Date:
20130418
Docket:
IMM-7137-12
Citation:
2013 FC 400
Toronto, Ontario,
April 18, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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FENGCUN GUO
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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]
The
Applicant, a citizen of China, claims refugee protection in Canada as a
Christian because of subjective and objective fear that should she be required
to return to China she will suffer more than a mere possibility of persecution
under s. 96 of the IRPA, or probable risk under s. 97. The present
Application concerns the rejection of her claim on what is argued by the
Applicant to be highly contentious factual findings with respect to the
Applicant’s credibility.
[2]
In
the decision under review the Applicant’s evidence that she is a Christian is
rejected on the basis of conclusions drawn with respect to two inextricably
linked features: the validity of her identity documents; and the believability
of her evidence that she is a widowed factory worker. In my opinion, if an
erroneous finding is made on one of the features, the decision is made in
reviewable error. A set out below, the decision fails on the first feature.
[3]
The
Applicant’s identity documents in question are: passport; resident identity
card; Hukou, marriage certificate; death certificate of her husband; and
employment identity card. With respect to the
first three principal means of identification, the RPD found the passport and
resident identity card to be genuine, but came to the following conclusion on
the Hukou:
The claimant provided a Hukou in support of her family composition
and personal identity. The panel noted that a forensic examination did not
reveal any problems on the face of the Hukou; however, based on the concerns
with the claimant's testimony, and concerns with the provenance of the Hukou,
the panel finds that it cannot place weight on the Hukou as a document in
support of the claimant's identity as presented. The panel found that, while it
has stamps on it, the Hukou does not contain security features. The panel noted
that the documentary evidence indicates that fraudulent documents, including
Hukous, are available throughout China. Chinese officials also issue genuine
documents to individuals who obtain such documents in a fraudulent fashion. The
claimant testified that the Hukou was sent to her separately at the end of
August; however, she was
not able to provide evidence such as an envelope to attest to when and how the
Hukou was sent to Canada. The panel also noted that the claimant provided a
marriage certificate that had been tampered with. As outlined above, submitting
a false or irregular document can have an effect on the remaining documents
submitted and the claimant's overall credibility. Given the arguments above,
the panel finds that it cannot place significant weight on the Hukou in support
of the claimant's personal identity.
(Decision,
para. 12)
[4]
In
my opinion the paragraph quoted exposes four significant reviewable errors. First,
the genuineness of the Hukou, and, indeed, all of the identity documents are
placed under suspicion by the introduction of an extraneous consideration namely
the possibility that fraud is connected to documents obtained in China. There
is no evidentiary basis for applying this fact in the present case and,
accordingly, I find that overriding suspicion was unfairly introduced into the
hearing of the Applicant’s claim.
[5]
Second,
the RPD appears to be introducing inadmissible specialized knowledge about what
to expect on the face of a genuine Hukou.
[6]
Third,
the forensic analysis of the marriage certificate did not conclude that it had
been tampered with; the finding was that because of “some misalignment…the
photo may have been tampered with” (Tribunal Record, p. 511). This
expert statement does not prove a fact on a balance of probabilities.
Therefore, the RPD erroneously found that the marriage certificate was
“fraudulent” (Decision, paras. 17 and 23).
[7]
And
fourth, in my opinion, the finding that identity documents found to be false or
irregular can have an effect on a claimant’s overall credibility must be
cautiously approached. In light of the errors just described, the RPD certainly
did not take this approach when it unfairly concluded that the Applicant is not
a Christian:
For the reasons listed above, the panel finds that
the claimant was not a wanted person in China. The panel also finds that the
claimant was not a credible witness given her use of a fraudulent identity as
the basis for her claim; and her submission of a fraudulent marriage
certificate. Given this, the panel cannot place weight on the claimant's
allegations that she was a practicing Christian in China.
[8]
As
a result, I find that the RPD’s decision to be unreasonable.
ORDER
THIS
COURT ORDERS that the decision under review is set aside
and the matter is referred back to a differently constituted panel for
redetermination.
There is no question to
certify.
“Douglas R. Campbell”
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