Chen v. Canada (Minister of Citizenship and Immigration), 2001 FCT 564

Date: 20010601

Docket: IMM-541-00

Neutral Citation: 2001 FCT 564

Ottawa, Ontario, this 1st day of June, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

JIAN QIU CHEN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision dated December 29, 1999, of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"). In its decision the Board determined the applicant not to be a Convention refugee.

[2]                The applicant seeks an order setting aside the above decision and referring the matter to a differently constituted Board for redetermination.

Background Facts

[3]                The applicant, Jian Qiu Chen, is a citizen of the People's Republic of China who arrived in Canada on December 16, 1997 and made a Convention refugee claim. The applicant alleged a fear of persecution in China at the hands of the Public Security Bureau (the "PSB"). The applicant claims he helped pregnant women escape forced abortions and thereby violated the Family Planning Policy.

[4]                The applicant claims he was employed as a hospital security guard between 1987 and 1997. One evening in September, 1997, the applicant worked someone else's shift and encountered five pregnant women at the hospital. The women had been brought to the hospital by the Family Planning Committee for forced abortions. The applicant alleged that while on duty, he helped five women escape because he recognized one of the five as being from his village. The applicant states he helped them escape because he believes innocent babies should not be killed.

[5]                According to the applicant, one of the escapees was arrested the following night, resulting in his subsequent arrest. The applicant was detained at a PSB station where he was beaten and then sent to a forced labour camp. The applicant escaped from the camp in October, 1997. The applicant learned he was wanted by the PSB and went into hiding before fleeing to Canada.

[6]                The applicant's claim was heard on November 16, 1998 and October 28, 1999. The Board found the applicant was complicit in crimes against humanity. He was excluded from the provisions of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, (the "Convention") by way of Article 1F(a). Alternatively, if the applicant were not to be excluded from the Convention, the Board found him to lack credibility and concluded there was less than a mere possibility that he would be persecuted in China. The Board found he lacked credibility because:

7.                   In his Port of Entry (POE) notes, the applicant said that he helped one woman avoid an abortion. However, in his narrative, he said that he helped five women do so. His explanation for this inconsistency was vague and evasive.

8.                   In his POE notes, he said he helped the woman because she told him that she had three girls and wanted a boy. In his narrative, he said he helped her because she was from his village.

9.                   In his narrative, the applicant said he was sent to a labour camp. This was not mentioned in the POE notes. His explanation for not mentioning it (he did not think much of the incident) was rejected.

10.               His evidence regarding the woman from his village that he helped escape is not plausible. She allegedly escaped in September, 1997. However, the applicant claims that she had her baby in August or September, 1998. If true, she would have been pregnant for 11 or 12 months.

5.          The applicant testified that wanted posters of him were posted in his village and vicinity. This was not included in his narrative. His explanation for not mentioning it (he forgot about it) was found not to be reasonable.

Issues

[7]                1.         Did the Board err with respect to its credibility findings relating to

the applicant?

2.         Did the Board err in excluding the applicant pursuant to the

operation of the definition of "Convention refugee" in the Act and Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6?

Applicant's Submissions

[8]                Did the Board err in excluding the applicant from status as a knowing participant?

The applicant submits the Board's finding of exclusion hinges on the application of the test of "knowing participation" enunciated in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.).    The applicant submits Ramirez, supra set out the test for complicity. The Court stated that personal and knowing participation in the crime against humanity was required to exclude someone from refugee protection. The applicant notes the Court clarified that mere presence was not enough to exclude someone, and it further indicated that when the person is a member of an organization that exists for a limited and brutal purpose, mere membership may not be enough.

[9]                The applicant submits he was an employee of a hospital which was not limited to abortions but treated people generally. Thus, in this sense, the applicant argues he was not a member of an organization whose purpose was limited to a brutal cause. As such, the applicant submits mere membership is insufficient to exclude him and there must be knowing participation (which is the test the Board applied). The Board erred, according to the applicant, in determining that the circumstances of his claim amounted to knowing participation.

[10]            The applicant submits he was not employed at a prison or detention centre to stand outside the room where women were being held to prevent them from leaving before the abortion. Rather, the applicant submits he was on general patrol at the hospital and that his duties included such things as taking care of security and guarding against theft. The only evidence that possibly relates to exclusion, in the applicant's submission, is that he saw officers enter the hospital with women who were being sent for forced abortions and that he knew the fate of these women. The applicant argues his job cannot be construed as one of guarding women who were detained for forced abortions.

[11]            Given the test in Ramirez, supra and the spirit of the law, the applicant submits the Board erred in excluding him. In the circumstances of this case, it cannot be said that the applicant was knowingly participating in crimes against humanity. In Ramirez, supra, the applicant was an active member of the Salvadoran Army (an organization committed to human rights abuses) whose job was to guard torture chambers. The applicant submits he was only a hospital employee who witnessed women being brought in the front door for forced abortions.

[12]            Did the Board err in its credibility assessment?

The applicant submits the Board's credibility findings all rest on differences found between the hearing and the POE materials or between the Personal Information Form (PIF) and testimony. The Board found there was a difference between the number of women the applicant helped escape. His POE indicated one whereas his testimony and his PIF indicated five. The applicant submits he explained at the hearing that he indicated one woman in the POE materials because he knew only one of the women. The Board rejected this explanation because it did not see it as having been included in the POE notes. This rejection is unreasonable in the applicant's submission, as the issue arose at the hearing and could not have been included in the POE notes.

[13]            The Board was also concerned with omissions from the POE notes: the arrest and labour camp. The applicant submits POE materials are completed without the right to counsel by Immigration Canada. They are meant solely to provide Immigration Canada with sufficient information to help determine whether the person is admissible and eligible to make a refugee claim. The applicant further submits there is no jurisdiction to question generally the purpose of taking notes and forwarding them to the Board to help determine credibility issues. According to the applicant, to do so would defeat the purpose of an oral hearing with the right to counsel. Therefore, the applicant submits the use of a specific omission from the POE materials as a reason for rejecting the refugee claim amounts to an error of law.

[14]            The applicant argues that the Board's concern with the birth date of a child of a woman he helped escape cannot sustain a negative determination by the Board. The Board's last concern was that of the applicant's failure to mention wanted posters in his PIF. The applicant did state that he was wanted in his PIF. The applicant argues this omission is simply a failure to elaborate in detail on something which would normally be provided in the hearing, as such, it cannot properly be a ground for the negative refugee determination.

Respondent's Submissions

[15]            Credibility

The respondent submits questions of credibility are within the jurisdiction of the Board as the trier of fact in respect of Convention refugee claims and they afford no legal basis upon which to interfere with the decision. Negative decisions on credibility, in the respondent's submission, are properly made when the tribunal gives its reasons for doing so in clear and unmistakable terms. Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346, A-987-84 (May 26, 1986) (F.C.A.) is offered in support of this submission.

[16]            The respondent argues the applicant's POE notes and PIF narrative contain highly inconsistent explanations of what happened. The Board had two varying accounts to which the applicant swore to the truthfulness. Therefore, the Board was entitled to draw negative credibility findings from these inconsistencies. The POE notes, in the respondent's submission, fall into the class of reliable, credible and trustworthy evidence that the Board can rely on in making its decisions. The fact that the applicant did not enjoy a right to counsel when completing the POE notes, does not negate the Board's ability to make credibility findings based on inconsistencies between the notes and other evidence.

[17]            The Board could draw a negative inference from the applicant's testimony as to the birth date of the baby of one of the women he helped escape. The respondent submits his evidence on this point was implausible. Moreover, the fact that there were wanted posters of the applicant is crucial to his fear of the Public Security Bureau. According to the respondent, it underlies the extent to which the Bureau pursued the applicant. The Board could doubt that there were wanted posters when they were only mentioned for the first time at the hearing. The Board's findings go to the heart of the applicant's claim of persecution.    The respondent submits it could conclude that he was not credible.

[18]            Exclusion Finding Reasonable

The respondent submits the applicant: voluntarily worked at an organization that performed forced abortions (a crime against humanity) for years, even though he knew what was done there; controlled the gate by which the women would enter the hospitals; did not leave as he did not want to return to low paying jobs; transferred to another hospital where he did the same job for more money; and had a direct role in controlling entry to where the atrocities were committed. The applicant never denied access to the perpetrators.

[19]            Severability

The respondent submits the Board's inclusion and exclusion findings are severable as each are insular of the other. The Board is not required, in the respondent's submission, to determine if the applicant might be a Convention refugee after excluding him under Article 1(F)(a). The respondent offers Arica v. Canada (Minister of Employment and Immigration) (1995), 182 N.R. 392 (F.C.A.) and Gonzalez v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 229 (F.C.A.) in support of the above submission. The respondent submits that if this Court was to find the Board's exclusion finding to be erroneous, its finding that the applicant is not a Convention refugee should not be interfered with. The Board's finding on this point was reasonably open to it on the evidence before it.

Relevant Statutory Provisions

[20]            The definition of "Convention refugee" under the provision of the Immigration Act is:

Analysis and Decision

[21]            Issue 1

Did the Board err with respect to its credibility findings relating to

the applicant?

The Board found the applicant not to be credible primarily because of differences between his statements in his Port of Entry document, his PIF and his testimony. One of the differences is how many pregnant women he let escape from the hospital. In his Port of Entry statement he said one, and in both his PIF and his testimony, he stated the number was five. He gave an explanation before the Board that there was confusion in that the writer of the Port of Entry statement must have mixed up the number because he stated that one of the women was from his village. Also, in his Port of Entry statement, he stated that he helped the one woman because she said she had three girls and wanted a boy. In his PIF, he stated he helped this woman because she was from his village. The applicant did not mention in his Port of Entry statement that he was sent to a labour camp, but did so in his PIF. His explanation was that he did not think much of the incident. The panel rejected the applicant's explanations.

[22]            Questions of credibility are within the jurisdiction of the Refugee Division as the trier of facts in refugee claims. As long as the Board identifies the evidence that it finds not to be credible and gives clear reasons for their finding of a lack of credibility, it is not the role of the Court to interfere with the decision (see Brar, supra). In this case, the Board explained with examples, why it did not find the applicant to be credible (I have not taken into account the 11 to 12 month pregnancy item). It is my conclusion that the Board did not make any reviewable error with respect to credibility.

[23]            The applicant submitted to me at the hearing of the application that question 35, asked by the officer in the Port of Entry statement, was beyond the Port of Entry officer's jurisdiction to ask. Question 35 reads as follows:

35) For which of the following reasons do you consider yourself to be persecuted: by reasons of race, nationality, religion, membership in a particular social group or political opinion? Please give a summary of the reasons why you want to claim refugee status in Canada. Please take note that the reasons you will provide may be forwarded and presented during your hearing at the Immigration Refugee Board in Canada. In your own words explain why: . . .

I am of the view that a Port of Entry officer can ask this question because how else can the officer determine that the person before him is claiming to be a "Convention refugee". The person has to give the officer the factual background upon which he or she claims to be a Convention refugee.

[24]            I am of the opinion that the decision of the Board that the applicant's fear of persecution in China was not well-founded, was a reasonable decision and thus, no reviewable error was made.

[25]            Issue 2

Did the Board err in excluding the applicant pursuant to the

operation of the definition of "Convention refugee" in the Act and Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6?

The Board found that the applicant was complicit in crimes against humanity and therefore, by way of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, supra, decided to exclude him from the definition of "Convention refugee" in subsection 2(1) of the Act. The Board based its decision on the fact that the applicant had worked as a security guard at a hospital that did a number of forced abortions on women pursuant to the Family Planning Committee. It also considered that he voluntarily went to work there because of higher pay, he worked between the two hospitals and that he knew forced abortions were being carried out. As well, the applicant opened security gates when Family Planning Committee personnel brought women clearly against their will for forced abortions.

[26]            The Board, in coming to a conclusion that the applicant should be excluded pursuant to Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, supra, was making a decision of mixed fact and law. Accordingly, I must determine whether that decision was reasonable. In my opinion, the decision was reasonable and the Board has not made a reviewable error. In coming to this conclusion, I considered the jurisprudence of this Court

(see Alza v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 187 (F.C.T.D.) and Ramirez, supra.

[27]            The application for judicial review is dismissed.

[28]            I have considered the submissions of counsel with respect to the certification of a serious question of general importance and I am not prepared to certify a question.

ORDER

[29]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                               "John A. O'Keefe"               

                                                                                               J.F.C.C.                     

Ottawa, Ontario

June 1, 2001