Zhang v. Canada (Minister of Citizenship and Immigration), 2006 FC 1091

Date: 20060912

Docket: IMM-7711-05

Citation: 2006 FC 1091

Toronto, Ontario, September 12, 2006

PRESENT:     The Honourable Mr. Justice von Finckenstein

BETWEEN:

XIU JIE ZHANG (a.k.a. XIUJIE ZHANG)

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               The Applicant is a citizen of China. She claimed refugee protection on the ground that she was a Falun Gong (“FG”) practitioner who feared persecution in China. Her claim was rejected by the Board on November 25, 2005, basically on the basis of lack of credibility.

[2]               The decision of the Board sent to the Applicant had attached to it a copy of the Board’s reasons dated November 25, 2005 (‘first version’). These reasons did not bear the signature of Board member Steve Ellis but displayed his name in typewritten form between quotation marks.

[3]               The Applicant sought and obtained leave for judicial review and on July 4, 2006, the Board filed the certified tribunal record with the Court. The tribunal record contained a copy of the Board’s decision also dated November 25, 2005, but this one bore the handwritten signature of Board member Steve Ellis (‘second version’).

[4]               There are significant differences between the first version and the second version. When court registry staff asked the Board for clarification it received the following explanation:

Unfortunately, due to a clerical error the Applicant had received an incorrect version of the Reasons for Decision. This error has since been corrected, as the Board further to the Direction of the presiding Member has sent out the correct Reasons for Decision. Attached is a Supplemental Record that contains the correct Reasons for Decision (these reasons are already contained in the Board’s tribunal record starting at page 3) along with a corrected “trued up” signature page (the Board’s record contains an incorrect “trued up” signature page at page 14) and a copy of the Direction from the presiding Member directing that the correct version of the reasons be sent out. The Supplemental Record’s numbering starts at page 363.

[5]               The direction from Board member Ellis reads as follows:

On or about July 21, 2006, Garnet Morgan, Senior Registry Officer of the Federal Court, contacted the Registry of the Refugee Protection Division of the Immigration and Refugee Board (the Board) and advised the Registry that it had been brought to his attention that the Board’s reasons for decision contained in the applicant’s record in IMM-7711-05 (Board file TA4-20274, claimant: Xui Jui Zhang (a.k.a. Xiujie Zhang)) were different than the reasons for decision contained in the Board’s record. The Registry of the Board has brought this discrepancy to my attention.

            I have reviewed my reasons for decision contained in the Board’s record that bear my signature, the portion of the reasons for decision contained in the applicant’s record that was provided by the Court to the Board, as well as a complete copy of that version of the reasons for decision. I have concluded that, due to clerical error, the Registry of the Board did not distribute my signed reasons for decision.

            Accordingly, I direct the Registry of the Board to distribute a copy of my signed reasons for decision as contained in the Board’s record, as those reasons represent my reasons for decision in Board file TA4-20274.

[6]               No explanation for the ‘clerical error’ is given. Both sides agree that there are significant differences between the first and second version. Particularly, the first version refers to the Applicant a) allegedly coming to Canada on a business trip and b) to the fact that she demonstrated exercise number 4 to the Board. Yet both sides concede that there is no reference whatsoever in the tribunal transcript to either event.

[7]               This factual discrepancy cannot be explained as a ‘clerical error.’  There is doubt as to the facts the Board relied on as the basis for its adverse finding.

[8]               In light of this procedural defect I have no choice but to send the matter back to the Board for reconsideration.

                                                                        ORDER

THIS COURT ORDERS that the decision of the Board of November 25, 2005 be set aside and that the matter be reconsidered by a differently constituted panel.

“Konrad W. von Finckenstein”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-7711-05

STYLE OF CAUSE:                          XIU JIE ZHANG (a.k.a. XIUJIE ZHANG) v. THE

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      September 12, 2006

REASONS FOR ORDER

AND ORDER:                                   VON FINCKENSTEIN J.

DATED:                                             September 12, 2006

APPEARANCES:

SOLICITORS OF RECORD: