Docket No.: IMM-3382-01
Neutral Citation: 2002 FCT 934
Ottawa, Ontario, this 4th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
HAO LIN WU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(a) This is an application for judicial review of a decision of the Convention Refugee Determination Division (the "tribunal") dated June 11, 2001, wherein it was determined that Mr. Hao Lin Wu, the applicant, is not a Convention refugee.
(b) The applicant, born in 1970, is a citizen of China who alleges a well-founded fear of persecution at the hands of the Chinese authorities on the basis of his membership in a particular social group, violator of China's family planning policy. The applicant claims that he was married on January 8, 1996, and that he has two children of this marriage born in April of 1997 and in December of 1998 respectively. Upon becoming pregnant for their second child, and in order to save the baby, the applicant's wife was required to go into hiding at a relative's home. Because of complications, the applicant's wife had to be hospitalized. As a result of hospitalization, "birth control officers" found out about the birth of the second child and took the wife away to be sterilized.
(c) The applicant's evidence is that they were ordered to pay an 8,000 RMB fine. The applicant claims that he paid 3,000 RMB towards this fine but did not obtain a receipt. Several weeks later, the birth control officer in question returned to their home stating that the applicant had not paid the fine and was required to pay an additional 10,000 RMB plus a penalty. As repayment of the fine, the birth control officer removed many items of personal property from the house and in so doing damaged the applicant's home.
(d) The applicant lost his shelter and took his wife and two children to his mother-in-law's house.
(e) The applicant claims that his wife became pregnant a third time in August of 1999 and that she, once found out, was required to abort the baby. He also claims that since she was not able to undergo a sterilization procedure at that time, the family planning authorities allegedly were seeking him to undergo sterilization. The applicant decided to flea China. and obtained a Canadian visitor's visa. He arrived in Canada on February 20, 2000, and claimed refugee status on March 20, 2000.
Tribunal's decision
(f) The tribunal found that the applicant had not established, with credible evidence, a well-founded fear of persecution. It questioned the applicant's demeanour at the hearing and found that his evidence in key and central elements of his claim lacked credibility and plausibility. In particular, the tribunal doubted that the applicant was married to his claimed wife in January of 1996, and doubted that he had two children born in 1997 and in 1998. The tribunal further doubted that his claimed wife was pregnant for a third time in August of 1999, that she was forced to have an abortion, and that the applicant was being sought out to undergo sterilization as a violator of the one-child policy.
(g) The tribunal further doubted the credibility of the applicant's claim as it found that he had not demonstrated a behaviour consistent with a subjective fear of persecution, given his delay to claim refugee status in Canada and his inconsistent testimony provided in explanation for this delay.
Issue
(h) Whether the tribunal committed a reviewable error in its assessment and appreciation of the evidence before it "specifically whether the tribunal made perverse credibility findings, improper inferences, or ignored or misconstrued the evidence before it with respect to the well-foundedness of the applicant's claim?"
Standard of Review
(i) It is generally recognized that the Refugee Division is best suited to determine questions of plausibility and credibility. Mr. Justice Décary in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, stated at paragraph 4 of his reasons:
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.
Analysis
(j) The applicant raises the following issues with regard to the tribunal's credibility findings:
(a) The panel's reasons of credibility are internally inconsistent and thus violates the requirements that the panel provide clear reasons;
(b) The panel's reasons ignore evidence that was before the panel;
(c) The implausibility finding is not based on evidence; and
(d) The implausibility finding is not reasonable.
(a) Reasons internally inconsistent
(k) The applicant contends that on the one hand the tribunal states it does not believe the two children of the applicant exist. On the other hand, the tribunal implies that the information contained in the Canadian visitors' visa ("CVV") application is an accurate reflection of the applicant's circumstances in China. The CVV application lists the applicant's two children born in 1997 and in 1998. The applicant therefore contends that such an internal inconsistency does not meet the standard of providing clear reasons for findings of credibility as set out in Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L. R. (2d) 150.
(l) I do not accept the applicant's contention. A review of the tribunal's reasons reflects the following:
...It is the panel's opinion that the claimant was a manager of the business department for the Zhong Chong Trading Company Limited, in China, information he had provided in his CVV application, and he had himself filled out his CVV application, and provided all of the relevant documents attached to Exhibit M-1 in order to obtain a CVV. ...
