Date: 20030515
Docket: IMM-269-02
Neutral citation: 2003 FCT 603
Ottawa, Ontario, this 15th day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
YULAN HU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated January 4, 2002, wherein Yulan Hu (the "applicant") was determined not to be a Convention refugee.
[2] The applicant seeks an order that the decision of the Board be set aside and the matter be referred back to the Board for redetermination before a differently constituted panel.
Background
[3] The applicant is a citizen of the People's Republic of China. She claims a well-founded fear of persecution on the grounds of her membership in the Tian Dao religion.
[4] In October 1998, the applicant met Jinfeng Li, who advised her that by practising Tian Dao, one could go to heaven and have ill luck turn into good luck. Dotting Master Guangzhong Jin (the "Dotting Master") formally admitted the applicant to Tian Dao on February 19, 1999 of the lunar calendar. The applicant participated in the regular service and assisted the Dotting Master in the preparation of services and in recruiting new members.
[5] On August 30, 2000, the applicant learned from Jinfeng Li that the Dotting Master had been arrested by the Public Security Bureau ("PSB"). The applicant went into hiding at a cousin's home in Guangzhou City. While in hiding, she heard that her home had been searched and a few of her fellow believers had been arrested. Her family members made arrangements for her trip to Canada, and she arrived in Canada on September 24, 2000. On October 25, 2000, the applicant's father informed her that those fellow believers who were arrested were sentenced to one year in prison and a one year supplementary term, and that the authorities periodically came to her home.
Reasons of the Convention Refugee Determination Division of the Immigration and Refugee Board
[6] The Board determined that the applicant was not a Convention refugee because the evidence did not establish her well-founded fear of persecution as a Tian Dao believer. The Board found that the applicant did not practice Tian Dao in China, was not wanted by the PSB, and joined the Canadian Tian Dao temple in order to forward her refugee claim. The Board was not persuaded on a balance of probabilities that the applicant would be committed to the practice of Tian Dao if she were to return to China.
[7] The Board found the applicant was not a credible or trustworthy witness based on the discrepancies, inconsistencies and implausibilities in her evidence. At the outset of the hearing, the applicant made numerous amendments to her Personal Information Form ("PIF"). The Board drew a negative inference from these amendments because the applicant was aware of all the information that was added to her PIF when she signed the PIF on April 18, 2001. In addition, the Board found the applicant's explanations for these amendments were contrived and contradictory.
[8] Although the applicant had some knowledge about Tian Dao, she erroneously referred to it as "Taoism" and gave evidence inconsistent with that of Tian Dao Pastor William Ng. The applicant's written evidence that she recruited new members was contradicted by her oral evidence that, since she had not been a Tian Dao member for very long she did not recruit new members, but she did assist the Dotting Master in imparting information to the new recruits.
[9] On several occasions, the applicant had travelled out of China on business. In August 2000, she travelled to the United States on her own passport to attend a convention. At that time, she allegedly had been a Tian Dao member for over one year. The applicant testified that she made no claim in the United States because nothing had happened at the time. The applicant stated that he Dotting Master was arrested a week after her return to China.
[10] The Board realized that corroborative evidence is not required, but in this case, the applicant testified that the arrest of the Dotting Master was reported in the newspaper. Given the availability of newspapers on the internet, the applicant could have presented the newspaper before the Board. In addition, the applicant testified that the police did not present an arrest warrant when they searched her house around the beginning of September 2000. However, if the police were looking for the applicant, an arrest warrant must be issued.
[11] The applicant's story regarding her departure from China was inconsistent with the documentary evidence which the Board preferred. Finally, the applicant's work history on her PIF was different from the work history given on her Canadian Visitor's Visa ("CVV") application.
Applicant's Submissions
[12] The applicant submits that the Board violated the principles of natural justice by failing to give her notice that it was going to rely on its specialized knowledge and by failing to provide her with an opportunity to respond to that specialized knowledge. The specialized knowledge related to the requirements for membership in a Canadian Tian Dao temple. This evidence, which contradicts the testimony of the applicant, was given by Pastor Ng in the context of a different refugee claim.
[13] In the alternative, the applicant submits that the evidence of Pastor Ng cannot properly be characterized as specialized knowledge because it was not of the general character well-known to the public. Consequently, it is submitted that it was not open to the Board to base its finding that the applicant was not a genuine Tian Dao adherent on the evidence of Pastor Ng.
[14] The applicant also submits that the Board erred in basing its decision on the following assertions of fact which were not supported by the evidence before it:
1. The applicant became a Tian Dao believer in Canada and obtained the letter from Pastor Ng regarding her membership in the Ming Sing Tao - Tak Temple for the purposes of forwarding her refugee claim;
2. The newspaper which reported the arrest of the Dotting Master would be readily available on the internet and the applicant could have produced it, even though there was no evidence that the applicant was familiar with or had access to the internet;
3. An arrest warrant must be issued if the police were looking for the applicant;
4. The applicant could read English, which is the language in which her PIF was prepared.
[15] The applicant submits that the Board's finding that the applicant's testimony regarding her departure from China was inconsistent with the documentary evidence ignored her testimony that her trip to Canada was arranged by a smuggler. It is submitted that the Board's finding that the applicant was not a credible witness because some information in her PIF conflicted with information in her CVV application was unreasonable because the Board tacitly accepted the applicant's evidence that she obtained her CVV through a smuggler and that she had signed a blank form.
[16] In addition, it is submitted that the amendments made to her PIF at the outset of the hearing were minor and did not affect the substance of the applicant's claim. Even if the applicant's evidence relating to the amendments was not credible, this did not exclude the possibility that the applicant was a Tian Dao believer who would be at risk if she returned to China. Even if the Board found the applicant not to be credible and rejected her account of what happened to her in China, it is submitted that the Board was still required to consider whether her fear of persecution on religious grounds was well-founded.
Respondent's Submissions
[17] The respondent submits that since the specialized knowledge regarding the Tian Dao Temple membership requirements was not that of the Board, but that of Pastor Ng, subsections 68.(4) and 68.(5) of the Immigration Act, R.S.C. 1985, c. I-2 do not apply. In addition, this knowledge was wholly contained in a letter put before the Board, which was sufficient to satisfy the relevant notice requirements. Since the applicant failed to swear in her affidavit that she was not given an opportunity to respond to Pastor Ng's letter, the only evidence before the Court is that this letter was entered into the record during the hearing. The contradiction between this letter and the applicant's testimony regarding joining procedures at a local temple supported the Board's finding that the applicant was practising Tian Dao in order to bolster her refugee claim.
[18] According to the respondent, the applicant is attempting to shift the onus from herself onto the Board to show that its findings regarding the arrest warrant and newspaper articles were made with regard to the material before it. The Board is not required to footnote every single factual finding. The respondent submits that it was not unreasonable for the Board to draw the inference that if the article was available on the internet, the article could have been presented at the hearing by either the applicant or her counsel.
[19] The respondent submits that the Board was entitled to prefer the documentary evidence to that of the applicant regarding her departure from China. Furthermore, contrary to the applicant's assertion, the Board did not find the applicant non-credible because information on her CVV conflicted with her PIF. Rather, the respondent submits the Board found her non-credible because she allowed the smugglers to lie to Canadian officials on her CVV application form. It is submitted that the Board gave reasons for its negative credibility findings in clear and unmistakable terms and that it was not completely unreasonable in inferring from the applicant's past deceit that she was untrustworthy.
[20] The respondent submits that the numerous changes to the applicant's PIF were not of a minor nature. It is submitted that it is clear the Board drew a negative inference from the astounding number of last-minute amendments, and her incredible explanations for those amendments and not on a mistaken belief that the applicant could read English.
[21] The respondent agrees that the Board would have to look into the objective basis of the claim if the applicant was found to be a practitioner of Tian Dao. However, since the Board did not find the applicant to be a practitioner of Tian Dao, it is submitted that the factual basis on which the Board could consider the objective aspect of her claim was absent.
[22] Even if one or two of the Board's negative credibility findings were impugnable, the respondent submits that there were other undisputed credibility findings that reasonably supported the Board's ultimate conclusion. It is submitted that the Board's finding of a lack of subjective fear, an essential component of the bipartite test, was sufficient to dismiss the applicant's refugee claim. Since none of the findings contested by the applicant played a part in the Board's subjective fear finding, it is submitted that any faults in the Board's reasons, including procedural faults, cannot serve to impugn that finding.
Issues
[23] 1. Did the Board fail to observe a principle of natural justice or procedural fairness
when it purported to rely on its "specialized knowledge" without affording the applicant a reasonable opportunity to make representations with respect thereto?
2. Did the Board err in basing its decision on assertions of fact that were not supported by any evidence on the record?
3. Is the Board's decision, as a whole, so unreasonable as to warrant judicial intervention?
Relevant Statutory Provisions and Regulations
[24] The relevant subsections of the Immigration Act, supra state as follows:
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"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
68.(4) The Refugee Division may, in any proceedings before it, take notice of any facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information or opinion that is within its specialized knowledge.
(5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto.
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« réfugié au sens de la Convention » Toute personne:
a) 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:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
68.(4) La section du statut peut admettre d'office les faits ainsi admissibles en justice de même que, sous réserve du paragraphe (5), les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
(5) Sauf pour les faits qui peuvent être admis d'office en justice, la section du statut informe le ministre, s'il est présent à l'audience, et la personne visée par la procédure de son intention d'admettre d'office des faits, renseignements ou opinions et leur donne la possibilité de présenter leurs observations à cet égard.
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Analysis and Decision
[25] Issue 1
Did the Board fail to observe a principle of natural justice or procedural fairness
when it purported to rely on its "specialized knowledge" without affording the applicant a reasonable opportunity to make representations with respect thereto?
I agree with the applicant that the principles of natural justice and the requirement of
notice to the applicant of the use of any information within the specialized knowledge of the Board (subsection 68.(5) of the Immigration Act, supra) required the Board to give notice to the applicant of the use of its specialized knowledge of membership requirements in the temple. This knowledge of the Board was obtained from another hearing. If the applicant had notice that this evidence was going to be used to form a decision, the applicant may have tried to lead evidence to refute the statements of Pastor Ng. In Gonzalez v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 781 (C.A.), Urie J. stated at page 782:
The information was not the sort of information of which judicial notice could be taken in proceedings before a court nor was it of the general character well known to the Board and to the public referred to in the Maslej case. If the kind of information used in this case, which appears to be of a type which an applicant might well be in a position to contest, is to be relied upon by the Board in a hearing . . . natural justice requires that the applicant be entitled to respond to it just as he would to evidence adduced at the hearing.
The Board has breached the rules of natural justice and procedural fairness by failing to notify the applicant of the use of Pastor Ng's testimony from another hearing.
[26] The respondent submitted that the evidence was contained in a letter that Pastor Ng presented to the Board for this hearing. I do not agree as that letter did not deal with the evidence in question. The respondent also suggested that the failure to give notice would only be a reviewable error if reliance on the specialized knowledge was central to the Board's decision and that it was not in this case as the Board had other bases for its non-credibility findings. I have difficulty with this approach based on the particular facts of this case. If the Board believed that it had a sufficient basis for a non-credibility finding based on the evidence that was before it from the hearing, then why was it necessary to rely on evidence from another hearing without notice to the applicant? I cannot tell how much influence the use of Pastor Ng's evidence from another hearing had on the Board's ultimate credibility findings. Furthermore, the non-credibility finding was central to the outcome of the case.
[27] Because of my decision on this issue, I need not deal with the other issues.
[28] The application for judicial review is allowed and the decision of the Board is set aside and the matter is to be returned to a different panel for redetermination.
[29] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[30] IT IS ORDERED that the application for judicial review is allowed and the decision of the Board is set aside and the matter is to be returned to a different panel for redetermination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 15, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-269-02
STYLE OF CAUSE: YULAN HU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, January 9, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Thursday, May 15, 2003
APPEARANCES:
Nkunda Kabateraine
FOR APPLICANT
Stephen Jarvis
FOR RESPONDENT
SOLICITORS OF RECORD:
Nkunda I. Kabateraine
607 Gerrard Street East
Suite 403
Toronto, Ontario
M4M 1Y2
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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