Date: 20020904
Docket: IMM-418-02
Neutral citation: 2002 FCT 938
Ottawa, Ontario, Wednesday, the 4th day of September 2002
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
CHAO QUAN ZHAO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mr. Zhao is a 26 year-old citizen of the People's Republic of China ("PRC") who claims status as a Convention refugee on the basis of his Christian religion. The Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") found the determinative issue on his application to be credibility, and found Mr. Zhao not to be credible. Specifically, the CRDD did not believe that Mr. Zhao is a Christian, or that he is sought by the Public Security Bureau ("PSB") as he asserts.
[2] In reaching its conclusion as to credibility the CRDD found as follows:
1. Mr. Zhao testified that in September 2000 officers from the PSB entered the church Mr. Zhao, his family and others were attending and arrested the pastor and others who came to the pastor's assistance. The CRDD found Mr. Zhao's testimony to be implausible that at that time Mr. Zhao was able to argue with the PSB for about an hour, be hit by an officer, and then escape with his family without being arrested by one of the more than ten PSB officers in attendance.
2. Mr. Zhao testified that he had been going to church since he was a young boy. The CRDD found his knowledge of Christianity was not what would be expected given the length of time he had been a church goer. Specifically, Mr. Zhao could not answer questions about what communion or baptism are, or what the significance is of Christmas or Easter.
3. The CRDD found Mr. Zhao's testimony before it to not match with the information he provided to an immigration officer shortly after his arrival in Canada. He told the immigration officer that he did not want to go back to China because "the government decided to tear down the Christian churches and we decided to protest against the government and they chased them and then we had no choice but to flee China". This evidence was not given by Mr. Zhao before the CRDD. The CRDD also noted that Mr. Zhao told the immigration officer that he would like to go back to China.
4. The CRDD did not believe that Mr. Zhao was wanted by the PSB because:
a) Mr. Zhao was able to regularise his wife's status by registering her home in his hukau on February 9, 2001, five months after the police were alleged to be looking for him; and
b) Mr. Zhao registered his fisherman's identification with the PSB at a time when the PSB was said to be looking for him.
5. The CRDD did not believe that Mr. Zhao arrived in Canada as he testified. It was Mr. Zhao's testimony that he and eight other fishermen escaped a fire on the vessel Ming Chang by raft, and then floated in the raft for six days without seeing any other boat before the raft drifted to the coast of Vancouver Island. The CRDD preferred the evidence adduced by the Minister that Mr. Zhao arrived on the vessel Jin Tung Lung No. 33 after he and others staged a mutiny as the vessel approached Vancouver Island. The CRDD wrote:
In reviewing this very comprehensive evidence, we are persuaded that:
a) On the day of the claimant's arrival, the Tofino Traffic Centre had received a report of mutiny on a fishing vessel named the Jin Tung Lung No. 33;
b) The Juan De Fuca Strait has a very high volume of traffic especially in summer and it would therefore be highly unlikely that a raft could drift for six days in the Strait without being spotted;
c) The list of crew members of the Jin Tung Lung No. 33 contained the name and the ID number of the claimant, as confirmed by him at the hearing;
d) An article from the Taiwanese newspaper Su Ao Harbor dated July 11, 2001 reported the hijacking of the boat by nine Chinese fishermen from Mainland China;
e) The claimant and his fellow crew-members arrived to the shores of Vancouver Island carrying a bag containing clothing, and other personal effects, which would be unlikely if he had been fleeing a fire, as alleged;
f) There were no reports of any fire on a boat in the general vicinity, and no evidence of a boat catching fire in the middle of the night of June 9, 2000 when the claimant allegedly arrived in the Juan De Fuca Strait;
g) The claimant's Labour Service Certificate with his photo were returned by the captain of the Jin Tung Lung No. 33 to the Taiwanese government and were subsequently filed by CIC enforcement as received from the Canadian Trade Office in Taipei, and
h) The vessel Jin Tung Lung No. 33 entered Canadian waters and came within two miles of the coastal area (in the general vicinity where the claimant was found) at around 2:00 a.m. on the 9th of June 2001.
When confronted with the above information, the claimant did not provide a reasonable explanation for how his name could be on the crew manifest of a ship that he was not on. His answers were non-responsive and did not shed any light on how he arrived in Canada._ [footnotes omitted]
6. The CRDD noted that an article of the United States Department of State International Information Programs refers to methods employed by snakeheads removing people from the PRC. That article stated:
One method the US Coast Guard is seeing more of involves fishing boats registered with Taiwan, which take on crews from Mainland China. In the case of a human smuggling operation, the crew mutinies as the boat reaches Guam, the US West coast or Canada. The master is forced to bring them close to shore so they can get off the vessel. [footnote omitted]
[3] On this application, Mr. Zhao challenges only two of the findings of the CRDD. First, he says that the CRDD breached principles of fundamental and natural justice when it relied upon inconsistencies between information contained in the immigration officer's interview notes and evidence provided elsewhere, without putting the apparent inconsistencies to Mr. Zhao during the hearing. Second, he says that the CRDD erred by improperly drawing an adverse inference about Mr. Zhao's credibility from the fact that Mr. Zhao was able to obtain from the Chinese authorities the identity document known as the hukau without apparent difficulty.
[4] With respect to the first alleged error, the fact that Mr. Zhao did not give information to the CRDD that he had given to the immigration officer was apparent, or ought to have been apparent, to his counsel who conducted Mr. Zhao's direct examination. The CRDD was not obliged to draw that omission to counsel's attention. Mr. Zhao was asked by a member of the CRDD as to why new information he provided to the CRDD about his church being dismantled was not previously provided. In my view, this provided a sufficient opportunity to Mr. Zhao to explain why new information was given before the CRDD.
[5] Similarly, the Minister's representative did ask Mr. Zhao about his statement to the immigration officer that he wanted to return to China. This afforded Mr. Zhao an opportunity to provide whatever explanation he felt appropriate to the CRDD about that advice.
[6] In my view the CRDD therefore complied with the duty of fairness.
[7] With respect to the inference drawn from the registration of the hukau, the CRDD did acknowledge in its reasons that Mr. Zhao said that he had not personally received this document from the authorities. The CRDD then went on to note that there was no evidence that any problems had been experienced by anyone in obtaining this document, notwithstanding that the PSB was, according to Mr. Zhao, "looking for him everywhere". The hukau was, on the face, stated to have been issued "Under Supervision of The Ministry of Public Security of the P.R.C.". In that circumstance, the CRDD's inference was not patently unreasonable. The fact that the hukau was stated to be issued under the supervision of the Ministry of Public Security distinguishes authority such as Ponce-Yon v. Canada (Minister of Employment and Immigration) (1994), 73 F.T R. 317 (T.D) relied upon by Mr. Zhao.
[8] Moreover, the CRDD did not rely on this one inference to find Mr. Zhao was not wanted by the PSB. It also relied upon the fact that Mr. Zhao had registered his fisherman's identification with the PSB. No complaint was made with respect to that inference and it was one open to the CRDD to draw on the evidence before it.
[9] In any event, the detailed reasons of the CRDD demonstrate that the CRDD carefully considered all of the evidence before it. The conclusion of incredibility was premised on far more than these two impugned conclusions. The finding of incredibility was manifestly open to the CRDD on the evidence and was in no way unreasonable.
[10] The application for judicial review is therefore dismissed.
[11] Counsel for Mr. Zhao proposed certification of the following as a serious question of general importance:
If the Refugee Protection Division relies on information contained in port-of-entry notes, is it an error if reliance is placed on such information when the claimant is not asked during his hearing about apparent inconsistencies between information in the notes and [the claimant's] viva voce evidence?
[12] The Minister opposed certification of the question.
[13] In my view, the question posed does not arise on this record as the transcript reflects that the areas of concern were raised with Mr. Zhao so as to ensure his right to a fair and meaningful hearing. In the result, no question will be certified.
ORDER
[14] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
_______________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-418-02
STYLE OF CAUSE: Chao Quan Zhao v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 27, 2002
REASONS FOR ORDER AND ORDER : DAWSON J.
DATED: September 4, 2002
APPEARANCES:
Larry W.O. Smeets FOR APPLICANT
Sandra Weafer FOR RESPONDENT
SOLICITORS OF RECORD:
Kowarsky and Company FOR APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada