Bin v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1246

                                                                                                                                            Date: 20011114

                                                                                                                              Docket: IMM-6307-99

                                                                                                             Neutral Citation: 2001 FCT 1246

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

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN :

                                                                      QIO JIAN BIN

                                                                                                                                                       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 s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, 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 a citizen of 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 membership in a social group, namely his family, and imputed political opinion.

3.                    In June 1999, the applicant's father came into conflict with Chinese authorities when he refused to pay municipal taxes. Local authorities threatened the father and took a number of the family's household possessions. The father brought a complaint before a local court, accusing the government of imposing illegal taxes, harassment and illegally taking his property. No action was taken. The applicant alleges that authorities ransacked the family home and threatened the family. The applicant was subsequently denied access to school.

4.                    On July 12, 1999, the father was arrested at the family home. The applicant and his mother were not present during the arrest.    The applicant was sent to his grandmother's home and arrangements were made for his flight from China. The father was jailed for almost a month, during which time he was beaten. The applicant learned that the police have been looking for him.

5.                    The applicant was transported to Canada by human smugglers or "snakeheads". He arrived in Vancouver in August 1999. After spending two weeks in Vancouver, he was taken to Toronto and locked in a hotel room. On September 2, 1999, the applicant was detained at the Canada/U.S. border after he and nine others were caught attempting to enter the United States illegally.

6.                    In addition to claiming a fear of persecution based on his father's tax problems, the applicant argues that he is a refugee sur place on the basis that the Chinese government will view his illegal exit and refugee claim as expressing political opinion. He claims that he will be severely punished if returned to China. This fear is augmented due the media coverage surrounding his arrest and the CRDD hearing.

7.                    By agreement, arguments were made in nine other applications for judicial review that were heard together with the applicant's. Separate reasons have been prepared to address this common issue and are attached as Appendix A to these reasons. The sur place argument is rejected.

8.                    The CRDD attacked the applicant's credibility based on a number of inconsistencies in his evidence.

-                 The applicant testified that he sought refuge at his grandmother's house upon his father's arrest; but he later said that he went upon his father's release. No clear explanation was given for the discrepancy.

-                 The applicant testified that police began to target him while he was still in China; but he later testified that he was targeted after he left China.

-                 He stated that authorities came to the family home once prior to his father's arrest; but later stated that they came three times. The panel rejected his explanation that he was referring to uniformed and then plain clothes police.

-                 The applicant gave speculative and divergent answers as to why he believes he is wanted for arrest in China. The applicant also testified that police never stated an intention to arrest him. He indicated in the Port of Entry ("POE") notes that he was not wanted for arrest. He initially indicated in his Personal Information Form ("PIF") that he was not wanted but amended the PIF to say he was wanted.

-                 Handwritten notes attached to the POE document state that the applicant came to Canada to work and study. No mention was made of an intention to claim refugee status. At the hearing, the applicant explained that the omission resulted from his being asked questions about his religion by the Immigration Officer. The panel found that such questions should have prompted the applicant to mention an intention to claim refugee status. The applicant explained that when he left China he was told to follow the instructions of his smugglers. The Board found this inconsistent with an intention to claim refugee status.

-                 The applicant agreed to submit the following evidence at the Board's request: an order prohibiting him from going to school; written complaints made by his father to the local court; and school certificates. The applicant failed to submit these documents.

9.                    On the basis of all of these considerations, the CRDD concluded that the applicant was not a credible witness.

APPLICANT'S SUBMISSIONS

10.              The applicant argues that the CRDD failed to follow the Immigration and Refugee Board Chairperson's Guidelines on Child Refugee Claimants^[1] by unreasonably expecting the applicant to recall specific details related to his claim. While the applicant was unable to say how many times the police/tax collectors came to his home, he did provide a reasonable explanation that they sometimes came in uniform and sometimes not, and that they came both before and after his father was arrested and after the applicant departed China.

11.              The applicant points out that the Point of Entry ("POE") notes indicate that the applicant did intend to claim refugee status. It is argued also that the CRDD failed to consider the applicant's explanation that he was told by his smugglers not to say anything to authorities about himself.

12.              With respect to the Personal Information Form ("PIF") amendment, it is argued that the applicant provided a reasonable explanation that it was only after his initial PIF was completed that he became aware that the police had inquired about his whereabouts. It is also claimed that a procedural error was committed when Immigration and Refugee Board ("IRB") representative filled out the applicant's PIF. But for this, the applicant would never have had to amend his PIF and incur the suspicions of the CRDD.

13.              The applicant states that it was unreasonable for the CRDD to draw a negative inference from the applicant's inability to obtain documents at its request, given the family's financial situation and the context of their persecution in China.

ANALYSIS

14.              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.

15.              The Child Refugee Guidelines 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 prosecution. In addition, children may manifest their fears differently than adults.^[2]

...

... 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.^[3]

16.              While the Guidelines admonish the CRDD to be sensitive to the ability of child claimants to recall and present facts and details, it was not unreasonable for the CRDD to expect a seventeen-year-old to say how many times the police came to his home prior to his father's arrest. Moreover, the Federal Court of Appeal has stated that credibility findings based on internal inconsistencies and contradictions are the "heartland of the discretion of triers of fact": Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481, (1992) (C.A.) (QL), 143 N.R. 238 at 239 (F.C.A.). The CRDD's finding that the applicant offered inconsistent explanations of when and who came to his house was reasonably open to it on the evidence.^[4]

17.              In answer to applicant's counsel, when the CRDD stated that the applicant did not specify that he was claiming refugee status, it was specifically referring to the handwritten notes attached to the POE document and to the applicant's testimony, and not to the form itself. It drew a negative inference from the fact that the applicant did not indicate an intention to claim refugee status to the Immigration Officer, and that his stated intention was to work and study. This finding was reasonably open to the CRDD on the evidence before it.

18.              A review of the transcript reveals that the applicant did state that his smugglers told him "not to say anything".^[5] But this was in the context of his travel itinerary from China, and was not offered as an explanation for why he did not indicate an intention to claim refugee status to the Immigration Officer. I cannot therefore find that the CRDD erroneously failed to take such a factor into consideration.

19.              With respect to the PIF amendment, this Court has stated that the CRDD is entitled to consider last minute amendments in assessing a claimant's credibility: Kutuk v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1754at paras. 8, 9 (T.D.) (QL) per Simpson J. The applicant's explanation was that it was only after he submitted his initial PIF that he became

aware that he was wanted by authorities in China. It was reasonable for the CRDD to reject this explanation since the applicant had already given conflicting evidence as to when he became wanted for arrest.

20.              The applicant argues that the need for an amendment resulted from the IRB's involvement in filling out his initial PIF, and that it was therefore unfair for the CRDD to impugn his credibility on this basis. With respect, this argument contradicts the applicant's allegation that it was only after completing his initial PIF that he discovered that he was wanted in China. If this was so, the need for an amendment had nothing to do with the IRB's involvement in filling out the initial PIF, and the applicant was not prejudiced as a result.

21.              With respect to the documentation to be provided by the applicant, this Court has found that where a claimant's story has been found to be implausible, a lack of documentary corroboration can be a valid consideration for purposes of assessing credibility. In Syed v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 357 at para. 15 (T.D.) (QL), MacKay J. found no reviewable error where:

The tribunal ... indicated it was not satisfied as to why the claimant produced no documentary evidence, from local newspapers in Pakistan or letters from the applicant's wife with whom he had maintained contact after arriving in Canada, particularly with reference to the killing of the doctor or with reference to harassment of his family after he left for Canada. The claimant had apparently sought to trace news reports of the killing or of the trial of those he said had been arrested, but the panel thought it reasonable that he would have asked his wife for such reports. None were produced. Though he claimed to have had one or more letters from his wife, any letters he had were thrown away. The absence of any document corroborating his story of the attack upon and killing of the doctor or of any ongoing interest of the Sunnis about the applicant's whereabouts after he left Pakistan were factors relied upon in part by the tribunal in its conclusion that the applicant's evidence was not credible concerning the central incident claimed to give rise to his departure from Pakistan.

22.              In the present case, the applicant's claim had been discredited by a number of internal contradictions and inconsistencies. It was therefore open to the CRDD to consider his failure to produce corroborating evidence in further assessing his credibility. Moreover, all of the documents requested (school certificates, an order stating that the applicant could not pursue his education, and a copy of the father's complaint) could reasonably be expected to be in the family's possession.

23.              In light of the foregoing analysis, the CRDD's credibility finding did not warrant this Court's intervention. The applicant's submissions related to his sur place claim have been rejected in separate reasons. Accordingly, this 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-6307-99

                                                                                                                                              APPENDIX A

Refugee Sur Place

24.              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.

25.              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.

26.              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?^[6]                

27.              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.^[7] 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".^[8] It emphasized, however, that for any refugee claim to be successful, any disproportionate sanction must be related to a Convention ground.

28.              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.^[9]

29.              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.^[10]

30.              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.^[11]

31.              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.^[12]

32.              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".^[13]

33.              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.^[14]

34.              The Supreme Court in Canada (Attorney General) v. Ward allowed for the possibility of imputed political opinion^[15]:   

[...] 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.

35.              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)^[16]:

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.

36.              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.

37.              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.

38.              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.

39.              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?

40.              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?