Date: 20011114
Docket: IMM-6301-99
Neutral Citation: 2001 FCT 1240
Ottawa, Ontario, this 14th day of November 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
LE NI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
1. This is an application under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, as amended, for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated December 16, 1999, in which the CRDD held that the applicant was not a Convention Refugee.
2. The applicant requests that the CRDD's decision be set aside and that the matter be remitted for reconsideration before a differently constituted panel.
3. The applicant, a citizen of China, claims to have a well-founded fear of persecution based on his father's membership in Falun Gong. He also claims to be a refugee sur place. He was fifteen years old at the time the CRDD made its decision.
4. In February 1998, the applicant's father began to practice Falun Gong and soon after became a Falun Gong teacher. The father had written materials about Falun Gong in the home and had a picture of the Falun Gong "Master" on a wall.
5. In July, 1999 the Chinese government banned the practice of Falun Gong. This prompted demonstrations. On July 22, 1999, many Falun Gong leaders were arrested, including the applicant's father. The applicant's family home was subsequently seized by government authorities. They made it known that all family members would also be arrested. The applicant, his mother and brother, went into hiding at his grandmother's house.
6. The applicant was then sent to Canada by his family. His mother and younger brother could not also come to Canada due to the financial constraints. The applicant's father has been released by Chinese authorities and is now living with the applicant's uncle in a village close to the family home in Shang Ping.
7. The applicant and other young Chinese citizens were brought to Canada by human smugglers or "snakeheads" who travelled with them within Canada. He was taken from Vancouver to Toronto, where he and six other minors were locked in a hotel room for ten days. He testified that he was not allowed to use the telephone or leave the hotel room while in Vancouver. He also testified that he did not claim refugee status upon arrival in Vancouver because he understood that this was to be arranged by his smugglers.[1]
8. From Toronto, the applicant was taken to Montréal. On September 2, 1999, the applicant was detained at the Canada/U.S. border after attempting to enter the United States illegally. He was arrested with nine other Chinese youths whose applications for judicial review were heard together with the applicant's.
9. The applicant contends that he is a refugee sur place because Chinese authorities would view his illegal exit and subsequent refugee claim as expressing political opinion. He claims that he would be arrested, beaten, fined and jailed if sent back to China. This fear is augmented due to the media coverage surrounding his arrest and CRDD hearing. This argument, which is common to all who were apprehended with the applicant, has been dismissed in a separate set of reasons which are attached as Appendix A to these reasons.
10. The CRDD did not act unreasonably in doubting the applicant's credibility. The CRDD noted that the applicant's explanation as to his father's current living arrangements, his proximity to his family yet living apart from them, was confusing and incoherent. The CRDD also noted that the applicant's evidence appeared to be rehearsed and that he used terms which he did not understand, such as "stowaway". It was alleged that the CRDD had failed to observe the Guidelines on Child Refugee Claimants. A review of the decision and the transcript shows that by and large the CRDD was sensitive to the applicant's young age. It must also be remembered that the Guidelines must be thought of as being a continuum. Clearly a twelve-year-old claimant must be given more latitude than a fifteen-year-old. The child's degree of maturity, as well as their age, must be taken into account in assessing their evidence.
11. The CRDD's analysis of the basis of the applicant's claim is not unreasonable. It found that the applicant's father, who was identified by the regime as a member of Falun Gong, is living openly in relative peace with his brother very near to the place where the applicant's mother and brother are living. It found that the applicant's claim based upon family membership could not stand based upon the father's current situation. It also correctly identified that whether the applicant was a member of Falun Gong or not, the regime would impute those views to him. However, based upon the father's current situation, the CRDD could reasonably conclude, as it did, that there was no well-founded fear of persecution on the basis of that imputed opinion. Furthermore, the CRDD was entitled to prefer the applicant's own evidence as to his father's circumstances to the documentary evidence as to persecution.
