TA4-15299

IMMIGRATION AND REFUGEE BOARD LA COMMISSION DE L'IMMIGRATION (REFUGEE PROTECTION DIVISION) ET DU STATUT DE RÉFUGIÉ (SECTION DE LA PROTECTION DES RÉFUGIÉS) IN PRIVATE HUIS CLOS TA4-15299 CLAIMANT(S) DEMANDEUR(S) XXXXX XXXXX XXXXX XXXXX DATE(S) OF HEARING DATE(S) DE L'AUDIENCE March 30, 2006 March 16, 2006 DATE OF DECISION DATE DE LA DÉCISION August 2, 2006 CORAM CORAM Stephanie Thomas FOR THE CLAIMANT(S) POUR LE(S) DEMANDEUR(S) Helen Kim Barrister & Solicitor REFUGEE PROTECTION OFFICER AGENT DE PROTECTION DES RÉFUGIÉS T. Horbay (March 16, 2006 only) DESIGNATED REPRESENTATIVE REPRÉSENTANT DÉSIGNÉ MINISTER'S COUNSEL CONSEIL DE LA MINISTRE "You can obtain, within 72 hours, a translation or a copy of these reasons for decision in the other official language by writing to the Editing and Translation Services Directorate of the IRB, 344 Slater Street, 14th floor, Ottawa, Ontario, K1A 0K1 or by sending a request to the following e-mail address: translation.traduction@irb.gc.ca or to facsimile number (613) 947-3213." "Vous pouvez obtenir la traduction ou une copie de ces motifs de décision dans l'autre langue officielle dans les 72 heures, en vous adressant par écrit à la Direction des services de révision et de traduction de la CISR, 344, rue Slater, 14e étage, Ottawa (Ontario) K1A 0K1, par courrier électronique à l'adresse suivante : translation.traduction@cisr.gc.ca ou par télécopieur au (613) 947-3213." XXXXX XXXXX XXXXX (the claimant), a citizen of the Socialist Republic of Vietnam (Vietnam), claims refugee protection on the basis of her religion (Christian) and the efforts of a military official to force her into marriage. ALLEGATIONS: The claimant alleged as follows. Her husband died in 1992. In 1998, a group of friends came to her home, among them a person whose name she understood was XXXXX The claimant believed he was a military person because he wore a uniform and carried a gun. He came to her home once or twice a week thereafter and on every visit asked her to marry him. The claimant told him she was not interested in him. Beginning on XXXXX, 1999, he began threatening that he would have her jailed if she did not marry him. In 2001, the claimant came to Canada to visit her son. On XXXXX, 2002, the claimant applied for a second Canadian Visitor's Visa (CVV) in order to come to look after her son, who was injured in an accident and was unable to use his right hand for six or nine months. This accident had occurred in XXXXX 2002. A CVV was issued XXXXX, 2002. The claimant came to Canada on XXXXX, 2003. Before she came to Canada, she applied for an Australian visa at the beginning of 2003 because she wanted to travel. That visa was refused. On XXXXX, 2003, the man known as XXXXX came again to her home with six officers with guns and demanded that she marry him or he would have her put in jail. The claimant went into hiding with friends until she left the country to fly to Canada. She was granted six months visitor's status upon arrival at Pearson International Airport on April 20, 2003. She initially lived with her son. Then she moved elsewhere to live with other people. On XXXXX, 2003, the claimant and her son were both charged with XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX The claimant alleged she had no contact with her son thereafter and does not know his telephone number or address. Also thereafter, she was homeless for one year until she moved to her current address. After a number of court appearances, the charges against the claimant were dropped on XXXXX, 2004. An application was made in XXXXX 2003 to extend the claimant's visitor status in Canada. It was refused by Immigration officials on XXXXX, 2003 and they sent out a notice she should immediately leave Canada. The claimant alleged she had no idea who made this application to extend her visitor's visa status and that she was unaware she should leave Canada. On May 5, 2004, the claimant was interviewed by Immigration officials at Citizenship and Immigration Canada (CIC) Etobicoke in connection with filing her refuge claim outlining the allegations concerning the threat from the alleged military man. On October 17, 2005, the claimant's counsel forwarded amendments1 to her Personal Information Form (PIF)2 to the Immigration and Refugee Board. At that time, the claimant added a second basis of claim, indicating that in 2001 she had been invited by a neighbour to a meeting, where she was introduced to Christianity. Thereafter, she attended religious meetings in private homes every few weeks. In XXXXX 2003, plainclothes authorities discovered a meeting in progress. The other members of the group ran away through the back door but the claimant was captured by the police, taken to the local station, detained for several hours, forced to write an apology and promise not to continue attending religious meetings, and paid a bribe. Following this incident, she did not attend religious meetings and did not see her neighbour again. She also changed her ethnicity in the amended PIF to Chinese (from Vietnamese). The claimant alleged that after she came to Canada, she started to attend a Vietnamese Baptist Church. DETERMINATION: I find that the claimant is not a Convention refugee or a person in need of protection, pursuant to the Immigration and Refugee Protection Act. ANALYSIS: I find, based on a certified true copy of a Vietnamese passport3 seized by CIC officials, that the claimant is a citizen of Vietnam and who she claims to be. I did not find the claimant to be a straightforward and direct witness. She continually failed to provide direct answers to questions throughout the hearing, although she had been warned that her credibility could be affected by this pattern of response. Sometimes repetition of questions or rephrasing questions failed to elicit a direct answer at all. I observed the claimant's demeanour carefully throughout the lengthy hearing while she gave testimony. I note that she paused and hesitated before providing some answers, in what appeared to be an effort to bide time while she considered her response. There were numerous inconsistencies in her testimony and her documents. The claimant was not even consistent about basic biographical data. For example, she told Immigration officials at her interview when filing her claim that she had a Grade 3 or 4 education. In Schedule One,4 she said she had eight years education. In her testimony, she said she had Grade 6, and in her PIF she said she had four years of education and she had passed Grade 1.5 The claimant was inconsistent regarding her occupation. In her PIF, she said she was a XXXXX from XXXXX 1998 to XXXXX 2002.6 At her interview with Immigration officers, she said she was a XXXXX XXXXX from 1993 to XXXXX 2003.7 The FOSS notes8 reveal that when the claimant applied for a CVV in 2001, she stated she had two sons in Vietnam and declared no other children. She was confronted with the fact that Immigration officials had checked the application of her son who was in Canada, which indicated that he had five siblings. At that point, the claimant indicated she had been told to only declare those children living with her. At her interview when she filed her refugee claim, she told Canada Immigration officials she had no family in Canada and that she had three babies who all died at birth or shortly thereafter. She also indicated all her siblings were dead. She was specifically asked about her son in Canada and she denied she had a son in Canada. When she was confronted with this by Immigration officials, she then agreed she had a son in Canada.9 In her PIF, she said she had "an adopted son" in Canada.10 She did not indicate any other children anywhere in the world or any siblings in her original PIF. In the PIF amendment, filed October 17, 2005,11 the claimant indicated she had two other sons in Vietnam and that she had four sisters, two of which were deceased, one of which was in England and accepted as a refugee and another of which was in the UK. (Although the photocopy of the PIF amendment was poor, it appeared the country for the second sister was "UK") In her testimony, the claimant stated that she had a sister who had been sponsored by her children in Sweden. Counsel indicated that it was her fault this information regarding the sister in Sweden had not been put before the Member in the PIF amendment. The claimant denied prior travel to Canada when interviewed by an Immigration officer when filing her claim. She indicated no prior travel in her PIF.12 In her testimony, she acknowledged that she went to the UK in 1998 and admitted that she came to Canada in 2001. The claimant initially denied that she had any prior passport (other than the one seized by Canada Immigration officials). After much questioning, she finally admitted that she did have a prior passport. At the beginning of the hearing, the claimant confirmed to the Member that the contents of her PIF had been translated to her, before she signed the declaration and she confirmed that the contents were true, complete and correct.13 The claimant signed CVV applications twice, indicating that the information provided was correct. An interpreter was provided at her interview with Immigration officials when she filed her claim and she indicated that she understood the interpreter.14 When confronted with the inconsistency regarding the number of her children, the claimant testified she gave birth to three children and they were all alive. Asked why she gave inconsistent information and statements to Immigration officers, on immigration forms, her interview and then in her PIF, even about the number of her children, her only response was, "I have only three kids so I only said three kids." When she was told that at various times she had told various stories about the number of her children she said, "Currently, I have three kids so I declared three kids." She said her son in Canada had been adopted by her when he was three years old. She had no papers to corroborate this, as it was done "in old times." Confronted with her statement she had told Immigration she had no siblings, the claimant's only response was, "I have no siblings here. Yes I do have in Vietnam." Asked if she had siblings anywhere other than Vietnam, she said, "Yes. One in Vietnam, one in England and one in Sweden." Asked to comment on her denial to Immigration officials that she had ever come to Canada before her current visit, the claimant's explanation was, "No. They didn't ask so I didn't tell. I only answered what they asked." I note that the interview notes indicate the claimant was clearly asked this question.15 Asked about the inconsistency regarding her employment (her PIF indicated she XXXXX XXXXX in the XXXXX from 1998 to XXXXX 2003, her testimony indicated she was a XXXXX XXXXX XXXXX until she left Vietnam in XXXXX 2003, and documents submitted to obtain her CVV indicated she had a XXXXX XXXXX XXXXX XXXXX XXXXX the claimant said, "The XXXXX was just in my name to represent my son but I XXXXX XXXXX XXXXX." I find the claimant has failed to give a credible or plausible explanation for any of the many inconsistencies regarding her basic personal data. I note that she also attempted to blame a Mr. XXXXX (the person who she said assisted her with preparing her PIF) for her failure to declare prior travel in her PIF. After having confirmed complete interpretation of her PIF at the beginning of her hearing, she then became evasive and not credible in her attempt to blame all on this Mr. XXXXX. In this regard, I also note that a Pastor signed the interpreter's declaration on her PIF.16 I draw an adverse inference regarding the claimant's general credibility from these many inconsistencies. Given the totality of the evidence and the claimant's lack of general credibility, I find, on a balance of probabilities, that the claimant was initially attempting to hide her prior travel and the existence of her son in Canada and relatives in other countries, in an effort to buttress her refugee claim. I also find, on a balance of probabilities, that the claimant adopted a deliberate strategy of presenting herself as an old woman, who appeared to have a poor memory and no knowledge of Immigration proceedings, in order to attempt to explain inconsistencies, omissions and failure to provide answers to questions. I observed the claimant throughout her hearing. She exhibited at least normal intelligence and testified she had had no accidents or major illness. I note that her alleged "memory problem" occurred in connection with questions she was having difficulty answering and when there were inconsistencies. The claimant produced two medications at the hearing, Tylenol II and Apoamitriptyline, 25 mg. The claimant produced a note from a doctor indicating that she had chronic headaches and poor memory and has been treated with analgesics and tranquilizers. This letter was dated XXXXX, 2006.17 When questioned further regarding her alleged medical condition, the claimant stated that she had not gone to the doctor earlier because she did not have medical coverage. The Member indicated that she would have received documents when she filed her claim regarding her eligibility for medical services in Canada. At that time, the claimant changed her testimony and said the reason she had not gone earlier was because she did not have money to buy XXXXX. She acknowledged that she has not been seen by any psychologists, psychiatrists or neurologists and that her family physician has performed no memory testing. She said he had ordered blood tests and an x-ray. She failed to provide corroboration of these tests, either at the hearing or post-hearing. She admitted that she had self-reported her alleged memory problems and headaches to the physician who signed the note. In these circumstances, I give no weight to the doctor's note, other than as an indication that the claimant told him she had headaches and poor memory. Given the totality of the evidence and the claimant's lack of general credibility, I conclude, on a balance of probabilities, that the claimant made these allegations regarding her medical condition to a doctor in order to present herself at her hearing as a person with poor memory and thus explain any problems with her testimony or documents. I note that the claimant initially denied she had an interview in connection with her CVV for her first trip to Canada and then finally admitted it. In that interview, the Immigration officer made a note that she was "very alert and business mind (sic) woman."18 I also note the claimant was 63 years old at the time of the hearing and was alert throughout. I conclude, on a balance of probabilities, that the claimant's intention was to portray herself as an "old" person, lacking general knowledge of immigration proceedings and relying on others to take steps on her behalf, and that this was a strategy adopted in order to further her refugee claim. Given the information regarding her business and financial statements provided in her CVV application19 and the inconsistencies regarding her occupation, I find, on a balance of probabilities that the claimant XXXXX XXXXX XXXXX XXXXX, and alleged she was merely a XXXXX XXXXX XXXXX as part of her strategy to present herself as helpless and reliant on others. I find, on a balance of probabilities, that the claimant is not, and never was, a sincere Christian believer and that she was not detained by the Vietnamese authorities in connection with any practice of Christianity. The claimant was asked to name the sacraments of her church. She was unable to name even one. When asked what the sacraments were, the claimant said, "To learn the Bible so I can live long next to God." When told that was not a sacrament and asked again if she could name any sacrament of her church, she said, "Every member has to learn the Bible, know right or wrong, be a good person." The claimant was asked the denomination of the church she attended in Toronto. She said it was the Vietnamese Baptist Church. When she was asked if there were other denominations of the Protestant Church, she gave the address of her church. Asked again, she gave the name "Protestant Baptist Vietnamese Church." When asked to name some other denominations of a Protestant church in Canada, she could only name the baptist church. She further acknowledged that she didn't know what denomination meant. The claimant did not answer questions directly on this issue, including questions as to whether she would have attended a Vietnamese Roman Catholic church or would have attended any Protestant church where they spoke Vietnamese. She replied in the negative, indicating that she just came to that baptist church and she didn't go to other churches because "I follow Jesus." When told the other churches also followed Jesus, the claimant did not know that. I do not find it plausible or credible that a sincere believer in her religion, who had been in Canada for some three years at the time of her hearing and allegedly attending religious services in Vietnam since 2001, and allegedly attending the Vietnamese Baptist Church in Canada since her soon after her arrival, would not know anything about denominations of Protestant churches or any sacraments of her church. The claimant was asked to describe her baptism, which allegedly took place in XXXXX 2004. She testified she had attended church in Canada since XXXXX 2004. She made no allegation to have ever attended church during her visit to Canada in 2001, although she said that she had been introduced to Christianity by her neighbour, Mrs. XXXXX, before she came to Canada in 2001. The claimant was asked about the baptism ceremony. She mentioned details which appeared to relate to Holy Communion, but failed to mention anything in connection with the use of water in the ceremony. The Member cited specialized knowledge that the baptist church uses water during the baptism ceremony and sometimes uses total immersion. The claimant continued to deny the use of water in her alleged baptism ceremony. The claimant was asked why she did not have a baptism certificate or other corroboration of her baptism from her pastor in Canada. She said, "I asked the Pastor and he said I don't have it." I do not find it credible or plausible that the claimant described the baptism ceremony without any use of water in the Baptist church, or that she failed to produce corroboration of a central element of her claim, on the basis she provided. I do not find it plausible or credible that a person, who had been introduced to Christianity in 2001 in Vietnam before her first visit to Canada, would have failed to attend church in Canada during that visit in 2001. Canada would have offered her the first opportunity to practise her alleged religion freely and openly. I do not find it plausible or credible that the claimant failed to attend church regularly in Canada from the time of her arrival in XXXXX 2003. The claimant was living with her son, who was here as a student for several years. I find, on a balance of probabilities, she could have easily have located a church through her son obtaining information. The claimant was asked why the letter20 from her pastor never confirmed she was a member of the church (the letter was dated XXXXX, 2005). She was specifically asked why there was no corroboration from her pastor about when she first attended the church, when she became a member, when she was baptized, and the regularity of her attendance. Her only response was, "I used to come to church on Sunday, you can ask." Section 7 of the Refugee Protection Division Rules requires claimants to provide acceptable documentation regarding not only identity but the other elements of the claim. This was available to the claimant. She chose not to produce the pastor as a witness or to provide the critical details by way of a letter or affidavit from him. During the hearing the Member noted that during a break the claimant pulled papers from her Bible and was studying them. When asked to produce these documents, the claimant initially produced a XXXXX business card. When told by the Member that she had seen her studying other documents, the claimant produced documents in the Vietnamese language.21 These included hymns, printed pages and handwritten notes. The claimant was asked what was on the paper in handwriting. She said, "That's the song. So it's easy for me to sing." The interpreter was asked to translate the beginning of that song. The interpreter stated it said, "To pray to give my life to God. Be loyal, to give my life to God, with the hope Jesus will be pleased." I find, on a balance of probabilities, given the totality of the evidence and the claimant's lack of general credibility, that she attempted to deceive the Member by first pulling out the XXXXX XXXXX card and attempting to hide the other pages. I find, on a balance of probabilities, that the claimant was studying religious materials during her hearing in order to provide information to buttress her claim to be a Christian. The claimant was asked why, if she were a Christian, she had not asked her pastor for information about how she could obtain status in Canada given her alleged problems concerning her religion in Vietnam. The claimant's only response was that she did not like to ask her pastor for help. I do not find it plausible or credible that the claimant had indeed encountered problems in connection with religious practice in Vietnam, yet sought no help from her Canadian Pastor. Her pastor would be the logical person to whom to turn. In light of the totality of the evidence and the claimant's lack of general credibility, I find, on a balance of probabilities, that she is not, and never was, a sincere Christian believer, and that any attendance at church in Canada was done for the purpose of asserting her refugee claim. In this connection, I particularly note that the claimant only raised the religious basis of her claim in an amendment to her PIF22 in October 2005. When she was asked why she had never mentioned this when interviewed by Immigration officials in connection with her claim or in her original PIF, she stated with regards to her interview by Immigration officers, "At that time, they didn't ask me about it." Her explanation for failing to raise the issue until October 2005 was "Because at that time, my mind was unstable until the court withdrew the charge. So after the court withdrew the charge, I gained my mind back so I could add some more paper (sic)." The claimant acknowledged she had no corroborating evidence from a psychiatrist or psychologist regarding her allegation that she had an unstable mind in this time period. She acknowledged she did not see a doctor at that time, again blaming it on the fact that she didn't have medical benefits. When confronted with the Member by the fact that she had already been told that she got a document saying she did have benefits, and that she had acknowledged she had benefits to attend a physician earlier in the hearing, the claimant's response was, "The doctor told me just take medicine for a time." When she was confronted with the fact that she had previously testified she told the Member that she told the doctor about her memory problems for the first time in XXXXX 2005, her only response was, "Yes, I did talk to the doctor and he gave me medicine." I find that the claimant has failed to give a credible or plausible explanation of why she did not raise her basis of claim on religious grounds prior to October 2005. I note that she was interviewed twice by Immigration officials when she filed her claim, due to the number of inconsistencies uncovered during the questions and answers. I conclude, on a balance of probabilities, that she had ample opportunity to raise this basis of claim and that her mind was not so affected that she could not do so before October 2005. In light of the totality of the evidence, including the timing of the criminal charges, the timing of her claim, the nature of her claim and the timing of the amendment adding the religious grounds, I conclude, on a balance of probabilities, that the claimant invented these religious grounds in an effort to buttress her claim. I also find, on a balance of probabilities, that the claimant did not attend religious services in Vietnam and was not arrested in that connection as she alleged. The claimant