Ottawa, Ontario, February 26, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Shou Dong Lin is a citizen of the People’s Republic of China whose claim to refugee protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board (Board). The Board did not believe Mr. Lin's evidence.
[2] Mr. Lin testified that his parents operated a bookstore in China and, commencing in or around 1997, they sold some books about Falun Gong. Sometime in 2000, the Public Security Bureau (PSB) learned of this and attended the bookstore. On August 26, 2000, Mr. Lin, his parents, and his older brother (who worked at the bookstore on weekends) went into hiding for fear of being arrested. Until then, Mr. Lin had been unaware that his family was selling Falun Gong materials. Mr. Lin testified that he is afraid if he is forced to return to China he will be captured by the PSB and used as a hostage in order to gain access to his parents and brother who remain in hiding.
[3] The Board, after accepting Mr. Lin's personal identity, wrote:
Where I have found concerns in the claimant’s evidence is in respect to why his family would collect money to have him sent out of China to Canada instead of having his parents or older brother, who were more at risk from the PSB. The claimant’s response was that his family decided that he should be the one that the family spend money to send out of the country because while he was in hiding for approximately three years he did not go to school. This was due to his fear of being apprehended by the PSB for questioning. Therefore, by sending him to Canada the claimant would have the opportunity, as in his own words, to become more civilized and to increase his education. This would also enable him to have increased options for future employment. This response has left me with concerns as to the claimant’s fear of being persecuted by the PSB if he returns to China.
[4] On Mr. Lin's behalf, it is argued that the Board erred in law by drawing a negative inference from his evidence that he was chosen to leave China because while in hiding he had not been able to attend school. He says that when there are several potential refugees, but only sufficient means to send one to safety, the Board should have acknowledged that non-refugee reasons could be taken into consideration when determining which one should be sent to Canada to seek protection.
[5] I agree in principle with that submission. One can well envision a situation where, for example, parents would wish their child to be the first person taken to safety. However, in the present case, after reading the transcript of the proceedings before the Board and reading the reasons of the Board as a whole, I am satisfied that the Board did not err as alleged. In the unique facts of this case it was accepted that Mr. Lin’s brother, who worked at the bookstore selling Falun Gong materials, was likely at more risk to face persecution than Mr. Lin. Therefore, it was open to the Board to have concluded it was implausible and inconsistent with human behaviour that the Lin family would chose to send the child who was at less risk to a safe country rather than the child who faced the higher degree of risk.
[6] The second asserted error is the Board's rejection of Mr. Lin's testimony that he had spoken to his grandparents approximately two weeks before the hearing and they told him that members of the PSB were still looking for him. The Board rejected this evidence because it had not been mentioned in Mr. Lin's Personal Information Form (PIF) and he had not amended the PIF to mention it. This is said by Mr. Lin to be an error because the PIF instructs applicants to "… set out in chronological order all the significant events and reasons that have led you to claim refugee protection in Canada". A PIF need only be amended, it is submitted, where new information received after the completion of the PIF corrects information in the PIF, or provides the basis for a new ground of claim. In my view, this is too restrictive an interpretation of the PIF instructions.
[7] In some situations it may be difficult to draw a bright line between events that cause a person to claim refugee protection and events that simply support or amplify the claim. In such cases, the Board should exercise great caution before rejecting out of hand evidence on the sole ground that it is evidence of an event or reason that caused a person to claim protection and therefore should have been referred to in the PIF.
[8] In the present case, it may well be that the PSB's continued interest in Mr. Lin was a matter that should have been added to update the PIF because Mr. Lin said he fled China because he feared the PSB. Its continuing interest in him could be said to be an event or reason that led Mr. Lin to claim refugee protection in Canada notwithstanding the significant time that has elapsed since he and his family went into hiding.
[9] In any event, I am satisfied that even if the Board erred by rejecting this evidence, any such error was not material to its decision. The Board did not believe that if Mr. Lin had a well-founded fear of persecution he would have waited four years before leaving China. The Board did not believe it would have taken that Mr. Lin's family a year to find a smuggler to assist Mr. Lin to leave China. The Board did not believe that a smuggler would remove Mr. Lin from China, place him in hiding in an unknown country called “Mangela” for a year, and then return to China so Mr. Lin could depart for Canada from Beijing. Those findings, which are not challenged, support the Board’s assessment of credibility.
[10] For these reasons, the application for judicial review will be dismissed. Counsel posed no question for certification and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1773-06
STYLE OF CAUSE: SHOU DONG LIN v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 31, 2007
APPEARANCES:
SHELLEY LEVINE FOR THE APPLICANT
SOLICITORS OF RECORD:
SHELLEY LEVINE FOR THE APPLICANT
LEVINE ASSOCIATES
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA