Date: 20030609
Docket: IMM-3239-02
OTTAWA, ONTARIO, MONDAY, THIS 9TH DAY OF JUNE, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ZI CHANG YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Zi Chang Yu (the "Applicant"), a citizen of China, arrived in Canada in August 2001 and claimed Convention refugee status, on the basis of a well-founded fear of persecution based on his political opinion. By decision dated May 1, 2002, the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") determined that the Applicant was not a Convention refugee. This is an application for judicial review of that decision of the
Board.
Issues
The Applicant raises the following issues:
1. Did the Board err in drawing negative inferences from the circumstances of the Applicant's arrival in Canada?
2. Did the Board err in drawing negative inferences from the Applicant's use of a genuine passport to exit China?
3. Did the Board err in its other credibility findings?
Analysis
For the reasons that follow, I am of the view that this application should not succeed.
Preliminary Issue: Standard of Review
The appropriate standard of review is one of patent unreasonableness, which means that findings of credibility and of fact must be supported by the evidence and must not be made capriciously, be based on erroneous findings of fact or be made without regard to the evidence (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (QL); Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 551 (C.A.) (QL)).
Where the Board finds a claimant not credible based on implausibility findings which are open to it on the evidence, this Honourable Court should not interfere with the decision even if the evidence could conceivably have led to a different conclusion, unless an overriding error has been made by the Board (Oduro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 560 (T.D.) (QL); Tao v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 622 (T.D.) (QL)).
Issue #1: Did the Board err in drawing negative inferences from the circumstances of the Applicant's arrival in Canada?
In its decision, the Board stated that it did not believe the Applicant's testimony as to how he arrived in Canada and claimed refugee status based on the inconsistencies and contradictions between his oral and written testimonies and the Port of Entry Notes ("POE"). The Board then set out those inconsistencies and contradictions, noting that some of the inconsistencies were not put to the Applicant.
The Applicant submits that the Board's failure to confront him with these inconsistencies and provide him an opportunity to explain the discrepancies was a reviewable error (Gracielome v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 463 (C.A.) (QL); Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (C.A.) (QL); Deng v. Canada (Minister of Citizenship and Immigration), 2003 FCT 682.
On my reading of the transcript and the POE notes, two of the inconsistencies and contradictions identified by the Board are not readily apparent. For example, the Applicant appears to have been consistent in his testimony that Mr. Xie accompanied him to Canada. He also appears to have been consistent in his testimony regarding Mr. Xie's location during the Applicant's interview at the POE. As a result, the Board erred in finding an inconsistency between the Applicant's testimony regarding whether Mr. Xie came with him to Canada and Mr. Xie's location during the Applicant's interview at the POE. However, since the Board's negative credibility conclusions were supported by a number of other inconsistencies and contradictions in the Applicant's testimony and the Applicant's travel route to Canada and his travelling companion were not central to the Board's negative determination of his Convention refugee claim, I am of the view that this was not a reviewable error.
In addition, the Board did not commit a reviewable error when it failed to confront the Applicant with the inconsistencies in his testimony regarding his arrival in Canada. The Board was not obligated by the duty of fairness to put all of its concerns regarding credibility before the Applicant (Tekin v. Canada (Minister of Citizenship and Immigration), 2003 FCT 357, [2003] F.C.J. No. 506 (QL)). The Applicant was represented by counsel at the hearing and the parties were on notice that credibility was at issue.
Moreover, unlike in Gracielome, supra, these inconsistencies and contradictions were not found by the Board "after the fact from a painstaking analysis of the transcripts of the evidence."
Rather, the inconsistencies and contradictions, aside from the two outlined earlier, were apparent from the POE notes, the Applicant's Personal Information Form ("PIF") and the Applicant's own inconsistent testimony at the hearing.
Although the Applicant was represented by an interpreter, this does not appear to be a situation analogous to Rajaratnam, supra, where the differences between the applicant's testimony at the hearing and PIF could be explained "by innocent misunderstanding because of the fact that she was assisted on each of these separate occasions by different interpreters."
Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility (Rajaratnam, supra) and the Board was entitled to rely on these contradictions and discrepancies for its negative credibility finding related to the Applicant's story of his arrival in Canada. The Board provided reasons in clear and unmistakable terms for this negative credibility finding and referred to specific examples of inconsistencies and contradictions (Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL). As a result, the Board did not commit a reviewable error in drawing a negative credibility inference from the Applicant's description of his arrival in Canada.
Issue #2: Did the Board err in drawing negative inferences from the Applicant's use of a genuine passport to exit China?
The Applicant also submits that the Board committed a reviewable error because it provided no support or explanation for its statement that it was implausible that the Applicant would be able to exit China with a genuine passport if he was wanted by the Public Service Bureau ("PSB").
In my view, the fact that the Applicant was able to pass through state control when apparently wanted by police supports the conclusion that he did not have a well-founded fear of persecution. In Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.), Mahoney J.A., writing on behalf of the Federal Court of Appeal, stated that the fact that the applicants in that case had applied for immigrant visas before leaving Haiti may be relevant to a determination of whether those applicants had a well-founded fear of persecution. Although Orelien, supra is not directly on point, it does support the conclusion that the fact that the Applicant was able to leave China through legal channels was relevant to a determination of the well-foundedness of his Convention refugee claim. In any case, it is clear that this one sentence finding of fact was not a central part of the Board's decision in this case.
Since the Applicant was aware that credibility was at issue in this case and the implausibility concern arose out of the Applicant's own testimony, the Board did not err by failing to bring this concern to the attention of the Applicant for comment or by failing to refer to
any explanation given by the Applicant (Zheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2002 (T.D.) (QL); Sarker v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 987 (T.D.) (QL)).
Further, there was no satisfactory explanation provided by the Applicant that the Board could have referred to in its reasons. When his counsel asked him if he knew why he did not have any problems leaving China, the Applicant's response was "Snakehead told me it is a genuine passport, but I don't know whether it is true".
Finally, the Board was entitled to base its adverse credibility finding on this implausibility finding (Ratnasingam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1434 (T.D.) (QL)). As a result, the Board did not err by drawing a negative inference from the Applicant's use of a genuine passport to exit China.
Issue #3: Did the Board err in its other credibility findings?
At page 8 of the Certified Tribunal Record, the Board stated that the "most glaring credibility concerns yet, which go right to the core of the claim, are the following inconsistencies and discrepancies between the claimant's statements at the POE and his oral and written testimonies." The Board went on to list these inconsistencies and discrepancies.
The Applicant submits that the Board erred by failing to properly support its credibility findings with reference to the evidence before it. In particular, the Board failed to refer to explanations given by the Applicant for the inconsistencies between his PIF and the oral testimony regarding where the PSB went to look for him. The Board also failed to indicate that these discrepancies were put to the Applicant for explanation. The Board also erred by failing to provide any analysis of why the Applicant's responses regarding the omission of certain work history and education from his PIF made no sense.
I disagree with the Applicant for a number of reasons.
First, the numerous inconsistencies identified by the Board are apparent from a review of the evidence before the Board. In addition, the transcript indicates that these inconsistencies were put to the Applicant.
Second, in its reasons on this issue, the Board refers to much of the evidence before it, including the Applicant's PIF narrative, the POE notes, his oral testimony at the hearing and his explanations for these inconsistencies. Given the Board's concerns regarding the Applicant's credibility and the unsatisfactory nature of these explanations, the Board was entitled to reject the explanations and rely on these inconsistencies for its negative credibility finding (Rajaratnam, supra; Tekin, supra; Alizadeh v. Canada (Minister of Citizenship and Immigration), [1993]
F.C.J. No. 11 (C.A.) (QL). In addition, the Board gave reasons in clear and unmistakable terms, for this negative credibility finding (Hilo, supra).
Third, the Applicant's "explanation" for the discrepancy between his PIF and oral testimony regarding where the PSB went looking for him is simply a denial that he stated that the PSB went to his office. At page 405 of the Certified Tribunal Record, the Applicant gave the following testimony:
My friend told me that the PSB people came to my office and also at my father's place and they wanted to arrest me.
Based on this testimony, it was not a reviewable error for the Board to fail to refer to the Applicant's explanation for this inconsistency.
Fourth, I am of the view that the Board's failure to analyze the Applicant's explanation for the omission of his work experience and education from his PIF was not a reviewable error. The Applicant explained that he provided this information to his counsel's assistant, but these particulars were omitted from his PIF because his counsel's assistant was using a computer. The Board rejected this explanation as making no sense. In my view, this finding was not patently unreasonable.
Finally, I note that the Applicant has not challenged the majority of the Board's credibility findings, including those findings that are central to his claim.
Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. This application for judicial review is dismissed.
2. There is no question for certification.
"Judith A. Snider"
_______________________________
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3239-02
STYLE OF CAUSE: ZI CHANG YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FRIDAY JUNE 6, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MADAM JUSTICE SNIDER
APPEARANCES BY: Ms. Vania Campania
For the Applicant
Mr. Leena Kaakkimainen
For the Respondent
SOLICITORS OF RECORD: Ms. Vania Campania
Lewis & Associates
Toronto, Ontario
M5A 2G4
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030609
Docket: IMM-3239-02
BETWEEN:
ZI CHANG YU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER