PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Immigration and Refugee Board (Refugee Protection Division) (the Board) dated May 30, 2006, which determined that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant requests that the Board’s decision be referred for redetermination to a differently constituted panel of the Board.
Background
[3] The applicant, Lizhen Lin, is a citizen of China. She alleged having a fear of persecution because she was Roman Catholic. The applicant set out the circumstances leading to her claim for refugee protection in her Personal Information Form (PIF) narrative.
[4] The applicant claimed that her family was Roman Catholic and that she had been a Christian since childhood. She joined a Christian youth group in 2003. The applicant believed that her father had miraculously recovered from a car accident as a result of her prayers. On August 15, 2004, the applicant attended a youth group service at a fellow Christian’s home. The group was tipped off by a lookout that the Public Security Bureau (PSB) was approaching the house. They helped the priest escape and the applicant fled with the crowd. She ran and hid in her uncle’s home.
[5] Three days later, the applicant learned that the PSB had gone to her house to arrest her. The PSB informed her family that she was engaged in illegal religious activities. Two youth group members had been arrested by the PSB. The applicant stated that the PSB continued to go to her home while she was in hiding and after she had left China for Canada. A few weeks later, the applicant’s family arranged for a smuggler to take her to Canada.
[6] The applicant applied for a Canadian visitor’s visa on June 30, 2005 and was granted student status until August 2007. She arrived in Canada on July 18, 2005, and made a refugee claim on July 26, 2005. The applicant’s refugee hearing took place on May 8, 2006 and her claim was refused by decision dated May 30, 2006. This is the judicial review of the Board’s decision.
Board’s Reasons
[7] The determinative issue was whether the applicant was sought by the PSB and whether there was a serious possibility that she would be persecuted. The Board analyzed the credibility of the applicant’s PIF narrative with respect to her pursuit by the PSB and the nature of her exit from China. The Board noted the following inconsistencies in her evidence:
- When asked by immigration officials why she sought refugee status, she stated that the PSB had come to her home to arrest her and she escaped because she had been informed that they were coming. Her PIF and testimony indicated that when she was told that the PSB were coming to raid the church service, she escaped with the crowd and hid in her uncle’s house.
- During the interview, she stated that she was aware of the arrests before she went into hiding. In her PIF and testimony, she stated that she was informed of the arrests after she went into hiding. The applicant reiterated the PIF narrative of events when asked to explain the inconsistency. The Board drew a negative inference from this inconsistency.
[8] The applicant’s responses to questions about her alleged eleven months in hiding were inconsistent and evasive. The Board found that the applicant’s testimony regarding her months in hiding lacked credibility.
- When asked where her uncle’s home was located, she explained that she could walk there in less than an hour.
- She did not know whether the PSB had questioned her uncle.
- When asked how her uncle had explained her presence to neighbours, she answered that she seldom went out.
- She did not know if the neighbours knew she was there but indicated that she had met two neighbours.
- When asked again how her uncle explained her presence, she answered that he said she was attending school. She did not know why this story was accepted since she rarely went out.
[9] In her interview and PIF, the applicant stated that her passport was genuine. However, at the hearing she indicated that a smuggler had obtained it illegally, and that she and her parents had not been involved. The Board noted that Chinese citizens seeking country documents must appear at a local public security bureau office in person and must fill out a form and submit additional documents. The applicant’s testimony concerning the smuggler’s role in obtaining her passport was not plausible and was inconsistent with her PIF and interview. The Board found that the passport was genuine.
[10] The Board also found that the applicant’s description of her passage through the Beijing airport lacked credibility. She testified that she was not required to do anything while moving through customs with her passport, since everything was done by the smuggler. The Board noted country documents indicating that Chinese citizens travelling overseas had to present a valid passport and visa and have their identity verified by an immigration official. It was not plausible that a person being pursued by the PSB could exit China using her own passport. The Board concluded that the PSB were not pursuing her and that she was not a member of an underground Christian community that was raided by the PSB. The applicant was therefore neither a Convention refugee nor a person in need of protection.
Issues
[11] The applicant submitted the following issues for consideration:
1. Did the Board err in drawing a negative inference from inconsistencies between the applicant’s information from her immigration interview, and her PIF and testimony?
2. Did the Board err in its negative findings concerning the applicant’s period in hiding?
3. Did the Board err in drawing a negative inference from the applicant’s evidence concerning her passport?
4. Did the Board err in finding that the applicant’s description of her passage through the Beijing airport lacked credibility?
