Date:
20121218
Docket:
IMM-3570-12
Citation:
2012 FC 1491
Toronto, Ontario,
December 18, 2012
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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YONG KAI REN
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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 challenges a decision of the Refugee Protection Division
(RPD) in which the Applicant’s claim for refugee protection as a citizen of
China and a Falun Gong adherent was rejected on the basis that the Applicant
had not established his personal identity, his nationality, and his country of
reference. The RPD made no substantive findings with respect to the evidence tendered
by the Applicant in support of the claim under s. 96 and s. 97 of the IRPA.
[2]
To
prove his identity, nationality and country of reference the Applicant submitted
the following identify documents: birth registration; graduation certificate;
employment card; Hukou; driver’s licence; student visa; and passport. While the
RCMP forensic analysis of the documents did not provide an opinion that any are
fraudulent, with respect to the first three on the list some evidence was provided
which caused the RPD to reach the conclusion that they are fraudulent (Tribunal
Record, pp. 151 – 152), a finding which is highly contested in the present
Application. With respect to the Hukou, driver’s licence, student visa, and passport,
in my opinion, the following passages from the decision under review constitute
an acknowledgement by the RPD that no forensic evidence was provided that could
ground a finding that they are fraudulent (Tribunal Record, pp. 229 – 230). But,
nevertheless, the documents were not accepted by the RPD as identity documents
on the following reasoning:
The claimant's Family Register
(Hukou) and his Driver's License were found to be unaltered and to be printed
using quality printing processes. As outlined above, the panel finds that the
claimant provided at least three fraudulent documents in support of his
personal identity. Given the concerns with the claimant's testimony
related to his Hukou and Driver's License outlined above, and given the fact
that fraudulent documents, including those which are genuine but which are illegally
obtained, are available throughout China, the
panel finds that it cannot place weight on these two documents in support of
the claimant's personal identity and nationality.
The panel finds that the
claimant's testimony related to his passport and the disclosure of the
passport at the May 25, 2011 sitting undermined the claimant's credibility as a
witness. A forensic analysis of the passport was inconclusive as no genuine
specimen was available for comparison. The forensic report concluded, however,
that the student visa was a genuine, unaltered document.
[Emphasis added]
(Decision, paras. 25 – 26)
[3]
The
“concerns with respect to the claimant’s testimony” expressed by the RPD with
respect to the Hukou and drivers licence are that “the documents had no
distinct odour and appeared to be in pristine condition”. The RPD used this
observation to conclude that, since the Applicant testified that at a certain point
in the past he had kept the documents in a box under his bed in his house
heated by wood and coal, “it [is] implausible that a paper documents [sic] which
was stored in a farm house where wood was used to cook and heat would not
absorb any distinct odour of smoke or of the home”. The RPD member said that
this conclusion was reached by “judicial notice of the documents and using his
common sense and logic” (Decision, para. 22). In my opinion, the findings quoted
above display reviewable error; the finding that the first three documents are
fraudulent cannot be used to discredit the apparently genuine Hukou and
driver’s licence; there is no evidence that the Hukou and driver’s licence were
illegally obtained; the implausibility finding based on negative odour is
unsupportable on the evidence on the record; and in reaching the implausibility
finding there was no notorious fact nor common sense or logic in play, only
speculation.
[4]
With
respect to “the claimant’s testimony related to his passport” as undermining
his “credibility”, the Applicant testified that he was issued a genuine
passport through official channels and it took two months for it to be
produced. However, relying on a Response to Information Request, the RPD found
that Chinese passports “are generally ready within 15 business days of the date
of application and are sometimes available on a priority basis sooner”. The
Applicant was asked to provide an explanation for the perceived discrepancy,
which he could not do to the RPD’s satisfaction (Decision, para. 27). I find
that there was no factual basis upon which to require the Applicant to give any
explanation: he could not know why he waited two months when the publicized issuance
expectation is 15 days; and further, by the use of the word “generally”, there
are exceptions to the expectation. In my opinion, the RPD dismissed the
Applicant’s “genuine” passport on the basis of unfounded suspicion and unfair
questioning.
[5]
For
the reasons provided, I find that the RPD’s decision is unreasonable.
ORDER
THIS
COURT ORDERS that
The decision
under review is set aside and the matter is referred back for redetermination
before a differently constituted panel.
There is no
question to certify.
“Douglas
R. Campbell”
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