Date:
20131028
Docket:
IMM-11045-12
Citation:
2013 FC 1080
Toronto, Ontario,
October 28, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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MING TRANG TRAN
VICKY TRAN
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Applicants
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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]
The
present Application concerns a challenge by a mother (Applicant) and her 12
year-old daughter who claim refugee protection based on a well-founded fear of
persecution in Vietnam as Catholic Christians. In a decision dated September
21, 2012 the Refugee Protection Division of the Immigration and Refugee Board
(the RPD) rejected the Applicants’ claims and found that there is no credible
basis for the claims.
[2]
At
the outset of the decision under review, the RPD states the key elements of the
Applicants’ claim, identifies the focus of the determination of the claim, and
provides the ultimate conclusion resulting in rejection of the claim:
[1] Ming Trang Tran, and her
minor daughter, Vicky Tran allege that they are citizens of Vietnam, and claim
refugee protection pursuant to section 96 and subsection 97(1) of the
Immigration and Refugee Protection Act (IRPA). Ming Trang Tran (the principal
claimant) acted as the Designated Representative of her minor daughter.
ALLEGATIONS
[2] The principal claimant
alleges that she travelled illegally from her home in Southern Vietnam to
Taiwan. The claimant alleges that she eventually obtained a one year temporary
work permit to remain in Vietnam [sic]. The clamant worked as a housekeeper for
a man and became pregnant with his child. The claimant alleged that she was
physically abused by her employer and that he kicked her and her daughter out
of the house just two months after the claimant gave birth to her daughter.
While in Taiwan the claimant turned to Catholicism for support.
[3] The claimant returned to
Vietnam with her daughter in December of 2000. The claimant alleges that she
and her daughter suffered verbal abuse from members of the community because
she did not have a husband. The claimant alleged that her daughter was taunted
at school. The claimant indicated that she and her daughter were discriminated
against because they were Catholic.
[4] The claimants came to Canada
through the assistance of a smuggler on luly 1, 2009. The claimants made their
claims for protection on September 1, 2009.
ANALYLSIS [sic]
[5] The panel focused its
analysis on the personal identities and nationalities of the claimants as well
as the overall credibility as a witness of the principal claimant.
CLAIMANTS' IDENTITIES AND
NATIONALITIES
[6] Upon review of all of the
identity documents presented, the principal claimant's oral testimony, and
counsel's submissions, the panel finds that the claimants have failed to
provide sufficient credible or trustworthy evidence to establish their personal
identities and nationalities. Identity most commonly refers to the name that a
claimant uses or has used to identify himself.
[3]
In
my opinion reading the decision as a whole it is readily apparent that the RPD
Member was preoccupied with the expectation that an applicant for refugee
protection must present “acceptable” documentation to prove his or her identity
(Decision, para. 7). Indeed, the RPD rejected the Applicants’ identity
documents on the basis that they were copies, have no security features other
than stamps, are faxes with no evidence as to when and how they were faxed, and
“were old” (Decision, para. 12). It is also readily apparent that, based on the
RPD’s documentation expectations which were not met, the Applicant’s sworn
evidence was rejected as unbelievable on virtually every critical factual issue
of the claim:
The panel assigned a significant
negative inference to the claimants' failure to provide sufficient credible or
trustworthy documents in support of their identities and nationalities, and
to her provision of a Family Register and Birth Certificate whose authenticity
was questionable at best. [Emphasis added] (Decision, para.14)
[4]
In
my opinion the process of decision-making engaged by the RPD Member concerned
is fundamentally flawed and contrary to law. In reaching a conclusion on the
identity of an applicant who claims refugee protection, the Applicant’s sworn evidence
is presumed to be true unless there are reasons to doubt its truthfulness (Maldonado
v. M.E.I., [1980] 2 F.C. 302 (C.A.), p. 305) and the quality of the
decision-making in reaching a credibility finding must be high:
In my view, the board was under a
duty to give its reasons for casting doubt upon the appellant's credibility in
clear and unmistakable terms. The board's credibility assessment, quoted supra,
is defective because it is couched in vague and general terms (Hilo v.
Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d)
199 at para.6) (C.A.).
[5]
Except
in the case of a clear and substantiated finding of fraud that casts a shadow
over the entirety of an applicant’s evidence, the rejection of irregular
identity documentation, nevertheless, leaves sworn testimony on the issue of
identity un-assailed. In the decision under review there are no clear reasons
provided for not accepting the Applicant’s sworn evidence in support of the
claim, including a finding that the Applicants tendered a fraudulent claim,
which in my opinion is apparently what was in the RPD Member’s mind throughout.
[6]
An
example of this mindset on the part of the RPD Member is with respect to the
fact that the Applicant’s daughter speaks Mandarin. The Applicant explained that
she speaks Mandarin because she attended a Chinese language school in Vietnam
and produced a Chinese School Certificate to substantiate her evidence. The RPD
dismissed the certificate on the basis of a 2-year attendance discrepancy
between the Certificate and the Applicant’s amended PIF. However, the following
passage from the decision also discloses that impermissible suspicion, innuendo,
and unwarranted speculation were also applied in reaching the dismissal:
The panel noted that Mandarin is
spoken in many areas outside of China, including Taiwan, Malaysia, Singapore,
and Toronto for that matter. Given the minor claimant's inability to speak
Vietnamese and her ability to speak Mandarin fluently, the panel finds that it
is more likely than not that the claimant's daughter had lived in a Mandarin
speaking place before she came to Canada, and not Vietnam as the claimant
explained. This further undermined the claim to Vietnamese citizenship for the
minor claimant, as well as the country of reference for both claimants. (Decision,
para. 19)
[7]
The
statements made in paragraphs 23 and 24 of the decision raise an important and
unattended issue:
The claimants provided evidence
that they were practicing Christians in Canada; however, given that the
claimants' country of nationality and reference has not been established, the
panel finds that it does not need to address the risk of persecution for the
claimants as practicing Catholics in Vietnam.
Given the totality of the
evidence, the panel finds that the claimants have not established their
personal identities or nationalities. The jurisprudence sets out that where
identity is not established, it is unnecessary to further analyze the evidence
and the claim.
[8]
Consistent
with the Applicant’s claim that she is Vietnamese and fears return to Vietnam
as a Christian, the Applicant testified before the RPD in Vietnamese and, most
importantly, the RPD found that the Applicant is a native speaker of Vietnamese
(Decision, para. 18). This important fact was not taken into consideration in
resolving the Applicant’s nationality, and, thus, her claim for protection vis
a vis Vietnam. In my opinion, the fact should have given the RPD Member
pause for thought before reaching a conclusion on both issues. An open mind
could easily conclude that the Applicant’s native language is strong evidence
that she is who she says she is: Vietnamese. I find that the RPD’s failure to reasonably
consider this single fact as critical in determining the Applicant’s identity renders
the RPD’s decision as unreasonable.
ORDER
THIS
COURT ORDERS that the Decision under review is set aside
and the matter is referred back for redetermination by a differently
constituted panel. There is no question to certify.
“Douglas
R. Campbell”
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