Date: 20060419
Docket: IMM-3428-05
Citation: 2006 FC 499
Ottawa, Ontario, April 19,
2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
XIN YI JIANG
(XINYI JIANG)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In
September 2003, Ms. Jiang was divorced, in poor health and unhappy. Following
discussion with one of her friends she attended a Christian church, and after
practicing that faith for several months she realized her life had become enriched
spiritually. No more emptiness, life again had meaning.
[2]
In
April 2004, she was part of a congregation celebrating Easter at a private home.
A lookout reported that the police were on their way. She immediately ran out
of the house and went into hiding. She came to learn that the police searched her
own house and were accusing her of being involved in an illegal religious
gathering. With the aid of a smuggler, she left China’s Guangdong
province and came to Canada via Hong Kong. She claimed to be a refugee
within the meaning of the United Nations Convention or a person otherwise in
need of international protection.
[3]
The
Refugee Protection Division of the Immigration and Refugee Board determined
that she was neither a Convention refugee nor a person in need of protection.
This is a judicial review of that decision.
[4]
The
Board considered that the central and primary issues were her credibility, and
her country of nationality. It is not in dispute that she entered Canada with a photo
substituted Canadian passport. The Board was of the view that “…the claimant
failed to provide sufficient credible or trustworthy evidence to establish and
discharge her onus that she is from mainland China and has good grounds for
fearing persecution and that there is a serious possibility that she would be
persecuted should she return…”
[5]
The
Board began with an analysis of her identity. She submitted her resident
identity card, going back to 1985, an original Hukou (permanent resident
household registration form) issued in 2001 and an original divorce certificate
also issued in 2001.
[6]
At
the hearing, the Board brought to Ms. Jiang’s attention that there were some features
of the Hukou which seemed to be irregular. Ms. Jiang said that all she knew is
that this is how it was sent to her by mail, and that all new Hukous were
issued that way. Following the hearing, the Board sent her resident identity
card and Hukou, but not the divorce certificate, to the R.C.M.P. for analysis.
[7]
The
R.C.M.P. Forensic Laboratory Report contains a summary section which has two
parts to it, Authenticity and Alterations. With regard to authenticity, a
document may be considered genuine, counterfeit or inconclusive. Both documents
were considered inconclusive. As to alterations, the resident identity card was
considered unaltered. However, the Hukou was considered to have been altered in
that some pages may have been substituted.
[8]
Basing
itself on this report, the Board found on the balance of probabilities that the
resident identity card was genuine and that the Hukou was counterfeit. Ms.
Jiang was given the opportunity to respond to the R.C.M.P.’s report, but did
not do so.
[9]
The
Board drew a negative inference from that fact and also noted that counterfeit
documentary evidence is easily obtainable in China. It then
embarked on an analysis which defies logic. On the one hand, Ms. Jiang was
found to be whom she claimed to be i.e. a Chinese National. This was based on
the 1985 resident identity card. But then it said: “The gravity of lack of
credibility of the Hukou, a significant document which is required in the PRC
is such that leads to find that this lack of credibility extends to all the
evidence emanating from the claimant and renders her entire evidence regarding
her country of nationality and the basis of her claim not credible.” The Board
considered that she failed to “establish her identity with respect to
nationality”, and so did not embark on a further analysis as to whether or not
she was indeed a Christian, and, if so, if she had a well-reasoned fear of
persecution. What the Board appears to be saying is that Ms. Jiang did not
establish that she was resident in China in 2003 and 2004 when
the events leading up to her refugee claim allegedly occurred. However, it must
be borne in mind that even a genuine Hukou would not have established that fact
either.
[10]
The
experts were unable to offer an opinion that the Hukou was counterfeit. The
R.C.M.P.’s report was inconclusive. It was
patently unreasonable to take this conclusion, convert it in a finding of fact
that the Hukou was counterfeit and then dismiss the claim without further
analysis.
[11]
Because
counterfeit documents were readily available, one may speculate that the
documents in question were counterfeit, but that is not enough to serve as an evidentiary
basis for a proper inference. As Mr. Justice von Finckenstein said in Chima
v. Canada (Minister of
Citizenship and Immigration) 2004 FC 224:
The
documents may well be forgeries, however evidence of widespread forgery in a
country is not, by itself, sufficient to reject foreign documents as
forgeries. As the Respondent noted evidence of widespread forgery merely
demonstrates that false documentation could be available to the
Applicant.
[12]
There
has to be a basis for an inference. As Lord Wright said in Grant v. Australian
Knitting Mills, Ltd.,
[1935] ALL E.R. Rep. 209 (JCPC) at pages 213 - 214:
“...This, however, does not do justice either
to the process of reasoning by way of probable inference which has to do so
much in human affairs or to the nature of circumstantial evidence in law
courts. Mathematical, or strict logical, demonstration is generally impossible:
juries are in practice told that they must act on such reasonable balance of
probabilities as would suffice to determine a reasonable man to take a decision
in the grave affairs of life. Pieces of evidence, each by itself insufficient,
may together constitute a significant whole, and justify by their combined
effect a conclusion....”
[13]
The
one piece of evidence, the authenticity of which was found by the experts to be
inconclusive, cannot support the Board’s determination. As noted by Mr. Justice
O’Halloran of the British Columbia Court of Appeal in Faryna v. Chorny (1952)
2 D.L.R. 354 at 356:
The credibility of interested
witnesses, particularly in cases of conflict of evidence, cannot be gauged
solely by the test of whether the personal demeanour of the particular witness
carried conviction of the truth. The test must reasonably subject his story to
an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions.
[14]
The
finding of fact was patently unreasonable or, to use the words of Section
18.1(4) of the Federal Courts Act, was made: “in a perverse or
capricious manner or without regard to the material before it…” Ms. Jiang’s
story had to be subjected to further examination.
[15]
The
application shall be allowed. There is no question of general importance to
certify.
ORDER
THIS COURT
ORDERS that the application for judicial review is allowed and the matter
is referred back to the Refugee Protection Division of the Immigration and
Refugee Board for a redetermination by a differently constituted panel.
“Sean Harrington”
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