Date:
20130308
Docket:
IMM-5710-12
Citation:
2013 FC 256
Ottawa, Ontario,
March 8, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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ZHEN XIANG
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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]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [the Board],
dated May 15, 2012, where the Board determined that the applicant is not a
Convention refugee or person in need of protection.
I. Background
[2]
The
applicant alleges the following facts in support of her application.
[3]
The
applicant claims she is from the Fujian province in the People’s Republic of China [China]. She alleges that she was depressed after discovering her husband’s infidelity in
December 2008 and that a friend introduced her to Christianity in order to help
her. She claims she attended her first house church service on February 15,
2009, became a regular attendee every Sunday night along with 32 others, and
was baptized in China on January 10, 2010.
[4]
The
applicant alleges that on September 29, 2010, the Public Security Bureau [PSB]
raided her church and she went into hiding at her cousin’s home. She claims
that while she was in hiding, she learned that the PSB went to her home two
days later. They allegedly accused her of being involved in illegal underground
church religious activities and of being a key member of an anti-government
cult. She claims they also mentioned they had arrested some of her fellow
believers. They allegedly proceeded to search the applicant’s home and
interrogate her family members. The applicant claims that the following day,
they left a summons for her arrest at her home, and also went to her parents’,
in-laws’ and brother’s homes to look for her.
[5]
Feeling
unsafe in China, the applicant decided to come to Canada. She arrived in Canada on November 17, 2010 and claimed refugee status on November 22, 2010. She attempted
to contact her fellow believers in China but was unsuccessful, and she has no
other information about the believers who were allegedly arrested. She claims
the PSB have continued to visit her home several times.
[6]
At
the hearing, the Board produced enlargements of the photo on the applicant’s
Resident Identity Card [RIC] and the photo Citizenship and Immigration Canada
[CIC] took of the applicant when she applied for refugee protection [the CIC
photograph].
[7]
The
determinative issue for the Board was that it could not determine the
applicant’s personal identity or that she was a citizen of China. The Board reviewed the five documents the applicant submitted to establish her identity: a
second generation RIC, a Household Register [Hukou], a marriage certificate, an
arrest summons, and a business license.
[8]
The
Board did not question the authenticity of the RIC, but concluded that on a
balance of probabilities, the RIC did not identify the applicant. The Board
stated that as an RIC is the most important document to establish the
applicant’s identity as a national of China, it drew a negative inference in
regard to the applicant’s credibility. The Board based its finding on the RIC
on the following considerations:
-
The
applicant did not know the correct age for when the RIC is issued to a Chinese
citizen;
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The
applicant was not able to accurately describe the basic colour, structure and
uses of the RIC;
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The
individual shown in the photograph on the RIC did not appear to have similar
features to the photograph of the applicant taken at the time of her
application for refugee protection, particularly obvious differences in regards
to shape of the face, nose, and ears, as well as hairline and eyebrows, and the
Board was not satisfied with the applicant’s explanation that she had gained
over ten pounds;
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Documentary
evidence on the RIC indicated that genuine cards can be fraudulently obtained.
[9]
The
Board also found that the authenticity of the Hokou was questionable and
accordingly gave it little weight as an identity document. The Board stated that
its findings with respect to the RIC negatively impacted the authenticity of
the applicant’s Hokou given that the Hokou bore the claimant’s alleged RIC
number. The Board also noted that the only other documentation the applicant
provided that contained her photograph was her marriage certificate, for which
the corner containing her photograph had been torn. The photograph was allegedly
torn by the applicant when she learned of her husband’s infidelity. The Board
also considered documentary evidence stating that counterfeit Hokou booklets
are common and can be purchased easily on the black market.
[10]
The
Board gave no weight to the other identity documents because they did not have
any photographs on them.
[11]
Accordingly,
the Board found that the applicant had failed to produce sufficient credible
documents and evidence to establish her identity as a national of China, and had not satisfactorily explained why they were not provided. The Board found
that as the applicant had knowingly submitted false documents, she was not a
credible witness and the credibility of her entire account was cast into
serious doubt. The Board concluded that as the applicant’s identity had not been
established, there was no need to analyze the rest of the evidence of the
claim.
II. Issues
[12]
The
applicant raised the following issues:
A. Did
the Board breach the duty of procedural fairness by failing to provide the
applicant with reasonable notice of its concern that the photograph contained
in the applicant’s RIC did not depict her?
B. Did
the Board erroneously conflate the issue of the applicant’s personal identity
with her nationality?
III. Standard
of review
[13]
It
is well-established that the appropriate standard of review for issues of
procedural fairness is correctness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43). As such, no deference is
owed to the Board on the first issue (Dunsmuir v New Brunswick, 2008 SCC
9 at para 50).
