Federal Court Decisions

Date: 20020430

Docket: IMM-2529-01

Neutral citation: 2002 FCT 493

Ottawa, Ontario, this 30th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                       LI YING SUN

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), signed April 10, 2001 and April 18, 2001, wherein the Board determined that the applicant is not a Convention refugee.

[2]                 The applicant seeks an order setting aside the decision of the Board, referring the matter back for redetermination before a differently constituted panel of the Board.

Background

[3]                 The applicant, Li Ying Sun is from Shanghai, China. The applicant's husband and 12 year old son continue to reside in Shanghai.

[4]                 The applicant and her mother were members of the Guan Yin Temple (a house temple) group in Shanghai as followers of the Tian Dao religion.

[5]                 The applicant claims that on February 19, 2000, the Public Security Bureau ("PSB") raided the Guan Yin Temple during a service that neither the applicant or her mother attended. The applicant was not attending because she was preparing for her business trip to Canada.

[6]                 The applicant flew to Canada on February 20, 2000. The applicant claims to have found out about the PSB raid on the day she arrived in Canada when she spoke to her husband on the telephone.

[7]                 Only two members of the house temple were arrested in the raid and others escaped. The applicant alleges that someone in the group gave the PSB her name as a person who was a member of the Guan Yin Temple. The applicant claims that she will be jailed by the PSB for practising an illegal religion if she were to return to China. The applicant also claims that she lost her job in China because she was wanted by the PSB and because she has remained in Canada.

[8]                 This is a sur place claim as the applicant alleges that the situation in China has changed since her departure, with serious consequences for her.

[9]                 The Board found that the applicant lacked credibility, finding that on a balance of probabilities, the raid on the Guan Yin Temple by the PSB did not actually occur.

[10]            This is the judicial review of the Board's decision.

Applicant's Submissions

[11]            The applicant submits that she was introduced to the Tian Dao faith through her mother, who was persecuted for following the religion in the 1970s and then began to worship again in 1996. The applicant submits that she began to attend the house temple with her mother in mid-1998.

[12]            The applicant submits that the Board failed to consider whether or not the applicant was or is a Tian Dao believer, and that was a central issue to the applicant's claim for Convention refugee status.

[13]            The applicant submits that the Board had evidence before it confirming that Tian Dao is an illegal religion in China and that worshippers are not able to freely practice their religion.

[14]            The applicant submits that the Board erred by concluding that it was not plausible that the applicant would not have received written notice of her dismissal from her company, and that she could not produce a summons or arrest warrant that were issued against her.

[15]            The applicant submits that the Board failed to give its reasons in clear and unmistakable terms, and reached conclusions based on unfounded assumptions and speculation.

[16]            The applicant submits that she provided a plausible explanation for why her mother was not notified of the raid on the temple by the other members of the group, namely that she had not attended services since October, 1999. The applicant submits that the Board found it not credible that the applicant was not advised that her mother was seriously ill, nor was she advised until November that her mother had died on October 22, 2000. The applicant submits that the Board's conclusions regarding the applicant's mother are perverse and without foundation.

Respondent's Submissions

[17]            The respondent submits that the applicant had experienced no problems in China, nor had her husband and son, who remain in Shanghai.

[18]            The respondent submits that the Board found the applicant's fear of persecution not to be credible for the following reasons:

a) the applicant's explanations to questions were evasive and at times ridiculous;

b) it was too much of a coincidence that the applicant's Tian Dao group was raided just as the applicant was leaving for Canada;

c) the alleged fact that the applicant's mother, who remained in Shanghai and was a member of the Tian Dao group, did not know of the raid and none of the other members warned her of any possible danger is implausible. The applicant has described a cordial relationship with her mother and so would be strange if, as alleged, the applicant did not inform her mother of the raid;

d) the applicant did not inquire after her mother until eight months after she had been in Canada. When she phoned her sister in November, 2000, she was informed that her mother had died in October, 2000;

e) it was implausible that only two members out of eleven were arrested in the raid of the Tian Dao meeting;

f) it was implausible that the members would inform the PSB about the applicant but not about the applicant's mother;

g) there was no documentary evidence supporting the allegation that the applicant is wanted by the PSB;

h) the applicant omitted material facts from her Personal Information Form ("PIF"), namely that the PSB attended her home and visited her husband at his work unit;

i) the applicant failed to mention in her PIF that she was dismissed from work as a result of her failure to return to China, and no notice of dismissal was produced.

[19]            The respondent submits that a finding of lack of credibility, which is based on problems with the claimant's testimony, is within the discretion of the triers of fact, and this Court should not interfere.

[20]            The respondent submits that the Board provided clear and unmistakable terms as to why the applicant was found to be not credible.

[21]            The respondent concedes that the human rights situation in China is not favourable with respect to the Tian Dao population. However, the respondent submits that the objective documentary evidence provided by the applicant suggests an ongoing pattern of discrimination, rather than persecution, against Tian Dao followers. The respondent submits that to be a Convention refugee, Tian Dao followers must establish that they would face persecution if returned to China, which the applicant failed to do.

[22]            The respondent submits that the applicant has failed to adduce any credible evidence of violations of human rights that threaten her personally if she returns. The respondent submits that the personal threat must be demonstrated as there is no "at large" right to Convention refugee status for everyone from countries with unfavourable human rights records.

[23]            The respondent submits that the fact that no one urgently warned the applicant's mother of the raid on the Tian Dao group indicates a lack of danger and urgency for the alleged precipitating event that prompted the applicant to seek Convention refugee status. The respondent submits that some of the implausibilities in the applicant's story concerned her mother and properly formed part of the Board's negative credibility finding.

[24]            The respondent submits that the standard of review is patent unreasonableness for a determination of whether or not there is more than a mere possibility that the applicant would face persecution if returned.

[25]            Issues

1.          Did the Board err in failing to consider whether the applicant was a Tian Dao believer?

2.          Did the Board err in its conclusions regarding the lack of a summons or a dismissal letter?

3.          Did the Board err in its conclusions regarding the applicant's mother's circumstances?

Relevant Statutory Provisions and Regulations

[26]            The Immigration Act, supra defines a Convention refugee as follows:

Analysis and Decision

[27]            Issue 1

Did the Board err in failing to consider whether the applicant was a Tian Dao believer?

In order to assess whether or not a person has a well-founded fear of persecution because of the person's membership in a particular group which is the subject of persecution itself, it is necessary, except as noted later in this decision, that the Board determine whether or not the person is a member of that group. In the present case, the Board stated at page 3 of its decision:

Now, rather than choosing to assess the evidence that this claimant, who comes from Shanghai, is a bonafide [sic] follower of the Tian Dao religion, of which, I might note, she gave impressive testimony concerning its tenets and a sketch of its history as a religion. But rather than assessing that evidence, I choose instead to assess the evidence which contains her allegation that the PSB has, so soon after her departure from China, gone in pursuit of her because she has been identified as a practising Tian Dao believer. It is my determination that she is in this regard not a credible witness and I would deny her claim. These are the reasons why: . . .

[28]            Then at page 8 of the decision, the Board stated:

I have reviewed the letter from the Toronto temple, which confirms her membership in that temple. Despite this letter, and for the purposes of these reasons and the finding that the claimant may well be a follower of the Tian Dao religion, I find her utter lack of credibility respecting possible danger to her in China on account of it, to compel my determination that the claimant, Li Ying SUN, is not a Convention refugee.

[29]            In this particular case, I do not believe that the absence of a clear finding of membership in the Tian Dao religion by the Board matters in the outcome of the case. The evidence that the followers of the Tian Dao religion were being persecuted comes from the testimony of the applicant which the Board found to not be credible. I have reviewed the documentary evidence and it states clearly that followers of the Falun Gong religion are presently being persecuted. Any reference to the followers of the Tian Dao group being persecuted is not current. There simply is not sufficient documentary evidence to establish that the followers of the Tian Dao religion are being persecuted in China. As well, due to the credibility finding of the Board, which I will refer to later, the applicant's own evidence is of no assistance to establish persecution of the religious group to which she claims to belong. Thus, if it has not been established that the Tian Dao religious group is being persecuted by China, it matters not whether or not the applicant is a member of the Tian Dao religion. Even if the Board erred in failing to decide whether the applicant was a follower of the Tian Dao religion, it does not affect the outcome.

[30]            Issue 2

Did the Board err in its conclusions regarding the lack of a summons or a dismissal letter?

The applicant argued that the Board did not give its reasons in clear and unmistakable terms with respect to the lack of a PSB summons. I disagree. The Board discussed the lack of a summons but it stated in its decision:

. . . I will decline to take a negative inference from the fact the claimant has not produced such a document; however, it remains my finding that the lack of its production in this case is consistent with my finding, above, that the claimant has failed to establish the PSB raid as a fact.

[31]            The Board was clear in its findings and made no reviewable error with respect to the summons.

[32]            The Board made the following finding with respect to the lack of a dismissal letter:

Third, in fortification of my finding on credibility as outlined above, I take note that the claimant has failed to mention in her PIF that she was dismissed from her work as a result of her failure to return to China and of her belief that her work unit was advised by the PSB that she was wanted because of her religious practice. Also, because she has failed to produce a dismissal notice from her company. I take a negative inference as to her credibility arising from these failures. It is reasonable to expect inclusion of this information in her PIF, produced as it was after she purportedly learned of this dismissal; and I take a negative inference that no dismissal notice was produced. I do not accept the explanation offered that no dismissal notice was forthcoming because the work unit disposed of her employ by making a simple telephone call to her husband. Again, I rely on the experience of the panel in hearing many claims from China and, moreover, on the plausibility of a company in formally dismissing an employee to put it in writing, but this has not been done. It is reasonable to expect in the circumstances that a claimant either received written notice of her dismissal or, if not, that she could have made the effort to obtain a written notice of that dismissal for delivery in advance, in support of her claim.

[33]            I am of the opinion that the Board did not err with respect to its conclusion concerning the dismissal letter. Certainly, the applicant should have mentioned her dismissal and the reason for it in her PIF.

[34]            Issue 3

Did the Board err in its conclusions regarding the applicant's mother's circumstances?

The Board examined a number of statements that the applicant made about her mother and concluded that they contributed to the lack of credibility finding. The applicant explained that her mother did not know about the PSB raid on the house temple in part because the group believed that the applicant was the contact person for her mother. This does not appear consistent with the applicant's assertion that it was her mother that introduced her to the religion and house temple. The applicant further explained that the temple members apparently only gave the PSB the applicant's name and not the applicant's mother's name. The Board found this too to be implausible.

[35]            The applicant claims that her mother became ill after the applicant left China, and that her sister had to help her mother. The applicant claimed that she was not informed of her mother's illness or her mother's death until she phoned her sister the month after her mother died. The Board found this to be implausible and inconsistent with her testimony about her normal relationship with her mother.

[36]            The Board considered a variety of inconsistencies and implausibilities of the applicant's story in relation to her mother, which were contributing factors to the adverse credibility finding. I am not persuaded that the Board erred in their assessment of the applicant's testimony about her mother.

[37]            Assessment of credibility is a matter for the Board and I can find no reason why the negative credibility finding was not open to the Board to make (see Aguebor v. Minister of Employment and Immigration) (1993) 160 N.R. 315 (F.C.A.)).

[38]            The application for judicial review is therefore dismissed.

[39]            Neither party wished to submit a serious question of general importance for certification.

ORDER

[40]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 30, 2002