Date: 20010831
Docket: IMM-5989-00
Neutral citation: 2001 FCT 978
BETWEEN:
ZHEN GAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated October 16, 2000, pursuant to which Board concluded that the applicant was not a Convention refugee.
[2] The applicant, born on July 26, 1977, is a citizen of China. She claims to have a well-founded fear of persecution by the Government of China by reason of her perceived political opinions.
[3] Specifically, the applicant is a supply teacher who claims to have left China with one of her colleagues as a result of the support she gave to her colleague who had, in a letter, denounced the school administration of corruption. The applicant arrived in Canada on October 7, 1999, and claimed refugee status on that day.
[4] In its brief decision, the Board found the applicant not to be credible and as a result dismissed her claim. The Board's analysis is short and I will therefore reproduce it in full. At pages 1, 2, and 3 of its reasons, the Board states:
Caselaw shows that a panel may reject testimony which is uncontradicted if that evidence does not accord with the probabilities affecting the case as a whole. In this respect, the British Columbia Court of Appeal stated in Faryna v. Chorny that,
In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions[1].
The Federal Court of Appeal, also has pointed out in Orelien that,
[O]ne cannot be satisfied that the evidence is credible or trustworthy, unless satisfied that it is probably so, not just possibly so.[2]
I find that the above applies to this claim. Before making a credibility assessment in this case I have taken the following into account: the claimant is very young; her educational background (she has 11 years of education, which includes training as an elementary school teacher); we are communicating through an interpreter; and cultural differences. However, for the following reasons, I had to conclude that the claimant invented her story in order to further a refugee claim.
Even though I would not have made an adverse finding on the fact alone, that the friend, who is the source of the claimant's fear of persecution, abandoned her own claim, I find that the action of the friend impacts on this claim, combined with other areas of credibility concern. I draw a negative inference that the friend who, together with the claimant, asked the Canadian government for protection, would not pursue her claim of persecution by the Government of China after she was released from detention.
Counsel submitted that because the claimant made eye contact with the panel, she is forthright. Even though this statement might be true in many cases, here I found that the eye contact was not a natural sign of communication between two parties, but it was in the form of rehearsed staring, as the contact was not with the Refugee Claim Officer (RCO) while he was asking the questions, or even with her counsel when she addressed the claimant, but rather towards the panel when responding to the RCO or counsel. I found that in this case eye contact was not a persuasive sign of truth. In addition, her answers sounded wooden and rehearsed, especially when compared to the next area of concern.
The circumstances of the whereabouts of the claimant's high school and teacher's certificate raised a credibility concern. I will accept that the claimant was a supply teacher. She mentioned this in her port-of-entry notes, and this means that the whereabouts of the certificate itself is not an issue. However, the manner in which she testified was, and made me conclude that, the claimant was not telling the truth. The claimant tensed up physically, became flustered, displayed a reluctance to answer questions in this area, and when she did, she scrambled to come up with an explanation.
The late addition of testimony, namely, that the letter her friend had written included remarks criticising the one-party system in China, also raised a credibility concern. Only after it was put to her that the country documentation suggests that exposing corruption would not be against government policies and would not necessarily give somebody an anti-government profile, did she elaborate that the friend's letter also raised the issue of a multi-party system.
[5] For the reasons that follow, this application will be dismissed.
[6] I begin with the Board's comments regarding the fact that the applicant, late in the day, testified that the letter written by her colleague in China included remarks criticising the one party system in China. In my view, the record amply supports the Board's conclusion in regard to that issue. After testifying on a number of occasions that her colleague's letter dealt with corruption and abuse in the school system, the applicant unexpectedly added that the letter included criticism of China's one party system. At pages 396 and 397, we find the following questions and answers:
Homsi: [Panel member] In the meantime, when she wrote this article or letter that was posted, the way I understood your testimony, she did not mention specific incidents, she just mentioned generally that corruption happened at this school. Did I understand this right?
Claimant: Yes.
Homsi: And would you agree, with writing this letter and making these accusations, she really destroyed the reputation of the school and the teacher and the school authorities that were involved?
Claimant: Yes.
Homsi: But in the meantime, she did not give specific examples, so what did she want to accomplish with just writing what sounds to me, a poison pen letter?
Claimant: In her article, she not only mentioned about the general corruption that is taking place in the school and particularly the authority has misappropriate using the funds, but also she has also raised the issue of the multi-party system, that the one-party system is not a healthy political structure for the country.
Homsi: Well, you were asked about this letter many times today. I think your Counsel asked you and Mr. Sukul asked you I don't know how many times and you had the opportunity to tell us about this letter which, if I understand your testimony right, was actually even read in the meeting. Only now you bring to our attention that not only corruption was raised, but the letter of a multi-party system, so why are you dong this at this late date?
Claimant: Because in the beginning of the hearing the question is just around the situation is happen in the school. The issue of the question of the one-party system is just part of the article which make a conclusion and analyze what happen, what went wrong with this one-party system.
[7] Consequently, the Board's concerns regarding the credibility of this evidence are, in my view, unassailable.
[8] I now turn to the Board's concerns regarding the circumstances of the whereabouts of the applicant's teaching certificate. Although the Board's remarks, as drafted, would not win a prize for draftsmanship, they do convey that the Board was not impressed with the applicant's evidence. I can only agree with the Board that the applicant's evidence on this point is, in all likelihood, not truthful.
[9] The applicant testified that her parents had sent her high school certificate to her by courier. According to the applicant, the courier was detained by the immigration authorities and her certificate was seized. She then states that the courier informed her of what happened. The applicant then goes on to state that she went to the airport to pick up her certificate, but was told by someone that the document would only be released should the Refugee Board request it. The applicant then states that she informed her counsel regarding what happened. Then, surprisingly, the applicant states that she does not know what advice her counsel gave her with respect to the certificate. Further on in her testimony, the claimant states that she had not been informed by the courier that her document had been seized, but that she had been so informed later on by a friend who came to Canada on a visit from China.
[10] In my view, the applicant's testimony is simply not believable. Consequently, I can only agree with the comments made by the Board that the applicant was not being truthful.
[11] I should perhaps note that in her memorandum of argument, the applicant does not challenge the Board's findings of credibility, save the one made in regard to her demeanor and the failure of her colleague to pursue her refugee claim.
[12] Although I was not present at the October 12, 2000 hearing and thus, did not have the benefit of seeing the applicant as the Board did, I have no hesitation in concluding, on a reading of the transcript, that the claimant did not testify in a forthright manner. Consequently, the Board's remarks to the effect that the applicant's answers sounded wooden and rehearsed, do not surprise me. The applicant was unable to convince me that in so concluding, the Board made a reviewable error.
[13] With respect to the Board making a negative inference by reason of the applicant's colleague's failure to pursue her refugee claim, I agree entirely with counsel for the respondent's submission which appears at paragraph 16 of his memorandum of argument. Counsel states the following:
Furthermore, the Refugee Division took care to point out that the negative inference was not drawn on that fact alone, but upon a combination of that fact and the other credibility concerns. In this regard, the Applicant has totally failed to address the Refugee Division's adverse finding concerning the fact that she appeared to make up new elements of her story as she went along.
[14] For the sake of completion, here follows, in full, the applicant's answer to question 37 of her personal information form:
My name is Gao, Zhen. I am a citizen of China. I fear persecution on the basis of my political opinion.
In China, I was a school teacher. I taught at the same school as my good friend, Zou Qiu Yan, who was also a primary school teacher. In August 1999, the teachers at our school were having political sessions during the summer school break. My friend was very dissatisfied with the government's policies and corruption, and as a result, decided to write an article criticizing the government.
After authorities learned that she had posted the article, Zou Qiu Yan went into hiding. After she went into hiding, the authorities at your school openly criticized her. Other teachers were also criticizing her. I thought this was very unfair, as I agreed with her views.
One day when the teachers were discussing her and saying bad things about her, I defended her and said that what she said in her article was the truth.
After this discussion took place, one teacher who was sympathetic came to me and told me that the school authorities were investigating me, as they believed that I must be an accomplice of Zou Qiu Yan.
After I received this information, I went into hiding. After I went into hiding, I learned that the PSB wanted to arrest for being an accomplice of Zou Qiu Yan and spreading anti-government rumours. I had no choice but to leave China to seek protection.
The PSB frequently came to my house to look for me.
[15] Like the Board, I do not find the applicant's testimony very convincing. In fact, one could perhaps argue that the reason why the Board dismissed her claim for refugee status was that the applicant had simply not met her burden of proof, and this, irrespective of credibility issues. The applicant put forward a very simple story without providing any specifics. In my view, the story is so simple that it is not believable.
[16] For these reasons, I see no reason to interfere with the Board's conclusion that the applicant is not a Convention refugee.
[17] The respondent raised an issue as to whether there was a proper affidavit filed in support of the applicant's application for judicial review. The position taken by the respondent was that the affidavit filed was that of Rhonda Marquis, a solicitor in the law firm of Lewis and Associates, who represent the applicant in these proceedings, and that consequently, Ms. Marquis could not be cross-examined on her affidavit as she did not have personal knowledge of the facts alleged. In other words, the respondent's submission is that the affidavit filed in support of the application ought to have been that of the applicant herself. Because I have concluded that the Board made no reviewable error, I need not address this issue.
[18] For these reasons, this application for judicial review shall be dismissed.
Marc Nadon
JUDGE
O T T A W A, Ontario
August 31, 2001
[1] [1952] 2 D.I.R. 354 (B.C.C.A.) at 357.
[2] Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.) at 605.