Huang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1239

                                                                                                                                            Date: 20011114

                                                                                                                              Docket: IMM-6300-99

                                                                                                             Neutral Citation: 2001 FCT 1239

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

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN :

                                                                        LIN HUANG

                                                                                                                                                       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 14, 1999, in which the CRDD held that the applicant was not a Convention Refugee.

2.                    The applicant is from Fujian Province, China, and was seventeen years old at the time the CRDD made its decision. He claims to have a well-founded fear of persecution based on political opinion as well as imputed political opinion related to his illegal exit from China.

3.                    The applicant claims that he has an uncle who left China for Taiwan in 1949 after working for the National Democratic Party Army. In 1996, the applicant's father dictated a letter to the applicant's uncle, warning him of a possible attack by China on Taiwan. The letter was opened by a Chinese postal clerk. On May 13, 1996, the father was arrested and detained for five months. The applicant's mother was arrested and detained for half a day. Authorities denounced the father as an enemy with contacts in Taiwan. The family was then shunned by their community and the father suffered a beating by local villagers.

4.                    The father was summoned to the police station on July 9, 1999, after relations between China and Taiwan worsened. It was this incident that prompted the applicant's flight to Canada. The father was arrested and detained for a week in September 1999.

5.                    The applicant fears that Chinese authorities will view him as a spy because of his illegal exit from China. He claims that authorities have been looking for him since he left.

6.                    The applicant was brought to Canada by human smugglers ("snakeheads") who then travelled with him and nine other young persons within Canada. He left China sometime in July 1999. He spent ten days in Vancouver and then approximately two weeks in Toronto, where he was locked in a hotel room by the snakeheads. He was taken to Montréal in early September. On September 2, 1999, the applicant was detained at the Canada/U.S. border after he and the others travelling with him were caught attempting to enter the United States illegally.

7.                    The applicant also claims to be refugee sur place. He fears that Chinese authorities will view his illegal exit and subsequent refugee claim as expressing political opinion. He alleges that he will suffer severe consequences if sent back to China. This fear is augmented due to the media coverage surrounding his arrest and the CRDD hearing.

8.                    This argument, which is common to all who were apprehended at the same time as the applicant, is dismissed in separate reasons which are attached as Appendix A to these reasons.

9.                    The CRDD did not find the applicant to be a credible witness. The applicant testified that he had been questioned by police three or four times, but failed to include this information in his Personal Information Form ("PIF"). The applicant's explanation for the omission was that his lawyer did not ask if he had been arrested, and that he thought it sufficient to mention only what happened to his father. The CRDD did not accept these explanations.

10.              The CRDD noted that the applicant was vague when providing dates relating to events involving himself, but was very precise in his PIF with dates related to events involving his father. It found that the applicant was attempting to bolster his claim by adding incidents that never occurred.

11.              Finally, the CRDD found it implausible that the applicant's family would send him away while they remained in a hostile environment in China.

12.              Regarding the PIF omission, the applicant argues that his explanations were reasonable in the circumstances and in light of his young age. With respect, this is not a ground for review. While it is clear that the CRDD must provide an opportunity for claimants to explain why omissions were made in their PIF's (Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (C.A.) (QL), (1991), 135 N.R. 300 (F.C.A.), it need not accept those explanations. When considering CRDD credibility findings, the relevant question is whether the decision was "so unreasonable" as to warrant judicial intervention: Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 at para. 4 (C.A.) (QL), (1993), 160 N.R. 315. In my view, it was not unreasonable for the CRDD to reject the applicant's explanations, particularly since the directions to PIF question 37 specifically requires claimants to mention any personal incidents:

Set out in chronological order, all the significant incidents which caused you to seek protection outside your country of nationality or former habitual residence. Please also make reference to any measures taken against you, your family members, or any other individuals in a similar situation.^[1]

13.              In my view, it was open for the CRDD to question the applicant's veracity as a result of his failure to refer to events which he says occurred to him while providing details of events in which his father was involved. It could reasonably be expected that the applicant would recall with some precision when he was detained for questioning by police. It is reasonable to assume that these would have been significant events for the applicant.

14.              The applicant submits that the CRDD made its finding of implausibility without regard to the evidence. The applicant testified that he was sent away because of the increased danger associated with being the eldest son. He also testified that his family is poor and could not afford to have all family members leave China.

15.              This Court has stated that implausibility findings cannot be pulled "out of a hat", but must be grounded in the evidence: Arumugam v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 122 at para. 5 (T.D.) (QL) per Reed J. In this case, the CRDD referred to the fact that the applicant's family had been ostracized by family, friends and community; that their freedom of movement had been severely curtailed by the authorities; and that the applicant's difficulties were no greater than any other member of the family. Even after allowing for the applicant's position as the eldest son, it was not unreasonable for the CRDD to find it implausible that the applicant would be sent away rather than his father who was the focus of the authorities' attention. The test is not whether the Court would come to the same conclusion but whether it was unreasonable for the CRDD to do so. It was not.

16.              In the circumstances, the application is dismissed.

ORDER

For the reasons stated above, the application for judicial review of the decision of the Convention Refugee Determination Division, dated December 16, 1999, reasons for which are dated December 14, 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-6300-99

                                                                                                                                              APPENDIX A

Refugee Sur Place

17.              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.

18.              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.

19.              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?^[2]                

20.              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.^[3] 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".^[4] It emphasized, however, that for any refugee claim to be successful, any disproportionate sanction must be related to a Convention ground.

21.              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.^[5]

22.              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.^[6]

23.              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.^[7]

24.              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.^[8]

25.              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".^[9]

26.              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.^[10]

27.              The Supreme Court in Canada (Attorney General) v. Ward allowed for the possibility of imputed political opinion^[11]:   

[...] 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.

28.              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)^[12]:

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.

29.              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.

30.              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.

31.              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.

32.              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?

33.              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?