5. Did the Board err in failing to consider and make a determination regarding the applicant’s identity as a Christian?
Applicant’s Submissions
[12] In Jamil v. Canada (Minister of Citizenship and Immigration) (2006), 55 Imm. L.R. (3d) 37, 2006 FC 792, the Court held that inconsistencies between interview notes and a claimant’s testimony or PIF regarding minor details may lead to a misconstruction of the evidence. It was submitted that only major inconsistencies would be sufficient to affect the applicant’s credibility. The applicant submitted that the substance of her claim was not set out in the interview notes. It was submitted that the different sequence of facts in her PIF narrative was not reasonable grounds to impugn her credibility. The applicant noted that in the circumstances of the interview, the recounting of events might not have been logical or chronological, and should not have been used to undermine her credibility.
[13] It was submitted that the Board had no basis for finding it implausible that the applicant did not know how her uncle explained her presence to the neighbours. The applicant submitted that her answers were plausible, since she did not know what her uncle had told the neighbours, and seldom saw them. It was submitted that the Board had no basis for finding it implausible that the neighbourhood committee would not have known that she was present. The applicant submitted that the neighbours did not necessarily know about her situation, and the Board did not cite any documentation regarding the operation of neighbourhood committees in China.
[14] The applicant acknowledged that the Board may make implausibility findings which are rationally supported by the evidence (see Zhou v. Canada (Minister of Citizenship and Immigration) (2006), 146 A.C.W.S. (3d) 140, 2006 FC 70). However, it was submitted that in the case at hand, the Board’s implausibility findings were patently unreasonable.
[15] The applicant submitted that there were no inconsistencies in the evidence regarding her passport. The interview notes indicated that her passport was obtained from a local passport office, but did not indicate that the applicant procured it herself. It was submitted that the Board failed to consider that a passport could be both genuine and improperly obtained. The applicant submitted that given extensive corruption in China, the Board’s finding that the passport must have been obtained by the applicant in person was not supported by the documentary evidence. The applicant submitted that the Board misconstrued the evidence in finding that there were inconsistencies in her evidence regarding the nature of her passport. The applicant had amended her PIF in writing in order to indicate that her passport had been improperly obtained.
[16] The applicant submitted that the Board misconstrued evidence in finding it implausible that a person pursued by the PSB could exit China using her own passport. It was submitted that the Board failed to consider documentary evidence regarding the sophisticated methods used to smuggle people. It was submitted that plausibility findings should only be made where the facts are outside the realm of possibility, or where the documentary evidence demonstrated that the events could not have occurred as asserted (see Valtchev v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R. 267, 2001 FCT 776).
[17] The applicant submitted that the Board erred in failing to assess the applicant’s evidence in support of her Christian identity. It was submitted that the Board was obligated to make a finding regarding her religious identity in clear terms (see Chen v. Canada (Minister of Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 238, 2002 FCT 480).
Respondent’s Submissions
[18] The respondent submitted that the standard of patent unreasonableness applied to the Board’s credibility determinations (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.)). The applicant therefore had to point to a conclusion of the Board that was not supportable in any way on the evidence (see Sinan v. Canada (Minister of Citizenship and Immigration) (2004), 128 A.C.W.S. (3d) 1173, 2004 FC 87).
[19] The respondent submitted that the applicant gave different versions of her story. Her interview notes indicated that she was attending church when she heard that people were being arrested. She stated that the police came to her home to arrest her, but she was tipped off and escaped. Her PIF and testimony indicate that there was a raid during an evening service at a “believer’s house” and a lookout warned that the PSB was coming. The participants helped the priest escape and the applicant ran away to hide at her uncle’s home. She was informed of the arrests after she went into hiding.
[20] The respondent submitted that the Board was entitled to find that the applicant lacked credibility on the basis of serious contradictions and inconsistencies in her story. The respondent noted that the applicant was only able to reiterate the PIF narrative of events when asked about the inconsistencies. It was submitted that contradictory testimony could cast doubt upon the totality of a claimant’s oral evidence (see Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33, 5 Imm. L.R. (2d) 78 (F.C.A.)). The respondent submitted that a claim may be rejected for lack of credibility where a claimant’s testimony lacked the level of detail expected of a person in their position (see He v. Canada (Minister of Citizenship and Immigration) (2001), 110 A.C.W.S. (3d) 353, 2001 FCT 1256). It was submitted that the Board did not have to accept a witness’ testimony because it was not contradicted at the hearing.
[21] The respondent submitted that the Board was entitled to make findings based upon implausibility, and could reject evidence if it was not consistent with the overall probabilities of the case (see Gonzalez v. Canada (Minister of Citizenship and Immigration) (1999), 88 A.C.W.S. (3d) 1062 (F.C.T.D.)). It was submitted that it was not sufficient for the applicant to provide alternative explanations for the Board’s findings. The respondent submitted that the Board’s findings were reasonable and no reviewable error was committed (see Sommariva v. Canada (Minister of Citizenship and Immigration) (1996) 110 F.T.R. 319, 33 Imm. L.R. (2d) 25 (F.C.T.D.)).
[22] The respondent submitted that it was reasonable for the Board to question the ease with which the applicant claimed to have passed through the airport using her passport. It was noted that the document cited by the applicant indicated that only in exceptional cases were mistakes made in the identity verification process, and people who were wanted would not normally be able to leave China.
[23] The Port of Entry (POE) form required detailed information about the use of smugglers, however the applicant only indicated that she had obtained a passport from a local office in China. It was submitted that it was reasonable to infer that a smuggler was not involved in obtaining the passport, which was inconsistent with the applicant’s contention that a smuggler had obtained the document. In Adu v. Canada (Minister of Employment and Immigration) (1995), 53 A.C.W.S. (3d) 158 (F.C.A.)), the Court held that a claimant’s sworn testimony may be rebutted where the documentary evidence fails to mention what would normally be expected. The respondent submitted that the Board was entitled to prefer documentary evidence regarding the procedure for obtaining passports in China over the applicant’s testimony (see Zhou v. Canada (Minister of Employment and Immigration) (1994), 49 A.C.W.S. (3d) 558 (F.C.A.)).
[24] The respondent submitted that the Board provided a reasonable explanation for believing that the applicant had obtained the genuine passport herself. In addition, there was no evidence before the Board that the bribery of officials was a factor in her case.
[25] The Board concluded that the applicant was not a Christian who was pursued by the PSB on the basis of cumulative negative credibility findings. In Djouadou v. Canada (Minister of Citizenship and Immigration) (1999), 94 A.C.W.S. (3d) 1183 (F.C.T.D.), the Court held that the Board did not have to consider documentary evidence regarding country conditions where a claimant’s testimony lacked credibility. Should the Board have committed an error in this regard, it was submitted that the cumulative effect of the deficiencies in the applicant’s testimony supported the negative credibility finding. It was submitted that where a claim was decided on a lack of credibility, and these findings were not patently unreasonable, the credibility finding was determinative of the application for judicial review (see Dezsone v. Canada (Minister of Citizenship and Immigration) (2005), 143 A.C.W.S. (3d) 1081, 2005 FC 1549).
Analysis and Decision
Standard of Review
[26] The Board’s credibility findings warrant a high level of deference and are subject to review on the standard of patent unreasonableness (see Aguebor above).
[27] Issue 1
Did the Board err in drawing a negative inference from inconsistencies between the applicant’s information from her immigration interview, and her PIF and testimony?
The Board’s negative credibility finding was based upon inconsistencies in the applicant’s POE notes, her PIF and her testimony regarding: (1) her pursuit by the PSB; (2) her time in hiding; (3) the nature of her passport; and (4) her passage through the Beijing airport. In Jamil above, Justice Lemieux stated the following regarding the Board’s consideration of the evidence in making credibility findings, at paragraph 25 of the decision:
These cases as applied by the Federal Court of Appeal itself and by this Court proscribe credibility findings arrived at by, for example:
- Findings for which there was no evidence;
- Findings of the tribunal based on conjecture, resulting in unjustified and unsupported inferences regarding the circumstances leading to an application for refugee status;
- Inconsistencies drawn between POE notes and an applicant's testimony or the applicant's PIF where a tribunal dwells on details and not on the substance of the claim and leads to misconstruction of the evidence. Any such inconsistencies should be major and not minor and sufficient by itself to call into question the applicant's credibility. (See Mushtaq v. Canada (Minister of Citizenship and Immigration), 2003 FC 1066 (F.C.); and
- The tribunal must be reasonable in rejecting an applicant's explanation when confronted with a contradiction and must not be quick to apply North American logic and reasoning to a claimant's behaviour, (see Lubana, supra, at para 12);
- The tribunal must assess the applicant's claim against the totality of the evidence.
Pursuit by the PSB
[28] The POE notes state the following with respect to the applicant’s pursuit by the PSB:
I have been attending church activities and I heard that people were being arrested. The police wants to arrest me. The police have come to my home to arrest me. They came during the night some people tipped me off about this and I was able to escape.
[29] The applicant’s PIF stated the following regarding her pursuit by the PSB:
On August 15, 2004 I was attending a service at a believer’s house…When our activity went for about an hour, a lookout ran into the house and told us to run because the PSB were coming. As soon as we heard the news we helped the priest escape and then I escaped with the crowd. After my escape I ran to my maternal uncle’s house for hiding.
3 days after I was in hiding at my maternal uncle’s house my maternal uncle went to my house and learned from my family that the PSB went to my house to arrest me. The PSB said that I was engaged in illegal house church activities and being a leader in the house church. My family told me that the PSB arrested 2 believers in my youth group.
[30] The applicant described this incident as follows during the hearing:
RPO: Okay. So let’s turn then to what happened. When was the day that the PSB discovered the youth group?
…
CLAIMANT: Oh, that was August 15th.
…
RPO: When did the service begin that day?
CLAIMANT: 8:00 p.m.
RPO: Now, turning back to my first question concerning this event, I want you to describe in detail what happened, from your personal perspective, starting with a few moments before the service was interrupted. What were you doing when the service was interrupted?
CLAIMANT: I was reciting Our Father. And the lookouts rushed in and they informed us that police came. So, we assist the father to leave, to flee from the rear door. And after that we also fled the scene.
…
RPO: And am I correct, from that time on you were in hiding in China?
CLAIMANT: Yes.
RPO: Did you ever return home?
CLAIMANT: No.
[31] During the hearing, the applicant was asked to explain the discrepancies in her evidence regarding the day that she was pursued by the PSB:
RPO: Okay, well I have, we all have before us a copy of this record of examination. And in your response to why you are seeking refugee status you stated the following:
You said you’d been attending church activities, you heard that people were being arrested. “The police want to arrest me, the police have come to my house to arrest me…They came during the night. Some people tipped me off about this and I was able to escape.”
…
Do you recall making these statements?
CLAIMANT: It seems to be different from what I said before.
RPO: Well, it’s certainly different from your Personal Information Form. I’m not sure, when you say it’s different from what you said before, what are you-
CLAIMANT: At the beginning, yes, at the time I said that I participated in the activities and the police came to arrest people and I fled the scene, because we were informed by the lookout. So, when the people come to arrest me it’s the night of our activity.
…
RPO: I don’t understand why you said something different when you were asked to explain. Why would you say, I was at a church service, it was raided, (inaudible)?
CLAIMANT: Because at that time I say so, but I don’t know why – it seems to be what is written down, it’s being reversed or upside down.
RPO: Yeah, it’s different, and I’m giving you an opportunity to explain why, why it says something different.
CLAIMANT: Because what I said, what my answer was describing the night of our activity and the police came to arrest us and the lookouts came to inform us.
…
RPO: If I understand your explanation you’re saying that this description I’ve just read to you is a description of what happened when the PSB raided the service?
CLAIMANT: Yes. Yeah, we fled that night, but later I learned the police came to our house.
…
RPO: My question is do you have any explanation why, when you were asked to explain during this examination why you couldn’t go home, you didn’t use the same sequence?
CLAIMANT: I answered in that sequence but I don’t know why on the paper it shows different.
[32] Later during the hearing, counsel attempted to clarify the applicant’s testimony:
COUNSEL: “I have been attending church activities and I heard that people were being arrested. The police wants to arrest me.” What exactly were you referring to there?
CLAIMANT: I am referring to the day of the activity, the incident that happened. And the police showed up to arrest us and the lookout came to inform us and we assist father and let him go first and then we leave afterwards.
COUNSEL: When you said earlier, “They came during the night”, some people tipped me off about this.” What are you referring to there? Specifically, when you say “some people tipped me off”, who are you referring to?
CLAIMANT: It’s the lookout that ran in and informed me.
[33] The circumstances surrounding the incident during which the applicant was allegedly pursued by the PSB were:
(1) the applicant attended a youth group service;
(2) a lookout informed her that the PSB was approaching;
(3) the applicant escaped the PSB;
(4) the applicant hid at her uncle’s home; and
(5) the PSB went to the applicant’s home to arrest her that night.
[34] These elements of the applicant’s story are present in the version of events provided in the POE notes and PIF narrative, albeit in a different order. It appears that the applicant was attending an evening service when the group was informed by a lookout that the PSB was approaching. The group helped the priest flee and the applicant escaped with the crowd. The applicant sought refuge at her uncle’s home; meanwhile the PSB went to her family home to arrest her that night.
[35] In my view, the Board misconstrued the applicant’s evidence. During the hearing the applicant explained the content of the POE notes and indicated that the night that she fled from the PSB after being tipped off was the day the PSB raided the service. While the events are in a different chronological order in the PIF narrative and POE notes, I do not believe that this discrepancy is sufficient to ground a negative credibility finding. I find it understandable that the initial version of the applicant’s story, which contained the elements of the narrative of events provided in her PIF, might vary in order from that to which she testified.
