Docket : IMM-2794-03
Toronto, Ontario, June 9th, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
LIMIN SHEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision made by Philomen M. Wright, a member of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board"), dated March 18th, 2003, wherein the Applicant was denied Convention refugee status and deemed not to be a person in need of protection.
STANDARD OF REVIEW
[2] The only ground for this application is the credibility and plausibility findings of the Board. The Board rejected the Applicant's refugee claim because they found that the evidence she presented was not credible, nor plausible. The Board is an expert tribunal in determining refugee claims and has direct access to the testimony of the witness, and is usually in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness as cited in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) where the Federal Court of Appeal said:
Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[3] In accordance with Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 para 11, before a credibility finding of the Board is set aside, one of the following criteria must be established:
1. The Board did not provide valid reasons for finding that an applicant lacked credibility;
2. The inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. The decision was based on inferences that were not supported by the evidence; or
4. The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
[4] Credibility findings of the Board are therefore entitled to the highest degree of deference, and should only be set aside in accordance with the criteria set out above. With respect to credibility or plausibility, the Court should not substitute its opinion for that of the Board except in the "clearest of cases".
FACTS
[5] The Applicant is a citizen of the People's Republic of China who alleges a fear of persecution based on her political beliefs and membership in an illegal group in China: the Democratic Party of China (CDP). She formally became a member of the CDP in October of 1999 and was involved in Party activities such as attending meetings as well as posting leaflets and slogans. She also recruited 2 new members for the Party. In November 2001, some CDP members were arrested during a Public Security Bureau (PSB) raid of their meeting. Although the Applicant was unable to attend that particular meeting, she was advised by another Party member to go into hiding because the PSB were looking for her. While in hiding, the Applicant learned that the PSB went to her home to look for her and accused her of being involved in anti-government activities. She stated in her affidavit that, after learning that the PSB had searched her home and confiscated certain items, she realized she could not remain in China and made arrangements to leave.
THE BOARD'S DECISION
[6] The Board determined that the Applicant was not credible and gave several reasons, including:
a. the Applicant alleges that she is a member of the CDP, whose members are seen by the Chinese authorities as trying to subvert state power. The Applicant described in her evidence security measures that Party members undertook to secure their meetings and keep member's identity secret. However, despite these security measures the Applicant testified that she had filled out a form on the day that she joined the Party, a form which included her full name, her age, her address, the number of her resident identity card and code number given to her by the organization. The Board did not find this testimony credible because to fill out such details on an application would severely jeopardise CDP members' security through risk of their being identified;
b. the Applicant testified that her husband and child, who are still living in her house, have had no problems living there, but later testified that the PSB had searched her house and confiscated items. The Board did not find it credible, based in part on the documentary evidence, that the PSB would simply search her house and confiscate items without questioning her husband about her whereabouts and about the confiscated items;
c. the Board also found that, on a balance of probabilities, the Applicant was "probably not a member of the CDP and that the events she described because of her alleged CDP membership, probably did not occur".
ANALYSIS
Credibility and Implausibility
[7] The central issue in this claim is whether or not the Applicant is credible. In order to make a determination in this matter I am guided by the principles set out in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 032 at 305 (F.C.A.) ("Maldonado") and those set out in Rajaratnam v. Canada (Minister of Employment and Immigration) [1991] F.C.J. No. 1271, where it was made clear that the Board must have valid reasons for finding that an Applicant lacks credibility. The decision in Attakora v. Canada (Minister of Employment and Immigration), (1989) 99 N.R. 168 (F.C.A.), and Owusu - Ansah v. Canada (Minister of Employment and Immigration), [1990] 8 Imm. L.R. (2d) 106 (F.C.A.), are both cases in which decisions were set aside because the inferences drawn by the Board were based on implausibility findings that were not inherently such. In Frimpong v. Canada (Minister of Employment and Immigration), [1980] 8 Imm. L.R. (2d) 106 (F.C.A.), a decision of the Board was also set aside because it was based on inferences that were unsupported by the evidence. As stated in Bains, this is because a reviewing court, depending on the nature of the alleged implausibilities, may be in as good a position as the Board to assess the validity of the alleged implausibilities.
[8] In this case the Applicant's credibility was in question and the Board was required to satisfy itself, on the basis of the evidence presented, that there were grounds to support its decision. The Applicant submits that the Board based its negative credibility finding entirely on two areas of the evidence she presented which it found to be implausible. Specifically that it was implausible that, because of identification and security concerns, she and other applicants would have filled out detailed application forms to become members, and that it was unlikely that her husband would not have had problems with the PSB as a result of her activities. The Applicant therefore claims that the Board failed to assess the balance of the evidence and submits the Board found this remaining evidence consistent and supported by the documents she provided.
[9] Specifically the Applicant, at paragraph 17 of her Memorandum of Law and Argument, submits that, notwithstanding the determination made on the two previously mentioned areas of the evidence, the Board failed to provide an assessment or mention of the other detailed evidence she gave regarding her active CDP involvement in distributing leaflets at night, attending meetings, her statements regarding CDP goals, precautions the group took to avoid discovery, or of the incident that forced her to flee from China including the raid of their meeting as well as the arrest of CDP members.
CONCLUSION
[10] Based on my review of the Board's decision, the hearing transcript as well as the parties' submissions, I am of the opinion that the Board's findings are supported by the evidence that was before it. I also find that the Board did not fail to mention what balance of evidence it found to be true, but determined, as stated on page 4 of its reasons, that on a balance of probabilities, the Applicant was "probably not a member of the CDP and that the events she described because of her alleged CDP membership, probably did not occur". Although the Applicant's testimony was consistent with her Personal Information Form, the Board found that it was not plausible or consistent with the documentary evidence.
[11] Furthermore, I have considered the explanation given by the Applicant to support her statement that, as a precondition to membership in the CDP, forms requiring personal information had to be filled out despite the inherent risk of identification. Based on a review of all the evidence before me, I have come to the same conclusion as the Board in that I find it difficult to reconcile, or as the Board determined, incredible that the Applicant, despite her high level of education and capability, would have accepted these written Party rules despite the high risks and thereby put herself and her family in an extremely precarious situation. I therefore conclude, based on a standard of patent unreasonableness, that the Board did not err and rendered a decision that took into account all of the evidence that was before it.
[12] The parties were asked if they had any questions for certification to propose and they did not.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review is denied and no question will be certified.
"Simon Noël"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2794-03
STYLE OF CAUSE: LIMIN SHEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 8, 2004
REASONS FOR ORDER
AND ORDER BY: NOËL J.
APPEARANCES:
Ms. Nadine Tobin
FOR THE APPLICANT
Ms. Alexis Singer
FOR THE RESPONDENT
SOLICITORS OF RECORD:
LEWIS & ASSOCIATES
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040609
Docket: IMM-2794-03
BETWEEN:
LIMIN SHEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER