Date: 20020614
Docket: IMM-1966-01
Neutral citation: 2002 FCT 678
Ottawa, Ontario, this 14th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SONG JUN REN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board"), dated March 28, 2001, wherein the Board determined that the applicant is not a Convention refugee.
Background
[2] The applicant, Song Jun Ren, is a citizen of China. The applicant's claim to Convention refugee status is based on persecution in China related to his Tian Dao religion.
[3] The applicant's claim is as follows. In April 1997, the applicant was initiated into the Tian Dao religion. He introduced others to the religion. Starting in 1998, the applicant was responsible for accompanying the Master. In March 1999, the applicant and the Master travelled in a taxi en route to the gathering place. Their taxi was in an automobile accident, which delayed their arrival at the gathering place. The applicant received a call informing him that the gathering place had been raided by the PSB. On March 5, 1999, the PSB arrested members of his gathering place and visited the applicant's wife and searched his home. The applicant claims he fled the country because he knew his life was in danger.
[4] After arriving in Canada, the applicant claims to have practised Tian Dao at a temple in Toronto. Photographs of the applicant at the Tian Dao temple were presented to the Board.
[5] In the decision dated March 28, 2001, the Board wrote:
. . . he was informed that the PSB returned to his house and showed a warrant for his arrest. He was accused of being part of illegal religious activities, for not complying with the government's ban, for helping the Master to escape and for having contacts with overseas groups. He knew that his life was in danger so he decided to flee the country.
In light of the claimant's PIF, he was asked to provide information regarding how he obtained his passport and the CVV. The claimant stated that because of his problems, he asked a smuggler to obtain the passport. It was pointed out to the claimant that his passport was genuine and that it contained his photograph and signature. The claimant conceded that his passport bears his photo and signature. The claimant also stated that in September, the smuggler gave him a form to fill out in order to obtain his visa at the Canadian Embassy.
The claimant was asked whether his passport contained an exit visa provided by the PSB in order to leave the country. The claimant answered in the affirmative and went on to state that prior to boarding the plane, the smuggler introduced him to the head of the delegation that was travelling to Canada. He added that he showed his passport with the exit visa to the officers, passed the security and boarded the plane.
The panel is not satisfied with the veracity of the scenario presented by the claimant. Firstly, the panel is well aware that in order to travel abroad, it must be authorized by the PSB. This finding is supported by the documentary evidence . . .
In light of the above, the panel is of the opinion that is [sic] implausible that the claimant would have obtained the exit visa and permits without detection from the authorities. The panel took into consideration that the same organization that allegedly persecuted him, has the authority to provide him with a passport and the respective permits.
The panel has also taken into consideration that the claimant stated he has a warrant for his arrest. Even in the assumed scenario that he was able to obtain the exit visas and the permit undetected, the panel finds it improbable that he would have been able to go through the security at the airport, when he was leaving the country. To suggest the contrary strains credulity well past any reasonable point.
. . .
In conclusion, the panel cannot accept that the claimant was able to obtain his exit permit, his visa and a second exit permit, issued and allowed by the same authorities that allegedly were persecuting him
Because the above credibility concerns are crucial to the claim, the panel finds that they affect the claimant's evidence generally. Consequently, the panel does not believe that the claimant experienced the alleged events that he described in his PIF and that he is wanted by the Chinese authorities for practicing the Tian Dao religion.
[6] The Board determined that the applicant was not a Convention refugee. This is the judicial review of the Board's decision.
Applicant's Submissions
[7] The applicant submits that the Board failed to make a finding regarding whether the applicant was a Tian Dao believer in clear and unmistakable terms.
[8] The applicant submits that Board based their decision solely on the basis that the applicant was able to obtain a passport and exit permits from the Chinese authorities. The applicant submits that this only addresses the issue of whether the applicant had been persecuted but does not address the issue of future persecution.
[9] The applicant submits that the Board does not make any finding regarding whether the applicant is a Tian Dao believer and practitioner at the time of the Board hearing. The applicant submits that, notwithstanding the negative credibility finding, the Board should have considered whether the applicant might face persecution if he returned to China.
[10] The applicant submits that given the forward looking nature of the Convention refugee definition, it mattered not whether the applicant was a Tian Dao believer in the past, only whether he was a Tian Dao believer and practitioner in the present and future. The applicant submits that by failing to make a present finding concerning the applicant's identity as a Tian Dao believer, the Board erred in law.
[11] The applicant submits that the documentary evidence clearly stated that Tian Dao is a banned practice in China and those who are caught practicing banned religions are dealt with harshly.
Respondent's Submissions
[12] The respondent submits that the Board carefully considered the totality of the evidence and was not satisfied with the credibility of the applicant's narrative. The respondent submits that the Board reasonably determined that the applicant did not establish a well-founded fear of persecution.
[13] The respondent submits that the Board specified in clear and unmistakable terms why it found the applicant's evidence not credible.