It is apparent from this excerpt of the tribunal's reasons that the only information on the CVV application that the tribunal clearly accepted was that the claimant was a manager of the business department of Zhon Chong Trading Company Limited in China. I am of the view that the tribunal did not make a finding that all of the information contained in the applicant's CVV application is an accurate reflection of the applicant's circumstances in China. I therefore fail to find an inconsistency in the tribunal's reasons as alleged by the applicant.
(b) The tribunal ignored evidence
(m) The applicant further contends that the tribunal failed to turn its mind to a key element of the evidence before it. The applicant cites the following passage from the tribunal's reasons to support his contention that the tribunal believes the applicant was married on July 21, 2000:
...The panel does not doubt the authenticity of the document issued by the Chinese government which clearly indicates that the claimant was married on July 21, 2000.....
(n) The applicant contends that this finding ignores the fact that the applicant had been in Canada since February 20, 2000, which fact is confirmed by the applicant's passport which bears the entry date stamp of February 20, 2000. Consequently, it is submitted that the applicant clearly could not have been married on July 20, 2000, when he has been in Canada since February 20, 2000.
(o) The applicant claimed that he married his wife on January 8, 1996. However, the applicant's alleged wife's Household Registration Card, issued to her on July 21, 2000, indicates that she changed her address "because of her marriage on July 21, 2000." This conflicts with the applicant's evidence that he was married with this same woman four and one-half years earlier. As a result, the Refugee Division doubted that the applicant was married to this woman on January 8, 1996, and found that the wife's Household Registration Card suggested that the applicant would have married this woman on July 21, 2000. The respondent further acknowledges that this finding was made notwithstanding the applicant's presence in Canada since February 20, 2000.
(p) The respondent submits that the finding that a marriage had occurred on July 21, 2000, is not material, given that this finding was made in light of the confusion of the applicant's own evidence. A review of the evidence shows that the wife's address on her Household Registration Card is not the same address as that listed on the applicant's identity documents and this, despite the fact that the instructions listed on the Household Registration Card itself, requires that it be kept up to date. In view of the confusion in the applicant's evidence regarding the wife's Household Registration Card, I am of the opinion that it was reasonably open for the tribunal to conclude that the applicant did not marry this woman on January 8, 1996. I am also of the view that the tribunal's finding that the applicant would have married this woman on July 21, 2000, is not consequential to its underlying finding that it was not satisfied that the applicant had indeed married this woman on January 8, 1996.
(q) I am in agreement with the respondent's submission. The onus was on the applicant to clearly and credibly explain this significant discrepancy in his evidence and he failed to do so. I am therefore of the view that the tribunal did not commit a reviewable error in its assessment of this evidence.
(c) Implausibility finding not based on the evidence
(r) The applicant submits that the following finding by the tribunal has no basis in the evidence:
...The panel notes that the claimant knew the same day that his wife had been arrested on December 27, 1999. He made no efforts to take precautions to avoid being arrested....
The applicant contends that the only evidence before the tribunal was that the applicant knew his wife had been arrested on the day she was arrested and that there was no evidence that the applicant knew that the family planning and Public Security Bureau (PSB) officials wanted him to be sterilized because of his wife's problems until these officials actually came to arrest him. The applicant argues that there was no need to go into hiding until the family planning and PSB officials actually appeared at his home. Consequently, the tribunal erred in making an implausibility finding on the applicant's failure to do so.
(s) I am of the view that it was not unreasonable for the tribunal to draw a negative inference from the applicant's failure to take precautions following his wife's claimed forced abortion following her third alleged pregnancy. I make this determination in light of the treatment that the applicant received at the hands of the family planning and PSB authorities following the birth of his second child, which birth occurred out of the family plan. As a result of prior violations of China's family planning policy, the applicant paid a significant fine, and the authorities, not believing that he had paid anything, took all of his valuables and damaged his home. In my view, it is reasonable to expect as a result of these events, that a third pregnancy would certainly draw severe consequences from the authorities. Given these circumstances, I agree with the submissions of the respondent, the tribunal did not make an unreasonable inference in doubting the veracity of the applicant's claim, given his failure to take precautions for himself.
