Ottawa, Ontario, January 10, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated November 21, 2005, which determined that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant seeks an order of certiorari quashing the decision of the panel and an order of mandamus compelling the panel to grant a new hearing.
Background
[3] The applicant, Sheng Shui Lin, is a citizen of China who alleged a fear of persecution on the basis of his membership in a particular social group, namely, as a practitioner of Falun Gong. The applicant also feared being tortured at the hands of the authorities if returned to China.
[4] The applicant explained in his Personal Information Form (PIF) narrative that he began practicing Falun Gong in April 2003. The applicant decided to engage in the practice in order to alleviate his back pain, even though it was declared illegal in China in 1999. The applicant practiced Falun Gong privately in order to avoid being discovered by Chinese authorities. However, on April 17, 2004, the applicant and his fellow practitioners were told that the authorities were approaching the house in which they were practicing Falun Gong. The applicant hid in his cousin’s home while the authorities searched his house due to his suspected involvement with Falun Gong. The applicant stated that two fellow practitioners were arrested following this incident. The applicant fled China as he feared being jailed for practicing Falun Gong.
[5] The applicant obtained a fraudulent passport issued by Japan in order to leave China and enter Japan. This passport was also used to enter Canada from Japan. The applicant was smuggled into Canada and arrived in Toronto on June 17, 2004. He made his refugee claim on June 24, 2004.
[6] The applicant stated that he returned his passport to a “snakehead” in Toronto’s Chinatown. The applicant’s claim was heard on September 13, 2005.
[7] At the commencement of the hearing, the Board indicated that the applicant’s identity was still in issue. Counsel submitted a motion requesting that his client’s Resident Identification Card (RIC) be tested forensically before the hearing proceeded, pursuant to the Board’s usual policy. Counsel’s motion was refused, and the hearing proceeded without a forensic test of the RIC. By decision dated November 21, 2005, the Board found that the applicant was neither a Convention refugee nor a person in need of protection on the basis that he had not established his identity. This is the judicial review of the Board’s decision.
Board’s Reasons for the Decision
[8] The Board’s decision turned on the applicant’s inability to establish his identity. The documentary evidence indicated that adult Chinese citizens require two identity documents: the Hukou and the RIC, therefore the Board placed significant weight upon them. The Refugee Protection Officer (RPO) examined the applicant’s RIC and did not question its authenticity. However, identity was still in issue as there were inconsistencies between the content of the RIC and other documents provided by the applicant. The Board wanted to give the applicant an opportunity to explain the inconsistencies and indicated that the RIC could be submitted for testing after the hearing. The Board proceeded with the hearing despite counsel’s motion and noted that the applicant bore the onus of establishing his identity.
[9] The documentary evidence indicated that both counterfeit and fraudulently obtained but legitimately produced RICs could be procured, and that their possession did not guarantee that they were legitimately obtained. The Board referred to Ibnmogdad v. Canada (Minister of Citizenship and Immigration), 2004 FC 321, in which the Court held that the Board was not under a duty to order an expert report if there was sufficient evidence to cast doubt upon the authenticity of a document. The RPO’s review of the RIC was not professional, as it only confirmed the existence of the card’s most well-known security features. In addition, the RPO who reviewed the RIC was not the RPO who was assigned to the case, therefore it was reviewed in isolation, without access to other information. The Board rejected counsel’s submission that the applicant’s identity should be accepted on the basis of the RIC despite the existence of inconsistent information.
[10] The applicant provided the Board with a photocopy of his Hukou, an original RIC, an original marriage certificate, and a photocopy of a Fine Receipt. The Board found that there were serious inconsistencies and omissions between the applicant’s oral testimony and the information contained in the documents. The applicant failed to provide reasonable explanations for these inconsistencies, which cast serious doubt upon the veracity of the documents. The following inconsistencies were noted with respect to the documents:
- the RIC was issued on July 28, 2000, and contained an 18 digit serial number (350127197508065014). This number of digits was inconsistent with the number of digits on the serial number located on his marriage certificate, which had 15 digits (350127750806501). The applicant explained that the serial number on the RIC had three more digits than that found on the marriage certificate (see above in bold) because he had used his Hukou (which had his old 15 digit serial number at the time) when he got his marriage certificate replaced;
- the marriage certificate was issued on June 27, 2002, and the Hukou was issued on June 6, 2000. The Principal Holder page of the applicant’s Hukou was registered on August 30, 2002, and contains the 18 digit number. The page does not show an old RIC number or any changes to the number.
[11] The Board found it implausible to have an 18 digit number noted on the Hukou on August 30, 2002, in the same section of the document where a 15 digit number allegedly existed, absent any amendments, given that the Address Page of the Hukou indicates that it was issued on June 6, 2000. The Board found it reasonable to expect that the Hukou which was submitted to obtain the marriage certificate would have listed a 15 digit RIC number. It was also reasonable to expect the RIC number to be amended with the additional three digits in the section of the Hukou where the old RIC number was entered when issued on June 6, 2000.
[12] The Board cited documentary evidence which indicated that altered or deleted items on the Hukou must be stamped by the issuing authority, and noted that the applicant’s RIC number did not appear altered, although it had three more digits than his previous RIC number. The applicant also testified that after he registered his marriage, he had his Hukou amended in order to transfer his wife and children to his Hukou. The applicant’s wife and children were registered on the applicant’s Hukou on August 30, 2002.
[13] The documentary evidence indicated that household registration is mandatory in mainland China and should a person fail to notify the local registration office of their relocation, they would not be able to register once they have moved. It was therefore unreasonable to expect that the applicant had a Hukou issued on June 6, 2000, without the Principal Holder page being completed until August 30, 2002. The Board found that the applicant’s evidence with respect to when he amended his Hukou to reflect the change in his RIC number from 15 digits to 18 digits was not credible and that the Hukou submitted to obtain his marriage certificate did not contain the 15 digit number. The applicant’s explanation for the inconsistency between his RIC and marriage certificate numbers was unpersuasive and the Board did not find the evidence regarding his RIC number credible. The Board did not find the applicant’s evidence with respect to the document submitted to get his marriage certificate credible, therefore the marriage certificate was assigned no probative value.
[14] With respect to the Hukou, the claimant testified that he moved to the address found on the Address Page (104-5-30 Jiang Bin Road) on January 8, 2001, and prior to that had lived at 56 Xia Kou. The applicant was asked to explain why the Jiang Bin Road address was listed on his RIC (which was issued in 2000), when he had not moved there until 2001. The applicant explained that he bought a house at the Jiang Bin Road address in 2000 and began using its address.
[15] The Board noted that the “When and from where moved to this address” section of the Hukou was blank. The applicant explained that this section was blank because the first page already contained his address. The Board did not accept this explanation as it was not reasonable to expect the address “where he moved from” to be the same as that indicated on the Address Page. The documentary evidence stated that the Hukou includes the holder’s permanent address and any changes requiring a new registration, such as relocation, must be reported to the authorities. The Board found it reasonable to expect that since the applicant had allegedly reported his relocation to the authorities, that the former address section would have been completed. A negative inference was drawn from the fact that the section was blank.
[16] The applicant’s Hukou listed the type of household as “family”; however the documentary evidence indicated that households are categorized as either agricultural (rural) or non-agricultural (urban). The applicant explained that he thought his Hukou was rural and did not know why it said “family”. This explanation was not persuasive, as it was reasonable to expect that having used the document since 2000, the applicant would have known that it categorized his household as “family”. The Board did not find the applicant’s evidence in this regard to be credible.
[17] The documentary evidence indicated that the number of household section is located on the second page of the Hukou, which is a key Chinese identity document. The Board found it reasonable to expect the applicant’s Hukou to contain a number of household entry for the purposes of identification and drew a negative inference from the fact that it was blank. As a result of these findings, the Hukou was not considered genuine and was assigned no probative value.
[18] The photocopy of the Fine Receipt was assigned little value, absent its original, as it did not contain any security features, nor did it list the applicant’s name, his RIC, or his wife’s address. In addition, no weight was attributed to the RIC, given the applicant’s contradictory testimony regarding the address listed on the card. As a result of the above findings, the documentary evidence, and the fact that the applicant was smuggled into Canada, the Board held that the documents were not genuine. The applicant had therefore failed to produce sufficient documents to establish his identity as a Chinese national. The Board acknowledged that the applicant spoke Mandarin but could not make a finding of nationality based upon that fact. The Board noted that a refugee claim must be rejected as soon as the claimant’s identity fails to be established.
[19] The Board noted its expertise in evaluating Chinese identity documents. The Board acknowledged that a presumption arises when a claimant swears to the truth of certain allegations, but noted that it could be rebutted where there are inconsistencies, implausibilities in testimony, or a lack of corroborating documentary evidence. As a result of the applicant’s lack of credibility, the Board found that there was no evidence to support any elements of his claim.
Issues
[20] The issues are:
- Did the Board violate the rules of natural justice in proceeding with the hearing without seeking forensic analysis of the RIC?
- Did the Board err in finding that the applicant had failed to establish his identity?
Applicant’s Submissions
[21] The applicant noted that the Board usually sends documents for testing when there are concerns about their authenticity. However, in the case at hand, the Board did not send the RIC for testing since the RPO had concluded that it was authentic. The applicant submitted that if there were further concerns about the applicant’s identity, the Board should have sent the card for forensic tests prior to the hearing. Concerns regarding the Board’s methodology were raised by counsel at the outset of the hearing but were ignored.
[22] The Board relied upon case law in declaring that it was not required to test a document where there was sufficient evidence to cast doubt on its authenticity. The applicant submitted that once the RPO determined that the card was genuine, the Board was under a duty to have it tested if it doubted its authenticity. The applicant submitted that the Board’s failure to have the card tested prior to the hearing was unfair and contrary to the rules of natural justice. The applicant cited Xu v. Canada (Minister of Citizenship and Immigration), 2005 FC 1528, wherein Justice von Finckenstein stated that having never raised the genuineness of the RIC and not having tested it forensically, the Board could not assert that it was fraudulent or fraudulently obtained.
[23] The applicant submitted that it was unfair for the Board to doubt the authenticity of the RIC due to the fact that it was assessed by a different RPO or because RPOs are not experts in assessing the authenticity of such documents. The applicant submitted that the Board drew a negative inference from his failure to provide sufficient documentation when it was the Board that chose not to have the RIC tested. The applicant submitted that the Board misapplied Merja v. Canada (Minister of Citizenship and Immigration), 2005 FC 73, in justifying its unfair practices.
[24] The applicant submitted that the Board erred in drawing negative inferences about the applicant’s evidence on the basis of pure speculation about the issuance of identity documents in China (see Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.)). It was submitted that the Board was overzealous in searching for inconsistencies in the applicant’s documents (see Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.)). It was submitted that demonstrating that the applicant was not aware of the content of certain documents did not place his identity as a Chinese citizen in question. The applicant submitted that the Board’s logic in determining that the lack of credibility attributed to the Hukou should extend to the RIC was faulty.
[25] The applicant noted that the Board perceived counsel as threatening. It was submitted that the Board’s inability to distinguish between legal objections and personal attacks was evidence of the Board’s inability to reason in a fair-minded manner and raised a reasonable apprehension of bias.
Respondent’s Submissions
[26] The respondent submitted that the Board did not breach natural justice in refusing to send the applicant’s RIC for testing prior to the hearing. It was submitted that there is no duty on the Board to send documents for forensic testing where there is sufficient evidence to cast doubt upon their authenticity ( see Culinescu v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 241 (F.C.T.D.)). The respondent submitted that it was open to the Board to rely upon its expertise in concluding that the applicant had not presented authentic identity documents. In the case at hand, there were inconsistencies, incorrect information and omissions, in addition to documentary evidence, which justified the decision to forego forensic testing (see Merja, above). It was submitted that the applicant was aware that he bore the onus of providing evidence to prove his claim, but failed to provide sufficient documents to establish his identity (Kante v. Canada (Minister of Employment and Immigration) (1994), 47 A.C.W.S. (3d) 798 (F.C.T.D.)).
[27] The respondent submitted that the Court should not intervene in the Board’s decision unless it was based upon an erroneous finding of fact made in a perverse or capricious manner, or made without regard to the material before it (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). The respondent submitted that the Court should not substitute its view regarding matters of fact, since the Board is a specialized tribunal which has considered the evidence before it (see Medarovik v. Canada (Minister of Citizenship and Immigration) (2002), 111 A.C.W.S. (3d) 569 (F.C.T.D.)). The Board is therefore entitled to determine the weight attributed to each piece of evidence and draw conclusions based upon this evidence. The respondent submitted that upon reading the Board’s decision as a whole, it is clear that the Board understood the facts and found the evidence insufficient to support a positive determination (see Ndombele v. Canada (Minister of Citizenship and Immigration) (2001), 110 A.C.W.S. (3d) 154 (F.C.T.D.)).
[28] The respondent submitted that the Board considered all of the documentary evidence before it before concluding that it was inadequate. It was open to the Board to attribute no weight to the documents as they included inconsistencies and omissions, which the applicant was not able to explain credibly (see Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004). It was submitted that the Board was entitled to draw negative inferences with respect to the authenticity of the documents based on the different identification numbers on the RIC and marriage certificate. The respondent submitted that the Board was also entitled to draw a negative inference regarding the applicant’s evidence as to when he amended his Hukou to reflect his changed identification number (see Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (QL)).
[29] The respondent submitted that the Board may reject even uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole (see Faryna v. Chorny, [1952] 2 D.L.R. 354). It was submitted that the Board may make an adverse finding of credibility based upon the implausibility of the applicant’s story alone. The Board found it implausible that the applicant amended the identification number on his Hukou on August 30, 2002, in order to insert a new 18 digit number, without there being evidence that there had been a previous 15 digit number, or a stamp from the issuing authority.
[30] The respondent submitted that it was open to the Board to draw a negative inference regarding the authenticity of the applicant’s documents from the following inconsistencies and omissions:
- the applicant testified that he moved to the Jiang Bin Road address in 2001, but his RIC (issued in 2000) already listed this address;
- the “When and from where moved to this address” section of the Hukou was blank, but the applicant testified that he had relocated;
- the applicant was unable to explain why his household type had been characterised as “family” in his Hukou, when the documentary evidence indicated that status is characterised as rural or urban;
- the number of household section of the Hukou was blank, however the documentary evidence indicated that the second page of the Hukou is the address page which includes the number of household;
- the sections of the Hukou referring to “occupation” and “place of employment” were blank. The applicant stated that he paid the government to operate a bicycle tire repair shop but left the section blank because the business was not registered.
[31] The respondent submitted that a claim for asylum must be rejected once the Board determines that the applicant’s identity has not been proven. It was submitted that the standard of review applicable to the Board’s identity documents is patent unreasonableness (see Ipala v. Canada (Minister of Citizenship and Immigration), 2005 FC 472).
Analysis and Decision
Standard of Review
[32] The standard of review applicable to breaches of natural justice and procedural fairness is that of correctness. It is well established that the standard of review applicable to the Board’s findings regarding identity documents is patent unreasonableness (see Ipala v. Canada (Minister of Citizenship and Immigration), 2005 FC 472).
[33] Issue 1
Did the Board violate the rules of natural justice in proceeding with the hearing without seeking forensic analysis of the RIC?
The Board stated in part, at page 685 of the tribunal record:
COUNSEL: I’m not clear on whether that responds to my query which is if the panel has concerns about the authenticity of the ID card, then the standard procedure is to send it off for forensics. Is it your intention to do so?
PRESIDING MEMBER: I have not made an opinion at this point in time. If you wish me to do that at the end of the hearing, I would be glad to, because some of the concerns might be addressed by the claimant and the issue might be resolved. So for me to state that up here without having any evidence of the claimant I think is unfair. So I need to hear some responses from the claimant in order to clarify the issues that remain of concern. I believe the identity card is an old ID card as well. It doesn’t have as many - - it’s a 1985 issue, is it?
And in its decision:
Counsel was further advised that the panel at that point of the hearing was not considering sending the RIC for a Forensic test noting that the claimant should first be provided the opportunity to offer an explanation for the apparent inconsistencies. His explanation for the apparent inconsistencies may address and alleviate the panel’s concerns. Thus, a Forensic test would be unnecessary. . . .
[34] The RPO noted that the RIC appeared to be legitimate and contained several security features. Prior to the hearing, the Board had requested the card so that it could be forensically tested. Applicant’s counsel, as noted, wished to have the RIC tested before the hearing continued but the Board did not agree and stated that the applicant’s responses at the hearing might resolve any concerns it had about the card.
[35] At the hearing, the applicant was questioned about his Hukou. The Board did not accept the applicant’s explanation for the differences and found that the Hukou was not genuine.
[36] In addition, the Board found that the marriage certificate submitted by the applicant was not genuine. The Board attached no probative value to the Executive Affairs fee payment receipt (fine receipt) as the original was not present and hence, the copy did not have any security features.
[37] The Board then used the defects it found with respect to the Hukou and other documents to conclude that the RIC was not genuine. The Board stated, in part, at page 15 of its decision:
. . . Having found that the Hukou, on a balance of probabilities, is not genuine, this lack of credibility extends to the RIC. . . .
[38] I have reviewed the transcript of the hearing and cannot find any reasons for questioning the legitimacy of the RIC. The only evidence available is that the RPO believed the RIC to be legitimate.
[39] In this particular case, the Board cannot simply say, in light of the RPO’s evidence that the RIC is not genuine because the Board found the Hukou and other documents not to be genuine. There is no logical basis for this finding. It may be that with other evidence, such as forensic testing, the Board might be able to conclude that the RIC was not genuine, but this type of evidence was not before the Board.
[40] I am of the view that for these reasons, the Board’s decision is patently unreasonable and must be set aside and the matter submitted to a new panel of the Board for redetermination.
[41] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[42] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions of The Immigration and Refugee Protection Act, S.C. 2001, c.27 are:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne 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:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
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Chairperson’s Guideline 7 (Concerning Preparation and Conduct of Hearing in the Refugee Protection Division) sets out the framework for reverse order questioning:
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7242-05
STYLE OF CAUSE: SHENG SHUI LIN
- and –
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 28, 2006
APPEARANCES:
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Shelly Levine
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Asha Gafar
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SOLICITORS OF RECORD:
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Levine Associates Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General |