stated that the meeting which was raided, was held in her neighbour, Mrs. XXXXX home, that the others managed to escape out the back door, and that only she was arrested. I do not find it plausible or credible that Mrs. XXXXX herself was not arrested, as the meeting was held at her home. The claimant was asked details regarding her religious practice in Vietnam, and she gave inconsistent answers. She said she became a Protestant "since 2001." She was later asked when she was first introduced to Christianity and she said "2002", that that was when she first learned about Christianity. The claimant provided no credible explanation for this inconsistency. I conclude, on a balance of probabilities, that the claimant was not attending religious services in Vietnam and was not arrested in that connection as alleged. In this regard, I also note the claimant's failure to reply directly to a question as to why she did not have a police report from Vietnam corroborating her arrest. She was evasive, questions had to be repeated many times and she finally said that there was no report because she paid a bribe. Given the claimant's lack of general credibility and the totality of the evidence I do not believe this statement, and I find, on a balance of probabilities, that no arrest occurred. I find, on a balance of probabilities, that the claimant was not threatened with arrest by a military official, and that she did not go into hiding in Vietnam before she came to Canada. The claimant testified that the military officer started threatening that he would put her in jail if she didn't marry him in 1999. I do not find it plausible or credible that this man would make this threat in 1999 and yet not act on it until 2003. The claimant made no allegation she had attempted to find out his name, status, confirmation that he was in the military, or anything about his wife and children. She alleged that she had only heard him called by a name, XXXXX which the interpreter said meant, literally, "second brother". The claimant had used this name throughout her documents, indicating that she had heard him called by that name. But when her counsel asked what was her primary fear for return to Vietnam, the claimant said, "I'm afraid that second uncle will put me in jail." The Member had the interpreter confirm the claimant had said second uncle. Asked to clarify her use of this term, the claimant said, "I just heard people call that name." Asked what name, the claimant said, "People call that military officer second uncle." The interpreter confirmed that second uncle was not XXXXX, rather it was XXXXX The tape was run back and the interpreter again confirmed the claimant used XXXXX twice. The claimant was questioned at length about this and she insisted that XXXXX was equal to "second brother", that it was the proper name of a person, and that it was not a nickname or a way to describe a relationship with a person. She said it was customary in Vietnam that a person could be named "Mr. XXXXX XXXXX." I draw a negative inference regarding the existence of this alleged military man from her sudden deviation of description from second brother to second uncle. I do not find that the claimant has credibly or plausibly explained the alleged name of the person, her use of another relationship to describe this man, or the fact that she took no steps to verify exactly who he was, whether he was indeed a member of the military, or his rank. I also note that in testimony when the claimant said she had done nothing to investigate about him, "including his wife and children", she then changed her story. She explained that this man had wanted her to be his "mistress" or "second wife" rather than his wife. Before that, in her testimony and documents, she had consistently used the term that he wanted her to be his "wife", rather than "second wife" or "mistress." The claimant was asked why she put nothing in her PIF regarding allegedly going into hiding after this man threatened her with arrest, the fact he had wanted to marry her and threatened to put her in jail since XXXXX 1999 (according to her testimony) and her allegations in her testimony that before she was arrested, police were already following members of her group but they were able to escape and her allegation she was under surveillance and close monitoring by police after her arrest. Her only response was, "At the time, I didn't remember." I do not find she has credibly or plausibly explained the critical omission of these important details of her claim. I also note two other things in connection with her PIF. While the claimant testified she went into hiding after the military man and six officers came to threaten her with arrest, the addresses she provided in her PIF show her living at her home until she left for Canada in XXXXX 2003. Also, in response to questions about having ever been sought by, arrested, detained or charged by police or authorities in any country, the claimant only mentioned her charges in Canada. She failed to mention the alleged arrest in connection with her religious practice and the fact this man was allegedly seeking to arrest her before she left Vietnam. Finally, in her PIF, the claimant indicated that this man came to her house with six other officers, threatening to arrest her on XXXXX, 2003. However, she had also testified that he came to her home with six other officers with guns in XXXXX 2003. Asked to comment on the inconsistency, the claimant stated there were two occasions when they came to her home to threaten her with arrest. Told that was inconsistent with her prior testimony, she said, "I didn't remember before. Now I recall it was two times." I do not find this explanation plausible or credible, given her general lack of credibility. Asked to comment on why she made no mention in her PIF narrative of being in hiding and indicated no hiding place (as she showed her home address the same from 1993 to XXXXX 2003), the claimant's only explanation was, "I filled out the form like that, but at the time he was following me so I hid. When he didn't see me so I come back to my house." The claimant had earlier testified she was staying with friends after the time he came with six men to arrest her in 2003 and until she left Vietnam. In light of the totality of the evidence, the claimant's multiple inconsistencies that she has failed to credibly explain, and her lack of general credibility, I find, on a balance of probabilities, that she was never threatened by a military officer with arrest because he wanted to marry her or have her as a mistress. In addition, I find, on a balance of probabilities, that the claimant does not have a sincere subjective fear of persecution that is required to establish a refugee claim. The claimant acknowledged she had a sister who is a successful refugee claimant in the UK, and a son who has been studying for some years in Canada. The XXXXX charges occurred in XXXXX 2003. The claimant became illegal in XXXXX 2003. She worked illegally as a XXXXX in Canada. Whoever made the application to extend her visitor status was informed she had to leave Canada immediately in December 2003. Yet she made no refugee claim until May 5, 2004. I note with regard to the timing of her claim that the court documents she submitted indicate she had been scheduled for trial on XXXXX, 2004 (the date the charges were withdrawn).23 The claimant explained her failure to claim during her initial period in Canada and her failure to tell her son about her problem before the XXXXX charges, on the basis that "I didn't have time, things already happened." Given the claimant's knowledge of the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX ability to access information immediately through her son once she arrived in Canada, I do not find this a credible or plausible explanation for her failure to make a claim soon after arrival. The claimant also advanced a second reason for the failure to claim, as she was legally in Canada for six months after arrival. However, given the claimant's general lack of credibility, I find, on a balance of probabilities, that she knew full well that an application had been made to extend her visitor's visa and also that it had been refused and she had been told to leave Canada in December 2003. The claimant portrayed herself as homeless for one year after the XXXXX and stated that she had no contact with her son and didn't know his address and telephone number. However, I note that the claimant indicated in her second CVV application that she had approximately 150 million Vietnamese dongs available to her in Vietnam,24 that someone paid $5,000 cash bail on her behalf25 and that the claimant had the same criminal lawyer who represented her son throughout the period from the XXXXX being laid until they were withdrawn (counsel noted as Schofield).26 I further note a long series of appearances, of both the claimant and her son, in connection with the criminal charges dating from XXXXX 2003 through to XXXXX, 2004. Given the totality of the evidence, I find, on a balance of probabilities, that the claimant was not homeless as she alleged and that she had not severed contact with her son as she alleged. I further find, on a balance of probabilities, that she had ample opportunity to obtain information regarding the refugee process at any time (including through her criminal law counsel) and that her failure to do so indicates a lack of subjective fear. I do not find credible or plausible her explanation that she merely "did not want to" seek help from her pastor if she indeed had a genuine subjective fear of persecution. The claimant testified that she met Mr. XXXXX approximately one year after she came to Canada. She also testified she only learned about refugee claims from Mr. XXXXX about a month before she filed her claim. I do not find it credible or plausible that the claimant would not have made inquiries earlier if she had a genuine subjective fear of persecution. I conclude, on a balance of probabilities, that the claimant has no genuine subjective fear of persecution in Vietnam and that her claim was manufactured before her trial date on the XXXXX in an effort to remain in Canada. The claimant initially indicated her ethnicity was Vietnamese in her first PIF and changed it by way of amendment to ethnic Chinese.27 The claimant was questioned extensively regarding her background at the hearing. She testified that her grandfather came from China but that she was Vietnamese by virtue of marriage to a Vietnamese man, and also was a Vietnamese citizen before that. The claimant admitted that the ethnicity Kimh was the equivalent of Vietnamese ethnicity. The Member read from the Home Office Report28 that Kimh ethnicity accounted for 87 percent of the Vietnamese population and asked the claimant if she had any documents to corroborate her Chinese ethnicity. The claimant said that she had no paper and that in the year 1979 it was already gone as she said her birth certificate was lost. When questioned by her counsel if she had any reason to fear persecution in Vietnam, other than based on her religion and the activities of the man who wanted to marry her, the claimant said, "I am afraid my dad, my granddad with Chinese origin. In 1979, the government deported some Chinese so I am afraid to come back too." Asked what they would do to her, she said, "They would catch me and put me in jail." Asked for the reason, the claimant said, "I am afraid of XXXXX and the government not allow me to freely practice my religion." The claimant made no allegations of any efforts to obtain documentation corroborating her amended statement regarding her ethnicity. I note that the claimant produced only a photocopy of her National Identity Card, claiming that she had lost the original after it was photocopied. The photocopy of the card indicates her "homeland" as Quandong Province, China and indicates her ethnic group as Chinese.29 The claimant provided no documentary evidence corroborating her allegation during testimony that Chinese had been sent to China from Vietnam in 1979. I find there is nothing before me in the documentary evidence to corroborate the allegation that a person who is a Vietnamese citizen, holding a Vietnamese passport, but of Chinese ethnicity, through a grandparent who came from China, would be put in jail in Vietnam or sent to China, on the basis of their ethnicity. I conclude the claimant would not face a serious possibility of persecution on the basis of her ethnicity. Given my prior findings, I conclude she would not face a serious possibility of persecution on the basis of her alleged religion and alleged efforts to arrest her if she did not marry XXXXX In considering the evidence and making my finding, I have taken into account the Chairperson's Guidelines30 regarding women refugee claimants. No further or other evidence was produced to support a finding pursuant to subsection 97(1) of the Immigration and refugee Protection Act. CONCLUSION: The Refugee Protection Division determines that the claimant is not a Convention refugee or a person in need of protection pursuant to the Immigration and Refugee Protection Act. "Stephanie Thomas" Stephanie Thomas DATED at Toronto this 2nd day of August, 2006. REFUGEE PROTECTION DIVISION / ETHNIC DISCRIMINATION / RELIGIOUS BELIEF / MARRIAGE OF CONVENIANCE / HIDING / VISAS / VISITORS / INDICTABLE OFFENCE / DEPORTATION ORDER / LYING TO VISA OFFICER / PERSONAL INFORMATION FORM / FUNDAMENTAL CHANGES / INCONSISTENCY / EVIDENCE / EVASION / DEMEANOUR / FEMALE / NEGATIVE / VIETNAM 1 Exhibit C-2. 2 Exhibit C-1. 3 Exhibit R/A-2. 4 Exhibit R/A-2, Question #6. 5 Exhibit C-1, Question #6. 6 Exhibit C-1, Question #7. 7 Exhibit R/A-2, Schedule 1, Question #7. 8 Exhibit R/A-2. 9 Exhibit R/A-2. 10 Exhibit C-1, Question #4(b). 11 Exhibit C-3, PIF amendment. 12 Exhibit C-1, Question #12. 13 Exhibit C-1, p. 13. 14 Exhibit R/A-2. 15 Exhibit R/A-2, Information from CIC. 16 Exhibit C-1, p. 13. 17 Exhibit C-4, doctor's letter. 18 Exhibit R/A-2, Information from CIC. 19 Exhibit R/A-2, Information from CIC. 20 Exhibit C-3, item 3. 21 Exhibit C-6. 22 Exhibit C-3. 23 Exhibit C-5, documents regarding criminal charges. 24 Exhibit R/A-2, Information from CIC. 25 Exhibit C-5, documents regarding XXXXX. 26 Exhibit C-5, documents regarding XXXXX. 27 Exhibit C-2, PIF amendment. 28 Exhibit R/A-1, item 2.2, British Home Office Report. 29 Exhibit R/A-2 Information from CIC, identity card. 30 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 Pursuant to Section 159(1)(h) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 TA4-15299 TA4-15299