Date: 20020719
Docket: IMM-4380-01
Neutral citation: 2002 FCT 804
Ottawa, Ontario, Friday the 19th day of July 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
WEI CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") rejected Mr. Chen's claim to status as a Convention refugee because it found his claim to lack credibility. It was Mr. Chen's evidence before the CRDD that he feared persecution in China on the ground of his imputed political opinion, namely violation of China's Family Planning Policy.
[2] In finding Mr. Chen's claim to lack credibility, the CRDD relied upon the following:
i) Discrepancies in Mr. Chen's statements to a senior immigration officer upon Mr. Chen's arrival in Canada relating to the reasons why Mr. Chen was coming to Canada, why he could not return to China, and which country he claimed refugee status against. The CRDD rejected Mr. Chen's explanation that he misrepresented himself to the senior immigration officer on the advice of a smuggler.
ii) Two omissions in Mr. Chen's Personal Information Form ("PIF"), one of which was significant while the other was not.
iii) Inconsistencies in Mr. Chen's oral evidence relating to when his wife was taken for sterilization, when and where the Public Security Bureau ("PSB") officers looked for him, and where the PSB officers left a summons for Mr. Chen.
iv) The failure of the newspaper article which reported that Mr. Chen had escaped from the authorities and was wanted by the birth control office and the offices of justice to also mention that Mr. Chen was wanted for slandering the government and assaulting PSB officers.
v) Mr. Chen's failure to respond to the CRDD's question as to whether he could supply a hospital record for his wife's alleged sterilization, and the implausibility of Mr. Chen's testimony that his father had become nervous and destroyed the PSB summons.
[3] After carefully reviewing the transcript of proceedings before the CRDD and considering the submissions of counsel, I am satisfied that some of the CRDD's findings of credibility were well-founded on the evidence, but some were not. For example, Mr. Chen gave inconsistent answers when asked when his wife was taken for sterilization and when the PSB destroyed things in his store. His answers were not inconsistent as to where the PSB left the summons and when the PSB came to his home.
[4] Given the deference owed to the CRDD with respect to findings of credibility, and the fact that at least some of its findings were reasonably open to the CRDD, I would be hesitant to intervene in this decision, but for the existence of the newspaper article which the CRDD received in evidence with no negative comment about its provenance or authenticity.
[5] The article was brief, and was as follows:
Intensifying Family Planning Policies and Stopping the Policy Violator
Report from a journalist of this newspaper The Birth Control Committee and the Justice of the city used a person as a bad example who had breached birth control policies and hid in the city for many years and called on the people and the organization concerned to ensure the family planning work to be carried out well and developed well.
Chen, Wei a young person from You Ai Village, Jiang Tian Town, was warned by the department relating to marriage due to early marriage. Later he moved to another place of the city for fear that he might be punished due to giving a birth before the legal age. He used the store selling lubrication oil as an excuse of staying away from home and gave a birth to the second child. The child was left with the relative, who was not discovered until the census. The person concerned escaped when the authorities were looking for him. Now he is wanted by the birth control office and offices of justice.
By Li, Xiao
[6] The details reported in the article as to Mr. Chen's name, village, the birth of two children, his lubrication oil business, the second child being left with a relative but being discovered during the census, and Mr. Chen's escape were all consistent with Mr. Chen's PIF and oral testimony. The CRDD expressed itself satisfied that Mr. Chen had established his identity as Wei Chen.
[7] Notwithstanding, the CRDD stated that it assigned no weight to the newspaper article on the sole ground that the article failed to reference the alleged charges of slandering government policies and attacking PSB officers.
[8] However, the newspaper article was either genuine or falsified. The CRDD was, in my view, obliged to reach a conclusion that the document was falsified or otherwise discredited before it was open to the CRDD to give the article no evidentiary value.
[9] The sole basis for dismissing the article was the inference drawn by the CRDD that the article ought also to have dealt with the other offenses Mr. Chen testified he was wanted for. There was no support in the evidence for this inference and it was, therefore, unreasonable. There are a number of equally plausible explanations as to why no mention would be made of other, more serious, offenses in a newspaper article originating in an authoritarian state. The evidence before the CRDD was to the effect that the Chinese government maintains restrictions on the press. In one specific incident in evidence before the CRDD, the government closed a newspaper for failing to heed warnings that it "unanimously stand along the party's political line", but instead reported without permission rioting "thus, bringing unhealthy social influences."
[10] Even if Mr. Chen's oral testimony was incredible and he embellished his claim by reference to slandering government policies and attacking PSB officers, the newspaper article corroborated Mr. Chen's evidence that he was wanted by the authorities for violation of China's Family Planning Policy. It is authoritively settled by the Federal Court of Appeal that the fact a claimant is not a credible witness does not prevent the claimant from being found to be a Convention refugee if the claimant's real or imputed political opinions and activities are likely to lead to arrest and punishment. See: Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R.168 (F.C.A.).
[11] As a result of the failure of the CRDD to properly consider the probative value of the newspaper article and its relevance to Mr. Chen's imputed political opinion the application for judicial review is allowed.
[12] Counsel posed no question for certification and no question is certified.
ORDER
[13] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated August 2, 2001 that the applicant is not a Convention refugee is hereby set aside. The matter is remitted for redetermination by a differently constituted panel of the CRDD.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4380-01
STYLE OF CAUSE: WEI CHEN v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 18, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: July 19, 2002
APPEARANCES:
Mr. Adam ShaperoFOR THE APPLICANT
Ms. Pamela LarmondinFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Ms. Carla SturdyFOR THE APPLICANT
Lewis & Associates
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada