Date: 20071207
Docket: IMM-6447-06
Citation: 2007 FC 1292
Ottawa, Ontario, December 7,
2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
EN HUA JIANG
JIA QI JIANG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] En Hua Jiang
(Ms. Jiang) claims to be a citizen of the People’s Republic of China (China) in
need of refugee protection because of her violation of the Chinese birth
control policies. Jia Qi Jiang is her five-year-old daughter. Their claim to
refugee protection was refused because the Refugee Protection Division of the
Immigration Refugee Board (Board) found that they failed to establish their
identity and country of reference.
[2] This
application for judicial review of that decision is allowed because the Board
erred in law by failing to base its identity determination upon the totality of
the evidence before it. The Board also erred by, for the reasons stated by the
Board, giving no probative value to the original Resident Identity Card (RIC)
submitted by Ms. Jiang.
[3] Turning
to the Board’s error of law, the parties accept that, as a matter of law,
identity findings are to be based upon the totality of the evidence. See, for
example, Lin v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 104.
[4] In
the present case, the Board based its decision with respect to identity upon the
following findings:
·
It was implausible that the snakehead, who traveled with Ms.
Jiang and her daughter, would tell Ms. Jiang that he would answer all questions
put to her and that, for this reason, Ms. Jiang would not be coached about the
false identity that she traveled under.
·
If that was true, Ms. Jiang ought to have testified that she did
not know the false name that she traveled under instead of stating that she
could not recall the name.
·
Ms. Jiang had no travel documents (the Board did not deal with
her explanation that the snakehead took all of the documentation with him).
·
Ms. Jiang ought to have been able to provide an original copy of
her hukou. The Board also rejected the genuineness of the copy of the hukou
that Ms. Jiang provided because it described the type of household to be
"Family" or "resident Hukou" and did not contain her
citizenship identification number.
·
No weight should be given to the original RIC that Ms. Jiang
produced because it was issued on the basis of the hukou.
·
No weight should be given to the notice requiring Ms. Jiang’s
attendance at a birth-control office because the notice did not contain any
section for inserting her address or RIC number.
[5] It
can be seen that missing from the Board’s reasons is any significant
consideration about the evidence provided by Ms. Jiang at the hearing
concerning the central element of her claim. That evidence included
information about her background, her life in China, and the birth-control
authorities. It also included a photograph that Ms. Jiang identified as
being a picture of the father of her children. The picture was said to be
taken in the city of Guangzhou, near the White Swan Hotel. The signs depicted
in the photograph were translated at the Board’s request. One sign read
"Guangzhou Shipping Company" and the refugee protection officer (RPO)
provided information about the "White Swan Hotel" located in Guangzhou.
[6] In
my view, the Board was obliged to at least consider this evidence when
assessing whether Ms. Jiang had established her identity. The Board failed to
do so. This case is distinguishable on this point from my prior decision in Li
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1030, because
in that case aspects of Mr. Li’s testimony were found by the Board to be
incredible and because Mr. Li could not point to any particularly telling
evidence before the Board about his experiences in China from which the Court
might infer that the Board failed to consider all of the evidence.
[7] Unquestionably,
the Board in this case was properly concerned with the evidence before it about
the availability of false or fraudulently obtained identity documents in China.
However, it seems to me that, to the extent the documents may be suspect, it
becomes all the more important to consider the totality of a claimant’s
evidence about their identity. This error, by itself, warrants an order
setting aside the decision of the Board.
[8] With
respect to the original RIC, on the evidence before the Board, it was patently
unreasonable for the Board to give no weight to this document simply because
RICs are typically issued based upon the hukou. The Board’s conclusion on this
point ignored the evidence before it that important opportunities currently exist
in China for those who hold an urban hukou, that the use of fraudulent hukou
documents remains common in China, and that those who acquire fake hukous are
usually rural migrants attempting to improve their access to social benefits by
obtaining hukous that are not characterized as agricultural or rural. This
evidence provides a credible explanation as to how a citizen could hold a
fraudulent hukou and a genuine RIC at the same time.
[9] Moreover,
in Lin v. Canada (Minister of Citizenship and Immigration),
[2007] F.C.J. No. 15, this Court held that it was illogical and an error
for the Board to question the legitimacy of a RIC on the sole ground that a claimant’s
hukou is found not to be genuine.
[10] In
closing, in the context of the issue of the genuineness of Ms. Jiang's RIC, the
Board was referred to a note from a RPO regarding a check conducted on the RIC
to determine whether it contained the usual security features. The note stated:
"Chinese Resident Card #440111810131542 received and checked. The
original card may now be returned to the claimant, as it was in her
possession." To one familiar with the current practice before the Board
with respect to the authentication of RICs from China, the note from the RPO
was capable of supporting the inference that the RIC did contain the normal
security features. Otherwise, the card would likely have been forwarded to the
RCMP for forensic analysis. The Board instead found the note to constitute “no
evidence”.
[11] With
respect, I find the Board’s approach to be surprising. If the note was too
cryptic for the Board to accept, it would have been an easy matter to have
asked the RPO for clarification or to have sent the card to another RPO for
review. Ignoring relevant information on the ground of ambiguity when the ambiguity
is easily resolved, does not, in my view, accord with reason or the fair and
accurate adjudication of refugee claims.
[12] For
these reasons, the application for judicial review is allowed. Counsel posed
no question for certification, and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division dated November 17, 2006, is hereby
set aside.
2. The matter is remitted for redetermination by a differently
constituted panel of the Refugee Protection Division.
“Eleanor R. Dawson”
FEDERAL COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: IMM-6447-06
STYLE
OF CAUSE: EN
HUA JIANG, JIA QI JIANG, Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 27, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: DECEMBER 7, 2007
APPEARANCES:
MR. SHELLEY LEVINE FOR
THE APPLICANTS
MR. NED DJORDJEVIC FOR
THE RESPONDENT
SOLICITORS OF RECORD:
LEVINE ASSOCIATES FOR
THE APPLICANTS
BARRISTER & SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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