Toronto, Ontario, March 9th, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The present Application concerns the rejection by the Refugee Protection Division ("RPD") of the Applicant's claim for protection based on a well-founded fear of persecution in China as a Falun Gong practitioner.
[2] A unique element of the decision rendered by the RPD is the comparison of the Applicant's PIF narrative against the details of the PIF in six other Falun Gong claims. The PIFs in each of the seven claims were written with the aid of the same interpreter (Mr. Yang), and argued before the RPD by the same lawyer. In the RPD's decision, precise attention is given to the similarities between the seven claims under inspection, and two critical findings are made as a result of the analysis.
[3] The first critical finding made by the RPD reads as follows:
I make no adverse finding whatsoever regarding the credibility or integrity of Mr. Yang. I am left puzzled and without any sufficient explanation to account for the similarities of the PIF narratives, including the one in this case. However, I note that the interpreter has described a process whereby somehow seven different claimants have provided seven narratives that are, with the exception of a few details, essentially identical, frequently even in wording.
[Emphasis added]
(Decision, p.6)
The second critical finding is as follows:
The claimant in this case is responsible for his own written narrative, although he professed to have no knowledge of how this situation of strikingly similar narratives came to be. I am aware of the requirement that I believe the claimant unless I have reason to believe otherwise (Maldonado); however, common sense tells me that seven such similar PIF narratives cannot come independently from seven different claimants who do not know each other, who have no knowledge of why the PIF narratives are so similar, who in many cases lived in widely separated Chinese cities, and who all happen to have employed the same interpreter and counsel. Given the submission of seven strikingly similar PIF narratives, on a balance of probabilities, I find this claimant's PIF narrative is insufficiently personal to be credible. The similarities are so striking that I take a negative inference with respect to the veracity of the story alleged by the claimant in this case.
[Footnotes omitted] [Emphasis added]
(Decision, p.8)
[4] It is obvious that the investigation and analysis of the seven cases conducted by the RPD in the decision under review is the result of a suspicion that a lie is being perpetrated in the course of advancing the Applicant's claim. With respect to the right of the RPD to conduct the analysis, Counsel for the Respondent argues that, by s.17(1) of the Refugee Protection Division Rules, the RPD was entitled to use information from the other claims in the determination of the Applicant's claim. I have no difficulty with this argument. The issue in the present case does not relate to the fact that the comparative analysis was conducted, it relates to the fact that the result of the analysis was inconclusive.
[5] There is no suggestion that either the interpreter, or Counsel for the Applicant had done anything wrong. When questioned about the similarity in the cases during the hearing before the RPD, the Applicant simply said "I'm just telling my story; my story is true, I don't have any idea about other people" (Tribunal Record, pp. 690-691). As a result, I can understand how the RPD was left "puzzled and without any sufficient explanation" with respect to the similarities between the PIFs. Read in context, this statement is a finding that the suspicion that a lie was being perpetrated in advancing the Applicant's claim was not substantiated.
[6] Given this result, I find that it was incumbent on the RPD to exclude the unsubstantiated suspicion from the decision-making process. This the RPD did not do. Indeed, the way the decision reads, the RPD proceeded to use the unsubstantiated suspicion to find that the Applicant's "PIF narrative is insufficiently personal to be credible". In my opinion, this negative credibility determination is based on an extraneous consideration, being the unsubstantiated suspicion. As a result, I find that the negative credibility finding is made in reviewable error.
[7] During the course of the oral hearing of the present Application, Counsel for the Respondent argued that, regardless of the reviewable error, as there are other problems with the Applicant's evidence which are capable of founding a negative finding of credibility, the RPD's decision should not be set aside. I do not accept this argument. In my opinion, the erroneous credibility finding is so central to the RPD's decision that it overshadows all other findings that were made adverse to the Applicant's interests. As a result, I find that the RPD's decision is patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
There is no question to certify.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2708-05
STYLE OF CAUSE: SHAO BO BAO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 8, 2006
REASONS FOR ORDER: Campbell J.
APPEARANCES:
| John Savaglio 905-839-7290
|
|
| Claire LeRiche 416-973-2087 |
SOLICITORS OF RECORD:
| John Savaglio Toronto, Ontario
|
|
| John H. Sims Q.C. Deputy Attorney General of Canada |