Date: 20050627
Docket: IMM-6374-04
Citation: 2005 FC 906
Toronto, Ontario, June 27th, 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
XIAO LONG LIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 72 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated June 15, 2004, in which Xiao Long Lin (the "applicant") was determined not to be a convention refugee nor a person in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a 24-year-old citizen from the Province of Fujian in the People's Republic of China ("China"). He alleges a well-founded fear of persecution at the hands of the Public Security Bureau (the "PSB"), based on the Convention ground of political opinion. Furthermore, he claims he will be subjected to cruel and unusual punishment and torture if returned to China.
[3] For fear of being arrested and jailed, the applicant left China and arrived in Canada on September 7, 2002, via the Philippines.
ISSUES
[4] 1. Did the Board commit a patently unreasonable mistake in its analysis of the applicant's credibility?
2. Did the board commit an error of law in applying an improper test to its section 97 analysis?
ANALYSIS
1. Did the Board commit a patently unreasonable mistake in its analysis of the applicant's credibility?
[5] As the main arguments presented by the applicant are an attempt to put into question the finding of a lack of credibility on his behalf, the deference to be accorded to the Board is very
high, as was stated in Anthonimuthu v. Canada (Minister of Citizenship and Immigration), 2005 FC 141, [2005] F.C.J. No. 162 at paragraph 45:
Turning first to the credibility issue, it is trite to say that decisions of the Board which are based on credibility findings are to be accorded a high level of deference given that the Board has the benefit of hearing the testimony of witnesses. As indicated in a number of decisions, credibility determinations lie within "the heartland of the discretion of triers of fact" and cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts (Aguebor v. Minister of Employment & Immigration, [1993] F.C.J. no 732 (F.C.A.); Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 (F.C.A.); Oyebade v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. no 1113; Sivanathan v. Canada (Minister of Citizenship & Immigration), [2003] F.C.J. no 662 (F.C.).
[6] Turning to the first argument of the applicant, the applicant submits that there were no major omissions from his PIF, especially in reference to the attempt to arrest him. In its decision, the Board states:
The panel finds the claimant's story not to be credible. The panel finds that there is a significant omission from the claimant's Personal Information Form (PIF) narrative relating to his alleged arrest for obstructing the Family Planning Officials in the performance of their duties.
(¼)
Respecting the omission from the claimant's PIF narrative, the panel finds the omission to be significant because it relates to the central element of the claim, which is the potential arrest of the claimant for obstructing the Family Planning Officials.
(Decision of the Board, dated June 15, 2004, at pages 2 and 4)
[7] However, in his oral testimony, the applicant stated that his two sisters as well as six or seven of his neighbours stood between him and the BCO and tried to stop them from taking him away, at which point his younger sister would have shouted "Brother, brother, run." This account of events does not appear in the applicant's PIF, nor does it appear in the POE notes. The applicant was questioned about this omission, but did not provide an adequate answer:
PRESIDING MEMBER: Thank you Counsel. I do have one question for you and that is in relation to the intervention by your neighbours. Any reason why you didn't mention that in your Personal Information Form?
CLAIMANT: Yes, I have not talked about this, have this written down, recalled it in my PIF.
PRESIDING MEMBER: Why? Is there any answer?
CLAIMANT: My story is brief and I have not had intervention by my neighbours recorded.
(Transcript of the applicant's hearing, dated April 13, 2004 at page 474)
[8] Furthermore, the oral testimony reveals two further important omissions from the written evidence, and no valid justification for them:
PRESIDING MEMBER: What else happened to your mother at that time?
CLAIMANT: My mother was arrested and taken away by the family planning officials.
PRESIDING MEMBER: And that is before you came to Canada? Is that correct?
CLAIMANT: Yes.
PRESIDING MEMBER: So why is that not in your Personal Information Form and your statement at the port of entry?
CLAIMANT: Because I have (inaudible) it for education. I do not know how to express myself clearly.
(¼)
PRESIDING MEMBER: What happened to your father in all of this?
CLAIMANT: My father was arrested by the family planning office and sent to (inaudible) education through labour camp.
PRESIDING MEMBER: Why is that not in your Personal Information Form?
CLAIMANT: I thought I'd mentioned my father and mother.
PRESIDING MEMBER: You mentioned your father and mother.
CLAIMANT: Yes. My father and my mother.
PRESIDING MEMBER: Yeah, well, what did you mention about them?
CLAIMANT: That my mother and my mother [sic] were arrested.
PRESIDING MEMBER: Okay - - -
(Transcript of the applicant's hearing, dated April 13, 2004 at pages 464 and 470)
[9] Although the applicant states that he had mentioned the arrest of his father and mother, there is no indication whatsoever in his PIF that his parents were ever arrested. Based on the fact that the applicant claims a fear of being arrested and placed in jail by the BSC, it was entirely reasonable for the Board to draw a negative inference from the fact that the applicant neglected to mention that his father and mother were both arrested by this very group.
There is no question that applicants for refugee status must relate all of the important facts in support of their claim. Question 37(a) of the PIF states:
Set out in chronological order, all the significant incidents which caused you to seek protection outside of your country of nationality or former habitual residence. Please also make reference to any measures taken against you, your family members, or any other individuals in a similar situation.
Thus, in my opinion it was completely reasonable for the Refugee Division to take a dim view of the fact that the applicant had omitted several significant facts. [See also Grinevich v. M.C.I., [1997] F.C.J. No. 444 and Kutuk v. M.C.I., [1995] F.C.J. No. 1754.] In Basseghi v. M.C.I., [1994] F.C.J. No. 1867, Teitelbaum J. stated:
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIP.
(Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 at paragraphs 8 and 9)
[10] Furthermore, as to the applicant's claim regarding the Board's finding that it was not reasonable for the neighbours not to have been arrested for their intervention, I find that based on the evidence before it as well as the overall plausibility of the applicant's testimony, the inferences drawn is well within the Board's jurisdiction. As was stated in Aguebor v. (Canada) Minister of Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A.) at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [my emphasis]
[11] As long as the inferences drawn by the Board are not unreasonable as to warrant this Court's intervention, its findings are not open to judicial review. In the present case, the Board stated its conclusions and supported its findings by stating that Article 43 of the Fujian Family Planning Regulations allows for the PCO to deal with anyone obstructing their work. It also found that in allowing the applicant to escape, the PCO were being hindered in carrying out their duties and therefore, that it was reasonable to assume that they would have been at the very least, reprimanded for their actions. However, when asked about it during the hearing, the applicant stated that nothing had happened to any of the neighbours.
[12] In addition, I find no merit in the applicant's argument that the Board should have consulted him before drawing negative inferences from the omissions in his PIF and POE forms. As noted above, the Board did indeed allow the applicant an opportunity to respond to the omissions, even though, as was stated at paragraph 26 of Guci v. Canada (Minister of Citizenship and Immigration), 2004 FC 1033, [2004] F.C.J. No. 1256, it was not required to confront the applicant with such obvious inconsistencies:
I also do not accept the Guci's submission that it was incumbent on the Board to confront them with its credibility concerns. There is no duty to put obvious discrepancies and inconsistencies in the stories of represented claimants to them in the course of their refugee hearings: Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 (T.D.) (Q.L.), distinguishing Gracielome v. Canada (Minister of Employment and Immigration), (1989), 9 Imm. L.R. (2d) 237 (F.C.A.).
2. Did the board commit an error of law in applying an improper test to its section 97 analysis?
[13] I also find that, contrary to the allegations of the applicant, the Board did apply the general application of the illegal exit law in China to the section 96 claim and not to the section 97 claim. In fact, not only does the applicant not submit any evidence to submit this allegation, but a reading of the last three paragraphs of the Board's decision indicates that each claim was dealt with separately, but that neither of them was afforded:
Based on the foregoing reasons, the panel finds that the claimant has not established a well-founded fear of persecution based on the Convention ground of political opinion or any of the other grounds contained in the Convention refugee definition.
The panel further finds that there is no credible evidence to make a positive finding that the claimant is at risk of losing his life or being subjected to cruel and unusually treatment or punishment, or in danger of being tortured if he returns to China.
Accordingly, the Refugee Protection Decision determines Xiao Long Lin, the claimant, not to be a convention refugee, and not to be a person in need of protection.
(Decision of the Board, dated June 15, 2004, at page 6)
[14] Finally, the applicant submits that the Board failed to consider the evidence before it in evaluating the section 97 claim. This argument is not only unfounded, but is rebutted by a simple reading of the Board's decision, in which it states:
The claimant states that he will be charged for illegally exiting China, if he is returned there. However, the panel finds that there is no persuasive evidence to support a finding that the claimant will be subject to persecution on his return, on a balance of probabilities. The documentary evidence regarding the treatment of illegal immigrants, upon their return to China cites a wide range of legal sanctions. (Exhibit R-1, Response to Information Requests NO.CHN34770.E, and No.CHN32869EX, August 9, 2000.) Penalties may range from mere criticism and warnings to fines and even prison terms of various periods. Beatings or mistreatment may occur during detention. Also, according to the documentary evidence (ibid), the most severe sanctions are usually reserved for repeat offenders and organizers of the smuggling trade. One researcher notes, however, that in practice, returnees, like the claimant, are rarely imprisoned and yet another sources states that most people can come up with the fines, which are negotiable.
(Decision of the Board, dated June 15, 2004, at page 5)
[15] Therefore, in view of the above analysis, I find that the Board did not commit a patently unreasonable error in dismissing the applicant's claim for lack of credibility, nor did it err in its application of the law in regards to s. 96 and s. 97.
ORDER
THIS COURT ORDERS that
The application for judicial review be dismissed.
No question for certification.
"Pierre Blais"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6374-04
STYLE OF CAUSE: XIAO LONG LIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 27, 2005
REASONS FOR ORDER
AND ORDER: BLAIS J.
DATED: JUNE 27, 2005
APPEARANCES:
Shelley Levine FOR THE APPLICANT
Margherita Braccio FOR THE RESPONDENT
SOLICITORS OF RECORD:
Shelley Levine
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT