Li v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1243

                                                                                                                                            Date: 20011114

                                                                                                                              Docket: IMM-6304-99

                                                                                                             Neutral Citation: 2001 FCT 1243

Ottawa, Ontario, this 14^th day of November 2001

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN :

                                                                        YAN HUA LI

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

PELLETIER J.

1.                    This is an application under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, as amended, for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated December 16, 1999, in which the CRDD held that the applicant was not a Convention Refugee.

2.                    The applicant requests that the CRDD's decision be set aside and that the matter be remitted for reconsideration before a differently constituted panel.

3.                    The applicant is from Fuzhou, China, and was seventeen years old at the time the CRDD made its decision. She claims to have a well-founded fear of persecution based on grounds of religion and imputed political opinion.

4.                    The applicant and her family are Roman Catholic. In her Personal Information Form ("PIF"), the applicant states that the Chinese government does not allow Roman Catholics to practice their religion. They are not allowed to build churches or to organize church activities. She states that authorities "broke down" a church that was being built in a neighbouring village. She says that enthusiastic believers keep building churches despite the government's measures. She says that her priest was arrested while conducting a mass, and that the Cardinal of Fuzhou has been arrested and sentenced to twenty years in prison. A "young believer" teaching catechism to children was arrested and severely beaten. The applicant claims that she had begun teaching catechism. She was told that the police had been looking for her. This incident prompted her family to arrange for her travel to Canada.

5.                    The applicant also states that the Chinese government forced her mother to abort her third child. In addition, the government imposed heavy fines on the family. The applicant's family had to borrow money to pay the fines. The applicant's father was forcibly sterilized. Ten years later, the government attempted to arrest the applicant's father for taking part in anti-birth control demonstrations. The father fled to the United Kingdom.    

6.                    The applicant was brought to Canada by human smugglers or "snakeheads". She left China on approximately August 16, 1999 and arrived in Vancouver on or around August 18, 1999. While in Vancouver, she was kept in a hotel for approximately eleven days. She was told by her smugglers that if she behaved well she would be allowed out of the room. On September 3, 1999, after a two-day stay in Toronto, the applicant was detained at the Canada/U.S. border when she and nine others were caught attempting to enter the United States illegally.

7.                    The applicant argues that she is a refugee sur place because Chinese authorities would view her illegal exit and subsequent refugee claim as expressing political opinion. She claims that she would suffer fines, beatings and imprisonment if sent back to China. This fear is augmented due to the media coverage surrounding her arrest and the CRDD hearing. This issue which is common to all who were apprehended at the same time as the applicant has been disposed of in a separate set of reasons which are attached as Appendix A to these reasons. For present purposes, it is sufficient to say that the argument was rejected.

THE CRDD'S DECISION

8.                    The CRDD determined, on the basis of documentary evidence, that the applicant would not face more than a mere possibility of religious persecution if she was returned to China. One document quoted by the CRDD suggests that while the Chinese government seeks to restrict unregistered religious groups in particular, unregistered churches continue to grow rapidly, sometimes with "little official interference".^[1]    Another document states that religious activities in Fujian Province (the province where the applicant is from) are generally tolerated as long as they do not take a political turn.

9.                    The CRDD also quotes the following passage from the U.S. Department of State Annual Report on International Religious Freedom for 1999: China:

... there were more than 85,000 approved venues for religious activities. Some groups registered voluntarily, some registered under pressure, while authorities re[f]used to register others. Unofficial groups claimed that authorities often refuse them registration without explanation. The Government contends that these refusals were mainly the result of inadequate facilities and meeting spaces. Many religious groups have been reluctant to comply with the regulations out of principled opposition to state control of religion or due to fear of adverse consequences if they reveal, as required, the names and addresses of church-leaders. In some areas, efforts to register unauthorized groups are carried out by religious leaders and civil affairs officials, in other regions, registration is performed by police and RAB officials, concurrently with other law enforcement actions. Police closed many "underground" mosques, temples, seminaries, Catholic churches, and Protestant "house churches", many with significant memberships, properties, financial resources, and networks. Leaders of unauthorized groups are often the targets of harassment, interrogations, detention, and physical abuse.^[2]

10.              The CRDD noted that the applicant was unable to say whether her church was registered or not, and concluded that "while the situation regarding religious freedom in China is not perfect, it does appear to be improving".^[3]

11.              The CRDD went on to make negative findings with respect to the applicant's credibility. It did not accept that either the applicant's parents or Church authorities would allow her to teach catechism after another teacher was arrested and severely beaten. The CRDD rejected the applicant's explanation that she took the risk in order to serve God and that she thought she would not be arrested due to her young age.    It acknowledged that there are martyrs in all religions, but doubted "the credibility of [the applicant's] courage", given her age and the risk of being arrested and beaten. It also noted that the applicant was unable to specifically identify who asked her to teach the class, and was "unusually hesitant" in responding.

12.              The CRDD asked the applicant if teaching catechism is against the law in China. The applicant stated that "China prohibits any kind of religious action that it is a violation of the law and they only allow Protestant religious activities".^[4] From this the CRDD determined that:

If the former is true then the claimant was knowingly teaching against the law. The latter does not corroborate with the objective situation of the country evidenced by the documentation.^[5]

13.              The CRDD then referred to documentary evidence to establish that, contrary to the applicant's submission, China does allow religious practice.

14.              The CRDD found the applicant's testimony regarding her attendance at a protest against China's birth control policy "inconsistent and contradictory" and noted that no mention of this was made in her written narrative. It noted also that there was no evidence in the Port of Entry ("POE") notes that the applicant intended to claim refugee status in Canada.

15.              The CRDD concluded that the applicant had not met her burden of proving that she would face more than a mere possibility of persecution due to her religious activities if she returned to China.

16.              The applicant submits that the CRDD made a number of errors in its determination: it failed to consider her testimony that a priest and cardinal in her area were arrested; it failed to consider that the police had been looking for her; it failed to consider that the applicant's life would be in danger if sent back to China, given her age and prison conditions in Chinese jails; it failed to observe guidelines for child refugee applicants when assessing the applicant's credibility.

ANALYSIS

1.          Objective Grounds

17.              The standard of review applicable to the CRDD's findings of fact is patent unreasonableness: Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741, [1994] F.C.J. No. 2018 at para. 25 (T.D.) (QL). The CRDD's finding that religious freedom in China appears to be improving is reasonable based on the evidence.

18.              The standard of review for questions of mixed fact and law for CRDD decisions is reasonableness simpliciter: Goodman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 342 at para. 53 (T.D.) (QL), (2000), 4 Imm. L.R. (3d) 104, per Lemieux J.; Chaudhry v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 708 para. 12 (T.D.) (QL) per O'Keefe J. In the present case, the question for the CRDD to determine was not whether religious tolerance has improved, but whether it has improved to such a degree that the applicant would not face more than a mere possibility of persecution. In addressing that question, there was evidence even within the passages cited by the CRDD that religious adherents, including Catholics, are still being persecuted in China:

Police closed many "underground" mosques, temples, seminaries, Catholic churches, and Protestant "house churches", many with significant memberships, properties, financial resources, and networks. Leaders of unauthorized groups are often the targets of harassment, interrogations, detention, and physical abuse.

19.              There is also evidence that recalcitrance among religious groups is common:

Many religious groups have been reluctant to comply with the regulations out of principled opposition to state control of religion or due to fear of adverse consequences if they reveal, as required, the names and addresses of church-leaders.

20.              There is even evidence that authorities refuse to register religious groups:

Some groups registered voluntarily, some registered under pressure, while authorities re[f]used to register others. Unofficial groups claimed that authorities often refuse them registration without explanation.

21.              But the issue before the CRDD was not whether Catholics in the abstract were subject to persecution but whether they were satisfied that the applicant before them, on the facts of her situation, would be likely to face persecution. In order to resolve that question, the CRDD would have to be satisfied that the applicant was the religious person she claimed to be. This necessarily involves findings of credibility.

2.          Credibility

22.              Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 at para. 4 (C.A.)(QL), (1993), 160 N.R. 315, is generally cited as authority for the standard of review to be applied to the CRDD's credibility findings:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

23.              The Immigration and Refugee Board Chairperson's Guidelines on Child Refugee Claimants^[6] provide that:

In general, children are not able to present evidence with the same degree of precision as adults with respect to context, timing, importance and details. They may be unable, for example, to provide evidence about the circumstances surrounding their past experiences or their fear of future persecution. In addition, children may manifest their fears differently from adults.^[7]

...

... When assessing the evidence presented in support of the refugee claim of a child, the panel should take note of the following:

1.              If the child has given oral testimony, then the weight to be given to the testimony must be assessed. In determining the weight to be given, the panel should consider the opportunity the child had for observation, the capacity of the child to observe accurately and to express what he or she has observed, and the ability of the child to remember the facts as observed. These factors may be influenced by the age, gender and cultural background of the child as well as other factors such as fear, memory difficulties, post-traumatic stress disorder and the child's perception of the process at the CRDD.

2.              A child claimant may not be able to express a subjective fear of persecution in the same manner as an adult claimant. Therefore, it may be necessary to put more weight on the objective rather than the subjective elements of the claim. The Federal Court of Canada (Appeal Division) has said the following on this issue:

... I am loath to believe that a refugee status claim could be dismissed solely on the ground that as the claimant is a young child ... he or she was incapable of experiencing fear the reasons for which clearly exist in objective terms.

3.              When assessing the evidence presented in the claim of a child refugee claimant, the panel may encounter gaps in the evidence. For example: a child may indicate that men in uniforms came to the house but not know what type of uniforms they were wearing or a child may not know the political views of his or her family. The child may, due to age, gender, cultural background or other circumstances, be unable to present evidence concerning every fact in support of the claim. In these situations, the panel should consider whether it is able to infer the details of the claim from the evidence presented.^[8]

24.              It is noteworthy that the CRDD states that its decision was made in accordance with the Child Guidelines "in analysing the central elements of the claim".^[9] It is difficult to assess the credibility of a young person who alleges that she was willing to risk beatings by teaching catechism. There are many instances of people being moved to heroic action by their faith. But in the end, it was for the CRDD to assess the applicant's credibility. They had the advantage of seeing and hearing her, and in the absence of grounds other than the possibility of coming to a different conclusion, I see no grounds for interfering with their assessment.

25.              The CRDD may have been somewhat unrealistic in their expectations with respect to the applicant's knowledge of the legal regime applicable to churches in China. On the other hand, it is not unreasonable to expect those who profess a particular interest in a given domain to have additional knowledge of that area. While I may have proceeded differently, the CRDD's approach was not without foundation, even when the applicant's age is taken into account.

26.              The CRDD found the applicant to be "unusually hesitant" when it wanted to know who chose her to teach the class. This Court is loath to interfere with credibility findings based on demeanour. As stated by Jerome A.C.J. in Tong v. Canada (Secretary of State), [1994] F.C.J. No. 479 at para. 3 (T.D.) (QL):

A claimant's demeanor, consistency, ability to present specific facts, and concordance with objective evidence in the record may be thought of as internal credibility, viz., the apparent veracity (or lack thereof) of a witness' testimony, taken within itself and within the record, that is, in the light of demeanor, frankness, readiness to answer, coherence and consistency - what I might call the heartland of credibility. Confusion, failure to respond, evasions, inconsistencies and contradictions will create a perception of lack of credibility.

27.              The CRDD's finding was entitled to consider the applicant's apparent evasiveness. One might expect that an answer to such a straightforward and pertinent question would be readily forthcoming, notwithstanding the applicant's age. This exchange is also relevant to a key aspect of the applicant's story: her claim to having been a catechism teacher.

28.              The CRDD found inconsistency and incoherence in the applicant's testimony regarding her involvement in protesting against China's birth control policies. In light of Tong, I find no reason to interfere with this finding, particularly since the applicant failed to mention such details in her PIF: Joseph v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 49 at para. 36 (T.D.) (QL) per Teitelbaum J.

29.              The applicant's submissions related to her sur place claim have been rejected in separate reasons.

30.              In all the circumstances, I find no reason to interfere with the CRDD's decision. The application for judicial review is dismissed.

ORDER

For the reasons stated above, the application for judicial review of the decision of the Convention Refugee Determination Division, dated December 20, 1999, reasons for which are dated December 16, 1999, is dismissed.

The following question is hereby certified:

Where the fact that an applicant has applied for convention refugee status has been reported in the media in Canada, and the applicant makes a claim of refugee sur place as a result of that reporting, is it necessary for the applicant to prove

a)          that the media reports came to the attention of the authorities in the country in respect of whom the applicant alleges a well-founded fear of persecution and

b)          that the information contained in the media reports was sufficient to allow the authorities to identify the applicant

in order to succeed with respect to the refugee sur place claim?

                                                                                                                                     "J.D. Denis Pelletier"          

                                                                                                                                                               Judge                       

                                                                                                                               Docket: IMM-6304-99

                                                                                                                                              APPENDIX A

Refugee Sur Place

31.              The application for judicial review of ten applicants were heard together because of certain common issues, one of which was whether the applicants had become refugee sur place. Each of the applicants made a claim before the Convention Refugee Determination Division ("CRDD") on the basis of well-founded fear of persecution of imputed political opinion and refugee sur place based on the media attention surrounding their arrest, detention and subsequent applications for refugee status.    Videotaped recordings of television coverage were submitted to the CRDD, as well as two newspaper articles. It was alleged that, due to the media attention, Chinese authorities would know that the applicants had claimed refugee status in Canada and would view the claims as political statements against the Chinese regime. In addition, the applicants claim that they would be severely punished for their illegal exit. The applicants submitted no evidence of actual differential treatment by Chinese authorities resulting from the existence of media exposure of their refugee claims.

32.              These reasons apply to all of the applicants in respect of their allegation that the CRDD improperly assessed their claim to refugee status based on the notion of refugee sur place.

33.              The CRDD identified the following questions as "central" to the sur place issue:

Would China be aware of this claim for refugee status? Would China consider leaving the country illegally and claiming refugee status as expressions of political opinion? If so, what would the consequences be for the claimant?^[10]             

34.              The CRDD went on to address the question of whether punishment of the applicants by the Chinese government for their illegal exit would amount to persecution under the Convention.    The CRDD cited the principles set forth in Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540, [1993] F.C.J. No. 584 (C.A.) (QL), that ordinary laws of general application are presumed to be valid and neutral and that the applicant must show that the law in question is persecutory in relation to a Convention ground.^[11] The CRDD recognized the principle that a law of general application may be persecutory if the sanction is "totally out of proportion to the offence committed".^[12] It emphasized, however, that for any refugee claim to be successful, any disproportionate sanction must be related to a Convention ground.

35.              Citing a September 22, 1999 Response to Information Request, the CRDD noted that Chinese authorities have wide discretion in imposing sanctions for illegal exit. However, it found that nowhere in the document was it stated that imprisonment could be for more than three years, and nowhere was it suggested that China would perceive exiting illegally from the country or claiming refugee status as an expression of political opinion or as a factor that would influence the sanction. The CRDD referred to the following quotation:

[...] returnees are rarely imprisoned owing to a number of factors: the pervasiveness of the phenomenon of illegal immigration from Fujian, the volume of returnees from Australia, Japan, Taiwan, the United States and elsewhere, and the extensive influence of the snakeheads.^[13]

36.              An Australian 1994 Country Profile was also quoted:

In answer to claims in newspaper reports that deportees recently returned to Fujian were expected to pay high fines and attend reeducation centres if the fines were not paid, a Fujian official gave this reply. They had been detained at a PSB center for identity and health checks. After completion of the checks they would be returned to their home towns, all in the Fuzhou area. There would be some light pecuniary penalty. Although the Government regarded them as law breakers it was more appropriate to consider them as victims of illegal migration rackets. The official conceded that second offenders and evil organizers would be dealt with harshly.^[14]

37.              Another Response to Information Request was cited to show that returned migrants also have insufficient objective grounds to fear harassment by snakeheads upon return to China.^[15]

38.              The CRDD drew the following conclusions:

In summary, and applying the guidelines of Zolfagharkhani, the Chinese law concerning illegal exit is a law of general application, presumed valid and neutral. Even though the claimant alleged that the Chinese regime is generally oppressive, the claimant has not met his burden to demonstrate that the intent or principal effect on him of this law would be persecutory in relation to a Convention ground. In view of this conclusion, it is irrelevant whether the claimant could or could not be identified in the videos submitted in evidence and whether China would or would not know about the present claim for refugee status.^[16]

39.              Counsel for the applicants submit that the CRDD erred in deciding that it was irrelevant whether the applicants would be identified from the media exposure.    Mr. Markaki argued that the CRDD only considered the issue of whether punishment for illegal exit was persecutory, without specifically dealing with how the applicants' well-publicized refugee claims would be viewed by Chinese authorities and the effect it might have on their punishment. It was submitted that this question should have been addressed by the CRDD "even in the absence of specific documentary evidence but on its knowledge of country conditions and the general documentary evidence which describes China as an oppressive regime which does not tolerate any political opposition or criticism of any kind".^[17]

40.              There are few guidelines and little jurisprudence on the proper evaluation of sur place claims. According to the UNHCR Handbook, a person can become a refugee sur place for reasons other than changing circumstances in her or his country of origin:

A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.^[18]

41.              The Supreme Court in Canada (Attorney General) v. Ward allowed for the possibility of imputed political opinion^[19]:   

[...] the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.

The ground of political opinion therefore appears to be flexible enough to encompass the sur place claim made by the applicants.

42.              In my view, the essential problem for the applicants is the fact that no evidence was before the CRDD, documentary or otherwise, that substantiated their sur place allegation. The problem is implicit in the Supreme Court's statement in Ward that "[t]he absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution" (emphasis added). I can agree with Mr. Markaki that the CRDD limited its analysis to documentary evidence of punishment for illegal exit in China. However, I cannot agree that the CRDD should have determined how the Chinese government might view making a claim for refugee status "even in the absence of specific documentary evidence". If there is a distinction to be made respecting the treatment given to returnees who have claimed refugee status in Canada and other returnees, and if that treatment amounts to discrimination based on imputed political opinion, it should have been a matter of evidence before the CRDD. As Justice Nadon held in Kante v. Canada (Minister of Employment and Immigration)^[20]:

The law is clear that the burden of proof lies with the Applicant i.e. he must satisfy the Refugee Division that his claim meets both the subjective and objective tests which are required in order to have a well founded fear of persecution.

43.              In the absence of documentary evidence that the applicants would be persecuted based on political opinion imputed from their refugee claims, it was reasonable for the CRDD to draw no conclusion based upon evidence of publicity. It is not open to the CRDD to engage in speculation whether it is to the applicants' benefit or detriment.

44.              In analysing the CRDD's decision, I am also guided by the principle articulated by Gibson J. in Biko v. Canada (Secretary of State), [1994] F.C.J. No. 1741 (T.D.) (QL):

The CRDD's decision must be interpreted as a whole. I would add to that that it must be interpreted as a whole in the context of all of the evidence that was before the CRDD.

45.              Given the absence of evidence that would establish objective grounds for the applicants' fear of persecution based on imputed political opinion, and bearing in mind that the applicants had the burden of proof in this regard, I find that the CRDD did not commit a reviewable error in its evaluation of the applicants' sur place claim.

46.              At the conclusion of this hearing, counsel asked me to certify the following question on the issue of refugee sur place:

Does knowledge by a country of a generally oppressive character of a refugee claim made by a national make this individual a refugee sur place?

47.              In my view, such a question is not particularly clear because of the imprecision in the notion of "a country of a generally oppressive character". The issue in this case was whether a sur place claim could be maintained in the absence of evidence, that the making of a refugee claim by certain individuals had specifically come to the attention of the Chinese authorities. In my view, a more appropriate question, and one which I am prepared to certify, is:

Where the fact that an applicant has applied for convention refugee status has been reported in the media in Canada, and the applicant makes a claim of refugee sur place as a result of that reporting, is it necessary for the applicant to prove

a)          that the media reports came to the attention of the authorities in the country in respect of whom the applicant alleges a well-founded fear of persecution and

b)          that the information contained in the media reports was sufficient to allow the authorities to identify the applicant

in order to succeed with respect to the refugee sur place claim?