Date: 20110602
Docket: IMM-4488-10
Citation: 2011 FC 636
Ottawa, Ontario, June 2, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
JIAN ZHONG WANG, QING CHEN, SIMON YAN
WANG, and JENNIFER WANG
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants seek an order setting aside the June 14, 2010 decision of the
Refugee Protection Division of the Immigration Refugee Board (the Board), which
found the applicants to be neither Convention refugees nor a persons in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA). The application is brought
pursuant to subsection 72(1) of the IRPA. For the reasons that follow,
the application for judicial review is dismissed.
[2]
The
adult applicants, Mr. Jian Zhong Wang and his wife Ms. Qing Chen (the adult
applicants), claimed to be citizens of China. The
applicants also claimed to be Roman Catholics. Using fraudulent documents the
male applicant came to the United States (U.S.) on January 19, 1995. He made a
claim for asylum in the U.S. but it was rejected and he was given a
Departure Order. He ignored the Departure Order and remained in the U.S. He began
attending a Catholic church and was later baptized. He also worked illegally.
A friend subsequently informed him that one of the friend’s relatives had made
a successful refugee claim in Canada.
[3]
The
female applicant entered the U.S.
in 2000, also using fraudulent documents. Her claim for asylum was rejected by
the U.S. in 2001. The
applicants were, nonetheless, married in Boston, Massachusetts, in October 2002. They attended the
Boston Catholic church, but the female applicant was not baptized. The minor
applicants - the children of the applicants - were born in 2003 (son) and 2006
(daughter) and were baptized. The children are U.S. citizens.
[4]
The
male applicant arrived in Vancouver on December 7, 2008 and made a claim for Convention
refugee protection in Toronto on December 15, 2008. The
female applicant and the minor applicants entered Canada at Fort Erie on January
19, 2009 and made their refugee claims that same day. The claims were joined
and rejected by the Board on June 14, 2010. The Board found that the determinative
issues in the claims were the credibility of the adult applicants’
identities and the Personal Information Form (PIF) narratives, as well as oral
testimony of both applicants concerning their identity as members of the
Catholic faith. The second issue before the Board was the adult applicants’
fear of forced abortion and/or sterilization for breaching China’s family planning
policy if forced to return to China. The determinative issue with respect to
this portion of the claim was the relationship of the applicants’ subjective
fear of persecution to the objective situation of birth control policies in
their home province of Fujian.
[5]
The Board
found that “the male and female claimants are neither Convention refugees nor
persons in need of protection…[and]…that the two minor claimants are not
Convention refugees as they are citizens of the United States of America and
hence have no credible basis for a refugee claim in Canada against the USA.” Additionally,
the Board found that the male applicant did not establish his identity as a
national of China by his testimony or his
supporting documentation.
[6]
In
sum, the Board concluded, at paras 51-52:
In assessing all of the evidence
available, the panel concludes that the claimants have not supplied credible
testimony or evidence to support their claims. The lack of acceptable
documentation and proof of the alleged asylum claim in the USA for the female claimant, as well as the
lack of credible testimony detracts from her claim. The failure of the male
claimant to establish his identity as a national of the country of China is
critical to his claim and the panel has no requirement for further analysis of
this claimant’s allegations, given that it matters not, pursuant to section 106
of the Immigration and Refugee Protection Act, whether the male claimant is a
practicing Catholic or may be subject to the rules of the “One-Child Policy”.
The panel has found that there is no
significant evidence to support the allegations made by the adult claimants
with respect to the Catholic church in China and have found, on a balance of
probabilities, that an enhanced fine rather than abortion or forced
sterilization is more likely than not the greatest penalty that would be faced
by the female claimant in respect of “One-Child Policy” issues should she
choose to return her United States born children to China.
[7]
In
the result, while the Board refers to the fear of persecution on the part of
both applicants, the Convention ground needed to be assessed only in respect of
the female applicant as her identity alone was established.
Issue
[8]
Counsel
for the applicants argues that the Board erred at law by rejecting the male
applicant’s Chinese identity documents without a proper evidentiary basis.
[9]
The
applicants also contend that the Board erred at law by conducting a highly
selective analysis of the objective documentary evidence by engaging in sheer
speculation when it came to its consideration of China’s One-Child Policy.
Was
the Board finding that the male applicant’s identity had not been established
reasonable?
[10]
The
Board rejected the male applicant’s claim that he is a Chinese national. The Board
found:
The male claimant’s testimony and the
supporting documentation filed do not establish the male claimant’s
identity as a national of China. In order to establish his
identity, the male claimant provided an original resident identity card (RIC),
a household register (hukou) and a marriage certificate.
With respect to the assessment of the
documents, section 106 of the Immigration and Refugee Protection Act
states:
The Refugee Protection Division must take
into account, with respect to the credibility of a claimant, whether the
claimant possesses acceptable documentation establishing identity, and if not,
whether they have provided a reasonable explanation for the lack of
documentation or have taken reasonable steps to obtain the documentation.
Rule 7 of the Refugee Protection Division
Rules states:
The claimant must provide acceptable documents establishing
identity and other elements of the claim. A claimant who does not provide
acceptable documents must explain why they were not provided and what steps
were taken to obtain them.
In assessing the authenticity of the male
claimant’s documents, the panel is guided by the Federal Court decision in Sertkaya,
which asserts that it is open for the Board to consider the authenticity of
documentary evidence and the ability of the claimant to obtain and use
fraudulent documents. The panel is also mindful of the Federal Court decision
in Rasheed, which asserts that the basic rule in Canadian law is that
foreign documents (whether they establish the identity or not of a claimant)
purporting to be issued by a competent foreign public official, should be
accepted as evidence of their content unless the Board has some valid reason to
doubt their authenticity.
[11]
Counsel
for the applicants contends that a document official in capacity is presumed to
be authentic unless the Board can provide a clear evidentiary basis calling the
document into question and that, in consequence, the Board erred in rejecting
the identity documents. It is the exception to this general principal however
that formed the basis of the Board’s decision. The Board provided a number of
reasons why the authenticity and therefore validity of the male applicant’s
identity documents ought to be doubted:
The male claimant presented an original
RIC… issued in 2001, in support of his identity as a national of the People’s Republic
of China. The male claimant stated
that this RIC was a second generation identity card and that he had previously
replaced one RIC. A second generation card began circulating in the People’s
Republic of China in 2004. The new
computer-readable identity card replaces the first generation card that has
been in circulation for more than 20 years. The panel notes that the male
claimant did not have a second generation RIC but had an 18-digit version of
the first generation RIC. The male claimant was asked about what became of his
RIC prior to this one. He stated that it was at his home in China. Documentary evidence indicates that an
individual is required to hand in his previous card at the local PSB office and
obtain the new card pursuant to the Chinese government rules. He was asked how
he obtained this RIC in 2001, when he alleges he was in the USA. The male claimant stated that he sent a
picture of himself to his mother and she applied for the RIC and sent it to him
in the USA. He was asked what procedure
she took to get the card. He replied that he did not ask. Documentary evidence
[citation removed] states that Chinese citizens must apply in person to the
Public Security Bureau (PSB) to obtain a RIC. The applicant’s photograph
is taken by the PSB at the time of application. A fee is required to obtain a
new identity card. The claimant was given an opportunity to comment on this and
he noted that he had obtained the card the way he had described. In her
submissions, claimants’ counsel quotes from a U.K. Home Office document where
it discusses procedures for replacing a lost or stolen identity card. The panel
notes that the RIC allegedly obtained in 2001 by the male claimant was a new
card replacing a card that was about to expire, not a lost or stolen card. The
current documentary evidence is quite specific in its description of the
issuance procedures for new RICs.
The panel draws a negative inference in
regard to the credibility of the male claimant, given his adamant claim that
the RIC before the panel was obtained by mailing a picture to his mother, that
he did not report, that he had to exchange his prior RIC at the local PSB
office when receiving a new RIC and incorrectly stating that his RIC was a
second generation card.
[12]
To
counter these conclusions, the applicants contend that the Board was incorrect
in its finding that it is not possible for a Chinese national to obtain a new
RIC with the assistance of a third party and that they must apply in person. The
applicants point to a U.K. Home Office report dated April 20, 2004 which states
that “a person does not have to come in themselves with the photo, a relative
may come in their place.” As the Board noted, the phrase “a person does not
have to come in themselves with the photo, a relative may come in their place” is
made with respect to lost RIC cards. The distinction is important because the
male applicant claims to have replaced an expired RIC, not a lost one. This
evidence does not therefore support his position.
[13]
The
applicants further contend that there is no evidentiary basis upon which to
confirm the Board’s conclusion that it is simply impossible to obtain a RIC
from abroad. There was, however, an evidentiary basis on which the Board
founded its conclusion. The Board clearly stated “documentary evidence states
that Chinese citizens must apply in person to the Public Security Bureau (PSB)
to obtain a RIC” and referenced “Exhibit R/A-1, item 3.151 Information Request
CHN43360.E.” in support of this conclusion.
[14]
The
applicants contend that the documentary evidence was inconclusive with regard
to the issuance of a RIC and/or RIC renewal and that there was nothing
inherently implausible or unreasonable about the male applicant’s explanation
that his mother obtained the new RIC for him. In my view, the Board’s
rejection of this explanation was within its jurisdiction to make findings of
credibility and to reject the explanation as implausible. In this case, not
only was the explanation inconsistent with the country information on how RICs
are obtained, the Board was entitled to reject the explanation as implausible.
It was reasonable for the Board to find that the Chinese government would not issue
an official identity document in such a laissez-faire manner as asserted by the
male applicant.
[15]
Counsel
asserts with respect to the documents themselves, that to avoid making adverse
or negative findings with respect to the RIC, the Board could have requested
the RCMP investigate the documents. This argument cannot succeed.
[16]
First,
the onus is on the applicant to establish his identity. Secondly, there is no
duty incumbent on the Board to obtain an RCMP report where there is sufficient
evidence to prima facie cast doubt on a document’s authenticity. A
similar argument with respect to the male applicant’s passport, i.e. that the Board
should have contacted the Chinese Embassy in Washington D.C. to confirm the passport’s authenticity, fails
for the same reason.
[17]
The
Board also drew a number of further negative inferences with respect to the male
applicant’s effort to establish his identity:
In considering the negative inference
above, the panel has cause to question the authenticity of the RIC submitted by
the male claimant. The panel considered the country documents in regard to
RICs, specifically those that appear to be genuine cards but that may not be
legitimately obtained and found that “counterfeit (Resident Identity) cards and
fraudulent documents such as Resident Identity Cards are relatively easy to
obtain.” The documentary evidence notes:
The first generation RIC is relatively
easy to counterfeit as it is made of laminated paper, and can reportedly be
bought on the streets for a “few hundred yuan” … In addition, these cards,
which are issued by provincial authorities, do not have a nationwide tracking
number so fraud detection is difficult. According to the Ministry of Public
Security (MPS) official in charge of the Second Generation Identity Card
Replacement Office, the first generation identity card “adopts photochemical
reaction and lithographic as the main printing technology, which can be forged
or imitated easily.” The official also stated that the government had
encountered serious problems with forged RlCs being used in committing crimes.
According to information provided to the
Research Directorate by a program officer with the Intelligence and
Interdiction Unit of Citizenship and Immigration Canada (CIC) in 1999:
…both counterfeit cards and fraudulently
obtained but legitimately produced cards are obtainable and in circulation, and
... possession of a legitimately produced identity card does not guarantee that
it was legitimately obtained.
The male claimant was questioned about
why in 1995 he did not apply for a passport and travel legally to the USA. He replied that his household registry
(hukou) did not allow him, as a farmer, to go abroad. He was asked to confirm
he had a rural hukou. He responded in the affirmative. The male claimant was
asked to confirm that he could not apply for a Chinese passport and travel out
of the country. He replied ‘yes’ that was true. The male claimant was asked if
he did apply to travel out of the country. He responded ‘yes’.
The panel noted that the male claimant
had a Chinese passport. He was asked when he acquired it. He replied that it
was in 2006, while he allegedly resided in the USA. When asked about the process he went
through to apply for this document, he stated that he filled in a form at the
Chinese embassy and showed his Massachusetts driver’s license. Documentary
evidence taken from the website of the Chinese embassy in Washington indicates
that for passport renewal, citizens must fill out an application form and
submit the original passport, as well as the pages, “with photograph and
personal information, previous endorsements or extensions, and visas for entry
into the United States”, along with a passport photograph meeting embassy
specifications. Green card holders must also provide the original card, plus a
photocopy thereof. Applications may be submitted in person or by mail. The
male claimant testified during the hearing that he had previously applied for a
Chinese passport and been refused, hence he had no expired passport to renew,
nor did he hold a green card or current status in the USA. It should also be noted that
if as the male claimant alleged during testimony, he could not be granted a
passport previously in China, none of his circumstances
had changed in 2006. In actual fact, he was in the USA without valid status and
illegally absent from the country he alleges citizenship in. The panel finds
this is an implausible situation that would not allow one to legally obtain a
Chinese passport. [Emphasis
added]
To apply for a new passport, the Passport
Law of the People’s Republic of China
states:
Article 5: A citizen who intends to go
abroad for non-official purposes, such as residing, visiting relatives,
studying, working, travelling or engaging in business activities, shall apply
in person for an ordinary passport to the entry-exit control department of the
public security organ under the people’s government at or above the county
level where his residence is registered.
Article 6: A citizen who applies for an
ordinary passport shall present his resident identity card, resident household
registration book, recent bareheaded photos and the materials related to his
reasons for application. Where a State functionary applies for an ordinary
passport for any of the reasons as specified in Article 5 of this Law, he shall
present the relevant certification documents according to relevant State
regulations.
The male claimant denied presenting any
of the documents required as detailed above to obtain a Chinese passport in
assessing the testimony provided in the hearing and given the absence of a
reasonable explanation for how the male claimant obtained his RIC and Chinese
passport and the absence of any collaborating evidence, the panel rejects the
male claimant’s explanation.
In assessing the male claimant’s
testimony and the totality of evidence presented in respect of the male claimant’s
RIC and passport, the panel finds, on a balance of probabilities, that the
RIC and passport submitted in support of this claim are fraudulent and that the
male claimant knowingly submitted false identification documents. [Emphasis
added]
The male claimant also provided a
“notarial birth certificate”, dated June 27, 1996. This document was allegedly
signed and sworn before a notary in China
utilizing a picture of the male claimant. At the time of signing, the male
claimant alleged he was in the USA and not present. There is no
statement in the certificate indicating what documents were utilized to produce
the “certificate”. As discussed above, fraudulent documents are readily
available. The panel has cause to question the authenticity and validity of
this document and assigns it little evidentiary weight.
After considering the totality of the
evidence, representations, relevant documents and statutory provisions and case
law, the panel finds that the male claimant has failed to produce sufficient
credible documents and evidence to establish his identity as a national of the
People’s Republic of China, nor has he satisfactorily
explained why they were not provided. The male claimant has not met the
requirements of section 106 of the Immigration and Refugee Protection Act and
Rule 7 of the Refugee Protection Division Rules and has knowingly submitted
false documents. Accordingly,
the panel finds that the male claimant is not a credible witness. Given the
magnitude of the misrepresentation regarding the male claimant’s national RIC
and passport, the credibility of the male claimant’s entire account is cast
into serious doubt. [Emphasis added]
[18]
Again,
and contrary to the applicants’ argument, there was no duty incumbent on the
Board to obtain expert reports or confirmation of the RIC’s, passport’s and
notarial birth certificate’s authenticity. The identity documents on their
face, together with their provenance and inconsistency with country information
reports constituted sufficient foundation for the Board’s conclusions on the
lack of credibility in the explanation proffered and authenticity of the
documents. Once the Board concluded that the male applicant had not
established his identity, it was not necessary for the Board to conduct any further
analysis of the evidence. In light of the Board’s finding that the male
applicant had not established his identity, the Board’s analysis of the male
applicant’s religious persecution claim became unnecessary.
[19]
The
Board then addressed the female applicant’s claim. Contrary to the male
applicant, her identity and citizenship had been established by the evidence
she tendered. Throughout its reasons the Board, however, refers to the
applicants’ claim and its findings in the plural. While this gives rise to some
confusion in the context of its finding that the male applicant failed to
establish his identity, it is immaterial to the legal analysis, and cannot be
said to give rise to an error. Put at its highest, it is a second, if
unnecessary, reason for rejecting the male applicant’s claim. The reasoning in
this regard does, however, constitute the basis for the Board’s rejection of
the female applicant’s claim, whose identity and nationality it accepted, and
hence requires further review.
[20]
The
evidence before the Board with respect to religious freedom in China is mixed.
Certainly, there was sufficient credible evidence upon which the Board could
find that there was, within the female applicant’s home province of Fujian, a
low risk of persecution for Catholics. The Board was cognizant of the
existence of evidence to the contrary, which it rejected after considering both
its content and provenance:
This leads the panel to determine that
the claimants are free to choose to worship in the Catholic congregation of
their choosing. The panel has chosen to rely on the documentary evidence
because it originates from a variety of reputable independent sources, which
would reasonably be expected to be knowledgeable with respect to the situation
of Catholics in Fujian. The documentary evidence is
seen as reliable, probative, detailed information, so as to provide the panel
with a thorough understanding of the situation of the Catholic church in Fujian province.
[21]
The
Board was entitled to weigh the competing evidence and come to a view, provided
it did so in a substantively and procedurally fair manner. I find that it
did. It is not sufficient for the applicants to point to evidence that points
in the opposite direction; it is only where the conclusion reached, in light of
the weight of the evidence, or in light of a specific material element of the
evidence, is unreasonable, that the Court will interfere: Velinova v
Canada (Citizenship and Immigration), 2008 FC 268.
[22]
In
this regard, the reasoning of Justice James Russell in Yang v Canada (Citizenship
and Immigration), 2010 FC 1274 is directly apposite. There,
Justice Russell rejected the argument advanced here, noting that it was not
unreasonable to conclude that if there were incidents of arrest in Fujian province (the
same province in this case), they would have been documented. The findings of
the Board were sustained, and the inference not considered to be speculation.
[23]
Every
case is unique and is comprised of its own unique evidentiary record. I agree
with the observation of Justice Russel Zinn in Yu v Canada (Citizenship
and Immigration), 2010 FC 310 that one should be cautious in
applying country findings from one decision of this Court to another. Here,
however, there was evidence upon which the Board reasonably concluded that the
risk of persecution did not meet the legal threshold.
[24]
There
remains, however, a concern as to the finding on the question whether the female
applicant can practice her faith in the “patriotic” Catholic churches of China. The female
applicant contends that the Catholic churches that are state sanctioned are not
true churches of the Catholic faith.
[25]
In
sum, the female applicant’s objection is that the findings of the Board, in
effect, require her to practice her faith in the official Catholic church of China, which she
does not consider to be a true Catholic church. The Board examined this
proposition carefully, and its finding that the core tenets of the Catholic
faith remained unaltered and open and available to her, was supported by the
evidence and was reasonable. It concluded that the Vatican and Beijing
are reconciled, that priests and bishops publicly acknowledge their
appointments, and that Vatican-approved adherents in the official church
recognize and accept the Vatican’s spiritual authority.
[26]
The
female applicant maintains that the Board’s decision is flawed as it in effect
forces her to change her faith. This mischaracterizes the Board’s ruling which
was that the female applicant could practice her faith within the sanctioned
church. Other than the issue of abortion, the applicant did not identify any aspect
of practice or belief other than hearsay testimony that the Church preached
love of country and of the communist party, which was said to be fundamentally
unacceptable to her and incompatible with church doctrine, she was required to
change her faith.
[27]
One
particular tenet of faith that comes into conflict with state policy was that
of abortion. The female applicant desires more children, and claims that China’s One-Child Policy
would preclude her from having more children, resulting in either the use of
contraception or an abortion, either of which contravenes her faith. In this
regard, the Board had before it two reports indicating that the policy did not
apply to foreign born children, and that even if the policy did apply, a fine,
rather than forced abortion, was the consequence of a breach. This “Social
Compensation Fee” which is a monetary penalty, cannot as a law of general
application, constitute a basis for a persecution in these circumstances.
[28]
The
female applicant also contends that the Board engaged in speculative and
unsustainable inferences in concluding, from the absence of documentation of
arrests or incidents of persecution, there was a low risk that she would be
persecuted. This argument fails here, as it has in other cases: Yang
and Yu above. There was evidence before the Board, from multiple
credible sources, on which it could predicate its finding that the risk of
persecution fell short of the Convention threshold.
[29]
In
conclusion, the finding that there was not a serious possibility that the
applicants would be persecuted if returned to China is
reasonable per Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008
SCC 9.
[30]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
Email this Content