Date: 20010419
Docket: IMM-3668-00
Neutral Citation: 2001 FCT 341
Between:
XIAO DONG LIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated June 26, 2000, holding that the applicant should be excluded from the definition of "Convention refugee" in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, (the Act) owing to the panel's conclusion that it had serious reasons for considering that the applicant had committed a serious non-political crime in China.
[2] The applicant is a 36-year-old self-proclaimed citizen of China who asserts he has a well-founded fear of persecution on the grounds of imputed political opinion. He entered Canada in May 1998 using a Dominican passport allegedly purchased through the Dominican Investor Program.
[3] While in Canada, he was apprehended by the local police force on October 23, 1998 as a result of an international warrant issued by the Chinese authorities alleging that he was involved in a conspiracy to commit murder. The offence is one for which the death penalty could be given if he were deported to China.
[4] The applicant, who maintains his innocence, was ordered conditionally deported on May 28, 1999 by an immigration adjudicator pursuant to subparagraph 19(1)(c.1)(ii) of the Act. The month prior, he had made a refugee claim and a hearing was set for April 7, 2000. At the outset of the hearing, the respondent argued that the evidence before the Board was such that the Board had no other option but to exclude the applicant under Article 1F(b). The applicant indicated that he was not prepared to respond to the respondent's argument and requested an opportunity to make written representations. It was decided by the Board that the written submissions would deal with the respondent's submission concerning the exclusion issue. The applicant did not give any oral evidence.
[5] The applicant made written submissions and included a statutory declaration which set out the following evidence: forensic evidence, which suggested that there were forgeries on the part of the Chinese authorities, and a letter from an expert on Chinese affairs, who indicated that false political offences do occur in China. Neither witness was examined.
[6] Nationality with respect to exclusion under Article 1E was raised by the respondent in reply to the applicant's submissions in respect of Article 1F(b) exclusion issue. The applicant, in further reply, objected to the consideration of the citizenship issue on the basis of written submissions.
[7] The Board found that the applicant is not a Convention refugee. The Board's relevant findings are as follows:
- The forensic report examined documents written in Chinese characters. The author stated that his opinions are conservative and reflect his limited experience in evaluating Chinese forms. As a result, the Board preferred the evidence noted in the Interpol NCB China notice, written in the English language.
- As for the letter from the Professor, a mere plausibility is not a probability; therefore the Board accorded no weight to this letter as it relates to the specific claim.
- The Board found that there was no evidence before it permitting it to conclude that the applicant was anything other than a citizen of Dominica.
- The Board concluded that Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982, had not changed the standard of proof to be met by the respondent, which remained "serious reasons to consider". The evidence submitted was sufficient to meet that test and the Board concluded that the claimant was excluded under Article 1F(b).
[8] I find that the Board committed at least three errors:
9. The Board stated in its decision that "the evidence consisted of the claimant's oral testimony, his Personal Information Form (PIF), and documentary material filed by the claimant's counsel and the Refugee Claim Officer (RCO)" (emphasis is mine). As indicated above, the applicant did not give any oral evidence.
10. The Board seems to have required that the contents of the applicant's statutory declaration be corroborated:
The claimant gave the statutory declaration and there is no reliable evidence before the panel to substantiate or corroborate the contents of the declaration.
I agree with counsel for the applicant that if a Board is inclined to reject a person's credibility simply on the basis of lack of corroborating evidence, it should provide reasons for doing so. Here, it is true that the Board obviously preferred the respondent's documentary evidence to the applicant's statutory declaration. However, it is not clear whether the Board stated as a principle the requirement to corroborate the statutory declaration, which would be obviously wrong. Under such circumstances, I find that the Board is at fault for not having set out its reasons in "clear and unmistakable terms" (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236, 15 Imm.L.R. (2d) 199 (F.C.A.)).
11. In spite of its direction to allow written submissions to be filed with respect to the exclusion issue, and in spite of the applicant's counsel's objection to the consideration of the citizenship issue on the basis of written submissions, the Board dealt with and disposed of the citizenship issue without any further hearing. It is my view that the Board created a legitimate expectation for the applicant with respect to the scope of the written submissions and of its ultimate decision and was consequently bound to limit its determinations to article 1F(b). In dealing with the citizenship issue, the Board breached the applicant's right to procedural fairness.
[9] In my view, the above errors are important enough to vitiate the entire decision and to warrant the intervention of this Court without having to deal with any additional arguments in this matter.
[10] Consequently, the application for judicial review is allowed, the Board's decision is quashed and the matter is remitted for rehearing by a differently constituted panel. In light of the above reasons, the proposed question for the purpose of certification need not be certified.
JUDGE
OTTAWA, ONTARIO
April 19, 2001
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