Date: 20021031
Docket: IMM-5686-01
Neutral citation: 2002 FCT 1126
Ottawa, Ontario, Thursday, the 31st day of October, 2002
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
GUO WEI ZHANG and
GUI QIU MIN
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") dated November 15, 2001, wherein the applicants were determined not to be Convention refugees.
FACTS
[2] The applicants are a married couple from the People's Republic of China. They left China in June of 1999 on a vacation to visit their children in North America. While in Canada, they learned that the Public Security Bureau ("PSB") was looking for them in China because of their involvement with the Falun Gong movement. The couple made a refugee claim on October 2, 1999.
DECISION OF THE CRDD
[3] The applicants' case was heard by the CRDD at three separate sittings on August 28, 2000, October 26, 2000, and August 16, 2001. In a decision dated November 20, 2001, the CRDD determined that the applicants were not Convention refugees. The CRDD did not find the applicants credible and concluded that: "[t]hey chose Canada to claim refugee status by jumping the queue, instead of applying for landed immigrant status through proper immigration procedure." The CRDD dismissed the claim because the applicants lacked a well-founded fear of persecution. The applicants filed for judicial review of the CRDD's decision.
ISSUES
[4] The issue is whether the CRDD erred by relying on erroneous findings of fact in determining the applicants were not credible.
STANDARD OF REVIEW
[5] The applicants contend the CRDD erred by basing its decision on erroneous findings of fact. The appropriate standard to be used when reviewing an alleged error of fact by the CRDD, is set out in section 18.1(4)(d) of the Federal Court Act. It is whether the CRDD "based its decision . . . on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it". The main thrust of the applicants' argument deals with the CRDD's finding that they were not credible. When reviewing the CRDD's assessment of credibility, this Court must bear in mind that the CRDD is a specialized tribunal with direct access to the viva voce testimony of applicants and as such, is in the best position to assess the credibility of applicants. For this reason, the standard used by this Court when dealings with findings of credibility by the CRDD is patent unreasonableness (see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.)).
ANALYSIS
[6] The CRDD negatively assessed the applicants' credibility in large part because of what it termed was a "convoluted story" about the absence of photographs showing the applicants practicing Falun Gong in China. The Court has determined that the CRDD acted unreasonably when it concluded that this was a convoluted story. This portion of the testimony of the applicants was hampered by difficulties in translation and the panel demonstrated little patience in dealing with those problems. Furthermore, the CRDD made a number of errors in their reasons when dealing with this issue, including the following:
(i) The CRDD stated the male applicant thought of bringing photos with them from China, but forgot to do so. There is no indication in the transcript of the hearing that the applicant ever said he forgot to bring the photos. When initially questioned at the August 28, 2000 hearing on why he did not have his cousin, who was looking after the apartment, mail the pictures to them, the male applicant stated the pictures were in a bookcase which he had locked. When asked where the key was he stated: "[t]he key is in my home in Shanghai and I have locked it."
(ii) When the female applicant was asked about the key to the cabinet at the hearing on August 28, 2000 she stated: "[w]e have quite a few rooms and quite a few cabinets. Our keys, we have locked them up in one of the cabinet there and we have brought out one key in North America". The CRDD came to the conclusion that the couple's testimony was contradictory as the male applicant stated the key was in Shanghai, yet his wife stated it was not left in China. On my reading, the answers of the two applicants is consistent on this point.
(iii) The CRDD stated the female claimant "provided a different story concerning the keys" at the October 26, 2000 hearing when it was put to her that there were inconsistencies in the evidence. The female applicant answered by telling the panel the couple had ten bookcases that they had locked before they left. She testified they had locked nine of bookcases and put the keys to those bookcases in the tenth and brought the key to the tenth bookcase with them. Comparing this to her earlier testimony, I am not convinced it was reasonable to conclude the female applicant had changed her story.
(iv) When counsel for the applicants examined the male applicant at the October 26, 2000 hearing, he testified he sent the key to his cousin so she could open the large storage case and get the key for the bookcase containing the photos. It is apparent his testimony was consistent with both the testimony of the female applicant and his prior testimony on the issue.
[7] Moreover, upon reviewing the transcript, I have concluded that this hearing suffered from a number of problems with the result that the applicants are entitled to a new hearing.
ORDER
IT IS HEREBY ORDERED THAT:
This application for judicial review is allowed, and the matter is referred to a different panel of the CRDD for redetermination. Counsel did not recommend certification of a question of serious general importance. No question is certified.
(Signed)Micheal A. Kelen
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5686-01
STYLE OF CAUSE: GUO WEI ZHANG ET AL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, OCTOBER 23, 2002
REASONS FOR ORDER AND
ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: THURSDAY, OCTOBER 31, 2002
APPEARANCES BY: Ms. Mary Boyce
For the Applicant
Ms. Pamala Larmondim
For the Respondent
SOLICITORS OF RECORD: Ms. Mary Boyce
Barrister and Solicitor
69 Elm St. Toronto, Ontario
M5G-1H2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent