Date: 20101215
Docket: IMM-2154-10
Citation: 2010
FC 1289
Toronto, Ontario, December 15, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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SEN LIN LI
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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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REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a decision of a Member of the Refugee Protection
Division (RPD) in which the Applicant’s claim for refugee protection was
dismissed on a finding that the Applicant had not established his identity. The
Applicant’s claim for protection is based on his subjective and objective fear
of persecution and risk as a Christian citizen of China.
[2]
In support
of his claim, the Applicant tendered into evidence a number of documents to
establish his identity: a Chinese Resident Identity Card in his name which the
RPD Member found to be fraudulent on the basis of an uncontested forensic
analysis; an original Hukou and an original marriage certificate each in his
name; and photocopies of his wife’s and son’s Identity Cards. With respect to each
of these documents the RPD Member applied expert knowledge to find that they
displayed deficiencies on their face, and these perceived deficiencies were
applied to support the negative identity finding made. Indeed, the Applicant’s explanations
of the circumstances under which he acquired the false Identity Card and the
reasons for his belief that no deficiencies existed in the documents submitted were
not accepted:
I find that the claimant has
not provided any reasonable explanations for the problematic documents
disclosed and lacking that, I find that he has not established his identity and
therefore I reject his claim.
(Decision, paragraph 11)
[3]
In my
opinion, the conduct of the hearing leading to this conclusion exposes a
fundamental fact-finding error.
[4]
The
transcript of the hearing conducted before the RPD Member reveals that both the
RPD Member and Counsel for the Applicant have expert knowledge of identity
issues arising with respect to refugee claimants from China. The RPD Member’s expertise played out
during the course of the hearing by the Member stating his understanding of
what might be expected of the identity documents supplied by the Applicant,
with Counsel for the Applicant responding with arguments intended to dissuade
the RPD Member from making negative findings. It is easy to conclude that the
RPD Member’s confidence in his knowledge allowed him to quickly engage on the
identity issues during the course of the hearing and, following the hearing and
submissions by Counsel for the Applicant, to immediately orally render the
negative decision which was subsequently committed to writing. In my opinion, a
rush to judgment facilitated the error made.
[5]
It is
uncontested that a Hukou is an important identity document and no finding was
made by the RPD Member that the original Hukou submitted by the Applicant was
not his. With respect to the Hukou the Member found as follows:
The claimant disclosed a Hukou
but as I noted earlier, there is a place for the signature and name for the
person who registered the Hukou. Neither the signature nor the name appears on
the pages of the Hukou disclosed. Counsel noted that quite often some personal
information in various boxes in the Hukou page is not provided and I agree.
However, the signature and the name of the person who registered the Hukou are
different. In my experience it is always provided.
(Decision, paragraph 8)
[6]
However,
after the hearing, and after oral reasons were provided, Counsel for the
Applicant pointed to evidence which had not been considered by the RPD Member before
finding that the Hukou was deficient, and which appears to directly address the
deficiency concern. This exchange is appended to the written decision presently
under review immediately following paragraph 11 as quoted above:
POST-DECISION EXCHANGE
COUNSEL: I am sure that this
will displease the panel but in light of the panel’s comments about the hukou,
I am just examining the original document and I see a faint stamp, which I have
asked the interpreter to translate. There is a faint stamp beside -- first of
all, the Chinese characters say, a person who...
INTERPRETER: Undertaker’s
stamp.
COUNSEL: Undertaker’s stamp,
which I presume does not need to...
INTERPRETER: The stamp says
that, say a police officer, Li Chuan Xian (ph).
COUNSEL: So there is a stamp
that indicates a civil police named. You can see it is quite faint but it is in
the hukou beside the area where the undertaker, I think has been
translated as person who issued -- is that what you mean by undertaker?
INTERPRETER: The person who
was responsible for processing this document.
COUNSEL: Okay.
MEMBER: Is there a name?
INTERPRETER: Li Chuan Xian
(ph).
MEMBER: Okay. I have this
information that was not available earlier but I find it is not sufficient to
change the decision.
[Emphasis added]
[7]
In my
opinion, once presented with evidence which showed that the finding at
paragraph 8 of the reasons was made in probable error and, as such, was very
much to the benefit of the Applicant’s effort to prove his identity, the RPD
Member was required to carefully reconsider the evidentiary value of the Hukou.
To meet this obligation it was necessary for the Member to clearly state why
the new information was “not sufficient”. Because no reason is given, I find
that the decision under review as unreasonable.
ORDER
The decision under review is
set aside and the matter is referred back for redetermination by a differently
constituted panel.
There is no question to certify.
“Douglas
R. Campbell”
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