Date: 20071106
Docket: IMM-5623-06
Citation: 2007 FC 1149
Ottawa, Ontario, November 6th, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
HONG
RUI ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In 2000, Ms. Hong Rui Zhang came to Canada from China as a skilled
worker. It subsequently came to light that she had submitted false documents to
obtain permanent residence here. At that point, she made an application for
refugee protection. A panel of the Immigration and Refugee Board dismissed her
claim because of a lack of credible evidence.
[2]
Ms. Zhang argues that the Board erred in its analysis of the evidence
and asks me to order a new hearing before a different panel. I agree with Ms.
Zhang and will allow this application for judicial review.
I. Issue
[3]
Was the Board’s finding that Ms. Zhang’s testimony lacked credibility
based on the evidence before it?
II. Analysis
[4]
I can overturn the Board’s findings of fact only if they were out of
keeping with the evidence.
(a) Factual
Background
[5]
After Ms. Zhang became a permanent resident, she returned to China, got
married to Mr. Han Dehui, and sponsored his entry to Canada. Mr. Han arrived in
Canada in January 2003. The relationship quickly soured. At one point, Ms.
Zhang locked him out of their apartment. Mr. Han phoned Ms. Zhang and
threatened her physically. He also threatened to tell Canadian immigration
officials that she had filed false documents in support of her permanent
residency application. Later, he did just that.
[6]
Ms. Zhang read some of her husband’s e-mails, which showed him to be
exchanging intimate messages with a woman whom he called his “dear wife” and
who called him her “dearest husband”. Naturally, Ms Zhang suspected her husband
was having an affair. This caused her to wonder about his motives for marrying
her.
[7]
Ms. Zhang kept a tape of one of Mr. Han’s voice mail threats. A
transcript of the message states:
Male: Zhang
Hongrui, listen to me. I came back to get my stuff, but you already changed the
lock. Now I cannot open the door. Please contact me as soon as possible.
Otherwise, you shall be responsible for all the subsequence. Please remember:
If I want to find you, I can surely find you no matter where you hide.
Female: Who
is it? You are?
Male: I
am Han Dehui!
[8]
The female voice on the tape belongs to Mr. Han’s sister, who could be
heard in the background.
[9]
Mr. Han returned to China after less than a month in Canada. The couple
subsequently divorced. Ms. Zhang testified that she did not attend the divorce
proceedings in China in 2005.
[10]
Ms. Zhang claims that if she returns to China her former husband will
cause her physical harm. Further, she fears he will denounce her as a Falun
Gong practitioner. Ms. Zhang says that Mr. Han had previously made threats
along those lines after he found Falun Gong materials in her possession (even
though she was not a follower of Falun Gong).
(b) The
Board’s Decision
[11]
The Board disbelieved important parts of Ms. Zhang’s evidence. I will
review the main areas of the Board’s concerns.
[12]
The Board did not accept Ms. Zhang’s evidence about her husband’s
alleged affair because, in the Chinese divorce proceedings, the Court noted
that Ms. Zhang had failed to provide sufficient evidence that her husband had
had “extramarital love”. It is not clear, though, what evidence Ms. Zhang had
provided the Chinese Court. The Board did not ask her about that or give any
reason for doubting the significance of the e-mails.
[13]
The Board also doubted that the voice mail message Ms. Zhang had
recorded came from Mr. Han. The Board noted that the message was too polite and
formal – using his and her full names, as well as the word “please”. The Board
also wondered why Ms. Zhang had not recognized her husband’s voice and had to
ask “who is it?” The Board stated:
The claimant was asked to explain
why she asked “who is it” she explained because his sister was in the
background. . . It is reasonable to expect, given her explanation that she
heard his sister’s voice in the background, she would know that it was her
husband.
[14]
The Board appears to have been confused about this evidence. The person
who stated “who is it” was Mr. Han’s sister, whose voice could be heard in the
background, not Ms. Zhang. The interpreter stated that those words could also
mean “state your name”. In other words, Mr. Han’s sister was urging him to
identify himself in the voice message to Ms. Zhang. Further, had the Board
indicated during the hearing that it was in any doubt about whether the message
had been left by Mr. Han, Ms. Zhang had with her a witness who could have
confirmed it. The Board assured Ms. Zhang that it would not be necessary to
hear from the witness on that point.
[15]
The Board doubted Ms. Zhang’s testimony that she did not attend the
divorce proceedings in China. The significance of this point was that the Board
concluded that Mr. Han could have harmed her while she was in China the last
time. Since he did not, it appeared that she was not in any danger from him.
The Board’s doubt arose from the fact that the Chinese court stated in its
judgment that Ms. Zhang had appeared in person. However, Ms. Zhang was not
asked about this at the hearing. Again, had it appeared necessary, Ms Zhang
could have produced evidence showing that the Chinese court had erred.
[16]
The Board was also concerned that Ms. Zhang had failed to mention her
fear of her husband when she was interviewed by an immigration officer
regarding the problems with her permanent residency status. The Board quoted a
passage from the officer’s report indicating that Ms. Zhang did not wish to
return to China because she would have trouble getting a job. However, the
Board failed to mention that the officer’s handwritten notes indicated that Ms.
Zhang had indeed stated that she had been threatened by her husband.
[17]
The Board also drew an adverse inference from the fact that Ms. Zhang
had not claimed refugee status in Canada until after she had been ordered
deported. In fact, Ms. Zhang made her refugee application when she realized
that her permanent residency status was in jeopardy. She was not under a
deportation order at that point.
[18]
Based on all of these concerns, the Board concluded that Ms. Zhang’s
case amounted merely to speculation about how her husband might behave if she
returned to China.
(c) Conclusion
[19]
In my view, the Board’s negative credibility findings are not supported by
the evidence that was before it. Accordingly, I must allow this application for
judicial review and order a new hearing before a different panel. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that :
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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