Date: 19990408
Docket: IMM-3070-98
BETWEEN:
JIAN FENG LI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DENAULT J.
[1] This is an application to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) wherein it was determined that the applicant was not a Convention refugee. The applicant is a citizen of the People"s Republic of China (PRC) who claims to have a well-founded fear of persecution on the grounds of his political opinions.
[2] In January 1996, the applicant travelled to Surinam where he resided for a little more than a year. Upon his return to China, he claims to have spoken to his friends and others about the differences between the education systems in Surinam and the PRC. Specifically, he criticized the fact that students in China, are required to pay fees whereas in Surinam, education is free. He was also critical of top officials who use their position in society to help their children gain admission to more prestigious schools.
[3] As he explained in his testimony before the CRDD, his comments eventually reached the party secretary of the county government who decided to have him arrested. The applicant"s father learned of his son"s impending arrest through the local head of government, an old school friend, who had allegedly learned it from an internal document. Fearing arrest and detention in a labour camp, the applicant fled to Canada.
[4] In rejecting his claim, the CRDD did not find the applicant to be a credible witness. First, it did not believe that Chinese students are required to pay school fees, especially considering an excerpt from Inside China Mainland which confirmed that there is socialized education in China.
[5] Second, the tribunal rejected his testimony in regard to his impending arrest. Not only did he not mention in his PIF the existence of the internal document ordering his arrest (which indicates an attempt at fabrication or embellishment), but his oral testimony was also inconsistent with the information contained in his PIF. In it, he wrote that he found out that he would be taken to a labour camp whereas in oral testimony, he stated that he would be arrested. No reasonable explanation was provided.
[6] Given the lack of credibility of his testimony, the CRDD held that the applicant did not have a well-founded fear of persecution. Despite the documentary evidence which revealed that the Chinese government had no tolerance for dissenters, even little-known dissenters, the applicant had not established that he was indeed one.
[7] In his submissions to the Court, the applicant concentrates most of his efforts in attacking the tribunal"s credibility finding. First, he argues that the CRDD wrongly drew an adverse inference from the fact that he was able to leave for Surinam. In my view, this is not the case. Although the tribunal mentions that "..."the applicant"s evidence > is problematic because ... "he > was able to leave to Surinam in the first place", it did not draw an adverse inference from this fact, the crux of its decision being related more to the applicant"s testimony in regard to school fees and his impending arrest.
[8] Second, the CRDD is said to have erroneously discounted the applicant"s testimony with respect to the payment of school fees. In my view, the tribunal could not have come to the conclusion it did based on the evidence before it. In his testimony before the tribunal, the applicant stated that students were required to pay for tuition, books etc.1 The payment of such fees is not specifically precluded by the documentary evidence. In fact, the sole article relating to the issue of education before the CRDD only confirms that the Chinese government treats investment in education as a low priority:
| ... since coming to power, the CCP has, whether intentionally or not, kept investment in education ... at one of the world"s lowest levels... |
| Due to excessive emphasis on money and short-term benefits since the onset of reform and openness, faced with scarce funding and knowing that returns on investment in education are far off in the distance, government at all levels treats investment in education as a low priority matter. |
This evidence does not specifically exclude the possibility that students are required to pay certain fees. Thus, the CRDD should have given credence to the applicant"s testimony.
[9] Third, the applicant correctly points out that the tribunal"s finding with respect to his arrest is unreasonable. Given that it readily acknowledged that the power of the party secretary could trump that of the local head of government, it was unreasonable for the tribunal to state without explanation that it was unusual that the local head of government could not protect the applicant.
[10] Fourth, it is suggested that the CRDD"s finding based on the inconsistencies noted in the applicant"s evidence is erroneous. As the applicant correctly argues, there is no inconsistency between his PIF and his oral testimony with respect to the internal document containing the decision to arrest him. There cannot be since the PIF makes no mention of it. Neither should the CRDD have drawn an adverse inference since the PIF is not required to be a complete narrative of the applicant"s claim.2 Furthermore, there appears to have been no attempt on the applicant"s part at fabrication or embellishment. When first asked about his arrest, he mentioned the existence of this internal document3 and consistently referred to it thereafter. 4
[11] As for the second inconsistency noted by the tribunal - fear of being arrested or sent to a labour camp - while I personally think that the tribunal was a bit harsh in its conclusion (throughout his testimony, the applicant honestly does not appear to distinguish between arrest, jail and labour camp even when quizzed by the panel member and his own counsel), it is unusual for the Court to intervene in such a finding of fact made by the decision-maker.5
[12] Lastly, the applicant argues that the tribunal did not take into account more recent human rights reports attesting to the Chinese government"s zero tolerance for dissent, even mere dissent. The tribunal did recognize that even little-known dissenters were not tolerated in China in spite of the fact that it did not rely on more recent documentary evidence. It just did not believe that the applicant was such a dissenter given his lack of credibility. However, on the basis of the errors noted above, this credibility finding should be set aside.
[13] For these reasons, this application for judicial review is allowed.
__________________________
Judge
Ottawa, Ontario
April 8, 1999
__________________1 Transcript, Tribunal Record, vol 1 at 12.
2 Singh and Narang v. Minister of Employment and Immigration (1994), 69 F.T.R. 142 at 147 (T.D.).
3 Transcript, supra note 1 at 17.
5 Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.); Singh, supra note 2.