Date: 20001205
Docket: IMM-1745-00
BETWEEN:
JIAN HUI ZHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant, 22, claims to have a well-founded fear of persecution as the brother of a person who has violated the one-child policy of his country of citizenship, the People's Republic of China. The testimony of the applicant was not found to be credible by the Convention Refugee Determination Division and it was determined that he was not a Convention refugee.
[2] The applicant now challenges this decision on the ground that the tribunal's inferences and findings of implausibility were either unreasonable or, in any event, did not form part of the questioning of the applicant by the panel members. The applicant further argues that the unavailability of the transcript of his refugee hearing for this judicial review proceeding constitutes a denial of natural justice. The hearing was recorded but a technical difficulty in the taping equipment made the production of a transcript impossible.
[3] This application for judicial review, therefore, entails a twofold exercise: to determine whether the words spoken at the hearing are necessary for the proper disposition of this proceeding and whether the tribunal's credibility and plausibility findings were patently unreasonable.
The unavailability of the hearing transcript
[4] Even where there exists a statutory right to a recording of a tribunal hearing, the applicant must show a "serious possibility" of an error concerning which the absence of a transcript effectively removes the right of judicial review: Canadian Union of Public Employees, Local 302 v. Montreal (City).1
[5] Neither the Immigration Act2 nor the Convention Refugee Determination Division Rules3 requires the recording of the refugee hearing. In the absence of a statutory right to a recording, the Court must determine whether the available record, including affidavit evidence concerning the hearing, allows a proper disposition of the application for judicial review.4
[6] In this case, the applicant chose to supplement the tribunal record, in the absence of the transcript, with his affidavit setting out statements he made during the hearing with respect to the credibility and the plausibility issues considered in the tribunal reasons for decision. His affidavit evidence is neither contradicted nor corroborated: he was not cross-examined and there is no affidavit from any other person.
[7] The parties have identified five findings concerning credibility and implausibility which will be considered in turn to determine whether the absence of the transcript compromises an effective judicial review of the tribunal decision.
| (i) The number of children in his brother's family |
[8] The tribunal noted a discrepancy in the applicant's evidence concerning the number of children in his brother's family:
| In his PIF, the claimant stated that his brother had one child. He wanted to have one more child but he could not afford the big fine imposed by family planning officials for extra children. In his interview with Immigration officials, the claimant stated that his older brother had two children. When confronted with this inconsistency, the claimant replied: "They heard me wrong." The panel does not consider this explanation reasonable. He provided other information in the interview that was not disputed and when an inconsistency was pointed out, he was quick to put the blame on the Immigration Officer or the interpreter. [Footnote omitted.] |
[9] The facts on this issue are straightforward. It is uncontradicted that when the applicant left China his brother and sister-in-law had one child and were expecting another child. When he was interviewed by the immigration official, the applicant knew that his sister-in-law was pregnant but it was not until months later that he learned she gave birth to twins.
[10] In his affidavit, the applicant describes his evidence at the refugee hearing in these terms:
| I did not receive news that my brother and sister-in-law had twins in 1999, until I received a letter from my brother, which I received while I was in detention in Canada, sometime in late 1999. Prior to that I did not know my sister-in-law was expecting twins. This was in evidence during my hearing as I provided a copy of a letter I received from China from my brother, and the envelope it was sent in, with a stamp that showed it was sent from China December 11, 1999 (Exhibit 5). These were translated by the interpreter during my hearing, and in the letter it said that my brother had twin sons. I stated in my testimony that I didn't know why it said in my interview notes with immigration officials that my older brother had two children. [Emphasis added.] |
I see no significant difference between the applicant's affidavit evidence concerning his testimony with respect to the interview notes of the immigration official and the statement attributed to the applicant in the tribunal's reasons: "They heard me wrong."
[11] The applicant's evidence before the tribunal could not have been fully candid. According to his version, he knew prior to the refugee hearing that his brother's wife had given birth to twins. He did not have this information when he was interviewed by the immigration officer. The applicant suggested to the tribunal that the immigration officer erred in noting that his brother had two children. The truthful answer - if his story is to be believed - should have been that he told the immigration official his brother had two children because he knew the couple was expecting a second child and only subsequently learned that twins were born. The respondent's counsel correctly pointed out that the applicant did not clarify this part of his testimony in written submissions filed after the hearing.
[12] The applicant has not shown that the transcript would be of assistance in his questioning of the tribunal's credibility finding on this issue.
| (ii) The applicant's escape from prison |
[13] The tribunal did not believe that the applicant, after being arrested and detained by officials who wanted to locate his sister-in-law, escaped from prison:
| The claimant testified that when the family planning officials could not find his sister-in-law so she could undergo a forced abortion, he was arrested and detained. He was held for two or three days in jail. He escaped by managing to pull the iron bars from the window. The panel does not find it plausible that after more than 10 people came to arrest the claimant, detained and constantly beat him for two or three days, they would be so inept and careless enough to put him in a jail with an unprotected window, allowing him to escape through that window by pulling the old and defective bars with his bare hands. |
[14] In his affidavit, the applicant challenged the tribunal's finding in these terms:
| My counsel asked me how I escaped, and I explained that the iron on the window was very old and rusty, and I could pull it away. The Panel did not ask me how it could happen that, after more than 10 people from Family Planning came to arrest me, detained me for 2 to 3 days and beat me, and put me in a jail cell, that I was able to escape. The only questions I was asked about my escape were by my counsel. |
[15] The applicant's only reproach is that he was not questioned on this issue by the tribunal. His testimony, as summarized by the tribunal, is consistent with his personal information form. The applicant does not challenge the tribunal's recitation of his evidence. I attach no importance to the alleged discrepancy between the tribunal noting that the applicant was beaten "constantly" over two or three days and his affidavit evidence that he had been beaten "2 to 3 times while I was in detention for 2 to 3 days". The transcript is not necessary to resolve this issue.
| (iii) The applicant working in Fuzhou City |
[16] After his escape from prison, the applicant apparently went into hiding in Fuzhou City where he worked on a construction site. The tribunal further challenge the applicant's credibility in these terms:
| The panel does not find it credible that the claimant, at the same time that he was hiding in Fuzhou, was also working as a welder in a construction site. This only indicates that the authorities were not looking for him. |
[17] Again, the applicant's affidavit does not question the accuracy of the tribunal's summary of his evidence. His complaint is that the tribunal made its finding of implausibility without further questioning him on the issue. This is the applicant's affidavit evidence:
| The Panel and the RCO did not ask me any questions during my hearing about how it was that I could live on a construction site while I was in hiding in Fuzhou City in China. If they had, I could have reasonably explained this apparent implausibility. Most of the questions I was asked by the Panel about how I lived in Fuzhou City were related to what I did to earn a living while I was there. I was questioned in great detail about how I did my job as a welder but I was never questioned about how I lived in the construction site. The other related question I was asked by the Panel was whether I had my household registration, or a temporary registration, in Fuzhou City. I answered no to both these questions. When I was asked why I wasn't registered, I said it was not necessary because I was only there a short time. |
[18] There is no discrepancy raised by the applicant concerning his working in Fuzhou City after escaping prison. The transcript is not required to adjudicate the applicant's submission that the tribunal should have questioned him further on this issue before concluding that his version was implausible.
| (iv) The applicant's identity document issued in November 1999 |
[19] The tribunal's finding is stated in these terms:
| The claimant presented an Identity Certificate issued by the Neighbourhood Committee of Yutian Village dated November 28, 1999. It is not credible that at the time he alleged he was being sought by the authorities, his own Neighbourhood Committee would issue him an identity document. |
[20] Here again, the affidavit only challenges the tribunal's failure to question him further before reaching its negative finding. He does not suggest the transcript would disclose further information to support his application for judicial review. This is clear from the applicant's affidavit evidence:
| I provided a reasonable explanation at my hearing as to why I could obtain an identity card from my village Neighbourhood Committee while I was being sought by the authorities from the Family Planning department in the town. I explained that these two departments, one in the village and one in the town, are different and have few connections between them. If I had known this explanation was not satisfactory, I could have provided more explanation, but the Panel did not question me further on this. |
| (v) The targeting of the claimant when other family members still lived in his village |
[21] Finally, the tribunal questioned why the authorities would target the claimant in their attempt to locate his brother and sister-in-law when his mother and younger brother were still in his village:
| The claimant maintained that the family planning authorities are still looking for him to keep him in detention until his sister-in-law and his brother surrender for violation of the One-child Policy. The panel does not find it plausible that the authorities would continue to target the claimant while his mother and brother are still living in the village. The authorities could have detained the claimant's mother and brother so his older brother and his sister-in-law would surrender themselves. |
[22] On this issue also, the applicant's affidavit evidence is wanting. His counsel acknowledged that this issue was pursued by the tribunal members during the hearing. There is no suggestion that the tribunal ignored or mischaracterized evidence which would be disclosed if the transcript were available.
[23] In summary, the applicant has not established that there exists "a serious possibility" the unavailability of the hearing transcript will compromise the proper adjudication of this application for judicial review. Accordingly, I conclude that the technical failure in the recording of the hearing does not, in the circumstances of this case, constitute a breach of natural justice.
The tribunal's findings of implausibility
[24] The applicant states that the tribunal improperly drew inferences and made findings of implausibility without supplementing the examination of his counsel with their own questions. In support of this proposition, the applicant relies on the decision in Nkrumah v. Canada (Minister of Employment and Immigration)5 where, in obiter comments, my colleague Justice MacKay noted at paragraph 7:
| Of course the panel may draw inferences from the evidence presented. In my view, however, where the panel's inferences are based on what seemed to be "common sense" or rational perceptions about how a governmental regime in another country might be expected to act or react in a given set of circumstances, there is an obligation, out of fairness, to provide an opportunity for the applicant to address those inferences on which the panel relies. |
In making this statement, Justice MacKay also noted that: "... questions here raised by the panel in its decision were not raised in the course of examination or cross-examination of the applicant during the course of her testimony."
[25] I prefer to adopt Justice MacKay's statements in his subsequent decision in Sarker v. Canada (Minister of Citizenship and Immigration),6 where he stated:
| 14. Here the panel was not concerned with inconsistencies in the applicant's evidence. Rather it found key aspects of the applicant's story to be implausible given the panel's general understanding from documentary evidence of country conditions in Bangladesh, and its own experience. The finding that evidence is implausible is a conclusion based on assessment of its likely veracity in all of the circumstances. That conclusion may only be reached after the hearing is over, all the evidence has been submitted and the panel has opportunity to consider it. |
| 15. In my opinion there is no obligation on the panel to signal its conclusions on implausibility or on the general credibility of evidence, in advance of a decision. Rather, the onus remains on the applicant to establish by credible evidence his claim to be considered a Convention refugee. The panel did not err, or fail to ensure procedural fairness in concluding there were implausibilities in the applicant's evidence without first bringing those to the attention of the applicant and providing opportunity for him to respond. |
[26] The applicant acknowledges that he was questioned, at least by his own counsel, on the factual issues upon which the tribunal made its negative finding of credibility. It is trite law that the burden is on persons who seek refugee status to establish that their claims are well-founded in accordance with the applicable legal principles. The applicant does not question that credibility was in issue before the tribunal.
[27] There is no suggestion by the tribunal that its negative inferences or findings of implausibility were based on any contradictions between statements made by the applicant in his personal information form and during his refugee hearing testimony. Nor is there any suggestion of any serious contradiction between two different statements made during his testimony or between his oral evidence and a personal document. Put simply, the tribunal did not believe the applicant's testimony.
[28] In these circumstances, the tribunal was not required to question further the applicant. It was open to the tribunal, on the basis of the applicant's personal information form and his oral testimony to make its negative finding of credibility and its findings of implausibility: Matarage v. Canada (Minister of Citizenship and Immigration);7 Ayodele v. Canada (Minister of Citizenship and Immigration);8 and Sarker, supra note 6. The applicant has not established that the tribunal's findings were patently unreasonable.
[29] Similarly, I find no reviewable error in th tribunal's analysis of the objective basis of the applicant's fear of persecution nor in its application of the principles in Valentin v. Canada (Minister of Citizenship and Immigration).9
[30] For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
December 5, 2000
__________________1 [1997] 1 S.C.R. 793 at paragraph 77.
4 C.U.P.E., supra note 1, at paragraphs 81 and 83; and Kandiah v. Minister of Employment and Immigration (1992), 141 N.R. 232 (F.C.A.) at 235. The principles in C.U.P.E. have been applied in a number of decisions of the Trial Division where some portion or all of the transcript was unavailable. Those decisions relevant to this proceeding include: Razm v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 140; Shang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1467 (QL) (T.D.); Likele v. Canada (Minister of Citizenship and Immigration) (1999) 175 F.T.R. 281; Ahmed v. Canada (Minister of Employment & Immigration), [2000] F.C.J. No. 739 (QL) (T.D.); Tang v. Canada (Minister of Employment & Immigration), [2000] F.C.J. No. 979 (QL) (T.D.); and Kazemian v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1179 (QL) (T.D.).
6 (1998), 45 Imm. L.R. (2d) 209 (T.D.) at paragraphs 14-15.
7 [1998] F.C.J. No. 460 (QL) (T.D.) at paragraph 8.