Date: 20041130
Docket: IMM-4211-03
Citation: 2004 FC 1679
Toronto, Ontario, November 30th, 2004
Present: The Honourable Mr. Justice John A. O'Keefe
BETWEEN:
YI QIAO LI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated April 30, 2003 and communicated to the applicant on May 23, 2003, wherein it was decided that the applicant is not a Convention refugee nor a person in need of protection.
[2] The applicant requests an order quashing the Board's decision and referring his claim back for re-determination by a differently constituted panel.
Background
[3] The applicant, Yi Qiao Li, is a citizen of the People's Republic of China who claims a well-founded fear of persecution on the basis of membership in a particular social group, namely, practitioners of Falun Gong.
[4] The applicant alleged in the narrative portion of his Personal Information Form ("PIF") that he began practising Falun Gong in China in 1998. After Falun Gong was banned by the Chinese government in July 1999, the applicant alleged that he continued his practice, albeit in secret along with other followers.
[5] The applicant further alleged that in September 2001, when he and others were practising Falun Gong at the home of a Mr. Chen, the Public Security Bureau ("PSB") raided the gathering. The applicant stated that he managed to escape and went into hiding. While in hiding, the applicant learned that two of his fellow practitioners were arrested and that the PSB had visited his house to arrest him. The applicant also alleged that PSB officers told his mother he was required to report to the PSB and that she should report any information about the applicant's activities directly to the PSB.
[6] The applicant left China on October 6, 2001 and arrived in Canada, via Hong Kong, on October 10, 2001. He made a refugee claim on October 11, 2001.
[7] On March 18, 2003, the Board held a hearing to determine the applicant's claim. The evidence presented at the hearing included a package of documents submitted by Citizenship and Immigration ("CIC") which were marked as exhibit M-1.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[8] In its decision dated April 30, 2003, the Board concluded that the applicant was not a credible witness and that his claim was not objectively well-founded. The Board concluded that the applicant was neither a Convention refugee nor a person in need of protection.
[9] As a basis for its negative credibility finding, the Board compared the applicant's PIF narrative and oral testimony with a document it identified as the interview notes of an immigration officer. The Board stated that to the immigration officer, the applicant stated his claim very generally as being based on Falun Gong practice, while during this oral testimony and in his PIF narrative, the applicant detailed an alleged raid by PSB officials in September 2001.
[10] When asked why he failed to mention the alleged September 2001 events to the immigration officer who interviewed him, the applicant's explanation did not satisfy the Board. The applicant maintained that he had indeed recounted the incident to the immigration officer, who perhaps mixed him up with another claimant and sent the wrong notes to the Board. The applicant could not explain how the rest of the information on the form pertained to the applicant and not another claimant.
[11] The Board also pointed out that the applicant made the contradictory statement that the immigration officer did not ask him about the September 2001 incident or his previous employment history, thereby explaining the omissions from the interview notes.
[12] Based on these discrepancies, the Board concluded that when the applicant arrived in Canada he had no story based on facts because the alleged September 2001 incident did not happen. The Board believed that once inland, the applicant fabricated a story to advance his refugee claim. The Board stated that if the events described by the applicant had actually occurred, he would have remembered the information clearly and recounted it during his interview with the immigration officer, which the officer's notes indicate he did not do.
[13] Furthermore, the Board noted a discrepancy in the applicant's evidence regarding his employment history. The applicant's PIF stated that he worked for the He Shang Steel and Iron Factory from March 1989 until May 2001. At the hearing before the Board, the applicant added that he had been a farmer from July 1982 until March 1989. The occupation field of CIC document IMM 5417 entitled "Background Information Document" states, however, that the applicant was a salesperson for a grocery wholesale store but made no mention of working for He Shang Steel and Iron Factory or as a farmer. When questioned on this discrepancy, the applicant denied telling the immigration officer that he was a salesperson and could not explain how that information ended up on the document.
[14] The Board also did not believe that the applicant had consistently practised Falun Gong since his arrival in Canada, as he claimed, since he did not know the name of the building where he allegedly practised during the week but could name the park he attended on the weekends. The Board found it implausible that the applicant regularly visited a building from Monday to Friday for an extended period of time but did not know the name of it or ask his fellow practitioners, especially since he had asked the name of Milliken Park, where he later started to practice.
[15] Based on this evidence, the Board concluded that the applicant did not practice Falun Gong for some time after his arrival in Canada, although he may have attended at Milliken Park as his hearing date approached to learn some of the exercises. In the Board's view, any knowledge demonstrated by the applicant of Falun Gong was acquired in Canada to make a refugee claim, not because he is a true follower.
[16] Regarding the applicant's credibility, the Board concluded (at page 7 of its decision):
Considering the inconsistencies between the interview Notes and the PIF narrative as mentioned above, I find that the claimant is not a credible or trustworthy witness. I find that he was not involved in the FG activities in China, or that the PSB had raided Mr. Chen's home to arrest the FG practitioners in China. I do not believe that the PSB was looking for the claimant because he was allegedly involved in the FG activities in China or that the PSB have any interest in him.
[17] After considering the documentary evidence before it, the Board also held that the applicant would have no problems with the authorities if he were to return to China, since they would never know he had made a refugee claim unless informed by the applicant himself.
[18] Based on its negative credibility finding, the Board also ruled that the applicant is not a person in need of protection.
[19] This is the judicial review of the Board's negative decision.
Applicant's Submissions
[20] The applicant submitted that the Board completely misconstrued the evidence before it, since no "immigration officer's notes" actually formed part of CIC's document package that was marked as Exhibit M-1. Instead, the applicant stated that what the Board constantly referred to as the immigration officer's notes was actually made up of three documents:
1. Notification of Claim to be a Convention Refugee;
2. Background Information Document; and
3. Information Concerning Basis of Claim
[21] The applicant argued that all three documents were prepared by his agent, not an immigration officer. Therefore, the applicant submitted that the Board erred throughout its reasons by drawing negative inferences regarding his credibility because these documents did not contain the evidence provided to the immigration officer and what appeared in the applicant's PIF and oral testimony. Further, the applicant stated that since there were no immigration officer's notes before the Board, it erred by rejecting the applicant's explanation that he had told the immigration officer his whole story.
[22] Alternatively, if this Court is of the view that the actual author of the notes is inconsequential, the applicant argued that the Board's inferences based on the alleged discrepancies were unreasonable.
[23] In support of this argument, the applicant pointed to the wording of the form entitled "Information Concerning Basis of Claim", which provides ten blank lines for a person to "briefly explain" the basis of their claim. The applicant submitted that this form did not require or even allow room for the amount of detail the Board expected to be included. For this reason, it is submitted that the Board erred by basing its negative credibility finding on the applicant's failure to provide details on this form regarding his reasons for fleeing China.
[24] The applicant submitted that the only discrepancy in his evidence was that regarding his work history. Since his employment was not related in any way to his refugee claim, the applicant argued that this discrepancy had no bearing on the central issues before the Board and was therefore of no consequence.
[25] The applicant pointed out that it was the Board's decision to proceed without the assistance of a refugee protection officer in this case, who may have been able to correct the mischaracterization of documents provided by CIC and marked as exhibit M-1. It is submitted that the applicant should not be penalized because the Board decided to proceed without a refugee protection officer.
[26] The applicant submitted that the Board erred in concluding he was not a Falun Gong practitioner simply on the basis that he did not know the name of the building where he allegedly practised during the week, but knew the name of the park where he practised on the weekends. In the applicant's view, this is an insufficient basis for dismissing the totality of his evidence regarding being a Falun Gong follower, especially since on the face of it, nothing suggests that the applicant's evidence was not credible.
[27] The applicant further submitted that the Board's conclusions were based on pure speculation and conjecture, as evidenced by the statement that he "might have attended the FG practice at Milliken Park".
[28] The applicant contended that the Board's rejection of his identity as a Falun Gong practitioner is logically fallible and without foundation. Even if the Board disbelieved that the applicant practised in Canada at a building whose name the applicant did not know, it is submitted that this finding fails to address a central issue before the Board, namely, whether the applicant was a Falun Gong practitioner in China who did not practise in Canada until some time had passed. It is submitted that the Board's conclusion that the applicant did not practice Falun Gong upon his arrival in Canada in no way leads to the conclusion that he was not a true follower of Falun Gong.
[29] Based on these errors, the applicant submitted that his claim must be remitted for a new hearing by the Board.
Respondent's Submissions
[30] The respondent denied that the Board made any material error in its consideration of the documentary material before it. The respondent pointed out that before the Board hearing, applicant's counsel accepted Exhibit M-1 to be port of entry notes, and it is irrelevant whether the documents were actually filled out by the applicant or the immigration officer. The respondent submitted that it was open to the Board to consider the omissions and discrepancies amongst the applicant's materials to make a negative credibility finding.
[31] The respondent submitted that the Board's other negative credibility findings were reasonably supported by the evidence. First, the respondent submitted that it was open to the Board to reject the applicant's many explanations for the discrepancies regarding whether he worked as a salesperson or in a steel factory in China. Second, the respondent submitted that the Board did not believe that the applicant would have practised Falun Gong at a mall without knowing any identifying information about the building such as its name or address.
[32] Contrary to the applicant's assertions, the respondent submitted that the Board did not ignore the applicant's evidence, it simply did not accept it. The respondent emphasized that there was no obligation on the Board to accept the plausibility of an applicant's explanations regarding areas of concern in the evidence. The respondent submitted that it was reasonable for the Board, in this case, to conclude that the applicant had fabricated an improved version of what was initially only a very general claim.
[33] The respondent further submitted that the applicant failed to demonstrate that the Board's overall credibility finding should be quashed, even if this Court were to conclude that individual elements of its findings were unreasonable. On this basis, the Board's decision should stand.
[34] The respondent requested that this application for judicial review be dismissed.
Issue
[35] Should the Board's decision be set aside?
Relevant Statutory Provisions
[36] Section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 defines "Convention refugee" as follows:
|
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
. . .
|
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;
. . .
|
Analysis and Decision
[37] Issue
Should the Board's decision be set aside?
In its decision, the Board based its finding that the applicant was not credible mainly on what it perceived to be inconsistencies between the interview notes and the PIF narrative.
[38] There is no doubt that credibility findings lie at the heartland of the Board's discretion (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). Further, adverse credibility findings can be based on inconsistencies between the PIF and the statements given to immigration officers at the time of arrival.
[39] In the present case, the Board heavily relied on the inconsistencies between what it stated to be interview notes and other statements made by the applicant.
[40] The Board believed that two documents found at pages 226 and 227 of the tribunal record were interview notes made by the immigration officer and these notes did not contain any reference to the PSB raid, his escape and hiding, and the fact that the PSB was looking for him. The Board found that the applicant was not credible because he had not told the immigration officer about these incidents.
[41] However, it turns out that the applicant was interviewed by an immigration officer, but the two documents referred to by the Board were not the notes of the interview with the immigration officer. The two documents were documents submitted by the applicant. The notes of the interview with the immigration officer were not before the board and were not part of the tribunal record.
[42] The following excerpt from the Board's decision show the Board's reliance on the inconsistencies between what the Board believed to be the immigration officer's notes and the PIF and other testimony of the applicant (page 5 of the decision):
. . . I find that when the claimant arrived here in Canada, he had no story based on facts or he had not been involved in any incident, because no such incident had taken place in China. Once he was inland, he later fabricated a story in a wishful attempt to make the panel believe it was true in order to advance his refugee claim.
If the claimant had experienced problems at the hands of the PSB as he alleges and they really were after him to arrest, I would have expected him to remember this significant information clearly, which goes to the heart of his claim, to be given by him to the IO [immigration officer] at the interview. In fact he had no story based on truth, to give to the IO that time.
[43] The Board's conclusion that the applicant had fabricated the story of the events in China was based on its conclusion that the applicant was not credible because the applicant had not told the immigration officer of the events he spoke of in his PIF narrative and oral testimony. The Board believed he had not given these facts to the immigration officer because the facts were not recorded in what the Board thought were the immigration officer's notes, which turned out not to be the immigration officer's notes at all. The Board, in this case, had no factual basis for its finding of non-credibility.
[44] In this case, the truth of the applicant's description of persecutor events in China were of core importance to his claim, his identity as a Falun Gong follower and his general credibility.
[45] I am of the view that the Board made a reviewable error.
[46] The application for judicial review is therefore allowed and the matter is referred to a different panel for redetermination.
[47] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
[48] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel for redetermination.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4211-03
STYLE OF CAUSE: YI QIAO LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 29, 2004
REASONS FOR ORDER
AND ORDER: O'KEEFE J.
DATED: NOVEMBER 30, 2004
APPEARANCES:
Shelley Levine FOR APPLICANT
Jamie Todd FOR RESPONDENT
SOLICITORS OF RECORD:
Levine Associates
Toronto, Ontario FOR APPLICANT
Morris Rosenberg,
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT
Date: 20041130
Docket: IMM-4211-03
BETWEEN:
YI QIAO LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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