Date: 20001124
Docket: IMM-380-00
BETWEEN:
HUA YANG
a.k.a. YANG HUA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board where in the CRDD determined the applicant not be a convention refugee within the meaning attributed to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 23rd of December, 1999.
[2] The applicant, apparently a citizen of the People's Republic of China from Fujian province, arrived off the coast of British Columbia, along with many others, aboard a derelect ship in the summer of 1999. She claimed Convention refugee status on the grounds of her alleged membership in a particular social group, namely, women who had been persecuted pursuant to the one-child policy of the People's Republic of China. She alleged that she had been forcibly aborted during the eighth month of her second pregnancy, that her second child had been born alive, but that she had been denied any opportunity for access to the child and that she had no idea whether the child was now alive or dead. In addition, the applicant advised Immigration officials that she felt obliged to leave the People's Republic of China for economic reasons.
[3] The CRDD found "... serious problems of credibility and plausibility with the claimant's story". It its reasons, the CRDD elaborated on the credibility and plausibility problems that it identified. It concluded in the following terms:
| "Given the lack of credible evidence on the issue of her identity, and the allegation that she was to be forcibly sterilized, the panel is guided by the documentary evidence which appears to suggest that today, in Fujian, the trend is to professional management of the family planning policy. In the words of one expert, forced sterilization is "increasingly improbable in the late 1990's. |
| The panel does not believe the claimant will face a reasonable chance of a forced sterilization if returned [to] the PRC. |
| Finally, the claimant did raise the issue of illegal exit. The documentation appears to suggest possible fines and minor detention. |
| ... |
| This is a matter of prosecution, not persecution." |
[4] The CRDD did not address a possible sur place basis to the applicant's claim for Convention refugee status that was drawn to its attention following the adjournment of the applicant's hearing before it but prior to finalization of its decision. Counsel for the applicant wrote to the Registrar of the CRDD on November 29, 1999 drawing attention to the fact that, following her hearing before the CRDD, the applicant was a material witness for the Crown at a preliminary inquiry into charges of criminal negligence causing bodily harm, apparently laid against persons alleged to have organized the mass human smuggling operations from Fujian province to the coast of British Columbia in the summer of 1999. The preliminary inquiry was apparently held in open court. Counsel wrote:
| This enhances the risk that she [the applicant] faces upon her return to the People's Republic of China. Such a factor should be taken into consideration by the CRDD as it weighs her claim for Refugee status. |
[5] At the close of the hearing of this application for judicial review, I advised counsel from the Bench that the application would be dismissed. The following is a brief summary of my reasons.
[6] Counsel for the applicant alleged six reviewable errors on the part of the CRDD. I will deal with them in the order in which they were presented.
[7] First, counsel urged that the CRDD breached applicable principles of fundamental and natural justice when it denied the applicant a full opportunity to present her case by refusing an adjournment requested during the course of her hearing.
[8] Sometime before the hearing into the applicant's claim to Convention refugee Status commenced, the applicant received from her parents in Fujian province a "Notice of Sterilization" requiring the applicant to attend for sterilization. The applicant failed to draw the Notice to the attention of her counsel until immediately in advance of the hearing before the CRDD. At that stage, the notice was not translated and the applicant was in possession before the CRDD of nothing that would verify the authenticity of the Notice. The CRDD refused the adjournment. I am satisfied that it was reasonably open to the CRDD to do so, given the facts that the onus at the hearing was on the applicant, that, for whatever reason, she failed to bring the Notice to the attention of her counsel in a timely manner with the result that, before the CRDD, through no fault on the part of the CRDD, the applicant was unable to satisfy the CRDD as to the authenticity of the Notice. The onus was on the applicant and her counsel to attend before the CRDD fully prepared to address the applicant's claim. For reasons known only to the applicant, the applicant attended before the CRDD unprepared to meet the onus on her.
[9] I am satisfied that my decision regarding an adjournment is entirely distinguishable on the facts from a decision of this Court allowing an application for judicial review on the basis of a failure to grant an adjournment in Mangat v. Canada (MCI)2.
[10] Secondly, counsel for the applicant urged that the CRDD erred in a reviewable manner giving no weight to the Notice of Sterilization. As indicated earlier in these reasons, for whatever reason, the applicant appeared at her hearing before the CRDD with the Notice of Sterilization untranslated and with no evidence to verify its authenticity. In the circumstances, I am satisfied that it was entirely open to the CRDD to acknowledge leave in the Notice was before it but to give it no weight.
[11] Thirdly, counsel urged that the CRDD erred in its application of the burden of proof. After carefully considering the submissions of counsel for the applicant in this regard, I am satisfied that this argument has no merit.
[12] Fourthly, counsel for the applicant urged that the CRDD breached the principles of natural justice by failing to disclose to the applicant documentary evidence which was relied upon by it in reaching its decision. It was not in dispute before me that the CRDD disclosed to applicant's counsel that it would have before it at the applicant's hearing, extensive documentary material relevant to the applicant's claim. In its reasons, the CRDD wrote, as noted earlier in these reasons:
| ... the panel is guided by the documentary evidence which appears to suggest that today, in Fujian, the trend is to professional management of the family planning policy. |
For this proposition the CRDD simply cited in general terms the packages of documentary evidence that were before it with no guidance that would allow the applicant to verify the CRDD's allegation without conducting a thorough view of the totality of the documentary evidence. While it would have been highly preferable for the CRDD to provide more specific references to the documentary evidence on which it was relying, I am satisfied that its failure to do so could not be regarded as a reviewable error.
[13] Fifthly, counsel urged that the CRDD erred in law in finding inconsistencies among notes made by Immigration officers of interviews conducted with the applicant, the applicant's Personal Information Form narrative and her testimony. Once again, I am satisfied that the reliance by the CRDD on what it termed to be inconsistencies was reasonably open to it and that, in fact, inconsistencies were identified.
[14] Finally, counsel urged that the CRDD erred in a reviewable manner in failing to acknowledge and analyse the alleged sur place claim arising from the applicant's testimony at the preliminary inquiry into charges related to human smuggling. As noted earlier in these reasons, counsel for the applicant simply drew the attention of the CRDD to the fact of the applicant's testimony in open court, in a manner that might put her at risk of retaliation if she were returned to the PRC in a letter which covered a letter from the Federal Ministry of Justice informing counsel of the applicant's testimony.
[15] I am prepared to take judicial notice of the fact that those alleged to have been responsible for the human smuggling to the coast of British Columbia in the summer of 1999 are unprincipled and potentially capable of acts of violent retribution. That being said, the onus was, once again, on the applicant and her counsel to put the issue properly before the CRDD.
[16] In Salinas v. Canada (Minister of Employment and Immigration)3, the Court concluded that where, following completion of a hearing before the CRDD but before a decision is rendered, new evidence relevant to the claim of an applicant for Convention refugee status comes to light, the CRDD is not functus officio but rather may consider the new evidence so long as it provides the parties an opportunity to be heard at a reconvened hearing. For whatever reason, the applicant and her counsel did not apply to the CRDD to re-open the hearing in the appropriate manner, that is to say, by motion in accordance with Rule 28 of the Convention Refugee Determination Division Rules4. The applicant and her counsel having failed to seek a re-opening in accordance with the Rules, I am satisfied that it was reasonably open to the CRDD to ignore any impact that the alleged sur place basis to the applicant's claim, arising as it did after the adjournment of the hearing before the CRDD, might have had.
[17] As earlier noted, I indicated at the close of the hearing of this application for judicial review that it would be dismissed. An order will go accordingly.
[18] Counsel for the applicant recommended certification of a question in the following form:
| "Is the Convention Refugee Determination Division complying with its disclosure obligations when in the course of reaching its decision it relies upon documentary evidence which has never been provided to the Applicant at any point in time, and which is not cross-referenced by the Convention Refugee Determination Division in its written Decision in such a manner that the Applicant or her counsel can locate the evidence for themselves independently and thereby appraise whether the conclusions and inferences being drawn by the panel from the evidence are reasonable?" |
[19] Counsel for the respondent urged against certification of the proposed question on the ground that it was neither a serious question of general importance or a question that would be determinative on an appeal of my decision in this matter. I am in agreement with the position of counsel for the respondent. No question will be certified.
(Sgd.) "Frederick E. Gibson"
Judge
Vancouver, British Columbia, Friday, November 24, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-380-00 |
| STYLE OF CAUSE: Hua Yang |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
DATE OF HEARING: November 20, 2000
| REASONS FOR ORDER OF GIBSON, J. |
| DATED: November 24, 2000 |
APPEARANCES:
| Mr. Larry Smeets For the Applicant |
| Mr. Mark Sheardown For the Respondent |
SOLICITORS OF RECORD:
Kowarsky & Company
Barristers and Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |