Date: 20121129
Docket:
IMM-9703-11
Citation:
2012 FC 1381
Ottawa, Ontario,
November 29, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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CUNGUI YE
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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]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board that found that Mr. Ye, a citizen
of China, is not a Convention refugee or person in need of protection. The
determinative issue for the Board was “the credibility of the claimant’s
[Personal Information Form] narrative and his oral testimony concerning his
membership in an underground church and his pursuit by agents of the [Public Security
Bureau (PSB)].”
[2]
The
Board also found that if Mr. Ye returned to China and if he practiced Roman
Catholicism, there is no serious possibility that he would be persecuted. On
my reading of the Board’s decision, however, this last finding was ultimately
based upon and fatally coloured by the Board’s finding that the PSB had no
interest in him, which was based on the Board’s finding that the summons Mr. Ye
provided to the Board was fraudulent.
[3]
Mr.
Ye raised a number of issues; however, in my view only one needs to be
addressed: the Board’s finding that the summons was fraudulent. That finding
was unreasonable and, as the decision rests so greatly on it, the decision must
be set aside.
The Evidence
Regarding Mr. Ye’s Summons
[4]
Mr.
Ye claims to have joined the Roman Catholic faith in March 2008 when he was
introduced to and joined an underground Catholic church. In January 2009 he
came to Canada on a student visa and he continued his practice of Catholicism
in Canada.
[5]
On
April 29, 2009, Mr. Ye says that his parents phoned him from China to warn him
that the PSB had come to his family home and accused him of attending an
illegal underground church and of sending religious materials back to China.
The PSB had arrested some people from his church. A summons was left with his
family by the PSB on that date. Mr. Ye’s summons and its translation is
reproduced at Appendix A.
[6]
Mr.
Ye testified that his mother told him that the PSB told her to ask him to go
back to China and turn himself in as soon as possible and that if the family
were to assist him financially, they would be arrested. He claims to have
learned that one of the arrested members of his church was sentenced to three
years in prison.
The Board’s
Analysis of the Summons and CHN42444.E
[7]
The
Board examined Mr. Ye’s summons in light of its National Document Package,
specifically the following two documents from the Board’s Research Directorate:
•
CHN42444.E
- 01 June 2004: China:
Circumstances and authorities responsible for issuing summonses/subpoenas;
procedural law; whether summonses are given to individuals or households;
format and appearance; whether legality can be challenged; punishment for
failure to comply with a summons (1998-2004).
•
CHN103134.E
- 24 June 2009: China:
The manufacture, procurement, distribution and use of fraudulent documents,
including passports, hukou, resident identity cards and summonses in Guangdong
and Fujian in particular (2005 - May 2009).
[8]
The
Board concluded that his summons was not genuine. Mr. Ye submits that these
documents are dated and questions whether it is safe to rely on them.
Admittedly, they are dated, especially CHN42444.E which is now more than
eight years old; however, it is the best, if not the only evidence the Board
has with which to assess the validity of summonses produced by claimants from
China. The Court is very familiar with CHN42444.E as it is regularly referred
to and relied on by the Board in examining claims from Chinese citizens who
produce summonses from the PSB. This case is exceptional, in my experience, in
that the certified tribunal record contains not only these two documents from
the Board’s Research Directorate, but also the three sample summonses attached
to and referenced in CHN42444.E:
Regarding
the appearance and format of summonses, the associate professor of Criminal
Justice provided the attached translated samples of a PRC Arrest Warrant, an
Arrest-Summons for Interrogation and a Notice of Summons to Testify. No
additional documents could be found among the sources consulted by the Research
Directorate.
These sample summonses are not
included on the reproduction of CHN42444.E on the
respondent’s web site and are vital in appreciating the Board’s assessment of
the validity of the summons in this case. The sample summonses and their
translation as contained in the certified tribunal record are reproduced at
Appendix B.
[9]
The
errors the Board found in the summons provided by Mr. Ye are the following:
1. It
lacked a signature acknowledging receipt of the summons;
2. It
did not identify his address, age, or gender; and
3. It
was missing the date issued and date served.
[10]
The
Board expected Mr. Ye’s summons to contain these items as a result of its
understanding of CHN42444.E which recites information received from an
associate professor at the University of Wisconsin that there are two types of
summonses:
a)
Zhuanhuan (summons) is used when no arrest or detention of suspects is
necessary or contemplated, i.e. when cooperation is expected or flight is not
likely. See Art. 92 of PRC Criminal Procedure Law. This is not a coercive
measure (qiang zhi cuoshi ).
b)
Juzhuan (arrest summons) is used when voluntary compliance is not
appropriate or zhuanhuan has failed. See Article 50 of PRC Criminal
Procedure Law and Article 60 of Public Security Criminal Procedure
Regulations. This is a coercive measure (qiang zhi cuoshi ).
[11]
CHN42444.E
notes that corroborating information on Chinese summonses was provided in
December 1998 by a law professor at the University of Washington:
In
21 December 1998 correspondence to the Research Directorate, a University of
Washington law professor provided corroborating information on the two types of
summonses. According to the law professor, chuanhuan is a formal order,
issued in writing (chuanhuan zheng ) or orally (kotou chuanhuan
), that requires a person to appear at a local police station. When the person
served the summons refuses to cooperate, there may be a requirement to use a
coercive summons (qiangzhi chuanhuan ) (University of Washington 21 Dec.
1998).
[12]
A
plain reading of the information from these sources reveals that the word “zhuanhuan” or “chuanhuan”
references the act of summoning a person to appear. It may be “issued” either
in written form or orally. This accords with Canadian judicial experience;
Canadian courts issue orders both orally and in writing. The information
reflects that there are two types of summonses: a non-coercive summons and a
coercive summons. The non-coercive summons is used when the PSB wishes to
question a person but he is not arrested or detained because it is expected
that he will co-operate or is unlikely to flee. The coercive summons is used
when the person to be questioned is arrested or detained because his
co-operation is not expected or he poses a flight risk.
[13]
The
Board makes the following statement regarding the types of summonses and the
samples attached to CHN42444.E:
I have considered the statement in Response to
Information Request CHN42444.E (the “RIR”) which identifies two types of
summonses: Zhuanhuan, which is used to
summons a suspect for questioning without arrest, and Juzhuan, an arrest
summons. The RIR states the Zhuanhuan summons for someone to
appear for interrogation must state the person, time, and place of appearance
for questioning. The duplicate copy is signed, dated and returned by the
suspect who keeps one copy. The same RIR goes on to attach samples of an
arrest warrant, an arrest-summons for interrogation and a notice of summons to
testify but not the Zhuanhuan summons.
The Board cites as authority for
that last statement this Court’s decision in Chen v Canada (Minister of
Employment and Immigration), 2011 FC 1062 [Chen], at para 20.
[14]
The
source of the Board’s information and the Court’s in Chen is the
following passage from CHN42444.E:
With
respect to the official procedure for issuing summonses and "arrest-summon
warrants" (juzhuan zheng ), the associate professor provided the
following information:
a)
Summons[es] (zhuanhuan ) should be prepared by the public security when
it is determined that arrest or detention is not necessary to procure the voluntary
appearance of the suspect or defendant for interrogation. The Notice of
Summons (zhuanhuan tongzhi shu ) must be prepared in triplicate stating
the person, time, and place of appearance for questioning. The Notice of
Summons is then to be stamped with public security official chop. The original
copy is kept at the police station. The duplicate copy is signed, dated and
returned by the suspect, before the process is deemed completed. One copy is
left with the suspect.
b)
"Arrest-summons warrant" (juzhuan zheng ) can only be obtained
with the approval of county level and above public security organs upon the
presentation of an "Application for Arrest - Summons" (chengqing
juzhuan baogaoshu ). The application will state clearly and support with
credible evidence that a crime has been committed, the person to be arrested -
summoned for interrogation is connected to the crime, and the suspect is not
likely to appear voluntarily or that a summon for interrogation has been
executed with no success. The "Arrest-summons warrant" will be
executed with a notation of the time of arrest and at the completion of
interrogation.
c)
Persons held under the Summons (zhuanhuan ) or "Arrest-summons warrant"
(juzhuan zheng ) for interrogation cannot be interrogated for longer
than 12 hours. No repeated issuance of Summons (zhuanhuan ) or
"Arrest-summons warrant" (juzhuan zheng ) is allowed (17 Apr.
2004).
[15]
First,
it is an error to state that CHN42444.E does not contain a sample of the
summons used to procure a person’s voluntary attendance for questioning. It is
evident when one reads CHN42444.E and examines the three sample summonses, that
a sample Notice of Summons, the form used to procure a person’s
voluntary attendance for questioning – the written order to appear, in other
words – is included in the samples attached to CHN42444.E. It is identified as
“Form 3: Zhuanhuan
Tongzhishu (Notice of Summons to Testify).”
[16]
Second,
it is evident from examining the three sample summonses attached to CHN42444.E
that the word “triplicate,” used with reference to written notices of summons,
is inaccurate or misleading. A form in triplicate generally means that there
are three identical or exactly corresponding copies. What is clear when one
examines the sample forms is that they are not in triplicate, in that sense of
the word, rather they have three parts, and those three parts do not contain
identical or exactly corresponding information. It is more accurate to say
that a Chinese notice of summons is a three-part form, not a form in
triplicate.
[17]
With
specific reference to the non-coercive notice of summons, the zhuanhuan
tongzhishu
(or zhuanhuan tongzhi shu), CHN42444.E provides:
The
Notice of Summons (zhuanhuan tongzhi shu ) must be prepared in
triplicate stating the person, time, and place of appearance for questioning.
The Notice of Summons is then to be stamped with public security official
chop. The original copy is kept at the police station. The duplicate copy is
signed, dated and returned by the suspect, before the process is deemed
completed. One copy is left with the suspect.
[18]
What
Form 3: Zhuanhuan
Tongzhishu (Notice of Summons to Testify) shows is that it has three parts:
(Part 1) Retained Copy of Notice Summons to Testify which is referred to in the
passage above as the “original copy;” (Part 2) Duplicate Page of Notice of
Summons to Testify which is signed and dated by the “suspect” and which
is referred to in the passage above as the “duplicate copy;” and (Part 3)
Notice of Summons to Testify which is referred to in the passage above as the
copy left with the suspect.
[19]
When
one realizes that the written form is a three-part form and not a form
in triplicate, one quickly sees the Board’s errors.
[20]
First,
the Board correctly notes that Mr. Ye’s summons does not have a signature
acknowledging receipt of the summons. However, it was unreasonable for the
Board to expect that it would have such a signature because, while CHN42444.E
states that the “duplicate
copy is signed, dated and returned by the suspect” or a family member if it is
served with the summons, the “duplicate copy” is really the second part of the
form which is returned to the PSB after it is signed. Perversely, in
light of the Board’s analysis, it is only if Mr. Ye had produced a summons that
he or a family member had signed, that its validity could reasonably be
questioned because it should be in the possession of the PSB, not Mr. Ye.
[21]
Second,
the Board also correctly notes that Mr. Ye’s summons does not identify his
address, age, or gender. However, the sample Form 3 reflects that such
information is contained only on Part 1 which is kept at the PSB and Part 2,
which is signed and returned to the PSB. It does not appear on Part 3, which
is the portion of the written form that Mr. Ye or his family would have been
given. Again and perversely, in light of the Board’s analysis, it is
only if Mr. Ye had produced a summons that identified his address, age or
gender, that its validity could be questioned because it should be in the
possession of the PSB, not Mr. Ye.
[22]
Third,
the Board also correctly notes that Mr. Ye’s summons does not contain the date
issued and the date served. However, the sample Form 3 reflects that the issue
date is in Part 1 and the date of service is in Part 2. Part 3, the part that
Mr. Ye would be expected to have contains the “chop” of
the PSB and the date that it was affixed – the precise information shown on Mr.
Ye’s Summons. Again and perversely, in light of the Board’s
analysis, it is only if Mr. Ye had produced a summons that identified the date
of issue and date of service, that its validity could be questioned because it
should be in the possession of the PSB, not Mr. Ye.
[23]
The
Board also finds that Mr. Ye would not have been issued a non-coercive summons;
he would have been issued a coercive summons, an arrest-summons for
interrogation, such as is illustrated in sample Form 2. The basis for that
conclusion is stated to be “his arrest was both necessary and contemplated by
the PSB.”
[24]
I
find the Board’s reasoning on this point to be highly speculative and
unreasonable. Given that the summons included a charge of “spreading the
religion to China from abroad” the PSB knew that Mr. Ye was not in China. This
is confirmed by the statements made by the PSB to his parents that he should
return home and turn himself in. As Mr. Ye was already out of the country,
arguably the use of a coercive summons would not have been appropriate because
he could not be arrested or detained, and he was clearly no flight risk. It is
equally possible that the PSB would not wish to scare him off by using a
coercive summons. In short, in the circumstances, the Board’s observation
regarding the type of summons used was simply insufficient to reasonably ground
its adverse inference.
[25]
When
the Board questioned Mr. Ye as to the alleged discrepancies between what the
Board expected the summons to look like and what it did look like, his
response, which the Board did not accept was: “I don’t know what the summons is
supposed to look like, but this is what my mother sent me.” Frankly, I have no
idea what other response one could have expected him to offer.
[26]
The
Board’s understanding of CHN42444.E and its expectation as to what a valid
summons from China would look like are fatally flawed. As a result, it
rejected Mr. Ye’s evidence and used the conflict with its understanding of
CHN42444.E as a basis for its credibility finding. This decision is quashed
and the application for protection is to be re-determined by a differently
constituted Board.
[27]
Neither
party proposed a question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is allowed, the
Board’s decision is set aside, the application for protection is to be
determined by a differently constituted Board, and no question is certified.
"Russel W.
Zinn"
APPENDIX A
APPENDIX B
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