JIAN WU Applicant - v. -, 2003 FCT 389

Date: 20030401 Docket: IMM-2061-02 Neutral citation: 2003 FCT 389 Toronto, Ontario, Tuesday, the 1 st day of April, 2003 PRESENT: The Honourable Madam Justice Snider BETWEEN: JIAN WU Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] Mr. Jian Wu (the "Applicant"), a citizen of the People's Republic of China ("China"), arrived in Canada on December 31, 2000 as a member of a business delegation and claimed Convention refugee status.

His claim was rejected, by decision dated March 28, 2002, by a panel of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"). He now applies for judicial review of that decision. Background [ 2 ] Among the submissions made by the Applicant to the Board were the following: · he claimed a well-founded fear on the grounds of political opinion based on his dissident activities in the early 1980's.

As a result of those activities, he claimed that he was arrested in 1981 and, again in 1983, when he was detained, interrogated, physically abused and sentenced to labour camp. · after his release from labour camp, he claimed that he was kept under surveillance. · in 1999, he began expressing pro- Falun Gong opinions, which resulted in threats from the authorities. [ 3 ] Credibility was the determinative issue in this claim. The Board found that the Applicant's evidence was not trustworthy or credible, based on the contradictions, implausibilities and omissions in that evidence. In

summary, in addition to being unsure of the Applicant's identity, the Board did not believe that he was detained by the Chinese authorities for his alleged expressions of anti-government opinion as a teenager. The Board concluded that there was no credible or trustworthy evidence to support the Applicant's claim to be a Convention refugee. Issues [ 4 ] The issues raised by the Applicant can be stated in the following manner: 1. Were the Board's findings of fact and credibility patently unreasonable?

Analysis [ 5 ] For the reasons that follow, I would dismiss this application. [ 6 ] In the Applicant's submission, the Board misconstrued the evidence before it, made erroneous findings of fact and drew unreasonable inferences related to key elements of the Applicant's claim from these erroneous findings. Many of the Board's credibility conclusions were based on these erroneous findings of fact. The Applicant submits that these are all reviewable errors ( Moagi v. Canada (Minister of Employment and Immigration) , [1986] F.C.J. No. 326 (C.A.) (QL) ; Attakora v.

Canada (Minister of Employment and Immigration) , [1989] F.C.J. No. 444 (C.A.) (QL) ; Madelat v. Canada (Minister of Employment and Immigration) , [1991] F.C.J. No. 49 (C.A.) (QL) ; Tung v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 292 (C.A.) (QL) ; Canada (Minister of Employment and Immigration) v. Satiacum , [1989] F.C.J. No. 505 (C.A.) (QL) ).

[ 7 ] In the Applicant's submission, the Board also erred by failing to consider relevant evidence ( Canadian Imperial Bank of Commerce v. Rifou , [1986] 3 F.C. 486 (C.A.) ; Padilla v. Canada (Minister of Employment and Immigration) , [1991] F.C.J. No. 71 (C.A.) (QL) ) and by basing its decision on irrelevant considerations ( Mehe v. Canada (Minister of Employment and Immigration) , [1990] F.C.J. No. 967 (C.A.) (QL) ).

The Applicant further submits that the Board erred by failing to consider the totality of the undisputed evidence properly before it. [ 8 ] A high level of deference should be accorded to the decisions of the Refugee Division made on the basis of a credibility finding, because the Refugee Division has the benefit of hearing the testimony of the witnesses. As a result, the appropriate standard of review is one of patent unreasonableness, which means that findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact ( Aguebor v.

Minister of Employment and Immigration , [1993] F.C.J. No. 732 at para. 4 (C.A.) . [ 9 ] I have carefully reviewed the record and am satisfied that the Board's decision was not patently unreasonable. [ 10 ] In its written reasons, the Board indicated in clear and unmistakeable terms why it did not believe the Applicant's testimony.

The Board was entitled to make adverse credibility findings on the basis of contradictions and inconsistencies in the Applicant's story and between the Applicant's story and other evidence before the Refugee Division ( Aguebor, supra ) and did so. [ 11 ] It was open to the Board, based on the Applicant's vague and non-responsive answers to reach its conclusions with respect to the exit visa, the reporting requirement and the Sri Lankan exit permits. [ 12 ] With respect to the Applicant's submissions that the Board made unreasonable conclusions based on speculations, I do not agree.

Particularly in light of the Board's findings on the credibility of the Applicant, it was reasonably open to the Board to reach the conclusions with respect to the fraudulent school certificate, the Applicant's Chinese passport and his lack of political activities in Canada. [ 13 ] The Board is not obligated to accept every explanation offered to it.

In respect of the Board's findings regarding the Applicant's failure to bring the original documents to the hearing, his delay in leaving China and the absence of his resident identity card, I am satisfied that the Board acted reasonably in considering the explanations of the Applicant.

The Board simply was not persuaded by the Applicant's explanations. [ 14 ] In spite of arguments to the contrary by the Applicant, I am unable to find that the Board took into account irrelevant considerations for its adverse credibility finding. [ 15 ] Finally, the Applicant submits that the Board found that his refugee claim was bogus simply because he was a member of a four person business delegation whose members all made refugee claims. I am satisfied that the Board did not fail to consider the totality of the evidence and properly interpreted and applied Wei v.

Canada (Minister of Citizenship and Immigration) , [2000] F.C.J. No. 2143 (T.D.) (QL) . [ 16 ] In Wei, supra at paragraph 9, Simpson J. stated that "in my view, it was open to the Board to conclude that the Applicant's refugee claim was bogus because he was part of a delegation whose members all made refugee claims." Simpson J. also concluded that the admitted inconsistencies in the applicant's statements would have been sufficient to justify the Board's adverse credibility finding. [ 17 ] In my view, the Board properly interpreted and applied Wei, supra .

In addition, the numerous contradictions, inconsistencies and implausibilities in the Applicant's story were sufficient to justify the Board's adverse credibility finding. As a result, the Board did not reject the Applicant's claim solely based on his membership in a phony business delegation, but rather rejected his claim after considering the totality of the evidence before it. [ 18 ] Neither party proposes a serious question of general importance for certification. ORDER This Court orders that this application is dismissed. There is no question for certification. "Judith A. Snider"

J.F.C.C. FEDERAL COURT OF CANADA TRIAL DIVISION Names of Counsel and Solicitors of Record DOCKET: IMM-2061-02 STYLE OF CAUSE: JIAN WU Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: TUESDAY, APRIL 1, 2003 REASONS FOR ORDER AND ORDER BY: SNIDER J. DATED: TUESDAY, APRIL 1, 2003 APPEARANCES BY: Mr. John Lee For the Applicant Mr.

David Tyndale For the Respondent SOLICITORS OF RECORD: John Lee Barrister & Solicitor 5 Fairview Mall Drive Suite 365 North York, Ontario M2J 2Z1 For the Applicant Morris Rosenberg Deputy Attorney General of Canada For the Respondent FEDERAL COURT OF CANADA Date: 20030401 Docket: IMM-2061-02 BETWEEN: JIAN WU Applicant - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER