Date: 20040223
Docket: IMM-5951-02
Citation: 2004 FC 261
OTTAWA, ONTARIO, THIS 23rd DAY OF FEBRUARY 2004
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
SHU QUAN CAO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Shu Quan Cao is a 23 year old citizen of China who claimed Convention refugee status because he fears persecution based on his perceived political opinion. The Refugee Protection Division (the Board) rejected his claim stating that his testimony was not credible because of "omission (sic) of central elements of the story which go to the heart of the claim and contradictions, between his PIF narrative and his oral evidence". It also appears that the Board found his story implausible.
[2] Mr. Cao seeks judicial review of this decision on the basis that the omissions relied upon by the Board did not in fact relate to information central to his claim. According to Mr. Cao, the Board's finding that the main incident on which he relies did not take place is based on a single fact which cannot rationally justify such a conclusion, especially when one considers the documentary evidence produced by him. The applicant also argues that the Board should have given him the opportunity to address the issue of implausibility. Their failure to do so constitutes a breach of procedural fairness.
[3] In his PIF, the applicant simply says:
In December 2000 the government wanted to build a highway through my village. Therefore some houses of the village needed to be dismantled. The government offered insufficient compensation for the houses which were to be dismantled. The villagers including me wanted adequate compensation and therefore we went to the town government to complain.
However, the government did not respond to our complaint and therefore we refused to move from our homes. After we refused to move, the officers issued a notice advising us that we must vacate our homes within two months or we would be forcibly evicted.
In February 2001 the government sent officers and construction workers to force people to vacate their homes. The villagers came out and formed a human wall to prevent the officers from approaching the houses. We criticized the government and said that they had no concern for ordinary peasants. Some other villages whose homes were not scheduled to be dismantled also supported us. A confrontation broke out between the villagers and the officers. The government sent the police to come to suppress the crowd. When the police arrived they began to beat people. During the confusion I escape. After I escaped I went into hiding.
While in hiding I learned that some of the villagers who were protesting were arrested. The PSB also wanted to arrest me. They came to my home to locate me and accused me of protesting against the government and organizing the villages to create trouble for the government. They also went to my relative's homes to look for me.
[4] When he testified, the Board learned that:
i) the applicant only got involved in this alleged dispute with the Chinese authorities because his father owned one of the houses which were to be dismantled;
ii) 36 persons opposed the proposed demolition of the houses but only five or six were arrested;
iii) his father was not arrested and he had no problem with the authorities. He is currently doing farming on a new parcel of land that he leased from the government for a nominal amount and on which he can build a new home;
iv) all of the villagers who protested were pardoned except for the five or six who were arrested;
v) the persons arrested were the leaders of the village, who had also been involved in bringing the matter to the attention of the township government, and the claimant does not know if they have been since been released.
[5] Those are the main omissions which prompted the Board to conclude that the claimant was not credible. It also held that the Board did not believe that the claimant was involved in this protest or that the incident ever took place.
[6] But before rejecting the claim, the Board also found that it did not believe that the Chinese authorities wanted or had any interest in the claimant because, even if the incident described by him did take place, it was not plausible that the authorities would look for a person who was not the head of his family nor the rightful owner of the house involved in the dispute while not pursuing his father and the other villagers involved in the protest except for their leaders.
[7] It is trite law that the Court will only intervene if these findings relating to credibility and implausibility were patently unreasonable.
[8] The Court agrees with the applicant that the Board made some mistakes in its decision. For example, a review of the transcript makes it clear that the applicant's testimony did not contradict the statement in his PIF with respect to the intervention of the police in February 2001.
[9] The applicant states that the inference that the incident did not take place simply because the applicant's father was not mentioned in his PIF is illogical. I would agree with him if this was what the Board said. But my reading of the decision indicates that the Board found that it did not believe that the claimant was involved in any protest or that the incident ever took place because of the many omissions in his PIF and not only because he did not mention his father in his PIF. Also, when it refers to the failure to mention his father in his PIF, the Board says that it did not believe that his father was ever involved in the dispute with the authorities.
[10] In any event, even if this constituted a reviewable error, it could only justify that the decision be quashed if it was a determinative finding. The decision must be read as a whole and it is clear that the Board also assessed the claim as if the incident had occurred even though they were not convinced that it had. If their assessment in that respect does not contain a reviewable error, the Court will not send the matter back for reconsideration.
[11] Before reviewing the finding of implausibility, which is the other reason why the Board rejected the claimant's testimony, I shall deal with the other argument raised by the applicant with respect to the finding of non-credibility.
[12] The applicant says that the information omitted from his PIF was detrimental to his claim and as such it could not be central to his claim. The Court does not believe that this is necessarily so and that it automatically means that the Board's finding was patently unreasonable.
[13] Most of the elements Mr. Cao omitted were found by the Board to have a direct impact on the plausibility of his story and the determination of whether or not he was persecuted.
[14] Moreover, Question 37 in the PIF expressly states: "Please also make reference to any measures taken against you, your family members or any other individuals in a similar situation".
[15] Although the Court may have come to a different conclusion with respect to these omissions and their impact on the applicant's credibility, this is not the standard to be applied and the Court cannot conclude that the Board's finding with respect to those omissions was patently unreasonable.
[16] The applicant provided no explanation as to why he was specifically targeted by the authorities while the majority of the villagers including his father were not harassed at all. He never explained on what basis they could believe that he was a leader or organizer of the protest. In fact, it appears from his testimony that he was nothing of the sort.
[17] The Court does not agree with the applicant that his failure to provide such an explanation is attributable to a breach of procedural fairness, that is the Board's failure to alert him to its concern with respect to the plausibility of his story.
[18] There was no obligation on the Board to put its concern with respect to plausibility to the applicant (Yu v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 932 (T.D.) online: QL at paragraph 15; Zheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2002 (T.D.) online: QL at paragraphs 24 to 28; Singh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1724 (T.D.) online: QL at paragraphs 25 and 26; Sarker v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 987 (T.D.) online: QL at paragraphs 14 and 15).
[19] The applicant was represented by counsel. It was open to his counsel to examine or re-examine him on this issue without coaching from the Board (Zheng, supra at paragraph 23).
[20] In fact, although his counsel did not question him on this, he did address the issue in his submissions at the end of the hearing. He stated that there was, indeed, no clear explanation as to why the Chinese authorities wanted the applicant. He speculated that it may be because "uncle Li" (the vice leader of the team/a village representative) was arrested. It may be because he was perceived as some sort of organizer or simply because they were trying to send a message. He argued that the Board had to give the benefit of the doubt to the claimant in that respect.
[21] The Court notes that in fact, the claimant had testified that the so called "uncle Li" was not his relative and was simply a neighbour.
[22] In any event, this argument clearly did not satisfy the Board and it concluded that the story was not plausible for there was really no reason for the authorities to pursue the claimant while they were not pursuing his father and the other owners of the houses.
[23] I agree with the applicant that the decision could have been clearer and better written. But read as a whole in the context of the evidence, the Board's reasoning and its finding are not unreasonable, let alone patently unreasonable.
[24] Finally, the applicant argues that some specific documents corroborated his story and should have been expressly mentioned in the decision.
[25] First, the Court notes that these documents were not referred to at all at the hearing before the Board.
[26] In any event, the Court reviewed them attentively. The first one is a news report dated April 11, 1998, regarding a violent clash between villagers and the police in South China over a land dispute. It appears that there were five village representatives arrested and that they were detained for a few days after the incident.
[27] The other document is a copy of an article from the New York Times dated February 1st, 1999, which deals with what is described as possibly one of the largest farmer protests in China in recent years against excessive taxes and corruption (10,000 participants). The protest resulted in violent clashes with one farmer dead and several others injured by gas or clubs. It states that 18 people were detained for one or two days and that the police was looking for the four leaders of the protest who had escaped arrest.
[28] These articles certainly corroborate that riots do take place in China and that some involve protests over land dispute. This situation, however, was not generally put in doubt by the Board. With respect to the detention of protesters, these articles appear to corroborate the Board's view that village representatives or leaders of the protest are the parties likely to be arrested. It also appears that those arrests only resulted in a few days of detention.
[29] These articles do not corroborate the applicant's story on the specific issue found to be implausible by the Board. That is why a person who is not a leader or the head of his family or the owner of the house that is the subject of the protest, would be of interest to the police. In the circumstances, the Court must conclude that the Board had no obligation to refer to these documents in its decision.
[30] In view of the foregoing, the Board's finding was not unreasonable and it justified its conclusion that Mr. Cao is not a Convention refugee.
[31] The parties did not raise any question for certification. This case turns on its own facts and does not involve any question of general importance.
ORDER
THIS COURT ORDERS that:
the application for judicial review is dismissed.
"Johanne Gauthier"
__________________________
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5951-02
STYLE OF CAUSE: SHU QUAN CAO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: December 3, 2003
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER AND
ORDER BY: Gauthier J.
DATED: February 23, 2004
APPEARANCES BY: Mr . Shelley Levine
For the Applicant
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD:
Shelley Levine
Barrister and Solicitor
Levine Associates
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
For the Respondent
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