Date:
20120706
Docket:
IMM-8585-11
Citation:
2012 FC 862
Ottawa, Ontario, July 6, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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YAN PING KE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant filed a claim for protection in Canada, asserting that she is a
citizen of China and fears persecution because she is a Roman Catholic
Christian. Her claim was denied by the Refugee Protection Division of the
Immigration and Refugee Board on the basis that she had failed to establish her
personal identity. The Board further held that even if she had established her
identity, she was not at risk of persecution in China. The applicant
challenges both of those findings.
BACKGROUND AND
APPLICANT’S NARRATIVE
[2]
In
November 2008, the applicant’s father died, which caused her to become
depressed. Her mother told her about Christianity in March 2009 and took her
to an underground Catholic church. The applicant continued to attend the
underground church until June 7, 2009, when she says it was raided by agents of
the Public Security Bureau (PSB).
[3]
On
the day of the raid, one of two lookouts telephoned the church leader and told
him the PSB agents were approaching from the front of the building. The leader
told the members to leave the church by the back door. The applicant and her
mother escaped and went to a relative’s home to hide. While in hiding, the
applicant learned the PSB had searched her home. After learning that some of
the other church members were arrested, the applicant’s family decided she
should leave China. She paid a smuggler to bring her to Canada and arrived on August 22, 2009. She claimed refugee protection on September 29,
2009.
[4]
By
letter of October 14, 2010, the applicant was asked to present her original
Chinese Resident Identity Card (RIC) to the Board “as identity is an important
issue in your claim to refugee protection.” The applicant submitted a RIC she
said was issued to her in 2003 and a second RIC issued to her in 2006. She
also provided the Board with a Household Registration Card (Hukou) issued to
her in 2008.
[5]
When
the applicant claimed protection, Citizenship and Immigration Canada (CIC)
photographed her (CIC Photograph). Some time before the hearing, a tribunal
officer prepared a document (Comparison Page), attached as Annex A, containing
an enlargement of the CIC Photograph next to an enlargement of the photograph
from the 2006 RIC. The Comparison Page contained a notation made by the
tribunal officer which read: “Photo May Be An Issue.” The Board did not
provide the Comparison Page to the applicant until the first day of the
hearing.
[6]
The
Board heard the applicant’s claim for protection over three sittings. At the first
sitting, on February 14, 2011, the Board stated the applicant’s personal
identity was at issue. The following exchange between the applicant’s counsel
and the Board took place:
Counsel: Just to confirm you do have Ms.
Ke’s resident identity card; is that correct?
Board: Yes.
Counsel: And I am assuming there were no
issues raised with that. I did not hear otherwise.
Board: Okay…
Counsel: Nothing
was highlighted is what I am asking.
Board: Nothing
on its surface but I will be questioning on it.
Counsel: That is fine; I just want to know
if there was anything I needed to be made aware of.
Board: So we will begin with your
identity. And then potentially based on those questions we will determine
whether I continue on the basis of your claim or stop there.
[7]
Later
on, the Board stated that it had the applicant’s RIC and CIC Photographs before
it and the applicant and her counsel were made aware of the Comparison Page.
The Board asked the applicant several questions about her appearance. She
answered them, and the following exchange between applicant’s counsel and the
Board Member took place in reference to the Comparison Page:
Counsel: Excuse
me Mr. Member, the… are these your notes or is this Citizenship and Immigration
Canada’s notes?
Board: This
is actually the Board’s notes.
Counsel: Well
I… but is this… is this after review of the card? Because I asked at the
beginning if there were any issues that were raised.
Board: Not
with the card but with the… I said I would explore the…
Counsel: Yes,
but I asked specifically if there was [sic] any issues with respect [to] the
card, the authenticity of the card.
Board: Just
with the card. So I do not know if it is an authentic card and she is not that
person or not, so I was not going to say because I have not even explored it.
Counsel: No
but I asked specifically…
Board: Right,
I was not going to say there was an issue.
Counsel: Well,
there is; it says here photograph may be in issue. So I asked you if there was
any issue at the commencement of this hearing.
Board: With
the card.
Counsel: Yes,
this is the resident identity card.
Board: Yes.
There may not be an issue with the card; there may be an issue with this
photograph and the card. So I was not prepared to talk…
Counsel: Okay
now with all due respect you are splitting hairs because it is the issue and
the card.
Board: No
I was not… no because I was not prepared to talk about the authenticity of the
card until I received her testimony. It could have… it could have all been…
[8]
Counsel
submitted she should have been informed about the Comparison Page. She
submitted as well that the applicant’s claim should be heard by a new panel
because the Board violated the applicant’s right to procedural fairness when it
said there was no issue with respect to the RIC, then questioned her about it.
In light of counsel’s concerns, the Board recessed the hearing. Following the
recess, counsel requested an adjournment to consider what to do about the
Comparison Page and the identity issue. The Board granted the adjournment.
[9]
Before
the second sitting, the applicant wrote to the Board asking for a de novo hearing
into her claim. She said the Board had breached her client’s right to
procedural fairness and there was an apprehension of bias, as shown be the
Board’s failure to disclose the Comparison Page. Further, it was submitted
that the Board was no longer a neutral party in the proceeding but had become
the applicant’s adversary.
[10]
At
the second sitting on June 6, 2011, the Board rejected the applicant’s request
for a de novo hearing. An oral decision was rendered and a formal
written decision followed. The Board heard additional evidence and submissions
with respect to the applicant’s identity, and then adjourned the hearing.
[11]
After
the second sitting, the Board sent the 2006 RIC and the Hukou to the RCMP
Forensic Laboratory for forensic analysis. This was done with the agreement
and consent of the applicant. The RCMP stated that the authenticity of these
documents was inconclusive because there were no genuine specimens for
comparison. The RCMP also said the 2006 RIC was well printed, had good quality
security elements, and bore no signs of alteration.
[12]
At
the third sitting on October 17, 2011, the Board heard the applicant’s
submissions on the RCMP report. It also heard her testimony and submissions on
the merits of her claim. After the third sitting, the Board considered the
applicant’s claim and rejected it. The following summarizes the Board’s
various decisions and findings.
Motion
For De Novo Hearing
[13]
The
Board reproduced its oral reasons for denying the applicant’s request for a de
novo hearing in its written decision. It rejected the applicant’s motion,
finding that there was no breach of procedural fairness for the following
reasons. The applicant was advised that identity was at issue by the screening
form which was provided to her before the hearing. She also had both
photographs the Board looked at on the Comparison Page. Although counsel had
asked if there was an issue with the RIC and the Board said there was not, no
breach of procedural fairness resulted from this exchange. When it said there
was no issue, the Board meant there was no concern about the authenticity of
the RIC. The questions at the hearing were directed at establishing whether the
applicant was actually the person in the photograph on the RIC. Further, the
adjournment between the first and second sittings allowed the applicant to
gather additional identity documents and prepare to address the issues raised
at the first sitting.
[14]
The
Board rejected the applicant’s allegation of bias. It stated that it had not
personally prepared the Comparison Page and had no preconceived ideas about the
case. Applying the test set out in Committee for Justice and Liberty et al
v National Energy Board [1978] 1 S.C.R. 369, the Board found that an informed
person, viewing the matter realistically and practically, and having thought
the matter through, would not conclude it was more likely than not that the
Board would consciously or unconsciously decide the matter unfairly.
Identity
[15]
The
Board found the applicant was not a Convention refugee or person in need of
protection because she had not established her identity. It found she was a
citizen of China, based on her oral testimony, but she had not established her
personal identity. She did not resemble the photograph in her RIC and her
testimony about her other identity documents was inconsistent with the
documents themselves and with other documentary evidence before the Board.
[16]
The
Board’s concerns about the applicant’s appearance included the absence of a
mole on her right cheek in the RIC photograph, whereas the CIC photograph
showed she had such a mole. CIC’s port of entry notes also noted a mole on the
right cheek. The Board rejected the applicant’s explanation that the mole had
appeared after the RIC photograph was taken.
[17]
The
Board also noted the shape of the applicant’s eyelids differed in the two
pictures as did the length of her face. The applicant stated that her eyes had
always been the same and her face was longer because she had gained weight.
The Board found gaining weight would make the face wider, not longer, and
rejected the applicant’s explanation. The differences between the RIC and CIC
photographs were significant and led the Board to conclude the person in the
RIC photograph was not the applicant.
[18]
A
graduation certificate the applicant had submitted did not assist her in
establishing her identity. The Board noted the page containing the applicant’s
personal information had been detached, so it could not conclude the contents
of the certificate were originally attached to this page. Although the
applicant could speak Putian – a regional dialect specific to Fujian Province – this did not confirm the applicant’s personal identity. This only
established that she was from Fujian Province, not that she was who she said.
Further, several photographs the applicant had submitted did not establish her
identity. The Board found they could be photos of the applicant and still not
be photos of the person described in her PIF.
[19]
The
applicant testified that her friend brought her the graduation certificate and
photos, but the Board found there was no evidence from the friend on how or
when she brought these documents to Canada. The applicant’s failure to provide
evidence about how she got them led the Board to draw a negative inference.
[20]
The
Board found the applicant had not met the onus to provide sufficient credible
or trustworthy evidence to establish her identity, so her claim for protection
could not succeed. However, in the alternative to its identity finding, the
Board considered the merits of the applicant’s claim.
Credibility
[21]
The
applicant’s oral testimony and the documentary evidence before the Board were
inconsistent. On this basis, the Board concluded the applicant had not
provided sufficient credible and trustworthy evidence that she was wanted in China.
[22]
The
Board found the applicant’s actions were inconsistent with her fear the PSB was
looking for her and that she was at risk because she is a Christian. She
testified that she had documents with her name and address, as well as her
aunt’s name and address sent to her by mail. She had testified that the PSB
was looking for her when she had the documents sent to her. A report from the
United States Department of State showed that Chinese authorities monitor
mail. CIC’s Response to Information Request (RIR) CHN103133.E indicated that
the authorities are able to track fugitives.
[23]
By
having mail sent to herself while the PSB was looking for her, the applicant
put her mother and aunt at risk for assisting a fugitive. She also risked
having her identity documents confiscated by the Chinese authorities, which
would have weakened her claim for protection. Having been assisted by an
immigration consultant and a lawyer, it was not reasonable for the applicant
not to have found a way to get her documents without putting her family at
risk. The applicant had also put her friend at risk by asking her to bring
documents from China. These actions were inconsistent with her stated fear of
the PSB, so the Board found she was not credible.
[24]
The
Board also found the applicant was not credible because she had not provided a
copy of a summons or arrest warrant to prove the PSB was looking for her. She
testified that the PSB showed a summons when they went to her house in 2009;
however this detail was omitted from her PIF. The Board rejected her
explanation for the omission that she did not know she had to provide much
detail, because the applicant had given details about the search and the
allegations against her.
[25]
Although
other evidence before the Board showed use of summonses is not consistent in China, RIR CHN42444.E showed that duplicate summonses are provided to family members or
neighbours when the PSB cannot locate a person whom they seek. The applicant
had testified that her grandparents lived next to her and that the PSB had not
left a duplicate copy of a summons with them. The PSB’s failure to leave a
summons with the grandparents, in the face of established procedure to leave
one, showed, in the Board’s view, that the applicant was not credible.
[26]
Finally,
the applicant’s story of a raid on her church in 2009 was not credible because
it was inconsistent with the documentary evidence showing the risk to
Christians in Fujian Province was low.
Risk in Fujian Province
[27]
The
Board found the applicant is a genuine Catholic, but found she did not face a
risk of persecution in Fujian Province.
