Date: 20070209
Docket: IMM-1570-06
Citation: 2007 FC 151
Ottawa, Ontario, February 9, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
GANG LIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr. Gang Liu
says that he is a citizen of the People’s Republic of China and a Falun Gong
practitioner. His claim for refugee protection was heard and rejected by the
Refugee Protection Division of the Immigration Refugee Board (Board). The
Board found that Mr. Liu failed to establish his identity. The Board went on
to find that even if it had accepted Mr. Liu’s identity, he had failed to
demonstrate that he left China because he feared persecution for being a Falun
Gong practitioner.
[2] On
this application for judicial review of that negative decision, counsel for the
Minister did not attempt to argue that the Board’s alternate finding was
sufficient in order to sustain the Board’s decision. Counsel candidly
acknowledged that the Board’s alternate finding was not strong. I agree with
that characterization.
[3] Instead,
counsel for the Minister argued that the Board’s conclusion that Mr. Liu had
not established his identity is determinative of this application. She pointed
to the following specific findings of the Board with respect to Mr. Liu’s
identity:
(a) The Board noted that the applicant gave different answers when
asked how he was introduced to the agent who arranged his trip (“he at first
said it was through his brother’s friend, then his cousin’s brother’s friend,
then his schoolmate’s friend, and finally that it was through his cousin’s
school friend.”)
(b)
The applicant stated that he had never handled the passport, but then
stated that the smuggler had retrieved it from him at the airport in Toronto.
The Board found these statements to be inconsistent.
(c) The Board found it implausible that the smuggler would not have
warned the applicant not to travel with identity documents in his name when he
was traveling on a false passport (in a different name), since it would place
the smuggler at risk with Immigration officials.
(d)
The Board noted that on arrival in Canada the applicant was
uncooperative in his initial interview with a Senior Immigration Officer.
Specifically, Mr. Liu failed to tell the officer who had assisted Mr. Liu in
his travel to Canada, the route he took to travel to Canada, and the documents
he used to facilitate his travel to Canada. The Senior Immigration Officer
concluded that “Gang Liu is not credible. As he has shown an ability to obtain
and use fraudulent identification, there are reasonable grounds to believe that
the identification found on him, may also be fraudulent. When his lack of
co-operation, his non-compliance with the act and his omissions are considered
in conjunction with all the other aspects of his entry to Canada, taking into
account the factors enumerated in Regulations 245(d), 247(1)(a),
247(1)(b), 247(1)(c), there are reasonable grounds to believe
that Gang Liu has failed to establish his identity, and that his identity may
yet be established”.
(e)
In the applicant’s Port of Entry (POE) interview, he stated that he had
been issued a passport, which was in China, and that he could obtain it. This
passport was not produced.
(f)
The Board noted that the applicant’s hukou was not current, that
his Resident Identity Card was suspected fraudulent and that objective
documentary evidence demonstrates that fraudulent Resident Identity Cards are
readily available.
[4] But
for the matter discussed below, I would have deferred to the Board’s
determination that Mr. Liu had not established his identity, for the reasons
given by the Board, all of which were supported by the evidence, and none of
which were patently unreasonable.
[5] However,
a review of the transcript of the proceedings before the Board reveals the
following:
1.
At the commencement of the hearing, the Board advised as follows:
Now, identity is also an issue in
all claims before the Board. And I’m going to hold on making a decision on
identity, because I’ll be questioning you on your identity documents. And
secondly I’m going to request from Immigration your resident identity card. And
as I say, we already have translations and so I can question you on those
translations of documents. But I will be getting a forensic examination of
the resident ID card, which is what we had requested in the beginning. And
you have indicated that you wanted to proceed and so we will do that in a fair
manner. Should there be anything untoward in the evaluation of the resident
identity card I will inform your counsel. And there is an option to resume
the hearing based on any assessment. And your identity as affiliation with the
Falun Gong movement will be adduced during the course of the hearing, since
that association lies at the heart of your claim and we have no documents
before us to indicate that you are a member of Falun Gong.
[underlining added]
2.
At the conclusion of Mr. Liu’s testimony, the Board stated:
PRESIDING MEMBER: All
right. Okay. And, counsel, do you have submissions? I’m going to be
asking for a forensic check on the resident ID card. Did you want to wait
until after that comes in or do you want to make submissions now and then –
COUNSEL: I can make
submissions on everything but that now and then if there’s anything in addition
to add I can certainly --- [underlining
added]
3. After the Board heard
counsel’s submissions, the hearing terminated on the following basis:
PRESIDING MEMBER: Okay,
Counsel, I’m going to, as I indicated, request the original resident ID card
back for examination. And at that point I will make my decision. I’ll, at
that point, start to go over all of the evidence and make a decision. And if
it’s necessary to come back to talk about the report, I’ll inform you.
So, we’re now, sir, we are now
adjourned for a forensic examination of your resident identity card. The
submissions are in and your examination by this panel is completed. However,
sir, if there is any necessity for you to come back, we’ll inform you. Okay?
[underlining added]
[6] Neither
the tribunal record nor the reasons of the Board shed any light upon whether
any forensic testing took place, and, if it did not, why the Board chose to
render its decision some nine months later without receiving the results of the
forensic verification that appeared to be so important to the Board at the time
of the hearing.
[7] In
these very unusual circumstances, I am of the view that the Board’s conclusion
on identity is evidently not in accordance with reason. Put another way, in
view of the Board’s statements quoted above, no amount of curial deference can
justify allowing the Board’s finding on identity to stand. As such, the
finding is patently unreasonable. See: Law Society of New Brunswick
v. Ryan, [2003] 1 S.C.R. 247 at paragraph 52.
[8] For
this reason, the application for judicial review will be allowed. Counsel
posed no question for certification and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division dated March 3, 2006 is hereby set
aside.
2. The matter is remitted to a differently constituted panel of
the Refugee Protection Division for redetermination.
“Eleanor R. Dawson”
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