Date: 20011217
Docket: IMM-1026-01
Neutral Citation: 2001 FCT 1389
BETWEEN:
JING NAN CUI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application pursuant to paragraph 82.1(1) of the Immigration Act (the "Act") for judicial review under the Federal Court Act of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated February 1, 2001 wherein the Board determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant is a thirty-seven (37) year old married man from the province in North Eastern China.
[3] The applicant was married in October 1986 and he and his wife had their first child in February 1988. However, in September 1995, the applicant's wife discovered she was pregnant again. He is therefore the father of two (2) children: a daughter age twelve (12) and a son age four (4).
[4] His second child was born without permission from the Chinese authorities. Once discovered by the Chinese authorities, the family was fined 10,000 RMB and the birth control authorities ordered one of them be sterilized. In addition, the furniture in their home was destroyed by the officials and they were threatened with imprisonment should sterilization not be performed.
[5] The applicant fears that there is a warrant out for his arrest should he return to China.
[6] The applicant went into hiding in a separate place from his wife after these events. He obtained the services of a smuggler who decided to bring him to Canada first and promised to bring his wife later.
[7] The applicant arrived to Canada on June 10, 1998 but did not make his refugee claim until July 14, 1999. The applicant was in hiding in the meantime and lived off five thousand ($5000 US) American dollars which he had brought with him.
[8] He bases his claim entirely on the possibility that he will be sterilized if he returns to China since he and his wife are in violation of the China's one-child policy.
[9] As far as the applicant is aware, his wife has not been sterilized, but, he has not had much contact with her since July 2000 when she wrote him a short note.
ISSUE
[10] Did the Board err in finding that there was no more than a mere possibility that the applicant would be persecuted for violating China's one-child policy?
ANALYSIS
[11] No, the Board did not err in finding that there was no more than a mere possibility that the applicant would be persecuted for violating the one-child policy.
Standard of review
[12] First and foremost it is necessary to define the standard of review applicable by this Court in regards to the Board. Generally, the standard of review for questions of fact and fact and law is patently unreasonable, whereas for questions of pure law it is correctness.
[13] In Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.), Evans J. stated:
[para 45] On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratnam test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness.
[14] Later in Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.), Pelletier J. found:
[para 5] The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193.
[15] In the present case, the issues raised by the applicant are those related to fact. Therefore, the standard of review to be applied is that of patent unreasonableness.
[16] Once again, in Boye, supra, Jerome A.C.J. stated:
[para 6] Furthermore, the Refugee Division is entitled to make an adverse finding of credibility based on the implausibility of an applicant's story, provided the inferences drawn can be reasonably said to exist. Negative findings with respect to an individual's credibility are properly made, provided the tribunal gives reasons for its decision in clear and unequivocal terms.
[para 7] After having carefully examined the reasons of the Refugee Division in the present case, I am satisfied it considered and weighed all of the evidence adduced by the applicant, [...] I am unable to conclude the panel ignored the evidence before it or that its findings were perverse or capricious. In the absence of such an overriding error, there is simply no basis for judicial interference with the decision.
Mere possibility of persecution
[17] The Board was given the task of determining whether or not the applicant could satisfy the test laid out in Adjei, supra which is stated as follows:
[para 8] What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility as opposed to a mere possibility.
[18] In order to satisfy the test which places the onus upon the applicant, he must prove that he has a well-founded fear of persecution should he be returned to China. The Board wrote at page 3 of its decision:
The claimant must establish on a balance of probabilities that there are good grounds for fearing persecution and this also may be called reasonable or serious possibility as opposed to a mere possibility. The panel finds that there is a possibility of persecution, but it is no more than a mere possibility.
[19] The Board was convinced that the delay of three and a half years since the applicant was first sought by the family planning authorities would cause them to lose interest in the applicant, whereas the Board felt it would most likely be the applicant's wife facing sterilization and not the applicant. Yet the Board found that the applicant had failed to produce any compelling evidence as to whether or not his wife has already been sterilized. The Board stated at page 3 of its decision:
Even though there is a possibility of the family planning committee still wanting this 37-year-old, who has already been punished, to be sterilized, or his 36-year-old wife to be sterilized, it is less likely than it was three-and-a-half years ago. It is certainly more likely that they are going to look for his wife than him and yet his wife has lived in the same community, apparently for some time now, and has not been found.
[20] The applicant contends that this finding is untenable in light of the backdrop of the general positive finding of credibility and that no evidence was provided to indicate that the passage of time would lessen interest in the applicant by the Chinese authorities. The respondent however is of the opinion that the applicant should be able to show that the birth control authorities were still interested in him, if in fact they were. In addition, the applicant concludes that this finding ignores the fact that the applicant testified that his wife was "in hiding" in the countryside. To him, given the positive general credibility finding, there is a rational explanation as to why the Chinese authorities have not found the applicant's wife during the past three and a half years. At page 24 of the transcript, it is read:
Cooke: Okay, Thank you [...] now, your mother is raising both your children?
Claimant: Yes.
Cooke: And are they not able to get them out to see your wife at all?
Claimant: Because she's hiding in the countryside, so they don't want to cause anyone to suspect -anyone suspicious.
[21] This discussion led logically to the next issue of concern to the Board. The Board member inquired about the frequency of communication between the applicant and his wife in order to determine whether the applicant's wife had been sterilized or not. At page 24 of the transcript, it is read:
Cooke: Have you made any inquiries as to whether or not your wife has been sterilized?
Claimant: I asked.
Cooke: Who did you ask?
Claimant: My father-in-law.
Cooke: And when did you ask him that?
Claimant: I'm not too clear with the date, but it's in the month of May or June.
Cooke: And what was his answer then?
Claimant: No.
[22] The Board was sceptical about the fact that there has been little communication between the applicant and his wife as to the possibility of her sterilization. In fact, the Board clearly noted that the applicant has had little contact with his wife since he left China and has not attempted to contact her at all since July 2000. At page 2 of the decision, it is apparent that the lack of communication did not augur well for the applicant:
So six months have gone by without any real information being placed before this panel as to the likelihood of his wife having been sterilized.
[23] In summary, the Board found that the applicant could not satisfy the burden placed upon him by the test in Adjei, supra. There was no compelling evidence produced by the applicant as to whether his wife had been sterilized or not. In addition, the Board seemed to believe that the chances are greater for the applicant's wife to be subjected to sterilization as compared to those for the applicant.
[24] Consequently, there was but a mere possibility that the applicant would face persecution should he return to China.
[25] Counsel for the applicant suggests that the Board made a reviewable error at page 4 of the decision:
Mind you, I have to acknowledge that if he were to return and arrive at the port of entry and, there was, in fact, a warrant outstanding for him, he, at that point, could be subjected to more serious actions on the part of officials. But he is aware of where his wife is and, I suspect that arrangements could be made at that point if family planning authorities still wanted to obtain sterilization.
[26] The applicant suggests that this finding is unreasonable, perverse and capricious because "the panel implies that, in the event the applicant is arrested, arrangements could be made for his wife be sterilized".
[27] The respondent suggests that the Board rather concludes that "arrangements could be made" to avoid "more serious actions" (sterilization).
[28] In my view, this paragraph is not as clear as it could be. Nevertheless, the Board's decision should be read and understood as a whole; I should also keep in mind that this is all speculative because there is no compelling evidence indicating whether the applicant's wife has been sterilized and whether the warrant is still outstanding.
[29] Even if the Board would have used better wording in this particular paragraph, I cannot conclude that this error justifies the intervention of this Court.
O R D E R
THEREFORE, THIS COURT ORDERS THAT this application for judicial review be dismissed.
Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 17, 2001