Date: 20011016
Docket: IMM-2802-00
Neutral citation: 2001 FCT 1124
BETWEEN:
AN HE
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 as amended, concerning a decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated May 1, 2000, whereby it was held that the applicant is not a Convention refugee.
[2] The applicant seeks an Order setting aside the decision, and remitting the matter to the CRDD for consideration by a differently constituted panel. The Board determined that the applicant's testimony with respect to material aspects of his claim lacked trustworthiness, and, therefore, was not credible.
Facts
[3] The applicant bases his claim for Convention refugee status on his claim to fear of persecution by the Chinese government because of his perceived political opinion. The applicant claims that he and his wife have three children. In 1998, the applicant's wife was required to be sterilized in accordance with China's family planning policy. Complications arose with respect to the sterilization procedure and her health deteriorated to the point where she could not work. At the time, the applicant did not have funds to pay for required medicine and so he approached the birth control office for assistance because he believed his wife's health problems resulted from her sterilization. The birth control officers threatened to report the applicant to his factory for making trouble, and when they did, he was fired.
[4] The applicant's wife's health continued to deteriorate, and he eventually took her to the birth control office to again request assistance in procuring necessary medication. They were expelled from the office, whereupon the applicant stood outside and shouted criticisms of the office and the policy it enforces. The applicant was ordered to leave. He says he was accused of spreading anti-government rumours in public places and of subverting the government's family planning policy.
[5] Following this incident, the applicant was informed by his brother that he was wanted by the Public Security Bureau ("PSB") because of his anti-government comments. He then determined it would be safer for both himself and his family if he fled the country, which he did.
[6] After hearing the testimony of the applicant and considering the evidence adduced before it, the CRDD panel found crucial aspects of the applicant's story to be unbelievable. Specifically, the panel did not believe: that the applicant was employed in a factory or that he was dismissed from employment because of problems with the birth control office; that his wife was forcibly sterilized or arrested; that the applicant had any difficulties with Chinese authorities; or that Chinese authorities were searching for him because he had voiced anti-government statements in public. Moreover, it appeared to question whether he is married with three children since he had no evidence to show that. The panel concluded that the applicant fabricated the entire story to advance his refugee claim. By its decision the panel determined the applicant's evidence was not credible or trustworthy. Thus, he was unable to establish a well-founded fear of persecution based on political opinion.
[7] The CRDD reached its conclusion primarily on the basis of inconsistencies in the applicant's story between the version, as told in his own words and language, in port of entry notes, i.e., his completed Refugee Claimant Record of Examination, completed on his arrival in Canada, and the version as told by his later Personal Information Form ("P.I.F."), completed for his refugee claim, as that was elaborated by his testimony before the panel.
[8] In its decision the CRDD noted that the port of entry notes made no reference to being persecuted by Chinese authorities as described in his P.I.F. Further, although apparently asked several times at the port of entry why he fled China, and why he sought refuge in Canada, Mr. An He gave no response indicating fear of Chinese authorities or of political difficulties arising from his alleged activities against the policy of forced sterilization, to which he later claimed his wife had been subjected. The port of entry notes make no reference to these elements which were central to his claim as later set out by his P.I.F. and his testimony at the hearing of the panel. His reason for coming to Canada, as expressed in the port of entry notes, principally concerned his interest in finding employment to support his family.
[9] The applicant sought to explain the inconsistencies, but his explanation was not found persuasive by the panel. In particular, the panel did not believe that the immigration officer at the port of entry had told him to be brief and to tell his story in more detail to the CRDD when he later completed his refugee claim. Apart from matters omitted from the port of entry notes and later mentioned in his P.I.F., in both the port of entry notes and in his P.I.F. the applicant, when asked about his former employment, had indicated he was self-employed. His testimony that he had been fired from his factory employment was not accepted by the panel.
[10] In concluding paragraphs the decision of the panel stated:
...
The panel does not believe that the claimant had any problem in China at the hands of the Chinese authorities or that wife was sterilized or arrested. The panel does not believe that the Chinese authorities were looking for him because he had given anti-government statements before government buildings, or for attacking birth control policies or for disturbing public social order, or that he ever visited the Family Planning office because of his wife's problems. He did mention in his documentary evidence that he had three children. When asked if he has any family photographs of his three children, the claimant stated that he did not. The claimant had nothing to show that he was married and had three children.
The panel believes that the claimant has fabricated the entire story to advance his refugee claim. Furthermore, the panel finds the claimant's numerous inconsistencies between his documentary evidence, his PIF and his oral testimony, as described above, not credible or trustworthy.
Since the panel has determined that the claimant's evidence is not credible or trustworthy, it follows that the claimant has not established a well-founded fear of persecution for reasons of his political opinion or for any of the other Convention grounds, and, therefore, the claim must fail.
...
[11] In reaching its conclusion the CRDD decision made no reference at all to certain documents submitted by the applicant, i.e.:
- a marriage certificate issued to An He on Nov. 7, 1991, certifying his marriage to Jiang, Zhu Ying, said to be issued by the People's Government of the Suburbs of Fuzhou City.
- a birth control operation certificate, indicating sterilization by tubal legation of Jiang, Zhu Ying, issued on May 15, 1998 as a Birth Control Operation Certificate of Fuzhou City.
- Patient Medical Treatment Records relating to Jiang, Zhu Ying indicating treatment on May 15, ‘98, May 22, ‘98, June 24, ‘98, Feb 16, ‘99 and May 30, ‘99, and Feb. 11 and Feb. 28, 2000, by Lang Qi Hospital of Fuzhou City .
Issues
[12] For the applicant it is urged that the CRDD erred in ignoring evidence that concerned the central element of the applicant's claim. It is urged as well that the panel erred by basing its decision primarily on evidence provided by the port of entry notes and ignoring the evidence of the applicant's P.I.F. and his testimony.
Analysis
[13] In my opinion the panel erred in certain of its conclusions doubting the applicant's marital status and rejecting his claim of mistreatment of his wife, without having made any reference to, or assessment of, the respondent's evidence concerning his marriage and the medical records of treatment of his wife following her alleged sterilization. In doing so the CRDD appears to have overlooked evidence that was supportive of key elements of the applicant's claim. (see Cepeda-Gutierrez v. Canada (M.C.I.) (1998), 157 F.T.R. 35 (F.C.T.D.)
[14] The principal factors relied upon by the CRDD were inconsistencies in the notes compiled at the port of entry at least in part by the applicant, and his evidence as included in his P.I.F. and his testimony. In particular, the omission from the first of those documents of any reference to the applicant's concerns about his subsequently voiced persecution in China because of his criticism of the family planning process as it was applied in relation to his wife, appears to have been considered particularly significant by the panel. Yet the panel ignored the evidence of his marriage and of his wife's sterilization. Having made no reference to that evidence, it clearly doubted that he was married with three children, and concluded his story of his activities directed against the birth control practices of the state, as experienced by his wife, was not to be believed.
[15] In my view, the CRDD panel's doubt about the applicant's marital status and its rejection of his story of mistreatment of his wife by the family planning authorities was without regard to any consideration of documents supportive of those key elements of his claim.
[16] In sum, the decision of the CRDD that the applicant's evidence was not credible or trustworthy was patently unreasonable. It is a decision, in the words of s-s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, that can be characterized as a determination based on a finding of fact made in a perverse or capricious manner without regard to the material before the panel.
Conclusion
[17] In light of this conclusion, there is no need to consider the second issue raised by the applicant, that is whether the CRDD gave undue weight to the port of entry notes while ignoring the evidence provided by his P.I.F. and his testimony.
[18] In the circumstances, the application for judicial review is allowed. An order goes so providing. No question was proposed for certification pursuant to s-s. 83(1), and no question is certified.
(signed) W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
October 16, 2001.