Date: 20030530
Docket: IMM-5250-02
Citation: 2003 FCT 682
BETWEEN:
XING YI DENG
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application pursuant to section 82.1 of the Immigration Act, R.S.C. c. I-2, for judicial review of the decision of the Convention Refugee Determination of the Immigration and Refugee Board dated September 4, 2002 in which it was determined that the applicant was not a Convention refugee.
[2] The applicant was born in China on January 14, 1968 and is a citizen of that country. She claims persecution based on political opinion and religion.
[3] According to the applicant, she operated a business in China selling construction materials with her partner, Mr. Chen. In December 2000, the Public Security Bureau ("PSB") came to their site and searched their offices. They also interrogated Mr. Chen about Falun Gong activities, of which he was a practitioner.
[4] Later she learned that her partner, Mr. Chen, had been arrested. She states that the PSB continued to come to her office and question her about Falun Gong practitioners. She states that they were suspicious of her involvement in Falun Gong because of her partner's activities and required that she report to their offices once a week. Due to the weekly PSB interrogations, she went into hiding and, while in hiding, the PSB located her and accused her of failing to report and of absconding to avoid punishment. She felt that she had no choice but to leave the country.
[5] The applicant came to Canada and made an application for Convention Refugee status. In its decision, the Board found that the applicant was not a credible witness and denied her claim.
[6] After carefully reviewing the material on file, including the tribunal's decision, as well as the oral submissions of the parties at the hearing before me, I am satisfied that the Board's decision should be set aside.
[7] The central issue on which the Board based its decision with respect to credibility arises out of a perceived conflict between information contained in a visa application and the applicant's PIF. The visa application, submitted by the applicant some three or four years prior when she attempted to enter Canada to visit her mother, indicates that she was unemployed. Her PIF, on the other hand, reveals that she was in business.
[8] In its decision, the Board proceeded to reject all of the claimant's documentary evidence because of the above-noted conflict. However, at no time during the hearing did the Board provide the applicant with an opportunity to offer an explanation for the discrepancy. Furthermore, the Board did not itself provide any explanation for why it rejected pertinent evidence such as the business ownership certificate as well as the five page report prepared by the applicant's accountant.
[9] I agree that it is within the purview of the panel to review documents and accept or reject them, however they cannot simply ignore the evidence and offer no explanation as to why it was rejected since it was central to its determination as to credibility.
[10] Indeed, as I read the decision, together with all of the other material, I am unable to conclude that this applicant received a fair and impartial hearing. For example, the Board's finding that the applicant was not credible and trustworthy when she testified she had participated in a demonstration in Toronto because she did not produce a copy of the leaflet being distributed, is simply untenable. So too is the Board's conclusion that the applicant did not visit the Amnesty International Offices in Toronto when there was evidence before it that she in fact did do so. The Board concluded that the applicant was not credible because she did not indicate in her PIF that when the PSB came to search her office they had search warrants. Although the applicant's explanation, that she was not familiar with the term search warrant, is entirely reasonable, the tribunal simply rejected it out of hand.
[11] Overall, there are numerous instances of this type of error and inconsistency on the part of the Board. There is no question that the proper course to follow is to set aside the decision and refer the matter back to a newly constituted panel for rehearing and redetermination.
[12] I am satisfied, after a careful reading of the panel's decision, some excerpts of the transcript as well as some documentary evidence, that the panel does not meet the test and that their findings of fact are patently unreasonable.
[13] The Tribunal failed to confront this applicant on a key element, her visa application. It disregarded or totally disbelieved that she went to Amnesty International when in fact a document was produced to support her assertion. It blatantly suggested that documents produced concerning her Christianity were fabricated. It disregarded the ownership certificate without offering any explanation to support their finding that it was a forgery and made no reference to the evidence of the Report on Capital Examination prepared by an accountant.
[14] This application for judicial review is allowed and the matter is hereby returned for rehearing by a differently constituted panel.
JUDGE
OTTAWA, Ontario
May 30, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5250-02
STYLE OF CAUSE: XING YI DENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MAY 13, 2003
REASONS FOR [ORDER or JUDGMENT] : HON. JUSTICE ROULEAU J.A.
DATED: MAY 30, 2003
APPEARANCES: Ms. Carla Sturdy
FOR THE APPLICANT
Ms. Angela Marinos
FOR THE RESPONDENT
SOLICITORS OF RECORD: Lewis & Associates
Toronto
FOR THE APPLICANT
Morris Rosenberg
_ Deputy Attorney General of Canada
FOR THE RESPONDENT
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