[14] The respondent submits that it was reasonably open to the Board to find it implausible that the applicant obtained an exit visa, passport and permit without detection or difficulties from the same authorities that were allegedly persecuting him.
[15] The respondent submits that the Board is entitled to make a negative credibility finding on the basis of contradictions and inconsistencies in the claimant's story and between the claimant's story and other evidence before the Board.
[16] The respondent submits that since the Board doubted the veracity of the applicant's claim, there was no need to engage in a prospective analysis of whether the applicant might face persecution in the future. The respondent submits that the Board found that the authorities were not interested in him. The respondent submits that this was a reasonable conclusion based on the evidence before the Board.
[17] Issue
Did the Board make a reviewable error by failing to address whether the applicant was presently a follower of the Tian Dao religion and whether this was a basis that he would face persecution in China?
Relevant Statutory Provisions and Regulations
[18] The Immigration Act, R.S.C. 1985, c. I-2, as amended, defines a Convention refugee as follows:
|
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[19] Did the Board make a reviewable error by failing to address whether the applicant was presently a follower of the Tian Dao religion and whether this was a basis that he would face persecution in China?
The recent case of Sun v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 637 (QL); 2002 FCT 493 involves a similar situation to the present case. Paragraphs 27 and 29 of that decision read as follows:
In order to assess whether or not a person has a well-founded fear of persecution because of the person's membership in a particular group which is the subject of persecution itself, it is necessary, except as noted later in this decision, that the Board determine whether or not the person is a member of that group . . .
In this particular case, I do not believe that the absence of a clear finding of membership in the Tian Dao religion by the Board matters in the outcome of the case. The evidence that the followers of the Tian Dao religion were being persecuted comes from the testimony of the applicant which the Board found to not be credible. I have reviewed the documentary evidence and it states clearly that followers of the Falun Gong religion are presently being persecuted. Any reference to the followers of the Tian Dao group being persecuted is not current. There simply is not sufficient documentary evidence to establish that the followers of the Tian Dao religion are being persecuted in China. As well, due to the credibility finding of the Board, which I will refer to later, the applicant's own evidence is of no assistance to establish persecution of the religious group to which she claims to belong. Thus, if it has not been established that the Tian Dao religious group is being persecuted by China, it matters not whether or not the applicant is a member of the Tian Dao religion. Even if the Board erred in failing to decide whether the applicant was a follower of the Tian Dao religion, it does not affect the outcome.
[20] The only way the applicant's membership in the Tian Dao religion comes into play is if the Board believed his version of events or if members of the Tian Dao religion were being persecuted in China.
[21] The Board did not find the applicant's version of events which led to him leaving China to be credible. The case law of this Court is clear that a tribunal's ruling on the credibility of a witness should not be overturned if the Board gives its reasons for finding the applicant not to be credible in clear and unmistakable terms (see Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)). The Board in this case gave specific examples of problems with the applicant's evidence. The Board pointed out that in order for the applicant to leave China, he had to obtain exit visas and permits from the PSB which is the same body that allegedly wanted to arrest and persecute him. The applicant stated that there was a warrant for his arrest, yet he was able to obtain the exit visas, permits and a passport in his name and go through security at the airport without being detected. The Board found this would strain credulity past any reasonable point. I am not prepared to interfere with the Board's finding on credibility.
[22] The only argument left for the applicant is that the Board erred by not making a finding on whether he was a member of the Tian Dao religion. If the applicant is correct, this proposition only works for the applicant if the evidence shows that members of the Tian Dao religious group are being persecuted in China.
[23] Since the Board did not believe the applicant, he is left only with the documentary evidence. In my view, the documentary evidence does not establish that the members of the Tian Dao group are being persecuted in China. The documentary evidence shows that: the religion was banned in China after World War II when it was described by a different name and that Protestant Church leaders have been jailed. There is simply no documentary evidence to show that the Tian Dao are being persecuted in China.
[24] It follows from the above that the applicant cannot succeed as there are not objective grounds to support his fear of persecution in China as his testimony was found not to be credible and the documentary evidence does not establish this persecution.
[25] It is not necessary for me to deal with the issue of the applicant's membership in the Tian Dao religion.
[26] The application for judicial review is dismissed.
[27] Neither party wished to submit a serious question of general importance for certification.
ORDER
[28] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 14, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1966-01
STYLE OF CAUSE: SONG JUN REN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, June 6, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Hart Kaminker
FOR APPLICANT
Angela Marinos
FOR RESPONDENT
SOLICITORS OF RECORD:
Kranc & Associates
Suite 500
425 University Avenue
Toronto, Ontario
M5G 1T6
FOR APPLICANT
Department of Justice
Suite 3400, The Exchange Tower, Box 36
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020614
Docket: IMM-1966-01
BETWEEN:
SONG JUN REN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER