Ottawa, Ontario, February 9, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
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.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1570-06
STYLE OF CAUSE: GANG LIU, Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 30, 2007
APPEARANCES:
LEONARD H. BORENSTEIN FOR THE APPLICANT
AVIVA BASMAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
LEONARD H. BORENSTEIN FOR THE APPLICANT
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA