Date: 20110216
Docket: IMM-3668-10
Citation: 2011 FC 187
Toronto,
Ontario, February 16, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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JIAN DONG CHEN
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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
only issue in this application is whether the Refugee Protection Division of the
Immigration and Refugee Board erred in its assessment of the genuineness of a
summons the applicant claimed had been issued to him by Chinese police.
[2]
Mr.
Chen claimed refugee status on the basis of alleged persecution as a Christian
in China. He filed as part of
his case a summons purportedly left by the police with his wife after a raid on
the church he was attending. The Board cited documentary evidence that a
summons would almost always be issued to the individual rather than a household
or family member and then noted that:
However, it is also noted that it is very
common in China for the police authorities to leave the
summons with family members, instructing them to pass it along to the person
named on the summons. The person accepting the summons would be expected to
sign an acknowledgment of receipt. Though this is not actually the proper
procedure it happens all the time, especially in cases when a person in the
summons is not easily locatable.
[3]
The
Board observed that the summons the applicant presented was inconsistent with
the documentary evidence in two respects: the section acknowledging receipt of
the summons was blank, and the PRC Criminal Procedure Law number was not on the
summons. The Board considered the inconsistencies between the summons and the
documentary evidence in the context of its finding that fraudulent documents,
including summonses, can easily be acquired in China, and it held, on a balance of probabilities,
that the summons provided by the applicant was not genuine.
[4]
The
applicant submits that the Board’s reasoning in its analysis of the summons is
unsound. He submits that it “seems incongruous to rely on the lack of a
signature or acknowledgment of receipt to impugn the Summons where the Reasons
provide, in part, that it is not proper procedure for a person not named in the
summons to sign the acknowledgment of receipt.” The fallacy with this
submission is that the evidence indicates that while it is not proper procedure
for the police to serve the summons on a person not named in it, they do so
regularly and that when they do, that person is expected to sign the
acknowledgment of receipt.
[5]
The
respondent acknowledged that had the Board accepted the summons as genuine this
could have had a direct impact on the decision as it would have provided the
Board with corroboration of the applicant’s claim.
[6]
Despite
the able submissions of counsel for the applicant, I am unable to find that the
Board’s assessment of the summons and its conclusion that it was not genuine
was unreasonable.
[7]
The Board
relied on a Response to Information Request dealing with summonses issued in China. It reveals that while
a summons is to be served upon the addressee himself, there are provisions in
the Criminal Procedure Law for delivery to someone on the addressee’s behalf.
[8]
The Criminal
Procedure Law then goes on to provide that if the addressee himself or the
person receiving on his behalf “refuses to accept a document or refuses to sign
his name or place his seal upon a document” the person serving the document may
have another person witness that the document was left and record this on the
service certificate. This is deemed to be proper service. The Response to Information
Request goes on to cite a representative of Human Rights in China who, in 2004, stated
that:
It is very common in China for the police authorities to leave a summons or subpoena
with family members (or possibly close friends, though that is probably less
common), instructing them to pass it along to the person named in the summons.
The person accepting the summons would be expected to sign an acknowledgment of
receipt. This is not actually the proper procedure, but it happens all the
time, especially in cases when the person on the summons is not easily
locatable. …[S]ome police officers themselves are not well versed in the
proper procedures, and probably think that this is a perfectly acceptable
practice (while others may simply be too idle to chase the person down, and
rely on the public sense of intimidation to do their work for them).
[9]
The Board
also noted that the Response to Information Request provided that Chinese
summonses should contain the appropriate PRC Criminal Procedure Law number.
Thus, the summons offered by the applicant was deficient in two respects – it
lacked the PRC Criminal Procedure Law number and it lacked the signature of the
applicant’s wife acknowledging receipt of the summons. Given these two
inconsistencies, and considering the availability of fraudulent documents in China, the Board concluded “on
a balance of probabilities, that the summons provided by the claimant is not a
genuine document.”
[10]
Essentially,
the applicant's complaint is with respect to the Board’s assessment of the
evidence. While it may be possible that a genuine Chinese summons may not contain
the signature of the recipient or may lack a Criminal Procedure Law number, the
evidence before the Board was that these two details are to be expected to be
present on a genuine summons. The absence of these items and the availability
of fraudulent documents in China
led the Board to conclude that the summons was not genuine. That decision
cannot be said to be unreasonable. It was based on the evidence before the
Board.
[11]
Accordingly,
this application is dismissed. Neither counsel proposed any question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is dismissed and no question is
certified.
"Russel
W. Zinn"
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