Ottawa, Ontario, January 27, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Ms. Lin, a Chinese citizen, claims to be a Convention refugee or a person in need of protection because she is a Christian. The Refugee Protection Division rejected her claim because she did not present acceptable documentary evidence establishing her Chinese nationality. She seeks judicial review of the board's decision. I have concluded that her application should succeed.
FACTS
[2] Ms. Lin claims that she was introduced to Christianity in February 2001 and began to attend church regularly in March of that year. Following the arrest of two members of the church in October of 2002, she was advised to go into hiding. While in hiding, she learned that the Public Service Bureau (PSB) was accusing her of being involved in illegal religious activities and was trying to locate her. The PSB allegedly searched her house and ordered her to surrender. Fearing arrest, she fled the country.
[3] Ms. Lin provided a Resident Information Card (RIC), her daughter's birth certificate, a household registration card and a school certificate to establish her identity. The RIC was submitted to forensic testing for authenticity and was deemed counterfeit by the R.C.M.P. Ms. Lin and her counsel were so advised before the date of the hearing. Ms. Lin subsequently presented an expired RIC that had been issued in 1988. She stated that the first RIC had been held by a snakehead (smuggler) until she had paid him and then it had been sent to her by her family. She claimed not to know that it was fraudulent.
THE DECISION
[4] The RPD found that because she had provided non-genuine documents, Ms. Lin's identity could not be established. Since the RIC was found to be counterfeit, she had not met the requirements of section 106 of the Immigration and Refugee Protection Act, S.C. 2002, c. 27 (IRPA) and rule 7 of the Refugee Protection Division Rules. As a result, the board drew a negative credibility inference. The board gave no weight to the other proffered identity documents because they did not have the security features of an RIC and because of the widespread availability of forged Chinese documents.
[5] The RPD concluded that it was unable to establish Ms. Lin's identity based on the counterfeit document. It did not accept her explanation that her card had been retained by a smuggler, in part, because that information was not provided in the PIF. The board considered it implausible that a smuggler would provide a false RIC.
[6] Relying on Hussein v. Canada(Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 225 (F.C.A.), the RPD ruled that "once it was concluded that the identity of a claimant has not been established, it was not necessary for the tribunal to analyze the evidence any further".
ISSUE
[7] The issue, succinctly stated, is whether the board erred in failing to consider the totality of the evidence.
STANDARD OF REVIEW
[8] Counsel did not address the standard of review. In Rasheed v. Canada(Minister of Citizenship and Immigration) (2004), 251 F.T.R. 258 (F.C.), Mr. Justice Martineau determined that the appropriate standard of review in relation to a determination regarding the identity of an applicant is that of reasonableness simpliciter. Earlier jurisprudence employed a standard of patent unreasonableness: Al-Shammari v. Canada (Minister of Citizenship and Immigration) (2002), 23 Imm. L.R. (3d) 66 (F.C.T.D.); Ratheeskumar v. Canada(Minister of Citizenship and Immigration) (2002), 25 Imm. L.R. (3d) 280 (F.C.T.D.). In the circumstances of this matter, on either standard, the decision of the RPD must be set aside.
ANALYSIS
[9] It is the applicant who bears the onus of establishing her identity. Parliament, in section 106 of the IRPA, has placed particular emphasis on the importance of providing acceptable documentation. However, if documentation is not available, the board is obliged to consider whether an applicant has provided a reasonable explanation for its absence or has taken reasonable steps to obtain it: Rasheed.
[10] Counsel agree that the authority actually relied upon by the RPD is Husein v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (F.C.T.D.) rather than the appellate court authority cited in its decision. In Husein, Mr. Justice Joyal determined that where identity has not been established, it is not necessary for the board "to analyze the evidence any further". I concur with that conclusion. Notwithstanding, regard must be had to the context in which the statement was made. In my view, Husein does not stand for the proposition that the board need not have regard to the totality of the evidence when determining the issue of identity. Justice Joyal's comment should be taken to mean that where (on the totality of the evidence) the identity of an applicant has not been established, the board need not go on to analyze the merits of the claim. It is readily apparent from paragraphs 11 and 12 of Husein that Justice Joyal considered it incumbent on the board to base its identity determination on the totality of the evidence.
[11] The question then is whether the RPD considered the totality of the evidence in this matter. In my opinion, it did not. I agree with the respondent that it is for the board to determine the weight to be assigned to the evidence. However, it cannot properly assign weight unless it takes into consideration the evidence that is before it.
[12] The fact that the first RIC was found to be fraudulent does not necessarily mean that the second RIC, the child's birth certificate, the school certificate and the household registration card are also fraudulent. As noted, the board rejected all of the tendered documents on the basis that the RIC was fraudulent and because of the prevalence of fabricated Chinese documentation. No effort was made to ascertain the authenticity of the other documents. Ms. Lin maintained that they were authentic and that she did not know that the RIC was not genuine. She had no explanation other than the card had been in the possession of the snakehead until he was paid. The board was not satisfied with that explanation because she had not provided it earlier in her PIF. Why she would have provided such information at a time when she claims not to have known the card was fraudulent does not appear to have been considered. The PIF does state that the RIC was in China.
[13] More importantly, having reviewed the transcript, I note that the board's reasons are silent with respect to the fairly extensive evidence provided by Ms. Lin at the hearing. She responded to numerous questions relative to her background and the area where she claimed to have lived in China. That evidence, in my opinion, ought to have at least been considered by the RPD in its assessment as to whether she had established her identity. It seems to me that the board had no regard to it at all.
[14] The issue of identity is at the heart of this claim. It was unquestionably open to the RPD to determine that identity had not been established. However, to arrive at that conclusion, it must, first, have considered the totality of the evidence before it. It does not appear to me that the RPD did that. If it did, it is not evident from its reasons. In either case, the board's decision is patently unreasonable because I am unable to conclude that it was made on the basis of the material that was before the RPD member. Consequently, the decision must be set aside.
[15] Counsel did not suggest a question for certification and none arises on these facts.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted to a different member of the Refugee Protection Division for determination.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1370-05
STYLE OF CAUSE: JUN MEI LIN
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 25, 2006
REASONS FOR ORDER: LAYDEN-STEVENSON J.
APPEARANCES:
| Mr. Shelley Levine
|
|
| Mr. Robert Bafaro |
SOLICITORS OF RECORD:
| Levine Associates Barristers and Solicitors Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice |