Xu v. Canada (Minister of Citizenship and Immigration), 2005 FC 1528

Date: 20051109

Docket: IMM-1797-05

Citation: 2005 FC 1528

Toronto, Ontario, November 9, 2005

Present:           THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN                            

BETWEEN:

                                                                  Wei Ting XU

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

(Given orally from the bench and subsequently written for clarification and precision)

[1]                This is an application for judicial review of the March 2, 2005 decision of the Refugee Protection Division of the Immigration and Refugee Board (the ABoard@) where the Applicant was held to be neither a Convention Refugee nor a person in need of protection.

[2]                The Applicant, Wei Ting Xu, arrived in Canada on January 14, 2004, from the People=s Republic of China (PRC). He claims that he began to practice Falun Gong in October 2002, knowing it had been illegal to do so in the PRC.

[3]                Prior to the hearing, the Board had advised the Applicant that identity would be an issue and had asked him to furnish his original Chinese Resident Identity Card (RIC), which he did. The Refugee protection officer examined the RIC and noted on a photocopy the words ACard (original) checked, OK. Returned to Cl^[1] @. The Refugee protection officer then returned the original to the Applicant.

[4]                The Board denied his refugee claim finding inconsistencies and implausibilities regarding:

a) the claimant=s mother=s birthday

b) the Applicant=s Hukou (a mandatory Chinese household registration passport)

c) the Applicant=s work record.

[5]                The Board felt that the central issues in the claim were the claimant=s identity and credibility of the alleged incidents. In light of the inconsistencies regarding the three items referred to, and in view of the documentary evidence establishing that "both counterfeit cards and fraudulently obtained but legitimately produced cards are obtainable and in circulation^[2] ", the Board ruled that the RIC was fraudulent or fraudulently obtained.

[6]                There is no dispute between the parties that the appropriate standard of review for the assessment of identity documents is patent unreasonableness. (See Adar v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35.

[7]                During the hearing the Board never raised any concerns that it had with respect to the mother=s birthday, the Hukou or the work record. It also did not raise the issue of the genuineness of the RIC.

[8]                It is trite law that in an IRP hearing, an applicant must be given an opportunity to explain contradictions. (See Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 para. 9). This Board clearly failed to do in this case.

[9]                In addition, the Board asked for the original of the RIC and received it. It did not forensically test the RIC and the Refugee Protection Officer noted ACard (original) checked, OK. Returned to Cl@ on the photocopy thereof. The Board did not raise the genuineness of the RIC at the hearing but only observed elliptically A it says > Okay. Returned to claimant=. It does not say whether the document is okay or not.@^[3] Having never raised the genuineness of the RIC and not having tested it forensically, the Board then cannot assert the document is fraudulent or fraudulently obtained. There is no logical connection between the findings regarding the mother=s birthday, the Hokou or the work record, and the genuineness of the RIC.

[10]            Accordingly, I find that the Board violated the rules of procedural fairness by not giving an opportunity to the Applicant to explain contradictions and made a patently unreasonable connection between the genuineness of the RIC and the contradiction regarding the Applicant=s mother=s birthday, his Hokou and his work record.

[11]            As a result, this application will succeed.

ORDER

            THIS COURT ORDERS that the decision of the IRB dated March 2, 2005 is set aside and the matter be reconsidered by a differently constituted panel.

"K. von Finckenstein"

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-1797-05

STYLE OF CAUSE:                           Wei Ting XU

                                                                                                                                              Applicant

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND

                                                            IMMIGRATION

                                                                                                                                          Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       NOVEMBER 8, 2005

REASONS FOR ORDER

AND ORDER:                                    VON FINCKENSTEIN J.

DATED:                                              NOVEMBER 9, 2005

APPEARANCES:                              

Shelley Levine                                                   FOR THE APPLICANT

Sally Thomas    

Mr. John Pro                                                     FOR THE RESPONDENT

SOLICITORS OF RECORD:

Levine Associates

Toronto, Ontario                                               FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                  FOR THE RESPONDENT