Date: 20011129
Docket: IMM-2501-00
Neutral Citation: 2001 FCT 1312
BETWEEN:
Juanmei CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review brought by the applicant pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, against a decision of the Convention Refugee Determination Division ("CRDD" or the "panel") of the Immigration and Refugee Board ("IRB") dated February 14, 2000, whereby it was determined that the applicant is not a Convention refugee.
[2] The applicant seeks an Order setting aside the decision.
Background
[3] The applicant is a citizen of China. She is a member of the group of claimants known as the Fujian boat-people, and is currently incarcerated in Prince George, BC. She claimed Convention refugee status on the basis of her fear of persecution based on religious beliefs.
[4] The religious congregation with which the applicant and her family worshipped collected sufficient funds to construct its own church building in 1999. The applicant testified that around Easter 1999, the building was "bombed" and consequently demolished by government forces. She stated that the building was one of 13 Catholic churches destroyed by the government between 1998 and 1999 in the region where her village was located. Government authorities, she said, tried to arrest Catholics and some were put in jail. She claimed that her sister, a nun, was arrested and tortured prior to her release, and that her parents went into hiding.
[5] The applicant stated that within 3 days of the church being demolished, she returned to her employment at a knitting factory away from her village and to her residence in the dormitory at the factory, where she remained safe until August 8, 1999, when she left China by boat. She expressed a fear of being returned to China as she believes that she would likely be fined and/or indeterminately incarcerated for her perceived religious beliefs and for her illegal departure from China.
The decision of the panel
[6] Although the panel first stated that it found the applicant to be basically credible, it did not find any documentary evidence referring to the destruction of the churches in her home village and the surrounding area, about which the applicant spoke. Consequently, it did not believe the applicant's evidence on this point.
[7] The panel commented that "there have been many instances of recorded violence against Christians during the past few years, specifically Catholics, in other parts of China." The panel acknowledged that some Catholics in China might have subjective grounds to fear persecution. However, it found that the applicant's involvement with the Roman Catholic Church was not sufficient to give rise to a well-founded fear of persecution. The panel noted that the applicant was not a christened Catholic, that during the past six years she had attended Catholic Mass in her village only once each year (at Christmas) and that she did not reside with her family members, who were more involved than she with the local Catholic community. Consequently, the panel concluded that "...it might be possible that ...[the applicant's] parents or her sister would have subjective grounds [to fear] persecution, but not the claimant."
[8] Furthermore, the panel found that even if the applicant were to receive a fine or punishment upon her return to China related to her departure without permission, as she claimed she would, that would not constitute persecution within the meaning of either the International Refugee Convention or of the Act. The Federal Court of Appeal ruled in Valentin v. Canada, [1991] 3 F.C. 390 (C.A.) that the Convention is not intended to protect people who, having been subjected to no persecution to date, by their actions make themselves liable to punishment under a law of general application in their home country.
Submissions of the Applicant
[9] The applicant raises five issues. Three concern the panel's dealing with documentary evidence. The applicant submits that the panel erred by failing to provide her, prior to the hearing, with a copy of a Response to Information Request prepared by the IRB, which, in discussion of difficulties for religious communities in China, contained no reference to construction of a Catholic Church and its destruction in her home village in March 1999. The report in question was first presented to the applicant in cross-examination at the hearing. It is urged before me that untimely disclosure of the report violated her right to a fair hearing.
[10] The applicant also submits that the panel erred by treating the research report as definitive, although the report itself stated that it was created within time constraints and was not intended to be conclusive of the merits of any particular claim. That it was not the final word on the matter was borne out by a later Response to Information Request, dated January 27, 2000, after the hearing but before the decision of the panel on February 14, 2000. The later report, ignored by the panel's decision, included reference to destruction of 13 churches in the area of the applicant's village in March 1999.
[11] The applicant submits that the panel erred by failing to refer to the second report which contained evidence of the bombing of the 13 churches. The applicant submits that by failing to consider this second report, the panel either failed in its duty to keep abreast of relevant material produced for its purposes, or it improperly disregarded the second report. In either case, the applicant contends that the panel, in finding the applicant's evidence not credible, erred by failing to refer to the second report in its decision, after referring to the earlier report which proved inaccurate.
[12] The applicant submits that the panel's adverse credibility finding was perverse, in contradiction to the evidence and to its own findings of fact. Thus, while the panel initially stated that the applicant was basically credible, it did not find her credible on the particular issue of the alleged destruction of her family's church, and its final determination was that "in view of all the evidence presented...the claimant's testimony lacked credibility and was not trustworthy".
[13] Finally, the applicant submits that the panel's decision discloses a reasonable apprehension of bias. In her memorandum of fact and law, the applicant submits that the panel described her as being "‘surprisingly credible'" (emphasis in original). The applicant submits that the use of the word "surprisingly" suggests that the panel did not approach the hearing with an open mind.
[14] The respondent opposes the positions advanced by the applicant.
Analysis
[15] The applicant claims she was denied a fair hearing since the first report, relied upon by the panel to her prejudice, was available but not disclosed to her prior to the hearing. In Yang v. Canada (Minister of Employment and Immigration), (1990) 111 N.R. 148, it is urged that where reliance was placed on respondent-commissioned evidence, not seen by the applicant prior to the hearing, there may be a denial of natural justice. However, in Yang, the visa officer, whose decision was in issue, had requested that the applicant provide certain documents to the Consulate, but then decided the applicant's case before the applicant had opportunity to deliver the documents requested, basing the decision on documents not known to the applicant. Thus, the denial of an opportunity to present requested evidence, before the decision was rendered, also constituted unfairness in Yang.
[16] In Iyonmana v. Canada (Minister of Citizenship and Immigration), (5 April 2000), IMM-3389-99 (T.D.), [2000] F.C.J. No. 478), the Court set aside a decision where the panel relied on IRB-generated documentation that "effectively gutted the applicant's claim", and the applicant had not been provided with an opportunity to make oral submissions about the documentation. In the case at bar the report was presented to Ms. Chen, but only during cross-examination. While she was given an opportunity to respond, that does not meet the standard which prior disclosure would have assured.
[17] In Nrecaj v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 630 (T.D.), and in Khan v. Minister of Citizenship and Immigration, 2001 FCT 639 (T.D.), [2001] F.C.J. No. 980, where documentary evidence was relied upon to discredit evidence of the claimants at refugee hearings, but the documents had not been disclosed in advance, the Court allowed applications for judicial review and set aside the negative decisions of the panels. In both cases, counsel for the applicant had requested disclosure in advance of the hearing of documents to be relied upon before the panel.
[18] That was not requested in advance in this case and here the respondent urges that there is no evidence that counsel representing the applicant had objected to reference to the first Response to Information Request when it was introduced at the hearing. I am not persuaded that should discount the obligation to provide disclosure of documents in advance of the hearing, particularly where the document not disclosed is relied upon to find the applicant's testimony not credible, and the document is subsequently found, by a later report, presumably available to the panel in advance of its decision, to contradict the conclusion drawn by the panel in regard to a key element of the applicant's testimony.
[19] The applicant's second argument is that the panel erred by treating the research report as definitive, although the report stated that it was created under time constraints and was not intended to be conclusive of the merits of any particular claim. In its decision the panel wrote:
Counsel stated in his submissions that it is possible that the sources consulted for this information might not have been advised of this specific incident in the claimant's village...The panel does not accept this explanation because the claimant stated in the narrative of her PIF that in fact 13 churches surrounding Chang Guo have been bombed. The panel does not believe that 13 churches being bombed within the same vicinity within a 12 month period would not have been reported to a variety of reliable sources, including the Catholic Church itself and Amnesty International.
[20] In my view, the panel's inference from the absence of any documentary confirmation of the applicant's testimony about destruction of churches was not sustainable in light of the subsequent Request for Information which confirmed that aspect of the applicant's story.
[21] The third argument raised by the applicant is that the panel erred by failing to refer to the second information report which included reference to the destruction of 13 churches, a report dated after the hearing but before the panel made or released its decision. Admittedly the second report was not before the panel at the time of the hearing.
[22] In Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 511 (T.D.), Mr. Justice McKeown declined to intervene where the CRDD did not take into consideration documents provided by the applicant the day after the hearing and again after the panel's decision was made but before it was issued. In that case, McKeown J. noted that the documents in question were available to the applicants who could have submitted them earlier to the panel at the time of its hearing, and he commented, at para. 9:
...the Board is under no continuing obligation to consider relevant evidence in its possession if it is not adduced by the applicants and is not included in the material that the Board has before it at the time of the hearing.
The judgment was upheld by the Federal Court of Appeal, and Mr. Justice Décary commented, (2000) 264 N.R. 382 at para. 5, that:
The second issue is whether the Board member was under a continuing obligation, after the conclusion of the hearing and before she signed her written reasons, to consider documents that were not filed at the hearing but which had come into the possession of the Refugee Division in the meantime. There is no evidence in the case at hand that the Board member ever saw the document at issue prior to signing her written reasons. Again we endorse the reasons for judgment of Mr. Justice McKeown and find that there was no such continuing obligation on the Board member.
[23] In Omar v. Canada (Minister of Citizenship and Immigration), (1998) 146 F.T.R. 113, documents in possession of the panel before its hearing and its decision were of importance to the applicant's case, and would probably not have been known to the applicant. In those circumstances, Mr. Justice Teitelbaum held that the panel had a duty to consider the documents which were supportive of the applicant's claim.
[24] In my view, under normal circumstances a panel is not under a continuing obligation to consider documents that were not raised by the applicant or by the Refugee Hearing Officer at the hearing. Nevertheless, a continuing obligation may arise in exceptional circumstances, where, as in this case, the panel's decision relies significantly on a document, produced by the IRB in response to requests for information from members, to find the applicant's testimony not to be credible, where that conclusion with respect to a major element of the testimony is not sustainable in light of documentary information later provided from the same source, even after the panel's hearing but before its decision. If the second report of information contradicts facts alleged in, or inferences drawn from, a prior report on which the panel relies significantly, the panel should be expected to be aware of the later information produced for the benefit of CRDD panels generally. In my opinion, it would constitute injustice for the panel to rely solely on the first report when a later report on the same matter, contradicting an inference from the first report on which the panel relies, is available well before the date of the decision. In this case the later report is dated some 18 days before the decision of the panel.
[25] The applicant's fourth argument is that the panel's adverse credibility finding was perverse and in contradiction to the evidence and to its own findings of fact. Here the panel found the applicant basically credible, accepting most of her story except about the destruction of the churches. A panel may find an applicant's testimony on one issue credible, and the same applicant's testimony on another issue not to be credible. Here after accepting most of her story as credible, the panel concluded that her testimony generally lacked credibility and was not trustworthy. That final assessment is not well-supported in the decision.
[26] As for the applicant's final concern, I am not persuaded that the panel's description of the applicant as "surprisingly credible" discloses a reasonable apprehension of bias. This issue, in my opinion misconstrues the reference in the decision, where the words were applied in a limited context, as follows:
The claimant's knowledge of Catholicism, especially considering that she has only attended Mass once per year for the past six years, was surprisingly credible.
The panel's expressed surprise was related only to its assessment of her knowledge of Catholicism despite her limited participation in church activities.
[27] In my view, a reasonable, knowledgeable observer would not consider this indicative of bias - or that it would give rise to a reasonable apprehension of bias.
Conclusion
[28] In conclusion, I find that the panel's reliance on its inference, from the absence of a documentary record, that the testimony of the applicant about the destruction of churches by the authorities was not credible, was a key element in its conclusion that she lacked credibility. That inference was not sustainable on the basis of a subsequent report from the same source, the IRB, intended for use of panels considering refugee claims. That later report was available after the hearing but more than two weeks before the panel's decision. In the result, the panel's failure to take account of the later report, intended for use by it and other panels, warrants intervention by this Court if justice is to be seen to be done, and to be done, in this case.
[29] An Order goes setting aside the decision of the panel and referring the applicant's claim to the IRB for reconsideration by a differently constituted panel.
(signed) W. Andrew MacKay
______________________________
JUDGE
OTTAWA, Ontario
November 29, 2001.