Docket: IMM-782-11
Citation: 2011 FC 1096
Ottawa, Ontario, September 26, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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KUN ZHENG
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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 ORDER AND ORDER
[1]
Zheng Kun claimed to fear persecution in the
Peoples’ Republic of China because of his Christian faith. Mr. Zheng’s refugee
claim was rejected by the Refugee Protection Division of the Immigration and
Refugee Board, which found Mr. Zheng to be utterly lacking in credibility.
[2]
Mr. Zheng seeks judicial review of the Board’s
decision, alleging that he was denied a fair hearing. According to Mr. Zheng,
the Board failed to deal properly with his request to file an amended Personal
Information Form (or “PIF”) after the completion of his refugee hearing.
[3]
For the reasons that follow, I am not persuaded
that the Board erred as alleged. Consequently, Mr. Zheng’s application will be
dismissed.
Background
[4]
Mr. Zheng had a difficult time at his refugee
hearing. He was questioned extensively about material inconsistencies in the
information that he provided at the port of entry, in his PIF and in his
testimony before the Board. The Board described the explanations provided by Mr.
Zheng for these inconsistencies as “evasive and hesitant”.
[5]
The Board found that the summons produced by Mr.
Zheng to show that the police were looking for him in China was fraudulent. It also found that Mr. Zheng had limited knowledge
of Christianity, despite his claim to have been a practicing Christian for over
10 years. These findings led the Board to conclude that Mr. Zheng was not a
genuine practicing Christian, undermining the fundamental basis of his claim
for refugee protection.
[6]
Two days after Mr. Zheng’s refugee hearing, his
counsel wrote to the presiding member, seeking to file an amended PIF.
Counsel’s letter stated that Mr. Zheng’s immigration consultant thought that he
had already filed the amended PIF with the Board, and that Mr. Zheng himself
was under the mistaken impression that the amended PIF was before the Board. It
is the Board’s treatment of this request that is in issue in this application
for judicial review.
Analysis
[7]
I agree with Mr. Zheng that to the extent that
the Board’s reasons can be read to suggest that a formal motion to adduce
post-hearing evidence supported by affidavit evidence was required, the Board
erred. A review of Rule 37 of Refugee Protection Division Rules,
SOR/2002-228, makes it clear that such formalities are not required
for a request to file post-hearing evidence.
[8]
That said, it is apparent from the Board’s
reasons that the presiding member nevertheless went on to consider Mr. Zheng’s
request in light of the factors articulated in Rule 37. These factors include
the relevance and probative value of the document in question, any new evidence
that it brings to the proceedings, and whether the party, with reasonable
effort, could have provided the document or documents in question in advance of
the hearing.
[9]
I do not agree that the Board only looked at
whether or not to reconvene Mr. Zheng’s refugee hearing, and failed to consider
whether to admit the document into evidence thereby denying him a fair hearing.
It is, in my view, implicit in paragraph nine of the decision that the Board decided
not to admit the document into evidence. This is borne out by the notation
placed on the document in question by the presiding member.
[10]
I also do not agree with Mr. Zheng that the
Board’s finding that the new PIF was “vastly amended” was inconsistent with its
finding that the new narrative “had little probative value”. Mr. Zheng’s story
changed repeatedly and had evolved over time. It was reasonably open to the
Board to conclude that a fourth version of events would have limited probative
value, particularly in the absence of any explanation from Mr. Zheng for the
fundamental differences in his two PIFs.
[11]
Mr. Zheng acknowledges that in attempting to
file a new PIF after the hearing, he was trying to “rectify the problems” that arose
before the Board. To the extent that Mr. Zheng’s amended PIF confirmed the
version of events described in his testimony before the Board, it was
reasonably open to the Board to conclude that “it brought little new evidence
to the proceeding”.
[12]
The Board also concluded that, with reasonable
effort, Mr. Zheng could have filed the amended PIF in a timely manner. A review
of the transcript shows that Mr. Zheng was taken to his PIF at the commencement
of his hearing. He confirmed that it was his document, and further confirmed
certain amendments that had been made to the original PIF. Mr. Zheng never
suggested that he had prepared a more recent and significantly different PIF
than the one that was before the Board.
[13]
Mr. Zheng’s counsel now argues that the PIF
document put to Mr. Zheng at the hearing was in English, and that he may not
have understood it. Counsel further suggests that Mr. Zheng may not have
realized that it was his original PIF and not his amended PIF. The difficulty
with this argument is that it lacks any evidentiary foundation. Mr. Zheng did
not file an affidavit in support of his application for judicial review, and
the affidavit provided by a legal assistant was simply a vehicle for the
production of documents.
[14]
The decision whether to admit new evidence is a
discretionary one. I am satisfied that the Board turned its mind to the request
to admit post-hearing evidence and that, in exercising its discretion in this
regard, the Board considered the relevant factors and did not take irrelevant
matters into account. I am further satisfied that having properly addressed Mr.
Zheng’s request, the Board did not deny him a fair hearing. As a result, the
application is dismissed.
Certification
[15]
Mr. Zheng proposes the following question for
certification:
Under what
circumstances may courts find exceptions to the general rule that breaches of
natural justice void decisions regardless of what decision the Board may have
come to?
[16]
This question relates to the respondent’s
alternative argument that, even if there was a breach of natural justice in
this case, it would be pointless to remit the matter for a new hearing as Mr.
Zheng has been found to be so utterly lacking in credibility that the outcome
of any new hearing would inevitably be the rejection of his claim.
[17]
Having concluded that Mr. Zheng was not denied
procedural fairness in this matter, it follows that the question does not
arise. Accordingly, I decline to certify it.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2.
No serious question of general importance is certified.
“Anne Mactavish”
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