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Federal Court
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Cour fédérale
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Date: 20090923
Docket: IMM-5132-08
Citation: 2009
FC 954
Ottawa, Ontario, September 23, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
YU YUN CHEN
YI CHEN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms. Chen
is a Chinese Christian. She seeks refuge in Canada for herself and her young son on the
basis of religious persecution. She claims that her underground church was raided
one day when she was not there, and that had she not been alerted and gone into
hiding she would have been arrested.
[2]
Although
the Member of the Immigration and Refugee Board who heard her case accepted
that she was a Christian, he did not believe the rest of her story. He preferred
country documentation which indicated that in Fujian Province from where she hails, it is most
unlikely that she would be persecuted given the size and type of church to
which she belonged. He concluded: “I have carefully
reviewed the documentary evidence and find, on a balance of probabilities, that
the house church the claimant attended was never raided by the authorities and
consequently, the claimant is not wanted by the [police]”.
[3]
Counsel for Ms. Chen points out that there is
other documentary evidence, some more recent than that cited by the Member, which
suggests a clamp down in Fujian
Province. This type of submission is repeated time and time again and is
invariably met with a retort from the Minister that the Court is being asked to
reweigh evidence. If it was reasonably open for the Member to prefer country
conditions over the claimant’s testimony, then the decision should not be set
aside. I agree with that submission as a general proposition. In this case,
however, we simply do not know what was before the Member and what he took into
consideration.
[4]
Counsel for the Minister, who impeccably
discharged her duty as an officer of the Court, stated that the application for
leave was not opposed because the footnotes in the reasons for decision simply
did not make sense. After leave was granted, the Tribunal, i.e. the Registrar
of the Refugee Protection Division of the Immigration and Refugee Board,
prepared the record for the parties and for the Court. The Registrar produced
the documents as identified in the footnotes. Upon reviewing these documents, counsel
was by then more than convinced that a number of the footnotes were incorrect.
The Board was duly informed that the record was incomplete and a supplementary
record was attached correcting four footnotes and providing the missing
material.
[5]
After spending days sorting this out, counsel
came to the conclusion that the errors in the decision were simply clerical
errors in the footnoting. The Minister consequently took the position that the
decision was reasonable and therefore opposed the judicial review. Counsel
candidly pointed out, however, that leaving aside the citation for the
Immigration and Refugee Protection Act; there were 15 other footnotes,
10 of which were wrong.
[6]
Judicial
review must be granted as one simply cannot tell what country documentation was
before the Member and on what he relied. A document clearly relied upon was the
2007 British Home Office Report. It had been, however, updated by a 2008
report as shown by the index to the Board’s National Documentation Package
for China. Counsel points out that the two reports are the same.
[7]
With
respect, that is not the point. It is simply fortuitous that there was no
change in that report. If the Member was looking at the 2007 Report, who is to
say he considered other reports authored subsequent to the 2007 Report which
could be construed as casting a different light on the situation in Fujian Province. Procedural fairness demands
that a decision be rendered after taking into consideration the entire record. By
analogy, Rule 397 of the Federal Courts Rules provides that although
clerical mistakes may be corrected at any time by the Court, the Court may
reconsider an order if “…a matter that should have been dealt with has been
overlooked or accidentally omitted.” It sometimes happens, particularly with motions
in writing under Rule 369, that the Duty Judge rendered a decision on an
incomplete record submitted by the Registry. In Canada (Minister of Citizenship and
Immigration) v. Dhaliwal-Williams (1996), 116 F.T.R. 29, 34 Imm. L.R. (2d) 47, the Registry
had received information relevant to a motion in writing but had inadvertently not
placed it before the Court before it made its decision. The Court reconsidered
the resulting order. So it must be in this case.
ORDER
THIS COURT ORDERS that:
1.
The
application for judicial review is granted.
2.
The matter
is referred back to another Member of the Refugee Protection Division of the
Immigration and Refugee Board.
3.
There is
no serious question of general importance to certify.
“Sean Harrington”
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