(d) Tribunal's second implausibility finding
(t) The applicant contends that the tribunal erred in making the following negative implausibility finding:
In view of the above statement, the claimant with respect to his ill treatment by the FP and the PSB officials and that they had taken away items of value from his house and damaged his house, the panel finds it implausible that the FP and the PSB officials would have waited for the claimant for two days (from December 27, 1999 to December 29, 1999) to arrest him. It is implausible that the FP and the PSB officials allow his mother to leave his house. Had the FP and the PSB officials intended to arrest the claimant, they would have waited for the claimant to return home in order to arrest him.
(u) The applicant contends that in light of the documentary evidence that was before the panel, it is not unreasonable that the authorities would not have waited for the claimant to return home in order to arrest him.
(v) It will not be necessary for me to consider this argument of the applicant since a review of the transcript of hearing shows that the authorities did indeed wait for the applicant to return home. This error in the evidentiary basis was conceded by the respondent at the hearing of the judicial review application.
(w) I therefore conclude that this negative implausibility finding by the tribunal was made in error. I am however of the view, after considering all of the evidence before the tribunal, that this error is not material to the tribunal's final conclusion and will consequently not be fatal to the tribunal's decision.
Determinative finding
(x) The tribunal did not believe the applicant's claim that his wife was pregnant for a third time, that she was arrested by the family planning and PSB authorities, and that she was forced to have an abortion. The tribunal noted that the applicant, in his PIF narrative, stated that his wife was taken away to have a sterilization operation after delivering her second child. The respondent submits that there was insufficient evidence for the tribunal to conclude that the applicant and his alleged wife did or could in the future violate China's family planning policy after that first sterilization operation.
(y) The respondent submits that this finding by the tribunal is determinative of the claim regardless of the concerns with the date of the marriage, and whether or not the applicant already has two children. Even accepting that the applicant was married with two children, the respondent contends that the tribunal could not find a well-founded fear of persecution on the basis of family planning policy, because the alleged wife had had a sterilization operation after the birth of her second child. The tribunal does not specifically address this argument in its reasons. Suffice it to say for the purpose of this judicial review, that there was a sufficient evidentiary basis to allow the tribunal to reasonably conclude as it did with respect to the applicant's credibility and to disbelieve the applicant's claim about his wife's third pregnancy.
(z) The respondent further contends that the doubt expressed by the tribunal that the applicant's alleged wife was ever pregnant for a third time, and arrested, is bolstered by the tribunal's finding that it was not plausible for the family planning and PSB authorities to allow the applicant's mother to leave his home, during which time she warned the applicant of their presence and indicated that he should not return home. All of this while the authorities were waiting for the applicant to return from shopping and while they were inquiring about the applicant's whereabouts and with the ultimate intention to arrest him to take him for sterilization. I accept this submission, particularly in view of the applicant's own materials, which points to the family planning authorities and especially the PSB authorities to be brutal and highly efficient organizations. It is very doubtful that the members of such organizations would allow the applicant's mother to leave the house for any reason while they inquired about and waited for the applicant to return.
(aa) I am therefore of the view that the tribunal's conclusion that the applicant's alleged wife was ever pregnant for a third time to be reasonably open to it on the record.
(bb) The applicant waited for one month, until March 20, 2000, to apply for refugee status in Canada. His testimony attempting to explain this delay was replete with inconsistencies. I am satisfied that the tribunal reasonably concluded that the applicant's actions indicate that he did not have a subjective fear of persecution when he failed to claim refugee status on his arrival in Vancouver on February 20, 2000. The tribunal considered the applicant's inconsistent testimony in his attempt to explain his failure to claim upon entry to Canada. I am of the view that the tribunal's finding was reasonably open to it on the evidence.
Conclusion
(cc) I am satisfied that the tribunal's findings are not perverse, capricious, manifestly unreasonable, or unsupported by the evidence. I am satisfied that the tribunal's conclusion is reasonably open to it on the record.
(dd) For the above reasons, this application for judicial review will be dismissed.
(ee) The parties, have had the opportunity to raise a serious question of general importance as contemplated by section 83 of the Immigration Act, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS:
1. The application for judicial review of a decision of the Convention Refugee Determination Division dated June 11, 2001, is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3382-01
STYLE OF CAUSE: Hao Lin Wu v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 9, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: September 4, 2002
APPEARANCES:
Hart A. Kaminker FOR APPLICANT
Ms. Amina Riaz FOR RESPONDENT
SOLICITORS OF RECORD:
Kranc and Associates FOR APPLICANT
425 University Avenue, Suite 500
Toronto, Ontario M5G 1T6
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
130 King Street West
Suite 3400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6