Date: 20041013
Docket: IMM-6211-03
Reference: 2004 FC 1403
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
KAI QING CHEN
Respondent
REASONS FOR ORDER
BLANCHARD J.
Introduction
[1] This is an application for judicial review of the positive decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated July 25, 2003, in which the Board found that the Respondent, Kai Qing Chen, was a Convention refugee.
Background
[2] The Respondent, Kai Qing Chen, is an 18 year old female from the People's Republic of China. She arrived in Canada on December 30, 2002, at the Vancouver International Airport. The Respondent initially represented herself as an economic migrant to two different Immigration Officers at the Port of Entry ("POE") and swore a statutory declaration indicating that she came to Canada to pursue an education and earn money. Her parents were indebted to creditors and she wished to earn money for herself and to help her parents. She later changed her evidence in her Personal Information Form ("PIF") and added further evidence in her oral testimony, asserting that loan sharks had threatened her family and beaten them, and had threatened to place her into prostitution unless her father repaid his debt to them. The Respondent claims the police were bribed by the creditors to "look away" and that the loan shark's brother is a police officer. As a consequence she went into hiding for a few months. At the refugee hearing, the Respondent, in her testimony, added that her parents had also gone into hiding but were always found and beaten. This information was not included in her PIF, nor did she mention it at the POE interviews. The events led her parents to believe she should leave China and her aunt borrowed $20,000 US to pay to have her smuggled to Canada.
Impugned Decision
[3] In its reasons, the Board noted that several issues were identified in the claim: credibility, personal identity, objective bases, Internal Flight Alternative ("IFA"), state protection and nexus. The Board, however, identified the determinative issues of the case to be credibility and objective basis and, in its reasons, dealt almost exclusively with these two issues.
[4] The Board did not expressly deal with the personal identity issue in its reasons. The issue was not raised by the parties, in consequence, I accept that the Board was satisfied with the Applicant's identity.
[5] The Board found that the Respondent was direct and straightforward in her testimony and made an effort to answer all questions. The Board noted that certain incidents mentioned in her testimony are not mentioned in her PIF filed with her application, nor mentioned in her interviews with the Immigration Officers. The Board found, however, that her main problem relating to her father's indebtedness to loan sharks was mentioned in her PIF and during her interviews with the Immigration Officers. The Respondent explained that she made such omissions because she was nervous, did not speak English, and the anxiety of being in detention prevented her from remembering things at the POE that she later remembered at the time she prepared her PIF and testified at the hearing. The Board accepted these explanations, reasoning she was only 18 years old and was in detention for a long period of time. The Board gave her the benefit of the doubt and found her to be credible.
[6] The Board determined that its finding of credibility was supported by documentary evidence indicating the significant problems with prostitution and organized crime groups in China. The Board noted that the same US State Department report mentions trafficking and exploitation of women and complicity with local officials, including the police. The Board found these documents corroborated the Respondent's evidence that the loan sharks had connections with the police. The Board also accepted the Respondent's evidence that one of the men who threatened her father claimed to be a police officer and was thought to be the brother of the loan shark. The Board also noted that the Respondent's parents were kicked out of the police station when they attended to report the threatening incidents and were told to pay their debts. The documentary evidence shows that the crackdown by police and military against organized crime including trafficking in women were largely ineffective. For these reasons, the Board found that there was more than a mere possibility the Respondent would face persecution for her membership in a particular social group if she returned to China at the present time. Consequently, the Board found the Respondent to be a Convention refugee as defined by section 96 of the Immigration and Refugee Protection Act, SC 2001, c.27 (the "IRPA").
Issues
[7] The applicant raises four issues on judicial review:
A. Did the Board err in failing to properly deal with the inconsistencies, contradictions and omissions in the Respondent's evidence?
B. Did the Board err in giving the Respondent the benefit of the doubt with respect to her allegations?
C. Did the Board err by failing to identify the nexus between the Respondent's claim and the Convention refugee definition, or by finding such a nexus?
D. Did the Board err in failing to properly assess whether the Respondent rebutted the presumption of state protection?
Standard of Review
[8] The appropriate standard of review on findings of fact and credibility is patent unreasonableness. The Federal Court of Appeal has established that the Board, as a specialized tribunal, has complete jurisdiction to determine the credibility of testimony, as well as the risk of persecution. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316-317. The Court should not intervene unless the Board bases its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it: Federal Court Act, RSC 1985, c. F-7, s. 18.1(4)(d).
Analysis
A. Did the Board err in failing to properly deal with the inconsistencies, contradictions and omissions in the Respondent's evidence?
[9] The Applicant submits that the Board erred by failing to properly deal with the inconsistencies, contradictions and omissions in the Respondent's evidence. The Applicant submits that there were a number of inconsistencies in the Respondent's submissions: her statements at the POE were inconsistent with her PIF and oral reasons as to why she left China; the evidence in her PIF regarding when she went into hiding was inconsistent with her testimony at the hearing, which itself was inconsistent; her evidence with regard to how much her family owed loan sharks was inconsistent, ranging from between 100,000 to 1,000,000 RMB, to between 500,000 to 800,000 RMB, to not knowing what was owed; her evidence was inconsistent with respect to how often loan sharks went to her home, either once a year during Chinese New Year or 2-3 times a year. As well, her evidence with respect to whether her family thought about using the 20,000 US to pay off loan sharks instead of sending her to Canada was inconsistent. All these inconsistencies appear on the face of the record.
[10] The Applicant also argues that there are also a number of omissions in the Respondent's PIF, as she failed to mention that her parents had gone into hiding, or that they were found and beaten by loan sharks. She also failed to mention that her parents went to the police in October 2002, and her PIF only mentions that they went to the police in June 2002. The Applicant submits that the information omitted by the Respondent in her PIF is both relevant and important and therefore it should have been included. Furthermore, the Respondent failed to provide any reasonable explanations for the inconsistencies, contradictions and omissions in her evidence.
[11] The Applicant argues that the Board failed to properly consider the inconsistencies, contradictions and omissions in the Respondent's evidence and that it was patently unreasonable for the Board to accept the Respondent's explanations for the omissions and inconsistencies in her evidence.
[12] It is the Respondent's position that the Applicant is disputing the weight given the evidence, which is entirely within the jurisdiction of the Board as a trier of fact in respect of Convention refugee claims. The Respondent submits that the Board's credibility findings are reasonable and supported by the evidence.
[13] When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his or her demeanor, frankness, readiness to answer, coherence and consistency in oral testimony before it: Boye v. Canada (MEI), [1994] F.C.J. No. 1329 (QL), paragraph 4. In concluding that there was sufficient credible and trustworthy evidence, the tribunal relied on the Respondent's direct and straightforward manner during her testimony; her consistent answers with respect to her main problem relating to her father's indebtedness to loan sharks in China; her age; the effect of being in detention for a long period; and the documentary evidence about prostitution and organized crime groups in China.
[14] I find that the Board did not err when dealing with the inconsistencies or omissions in the Respondent's evidence. Notwithstanding the inconsistencies, contradictions and omissions in the Respondent's evidence, the Board found her credible. In finding her to be credible, the Board considered the Respondent's demeanor, her young age, her inability to speak English, her lengthy detention and general anxiety. The Board further found the Respondent's evidence to be substantiated by the documentary evidence on Country Conditions in China. In my view, the Board's credibility finding was open to it on the evidence. If the Board were unable to assess credibility positively when evidentiary inconsistencies, omissions and contradictions exist, there would then be little need for an oral hearing. In its reasons, the Board considered these inconsistencies, contradictions and omissions, it did not ignore evidence. In my view, the Board committed no reviewable error in its treatment of the evidence and in finding the Respondent credible.
B. Did the Board err in giving the Respondent the benefit of the doubt with respect to her allegations?
[15] The Applicant submits that the Board erred in law in giving the Respondent the benefit of the doubt. The benefit of the doubt is only given to claimants where the tribunal is satisfied as to the "general credibility" of the claimant and where the claimant's statements are "coherent and plausible" and "do not run counter to generally known facts": Chan v. Canada (MEI), [1995] 3 S.C.R. 593. It is the Applicant's contention that the Board erred in giving the Respondent the benefit of the doubt in the face of such significant evidence for doubting her credibility. The Applicant argues the Board gave her the benefit of the doubt as a way of not dealing with the serious problems with her evidence.
[16] The Respondent submits that the Board did not err in giving the Respondent the benefit of the doubt, and the Applicant is misapprehending the role of the Court on judicial review. The Court is not the primary fact finder, the Board is. The Board carefully considered all the evidence and did not ignore evidence, including inconsistencies, and accepted the Respondent as credible due to her demeanor and the explanation she provided as to the omissions. Cases are not subject to automatic rejection because there are inconsistencies in evidence, or no useful purpose would be served by an oral hearing. In this case, the Board was satisfied with the general credibility of the Respondent and the Applicant cannot point to any evidence which the tribunal ignored that was relevant to its determination that the Respondent was credible. The tribunal acknowledged the problems with the evidence but then went on to accept that the Respondent was credible despite these evidentiary problems.
[17] Essentially, I agree with the Respondent on this matter. The Board was satisfied with the general credibility of the Respondent, stating "The panel's finding of the claimant being generally credible, is reinforced by the documentary materials about prostitution in [sic] and then the involvement of local officials, including the police." As such, the Board did not find that the Respondent's statements were incoherent or implausible, but in fact were corroborated by the evidence and generally known facts. A court on judicial review does not have the advantage of an oral hearing where it can consider a witness' demeanor and weigh the evidence accordingly in assessing that witness' credibility. A tribunal does, and in consequence, it is afforded deference in making such credibility findings. In light of the fact the Board was satisfied with the credibility of the Respondent and her story was reinforced by the documentary materials, I find the Board did not err when it gave the benefit of the doubt to the Respondent.
C. Did the Board err by failing to identify the nexus between the Respondent's claim and the Convention refugee definition, or by finding such a nexus?
[18] The Applicant advances two arguments in respect to this issue. First, that the Board's decision is flawed because it failed to identify the nexus between the Respondent's claim and the Convention refugee definition. The Applicant argues that since the claim was based by the Respondent and accepted by the Board, on the Respondent's membership in a particular social group, it is essential that the particular social group be clearly identified. As the Board's reasons make no mention of any "particular social group" that the Respondent belongs to, it is the Applicant's position the Board erred in law. Second, the Applicant argues the Board's decision is flawed because the Respondent is not a member of any particular social group, as established inCanada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at paragraph 103:
1) Groups defined by an innate or unchangeable characteristic;
2) Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
3) Groups associated by a former voluntary status, unalterable due to its historical permanence.
[19] The Applicant submits that the Respondent does not fit into any of the groups identified by the Supreme Court of Canada in Ward. As a consequence, the Board erred in accepting or assuming that she was a member of a particular social group, as it is clear they did not directly address this issue. The Board never properly applied the test set out in Ward to determine if indeed the alleged social group is a social group within the Convention refugee definition. The Applicant argues that this Court cannot determine whether the Board's finding is legally sound because of its failure to specify the impugned social group. The Applicant further submits, if the Board is of the view that the Respondent belongs to the group "under-aged Chinese women being forced into prostitution because their parents owe money to loan sharks", which is a more accurate group than that posited by the Respondent, then the Board made a patently unreasonable finding as such a group does not come within the Convention refugee definition.
[20] The Applicant submits, the jurisprudence indicates that the social group to which a claimant alleges membership must exist independently of the persecution itself. The Respondent's purported social group does not in these circumstances, as the risk of persecution is a direct consequence of the outstanding debt to the loan sharks. If the Respondent's parents paid the debt owed to the loan sharks, she would not be at risk. Further, her risk, for convention purposes, cannot arise simply because she was a Chinese woman. If this were so, then just under half of China's 1.3 billion population are at risk of persecution and are deserving of Canada's protection. Consequently, the Applicant argues it can safely be concluded that the Board erred in its purported finding that the Respondent belongs to a particular social group in need of protection.
[21] The Respondent submits that the Board did not fail to identify the nexus between the Respondent's claim and the Convention refugee definition. Though the Board did not explicitly attach a label to the particular social group to which the Respondent belongs, it is clear the Board refers to women who are at risk of being forced into prostitution and exploited, a group which was recognized in Litvinov v. Canada (Secretary of State), [1994] FCJ No. 1061 (QL) at paragraph 11. In its reasons, the Board conducted an extensive review of documentary evidence dealing with women being forced into prostitution by organized crime. As such, the Respondent submits it is clear that the tribunal found that the Respondent was a member of the particular social group, "women who are forced into prostitution", as recognized in Litvinov. The applicant is merely engaging in a microscopic reading of the reasons, which is not appropriate.
[22] In its reasons, the Board failed to specify that the Respondent belongs to a particular social group. This failure to expressly identify the particular social group, may not be fatal if it can reasonably be determined from the Board's reasons that the Respondent belongs to a particular social group that satisfies the convention definition. The Respondent argues that it is clear from the Board's reasons that it recognized the Respondent as a member of a particular social group, namely women who are at risk of being forced into prostitution and exploited. Even if I were satisfied that the Respondent was a member of a particular social group so defined, the determining issue, in the circumstances, is whether the said social group satisfies the test established in Ward for the purposes of the Convention.
[23] In this case the Respondent had been targeted by the loan sharks who threatened to force her into prostitution to repay her father's debt. The evidence indicates that the debt owed by the Respondent's father is a key element which led to her subsequent problems, and the alleged risk of persecution. In its reasons, the Board noted the father's difficulties in respect to the loan, accepted the documentary evidence indicating that prostitution and trafficking in women is a significant problem in China, and it accepted that local officials are often involved with organized crime groups in these activities. It also found that the Country reports corroborated the Respondent's allegation that loan sharks had connections with the police. The Board, however, failed to assess whether the Respondent was being persecuted because of the debt or whether she was being persecuted by reason of her membership in a particular social group as defined by the Respondent or both. It cannot be inferred from the Board's reasons that the purported social group exists independently of the persecution itself. The Board's reasons are deficient, in that they fail to properly consider and apply the test in Ward to the evidence and clearly determine that the Respondent is a member of a social group that satisfies the Convention definition. In consequence, the Board committed a review able error.
D. Did the Board err in failing to properly assess whether the Respondent rebutted the presumption of state protection?
[24] The Applicant submits that the Board erred in failing to adequately deal with the issue of state protection, as it stated that only credibility and objective basis were the determinative issues of the case. That statement is prima facie supportive of the argument that the Board failed to deal with the important issue of state protection. The onus is on the Applicant to provide clear and convincing evidence in order to rebut the presumption of state protection. Though the Board refers to some documentary evidence that it said supports the Respondent's allegations, at no time did the Board consider whether the evidence was clear and convincing so as to rebut the presumption of state protection. The applicant submits that, as state protection is part of the Convention refugee definition, the Board failed to do what it was required to do and consequently erred in law.
[25] The Applicant further submits that the documentation cited by the Respondent with regard to state protection clearly indicates that the Chinese government has taken many steps to eradicate the plague of forced prostitution, although it has not always been successful. China is not in a state of civil war, invasion or internal collapse. The government is in effective control of its territory and has military, police and civil authority in place and has made serious efforts to confront the problem of kidnapping, forced prostitution and corruption. The Applicant submits that it is questionable whether the Board could have concluded that the Respondent rebutted the presumption of state protection with clear and convincing evidence. Most importantly, the Board failed to assess whether the Respondent met the higher standard of proof necessary to rebut the presumption of state protection.
[26] The Respondent submits that the Board did not err in failing to adequately deal with the issue of state protection. The Board clearly indicated which documentary evidence it relied upon in its determination that the Respondent did not have state protection from being trafficked and forced into prostitution, namely Hearing Exhibits 4 and 5, both of which indicated trafficking of women and prostitution are serious problems in China, with complicity by local officials and ineffective crackdown by police and military. Given these findings it cannot be said that the tribunal did not deal with the issue of state protection. Furthermore, there are other factors, recognized in the jurisprudence, which must be considered when assessing the issue of state protection. It is argued one such factor is that state protection need not be sought where the evidence demonstrates it would be ineffective. The Respondent submits that, since the Board acknowledged that local officials were complicit in these crimes, there is a lower onus on the individual to demonstrate state inability to protect. In Zhuravlev v. Canada (MCI), [2000] F.C.J. 507 (QL), Mr. Justice Pelletier noted that when state agents were perpetrators of the persecution, "one need not inquire into the effectiveness of state protection." Thus, the Respondent submits that given the express finding of fact of the tribunal that state agents were involved in the persecution, there was no error with respect to this issue. Finally, the Respondent submits that the Board's findings should be read as a whole, as it is clear that the Board understood the facts of the Respondent's claim and found the evidence to be in support of a positive determination.
[27] Though state protection and IFA are two of the several issues identified in this claim, neither issue was dealt by the Board in its reasons. The IFA is not mentioned in the decision and though the Board refers to documentary evidence dealing with the effectiveness of state protection, or the lack thereof, no analysis was conducted in respect of the sufficiency of evidence to rebut the presumption of state protection.
[28] The Supreme Court of Canada in Ward states that absent a situation of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting its citizens. Because of this presumption, "clear and convincing confirmation of a state's inability to protect must be provided" (Ward at paragraph 50). The IFA refers to a fact situation where a "person may be in danger of persecution in one part of a country but not another" (Thirunavukkarasu at paragraph 2). Thus, if the Respondent is able to seek safe refuge within China, there is no basis for finding that she is unable to avail herself of protection in China.
[29] Notwithstanding the able argument of counsel for the Respondent, I am unable to determine from the reasons whether the Board properly applied the test in Ward in respect to state protection. It would be speculative to find that the Board was satisfied that there was clear and convincing evidence on the record of the state's inability to protect. There is simply no analysis that would allow for such a conclusion. Similarly, the Board fails to even address the issue of the IFA in its reasons and no finding in respect to the IFA is made by the Board. I am left to conclude that the reasons are clearly deficient in respect to the issues of state protection and IFA. In consequence, the Board erred by failing to properly assess whether the Respondent rebutted the presumption of state protection and whether the Respondent had access to an IFA within China.
CONCLUSION
[30] In conclusion, the Board committed reviewable errors in respect to the issues: nexus to a convention ground , state protection and IFA, as discussed in the above reasons. However, the findings of the Board with respect to the other remaining issues raised in this application, namely, credibility findings and benefit of the doubt determination should not be disturbed. In consequence, I will order that the matter be sent back for redetermination only in respect to the issues of nexus, state protection and IFA before the same panel, unless that panel can no longer be constituted, in which event, a new panel may be constituted to hear the matter on the above basis.
[31] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within five (5) days of receipt of these reasons. Each party will have a further period of three (3) days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued.
"Edmond P. Blanchard"
Judge
Ottawa, Ontario
October 13, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6211-03
STYLE OF CAUSE: MCI v. Kai Qing Chen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 20, 2004
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: October 13, 2004
APPEARANCES:
Mr. Greg G. George FOR APPLICANT
Mr. Lorne Waldman FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR APPLICANT
Deputy Attorney General of Canada
Department of Justice
Waldman and Associates FOR RESPONDENT
281 Eglinton Avenue East
Toronto, Ontario M4P 1L3
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