[28]
A
report from the United Kingdom Home Office showed that unregistered religious
groups face punitive and coercive state action. The same report showed the
Chinese government permits proselytising in registered places of worship and in
private, but forbids proselytising in public. RIR CHN102492.E showed that
treatment of house churches varies by region. With respect to Fujian Province, the information before the Board was mixed. The president of the Cardinal
Kung Foundation said that Fujian Province was one of the worst provinces for
persecution of Catholics. The Board found that this statement was not backed
up by specific examples. The Executive Secretary of the Hong Kong Christian
council indicated that authorities in Fujian Province had allowed non-official
Catholic bishops to practice openly. In addition, a report from the China Aid
Association said that church leaders and members sometimes experienced severe
punishment. However, RIR CHN103500.E showed that there is reduced hostility
toward Christianity in China and that reports of persecution are the exception,
rather than the rule. Additional documents before the Board provided a mixed
view of persecution of Christians in China. The Board found that, if there had
been any arrests or persecution of underground Catholic Church members, they
would have been documented. There were no documented arrests, so the Board
concluded the authorities in Fujian Province are not interested in persecuting
regular underground church members.
[29]
The
applicant testified that, if she returned to Fujian Province, she would not be
able to pray, sing, or spread Christianity. The Board found that the
applicant’s proselytising efforts in China were modest and that her efforts to
spread Christianity would not be limited if she returned to Fujian Province. It also found she was a regular member of an underground church. Only those
who were leaders or high-profile members were at risk of persecution, so the
applicant would be able to practice Christianity as she saw fit.
Conclusion
[30]
The
Board denied the applicant’s claim because she had not established her personal
identity. Even if she had done so, the Board found she was not at risk of
persecution in China. Further, there was no credible basis for her claim, so
the Board concluded that the applicant is neither a Convention refugee nor
person in need of protection.
Issues
[31]
In
her memorandum of fact and law the applicant raises four issues:
1. Whether
the Board breached her right to procedural fairness;
2. Whether
the Board was biased;
3. Whether
the Board’s risk-finding was reasonable; and
4. Whether the Board
applied an inappropriate test for persecution.
[32]
The
first two issues are issues of procedural fairness and were the focus of the
applicant’s oral submissions. I will deal with those together.
[33]
The
parties agree that the standard of review with respect to any breach of
procedural fairness is correctness. I agree. An allegation that the Board
failed to disclose a document or an allegation that it failed to raise an issue
both impact an applicant’s opportunity to respond. In Worthington v Canada (Minister of Citizenship and Immigration), 2008 FC 626, at paras 42 to 45,
Justice O'Keefe held that this issue is reviewable on the correctness
standard. The Federal Court of Appeal in Sketchley v Canada (Attorney General), 2005 FCA 404, at paragraph 53 held that the “procedural
fairness element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty.”
[34]
In
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, the Supreme Court of Canada approved the following test for bias, first
articulated in Committee for Justice and Liberty, above, page 394:
[...] the apprehension of bias must be a reasonable
one, held by reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information... [The] test is “what
would an informed person, viewing the matter realistically and practically -
and having thought the matter through - conclude. Would he think that it is
more likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly.”
[35]
Whether
there is an apprehension of bias is a question of fact within the jurisdiction
of the reviewing Court, and no deference is owed to the Board: Luzbet v Canada (Minister of Citizenship and Immigration), 2011 FC 923, at para 5.
[36]
Accordingly,
the procedural fairness issues will be reviewed on the correctness standard
with no deference showed to the Board’s decisions. The remaining issues are
reviewable on the reasonableness standard and deference is owed to the Board.
ANALYSIS
1.
Did the Board Breach The Applicant’s Right To Procedural Fairness?
[37]
The
applicant submits that the Board breached her right to procedural fairness when
it failed to disclose the Comparison Page before the hearing and did not inform
her that the RIC was in issue. She points to the initial exchange with the
Board Member who, when asked, told her that there were no issues with respect
to the RIC, but then proceeded to question her about it. She submits that the
Board was under a duty to clearly inform her of this issue so she could know
the case against her and prepare her response.
