Federal Court Decisions

Date: 20020328

Docket: IMM-2388-01

Neutral citation: 2002 FCT 358

BETWEEN:

                                                                              JIE LI

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

McKEOWN J.

[1]                 The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated April 12, 2001, wherein the Board determined that the applicant was not a Convention refugee.

[2]                 The issue is whether the Board erred in its plausibility findings and with respect to its assessment of credibility in general.

[3]                 The applicant is a citizen of China. She claimed a well-founded fear of persecution on the grounds of her political opinion, namely, membership in the China Liberal Democratic Party ("CLDP"). The Board found not credible the applicant's account of joining the CLDP. In their view it was not plausible that the applicant, who has a university education, would join the Party only one week after hearing about it, given her lack of information about its structure, organization, networks, and of the risks involved. The Board found that she was vague with respect to her knowledge of the Party and appeared to have memorized a script. She allegedly distributed pamphlets but did not know the author of the pamphlets, and her oral evidence regarding information contained therein was generally known to the majority of the people in China. It also found that she knew nothing about her fellow members.

[4]                 With respect to her political activity, the Board found it implausible for the applicant to claim that she had no fear of delivering anti-government pamphlets in public places, especially on the eve of the commemoration of the Tiananmen Square Massacre. The Board found it implausible that she was not aware of the Chinese Democratic Party until 1998 given that she was a member of the Chinese Communist Youth League and she was a university student during the Pro Democracy Movement in 1989 and given that she alleged she has always been interested in democracy.

[5]                 With respect to her behaviour at the airport when she arrived, the Board found it implausible that the applicant knew none of the details surrounding her stay in Canada or her itinerary given her business profile and the fact that she was able to convince a visa officer at a personal interview of the purpose of her trip. The applicant also contradicted herself by testifying that she went to the washroom and took her luggage with her but later said she did not go to the washroom. Also, given that she knew no one in Canada it seemed implausible that in one day she was able to leave the airport in a taxi, locate a Chinese newspaper and a phone card, rent a room from a landlord in Scarborough, after taking the taxi from the airport to Chinatown, and also to call both her mother and the husband of a Party member. The Board also rejected certain documentary evidence. The Board found that the documents associated with her alleged political activities were forgeries and cited documentary evidence stating that fraudulent documents were easily obtained in China.

[6]                 The applicant submits that the Board erred in stretching many factual findings and that as a result a number of the findings are perverse and capricious. However, while the Board may have overstated certain facts, these facts do not go to the heart of the Board's credibility findings with respect to the various matters cited above. For example, when the Board was discussing her joining the Party within one week of learning of the Party's existence, the Board found it not plausible that she would be so ill informed about the Party at that time. The evidence was that she decided within nine days to join the Party and joined it officially eleven days after learning of the existence of the Party. The difference between one week and these numbers is not sufficient to change the Board's concern. Furthermore, the Board stated that she had testified: "I was ready to give up my life to fight for the party," whereas what she said was "to fight for my ideals". However in the sentence before stating this she had talked about joining the Party and then in the sentence afterwards she returns to talking about the Party. Accordingly, the substitution of "party" for "ideals" is not material in the context of when the statement was made. It is an error but not a reviewable error. The applicant also submitted that she was not a university student at the time of the Tiananmen Square Massacre in 1989. However, she did become a university student that fall and since she was a member of the Chinese Communist Youth League at the time and insisted she was always interested in democracy, it was open to the Board to find it implausible that she was not aware of the Chinese Democratic Party until 1998.

[7]                 The applicant also submitted that it was wrong to state that she was a card carrying member of the Communist Youth League when there was no evidence that she had a membership card. However, it was agreed she was a member. Again, this does not affect the Board's finding with respect to implausibility.

[8]                 The applicant submits that the Board also erred in finding that it was implausible that she could accomplish so much in a day after arriving in Toronto and not speaking any English. It appears that the applicant spoke some English according to the evidence before the Board but even if she spoke a fair amount of English she still was able to accomplish an awful lot in one day according to her testimony. While I might have found differently, it was not perverse and capricious for the Board to find that it was implausible for her to do this much in one day.

[9]                 It is important to look at the Board's findings in light of the law with respect to the Board's determination on the plausibility of human conduct. Sharlow J., as she then was, in Gonzalez v. Canada (M.C.I.) [1999] F.C.J. No. 805 stated:

In my view, it was open to the CRDD to assess the plausibility of the applicant's conduct as it did, by considering her story, and the manner in which it was told and tested in the course of the hearing, against the backdrop of other evidence and its own understanding of human behaviour. The comments of O'Halloran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.) reflect my view:

In short, the real test of the truth of the story of a witness ... must be its harmony with the preponderance of the probabilities which a reasonable and informed person would readily recognize as reasonable in that place and in those conditions.

I see nothing in the Giron case that is inconsistent with this conclusion. In this regard, I refer to the comments of Décary J.A. in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) at 316-7:

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 my view, the Board's finding of facts here are not perverse and capricious and their findings with respect to plausibility are open to it.

[10]            The Board was under no obligation to alert the applicant at the time of her hearing of its concerns about the weakness of testimony giving rise to implausibilities. See: Appau v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 300 (T.D.) and Danquah v. The Secretary of State of Canada [1994] F.C.J. No. 1704.

[11]            The application for judicial review is dismissed.

                                                            "W.P. McKeown"

                                                                             JUDGE

OTTAWA, ONTARIO

March 28, 2002