Cai v. Canada ( Minister of Citizenship and Immigration )
IMM-1088-96
Teitelbaum J.
16/5/97
13 pp.
Judicial review of Immigration and Refugee Board, CRDD decision applicant not Convention refugee-In 1989 Chinese applicant college lecturer in electronics-Involved in China's pro-democracy movement-Demoted to work in college-run factory after government crackdown on protests in June 1989-Board holding treatment not amounting to past persecution-Citing documentary evidence indicating lower incidence of political persecution in Guangdong Province-Not accepting as credible applicant's further evidence also fearing persecution because of activities in teaching network subsequent to Tianamen Square protests-Applicant claiming co-founded teaching network subsequent to Tianamen Square protests-Holding lectures in public venues to publicly disseminate pro-democracy views-Coming to Canada to study in 1991-Later advised in letters from friends Association banned, two co-founders detained-Board not believing evidence offered to support applicant's claim members persecuted, highlighting implausibilities in letters received from other members of Association, holding existence of Association unlikely in China's repressive political climate-Application allowed-(1) Applicant arguing if filmed as protestor in front of Chinese consulate, would be in grave jeopardy upon return to China-Board holding because of nature of applicant's involvement no more than mere possibility of persecution-Not citing any documentary evidence to support characterization of mere possibility-No indication Board considering crucial question of fate of returned refugee claimants-Evidence existing refuting Board's finding-Board failing to consider how combination of applicant's known activism during protests in Tianamen Square era and activism in Canada to mark anniversary of Tianamen Square massacre might put him at risk of persecution-Erred in treating each element of applicant's claim in isolation to consider issue of whether applicant having well-founded fear of persecution-(2) To conclude Association fiction, part of elaborate ruse devised by applicant to bolster claim for refugee status, Board had first to discount letters in unreasonable, perverse manner, selectively rely on impugned piece of documentary evidence-Unreasonable to hold against applicant fact not keeping every letter sent to him-That kept radio broadcasts, leaflets from Tianamen Square period as record for posterity, not safeguarding personal letter, not sound basis for rejecting applicant's credibility-Applicant's credibility should also not depend on minor inconsistencies in salutations used in letters-(3) Board basing conclusion applicant's fear of persecution because of pro-democracy activities in 1989 not well-founded almost exclusively on Kamm Report-Even if Kamm Report entirely reliable source, and less repression in Guangdong than in rest of China, applicant only having to demonstrate reasonable chance or more than mere possibility of persecution-Board also citing Kamm Report to refute applicant's claim Association even existed because authorities' crackdown on pro-democracy activities not dissipated-In Board's rationale, Kamm Report indicating applicant's fear of persecution based on actions in 1989 not well-founded because activists in Guangdong enjoying better treatment and at same time fear of persecution based on involvement in Association in 1990-1991 not well-founded because according to Kamm Report, Association could not have existed in Guangdong-While Court generally reluctant to interfere in Board's consideration of documentary evidence, judicial review warranted if Board failing to address, weigh, consider contrary evidence-Board should have recognized not all documentary evidence equally reliable-Naive for Board not to consider, weigh preface of Kamm Report in which describing lobbying efforts, testifying in favour of retaining most favoured nation status-Board committing reviewable error in failing to pay due heed to documentary evidence contradicting Kamm Report-(4) Board not acting unreasonably in making negative inference regarding delay despite possibility might have arrived at different interpretation-Although Board not breaching procedural fairness, judicial review warranted because of Board's numerous, significant errors in law.