12. The difficulties encountered in assessing the claimant's evidence do not undermine the reasonableness of the CRDD's decision when considered in the light of all the evidence. This is a case for the application of the dicta of Joyal J. in Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437 (T.D.) (QL), (1993), 63 F.T.R. 81:
For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
I have now read through the transcript of the evidence before the Board and I have listened to arguments from both counsel. Although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached. And this is where I fail to find any kind of error.
13. A reading of the transcript shows that, but for the comments made below, the CRDD was generally alive to the issues arising from the applicant's age. Furthermore, it must be said that the Guidelines should be thought of as a continuum. They are to be applied having regard to the witness' age and maturity. There is no indication that the applicant was not given appropriate consideration.
14. However, it must be said that the CRDD was awkward in its expression of its grounds for not accepting the applicant's claim. It concluded, for example, that the applicant either did not know or would not say why he came to Canada. In fact, the claimant told the officer at the Port of Entry that he had come to work and study in Canada (Tribunal Record, page 103), he wrote in his narrative that he had been sent to Canada to claim refugee status, and told the CRDD in his testimony that his primary reason for coming to Canada was to find refuge (Tribunal Record, page 336). To say that the applicant did not know or would not say why he came to Canada is not in keeping with the record. He did say why he came but he said different things to different people. To say that he did not know why he came can only be taken as meaning that he knew but he was not being candid with the CRDD. How could he undertake a voyage of thousands of miles without knowing why? Both of these statements reflect a failure to persuade the CRDD of a well-founded fear of persecution in China. The statements made by the CRDD are indicative of a belief on its part that the applicant came to Canada for reasons other than escaping persecution.
15. Similarly, the CRDD found the applicant's evidence to have the appearance of being recited. It says that the applicant used the word "stowaway" without knowing what it meant. However, at page 326 of the Tribunal Record, the applicant said that being a stowaway meant leaving the country illegally, which appears to have been accepted by the CRDD as an adequate answer. So it is inaccurate to say that the applicant did not know what it meant. However, this does not mean that the CRDD was wrong when it said that the applicant looked as though he was reciting his evidence. They saw him give his evidence; they observed his conduct in the course of the hearing. Their conclusion on that issue is inherently more reliable than any assessment based upon a reading of the transcript.
16. The basis of the CRDD's rejection of the applicant's claim is found in the following passage.
He [the applicant] stated that his life was in danger because he was a member of the Falun Gong. In fact he is not a member but he stated the authorities would consider him as such because of his father. The Tribunal has difficulty with this reasoning mainly because his father has been released and is living "openly" in his village. Based on this, the claimant has not proven a well-founded fear of persecution because of his alleged membership in Falun Gong nor because of his father's leadership in Falun Gong.
17. Based upon the applicant's own testimony as to his father's circumstances, this conclusion is not unreasonable and is one which was reasonably open to the CRDD.
18. The awkwardness in the CRDD's reasons does not detract from the conclusion at which it arrived. As a result, the application is dismissed.
ORDER
For the reasons stated above, the application for judicial review of the decision of the Convention Refugee Determination Division, dated December 17, 1999, reasons for which are dated December 16, 1999, is dismissed.
The following question is hereby certified:
Where the fact that an applicant has applied for convention refugee status has been reported in the media in Canada, and the applicant makes a claim of refugee sur place as a result of that reporting, is it necessary for the applicant to prove
a) that the media reports came to the attention of the authorities in the country in respect of whom the applicant alleges a well-founded fear of persecution and
b) that the information contained in the media reports was sufficient to allow the authorities to identify the applicant
in order to succeed with respect to the refugee sur place claim?
"J.D. Denis Pelletier"
Judge
Docket: IMM-6301-99
APPENDIX A
Refugee Sur Place
19. The application for judicial review of ten applicants were heard together because of certain common issues, one of which was whether the applicants had become refugee sur place. Each of the applicants made a claim before the Convention Refugee Determination Division ("CRDD") on the basis of well-founded fear of persecution of imputed political opinion and refugee sur place based on the media attention surrounding their arrest, detention and subsequent applications for refugee status. Videotaped recordings of television coverage were submitted to the CRDD, as well as two newspaper articles. It was alleged that, due to the media attention, Chinese authorities would know that the applicants had claimed refugee status in Canada and would view the claims as political statements against the Chinese regime. In addition, the applicants claim that they would be severely punished for their illegal exit. The applicants submitted no evidence of actual differential treatment by Chinese authorities resulting from the existence of media exposure of their refugee claims.
20. These reasons apply to all of the applicants in respect of their allegation that the CRDD improperly assessed their claim to refugee status based on the notion of refugee sur place.
21. The CRDD identified the following questions as "central" to the sur place issue:
Would China be aware of this claim for refugee status? Would China consider leaving the country illegally and claiming refugee status as expressions of political opinion? If so, what would the consequences be for the claimant?[2]
22. The CRDD went on to address the question of whether punishment of the applicants by the Chinese government for their illegal exit would amount to persecution under the Convention. The CRDD cited the principles set forth in Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540, [1993] F.C.J. No. 584 (C.A.) (QL), that ordinary laws of general application are presumed to be valid and neutral and that the applicant must show that the law in question is persecutory in relation to a Convention ground.[3] The CRDD recognized the principle that a law of general application may be persecutory if the sanction is "totally out of proportion to the offence committed".[4] It emphasized, however, that for any refugee claim to be successful, any disproportionate sanction must be related to a Convention ground.
23. Citing a September 22, 1999 Response to Information Request, the CRDD noted that Chinese authorities have wide discretion in imposing sanctions for illegal exit. However, it found that nowhere in the document was it stated that imprisonment could be for more than three years, and nowhere was it suggested that China would perceive exiting illegally from the country or claiming refugee status as an expression of political opinion or as a factor that would influence the sanction. The CRDD referred to the following quotation:
[...] returnees are rarely imprisoned owing to a number of factors: the pervasiveness of the phenomenon of illegal immigration from Fujian, the volume of returnees from Australia, Japan, Taiwan, the United States and elsewhere, and the extensive influence of the snakeheads.[5]
24. An Australian 1994 Country Profile was also quoted:
In answer to claims in newspaper reports that deportees recently returned to Fujian were expected to pay high fines and attend reeducation centres if the fines were not paid, a Fujian official gave this reply. They had been detained at a PSB center for identity and health checks. After completion of the checks they would be returned to their home towns, all in the Fuzhou area. There would be some light pecuniary penalty. Although the Government regarded them as law breakers it was more appropriate to consider them as victims of illegal migration rackets. The official conceded that second offenders and evil organizers would be dealt with harshly.[6]
25. Another Response to Information Request was cited to show that returned migrants also have insufficient objective grounds to fear harassment by snakeheads upon return to China.[7]
26. The CRDD drew the following conclusions:
In summary, and applying the guidelines of Zolfagharkhani, the Chinese law concerning illegal exit is a law of general application, presumed valid and neutral. Even though the claimant alleged that the Chinese regime is generally oppressive, the claimant has not met his burden to demonstrate that the intent or principal effect on him of this law would be persecutory in relation to a Convention ground. In view of this conclusion, it is irrelevant whether the claimant could or could not be identified in the videos submitted in evidence and whether China would or would not know about the present claim for refugee status.[8]
27. Counsel for the applicants submit that the CRDD erred in deciding that it was irrelevant whether the applicants would be identified from the media exposure. Mr. Markaki argued that the CRDD only considered the issue of whether punishment for illegal exit was persecutory, without specifically dealing with how the applicants' well-publicized refugee claims would be viewed by Chinese authorities and the effect it might have on their punishment. It was submitted that this question should have been addressed by the CRDD "even in the absence of specific documentary evidence but on its knowledge of country conditions and the general documentary evidence which describes China as an oppressive regime which does not tolerate any political opposition or criticism of any kind".[9]
28. There are few guidelines and little jurisprudence on the proper evaluation of sur place claims. According to the UNHCR Handbook, a person can become a refugee sur place for reasons other than changing circumstances in her or his country of origin:
A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.[10]
29. The Supreme Court in Canada (Attorney General) v. Ward allowed for the possibility of imputed political opinion[11]:
[...] the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.
The ground of political opinion therefore appears to be flexible enough to encompass the sur place claim made by the applicants.
30. In my view, the essential problem for the applicants is the fact that no evidence was before the CRDD, documentary or otherwise, that substantiated their sur place allegation. The problem is implicit in the Supreme Court's statement in Ward that "[t]he absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution" (emphasis added). I can agree with Mr. Markaki that the CRDD limited its analysis to documentary evidence of punishment for illegal exit in China. However, I cannot agree that the CRDD should have determined how the Chinese government might view making a claim for refugee status "even in the absence of specific documentary evidence". If there is a distinction to be made respecting the treatment given to returnees who have claimed refugee status in Canada and other returnees, and if that treatment amounts to discrimination based on imputed political opinion, it should have been a matter of evidence before the CRDD. As Justice Nadon held in Kante v. Canada (Minister of Employment and Immigration)[12]:
The law is clear that the burden of proof lies with the Applicant i.e. he must satisfy the Refugee Division that his claim meets both the subjective and objective tests which are required in order to have a well founded fear of persecution.
31. In the absence of documentary evidence that the applicants would be persecuted based on political opinion imputed from their refugee claims, it was reasonable for the CRDD to draw no conclusion based upon evidence of publicity. It is not open to the CRDD to engage in speculation whether it is to the applicants' benefit or detriment.
32. In analysing the CRDD's decision, I am also guided by the principle articulated by Gibson J. in Biko v. Canada (Secretary of State), [1994] F.C.J. No. 1741 (T.D.) (QL):
The CRDD's decision must be interpreted as a whole. I would add to that that it must be interpreted as a whole in the context of all of the evidence that was before the CRDD.
33. Given the absence of evidence that would establish objective grounds for the applicants' fear of persecution based on imputed political opinion, and bearing in mind that the applicants had the burden of proof in this regard, I find that the CRDD did not commit a reviewable error in its evaluation of the applicants' sur place claim.
34. At the conclusion of this hearing, counsel asked me to certify the following question on the issue of refugee sur place:
Does knowledge by a country of a generally oppressive character of a refugee claim made by a national make this individual a refugee sur place?
35. In my view, such a question is not particularly clear because of the imprecision in the notion of "a country of a generally oppressive character". The issue in this case was whether a sur place claim could be maintained in the absence of evidence, that the making of a refugee claim by certain individuals had specifically come to the attention of the Chinese authorities. In my view, a more appropriate question, and one which I am prepared to certify, is:
Where the fact that an applicant has applied for convention refugee status has been reported in the media in Canada, and the applicant makes a claim of refugee sur place as a result of that reporting, is it necessary for the applicant to prove
a) that the media reports came to the attention of the authorities in the country in respect of whom the applicant alleges a well-founded fear of persecution and
b) that the information contained in the media reports was sufficient to allow the authorities to identify the applicant
in order to succeed with respect to the refugee sur place claim?
[1] CRDD Decision, Tribunal Record at page 7
[2] See IMM-6306-99, Applicants' Record at page 11
[3] Ibid
[4] Ibid at page 13
[5] Ibid at page 14
[6] Ibid at pages 13-14
[7] Ibid at page 15
[8] Ibid
[9] Ibid at page 108
[10] Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1998, page 22
[11] (1993), 103 D.L.R. (4th) 1 at page 39
[12] [1994] F.C.J. No. 525 (T.D.) (QL)