Zhou v. Canada (Minister of Citizenship and Immigration), 2003 FC 1237

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2003 FC 1237

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Date : 20031023

Docket : IMM-2072-03

Citation : 2003 FC 1237

BETWEEN :

SU WEI ZHOU

Applicant

AND :

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

ROULEAU, J.

[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board"), dated February 28, 2003, wherein it found the Applicant not to be a Convention refugee or a person in need of protection. The Applicant seeks an order quashing that decision and remitting the matter to a different member of the Refugee Protection Division.

[2] The Applicant is a 28 year-old citizen of China. She arrived in Canada on October 6, 2001, and made a refugee claim on October 15, 2001. A hearing was held on December 19, 2002 and the Board concluded that the Applicant was neither a Convention refugee nor a person in need of protection.

[3] In the Applicant's Personal Information Form ("PIF"), dated December 17, 2001, she alleged that her family was the victim of corrupt practices by officials in China. In particular, that her family's land had been expropriated and they had not received adequate monetary compensation.

[4] At the hearing she made further allegations, basing her claim for Refugee status on three grounds, the first being the expropriation of her family's land. Second, since she was approximately six months pregnant and had married another Chinese citizen in Canada, she asserted that the Chinese government would not recognize her Canadian marriage and would force her to have an abortion. Third, that she would be detained upon arrival in China for having overstayed the legal limit for being outside China.

[5] The Board identified the issues in the Applicant's claim as involving "credibility and objective basis" for her allegations. The Board then went on to examine the three bases of her claim.

[6] The first claim was in regards to her family's land being expropriated in 1995. However, according to the evidence given by the Applicant, her parent's protests against the system ended in 1997 and Chinese officials consider the matter closed. As a result, the Board found that the Applicant faced no serious possibility of persecution if she returned to China, as a result of the expropriation of her family's land.

[7] The Board then examined the second basis for the refugee claim, that the Applicant would face the risk of a forced abortion of her six-month-old fetus if she returned to China. She also alleged that the Chinese government might not accept her Canadian marriage, and even if they did, would find that she had not secured a birth-quote permit before getting pregnant. The Board noted that Counsel for the Applicant did not adduce evidence to prove that the Chinese government would not accept a legal Canadian marriage. The Board identified that the burden of proof is with the Applicant and found that this allegation was unsubstantiated speculation. The Board concluded that there was no evidence before them to indicate that the Chinese government causes the abortion of couples legally married outside China who have conceived their first child abroad.

[8] The Board then turned to the third issue, that the Applicant would be placed in a prison system for an unknown length of time upon arrival in China. The Applicant alleged that she would be detained by Chinese officials upon her return because she left China illegally and would be returning as a failed refugee claimant. She claimed a risk to her life, a risk of cruel and unusual treatment or punishment and a risk of torture.

[9] The Board analyzed the risk of cruel and unusual punishment she may face as a result of torture. In examining this claim, the Board considered whether the Applicant had in fact left China illegally.

[10] The Applicant confirmed that she had applied for a passport and received one, although she did not apply for an exit permit. However, she had returned this passport to the agent who helped her reach Canada.

[11] The Board referred to a document submitted by the Minister, which was a U.S. Visa issued to the Applicant in Guangzhou on August 31, 2001, prior to her leaving China. The Board reasoned that U.S. officials would not have issued her a Visa without her having previously obtained an exit permit to leave China. Thus, the Board concluded that the Applicant did leave China legally and, as such, would only face a possible penalty for overstaying her allowable time.

[12] Additionally, her application for a U.S. Visa stated that she was married to Chen Daming and that she was a teacher at Nanyuan Primary School. However, the information provided to the Board was that she had worked as a tutor in China and that she was not married at the time she left China. A marriage certificate was also submitted to the Board which showed that the Applicant was married to Tai An Zhou in Canada on May 17, 2002.

[13] Thus, the Board found that the Applicant was issued a legal passport, which carried a legal U.S. Visa obtained using fraudulent information. Further, the Applicant's statement at the hearing that she overstayed her allowable time of six months outside the country is contrary to the information contained in her PIF that she did not obtain an exit permit.

[14] The Board then examined evidence regarding how Chinese officials treat citizens who have left the country and returned, rejecting the Applicant's allegations that the Chinese government will look unfavourably on the efforts of those who have tried and failed to establish themselves overseas. The Board found that, at worst, the Applicant would be subject to an administrative jail term of 10-15 days in jail conditions that do not present a danger of torture or a risk to life or risk of cruel and unusual punishment, and at best a fine of around $1,000 CDN, which was found to be a reasonable amount.

[15] The Board held that the Applicant would not be made a person in need of protection as a result of the reasonable penalties she might expect to face upon returning to China if she overstayed her exit permit and thereby violated an exit law of general application.

[16] The Board examined her PIF and concluded that the Applicant's reasons for leaving China were economic, rather than to flee persecution, torture, a risk to life, or a risk of cruel or unusual punishment.

[17] I agree with the Respondent that the issues in this case can be summarized in the following manner:

(1) Did the Board err in its credibility findings?

(2) Did the Board make a reviewable error by failing to take all the evidence into account?

[18] It is the submission of the Applicant that the Board gave no indication as to why the Applicant's credibility would be determinative in the refugee claim. I do not agree. Specifically, the Board did not accept the Applicant's allegations that she left China illegally. The Board clearly explains that this was due to the Applicant's testimony at the refugee hearing, in which she said that she feared being punished because she had overstayed her allowable time to be outside of the country, namely for a period greater than six months. Further, after examining her U.S. Visa application, the Board concluded that the Visa would not have been issued without an exit permit having been previously obtained. Thus, the Board did give reasons for not believing the Applicant's claim that she left China illegally.

[19] Additionally, the Visa application contained information which was contrary to the information presented to the Board. Namely, the application said that she was married to Chen Daming and that she was a teacher. In her PIF, she represented that she was unable to marry in China and that she had only worked as a tutor and in small stores.

[20] Given the evidence that the Applicant lied about her marital status and employment history in order to obtain a U.S. Visa, the conclusion of the Board that she may have also lied about not receiving an exit permit was reasonable, as is the conclusion that since she left the country legally she would only face a reasonable penalty for overstaying her time. As such, this finding of credibility should not be interfered with.

[21] Turning to the second issue, the Applicant alleges that the Board erred because it failed to take into account all of the evidence.

[22] In concluding that the Applicant would not be made a person in need of protection as a result of the reasonable penalty she might expect to face upon returning to China if she overstayed her exit permit, the Board relied on the conclusion that the Applicant left China legally. As a result, it was not unreasonable for the Board to conclude that she faced a general administrative penalty, rather than a threat of torture, a risk to life or a risk of cruel and unusual treatment or punishment.

[23] As for the issue of a forced abortion, since the Applicant's due date was estimated to be April 12, 2003, I will not address the issue of whether the Board erred in concluding that there was no evidence to indicate that the Chinese government causes the abortion of couples legally married outside China who conceived their first child abroad.

[24] For the foregoing reasons, this appeal is dismissed.