Judgments

[1996] 1 F.C. 310

IMM-1023-95

An Li Cen (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Cen v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Gibson J.—Toronto, October 31 and November 2, 1995.

Citizenship and Immigration — Status in Canada — Convention refugees — Judicial review of CRDD decision applicant not Convention refugee — Applicant, citizen of People’s Republic of China, drugged, sexually assaulted by employer’s client while on trade promotion trip — Manager, communist party member, blackmailing her into silence, compliance with further sexual demands — Tried in absentia, convicted, sentenced to seven years’ imprisonment for prostitution — CRDD finding story not credible, no nexus between fear of persecution and grounds giving rise to Convention refugee status — CRDD’s inferences leading to finding of implausibility not reasonably drawn on totality of evidence — Open to CRDD to find applicant member of particular social group — Punishment so disproportionate to objective of law as to be persecutory although law of general application.

This was an application for judicial review of the CRDD decision that the applicant was not a Convention refugee. The applicant is a citizen of the People’s Republic of China. She worked in a “travel agency” where trade promotion was a priority. Her manager was a member of the communist party. She accompanied her manager and a Japanese businessman on a tour of China which, it was hoped, would lead to lucrative contracts. On the second night of the trip, the applicant had been drugged and sexually assaulted by the businessman. Her manager threatened to report her as a prostitute if she told others about the assault, and used photographs taken during the assault to guarantee her silence and compliance with further sexual demands during the remainder of the trip. The assaults continued for the balance of the 15-day trip. Upon their return, the applicant refused to go to work. Her manager reported applicant to the Public Security Bureau. She was detained and interrogated, but became ill and was hospitalized. After recovering, the applicant went into hiding. She discovered that she was pregnant and underwent an abortion. She was tried, convicted and sentenced in absentia to seven years’ imprisonment for prostitution. If required to return to the PRC, the applicant feared assignment to a “reeducation through labour” camp. The CRDD did not believe the applicant’s story and found that there was no nexus between her fear of persecution and the definition of Convention refugee.

Held, the application should be allowed.

The CRDD made no comment on the documentary evidence that lent credence to the applicant’s tale of exploitation. It gave no weight to the fact that the applicant’s manager was a member of the communist party, a manager in a state enterprise and engaged, through the exploitation of the applicant, in trade promotion, a priority of the PRC. The applicant showed that the inferences drawn by the CRDD in reaching its finding of implausibility could not reasonably have been drawn on the totality of the evidence.

The CRDD’s conclusion regarding nexus to the definition of Convention refugee could not stand. The applicant was the victim of exploitation and blackmail. The fundamental human right in question was her right to security of the person. It was open to the CRDD to find that the applicant was a member of a particular social group within either the first or second category set out by the Supreme Court of Canada in Canada (Attorney General) v. Ward, i.e., a group defined by an innate or unchangeable characteristic or a group whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association. The particular social group might be defined as “women who have been subjected to exploitation resulting in the violation of their security of the person and who, in consequence of the exploitation have been tried, convicted and sentenced to imprisonment”.

If the punishment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. The seven-year sentence fell within this category.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).

CASES JUDICIALLY CONSIDERED

APPLIED:

Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.); Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321; Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (1993), 19 Imm. L.R. (2d) 81 (C.A.); Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593; (1995), 187 N.R. 321; Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584 (C.A.) (QL).

CONSIDERED:

Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.).

REFERRED TO:

Sajous v. Canada (Minister of Employment and Immigration), A-1588-92, Tremblay-Lamer J., order dated 12/11/93, F.C.T.D., not reported; Chen v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 189 (T.D.) (QL); Leon v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1253 (T.D.) (QL).

AUTHORS CITED

Country Reports on Human Rights Practices for 1993: Report submitted to the Committee on Foreign Relations U.S. Senate and the Committee on Foreign Affairs, U.S. House of Representatives by the Department of State. Washington: U.S. Government Printing Office, 1994.

Immigration and Refugee Board. Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution. Ottawa: Immigration and Refugee Board, March 9, 1993.

APPLICATION for judicial review of the CRDD decision that the applicant, a citizen of the People’s Republic of China who, after being sexually assaulted, was tried, convicted and sentenced in absentia for prostitution, was not a Convention refugee because her story was implausible and there was no nexus between her fear of persecution and the grounds that give rise to Convention refugee status. Application allowed.

COUNSEL:

John O. Grant for applicant.

Glen J. Johnson for respondent.

SOLICITORS:

Rosenbaum, Dickison, McKay & Grant, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson J.: These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the CRDD) of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning of that term assigned by subsection 2(1) of the Immigration Act.[1] The decision of the CRDD is dated the 5th day of April, 1995.

The applicant is a citizen of the People’s Republic of China (the PRC). In 1987, she commenced work as a clerk in a “travel agency” of the Chinese government where her duties apparently involved trade promotion and business dealings. Leaders at her work unit were all members of the communist party. By 1990, she had been promoted to the position of assistant manager by her manager Ms. Xiao. She interacted with foreign business persons as trade with other countries became more prevalent. In June 1993, the applicant and her manager received word of lucrative potential contracts through a Japanese businessman if a trip were arranged that would allow the businessman to see China. As the applicant spoke Japanese, she was invited to accompany her manager and the businessman on the trip.

