.
Date: 20070810
Docket: IMM-4384-06
Citation: 2007 FC 831
Ottawa, Ontario, August 10,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
YANFEN LIU (a.k.a. Yan Fen
Liu)
ZHI XIN CHEN (a minor)
ZHEN YI CHEN (a minor)
MEI YU CHEN (a minor)
YUN CHEN
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Yanfen Liu and her family from
a negative decision of the Refugee Protection Division of the Immigration and
Refugee Board (Board) rendered on July 12, 2006.
Background
[2]
The
Applicants claimed to be citizens of the People’s Republica of China who were
fleeing from persecution related to that country’s family planning policies and
Ms. Liu’s involvement with the Falun Gong movement. Ms. Liu left China with her
three children in March 2003 with the assistance of a smuggler or “snakehead.”
Her husband followed and arrived in Canada in August 2003. He,
too, travelled here with the assistance of a snakehead. It was undisputed that
the Applicants came to Canada from Hong Kong with false passports which
were allegedly returned to the accompanying snakeheads upon arrival. Ms. Liu
claimed, however, that their remaining identity documents including their
Household Register (hukou), their resident identity cards (RIC’s), and their
birth and marriage certificates were all genuine and, therefore, sufficient to
establish identity.
[3]
The
Board apparently had reservations about the authenticity of the tendered identity
documents and submitted the RIC’s to the Royal Canadian Mounted Police (RCMP)
for forensic analysis. The RCMP reported that the RIC’s were forgeries. When
Ms. Liu was later questioned on this issue, she claimed that they had given
their original RIC’s to the two snakeheads and had unknowingly received, in
return, the forged copies upon arrival in Canada. Ms. Liu
was also questioned about other perceived discrepancies with the hukou and
birth certificates. She testified that the documents before the Board were
valid originals but she was unable to offer much evidence that directly addressed
the Board’s authenticity concerns. With respect to one dating anomaly, she
offered the following testimony:
CLAIMANT #1: Well, it’s after I got married
and then I received the hukou. When I got married I received the hukou, I
received this hukou.
PRESIDING MEMBER: What year was that?
CLAIMANT #1: I was married in 1989.
PRESIDING MEMBER: So, did you receive this hukou
in 1989?
CLAIMANT #1: Yes.
PRESIDING MEMBER: Well, the translation says it
was registered on November 18th, 1999.
CLAIMANT #1: If that is so, then I don’t
really quite remember. It was after I married with my husband that I got this
hukou, but if it’s written like that, I really am not sure what it is, and it’s
after we got married that I received this hukou.
[4]
During
the hearing, the Board gave notice to the Applicants that it intended to rely
upon specialized knowledge with respect to the expected presentation of Chinese
birth certificates. It is apparent from the transcript that counsel for the
Applicants had some reservations about the Board’s claimed expertise as is
reflected in the following exchange:
PRESIDING MEMBER: Now, there’s one thing about
each of the birth certificates that I want to ask you about. I have what I
would describe as specialized knowledge and that is that when a birth
certificate is issued there’s a small attachment on the right-hand side, and
that attachment is used in order to have the name added to the hukou. In fact,
it says right on the form that that part is to be given to the person who
changes the hukou.
CLAIMANT #1: Well, that part I don’t really
know. So, it’s the person who helped me deliver gave it to me.
PRESIDING MEMBER: Well, my question is that because
this hukou and the other - - sorry, this birth certificate and the other two
birth certificates all have very straight edges, it’s apparent to me that
nothing has been torn off, because usually that edge is perforated. Counsel,
do you want to see?
COUNSEL: My problem is your knowledge,
is it based back decades, your specialized knowledge?
PRESIDING MEMBER: We’ll come back to that.
COUNSEL: I mean, I trust if you say
there’s no perforation there’s no perforation, but I don’t know what that means
10, 15 years ago.
PRESIDING MEMBER: Do you have any comment,
Ma’am, on what I’m saying?
CLAIMANT #1: I don’t have anything to say.
You asked me a question and I will answer you.
PRESIDING MEMBER: My question is: Do you know
why the birth certificate doesn’t have a perforated edge?
CLAIMANT #1: That part I don’t know. All I
know is when I gave birth, the person who help me deliver gave me the
certificate. I check out if the name is correct, and then we just put it away.
Notwithstanding the above statement that
the Board intended to come back to counsel’s concern, the issue was not
addressed again until final submissions when counsel challenged the Board’s
claim to specialized knowledge with the following statement:
There was some discussion about the
documents, themselves, and while we do have some information, and the Board may
have some specialized knowledge regarding birth certificates, surely they have
taken many forms over the years and there was no consistency throughout the
country, and accordingly I would submit that it would be impossible to say with
any certainty whether documents from that particular time period must have had
- - must have a perforated edge.
The Board Decision
[5]
The
Board rejected the Applicants’ claims on the basis that the Applicants had
failed to produce sufficient credible documents and evidence to establish their
identities as required by section 106 of the Immigration Refugee and
Protection Act, S.C. 2001, c.27, (IRPA). Having made that finding, it
declined to assess their allegations of persecution.
[6]
The
Board’s decision indicates that it did not believe Ms. Liu’s testimony with
respect to identity. The Board also found that the Applicants had knowingly
submitted false documents as proof of their identities. Those conclusions were
based on several specific findings including the following:
(a)
that
the RIC’s were forged and Ms. Liu’s explanation for how that may have happened
was improbable;
(b)
that
the authenticity of the hukou was “questionable” on its face because the
document appeared to have been disassembled;
(c)
that
Ms. Liu’s explanations for the dating inconsistencies on the hukou were
“unsatisfactory” and the cumulative problems with the documents led the Board
to conclude that it was fraudulent; and
(d)
that
the birth certificates were not in the expected form based on the Board’s
specialized knowledge and, therefore, carried little weight.
Issues
[7]
(a) What
is the appropriate standard of review for the issues raised on this
application?
(b) Did
the Board commit a reviewable error in its assessment of the Applicants’
identity documents?
Analysis
[8]
It
is well established that the standard of review for the Board’s assessment of
identity documents is patent unreasonableness. In Ipala v. Canada (Minister of
Citizenship), 2005 FC 472, [2005] F.C.J. No. 583, Justice Edmond
Blanchard noted that this heightened level of deference to the Board’s
assessment of identity documents is justified by its first-hand access to those
documents and by its high level of expertise in this area (see para. 18).
[9]
Counsel
for the Applicants characterized the Board’s rejection of Ms. Liu’s explanation
for tendering the forged RIC’s as a plausibility finding. He contended that,
since her explanation was not outside of the realm of reasonable possibilities,
it should not have been characterized as implausible. The problem with this
argument is that the Board did not find Ms. Liu’s explanation
implausible but, rather, found it to be improbable. Its finding on this issue
was expressed as follows:
I therefore reject the claimants’
attempts to avoid responsibility for the cards, which they themselves
submitted, and find on a balance of probabilities that the claimants knowingly
submitted false cards.
[10]
A
factual finding reached on a balance of probabilities need not exclude all
other rational or reasonable possibilities. It requires only that the Board
weigh the conflicting pieces of evidence to determine which is the more likely
event or explanation. That is precisely what the Board did in concluding that
it was unlikely that two different snakeheads would substitute forgeries which
were exact duplications of the Applicants’ authentic RIC’s. The simple
application of common sense to factual findings of this sort does not transform
a finding of fact based on probabilities into a plausibility finding.
Accordingly, there is nothing about the Board’s approach to this issue which
constitutes an analytical error.
[11]
The
Applicants contend that the Board erred in the application of its claimed
specialized knowledge in the authentication of some of their identity
documents. In particular, the Board found discrepancies between the
presentation of the birth certificates and the hukou and its knowledge of what
those documents should look like. With respect to the birth certificates, the
Board’s finding was as follows:
In the hearing I declared specialized
knowledge with respect to birth certificates in that genuine birth certificates
normally have a perforated right edge where the tear-off portion has been
removed. The three certificates before me in this hearing had a straight,
cleanly cut right edge. Both the claimants and counsel were given an
opportunity to comment. Counsel stated that she was not sure what my
specialized knowledge would mean with respect to a birth certificate issued 10
to 15 years ago. The principal claimant said that she did not know why the
birth certificates had no perforated edge, only that the person who helped her
deliver her children had given her those certificates, that she had checked the
names and then put the certificates away. However, when I assess these
documents in light of the fact that the claimants presented both a fraudulent
Household Register and fraudulent Resident Identity Cards, and that these are
the two most reliable documents from China,
I give both the marriage and the birth certificates little weight. This is
also because fraudulent documents are so readily available in China.
[12]
Counsel
for the Applicants challenged the Board’s reliance on specialized knowledge and
pointed to counsel’s objection on this issue made during the hearing. The
problem with this argument is that the Applicants neither put evidence before
the Board to challenge its claim to specialized knowledge nor requested an
adjournment to seek out such evidence. In the absence of such evidence to
support the objection, I am left with a finding that, on its face, is sound and
well within the Board’s authority to apply its specialized knowledge.
[13]
By
failing to take this issue further, the Applicants clearly waived the
opportunity to challenge the basis of the Board’s claim to specialized
knowledge and therefore there is no evidentiary foundation to support the
argument on judicial review.
[14]
Essentially
the same problem arises with respect to the Applicants’ contention that the
Board should have addressed other documents which were tendered to establish
their claims to persecution. Some of those documents contained identification
information which arguably could corroborate the primary identification
documents which they were relying upon.
[15]
While
it is correct that the Board made no mention of the potential significance of
those collateral documents, it is also the case that the attention of the Board
was not drawn to this point. If the documents had insufficient evidentiary
value to warrant any specific comment from the Applicants’ counsel, it is not
surprising that the Board apparently did not factor them into its authenticity
assessment. On this point I adopt the view of the Federal Court of Appeal in Canada (Minister of
Citizenship) v. Ranganathan, [2001] 2 F.C. 164 (C.A.), [2000] F.C.J. No.
2118 where the Court reflected on this problem in the following passage:
I am of the view that the Board cannot be
faulted for not having addressed in its reasons the fact that Tamils are not
allowed to reside in Colombo for more than three days. It
appears from a version of the transcript of the hearing before the Board that
the respondent was represented by counsel at the hearing and never raised that
issue with the Board. The burden was on the respondent to establish that living
in Colombo was not an internal flight
alternative because of the alleged three-day policy. One would have expected
her to raise that issue if it was really a serious concern to her. But she did
not and the Board was entitled to assume that this was a non-issue especially
as she had lived there for four years before departing for Canada in 1997.
[16]
The
argument that the Applicants should have been warned about the Board’s doubts
about Ms. Liu’s explanation for tendering the forged RIC’s has no merit. Ms.
Liu was given the opportunity to explain how they came to possess these
documents. Anything beyond the explanation that she gave would presumably have
called for speculation. She was also well aware of the Board’s concern that
the family had relied upon forged documents to establish their identity. Given,
as well, that the Applicants were represented at the hearing, nothing prevented
them from offering additional details to advance any helpful point the Board
may have overlooked in its questioning. The points which the Board later
expressed scepticism about were obvious and did not require any forewarning
beyond what was given.
[17]
The
Applicants’ arguments about the hukou are similarly unmeritorious. The Board
was entitled to be concerned about the appearance of the hukou and Ms. Liu was
questioned about its condition. The findings that it appeared to have been
taken apart and reassembled and that it also contained dating anomalies were
obvious and did not require forensic analysis. These are the types of
common-sense observations that the Board may rely upon to draw conclusions
about the authenticity of identity documents: see Hossain v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 160 at para. 4, Wang
v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 590, [2001] F.C.J. No. 911 at
paras. 18 and 19, Akindele v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 37, [2002] F.C.J. No. 68 at
para. 5 and Adar v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 695 at para. 16.
[18]
Having
concluded that the Applicants had failed to establish their identity, the Board
determined that it need not go further to consider their evidence of
persecution. It is well established that proof of identity is a pre-requisite
for a person claiming refugee protection. As was stated in Jin v. Canada (Minister of
Citizenship and Immigration), 2006 FC 126, [2006] F.C.J. No. 181, without
the foundation of identity there can “be no sound basis for testing or
verifying the claims of persecution or, indeed, for determining the Applicant’s
true nationality” (para. 26); see also Husein v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. 726.
[19]
In
the result, this application is dismissed. Neither party proposed a certified
question and no issue of general importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed.
“ R. L. Barnes ”
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