Xiao v. Canada (Minister of Citizenship and Immigration)

Xiao v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2003-08-08
Neutral citation
2003 FC 607
File numbers
IMM-763-02
Decision Content
Date: 20030808
Docket: IMM-763-02
Citation: 2003 FC 607
Toronto, Ontario, this 8th day of August, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
YING XIAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in relation to the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated January 25, 2002, wherein it was determined that Ying Xiao (the "applicant") was not a Convention refugee.
[2] The applicant requests that the decision be declared invalid, quashed or set aside and referred back for determination by a differently constituted panel of the Board.
Factual Background
[3] The applicant is a citizen of the People's Republic of China who bases her claim on a well-founded fear of persecution on the grounds of her religion, namely, Tian Dao.
[4] The applicant was brought up in a Buddhist atmosphere as her parents are devout Buddhists. She met an old friend in the summer of 1998. In December 1998, the old friend told her about the Tian Dao religion. In January 1999, the applicant states that she was introduced to a dotting master and decided to join the Tian Dao religion.
[5] The applicant practised her Tian Dao religion secretly as it was banned by the Chinese government.
[6] The applicant states that in February 2000, the Public Security Bureau (the "PSB") arrested one of her Tian Dao co-members. The applicant went into hiding and states that she later learned that the PSB had searched her home and her family was questioned as to her whereabouts.
[7] The applicant also states that many of her fellow believers had been arrested. She decided to flee China.
[8] The applicant states that she borrowed money from a few friends and relatives and she hired a smuggling agent to make arrangements for her trip to Canada. She obtained her passport and Canadian visa through the agent.
[9] The applicant arrived in Canada on July 19, 2000 and made a refugee claim on August 1, 2000.
[10] The applicant states that after she arrived in Canada, she learned that the PSB and neighbourhood officials were looking for her.
[11] The Board concluded that the applicant was not a member of Tian Dao in China. This finding was based on credibility findings. The Board found that the applicant did not have good grounds for fearing persecution by reason of her religion, or any other ground set out in the Convention refugee definition, and concluded that she was not a Convention refugee.
[12] This is a judicial review of the decision of the Board.
[13] Issue
Were the Board's credibility finds properly based on the evidence?
Relevant Statutory Provisions
[14] Subsection 2.(1) of the Immigration Act, R.S.C. 1985, c. I-2 states as follows:
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
« réfugié au sens de la Convention » Toute personne:
a) 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:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
Analysis and Decision
[15] The Board made a number of credibility findings with respect to the applicant's testimony. These included:
1. The applicant's exit from China.
3. The applicant and Tian Dao in China.
4. The applicant's national identity card and passport.
5. The applicant's time in hiding and flight from China.
[16] The applicant's exit from China
The applicant testified that she left China as part of a delegation of three people. She stated that one person of the group did the talking to the authorities. When later asked how she exited the airport, she stated that she followed the snakehead. She also stated that she knew nothing of an exit permit and that she was not checked by the authorities. The documentary evidence shows that persons leaving China for Canada are checked three times at the airport. When confronted with this fact, the applicant maintained she was not checked.
[17] The applicant and Tian Dao in China
The applicant gave contradictory testimony as to when she met her classmate who introduced her to Tian Dao. She gave evidence that she met her former classmate in 1978 when she was asked the question twice by the Board member and a number of times by her own counsel. When confronted with her PIF, which states she met her former classmate in 1998, she agreed that it was 1998 and she gave the wrong information because she was nervous. The Board did not accept her explanation.
[18] I am of the view that it was open to the Board to find the applicant not to be credible based on these inconsistencies alone. I am of the further view that these credibility findings of the Board were reasonable and, as such, the Board's decision that the applicant was not a Convention refugee was also reasonable since it did not believe her account of events.
[19] I have reviewed the other inconsistencies pointed out by the Board and the applicant. Even if I was to find that the Board was not correct in some of its findings with respect to these inconsistencies, I am of the view that the reasons of the Board analyzed above are sufficient to support the Board's adverse credibility finding (see Lorne Waldman, Immigration Law and Practice, looseleaf (Markham: Butterworths, 2002) at 8.25 ( § 8.44(ix)).
[20] The application for judicial review is dismissed.
[21] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[22] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.
Toronto, Ontario
August 8, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-763-02
STYLE OF CAUSE: YING XIAO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, February 11, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, August 8, 2003
APPEARANCES:
Hart Kaminker
FOR APPLICANT
Marcel Larouche
FOR RESPONDENT
SOLICITORS OF RECORD:
Kranc & Associates
425 University Avenue
Suite 500
Toronto, Ontario
M5G 1T6
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT OF CANADA
Date: 20030808
Docket: IMM-763-02
BETWEEN:
YING XIAO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER