Docket: IMM-4338-16
Citation:
2017 FC 607
Ottawa, Ontario, June 19, 2017
PRESENT: The
Honourable Madam Justice Elliott
|
BETWEEN:
|
|
YANG LIU,
|
|
PEI MI
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicants seek judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada. The RPD determined, largely on the
basis of negative credibility findings, that the Applicants were neither
Convention refugees nor persons in need of protection under sections 96 and 97
of the IRPA.
[2]
The two Applicants, who are common-law spouses,
submitted their refugee claims based on different threats in China. The female
Applicant alleged that she had been raped and forced into a relationship with
the magistrate of her local county. After being fired, she brought attention to
his behaviour on the internet, which caused her to be attacked and beaten and
then later sought in a warrant by the Chinese Public Security Bureau [PSB].
[3]
The male Applicant alleged that he uncovered a
scam at the hospital where he worked to sell counterfeit medication. After
being fired from the hospital, he attempted to bring attention to the fraud and
was arrested by the PSB. After attempting to bring his grievance to two
successive levels of petition office, he discovered that the PSB had issued a
warrant for his arrest. Both Applicants obtained visitor visas to the United
States and then made their way to Canada, before making a refugee claim at the
Canadian border as an exception to the Safe Third Country Agreement.
[4]
While the Applicants admitted to being
common-law spouses in their interview with the Canada Border Services Agency,
when they actually submitted their Basis of Claim forms, they did not mention
each other either as family members on the form itself or in the narrative
statements accompanying each form. They then amended their forms, and the RPD
consolidated their two separate claims into one hearing. The female Applicant
also amended her form to add two siblings in China that she had previously
omitted.
[5]
When the female Applicant was asked about why
they submitted the forms separately and did not mention each other, she said
that a snakehead had told them to submit independent claims to maximize their
chances of obtaining refugee protection in Canada.
[6]
For the reasons that follow this application is
allowed and the matter is returned to a different panel for redetermination.
II.
Decision under Review
[7]
The RPD found that the Applicants lacked
credibility and (for the purposes of the section 96 claim) demonstrated an
absence of subjective fear. Particular emphasis was given to the omission of the
relationship in the Basis of Claim forms and the involvement of the snakehead,
which the RPD found indicated a willingness to mislead the RPD in order to
obtain a successful result.
[8]
The RPD also assessed the various pieces of
documentary evidence submitted in support of the claim. Some were discounted
because of irregularities on the face of the documents, while others appear to
have been outweighed by the inconsistencies the RPD found with the Applicants’
testimony. In a few cases (including with the summonses, discussed below), the
RPD found that absences from the documents of features it believed should be
present undermined the genuineness of those documents.
[9]
An important part of the decision was also based
on the Applicants’ behaviour when they took a trip to Europe in October 2015.
The RPD drew a negative inference from both the failure to claim refugee status
in any of the European countries visited as well as the decision to re-avail to
China even though, at that point, the Applicants had been subject to serious
abuses that could ground a refugee claim. The Applicants’ explanation for this
conduct—that no decision had been made on the male Applicant’s petitions and it
was reasonable to seek state protection from China before seeking refugee status
in Europe—was rejected by the RPD.
III.
Issues and Standard of Review
[10]
The standard of review for the RPD’s assessment
of credibility is reasonableness: Cao v Canada (Citizenship and Immigration),
2015 FC 315 at para 15.
[11]
The only issue for determination is whether the RPD’s
decision was reasonable.
IV.
Analysis
[12]
The RPD made several negative credibility
findings. It concluded that while no single finding might be sufficient on its own
to reject the claim, the cumulative effect of all of the findings was that
there was not sufficient credible and trustworthy evidence to ground a finding
that the Applicants were refugees or persons in need of protection.
[13]
One of the critical documents the RPD found to
be untrustworthy and to which it assigned little weight (if any), was the PSB summons.
The question of whether there was a summons issued against each of the Applicants
was significant. It was the foundation of their fear of persecution. The timing
of when and whether the PSB summonsed the Applicants was also relevant to whether
their failure to claim in Europe and reavailment to China indicated a lack of
subjective fear.
[14]
Unfortunately, the analysis of the summons by
the RPD was unreasonable. In the absence of that finding, I cannot determine
whether the RPD would have weighed the evidence and come to the same conclusion
about the credibility of the Applicants’ claims. Therefore the decision must be
set aside.
[15]
Each Applicant received a summons. Each summons
was issued for different underlying reasons but in each case the individual Applicant
was accused of slandering the government, a serious offence. The RPD examined
the summons and noted that it was similar to a sample summons. While each
summons contained two seals and a date, the RPD found that the reliability of
those features was undermined by two concerns: (1) there was no reporting address
or contact information shown on the summons; and, (2) blank precedents of
documents were widely available online. It is my view that neither of these
concerns, nor others subsequently noted by the RPD, could reasonably be used to
make negative findings about the genuineness of the summons or rebut the
presumption that the summons was valid as it purported to be issued by a
competent foreign government: Chen v Canada (Citizenship and Immigration),
2015 FC 1133 at para 10 [Chen]; Ramalingam v Canada (Minister of
Citizenship and Immigration), 1998 CanLII 7241 at para 5 (FC).
A.
Lack of an address or contact information
[16]
The RPD questioned the female Applicant about
the lack of a reporting address on the summons. Her answer was that there was
only one police station in Xiezhuang and that anything that had to be done in
the county was done there. The RPD rejected that explanation as being “highly speculative” saying that it was an attempt by
the female Applicant to substitute her subjective view for objective PSB
practices. The RPD found that the “functionality”
of the summons was undermined by the absence of a reporting address.
[17]
This finding by the RPD overlooks the fact that
the summons requires the Applicant to surrender herself specifically “to Public Security Bureau of Zhao County, Xiezhuang Police
Station”. That is clearly a specific location, and the female Applicant
gave testimony that there was only one police station in the small village of Xiezhuang.
Nonetheless, the RPD found the lack of contact information and absence of a
reporting address undermined the reliability and trustworthiness of the summons
because a well-organized police force such as the PSB would not rely on the
subjective knowledge of the accused person to attend at the station.
[18]
That conclusion simply does not flow logically.
It is not at all clear how the degree of organization of the PSB bears a
relationship to the presence or absence of contact information on a summons. The
conclusion also does not flow either from the evidence of the Applicant that
there is only one police station in the small village or from the face of the
summons which specifies the police station as being the one in Xiezhuang.
[19]
In essence, the RPD made a negative plausibility
finding about the genuineness of the summons. This Court has been clear that
such findings must be made “only in the clearest of
cases” and with special regard to the claimant’s specific culture and
milieu: Valtchev v Canada (Minister of Citizenship and Immigration),
2001 FCT 776 at para 7.
[20]
It may be implausible in Canada for a summons to
be issued without the reporting location listed in a civic address format. But
Canada does not require its citizens to register at a government office their
locations and those with whom they reside. Canada does not issue hukous
or require every person to obtain and present to police on request a national
identity card. Canada has a uniform nation-wide system of postal addresses, and
in Canada it can be reasonably expected that every police station and
courthouse has a civic address that could be listed on an official document.
[21]
However, to take all those facts about Canada
and import the same presumptions to China—a country with an entirely different
relationship between state and citizen, which is at a different stage in its
economic development—is not reasonable. The RPD did not adequately explain why
it was “outside the realm of what could be reasonably
expected” for the residents of a small municipality in China to know the
location of their police station or for that station to not have a
Canadian-style civic address. The fact that even rural police stations have
access to a sophisticated computer database is wholly irrelevant to whether a
police summons in such an area would maintain “functionality”
in the absence of a street address.
B.
Sample documents online and the prevalence of fraudulent
documents
[22]
Regarding the online availability of blank
precedents of a summons, the RPD found the presence of the two seals and a date
on the summons was undermined not only because blank templates were available
online but also because the documentary evidence described the PSB as “a nationally networked police force that uses cutting-edge
technology”. The RPD determined that the PSB was an interconnected and
sophisticated police force and the Applicant’s “marginal
summons undermines the genuineness of the summons”. It seems that the
reference to a “marginal” summons, although not
explained, is based on the lack of an address or contact information. Nothing
else “marginal” was mentioned prior to that
reference. Given my above analysis of the RPD’s plausibility finding, the basis
for finding the summons to be marginal is unsupported.
[23]
The RPD also found there was a lack of genuineness
of the summons based on the “consistent reports”
of document fraud in China. The RPD twice specifically referred to the
prevalence of fraudulent identity documents and that generally there was fraud
of all kinds. That section of the decision is found under the heading “Other considerations”. It concludes that little
weight was assigned to the female Applicant’s summons “for
all of these reasons”. In that section of the decision, those reasons
appear to be the online blank precedents and the prevalence of fraudulent
documents.
[24]
The juxtaposition of the comments by the RPD on
the PSB’s cutting-edge technology, blank precedents being available online and
fraudulent documents being easily obtained results in two more findings, with
no analysis, that the genuineness of the summons is undermined. Those findings
cannot stand, as this Court has consistently observed that the RPD should
exercise caution when considering whether the prevalence of fraudulent official
documents in China is a reliable factor when considering whether a specific
document is a forgery: Chen at paras 10 -13 and cases referred to
therein. Here, the RPD gives no indication that it considered the presumption,
and if it did, there is no reasoning to show how it was rebutted.
[25]
In cases where the testimony given in support of
a claim contains inconsistencies, contradictions and omissions, but is
supported by documents purporting to be issued by an official authority, it is
important to distinguish between authenticity and weight. In the absence of
some evidence indicating that a document is not genuine, it is not open to the
RPD to make negative authenticity findings. But it is open to the RPD to find
that the documents do not have sufficient corroborative weight to prove the
claim in spite of the problems with the claimant’s testimony: Jele v Canada
(Immigration, Refugees, and Citizenship), 2017 FC 24 at paras 45-50.
[26]
To put it another way, it is unlikely (though
possible) that a false story will be supported by official documents that
cannot be discounted as inauthentic. It is also unlikely (though possible) that
a true story will be supported by testimony containing significant
inconsistencies, contradictions and omissions. Where both of these factors are
present, the RPD must weigh all the evidence to determine whether the narrative
told by the claimant is more likely than not the truth, and it is entitled to
deference in that process.
[27]
In this case, however, the RPD’s findings on the
summonses were not part of the overall weighing process. The RPD instead
explicitly made findings about the genuineness of those summonses, which it
imported into the overall weight to give those documents. Given official
documents are presumed to be valid, those genuineness findings are
unreasonable. The RPD concluded that its decision was based on a cumulative
evaluation of all of the evidence, no piece of which would have been sufficient
to negate the credibility of the claim on its own.
[28]
The two summonses were highly probative to the
claims of each Applicant. A valid summons from the PSB for the crime of
slandering the government might support the claim of a fear of persecution. It
might also overcome the allegation of reavailment. It is a critical piece of
evidence which, if it had been properly considered in the absence of an
improper finding on genuineness, could easily have affected the outcome of the
proceeding. The RPD’s decision with respect to both Applicants is unreasonable
on this basis.
[29]
For the foregoing reasons, the matter must be
returned to a different panel of the RPD for redetermination.
[30]
There is no serious question of general
importance for consideration on these facts.
Email this Content