PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP ANDIMMIGRATION
REASONS FOR ORDER AND ORDER
[1] For findings indicating omissions, contradictions and implausibilities to be returned for redetermination, an applicant must show that the findings are patently unreasonable due to unsupported evidence or vitiation by failure to consider proper factors.
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JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[1] (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on December 4, 2003, dismissed the Applicant's claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
BACKGROUND
[3] The Applicant, a Chinese citizen, Mr. He Xin Li, alleges a well-founded fear of persecution based on his religious beliefs.
[4] Subsequent to having been bypassed for a promotion at work, Mr. Li felt hopeless. His mother, who had recently converted to Christianity, asked him to attend her underground Christian church on July 19, 2000. Mr. Li was baptized on April 22, 2001. On March 25, 2002, the Public Security Bureau raided the underground Christian church. Mr. Li managed to escape but his mother was arrested and the Public Security Bureau was looking for him. Mr. Li went into hiding until arrangements could be made for him to leave the country. He arrived in Canada on July 8, 2002.
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DECISION UNDER REVIEW
[5] The Board found that the inconsistencies between Mr. Li's Personal Information Form (PIF), his port of entry form and his oral testimony detracted from his credibility; the Board found that the major incident which allegedly caused the grave problems of the Applicant's family and that made Mr. Li flee China - the raid on his underground church - was not recorded in the port of entry form. In addition, the Board noted the following inconsistencies, amongst others: Mr. Li's PIF failed to indicate the exact date the alleged raid took place; Mr. Li stated that after he escaped the raid, he went to a friend's house to hide while, in his PIF, he indicated that he went to a relative's home - Mr. Li subsequently explained that he went to his friend's home for a cup of tea and then called his relative for permission to hide in his home. Furthermore, Mr. Li did not indicate the severe measures which were taken against his own family.
ISSUES
[6] Did the Board make a reviewable error in finding that subsection 29(4) of the Refugee Protection Division Rules[2] requires PIF amendments to be made at least 20 days before the hearing?
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ANALYSIS
[7] Mr. Li has asked the Court to reevaluate two elements of credibility which had been weighed by the Board; one, that Mr. Li's PIF did not indicate the exact date when the raid on his church had occurred and two, that Mr. Li stopped for a cup of tea further to his escape from the raid. The Board took his act to mean he had stopped to socialize and found it to be implausible conduct for a person really trying to escape persecution. In the absence of evidence or arguments warranting the intervention of the Court in regard to factual findings, the Court will not disturb the jurisdiction of a trier of fact, specialized in the subject.
[8]Mr. Li argued that the Board was not entitled to draw a negative inference from his failure to make amendments to his PIF at the commencement of the hearing since the Board took the position at the hearing and in its reasons that such amendments must be made, according to subsection 29(4) of the Rules, 20 days prior to the hearing. Subsections 29(1) and 29(4) of the Rules stipulate the following:
29. (1) If a party wants to use a document at a hearing, the party must provide one copy to any other party and two copies to the Division, unless these Rules require a different number of copies. ...(4) Documents provided under this rule must be received by the Division or a party, as the case may be, no later than (a) 20 days before the hearing; or (b) five days before the hearing if the document is provided to respond to another document provided by a party or the Division. |
29. (1) Pour utiliser un document à l'audience, la partie en transmet une copie à l'autre partie, le cas échéant, et deux copies à la Section, sauf si les présentes règles exigent un nombre différent de copies. [...](4) Tout document transmis selon la présente règle doit être reçu par son destinataire au plus tard : a) soit vingt jours avant l'audience; b) soit, dans le cas où il s'agit d'un document transmis en réponse à un document reçu de l'autre partie ou de la Section, cinq jours avant l'audience. |
[9] The Court agrees with Mr. Li that subsection 29(4) of the Rules does not apply to PIFs as this Rule relates to disclosure documents. Amendments to PIF provisions are dealt with in subsection 6(4) of the Rules, which provide no direction about the timing for such amendments:
| 6. (4) If a claimant wants to change any information given in the Personal Information Form, the claimant must provide to the Division three copies of each page of the form to which changes have been made. The claimant must sign and date each new page and underline the change made. This subsection does not apply to a change in the choice of language for the proceedings or the language of interpretation. | 6. (4) Pour modifier un renseignement fourni sur le formulaire sur les renseignements personnels, le demandeur d'asile transmet à la Section trois copies de toute page du formulaire qui doit être modifiée. Il date et signe chaque page ainsi modifiée et souligne la modification. Le présent paragraphe ne s'applique pas dans le cas d'une modification du choix de la langue des procédures ou de celle de l'interprétation. |
[10] The Court finds that the Board did err in invoking subsection 29(4) of the Rules rather than subsection 6(4) of the Rules. Nevertheless, the record shows that Mr. Li did present requests for amendments at the commencement of the hearing and that these amendments were accepted. Mr. Li did not attempt to submit amendments in respect of elements of the narrative which the Board subsequently found to be undermining his credibility. Consequently, Mr. Li was not prevented from presenting any element he wished to submit for the Board's consideration. On this basis, the application for judicial review therefore cannot succeed.
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[11] It is recognized that the Board must ensure that it is guided by section 6 of the Rules and thereby that it accepts requested amendments to the PIF even if such should occur at the outset of the hearing.
[12] Mr. Li raised another issue on which the Court will only briefly comment, as it is not determinative in this case. Without giving any reasons as to why Mr. Li could not be believed to be a true Christian, the Board stated in the penultimate paragraph of its reasons that "the claimant learned of Christianity in Canada, not for the purpose of converting or practicing a religion, but in order to manufacture his refugee claim." This is an unsubstantiated statement and therefore should not have been made. The Board, nevertheless, gave reasons by which to reject the claim on the basis that the key or central incident of persecution alleged by Mr. Li was not credible, therefore the gratuitous finding about the sincerity of Mr. Li's faith, itself, is no sufficient to warrant that this application for judicial review be allowed.
CONCLUSION
[13] The Court answers the question in the negative, subject to the above comments. Consequently, the application for judicial review is dismissed.
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ORDER
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No question be certified
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-103-04
STYLE OF CAUSE: HE XIN LI
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Ms. Shelley Levine FOR THE APPLICANT
Mr. Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
LEVINE & ASSOCIATES FOR THE APPLICANT
Toronto, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General