Date: 20021119
Docket: IMM-256-02
Neutral citation: 2002 FCT 1194
Ottawa, Ontario, Tuesday, this 19th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
YOU CHEN
QIANG CHEN
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the Refugee Division of the Immigration and Refugee Board (the "Board"), dated December 19, 2001, wherein the applicants were declared not to be Convention refugees as defined in section 2 of theImmigration Act, R.S.C. 1985, c. I-2.
[2] The applicants, citizens of the People's Republic of China, are both minors alleging a well-founded fear of persecution from the Public Security Bureau (the "PSB") because of their membership in a particular social group, the children of political dissidents. Their uncle in Canada was their designated representative (the "DR") and appeared as the principal witness at the hearing. Both of the applicants also testified.
STANDARD OF REVIEW WITH RESPECT TO CREDIBILITY FINDINGS
OF THE REFUGEE BOARD
[3] The only ground for this application is the credibility findings of the Board. The Board rejected the applicants' refugee claims because the evidence was not credible. The Board found that the two children were sent to Canada by their parents to live with their uncle for reasons "apart from persecution and exploitation". The Board listed seven reasons why it concluded the allegations of persecution were invented to further the refugee claims. I have carefully considered these reasons and the submissions from the parties, and conclude that the reasons are not patently unreasonable, perverse, capricious or without regard to the evidence.
[4] The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22, 000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor, the Federal Court of Appeal said:
Who is in a better position than that 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.
Before a credibility finding of the Board is set aside (and before leave is granted for an application with respect to a credibility finding), one of the following criteria must be established (or fairly arguable in the case of the leave application):
- 1. the Board did not provide valid reasons for finding that an applicant lacked credibility;
- 2. the inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
- 3. the decision was based on inferences that were not supported by the evidence; or,
- 4. the credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
See Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
[5] Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The Court should not substitute its opinion for that of the Board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
ANALYSIS WITH RESPECT TO SEVEN CREDIBILITY FINDINGS
[6] The applicants submit that the Board erred in making three important credibility findings. In particular, the applicants argue that the Board erred by:
- (e) drawing an adverse inference from the DR's failure to amend the applicants' Personal Information Forms ("PIFs") at the outset of the hearing to reflect his recent visit to the applicants' parents;
- (f) finding it not trustworthy that there was no indication of the parents' pro-democracy activities even though the DR had visited them in China and was in regular contact with them by telephone; and
(g) not finding it credible that the applicants would be detained because their parents are wanted based on a lack of documentary evidence.
The applicants argue that without these three credibility concerns, the cumulative credibility finding of the panel cannot stand. The applicants do not challenge the four other reasons recited by the CRDD for rejecting the credibility of the claimants.
1. Failure to amend Personal Information Form
[7] Firstly, the applicants submit that the Board erred by drawing an adverse inference from the DR's failure to amend the applicants' Personal Information Forms ("PIFs") at the outset of the hearing to reflect his recent visit to the applicants' parents. The applicants submitted their PIFs on June 22, 2001. In July 2001 the DR traveled to China and met with the applicants' parents. At the outset of the hearing, the DR failed to amend the applicants' PIFs to include information on his
recent trip to China. The Board drew a negative inference from the DR's failure to include a relevant fact in the applicants' PIF in accordance with Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (T.D.). The applicants submit it was perverse and capricious for the panel to draw a negative inference from the DR's failure and directs this Court's attention to its decision in Chahal v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1482 (T.D.).
[8] The case at bar can be distinguished from Chahal, wherein Mr. Justice Denault held that the Board erred by dismissing a refugee claim because an applicant had failed to amend his PIF to include events that occurred after it was submitted. The events in Chahal involved other people and were "only indirectly related to his refugee claim based on the persecution he claimed to have suffered." See Chahal at para. 14. In contrast, the DR's trip to China in July 2001 to visit the applicants' parents is directly related to the applicants' refugee claim. His visit to the parents is undoubtedly a relevant factor in assessing the genuineness of the parents' fear. As the applicants' claim is based on their parents' political activities, the genuineness of their parents' fear of persecution is an important factor in determining the genuineness of the applicants' claim
[9] Further, the Board concluded that the DR's testimony on why he did not include this information in the PIFs was evasive. At first he indicated that the applicants must have forgotten to tell the lawyer. When the panel member pointed out he was responsible for dealing with the lawyer, the applicant stated he had shown the lawyer his passport a couple days before to show he had been to China. He was unable to provide a satisfactory explanation for why this event was not included in the PIFs. Accordingly, the Court finds that the Board did not err by drawing a negative inference from the failure of the DR to include this information in the applicants' PIF.
2. No evidence of parent's pro-democracy activities
[10] Secondly, the applicants submit the Board erred in finding it not trustworthy that there was no indication of the parents' pro-democracy activities even though the DR had visited them in China and was in regular contact with them by telephone. It was unreasonable for the Board to find that the applicants' parents could divulge such information when the documentary evidence indicates that there is routine monitoring of telephone calls by Chinese officials. Further, the applicants claim that the extensive monitoring of visitors in China would not have allowed the parents to discuss their political activities with the DR.
[11] The Court does not find the Board made a patently unreasonable conclusion on this point. Pursuant to subsection 45(4) of the Immigration Act, the onus is on an applicant to prove their claim. The applicants produced no information on the details of their parents' involvement in the pro-democracy movement, a key part of their claim. It was reasonable for the Board to conclude that such information could be produced. If it was safe enough for the DR to meet with the applicants' parents while in China, it was safe enough to discuss their political activities. If the DR was monitored as extensively as the applicants claim, then it is reasonable to think that he would not have risked meeting with the applicants' parents at their hiding place.
3. No evidence children will be arrested
[12] Thirdly, it is submitted by the applicants that the Board erred in not finding it credible that the applicants would be detained because their parents are wanted based on a lack of documentary evidence. The Board stated that there was no evidence to support the applicants' claim the PSB arrested children in the Province of Fujian because of their parents' political activities. The Board
concluded that the evidence indicated that the only place in China where children were arrested was in Tibet, whose conditions could not be compared to those in Fujian. The applicant argues the panel erred because there is no evidence that children of wanted persons in Fujian province are not arrested. In addition, there is other evidence that relatives of dissidents are arrested in China.
[13] The Board acted reasonably in concluding the applicants would not be detained in China. The Board was not required to produce evidence showing that children of wanted persons in Fujian province are not arrested. As mentioned above, the onus to prove the claim is on the applicants. This Court declines to interfere with the Board's conclusion because the Board did not act in a patently unreasonable manner in evaluating the evidence.
4. Four other credibility findings
[14] In addition to finding that the Board acted reasonably in making these three important credibility findings, the Court has reviewed the four remaining credibility findings and concludes the applicants have not demonstrated that they are patently unreasonable.
[15] Counsel posed no question for certification.
ORDER
IT IS HEREBY ORDERED THAT:
This application for judicial review is denied. No question is certified.
(Signed) Michael A. Kelen _________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-256-02
STYLE OF CAUSE: YOU CHEN & QIANG CHEN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, NOVEMBER 7, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: TUESDAY, NOVEMBER 19, 2002
APPEARANCES BY: Mr. Hart A. Kaminker
For the Applicant
Ms. Patricia McPhee
For the Respondent
SOLICITORS OF RECORD: Mr. Hart A. Kaminder
Barrister & Solicitor
425 University Ave.
Suite 500
Toronto, Ontario
M5H 1K5
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021119
Docket: IMM-256-02
BETWEEN:
YOU CHEN & QIANG CHEN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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