[36] I now wish to deal with Issue 5.
[37] Issue 5
Did the Board err in failing to consider and make a determination regarding the applicant’s identity as a Christian?
I have found that the Board erred in finding the applicant not credible in her story regarding the events which took place at the service held on August 15, 2004. This would have provided evidence that the applicant was a Christian.
[38] In Chong v. Canada (Minister of Citizenship and Immigration,) [1998] F.C.J. No. 999 (QL), Justice Rothstein stated:
1. The issue in this judicial review is whether the panel of the CRDD addressed the basic issue of whether the applicant was a practicing Roman Catholic in China and as a result would have a well-founded fear of persecution. The panel's reasons were directed to that portion of the applicant's evidence that it thought he was making up "to embellish his claim". The panel disbelieved the embellishments. However it did not expressly deal with whether the applicant was a practicing Roman Catholic in China and suffered persecution as a result.
2. The panel acknowledged that the authorities do "go after people in positions in the Roman Catholic Church such as priests and nuns in their crackdown on religion". In its reference to the documentary material there are excerpts to this effect, but also to "peasants" who were sentenced to time in a labour camp in 1992.
3. The respondent relies on Chang v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1010, (24 July 1997), Toronto IMM-2031-96 (F.C.T.D.). However in that case the panel found that the applicant had not had any difficulty in practicing his religion. In the present case, the panel does not expressly state whether it believed that the applicant was a practicing Roman Catholic or whether it believed that the applicant had difficulty as a result. This was the primary issue before the panel. The panel seems to have rejected the applicant's claim solely on the grounds that it did not believe the embellishments that it thought he had made up. It was open to the panel to do so but in this case it is not clear whether the panel thought that the applicant's entire story was untrue or whether it simply did not address the primary issue.
4. While I am reluctant to interfere with a decision based on a credibility determination, I am not satisfied that in this case the panel addressed and dealt with the primary issue before it. See Wang v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1802, (22 December 1997), Toronto IMM-250-97 (F.C.T.D.). In an abundance of caution, I think that this judicial review must be allowed and the matter remitted to a different panel for redetermination. The new panel should include in its determination whether it believes the applicant was a practicing Roman Catholic in China and if so, whether this presented any difficulty for him amounting to persecution and whether he has a well-founded fear of persecution in China as a result.
[39] In Chen v. Canada (Minister of Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 238, 2002 FCT 480, I stated at paragraph 19:
I have reviewed the Board’s decision and I have come to the conclusion that the Board did not make any finding with respect to whether the applicant was a member of the Falun Gong group. The Board did not believe the applicant’s story with respect to her persecution in China but it did not address whether she was a member of the group. This finding was necessary in order to determine whether or not the applicant was a Convention refugee. The decision does not address the Falun Gong activities in Toronto. This evidence should have been considered (see Jian Jiang v. M.C.I. 2002 FCT 64; [2002] F.C.J. No. 84 (QL)). It was a reviewable error for the Board not to make this determination.
[40] In the present case, the Board found that the applicant was not a Christian in the following part of the decision:
. . . It is on the basis of these accumulated findings that I further find that agents of the PSB are not pursuing the claimant and that she was not a member of an underground Christian community in China raised by the PSB.
[41] However, it is now apparent that the applicant’s testimony about belonging to a Christian youth group was credible. As well, there was other evidence in the record that the applicant had knowledge of Christian beliefs. In addition, the RPO made the following statement at the hearing:
With respect to her current knowledge of Christianity and attendance at the Christian church, I have no major concerns. She does have a letter from the church in Canada. There seemed to be some difficulties in providing her knowledge of Christianity. I noted that there were problems though with the translator just being able to provide clear descriptions and translations. But overall I’m not concerned about her current knowledge of Christianity. Those are my observations.
(Tribunal record page 382)
[42] It is not in dispute that Christians are persecuted in China. Since the Board made its finding that the applicant was not a member of an underground Christian community raided by the PSB on the basis of the accumulated credibility findings and one of these findings, (the pursuit by the PSB at the church) has been set aside, the Board may well come to a different conclusion about whether the applicant was a Christian. The Board made a reviewable error in not considering the other evidence that related to the applicant’s claim that she was a Christian.
[43] I need not deal with the other credibility findings.
[44] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[45] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[46] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Immigration and Refugee Protection Act, S.C. 2001, c.27.:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97.(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97.(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3513-06
STYLE OF CAUSE: LIZHEN LIN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
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Leonard Borenstein
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Anshumala Juyal
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SOLICITORS OF RECORD:
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Lewis & Associates Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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