[14]
The
Board’s conclusion regarding the applicant’s identity is exclusively
fact-driven, and is therefore reviewable on the reasonableness standard (Su
v Canada (Minister of Citizenship and Immigration), 2012 FC 743 at para 5 [Su]).
Accordingly, with respect to the second issue, the Court will consider “the
existence of justification, transparency and intelligibility within the
decision-making process” and “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at para 47).
IV. Analysis
A. Did the Board Breach
the Duty of Procedural Fairness by Failing to Provide the Applicant with
Reasonable Notice of its Concern that the Photograph Contained in the
Applicant’s RIC did not Depict her?
[15]
While
the applicant was aware that her identity would be an issue at the hearing, the
Board’s screening form indicated that only “Affiliation:
Political/Religious/Social/Family” would be an issue to the claim (page 40 of
the Tribunal Record). On the screening form, no other subordinate boxes were
checked off under the heading of “Identity”, such as the applicant’s “Civil
Status (name, date & place of birth, marriage” or “Country(ies) of
Reference (Citizenship, multiple nationality, residency status,
statelessness”. Notwithstanding that the photograph at issue (the RIC
photograph) was provided by the applicant herself to the Board, the Board had a
duty to notify the applicant of its concerns about the photographic inconsistencies
prior to the hearing. The applicant’s ability to deal with issues concerning
her identity raised by the Board during the hearing was compromised by the
Board’s failure to notify the applicant on the screening form that there were
inconsistencies in the photographs that would end up being determinative of the
decision.
[16]
As
Justice Russell Zinn pointed out in Lin v Canada (Minister of Citizenship
and Immigration), 2010 FC 108 at para 31:
I reject this submission entirely. I accept the
submission of the respondent that when, on this form, a main box is checked,
such as Credibility, but none of the subordinate boxes under that heading are
checked, it puts the applicant on notice that all of the issues in the
unchecked subordinate boxes are at issue. It is only when some of the
subordinate boxes are checked and some not that the applicant is alerted that
those unchecked under the heading are not at issue.
[17]
The
Board was therefore procedurally unfair in not alerting the applicant prior to
the hearing that her photographic inconsistencies would be an issue with
respect to confirming her identity.
[18]
Moreover,
the Board also failed to disclose prior to the hearing that blown-up copies of
the applicant’s photographs would be put to her to question her identity. As
Justice Gibson stated in Nrecaj v Canada (Minister of Employment and
Immigration), [1993] 3 FC 630 at paras 22-23:
But sharing of the interview notes was provided in
this case at the resumed hearing on April 13, 1992. Did that meet the
obligation that I find to exist on the RHO and the CRDD? The short answer is,
"no". To adequately meet the test of fairness, disclosure must be
timely. It must be sufficiently timely to allow counsel to fully and
effectively fulfill his or her role and to allow the party requesting disclosure
to prepare. In this case, that obligation was not met.
It was argued before me by counsel for the
respondent that the hearing notes and the contradiction in the applicant's
testimony that they were used to establish were not critical to the CRDD's
decision; that without their use and the establishment of the particular
contradiction, the decision would have been the same. That is not for me to
speculate on. It is sufficient that I find a breach of fairness, as I do, to
justify referring this matter back for rehearing. It will be for another panel
of the CRDD to determine the impact of a remedying of that breach.
[19]
Accordingly,
I find the Board’s decision procedurally unfair.
[20]
Counsel
for the applicant requested the following question to be certified: Is it a
breach of natural justice and/or procedural fairness for the RPD to determine a
claim for refugee protection on the basis of an issue not identified on the
screening form?
[21]
I
do not consider this to be of significant general importance to so certify the
question.
B. Did the Board
Erroneously Conflate the Issue of the Applicant’s Personal Identity with her
Nationality?
[22]
I
find no legitimate basis for the applicant’s argument on this issue. Justice
Judith Snider articulated the proper approach to the issue in Su v Canada (Minister of Citizenship and Immigration), 2012 FC 743 at para 3:
Proof of identity is a pre-requisite for a person
claiming refugee protection as without it there can "be no sound basis for
testing or verifying the claims of persecution or, indeed for determining
the Applicant's true nationality" (Jin v Canada (Minister of
Citizenship and Immigration), 2006 FC 126 at para 26, [2006] FCJ No 181
(QL); see also Liu v Canada (Minister of Citizenship and Immigration),
2007 FC 831 at para 18, [2007] FCJ No 1101 (QL)).
[23]
While
the Board here did not undertake an analysis of the applicant’s true
nationality independent of its determination that the applicant’s identity was
not established, following Su, above, there would have been no sound
basis for the Board to do so. Therefore, in my opinion, the Board did not err
by failing to analyze the applicant’s nationality independent of its identity
finding.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
applicant’s application for judicial review is allowed, and the matter is
referred to a different Board member for redetermination;
“Michael D. Manson”
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