Date: 20010622
Docket: IMM-4428-99
Neutral Citation: 2001 FCT 698
BETWEEN:
REN HUI LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] The applicant, Ren Hui Lin, a 30 year old citizen of the People's Republic of China (PRC), challenges the August 11, 1999 decision of the Convention Refugee Determination Division's (CRDD) in which it was determined that he is not a Convention refugee. He claimed refugee status on the basis of a well-founded fear of persecution for membership in a social group: men who violate China's family planning policy.
[2] The applicant and his common-law wife parented two children, after which Mr. Lin obtained a false sterilization certificate, which he filed with the Family Planning Bureau (FPB). He did so because his wife was physically frail and unable to undergo a sterilization procedure, and in these circumstances, compliance with the FPB's policy would have required him to submit to the procedure. Because he was aware of men who had suffered serious and lasting repercussions from this surgery, he feared complications that could prevent him from working and providing for his family. As a result, he and his wife devised the plan to obtain and file a false sterilization certificate.
[3] Their ruse was uncovered when the applicant's wife became pregnant for a third time and was forced to undergo an abortion. Following her abortion, he states his wife was released from hospital on a Friday afternoon, and the following Monday, alerted to the inaccuracy of his sterilization certificate, the authorities came to his workplace in what he fears was an effort to apprehend him and force him to undergo sterilization. He fled by bicycle to a neighbouring village, leaving the authorities frustrated in their attempt to apprehend him. His testimony is they then proceeded to his home, where they broke in his roof and destroyed his furniture. His wife and children, although unharmed physically, sought refuge with her parents.
[4] The applicant states his family helped him arrange repairs to his home, and twelve days after the authorities had come in search of him, he left the country using purchased documents. He arrived at Pearson International Airport in Toronto, Ontario on July 9, 1998 and claimed refugee status on July 14, 1998.
[5] In its decision, the panel accepted there might be circumstances in which individuals face a reasonable chance of persecution for violating the PRC's family planning policies, but this applicant was not one of those persons. The decision states this applicant's story was just "too contrived to be true." Particularly, the panel referred to the applicant's description of the damage to his home as "dramatic", his visit from the authorities and subsequent escape as "sensational", and his claim to having filed a false sterilization certificate untrue, when they stated as follows:
... on a balance of probabilities, and given the implausibilities cited above, the claimant had actually undergone the sterilization procedure shortly after the birth of his second child. The panel does not believe that there was a fraudulent sterilization certificate. Therefore, the panel finds, given these circumstances, the claimant was not coerced by the authorities into submitting himself for sterilization. The panel finds that the claimant is now just using his country's family planning policy as a convenient reason for using the Convention refugee determination process ...
Tribunal's Reasons at pages 5 -6.
[6] In his application for judicial review of this decision, the applicant states the panel
erred in law by misconstruing the facts and drawing unreasonable conclusions. The applicant also states interpretation problems during the hearing breached the rules of natural justice, and I paraphrase here, tainted his credibility, and compromised the panel's ability to investigate and decide his claim.
[7] First, with respect to the interpretation problems, the applicant's supplementary Memorandum of Argument cites six instances in which interpretation difficulties may have prejudiced the applicant. In addition, a second interpreter reviewed the hearing tapes and found errors, which although they may not have been material to specific and material issues at the heart of the inquiry, could well have prejudiced the ultimate resolution of the matter, by undermining the applicant's credibility.
[8] While there is voluminous Federal Court jurisprudence regarding interpretation in the CRDD context, it is perhaps more direct to refer to Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, where under the heading "Participatory Rights", Madame Justice L'Heureux-Dube speaks for the Supreme Court of Canada, stating at paragraph 30:
... at the heart of this analysis in whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly...
[9] The applicant's record makes a persuasive case that, in this instance, the applicant's credibility was tainted by interpretation problems at the hearing. These problems are apparent on the face of the record, were noted at the hearing, and were corroborated by the second interpreter's opinion. As a consequence, the panel may well have drawn negative credibility inferences that coloured their perception of the evidence and precipitated their negative determination. In these circumstances, and given the nature of the applicant's interest in the outcome of this hearing, it would be unreasonable for the Court not to intervene.
[10] With respect to the applicant's allegation of erroneous findings of fact, this Court finds the panel reached conclusions not supported in the evidence. There was absolutely no evidence that this applicant had already been sterilized; the panel did not ask the applicant to undergo a medical examination, yet concluded he had been sterilized after the birth of his second child. This conclusion was entirely without foundation in the evidence before the panel.
[11] The panel also determined the authorities would have been waiting for the applicant at the hospital on June 26, 1998, when he fetched his wife after her forced abortion. The panel deemed implausible his story of the authorities coming to his workplace on June 29, 1998. Although the applicant testified that the FPB does not work weekends, which would explain the delay in the attempt to apprehend him, the panel concluded on page 7 of the Tribunal Record: "... this entire series of events just too contrived to be true." It is unreasonable, in my view, and arbitrary to have reached such a conclusion.
[12] Finally, the panel cast the applicant as having characterized events as "dramatic" and "sensational", and the authorities as "brutal and fanatic in their implementation of Family Planning policies". A careful review of the transcript reveals the applicant used no such language. In fact, documentary evidence before the panel substantiates the applicant's position that authorities demolished his roof. This Court finds that in this instance the panel must have ignored the objective evidence before it.
[13] The Federal Court of Appeal's decision in Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 is regularly cited for its holding 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...
[14] In this case, the findings of implausibility are at odds with the documentary evidence that was before the panel, and are not grounded in the evidence. In addition, the rather floridly worded decision gives weight to the applicant's claim that interpretation problems coloured the panel's view of his credibility.
[15] For these reason, the application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel.
[16] Neither party submitted a question for certification.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
June 22 , 2001