Date: 20040917
Docket: IMM-5580-03
Ottawa, Ontario, this 17th day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
CHUAN MIN ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board, ("Board") dated June 16, 2003 ("Decision") that determined that Chuan Min Zhang ("Applicant") was not a Convention refugee or person in need of protection.
BACKGROUND
[2] The Applicant is a citizen of China. He claims Convention refugee status on the basis of his religion.
[3] He says that he has participated in an underground Christian church since 1997 and was baptized at Christmas in 1998. He also says that he has sometimes provided a venue for church services.
[4] On November 26, 2000 the Chinese Public Security Bureau ("PSB") discovered the Applicant's underground church. The Applicant was fortunate enough to escape. Some fellow members, however, were arrested.
[5] The Applicant went into hiding and heard that the PSB was looking for him. He says he made arrangements through a smuggler to flee China.
[6] The Applicant made a claim for refugee protection in Canada. His hearing before the Board took place on October 31, 2002, February 5, 2003 and April 16, 2003.
DECISION UNDER REVIEW
[7] The Board found the Applicant not to be credible and made the following findings:
(a) The Applicant alleged that he was a member of an underground Christian church in China since 1997, and that he was baptized during Christmas 1998. He stated that his home was sometimes used as a venue for services and that he promoted the Gospel among friends whom he could trust. He alleged that the Public Security Bureau (PSB) discovered his underground church on November 26, 2000 and that he was the lookout on that day. Since then, he claimed, the PSB has been looking for him and should he return to China he would face the same arrest and jail as has befallen fellow believers who were arrested as a result of the raid;
(b) The panel found the Applicant was hesitant and evasive in answering questions, some of which had to be repeated. He claimed to have been attending a Christian underground church since 1997 but did not know which forbidden fruit Adam and Eve were supposed to have eaten in the Garden of Eden;
(c) The Applicant arrived in Canada on July 6, 2001, made his refugee claim on July 15, 2001, but the reference letter from the church that he tendered in evidence stated that he only started attending services there on November 25, 2001. He claimed that he had attended another church in the interim but was unable to produce any documentation from that church;
(d) The Applicant testified that his spouse was not a Christian and that he had never tried to convert his daughter, born March 23, 1991, to Christianity as she was too young. Yet he claimed that services were held at his home;
(e) The Refugee Protection Division (RPD) is a specialized tribunal that hears thousands of similar claims from China. It would be most unusual for an underground church, concerned about being discovered by the authorities, to hold services in a home where none of the occupants except the male spouse was a believer and where there were young children likely to tell tales at school. Furthermore, the Applicant stated that services usually lasted about a half-hour, an unusually short time for a service in the experience of this tribunal;
(f) The Applicant's overall credibility as a genuine believer was not assisted by his seeming indifference to learning more about his professed faith. He stated that he owned a Bible in China and "when I was free and had nothing to do I took it out and read it". At one point he claimed that his sporadic attack of inspired devotion occurred once or twice a week, but then changed that to state that he read one paragraph each day;
(g) When pressed for further details regarding his alleged Bible reading the Applicant responded by stating that he had read the first chapter of Genesis and the second chapter of the Gospel according to Matthew, but was quite unable to recall anything in particular from these readings. "Every description was unusual" was his all-encompassing response when pressed to recall any unusual or memorable events in any of his alleged Bible readings;
(h) The Applicant's recollection of the alleged raid by the PSB was equally unconvincing. He thought at first that it had occurred on the first Sunday of November 2000, but then varied that to November 26, 2000. He also stated that the first Sunday in November 2000 was the last occasion on which he had taken communion, but then changed his testimony to indicate a more recent date;
(i) The Applicant's recollection of how he became separated from his old job was equally unconvincing. At first, he stated that his last day of work was November 25, 2000, and that he had resigned his position. He then changed his testimony, stating that he was fired in January 2000. He stated that the factory where he worked had notified his spouse of his firing and that dismissal notice was sent to his home. However, in spite of this, and the tendering of other documents mailed to him in Canada by his spouse, the alleged dismissal letter was not among them. He then changed his testimony to state that the dismissal letter was, in fact, kept by his former employer. His spouse, he stated, was still employed at the same factory where he had worked before going into hiding;
(j) The Applicant also stated that the PSB had been looking for him since November 2000. Yet he required an exit permit to leave China and had no trouble going through a security check at the airport at his departure in July 2001;
(k) The panel found there simply were too many inconsistencies and implausibilities in the Applicant's evasive testimony to satisfy the panel that he was a genuine believer or that events he testified about actually occurred.
Reasons, at pp. 7-10
[8] At the conclusion of the hearing on October 21, 2002 the Refugee Protection Officer pointed out that the Applicant's name had appeared in an article in a local Chinese newspaper that identified him as having, with others, disappeared from the delegation he had come to Canada with. The article asked for information on the whereabouts of these people. The Presiding Member of the Board asked the Refugee Protection Officer to try and obtain a copy of the article.
[9] The Applicant was able to locate a copy of this article just a few days before the resumption of his hearing on April 16, 2003. The Applicant had the article translated and attempted to have it entered into evidence on April 16, 2003. The Presiding Member refused to enter the article on the grounds that it was late and, in any event, had no relevance to the claim. The Applicant says that the article shows he would be arrested on his return to China because it was known he had left China under false pretenses and because he had left the business delegation he came to Canada with.
ISSUES
[10] The Applicant raises the following issue:
Did the Board err in not entering into evidence an article, concerning the Applicant, from a local Chinese newspaper?
ARGUMENTS
Applicant
[11] The Applicant claims that the Board refused to enter an article presented by the Applicant at the last sitting of the hearing into his claim for refugee protection.
[12] He says that the article, published in a local Chinese newspaper stated that the Applicant, among others, had separated from the delegation they had left China with. The article requested information concerning the whereabouts of the Applicant and the other delegates who had disappeared.
[13] The Applicant says that the Board refused to enter the article because it was submitted late and, in any event, had no relevance to the Applicant's identity as a member of an underground church in China.
[14] The Applicant submits that the Board erred in not entering the article into evidence and considering the article in its determination as to whether the Applicant would be at risk of cruel and unusual treatment on his return to China.
[15] The Applicant argues that the Board ignored evidence that the Applicant was only able to locate the article a few days before the April 16, 2003 resumption and so could not have filed it earlier. On October 31, 2002 the Presiding Member had directed the Refugee Protection Officer to try and obtain a copy of the article, and so must have felt it had some importance or relevance.
[16] The Applicant says that the existence of the article was relevant to his claim. The publishing of the article caused the Applicant to fear incarceration on his return to China because he had separated from the delegation he had come from China with and feared repercussions because he did not exit China for the purpose he had originally stated.
[17] The article gave rise to fear over and above that which had originally caused him to flee China. The Board should have considered the Applicant's fear of his name being published in the article, and whether it put him at risk for a Convention ground, or at risk of torture or cruel and unusual treatment or punishment. This was especially so given that the documentary evidence which indicated that the Applicant could face imprisonment for obtaining exit permission under false pretenses.
[18] The documentary evidence contained the following information:
Additional information regarding the treatment of 90 persons repatriated to China from Canada in May 2000 is scarce among the sources consulted by the Research Directorate. According to a 28 July 2000 report in the Ottawa Citizen, Victor Wong of the Vancouver Association of Chinese Canadians stated that four minors returned in May 2000 had been released, but that 86 adults remained in detention, citing the families of the returnees and of others still in detention in Canada, as the source of this information.
Most are then given a fine of between 10,000 and 20,000 Yuan [$1,800 to $3,600 CDN]. Those that pay the fine are released immediately, Chin said. Those that cannot pay are sent to "re-education through labour" for up to a year at a massive prison in the city of Mawei just outside Fuzhou.
Exhibit "E" to the Affidavit of the Applicant, Application Record, pages 64 & 65
[19] The Applicant says that imprisonment in China does amount to cruel and unusual treatment and punishment. The documentary evidence revealed the following:
Conditions in penal institutions for both political prisoners and common criminals generally are harsh and frequently degrading. Forced labour is common. Conditions in administrative detention facilities (including reeducation-through-labour camps and custody and repatriation centers) are similar to those in prisons. Prisoners and detainees often are kept in overcrowded conditions with poor sanitation, and their food often is inadequate and of poor quality Guards in custody and repatriation centers reportedly rely on "cell bosses" to maintain order; the individuals frequently beat other detainees and sometimes steal their possessions.
...
Forced labour in prisons and reeducation-through-labour camps is common. At one camp in the western part of the country, inmates are forced to work up to 16 hours per day breaking rocks or making bricks, according to credible reports. There were several deaths from overwork, poor medical care, and beatings by guards in 2000.
Exhibit "F" to the Affidavit of the Applicant, Application Record, page 78
[20] The Applicant says that the documentary evidence supported his contention that he would face cruel and unusual treatment in China because of his leaving the country under false pretenses. Further, the article, which the Board refused to enter into evidence, revealed that the Chinese authorities may very well be interested in the Applicant because of his exit from China and subsequent disappearance from the business delegation.
[21] The Applicant says that the article was relevant to the Applicant's claim for protection and the refusal of the Board to enter it into evidence and to consider it constituted a reviewable error that justifies setting aside the Decision.
Respondent
[22] The Respondent submits that the Board did not commit any reviewable error in determining that the Applicant was not a Convention refugee.
[23] In addition, the Applicant has failed to demonstrate the Board erred in not entering into evidence an article from a local Chinese newspaper.
Newspaper Article
[24] The Respondent says that the Board was entitled to reject the article as it had no bearing on the Applicant's claim to being a member of an underground Christian church. The article only indicates the Applicant is being sought. There is no indication in the article that it is the PSB that is looking for him and five others. There is no link to his alleged reason for seeking refugee protection and the article. Consequently, the Board was entitled to reject the article because it was irrelevant.
[25] It was also open to the Board not to allow the article into evidence because there was no indication of authenticity.
[26] The Applicant now argues that the article demonstrates he has another fear of returning to China. First, this new fear is not a basis to claim Convention refugee status. The fact that a claimant might be fined or imprisoned for breaking the law is not a basis for refugee protection.
[27] Second, there is no indication the Applicant will be imprisoned. The Applicant relies on documentary evidence to support his allegation that he is certain to face imprisonment and torture. However, that same evidence indicates that there are no reports of severe sanctions received by returnees to China.
[28] Further, even if the Applicant may be imprisoned for breaking the law, the same documentary evidence he has referred to indicates that the maximum sentence for deportees is one year; most receiving only 15 days. Further evidence indicates that the normal penalty for a first offence is 2 days detention. If a fine is paid, the returnee is immediately released. The Applicant has not indicated he is unable to pay the fine.
[29] The Applicant argues that, if detained, he is certain to face harsh treatment. He relies on documentary evidence to support this allegation. However, there is no indication the Applicant would be in a prison where human rights abuses occur. The documentary evidence indicates immigration detention centres are not harsh:
Each cell has it's own bathroom, television, and window. From what we could see most of the inmates were sleeping, watching television or playing cards. A larger room is used as a cafeteria and "re-education" room. The whole detention centre is very clean and the living conditions did not appear to be particularly harsh, almost comparable to the equivalent in Canada.
Record, at page 64
[30] To accept the Applicant's argument on this point would mean that any claimant from China could qualify as a Convention refugee on the basis of a well-founded fear of being sent to prison for illegally leaving the country. This proposition has been rejected by this Court. A link must be made between general country conditions and a specific likelihood of harm upon being returned. Where a claimant's oral testimony is the only evidence linking the claimant to the alleged persecution, if the claimant is not found to be credible, there is no credible and trustworthy evidence to support the claim (Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); Rahaman v. Canada (Minister of Citizenship and Immigration) (2002), 19 Imm. L.R. (3d) 127(F.C.A.), paras. 18 & 29; Waheed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 329, para. 43).
[31] For these reasons, the Respondent says the Board was entitled to reject the article as irrelevant to the basis of the Applicant's claim.
ANALYSIS
[32] The Board rejected the Applicant's claim because it did not believe his narrative: "There are simply too many inconsistencies and implausibilities in his evasive testimony to satisfy the panel that he is a genuine believer or that events he testified about actually occurred." The Applicant does not dispute this general negative credibility finding. But he now says that he was able to locate an article just a few days before the resumption of his hearing on April 16, 2003. He says this article created a fear in him that he would be arrested if returned to China and subjected to a risk of torture or cruel and unusual treatment or punishment. He had the article translated and attempted to have it entered into evidence on April 16, 2003. But the Board refused to admit the article on the ground that it was late and was, in any event, of dubious probative value to the Applicant's claim.
[33] The article in question appeared in a local Chinese Newspaper on August 7, 2001. In translation, it says that the Applicant was one of six persons who arrived in Canada as part of a delegation from Mainland China and who absconded while in Canada. A reward of $1,000.00 is offered for anyone who will report the whereabouts of any one of the named absconders.
[34] The basis for the Applicant's refugee claim was a fear of persecution because of his religious affiliations and activities and that he was in need of protection from the Chinese authorities because of his religious commitment. The Board rejected this claim in its entirety: "Accordingly, his claim for refugee protection on all grounds advanced is rejected."
[35] The article had no connection to the basis of his refugee claim, but the Applicant says the Board should have admitted and considered it because it was relevant to his claim for protection against cruel and unusual treatment or punishment at the hands of the Chinese authorities.
[36] Counsel for the Applicant referred to the newspaper article as a "Wanted" poster and made the following remarks when he asked that it be admitted into the record:
The six individuals whose photographs appear here, one of them is Mr. Zhang, along with the details, passport number and age of each of the individuals, including Mr. Zhang. This proves that someone - - that he did give his passport to someone; otherwise, how could the number appear, and it also goes to prove the heightened risk that my client faces now if he were to return to China, because it seems highly likely that this ad, "Wanted" poster would have come to the attention of Chinese government officials.
Record, p. 394
[37] There was no evidence as to who had put the article in the newspaper and the Board asked the Applicant's counsel why it had not been submitted within the usual 20-day period. Counsel's reply was as follows:
It was only provided to us on April 13th, three days ago. The claimant got them, he said, on the 12th and we got it on the 13th. It was submitted on the 14th.
Record, p. 396
[38] The Board's reasons for rejecting the article and the translation are important for this Application:
While both documents are clearly not submitted within the time limits set out in the rules, no satisfactory explanation has been provided as to why these documents would not have been procured long ago. This matter started on October 31st [2002],
...
It was adjourned February 5, 2003. It was further adjourned to today. So, there has been ample opportunity for the claimant and counsel to procure whatever documents they required for this hearing, and to have them translated and forwarded to the Refugee Protection Division in accordance with the rules. Their probative value is questionable and, accordingly, I am not persuaded that there is adequate reason why the panel should not enforce the rules strictly to this case. The documents are therefore excluded.
Record, pp. 396-397
[39] On the basis of the explanation offered by Applicant's counsel at the hearing, there was no real justification offered that would require or justify the Board exercising its power under Rule 20 to allow the article and the translation into evidence.
[40] The Board was also correct that the probative value of the newspaper article was questionable. The fact is that, if the Applicant was an absconding delegate, as the article seems to suggest, then this amounts to a fundamental contradiction of the Applicant's claim to be a refugee in need of protection because of his religious affiliations. In other words, even if the article can be believed, it confirms the Board's negative credibility finding concerning the Applicant's narrative. Otherwise it is merely irrelevant to the Applicant's claim for refugee status and the reasons he advanced for needing protection.
[41] In effect, the reasons given by the Applicant for introducing the newspaper article into evidence amount to an entirely new claim. It is a claim that has no nexus to a refugee ground (absconding delegate) and no connection to the basis upon which the Applicant said he was in need of protection if returned to China.
[42] Applicant's counsel sought to introduce the article into evidence on the grounds that "it also goes to prove the heightened risk that my client faces if he were to return to China..." But the issues before the Board concerned the risks he faced as a member of an underground Christian church. The Board had not been asked to consider any risks he might face as an absconding delegate and the Applicant did not seek to amend his claim to place the alternative ground before the Board. The reasons for this are not stated in the record but appear to be obvious: the two claims are entirely incompatible. If the Applicant came to Canada as an absconding delegate he could hardly have been smuggled into Canada as a refugee member of an underground Christian church.
[43] The connections that the Applicant now seeks to make between the newspaper article and his fear of the authorities are tenuous at best and, in any event, were not connections he placed before the Board. He stuck with his refugee claim (which the Board rejected outright "on all of the grounds advanced"). If the Applicant had wanted the Board to consider whether he needed protection as an absconding delegate, he should have placed the issue before the Board and made the necessary connections to any evidence of risk. He did not do this.
[44] The Board was correct to reject the newspaper article. I see no grounds for interfering with the Decision.
ORDER
THIS COURT ORDERS THAT:
1. The Application is dismissed.
2. There is no question for certification.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5580-03
STYLE OF CAUSE: CHUAN MIN ZHANG
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: 20-JUL-2004
REASONS FOR ORDER The Honourable Mr. Justice Russell
and ORDER:
APPEARANCES: MR.HART KAMINKER
FOR APPLICANT
MS.DEBORAH DRUKARSH
FOR RESPONDENT
SOLICITORS OF RECORD:
KRANC & ASSOCIATES
BARRISTERS & SOLICITORS
TORONTO, ONTARIO
FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
DEPARTMENT OF JUSTICE
ONTARIO REGIONAL OFFICE
130 KING STREET, BOX 36
TORONTO, ONTARIO M5X LK6
FOR RESPONDENT