[38]
The
applicant further submits that the adjournment, which was only granted after
she objected to the way the Board was proceeding, was not enough to cure the
breach of procedural fairness. The Board’s failure to disclose the Comparison
Page, she submits, shows it was biased against her, and that she is therefore
entitled to a new hearing.
[39]
The
respondent does not admit that there was a breach but takes the position that,
while it may have been better for the Board to disclose the Comparison Page
before the hearing, any breach of procedural fairness arising from the
non-disclosure was minimal and was cured by the adjournment. It is further
submitted that the allegation of bias is based on pure speculation and is not
enough to rebut the presumption of impartiality. The applicant, it is
submitted, has not demonstrated a real likelihood of bias.
[40]
Subsection
29(2) of the Refugee Protection Division Rules, SOR/2002-228, provides
that “If the division wants to use a document at a hearing, the Division must
provide a copy to each party.” There is a similar obligation on a party that
wishes to use a document. It is of interest to note that section 30 of the Rules
provides that if a party fails to comply with the disclosure requirements in
section 29, then it may not use the document at the hearing unless allowed by
the Division. In deciding whether to allow the document to be used, the
Division is required to consider “any relevant factors” including “(a) the
document’s relevance and probative value; (b) any new evidence it brings to the
hearing; and (c) whether the party, with reasonable effort, could have provided
the document as required by rule 29.” There is no parallel provision
prohibiting the Division from using a document that it has failed to disclose.
Accordingly, the consequences of that failure falls to be decided under the
common law principles of a duty of fairness and natural justice.
[41]
In
a very technical sense the Board could be said to be using the
Comparison Page at the hearing; however it was little more than a composite of
photographs already in the Board’s file and which were provided to the
applicant. All the Comparison Page did was put them side-by-side and draw the
Board’s attention to the apparent difference between the photographs and the
applicant was notified prior to the hearing that her identity was in issue.
[42]
I
am unable to find that the Board in its initial response mislead counsel. The
statement of counsel was the following: “I am assuming there were no issues
raised with that [emphasis added].” This is different that asking
whether any issues were raised by it. The former, in my view,
reasonably asks whether there are issues concerning the genuineness of the RIC
and that is how the Member understood the question. In any event the Member
made it very clear to the applicant and her counsel that identity was an issue
and that he would be asking questions “on” the RIC. The Member did just that
when he asked questions to address the differences he identified between the
applicant’s physical appearance, the RIC image, and the CIC Photograph.
[43]
In
any event, after the issue about the photographs was raised at the first
sitting, the Board then provided an adjournment of nearly four months, which
was sufficient to cure any prejudice from the late disclosure. In the criminal
law context, where procedural safeguards are higher than in the immigration
context, fulsome disclosure and an adjournment are the proper remedy for this
kind of error: See R v Bjelland, 2009 SCC 38, at paragraphs 37 and 38.
This Court has also held that an appropriate response to delayed or limited
disclosure is full disclosure and an adjournment: See Mendez v Canada (Minister of Citizenship and Immigration), 2011 FC 1150.
[44]
Section
106 of the Immigration and Refugee Protection Act, SC 2001, c 27 directs
the Board to take into account documents establishing a claimant’s identity.
It would have been an error for the Board not to consider both of the
photographs before it. The Board remedied any mistake in failing to provide
the Comparison Page and there was no breach of procedural fairness.
[45]
I
agree with the respondent that the applicant’s bias allegation is based upon
pure speculation and is not enough to rebut the presumption of impartiality.
The applicant has not demonstrated a real likelihood of bias, or a reasonable
apprehension of it.
2.
Was the Board’s Risk-finding Reasonable?
[46]
It
is submitted that the Board drew a speculative conclusion from the fact the
applicant had documents mailed to her. The applicant says that although there
was evidence the authorities in China monitored mail, there was no evidence
that postal officials had access to the government database on wanted
criminals. The people handling the mail would not be aware the applicant was
wanted by the PSB. Accordingly, it is submitted that the finding that the PSB
was not after her was based on this speculative conclusion, and is
unreasonable.
[47]
Further,
the applicant submits that the Board drew an unreasonable conclusion from her statement
the PSB did not leave a summons with her grandparents. The evidence before the
Board was that PSB practice with respect to summonses is variable and the PSB
does not always follow the law to the letter. It was an error for the Board to
conclude the PSB would have left a summons, when the documentary evidence
showed only that they could leave a summons. The applicant asserts that her
story was consistent with the documentary evidence before the Board. She says
that the Board failed to address important evidence which contradicted its
conclusions, so the decision must be returned for reconsideration.
[48]
Given
the Board’s reasonable finding that the applicant had not established her
identity, the reasonableness of the risk-finding cannot affect the outcome.
However, I have concluded that the risk-finding was reasonable. I agree with
and adopt the submissions of the respondent.
[49]
The
Board reasonably concluded that it was unreasonable for the applicant to have
documents mailed to her in her own name when she was a wanted fugitive. This
Court has upheld similar findings in the past: See Lin v Canada (Minister of Citizenship and Immigration, 2011 FC 1235, at paragraphs 19 and
69. The documentary evidence showed the authorities in China monitor mail, so it was reasonable for the Board to conclude the applicant’s actions
were inconsistent with the risk she said she faced. The Board acknowledged
that the evidence before it with respect to summonses was mixed. However, the
Board was entitled to weigh the evidence and prefer some reports over others.
3.
Did The Board Err In Its Interpretation Of Persecution?
[50]
The
applicant submits that the Board applied a threshold for persecution which was
too high, when it found that she was not at risk because she did not face
arrest or detention. Fosu v Canada (Minister of Employment and Immigration),
[1994] FCJ No 1813, establishes that persecution can include prohibitions
on worshipping in public or in private. The applicant submits that the
standard the Board should have applied was whether she could practice
Christianity in China openly and freely; had it done so, it would have
concluded that she actually faces a risk of persecution in China.
[51]
The
submissions made by the applicant have been raised before. Chief Justice Lutfy
had this to say with respect to a similar argument in Lin v Canada (Minister of Citizenship and Immigration) 2005 FC 960, at paragraph 11:
The applicant relies on the principle that freedom
of religion also includes the freedom to demonstrate one's religion in public
and that any prohibition against the public expression of one's religious
beliefs can constitute persecution: Fosu v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 1813 (QL) (T.D.); Husseini v. Canada
(Minister of Citizenship and Immigration), [2002] F.C.J. No. 235, 2002 FCT
177; and Appellant S395/2002 v. Minister for Immigration and Multicultural
Affairs, 2003 HCA 71, a decision of the High Court of Australia. In my
view, it was open to the immigration officer to conclude that there was an
insufficient factual underpinning in this case to support the application of
the principle relied upon by the applicant. As I understand the immigration
officer's decision, he was not satisfied that the applicant's personal
circumstances met the threshold referred to in the documentary evidence
concerning the risks faced by underground or overt practising Roman Catholics
in Fujian province.
[52]
The
applicant here testified that she wanted to spread Christianity, and the evidence
before the Board was that spreading Christianity in homes and private places of
worship is not forbidden in Fujian Province. Even if the Court may have come
to a different conclusion, it was not unreasonable for the Board to conclude,
as it did, that the applicant, if returned to Fujian Province, could practise
her religion as she appears to want to practise it.
CONCLUSION
[53]
For
these reasons this application is dismissed. There was no breach of natural
justice or procedural fairness. The Board’s decision was reasonable. I would
add that based on my examination of the two photos on the Comparison Page, a
conclusion that they were of the same person, may well have been held to have
been unreasonable.
[54]
No
question was proposed for certification by either party.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application is dismissed and no question is certified.
“Russel W. Zinn”
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