Docket: IMM-4964-11
Citation: 2012 FC 377
Ottawa, Ontario, March 30, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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JIAO JIAN LIU
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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 JUDGMENT AND
JUDGMENT
[1]
This
is an Application for Judicial Review from the decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada [the Board
or the RPD], dated June 15, 2011 [the Decision], in which the Board rejected
the Applicant’s claim for refugee protection made under sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The
Applicant is from the Guangxi Province of the
People’s Republic of China. He sought refugee protection due to the
persecution he claimed to fear as a member of an underground Christian church.
More specifically, the Applicant claimed that he was acting as the lookout for
his church when it was raided by the Public Security Bureau [PSB]. The
Applicant alleged that he escaped, went into hiding and that the PSB came to
his home with a warrant for his arrest. The Applicant also claimed he learned
shortly thereafter that another member of his church was arrested, so he
decided to flee to Canada to make a refugee claim.
[3]
In
the Decision, the RPD rejected the Applicant’s claim, holding that the
determinative issues were the Applicant’s failure to establish his identity and
his general lack of credibility. In making the latter finding the Board relied,
in part, on the total absence of any mention of the persecution of Christians
in the Guangxi Province in
any of the voluminous documentation on the human rights situation in China.
[4]
The
RPD’s identity finding centred on the conclusion that the Resident Identity
Card [Identity Card], proffered by the Applicant, contained a picture of
someone who was not the Applicant. The Applicant appeared in person before the
RPD. The Board also had before it the picture of the Applicant that was taken
upon his arrival in Canada. The Board wrote as follows regarding the
differences between the Applicant’s appearance and the photograph on the
Identity Card:
In examining the RIC photograph, the
panel notes that it did not appear to be the person before me. The panel also notes
that the claimant had his picture taken at the age of 35 in October 2009 when
he filed his refugee claim and that the photograph is before the panel as part
of exhibit R/A 2. The photograph on the RIC was taken in June 2007 when the
claimant was 33 years of age. The claimant is now 37 years of age. The panel
notes that despite the passage of two years, the claimant’s refugee photograph
taken in 2009 is identical to his appearance at the hearing. The person who
appeared before the panel is clearly the person who filed the refugee claim in
2009. However, in comparing the photograph taken in 2009 to the photograph on
the RIC the panel notes a stark difference. Although there is only two years
between the photographs, the claimant appears to be far older in his refugee
photograph. The panel compared the photograph in the RIC to the claimant during
the hearing. The panel noted that the claimant’s hairline was much different
when compared to the hairline in the photograph of the RIC. The hairline in the
RIC photograph is higher on the forehead. The RIC photograph depicts a person
whose ears extend away from his face to a greater extent than how the
claimant’s ears appeared before the panel. In addition, the top of the
claimant’s ears are higher than his eye level whereas, in the RIC photograph,
the tops of the ears are at the bottom of the eye level. The claimant’s
nostrils were larger than those depicted in the RIC photograph. The shape of
the claimant’s lips is more elongated than those of the RIC photograph. While
there are some similarities as one might find with persons who are related, the
panel finds, on a balance of probabilities, that the claimant is not the person
depicted in the RIC photograph.
[5]
The
Applicant argues that the RPD made three reviewable errors in its Decision,
alleging that:
a. The RPD’s identity
finding was unreasonable;
b. The
RPD’s general conclusion regarding the Applicant’s lack of credibility was
unreasonable because it centred on the implausibility of the PSB serving a
warrant. The Applicant argues that there was evidence in the record to indicate
that the PSB procedures were not standardized and, therefore, the Board’s
implausibility conclusion was unreasonable; and
c. The
RPD’s reliance on the lack of documented evidence of persecution of Christians
in the Guangxi Province was
unreasonable because the documentary evidence established that censorship is
rampant in China.
[6]
In
argument, counsel for the Applicant conceded that if I were to find that the
Board’s identity finding was reasonable, it is not necessary to address the
other errors that were asserted because the RPD’s reasoning on the three
impugned points was inter-related and because the case law recognises that the
failure of a claimant to establish his or her identity before the RPD affords
the Board the basis to dismiss a refugee claim in its entirety. Counsel is
correct in this regard. Section 106 of the IRPA provides that the RPD “…
must take into account, with respect to the credibility of a claimant, whether
the claimant possesses acceptable documentation establishing identity, and, if
not, whether they have provided a reasonable explanation for the lack of
documentation … ”. It is firmly-settled that if a claimant does not establish
his or her identity, the Board need not consider the merits of a putative
refugee’s claim and may reject it out of hand (Flores v Canada (Minister of
Citizenship and Immigration), 2005 FC 1138 at paras 7 and 9, [2005]
FCJ No 1403).
[7]
For
the reasons set out below, I am of the view that the RPD’s identity finding was
reasonable and, accordingly, that this Application for Judicial Review will be
dismissed.
[8]
It
is well-settled that the standard of review applicable to the RPD’s identity
findings is reasonableness (see e.g. Aguebor v Canada (Minister of
Citizenship and Immigration) (1993), 160 NR 315, [1993] FCJ No 732 (FCA) at
para 4; Singh v Canada (Minister of Employment and Immigration) (1994),
169 NR 107, [1994] FCJ No 486 at para 3; and Cetinkaya v Canada (Minister of
Citizenship and Immigration), 2012 FC 8, [2012] FCJ No 13 at para 17; Rahal
v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at
paras 22, 48).
[9]
The
Applicant asserts that there are two points which render the RPD’s identity
finding unreasonable. First, the Applicant argues that because the RPD found
there to be some similarities between the Identity Card and the photograph of
the Applicant taken on his entry into Canada, it ought to have
engaged an expert to provide an opinion on identity instead of determining on
its own that the Applicant was not the individual in the Identity Card. Second,
the Applicant asserts that the RPD unreasonably ignored the other photographs
in the Record. In this regard, the Applicant filed a copy of what he alleged
was his Record of Re-Testing and Re-Assessment, a state-issued card (that
contained a blurred photo and purported to speak to the Applicant’s credentials
as a chef). He also filed a picture of people that he said were his parents
with a very young male, but that picture has no names on it.
[10]
The
first point raised by the Applicant can be disposed of very quickly as the case
law firmly establishes that the RPD is empowered to make a finding that an
individual is – or is not – the person in the photograph in a piece of identity
documentation filed by a claimant and need not have resort to expert testimony
before making such a finding (see, for example, Kazadi v Canada (Minister of
Citizenship and Immigration), 2005 FC 292 at para 12, [2005] FCJ No 349; Santos
v Canada (Minister of Citizenship and Immigration), 2007 FC 1119 at para 22;
Flores v Canada (Minister of Citizenship and Immigration), 2005 FC 1138
at para 9; Akindele v Canada (Minister of Citizenship and Immigration),
[2002] FCJ No 68, 2002 FCT 37 at para 5; Hossain c Canada (Ministre de la
Citoyenneté et de l'Immigration), [2000] FCJ No 160, 102 ACWS (3d) 1133 at
paras 4-5; Tshimanga v Canada (Minister of Citizenship and Immigration),
[1999] FCJ No 891 at para 22; and Tcheremnykh c Canada (Ministre de la
Citoyenneté et de l'Immigration), [1998] FCJ No 1310) at paras 9-10). Thus,
it was not unreasonable for the Board to have made the determination in
question concerning the Applicant’s identity without expert evidence.
[11]
As
for the Applicant’s second argument, it was perfectly reasonable for the Board
to have not considered the other photographs in the Record. Turning, first, to
the Record of Re-Testing and Re-Assessment, the photograph contained in the
copy of that document which was filed with the RPD was so blurry that it could
not establish anything. More importantly, though, what was at issue in terms of
the Applicant’s identity for purposes of his refugee claim was whether he was
present in Guangxi Province in 2009, when the alleged persecution by the PSB
was claimed to have occurred. The Record of Re-Testing and Re-Assessment was
totally irrelevant to this central issue as it was issued in 2007. Likewise,
the family photograph was of no utility in establishing the Applicant’s
identity as it had no names on it – the family photo could well be of the
Applicant but that does not mean he is who he claimed to be.
[12]
The
RPD’s identity finding was therefore completely reasonable. Indeed, that is
aptly demonstrated by the photographs of the Applicant taken by Citizenship and
Immigration Canada upon the Applicant’s arrival in Canada and the
photograph in the Identity Card. From even a cursory glance at the two
documents, it is clear that the photographs are of two different people.
[13]
Accordingly,
this Application for Judicial Review will be dismissed.
[14]
No
question for certification under section 74 of IRPA was presented and none
arises in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. This
Application for Judicial Review of the RPD’s Decision is dismissed.
2. No
question of general importance is certified.
3. There
is no order as to costs.
"Mary
J.L. Gleason"
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