During the course of the trip with the businessman, he began buying expensive gifts for the applicant who accepted them at the insistence of her manager. On the second night of the trip, according to the applicant, she was somehow drugged and was sexually assaulted by the businessman. She reported this to her manager who urged her to maintain “cordial” relationships with the businessman until the contracts had been signed. Her manager threatened to report the applicant to the Public Security Bureau (the PSB) as a prostitute if the applicant told others about the assault. Her manager showed the applicant photographs that had been taken during the course of the sexual assault. Under these threats, the applicant felt compelled to allow the businessman to continue to assault her sexually for the balance of the 15-day trip.

Following the trip, the applicant refused to go to work. Once again her manager threatened to report her as a prostitute if she did not return to work. Some eight days after the trip was over, the applicant’s manager did report her to the PSB. The applicant was taken to the PSB facilities for questioning. She was detained for 10 days, interrogated, urged to write a confession of her prostitution and was shown the photographs that had been taken during the trip. The applicant refused to sign a confession. While in detention she became ill. Her father was allowed to take her to a hospital. After recovering, the applicant went into hiding. She was tried, convicted and sentenced in absentia to seven years’ imprisonment for prostitution. Her father was detained for a period of time. The applicant discovered she was pregnant. She attempted to commit suicide. She underwent an abortion. Her father arranged for her to be smuggled out of the PRC and she made her way to Canada.

In its reasons for decision, the CRDD identified the issues before it as the applicant’s credibility and the nexus of her fear of persecution to one of the five grounds that can give rise to Convention refugee status.

The CRDD concluded that it did not believe the applicant’s story. It stated in its reasons:

The tribunal is of the opinion that the claimant’s story that Ms. Xiao took pictures of the claimant’s sexual encounter with the businessman and then showed them to the police as proof that the claimant was a prostitute is implausible. It would follow that if Ms. Xiao took the pictures, then she was complicit in the activity. It is reasonable to assume that Ms. Xiao, by the very act of providing the PSB with the pictures, would risk self-incrimination and would therefore be reluctant to show the pictures to the authorities as alleged by the claimant. The claimant stated that Ms. Xiao was afraid that the claimant would report her as procuring the claimant for the businessman. Having said that, it does not follow that Ms. Xiao would take such a chance as to expose her involvement by producing pictures, nor is it plausible that she would jeopardize her employment. If, indeed, such pictures were taken at all, they probably were used more as a threat to keep the claimant in line than anything else; in other words, to continue providing the businessman with her sexual favours. We would then have to ask why the businessman would allow compromising pictures to be taken of him. Would he not be fearful of blackmail? Surely he would have been aware that Ms. Xiao was in the room and that the pictures were being taken since the claimant stated that Ms. Xiao was in the room taking the photographs.

The claimant said that she was raped on the second night of the Beijing trip and that she was shown the pictures on the third day. When the claimant was asked why she did not report the rape to the authorities, she replied that she had no proof that she was forced into sexual activity and that no one would believe her.

The CRDD made no reference to documentary evidence that was before it regarding exploitation of women, albeit generally speaking not women of the applicant’s employment and education level, in the PRC and regarding close and mutually advantageous working relationships between heads of work units and the PSB. This despite the fact that the applicant’s story was to a significant degree consistent with such documentary evidence.

In his argument, counsel for the applicant relied on the decision of the Federal Court of Appeal in Giron v. Minister of Employment and Immigration[2] in support of his position that a Court which hears an application for judicial review may more easily intervene where there is a finding of implausibility rather than a finding of internal contradictions, inconsistencies and evasions. In Aguebor v. Minister of Employment and Immigration,[3] Décary J.A. commented on Giron in the following terms:

It is correct, as the court said in Giron, that it may be easier to have a finding of implausibility reviewed [sic] where it results from inferences than to have a finding of non-credibility review where it results from the conduct of the witness and from inconsistencies in the testimony. The court did not, in saying this, exclude the issue of the plausibility of an account from the Board’s field of expertise, nor did it lay down a different test for intervention depending on whether the issue is “plausibility” or “credibility”.

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.

As indicated earlier, the CRDD made no comment on the documentary evidence before it that lent credence to the applicant’s tale of exploitation and blackmail. Further, it apparently gave no weight to the fact that the applicant’s manager was a member of the communist party, a manager in a state enterprise and engaged, through the exploitation of the applicant, in trade promotion, a priority of the PRC at the time. Against the test set out in the quotation from Aguebor above, I am satisfied that, here, the applicant has shown that, based upon the CRDD’s limited analysis in this area, the inferences drawn by it in reaching its finding of implausibility could not reasonably have been drawn on the totality of the evidence that was before it.

In Ye v. Canada (Minister of Employment and Immigration),[4] MacGuigan J.A., after referring to Giron, stated:

We may well wonder whether this judgment [the CRDD’s judgment regarding the implausibility of the appellant’s story] does not involve the imposition of Western concepts on a subtle oriental totalitarianism, and whether it is correct to interpret Chinese law enforcement in the light of the more linear Western model, when the social control exercised by the Chinese State is omnipresent, through the co-opting of the vigilance of its citizens generally.

I am satisfied that the same might be said here. But that is not the end of the matter. The CRDD went on in its reasons to state:

Even if we did believe the claimant’s story, we find that there is no nexus to the definition of Convention refugee.

…

Counsel, in submissions, argued that the claimant was a member of a particular social group because of her gender and, as a woman, she was harassed and that she would not be facing prosecution through either the regular legal system or administrative detention, if she were not a woman.

The CRDD then quoted the three types of “particular social groups” described by La Forest J. in Canada (Attorney General) v. Ward .[5] The CRDD considered guidelines issued by the Chairperson of the Immigration and Refugee Board entitled “Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution”. The CRDD then disposed of the issue with the following rather brief analysis:

The claimant was allegedly coerced or tricked by her manager, Ms. Xiao, into a sexual relationship with a visiting businessman. Clearly, this alleged act would be of a criminal nature. The claimant said she was chosen to “be nice” to the businessman because she speaks Japanese. This, in our opinion, is not sufficient to constitute a particular social group. Japanese is a second language that the claimant learned while working at her place of employment.

Having considered the evidence as it pertains to the preceding, and the potential application of each category as set out in Ward, the tribunal finds that the harm feared falls outside the scope of the definition of Convention refugee.

With great respect, and bearing in mind the deference that my colleagues have held should be accorded to the CRDD in findings regarding membership in a particular social group,[6] I am satisfied that the CRDD’s conclusion regarding nexus to the definition of Convention refugee cannot stand. If the applicant’s evidence is believed, she was the victim of exploitation and blackmail. In a minority opinion not, in this respect, in conflict with the majority opinion, in Chan v. Canada (Minister of Employment and Immigration),[7] La Forest J. wrote [at page 642]:

As I believed apparent at the time of that decision, [the Ward decision] only a working rule was enunciated in Ward, not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group. The “general underlying themes of the defence of human rights and anti-discrimination” were to remain the paramount consideration in determining a claimant’s membership in any particular social group.

And later [at pages 644-645]:

In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. Such a claimant is in no manner required to voluntarily associate, ally, or consort with kindred persons.

And finally [at pages 645-646]:

As Professor Macklin recognizes, the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right.

Here, it cannot be argued that there is no fundamental human right in question. The applicant’s security of the person was clearly violated. She was sexually assaulted first, apparently by resort to the employment of drugs, and then by resort to blackmail. In the result, she became pregnant and underwent an abortion. She was prosecuted in absentia, convicted and sentenced to seven years’ imprisonment.

I conclude that it would have been open to the CRDD in this matter to find that the applicant was a member of a particular social group within either the first or second category set out in the Ward decision, that is, a group defined by an innate or unchangeable characteristic or a group whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association. The particular social group might be defined as: “women who have been subjected to exploitation resulting in the violation of their security of the person and who, in consequence of the exploitation have been tried, convicted and sentenced to imprisonment.”

If required to return to the PRC, the applicant fears assignment to a “reeducation through labour” camp. In the U.S. Country Reports on Human Rights Practices for 1993, the following appears, at page 608:

In addition to the formal judicial system, government authorities [in the PRC] can assign persons accused of “minor” public order and “counterrevolutionary” offenses to “reeducation through labor” camps in an extrajudicial process. In 1990 Chinese officials stated that 869,934 Chinese citizens had been assigned to these camps since 1980, with about 80,000 assigned each year. Chinese officials report 120,000 prisoners were undergoing “reeducation through labor” at the end of 1993. Other estimates of the number of inmates are considerably higher. Terms of detention run from a normal minimum of 1 year to a maximum of 3 years. The “labor reeducation” committee which determines the term of detention may extend an inmate’s sentence for an additional year. Under a State Council regulation issued in early 1991, those sentenced to “reeducation through labor” may ask the committee to reconsider their decision. Since 1990, “reeducation through labor” sentences may also be judicially challenged under the Administrative Procedures Law. While some persons have gained reduction or withdrawal of their sentence after reconsideration or appeal, in practice these procedures are rarely used, and short appeal times, lack of access to lawyers, and other problems weaken their potential assistance in preventing or reversing arbitrary decisions.

In Cheung v. Canada (Minister of Employment and Immigration),[8] Linden J.A. stated, at page 323:

Furthermore, if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.

I conclude that on the facts of this matter, the seven-year sentence imposed on the applicant can only be described as “so Draconian as to be completely disproportionate to the objective of the law” allegedly breached by the applicant. This the more so, when the applicant apparently fears, with some justification, assignment to a “reeducation through labor” camp.

Based upon the foregoing analysis, I will allow this application for judicial review, set aside the decision of the CRDD and refer this matter back for rehearing and redetermination by a differently constituted panel.

Both counsel tentatively suggested certification of a question on the issue of membership in a particular social group. With the addition of the reasons of Mr. Justice La Forest in Chan to his reasons on this subject in Ward, I am satisfied that the law in this area should now be well settled. No question will be certified.

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