Docket: IMM-3772-14
Citation:
2015 FC 723
Toronto, Ontario, June 8, 2015
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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YING YI DAI
YI HUANG
YING XIN HUANG
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of a member (Member) of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (RPD) dated April 15, 2014, in which
the Member rejected the Applicants’ claim for refugee protection made pursuant
to ss 96 and 97, respectively, of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA).
Background
[2]
The Principal Applicant, Ying Yi Dai, was
appointed as the Designated Representative of her daughters, Yi Huang and Ying
Xin Huang (Minor Applicants). The Applicants allege that they are citizens of
China. The Principal Applicant alleged that she fears persecution by the
Chinese government because of her Christian religion.
[3]
Based on the totality of the evidence the Member
found, on a balance of probabilities, that the Applicants had not established
their personal identity, nationality or presence in China at the relevant
times. Jurisprudence establishes that where identity is not established, it is
unnecessary to further analyze the claim.
[4]
By Order dated April 28, 2015, then counsel for
the Applicants was, at his request, removed as solicitor of record, the motion
record materials indicating that the Applicants had returned to China without
forwarding an address or contact information. At the hearing before me the
Applicants were not represented, however, their written representations and
other materials found in their application record were taken into consideration
in reaching this decision.
Issues
[5]
The issues in this matter can be framed as
follows:
i.
Did the Member err in her assessment of the identity
documents?
ii.
Did the Member breach the duty of procedural
fairness?
Standard of Review
[6]
The standard of review of the RPD’s assessment
of an applicant’s identity is a factual matter and attracts the reasonableness
standard (Gulamsakhi v Canada (Citizenship and Immigration), 2015 FC 105
at para 5; Diarra v Canada (Citizenship and Immigration), 2014 FC 123 at
18; Liu v Canada (Citizenship and Immigration), 2012 FC 377 at para 8 [Liu];
Wang v Canada (Citizenship and Immigration), 2011 FC 969; Aguebor v
Canada (Minister of Employment and Immigration), [1993] FCJ No 732 at para
4 (FCA); Rahal v Canada (Citizenship and Immigration), 2012 FC 319 at
paras 22, 48 [Rahal]). In applying the standard of reasonableness, the
Court will be concerned with the justification, transparency and
intelligibility of the decision-making process and also with whether the
decision falls within a range of possible, acceptable outcomes in respect of
the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
[7]
On questions of procedural fairness and natural
justice, the standard of review is correctness (Juste v Canada (Citizenship
and Immigration), 2008 FC 670 at paras 23-24; Olson v Canada (Public
Safety and Emergency Preparedness), 2007 FC 458 at para 27). Under the
correctness standard no deference is owed by the reviewing Court, which will
undertake its own analysis of the question and reach its own conclusion (Dunsmuir
at para 50; Wu v Canada (Citizenship and Immigration), 2013 FC 838 at
para 12; Etienne v Canada (Public Safety and Emergency Preparedness),
2014 FC 1128 at para 14).
Positions of the Parties
Applicants’ Position
[8]
The Applicants submit that while it may have
been open to the Member to find that the hukou was fraudulent, she erred by
failing to properly assess the remainder of the identity documents. The Member
unreasonably focused on those documents where authenticity appeared doubtful,
and ignored those documents that appeared trustworthy. The Member was bound to
fairly consider all of the documents but made no effort to ascertain the
authenticity of the other documents. Therefore, her finding on identity, which
was determinative of the entire claim, was made without considering the
totality of the evidence, and this was a reviewable error (Kabongo v Canada
(Citizenship and Immigration), 2013 FC 1086 at para 21 [Kabongo]; Mohmadi
v Canada (Citizenship and Immigration), 2012 FC 884 at paras 19-21 [Mohmadi];
Lin v Canada (Minister of Citizenship and Immigration), 2006 FC 84 at
paras 12, 14 [Lin]).
[9]
As to the birth certificate, graduation
certificate, divorce certificate and electricity bill, the Member made a
factual error in stating that the documents have no security features, as the
certificates all bore official stamps (Zheng v Canada (Citizenship and
Immigration), 2008 FC 877 at paras 18-19 [Zheng]; Ru v Canada (Citizenship
and Immigration), 2011 FC 935 at paras 49-52 [Ru]; Elhassan v
Canada (Citizenship and Immigration), 2013 FC 1247 at para 22 [Elhassan]).
Further, it was a reviewable error for the Member to rely on the fact that
fraudulent documents are easily obtained in China to impugn the reliability of
these documents, as this is an extraneous consideration (Guo v Canada (Citizenship
and Immigration), 2013 FC 400 at para 4; Lin at paras 53-54; Cheema
v Canada (Minister of Citizenship and Immigration), 2004 FC 224 at para
7). This same reliance also permeated the Member’s analysis of the driver’s
licence and resident identity card (RIC).
[10]
As to the Minor Applicants’ identity documents,
the Member’s response to the Principal Applicant’s explanation that her mother
could not find the birth certificates was a bizarre implausibility finding. Implausibility
findings should only be made in the clearest of cases, where the facts
presented are outside the realm of what could reasonably be expected. There
was nothing implausible about the Applicants’ assertion that her mother had
lost or misplaced the birth certificates (Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at para 7).
[11]
Further, it was a reviewable error and a breach
of procedural fairness for the Member to have failed to give notice to the
Principal Applicant about her concerns with the authenticity of the
immunization records and not to have given her an opportunity to respond to the
concerns (Torishta v Canada (Citizenship and Immigration), 2011 FC 362
at paras 11-13 [Torishta]).
Respondent’s Position
[12]
The Respondent notes that the Applicants have
not challenged the Member’s credibility findings pertaining to their knowledge
concerning the information contained in, or in relation to the use of, the
fraudulent Canadian passports and other matters.
[13]
As to the hukou, the Applicants do not dispute
the Member’s finding that the country documentation indicated that there should
only be one hukou per house. When asked why her mother was not listed on the
hukou, the Principal Applicant stated that she and her mother lived at the same
address but had different hukous. Given the documentary evidence, it was
reasonable for the Member to reject this evidence. The Member also set out the
reasons why she doubted the authenticity of the hukou. The Respondent submits
that the Member reasonably held that the hukou was not genuine and that the
Applicants have not challenged or raised a reviewable error with that finding.
[14]
The Member also drew a reasonable negative
inference based on the fact that the driver’s licence was for a car, yet the
Principal Applicant’s evidence was that she did not drive a car, rather, she
drove a motorcycle. Motorcycles were not included by the subject licence. The
Applicants do not challenge or raise a reviewable error with this inference.
Instead, they allege that the Member unreasonably concluded that the licence
was fraudulent because their hukou was fraudulent. However, there is no basis
to that claim.
[15]
As to the graduation certificate issued in 1992,
the birth certificate issued in 1996, the divorce certificate issued in 2008
and the electricity bill, the Member reasonably held that these documents
failed to establish the Principal Applicant’s identity, for the reasons she set
out. Contrary to the Applicants’ submissions, the Member did not conclude that
these documents failed to establish her identity simply because her hukou was
fraudulent. All of the documents were critically assessed and reasons were
provided as to why they failed to establish the Principal Applicant’s
identity.
[16]
The Applicants do not dispute that these
documents do not establish that they lived in China at the relevant times.
Instead, they allege that the Member’s finding that the documents contain no
security features and can be fraudulently obtained renders the entire decision
unreasonable. However, these findings only supported the Member’s
determinative findings regarding each specific document, which the Applicants
do not challenge. This is distinguishable from the case law cited by the
Applicants, where the Court held that it was unreasonable to dismiss the
authenticity of documents simply because fraudulent documents are readily
available in China.
[17]
In any event, whether or not the Member was
unreasonable in finding that those documents contained no security features,
this does not affect her finding that none of the documents, even if genuine,
establish that the Principal Applicant was living in China during the relevant
time period.
Analysis
[18]
As acknowledged by the Member, s 106 of the IRPA
states that the RPD
…must take into account, with respect to the
credibility of a claimant, whether the claimant possesses acceptable
documentation establishing identity, and if not, whether they have provided a
reasonable explanation for the lack of documentation or have taken reasonable
steps to obtain the documentation.
The Refugee Protection Division Rules,
SOR/2012-256 (RPD Rules) state that the claimant must provide acceptable
documents establishing their identity and other elements of their claim. A
claimant who does not provide acceptable documents must explain why they did
not provide the documents and what steps they took to obtain them (RPD Rule
11).
[19]
It is well established that if a claimant does
not establish their identity, the RPD need not consider the merits of the putative
refugee’s claim and may reject it out of hand (Liu at para 6; Flores
v Canada (Minister of Citizenship and Immigration), 2005 FC 1138 at paras 7,
9; Rahal at para 47).
[20]
As stated in Toure v Canada (Citizenship and
Immigration), 2014 FC 1189 [Toure]:
[31] The Applicant claiming refugee
status must first establish her identity before the RPD (Rule 11 of the Refugee
Protection Division Rules, SOR/2012-256 and section 106 of IRPA). The
Applicant has a high onus to produce acceptable documentation establishing her
identity (Su v Canada (Minister of Citizenship and Immigration), 2012 FC
743, [2012] FCJ No 902 at para 4 [Su]). When making identity findings, the RPD
must take into account the totality of the evidence related to the identity of
the refugee claimant (Yang v Canada (Minister of Citizenship and
Immigration), 2009 FC 681, [2009] FCJ No 848 at para 6 [Yang]). If
the Applicant does not establish her identity, the RPD can then draw a negative
conclusion as to her credibility (Matingou, supra at para 2).
[32] It is also well established that
the issue of identity is at the very core of the RPD’s expertise and this Court
should be cautious about intervening on such decisions (Barry v Canada
(Minister of Citizenship and Immigration), 2014 FC 8, [2014] FCJ No 10 at
para 19 [Barry]). Justice Gleason further states in Rahal v Canada
(Minister of Citizenship and Immigration), 2012 FC 319, [2012] FCJ No 369
at para 48 [Rahal]:
[…] In my view, provided that there
is some evidence to support the Board’s identity-related conclusions, provided
the RPD offers some reasons for its conclusions (that are not clearly
suspicious) and provided there is no glaring inconsistencies between the
Board’s decision and the weight of evidence in the record, the RPD’s
determination on identity warrants deference and will fall within the purview
of a reasonable decision. In other words, if these factors pertain, the
determination cannot be said to have been made in a perverse or capricious
manner or without regard to the evidence.
[21]
In Rahal Justice Gleason also stated that
the approach required of the RPD is holistic: “the
Court must examine all the reasoning on the point in its totality in light of
the record to evaluate whether the Board’s conclusion is reasonable” (Rahal
at para 50).
[22]
Although the Applicants in this matter submit
that the Member in her decision erred by failing to consider the totality of
the evidence, I do not agree with that submission.
[23]
The Member noted that a passport and RIC are
primary identification documents but that the Principal Applicant did not
submit a passport and submitted only a photocopy of her RIC, which lacked the
significant security features, including a microchip, that would have been
contained in the original. The Member did not accept the Principal Applicant’s
explanation for this. The Member also found that the Principal Applicant’s
testimony in regard to her travel to Canada was not credible and, as the
Respondent points out, this finding has not been challenged.
[24]
The Member also considered the hukou, noting
that: it had no security features; that the Principal Applicant’s explanation
that her mother was not listed on the hukou, but had her own hukou for the same
address, was inconsistent with the documentary evidence that each household is
issued only one hukou; and, that she had concerns with the appearance of the
document. Based on this, the Member concluded that the document was not
genuine. Further, that the Principal Applicant had the means and ability to
secure fraudulent documents and knowingly did so. This could impact the weight
assigned to other documents submitted, particularly where they are
interrelated, and on the overall credibility of the claimant.
[25]
The Member referenced Sertkaya v Canada
(Minister of Citizenship and Immigration), 2004 FC 734 [Sertkaya], for
the proposition that it is open to the RPD to consider the authenticity of
documentary evidence and the ability of a claimant to obtain and use fraudulent
documents, as well as Rasheed v Canada (Minister of Citizenship and Immigration),
2004 FC 587 [Rasheed], for the proposition that foreign documents
purporting to have been issued by a competent foreign public official should be
accepted as evidence of their content unless there is some valid reason to
doubt their authenticity.
[26]
The Member explicitly considered the Principal Applicant’s
driver’s licence and gave it no probative value, not just because the Principal
Applicant had already submitted a fraudulent document, but also because the
licence did not pertain to motorcycles and, therefore, it was not consistent
with her evidence that she drove a motorcycle. It is true that the Member made
no finding on the authenticity of the licence, although she did question its
pristine condition given that it had been issued in 2011. However, even if the
Member had found the document to be genuine, her weighing of its evidentiary
value was still reasonable given her concern that the licence was not
consistent with the Principal Applicant’s evidence that she operated a
motorcycle.
[27]
The Member also considered each of the
graduation certificate, birth certificate, divorce certificate and electricity
bill. The Member incorrectly found that the certificates had no security
features when, in fact, they all bore official stamps. This Court has held
that official stamps do constitute security features for the purposes of
evaluating authenticity (Elhassan at para 22; Ru at para 21; Zheng
at para 18). However, this error alone is not sufficient to render the
decision unreasonable. The Member had already set out her concerns about the
primary identity documents: the lack of a passport or, an original RIC and an
inauthentic hukou. The certificates were, in effect, secondary sources with
lesser evidentiary value.
[28]
Further, the Member also pointed out the
graduation certificate issued in 1992 and the birth certificate re-issued in
2008 did not establish that the Principal Applicant had been in China since
1992, as the birth certificate could have been re-issued from outside the
country or when the Applicant was visiting. The divorce certificate, even if
genuine, did not indicate that the Principal Applicant was in China when she
obtained it, and the electricity bill could have been issued in her name while
she was out of the country as her mother continued to live in that home. The
Applicant has not challenged this finding. The Member also addressed
the Summons.
[29]
In sum, the Member did consider the totality of
the evidence. She addressed each of the documents submitted by the Applicants
as well as credibility concerns that arose from the Principal Applicant’s
testimony and the explanations offered by the Principal Applicant. This is not
a situation where the RPD impugned one identification document on the basis of concerns
with underlying documents, resulting in its limiting of its assessment of that
document (Mohmadi). Nor is it a situation where the RPD erred by
ignoring submitted identity documents or by assuming without further comment
that some were not genuine merely because another document had been tampered
with (Kabongo).
[30]
The Member, when weighing the probative value of
the driver’s licence, the certificates, the electric bill and the Summons, also
considered the fact that the Principal Applicant had submitted a fraudulent
document and, in the case of the latter documents, the ready availability of
fraudulent documents in China. However, these were not the sole bases upon
which the documents were assessed and weighed. Further, the Member was
entitled to draw adverse conclusions on credibility from the Principal Applicant’s
use of fraudulent documents (Sertkaya; Tan v Canada (Citizenship and
Immigration), 2013 FC 911 at para 9; Neethinesan v Canada (Minister of
Citizenship and Immigration), 2004 FC 138 at paras 9-10, 15).
[31]
As to the Minor Applicants’ identity documents,
the burden was on the Applicants to establish their identity (IRPA, s 106; Rasheed
at para 13). The only documents submitted that tied their nationality and
residence to China were the hukou, which the Member reasonably found not to be
genuine, and immunization records.
[32]
The absence of the birth certificates was
addressed with the Principal Applicant. She had testified, in connection with
her driver’s licence, that the reason it appeared brand new and smelled
strongly of mothballs was that her mother had carefully stored the Applicants’
identity documents in a drawer (CTR at 545). When asked why then her mother
could not locate the birth certificates, the Principal Applicant testified that
“I … I had told her to find those carefully, but maybe
sometimes if she took those out and then she did not remember where she put
them back” (CTR, pp 545-46). In my view, the Member’s finding that this
explanation was purely speculative was, in the absence of any other evidence,
reasonably open to her. As to her finding that it was implausible that the
Principal Applicant would have entrusted her mother with finding and sending
her the documents if her mother was not competent to do so, I agree with the
Applicants that the implausibility finding was not well grounded. However,
little turns on the point, given that the explanation that the Principal
Applicant offered as to why her mother could not locate the birth certificates
was reasonably not accepted by the Member.
[33]
The Applicants also assert that a reviewable
error and breach of procedural fairness arise from the failure of the Member to
give notice to the Principal Applicant about her concerns with the authenticity
of the immunization records and an opportunity to respond. In this regard they
rely on Torishta. In that case Justice Rennie was considering a letter
which, on its face, appeared legitimate. He stated that if the RDP was of the
view that the letter was not authentic and relied on specialized knowledge to
impugn it as fraudulent, then the RPD should have said so and provided the
applicant with the opportunity to respond. This was a breach of procedural
fairness as well as of Rule 18, which requires that before using any
information or opinion that is within the RPD’s specialized knowledge it must
notify the claimant of this and provide an opportunity to respond. In this
instance, the Member in her reasons did not state that she was relying on
specialized knowledge. Further, the Member had made her suspicion that some of
the documents were not authentic, albeit not specifically singling out the
immigration records. The Applicants were afforded the opportunity to respond to
the concern at large and did so. In any event, the immigration records do not
establish the Minor Applicant’s identity.
[34]
In conclusion, the burden was on the Applicants
to establish their identity. The Member did consider the totality of the
evidence (Toure at paras 31, 34; Yang v Canada (Citizenship and
Immigration), 2009 FC 681 at para 6), and the assessment of the weight to
be given to documents is a matter within the discretion of the Member (Zheng
at para 18; Tkachenko v Canada (Minister of Citizenship and Immigration),
2005 FC 1652 at para 11; Ipala v Canada (Minister of Citizenship and
Immigration), 2005 FC 472 at para 31). The issue of identity is at the
very core of the RPD’s expertise and the Court should be cautious about
intervening in such decisions (Toure at para 32; Barry v Canada (Citizenship
and Immigration), 2014 FC 8 at para 19; Rahal at para 48).
Having reviewed the decision and the materials filed by the parties, I am of
the view that the Member’s conclusion as to identity falls within the range of
possible, acceptable outcomes that are defensible in respect of the law and the
facts.
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