Date: 20040513
Docket: IMM-1210-03
Citation: 2004 FC 696
Toronto, Ontario, May 13th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
LI YING WANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a 41-year-old Chinese citizen originating from Qiqihaer in the province of Heilongjiang in northern China. She claimed Convention refugee status in Canada and alleged a well-founded fear of persecution at the hands of the Chinese authorities because of her religion, Tian Dao. She also claimed to be a person in need of protection pursuant to section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Refugee Protection Division of the Immigration and Refugee Board (RPD) denied the claim.
[2] The RPD determined that the applicant is not a Convention refugee. It found that the applicant lacked credibility and it did not believe, based on the facts presented, that she had left China because of a subjective fear of persecution. It also found that the applicant had not established an objective fear of persecution. Specifically, it concluded that the documentary evidence did not mention arrests or persecution of Tian Dao members notwithstanding that the religion is banned in China. There was also evidence indicating that Tian Dao no longer exists in northern China today.
[3] There is a single issue to be determined. The applicant argues that whether she was a Tian Dao believer in China is not the issue. The RPD, it is said, should have focussed on whether she was a Tian Dao believer at the time of her hearing. This is consistent with the forward-looking nature of the definition of a Convention refugee.
[4] I agree that the board is required to assess the claim at the time of the hearing. However, in this case, the RPD determined, based on the documentary evidence before it, that regardless of the applicant's credibility or her activities in Canada, there was no objective basis for her claim. Thus, whether the applicant joined Tian Dao while she was in Canada is irrelevant in the circumstances.
[5] I also agree that it is not open to the board to rely on the factual findings of this court from other cases to make factual findings in the matter before it. However, that is not what the board did. While it referred to a decision of the court, it specifically stated that it preferred and relied on the independent and reliable documentary evidence in arriving at its conclusion.
[6] Having reviewed the documentary evidence included in the record, I cannot find any evidence that refers to the persecution of Tian Dao members by Chinese authorities. The applicant points to excerpts from the documentary evidence that refer to Tian Dao. This evidence was specifically cited by the RPD and is not inconsistent with the board's conclusions.
[7] It was for the RPD to weigh the evidence and it did. The applicant's position constitutes disagreement with the board's assessment of credibility and the weight it assigned to the evidence, neither of which afford a basis for the court's intervention. The board's decision was reasonably open to it and there is no reason to set it aside. Counsel did not suggest a question for certification and none is appropriate.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is dismissed. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1210-03
STYLE OF CAUSE: LI YING WANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 12, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY:
Mr. Hart A. Kaminker
FOR THE APPLICANT
Mr. Marcel Larouche
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kranc & Associates
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040513
Docket: IMM-1210-03
BETWEEN:
LI YING WANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER