Docket: IMM-4057-16
Citation:
2017 FC 532
Ottawa, Ontario, May 30, 2017
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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YESHI THOPKE
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
Yeshi Thopke seeks
refugee protection in Canada. He claims to be an ethnic Tibetan and a citizen
of the People’s Republic of China who fears persecution in China because he
follows His Holiness the Dalai Lama and does not recognize China as the lawful
government of Tibet.
[2]
The Refugee Protection Division of the
Immigration and Refugee Board of Canada rejected Mr. Thopke’s claim
because it determined that he had failed to establish his identity through the
documents he provided, and because it did not find his testimony to be
credible. The Refugee Appeal Division subsequently confirmed the decision of
the RPD.
[3]
Mr. Thopke now seeks judicial review of the
RAD’s decision. He submits that the RAD erred in concluding that he failed to
prove his identity.
[4]
For the reasons that follow, I am satisfied that
the RAD’s conclusion that Mr. Thopke failed to establish his identity was
reasonable. Consequently, his application for judicial review will be
dismissed.
II.
Background
[5]
Mr. Thopke claims that he was born in Tibet,
China on May 3, 1969.
[6]
In or around 1985, when Mr. Thopke was
approximately 19 years old, he joined a Tibetan Buddhist monastery and became a
monk. Since that time he has viewed the Dalai Lama as his spiritual and
political leader.
[7]
Mr. Thopke says that he left China in 1994
when he was about 26 years old after becoming fearful that he would be arrested
for participating in demonstrations against the Chinese government. He says
that he would be persecuted if he returned to Tibet because he follows the Dalai
Lama and believes that Tibet is an independent nation under illegal military
occupation. Mr. Thopke further claims that the Chinese government
prohibits the belief that the Dalai Lama is the leader of all Tibetans, and
that Chinese police are known to target followers of the Dalai Lama for
harassment.
[8]
Mr. Thopke says that he fled China and
travelled through Nepal where he registered at the Office of the Representative
of the Dalai Lama. He then travelled to, and settled in a Tibetan colony in
Mungod, India where he continued his monastic life.
[9]
As neither Nepal nor India is a signatory to the
Convention relating to the Status of Refugees, 189 U.N.T.S. 150, Can.
T.S. 1969 No. 6, Mr. Thopke seeks refugee protection from Canada.
[10]
Mr. Thopke provided five documents to
establish his personal and national identity:
•
a certified true copy of his original Chinese
Resident Identity Card (RIC) issued in 2010;
•
a copy of a hukou, or a Chinese household
registration issued in July 2013;
•
a letter from the Office of the Representative
of the Dalai Lama in Nepal, which indicated that Mr. Thopke came from
Tibet;
•
a copy of a Tibetan Voluntary Revenue
Contribution (Freedom) Booklet, also known as a “Green
Book”; and
•
an Identity Certificate issued by the Government
of India.
[11]
At the RPD, Mr. Thopke testified that he
had also had an Indian Registration Certificate - a document that he says is
required in order to obtain an Indian Identity Certificate. However, he stated
that this document was taken by Indian authorities when he departed India.
[12]
Finally, Mr. Thopke submitted an email from
a Professor in Chinese politics and economics that discussed various ways in
which identity documents are issued in different regions in China.
III.
The Refugee Protection Division Decision
[13]
The RPD determined that Mr. Thopke had not
established his personal or national identity as required by section 106 of the
Immigration and Refugee Protection Act, 2001 S.C. 2001, c. 27.
[14]
With respect to the two Chinese documents, the
RPD noted that the RIC and the hukou were purportedly issued by the
Chinese government in 2010 and 2013 respectively, even though Mr. Thopke
testified that his family had told Chinese authorities that he had died in 2003
or 2004.
[15]
Insofar as Mr. Thopke’s RIC was concerned,
the RPD noted that country condition evidence indicated that Chinese laws and
procedures relating to the issuance of RICs require an applicant to present
himself to Chinese authorities and to submit an application form. The applicant
must also have his photograph taken or provide his own digital photograph,
which must then be authenticated. In light of these requirements, the RPD did
not accept Mr. Thopke’s claim that his family had provided an old
photograph to Chinese authorities and that his brother had been able to obtain
the RIC on his behalf. The RPD also noted that fraudulent RICs are widely
available in China and can be obtained from outside the country.
[16]
The RPD also assigned little weight to the
evidence from the Professor of Chinese politics and economics. Mr. Thopke’s
counsel tendered this evidence to demonstrate that Chinese officials do not
always follow Chinese law when issuing identity documents. The Professor’s
email stated that it was unlikely that Chinese officials would require Tibetans
to travel to a designated location in order to obtain identity documents in
person. The RPD found that the opinion did not indicate whether the Professor
had investigated the practices that were actually followed for issuing RICs in
Tibet. It further found that the Professor’s biography did not demonstrate that
his areas of study were relevant to the issuance of official identification
documents in the relevant regions of China. The RPD also did not accept that
Chinese officials would implement a practice that was inconsistent with the
applicable laws. Consequently, it drew a negative inference as to the
authenticity of the RIC.
[17]
Similarly, the RPD was not satisfied as to the
authenticity of the hukou. It again referred to Mr. Thopke’s claim
that in 2003 or 2004 his family had told the Chinese authorities that he had
died, determining that this claim was inconsistent with him being registered in
his family’s hukou in 2013. The RPD also noted that fraudulent hukous
are widely available in China and can be obtained from outside the country.
[18]
The document from the Office of the
Representative of the Dalai Lama in Nepal and the Green Book were both tendered
to establish Mr. Thopke’s identity as a Tibetan. The RPD chose to assign
little weight to these documents, however, as they were not issued by a
government. The RPD further found that the document from Nepal contained
personal information that had been handwritten in both pencil and pen, giving
it limited integrity. It also found that the information contained in the Green
Book indicated that it was issued in 1995, and that the document-holder was 18
years old at that time. This was inconsistent with Mr. Thopke’s testimony
that he was approximately 26 years old in 1994.
[19]
The RPD also determined that the Indian identity
documents produced by Mr. Thopke could not be relied on as evidence of his
identity, given his admission that he had lied to Indian officials in order to
obtain the documents, and that he had told them that he was born in India in
1982.
[20]
The RPD found that Mr. Thopke’s testimony
as to how he obtained these documents demonstrated his propensity to lie and to
use fraudulent documents. The RPD thus concluded that Mr. Thopke had
failed to establish his identity.
IV.
The Refugee Appeal Division Decision
A.
Issues raised at the RAD
[21]
Mr. Thopke did not submit any new evidence
to the RAD and he did not request an oral hearing of his appeal. He also did
not challenge the RPD’s findings with respect to the hukou and the Green
Book, nor did he did challenge the RPD’s findings as to the implausibility of
his claim that his family had been able to obtain a RIC on his behalf in 2010,
given his testimony that they had reported him as having died in 2003 or 2004.
[22]
Mr. Thopke did challenge the RPD’s finding
with respect to the weight to be given to the Professor’s opinion regarding the
process followed by the Chinese authorities in issuing RICs. He also argued
that the RPD unfairly drew a negative inference from the fact that he had
admitted to lying to Indian officials in order to obtain identification
documents, and that it failed to consider that he had acted out of necessity in
order to avoid discrimination in India. Mr. Thopke further argued that the
fact that the document from the Office of the Representative of the Dalai Lama
in Nepal had information recorded on it in both pencil and pen was not a
sufficient basis to dismiss its authenticity.
B.
RAD’s identity assessment
[23]
The RAD concurred with the RPD’s assessment that
Mr. Thopke had not established his personal or national identity based on
the testimony and documents that he had submitted.
[24]
With respect to the RIC, the RAD found that the
Professor’s opinion regarding the issuance of identity documents in China was
very subjective, and did not identify the sources on which it was based. The
RAD chose to ascribe greater weight to the official laws of China, which
outline the procedures and requirements for obtaining RICs. Given that the
process described by Mr. Thopke for obtaining his RIC did not conform to
this process, the RAD did not accept the authenticity of the document.
[25]
The RAD rejected Mr. Thopke’s claim that
the RPD erred by not taking his specific circumstances into account when
assessing the evidentiary value of his Indian identity documents. It found that
the fact that he lied to Indian authorities in order to obtain the documents
meant that those documents could not be relied on to establish his identity.
[26]
The RAD also did not accept the document from
the Office of the Representative of Nepal as establishing Mr. Thopke’s
identity. The RAD noted that the document was not an official government
document, and that it had an inconsistent format. The RAD further noted that Mr. Thopke’s
birthday is recorded on the document as “12-16”,
and that it was reasonable to expect that his full date of birth would be
recorded since the document was intended to be used for identification
purposes. The RAD also found that the fact that pencil was used to record
certain information on the document raised the possibility that it may have
been tampered with.
[27]
Lastly, the RAD rejected Mr. Thopke’s
argument that he had established his identity through his sworn testimony. The
RAD found that Mr. Thopke failed to direct the RAD to portions of his
testimony before the RPD that proved his identity.
V.
Analysis
[28]
The RAD’s assessment of the evidence tendered to
establish an applicant’s identity is reviewable on a standard of
reasonableness: Wang v. Canada (Minister of Citizenship and Immigration),
2011 FC 969 at para. 22, [2011] F.C.J. No. 1191; Liu v. Canada (Citizenship
and Immigration), 2012 FC 377 at para. 8, [2012] F.C.J. No. 392.
[29]
The question in this application is thus whether
it was reasonable for the RAD to find that Mr. Thopke had not established
his identity through the documents that he provided and his oral testimony.
[30]
Mr. Thopke has not challenged the finding
that the hukou that he had provided was not authentic, nor has he
challenged the finding that the Green Book could not be relied on to establish
his identity due to the discrepancies between the information on the face of
the document and his testimony. Mr. Thopke has also not challenged the
negative credibility findings that were made with respect to his claim that his
family had been able to obtain a RIC on his behalf even though they had told
Chinese authorities that he had died in 2003 or 2004.
[31]
As a consequence, I am left with the RPD’s
finding that Mr. Thopke tendered a false document to prove his identity,
as well as a document with reliability issues to support his refugee claim. I
am also left with the RPD’s negative credibility findings of his testimony as
to how Mr. Thopke had allegedly obtained his RIC.
[32]
Mr. Thopke, does, however, challenge the
RAD’s findings with respect to the evidentiary value of the Professor’s
evidence regarding the issuing of identity documents in China. He also
challenges the RAD’s treatment of the document from the Office of the
Representative of the Dalai Lama in Nepal, and its treatment of his Indian
identity documents. He makes three arguments in support of his claim that the
RAD’s treatment of this evidence was unreasonable.
[33]
First, Mr. Thopke submits that the RAD used
the fact that he admitted to lying in order to obtain his Indian identity
documents to question the credibility of his evidence regarding the other
identity documents that he had submitted in support of his claim. Mr. Thopke
argues that the RAD erred in this regard, as his sworn testimony should have
been presumed to be true: Maldonado v. Minister of Employment and
Immigration (1979), [1980] 2 F.C. 302 at 305, [1979] F.C.J. No. 248 (C.A.).
See also Wang, above; Mohmadi v. Canada (Citizenship and Immigration),
2012 FC 884, [2012] F.C.J. No. 1074; Tran v. Canada (Citizenship and
Immigration), 2013 FC 1080, [2013] F.C.J. No. 1193.
[34]
Second, Mr. Thopke argues that the RAD
ignored portions of the Professor’s biography that showed that he had relevant
expertise that qualified him to offer an opinion as to whether Chinese
officials have discretion in issuing identity documents in accordance with
regional conditions.
[35]
Third, Mr. Thopke argues that he was not
given an opportunity to respond to the RAD’s concern that the document issued
by the Office of the Representative of the Dalai Lama in Nepal was not reliable
because it had entries on it in both pen and pencil.
[36]
I cannot accept these submissions.
[37]
First, the presumption that an applicant’s
testimony is true is not absolute: it is rather a rebuttable one that can be
rebutted when there is good reason to doubt the veracity of an applicant’s
allegations: Maldonado, above at 305.
[38]
In this case, the RAD had before it the
unchallenged findings of the RPD that the hukou tendered by Mr. Thopke
was not authentic, and that there were reliability issues with his Green Book.
The Refugee Protection Division had also made an adverse credibility finding
with respect to Mr. Thopke’s testimony as to how his family obtained a RIC
in 2010, which had not been challenged before the RAD. These negative findings
raise concerns about his overall truthfulness, and with respect to the
reliability of his evidence with respect to his other identity documents.
[39]
Furthermore, the RAD’s reasons confirm that it
independently assessed each of the documents that had been provided by Mr. Thopke
to establish his identity in light of his testimony and the country condition
evidence. The RAD did not accept documents where the information they contained
was inconsistent with Mr. Thopke’s own testimony, or where the country
condition evidence raised concerns as to the plausibility of his claims. This
was an entirely reasonable approach to evaluating the evidence.
[40]
Second, even if I were to accept that the RAD
erred in finding that the Professor was not qualified to give an opinion as to
how RICs can be obtained in China, the evidence that he provided just shows
that national directives regarding the issuing of RICs are not always followed
or can vary by region. This evidence does not, however, suggest that Chinese
citizens do not have to physically present themselves to Chinese officials in
order to obtain this form of identification. The RAD was, moreover, entitled to
assign greater weight to the procedure for issuing RICs prescribed under
Chinese law than to the opinion of the Professor.
[41]
Third, I am not persuaded by Mr. Thopke’s
argument that the RAD erred in its assessment of the letter from the Office of
the Representative of the Dalai Lama in Nepal because he was not given an
opportunity to respond to the RAD’s concerns about the document’s inconsistent
format and pen and pencil entries.
[42]
It is clear from the RPD’s decision that Mr. Thopke
was on notice that the integrity of this document was in question as a result
of the fact that some entries on it had been made in pen and others in pencil.
Indeed, he made submissions to the RAD that the RPD’s rejection of the document
because of the pen and pencil entries was unreasonable. The RAD considered Mr. Thopke’s
submissions, but concluded that the fact that some entries on the document were
made in pencil gave rise to concerns as to its authenticity, in light of the
fact that the document would likely be used for official purposes. The RAD was
further concerned that the fact that some entries were made in pencil raised
the possibility that the document may have been tampered with. These findings
were reasonably open to the RAD on the record before it, and Mr. Thopke
has not established that the RAD committed a reviewable error in its treatment
of this document.
VI.
Conclusion
[43]
Mr. Thopke has thus failed to show that it
was unreasonable for the RAD to find that he had failed to establish his
identity in support of his claim for refugee protection. As a consequence, his
application for judicial review is dismissed. I agree with the parties that the
issues in this case are fact-specific and do not raise a question for
certification.
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