity, as in his own
words, to become more civilized and to increase his education. This would also
enable him to have increased options for future employment. This response has
left me with concerns as to the claimant’s fear of being persecuted by the PSB
if he returns to China.
[4] On Mr. Lin's behalf, it is argued that
the Board erred in law by drawing a negative inference from his evidence that
he was chosen to leave China because while in hiding he had not been
able to attend school. He says that when there are several potential refugees,
but only sufficient means to send one to safety, the Board should have
acknowledged that non-refugee reasons could be taken into consideration when
determining which one should be sent to Canada to seek protection.
[5] I agree in principle with that
submission. One can well envision a situation where, for example, parents
would wish their child to be the first person taken to safety. However, in the
present case, after reading the transcript of the proceedings before the Board
and reading the reasons of the Board as a whole, I am satisfied that the Board
did not err as alleged. In the unique facts of this case it was accepted that
Mr. Lin’s brother, who worked at the bookstore selling Falun Gong materials,
was likely at more risk to face persecution than Mr. Lin. Therefore, it was
open to the Board to have concluded it was implausible and inconsistent with
human behaviour that the Lin family would chose to send the child who was at
less risk to a safe country rather than the child who faced the higher degree
of risk.
[6] The second asserted error is the Board's
rejection of Mr. Lin's testimony that he had spoken to his grandparents
approximately two weeks before the hearing and they told him that members of
the PSB were still looking for him. The Board rejected this evidence because
it had not been mentioned in Mr. Lin's Personal Information Form (PIF) and he
had not amended the PIF to mention it. This is said by Mr. Lin to be an error
because the PIF instructs applicants to "… set out in chronological order
all the significant events and reasons that have led you to claim refugee
protection in Canada". A PIF need only be amended, it
is submitted, where new information received after the completion of the PIF
corrects information in the PIF, or provides the basis for a new ground of
claim. In my view, this is too restrictive an interpretation of the PIF instructions.
[7] In some situations it may be difficult to
draw a bright line between events that cause a person to claim refugee
protection and events that simply support or amplify the claim. In such cases,
the Board should exercise great caution before rejecting out of hand evidence
on the sole ground that it is evidence of an event or reason that caused a
person to claim protection and therefore should have been referred to in the
PIF.
[8] In the present case, it may well be that
the PSB's continued interest in Mr. Lin was a matter that should have been
added to update the PIF because Mr. Lin said he fled China because he feared
the PSB. Its continuing interest in him could be said to be an event or reason
that led Mr. Lin to claim refugee protection in Canada
notwithstanding the significant time that has elapsed since he and his family
went into hiding.
[9] In any event, I am satisfied that even if
the Board erred by rejecting this evidence, any such error was not material to
its decision. The Board did not believe that if Mr. Lin had a well-founded
fear of persecution he would have waited four years before leaving China. The Board did not believe it would have taken that Mr.
Lin's family a year to find a smuggler to assist Mr. Lin to leave China. The Board did not believe that a smuggler would remove
Mr. Lin from China, place him in hiding in an unknown country called “Mangela”
for a year, and then return to China so Mr. Lin could depart for Canada from Beijing. Those findings, which are not challenged, support the
Board’s assessment of credibility.
[10] For these reasons, the application for
judicial review will be dismissed. Counsel posed no question for certification
and I agree that no question arises on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
The application for
judicial review is dismissed.
“Eleanor
R. Dawson”
FEDERAL COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: IMM-1773-06
STYLE OF CAUSE: SHOU DONG LIN v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 31, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: FEBRUARY 26, 2007
APPEARANCES:
SHELLEY LEVINE FOR
THE APPLICANT
GORDON LEE FOR
THE RESPONDENT
SOLICITORS OF RECORD:
SHELLEY LEVINE FOR
THE APPLICANT
LEVINE ASSOCIATES
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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