Date:
20120605
Docket:
IMM-8396-11
Citation:
2012 FC 694
Toronto, Ontario, June 5, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ZE TONG CAO
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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]
Ze Tong Cao
seeks judicial review of a negative decision of the Refugee Protection Division
of the Immigration and Refugee Board. Mr. Cao claimed to fear persecution in China because he staged a protest against the government’s attempt to expropriate his land
without providing him with fair compensation. The Board found his story of persecution at the hands
of the Chinese Public Security Bureau (PSB) to be lacking in credibility and implausible.
[2]
For the
reasons that follow, I have concluded that despite the deference owed to the
Board’s factual findings, a number of the Board’s credibility and
implausibility findings were simply unreasonable. As a result, the application
for judicial review will be granted.
The Port of Entry Omissions
[3]
The Board
found that the credibility of Mr. Cao’s story was undermined by his failure to
use the term ‘demonstration’ or ‘protest’ in the form completed at the port of
entry.
[4]
The existence
of contradictions or inconsistencies between port of entry notes and an
applicant’s oral testimony is an accepted basis for an adverse credibility
finding where the port of entry notes are extensive and contain major
differences from an applicant’s later evidence: Dehghani v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C. 587, [1990] F.C.J. No. 558
(QL) at para. 33 (F.C.A.). That was not the situation here.
[5]
The port of
entry form in this case asked Mr. Cao to indicate “in [a] few words” why he was
seeking refugee protection in Canada. The form further advised him that he
would “have an opportunity to explain all the facts related to [his] claim to
the Immigration and Refugee Board of Canada”.
[6]
Mr. Cao
provided five short sentences outlining the basic elements of his claim. He described
the expropriation of his land, his concern with the unfairness of the
compensation that he was offered, and his claim to have been accused of
slandering the government. While brief, Mr. Cao’s description of the basis for
his claim was generally consistent with his testimony before the Board.
[7]
It was,
therefore, unreasonable for the Board to base an adverse credibility finding on
Mr. Cao’s failure to use the specific words ‘demonstration’ or ‘protest’ at the
port of entry: Aguirre v. Canada (Minister of Citizenship and Immigration),
2008 FC 571, 167 A.C.W.S. (3d) 773 at paras. 28-30.
The Personal Information Form Omissions
[8]
The Board
also found Mr. Cao to lack credibility based upon omissions from his PIF. These
omissions included Mr. Cao’s alleged failure to mention that he raised ducks on
his farm as well as fish, and his failure to describe how he made a banner that
he used in his protest outside the government office.
[9]
I would first
observe that these details do not go to the heart of Mr. Cao’s claim and do not
support a negative credibility finding.
[10]
Moreover, Mr.
Cao had amended his PIF prior to his refugee hearing to include reference to
his raising ducks on the property in issue as well as fish. It is also evident
from the Board’s own reasons that ducks were something of a sideline business
for Mr. Cao, and that fish farming was his primary business and major source of
income.
[11]
Whether or
not Mr. Cao’s banner was legible is irrelevant, as he also testified to having
shouted slogans about corruption in the government during his protest, thereby
attracting the attention of the PSB.
[12]
The Board
also erred in failing to address the explanations provided by Mr. Cao in
response to the Board’s concerns on these points: Veres v. Canada (Minister
of Citizenship and Immigration), [2001] 2 F.C. 124, [2000] F.C.J. No. 1913
(QL) at para. 11 (F.C.T.D.).
The Genuineness of Mr. Cao’s
Documents
[13]
The Board
also determined that Mr. Cao’s land expropriation notices were fraudulent
because the stamp on the documents had bled through the paper and the date was
printed over the stamp.
[14]
Not only is
it unclear how bleeding ink would lead the Board to the conclusion that the
documents were fraudulent, there was also no evidence before the Board as to
the type or form of documents ordinarily issued to Chinese citizens in
Guangdong province who are facing expropriation.
[15]
Documents
purporting to be issued by a foreign jurisdiction are entitled to the
presumption of the truth of their contents, absent valid reasons to reject them:
Ramalingam v. Canada (Minister of Citizenship and Immigration), 77
A.C.W.S. (3d) 156, [1998] F.C.J. No. 10 (QL) at para. 5 (F.C.T.D.). This
presumption is, of course, rebuttable.
[16]
While the
Board noted that fraudulent government documents are available in Guangdong province, this Court has held that “this does not mean that every document that
comes out of the PRC is necessarily fraudulent”: Lin v. Canada (Minister of Citizenship and Immigration), 2012 FC 157, [2012] F.C.J. No. 167
(QL) at para. 55.
[17]
The Board
acknowledged its lack of expertise in forensic document examination. Its
failure to provide transparent
and intelligible reasons for rejecting the authenticity of Mr. Cao’s documents
renders this aspect of the Board’s decision unreasonable.
The
Inconsistencies with Country Condition Documentation
[18]
The
Board also concluded that Mr. Cao’s story did not correspond with the
documentary evidence because the government offered him monetary compensation
for the expropriation of his property instead of an alternate plot of land.
[19]
However,
the documentary evidence on which the Board relies does not exclude the
possibility of monetary compensation being paid to those whose land has been
expropriated. Indeed, specific reference is made in the document to monetary
compensation being paid in some cases. There was, therefore, no inconsistency
between this aspect of Mr. Cao’s story and the document relied upon by the
Board.
The Implausibility Finding
[20]
Where the
Board seeks to impugn the credibility of a refugee claimant based on
implausibilities in the claimant’s story, its findings must be reasonably drawn
and must be set out in clear and unmistakable terms: Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, 208 F.T.R. 267, at
para. 7. The RPD must, moreover, provide “a reliable and verifiable evidentiary
base against which the plausibility of the Applicants’ evidence might be
judged”: Gjelaj
v. Canada (Minister of Citizenship and Immigration), 2010 FC 37, [2010]
F.C.J. No. 31 (QL) at
para. 4. As will be explained below, it has failed to do so here.
The Mailing of Mr. Cao’s Identity Documents
[21]
The
Board found that it
was implausible that Mr. Cao’s family would send Mr. Cao’s identity documents
to his postal address in Canada with their return address marked on the parcel.
According to the Board, Mr. Cao’s immigration consultant would have informed
him that Chinese authorities monitor the postal system and track fugitives
through a computer network. The decision to proceed in this way placed Mr.
Cao’s family and his documents at risk, which, the Board found, indicated a
lack of subjective fear on the part of Mr. Cao.
[22]
There
was, however, no evidence before the Board to indicate that Mr. Cao’s
immigration consultant had ever told him that Chinese authorities monitor the postal
system and track fugitives through a computer network. Nor was there any
evidence that either Mr. Cao, a farmer from rural China, or his family would
have been aware of this practice. The Board’s finding was based on nothing more
than speculation and was thus unreasonable.
Conclusion
[23]
The Board had
a number of reasons for not accepting Mr. Cao’s story of persecution at the
hands of the PSB. While I have not addressed every one of the Board’s
conclusions, I have found that a number of the Board’s negative credibility and
plausibility findings were simply not reasonable. The cumulative effect of my
findings is that the Board’s decision as a whole lacks the justification, transparency
and intelligibility required of a reasonable decision.
[24]
As a
consequence, the application for judicial review is allowed. I agree with the
parties that the case does not raise a question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This application for judicial
review is allowed, and the matter is remitted to a differently constituted
panel for re-determination; and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
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