Date: 20071005
Docket: IMM-5282-06
Citation: 2007 FC 1030
Ottawa, Ontario, October 5, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
WEN HUI LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Wen Hui Li
claims to be a citizen of the People’s Republic of China (China) and to have a
well-founded fear of persecution in China because he is a Falun Gong
practitioner. Mr. Li’s claim for refugee protection was dismissed by the
Refugee Protection Division of the Immigration and Refugee Board (RPD or Board)
because he failed to provide sufficient credible or trustworthy evidence to
establish his identity.
[2] This
application for judicial review of that decision is dismissed because Mr. Li
failed to establish that the Board's identity finding was patently unreasonable
and failed to establish that the Board erred by failing to consider all of the
evidence.
[3] Mr.
Li asserts that the Board committed the following errors:
1. The Board erred by describing the passport Mr. Li used to
leave China as being "a false Chinese passport".
2. The Board erred by drawing a negative inference from Mr. Li's
failure to corroborate his travel itinerary to Canada.
3. The Board erred by rejecting the documents tendered by Mr. Li
to establish his identity.
4. The Board erred by giving no weight to a copy of a summons Mr.
Li said was issued against him in China.
5. The Board erred by failing to consider the merits of Mr. Li's
claim for protection in respect to the issue of his identity.
STANDARD OF REVIEW
[4] The
first four asserted errors go to findings of fact made by the Board. Those
findings are to be reviewed on the standard of patent unreasonableness. The
final asserted error is one of law, reviewable on the standard of correctness.
APPLICATION OF THE STANDARD
OF REVIEW TO THE DECISION
1. Did the Board err by describing
the passport Mr. Li used to leave China as being "a false
Chinese passport"?
[5] In
his original Personal Information Form (PIF), Mr. Li described this passport to
be genuine. At the hearing, Mr. Li amended his PIF to describe the passport as
being of unknown authenticity. He testified that he was given the passport by
his snakehead and that it looked to him to be genuine. Mr. Li, therefore,
argues that the Board erred by describing the passport as false or fraudulent.
[6] In
my view, this submission ignores Mr. Li's further testimony that he was never
issued a genuine passport by the government of China and that, in September of
2005, his wife was told that the passport was false. In view of that evidence,
the Board's characterization of the passport as false or fraudulent was not
patently unreasonable.
2. Did the Board err by drawing
a negative inference from Mr. Li's failure to corroborate his travel itinerary
to Canada?
[7] Mr.
Li argues that the Board erred by connecting its negative finding about his
failure to substantiate his travel itinerary with the issue of his identity.
Further, the Board's interpretation of the decisions in Ramanathan v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1062, and Kazadi
v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 349, is said to be erroneous.
[8] In
my view, the Board did not err as alleged. The Board's analysis of Mr. Li's
identity was related to its assessment of his credibility. It was not patently
unreasonable for the Board to draw a negative inference regarding Mr. Li's
credibility based upon the fact that he had no passport, plane ticket, or
boarding pass. Those documents would have provided, at the least, evidence
about where Mr. Li's journey to Canada commenced. See, for example, Elazi
v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 212, and Kazadi, cited above.
[9] As
for the Board's reference to Ramanathan and Kazadi, both
decisions were relevant to the RPD's decision because they discussed the
importance of corroborative evidence and travel documents. However, it is
important to remember that the appropriateness of any inference drawn by the
RPD in a particular case depends not so much upon the jurisprudence as it does
upon the evidence before the Board. In this case, the negative inference was
grounded in the evidence before the RPD.
3. Did the Board err by rejecting
the documents tendered by Mr. Li to establish his identity?
[10] The
documents in question are his hukou, his resident identity card, Mr. Li's
daughter's birth certificate and his marriage certificate.
[11] With
respect to the hukou, the Board:
- drew a negative inference from the fact that the type of
household on the hukou was said to be "Family". Documentary evidence
stated that the status of a household is categorized as agricultural (rural) or
non-agricultural (urban);
- drew a negative inference from the fact that the section
pertaining to "No. Of Household" was left blank. This information
was said to be the most important information found on a hukou;
- drew a negative inference from the fact that Mr. Li testified
that his parents lived at the same address as he did, yet they had their own
hukou. The documentary evidence stated that a household cannot have two
non-identical hukou's;
- noted that the documentary evidence indicated that the use of
fraudulent hukou documents was common in China.
[12] Each
of these findings of the Board was supported by the evidence. As such, the
findings were not patently unreasonable. Additionally, the first negative
inference was supported by Mr. Li's own oral evidence that his household
type was "rural".
[13] The
resident identity card was acknowledged by the RPD to exhibit the expected
security features. However, the documentary evidence indicated that:
The Resident ID card is a uniform
legal document issued by the state to identify the status of the civilian … An
important official identity document … [b]oth 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.
[14] Mr.
Li testified that he had received two resident identity cards, that he never
read the cards and that he had no need to worry about his card expiring because
the government would issue a new card when required. The Board rejected that
testimony, finding that a genuine resident of China would know the general
information with respect to the frequency of issuance of resident identity
cards. When coupled with the evidence that the hukou was fraudulent and the
evidence that fraudulently obtained but legitimately produced resident identity
cards are obtainable and in circulation, the Board gave no probative value to
the resident identity card. Again, I find the RPD’s conclusion was grounded in
the evidence and was not patently unreasonable.
[15] The
Board's reliance upon both Mr. Li's oral evidence about the card and the
documentary evidence regarding the prevalence of fraudulently obtained identity
cards makes this finding distinguishable from the impugned finding Mr. Li
relies upon in Lin v. Canada (Minister of Citizenship and Immigration),
[2007] F.C.J. No. 15.
[16] Documentary
evidence before the Board established that a genuine birth certificate would
contain the name of the child's mother and father, their race and their
resident identification number. The RPD drew a negative inference from the
fact that the daughter's birth certificate did not contain the identification
numbers of her parents and accorded no probative value to the certificate. This
inference was nourished by the documentary evidence and so was not patently
unreasonable.
[17] The
Board went on to draw a further negative inference from the fact that Mr. Li
produced an original copy of the birth certificate on the basis that the documentary
evidence stated that the relevant government office retained records of birth
certificates. In my view, the documentary evidence did not support this
negative inference because it did not establish that parents would not be
provided with an original certificate. However, in view of the failure of the
birth certificate to contain all of the required information, I find this error
was not material to the Board's decision. The RPD had a valid reason for
giving no weight to the birth certificate.
[18] Finally,
the RPD gave no weight to Mr. Li's marriage certificate because it was obtained
on the strength of the resident identity card and the hukou. Manifestly, it
would have been preferable for the Board to have addressed this document
directly, as opposed to dismissing it on a derivative basis. However, given the
Board's finding with respect to Mr. Li's credibility (for example, no challenge
is made to the Board's finding that it was incredible that Mr. Li would not be
able to recall the false identity he had assumed in order to travel to Canada)
and its treatment of the other identity documents, I am satisfied that the
marriage license was not by itself capable of establishing Mr. Li's identity.
Thus, any error with respect to the Board's treatment of this document was not
material to its decision.
4. Did the Board err by giving
no weight to a copy of the summons?
[19] Mr.
Li also produced a summons that he said was left with his family in China, which
required him to appear before the People's Court in respect of his involvement
in an illegal Falun Gong gathering.
[20] In
order to find that the summons was not a reliable document, the Board relied
upon inconsistencies between it and samples of summonses attached to a Response
to Information Request. The evidence of the sample summonses provided a proper
evidentiary basis for the RPD's conclusion and its finding cannot be said to be
patently unreasonable.
5. Did the Board err by failing
to consider the merits of Mr. Li's claim to protection in respect to the issue
of his identity?
[21] Mr.
Li argues that the Board erred by failing to consider the merits of his claim
in respect of the determination of his identity. He says that if he provided
particularly compelling evidence about his experience in China, such evidence
would have had a bearing on the Board's assessment of the identity issue.
[22] I
agree that, as a matter of law, the issue of an applicant's identity should be
determined on the totality of the evidence before the RPD. See, for example, Lin
v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 104 at paragraph 10. However, in the present case, aspects of Mr.
Li's testimony were found to be incredible. Further, the Board was not obliged
to refer to all of the evidence before it. Mr. Li has failed to point to any
particularly telling evidence about his experiences in China from which the
Court might infer that the Board failed to consider all of the evidence before
it. It follows that he has failed to establish that the Board did not consider
the totality of the evidence.
[23] For
these reasons, the application for judicial review is dismissed.
[24] Counsel
posed no question for certification, and I am satisfied that no question arises
on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
“Eleanor R. Dawson”
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