Ottawa, Ontario, April 26, 2006
PRESENT: The Honourable Mr. Justice Gibson
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
GIBSON J.
[1] The Applicant alleges that she is a citizen of the People's Republic of China. She apparently arrived in Canada from Hong Kong on the 20th of August, 2004. A few days thereafter, she filed her claim to Convention refugee status or like protection in Canadabased upon an alleged fear of persecution or like treatment if she is required to return to the People's Republic of Chinaderiving from her political opinion and her Christian religion.
[2] In a decision dated the 10th of June, 2005, the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board determined that the Applicant was not entitled to Convention refugee protection or like protection. The Applicant sought judicial review of that decision. These reasons follow the hearing of the Applicant's application for judicial review.
BACKGROUND
[3] The Applicant alleges that she is a lifetime resident of the area of Guangxi in the People's Republic of China. She alleges that she has very limited education and has lived a rural lifestyle with extensive farming experience. While she was married, she is now divorced. She has two sons, one born in 1992 and the other born after she arrived in Canada on the 9th of April, 2005.
[4] The Applicant arrived in Canada, apparently travelling with a smuggler who posed as her partner, and presented a counterfeit Canadian passport. While her picture was in the passport, the name disclosed therein was not hers. She alleges that she travelled to Canada via Hong Kong and that she travelled to Hong Kong from her home, by bus. She testified that, throughout her travels, she relied entirely on the smuggler who travelled with her. She alleged that she was not coached regarding her false identification and she was able to present to the RPD nothing to confirm her travel such as boarding passes, luggage tags, bus or airline tickets. While she was able to adduce before the RPD her Resident Identity Card and her Hukou, or household registration, she had no birth certificate alleging that it was given up to authorities in order to get her household registration.
THE DECISION UNDER REVIEW
[5] Early in its reasons for decision, the RPD wrote:
The central and primary issues are the claimant's [here the Applicant's] identity and country of nationality, as she had entered Canada allegedly using a false passport issued by Canada.
[6] Under the hearing "Determination", the RPD continued:
After considering the totality of the evidence, representations, relevant documents and statutory provisions and case law, the panel finds the claimant failed to provide sufficient credible or trustworthy evidence to establish her identity and discharge her onus that she has good grounds for fearing persecution and that there is a serious possibility that she would be persecuted should she return to the PRC.
Moreover, the claimant failed to meet her onus that, on a balance of probabilities, she would face a risk to her life or she would be subjected to a risk of cruel and unusual treatment or punishment and that there is credible or trustworthy evidence to suggest that substantial grounds exist to believe that she would "more likely than not" be subjected to a danger of torture within the meaning of Article 1 of the Convention Against Torture, if she were to return to the PRC.
[citations omitted]
[7] The RPD found that, on a balance of probabilities, the claimant failed to establish her personal identity and that she is a national of the People's Republic of China. In support of this conclusion it wrote:
In this case, the claimant failed to submit acceptable documentation establishing her identity. Serious inconsistencies, implausibilities and omissions existed in the claimant's evidence. The claimant failed to provide reasonable or persuasive explanations, casting serious doubt on the acceptability of the documents.
[8] While noting the absence of documentation to support her alleged travels to Canada, the RPD examined at some length issues that it found regarding the Applicant's Hukou, or residence record and her Resident Identity Card. It concluded that all of the documents submitted by the claimant are not genuine. In the result, it assigned no weight to the documentation submitted. It concluded:
Consequently, the panel finds the claimant failed to produce sufficient credible documents and evidence to establish her identity as a national of the PRC. The panel acknowledges that the claimant speaks the Cantonese language, however, this language is spoken in a number of countries. The panel cannot make a finding of the claimant's country of nationality, based on this fact alone. Since the claimant failed to establish her identity, the first step for a person claiming refugee protection, the panel will not further analyze whether she faces persecution and/or is in need of protection, based on the claimant's perceived religion and political opinion.
THE ISSUES
[9] While, in the memorandum of fact and law filed on behalf of the Applicant, counsel raises eight (8) issues, I am satisfied that the substance of those issues is whether or not the RPD erred in a reviewable manner in its conclusions regarding the identity of the Applicant and in its alleged application to the Applicant, an allegedly unsophisticated person from a rural background and with very limited education, of a burden equivalent to that that would be appropriate to a much more sophisticated person.
[10] In a further memorandum of argument filed after leave on this application for leave and judicial review was granted, counsel raised on behalf of the Applicant the issue of whether or not the RPD denied fairness or natural justice to the Applicant in conducting the hearing before it on the basis of "reverse order questioning", that is, with the RPD itself commencing the questioning and with counsel for the Applicant only having an opportunity to question the Applicant after the RPD itself had completed its questioning.
ANALYSIS
[11] I will deal first, and briefly, with the issue of reverse order questioning.
[12] It was not in dispute that no objection was made in advance of, at the beginning of, or during the course of, the hearing before the RPD, with respect to the order of questioning. Indeed, as earlier noted, the issue was not even raised before this Court in the application for leave and for judicial review or in the memorandum of argument that was before my colleague who granted leave in this matter.
[13] In Benitez v. The Minister of Citizenship and Immigration[1], my colleague Justice Mosley concluded with respect to the "reverse order questioning" or Chairperson's Guideline 7 issue, at paragraph 235 of his reasons:
...If the issue of Guideline 7 is only raised in a further memorandum of fact and law filed subsequent to the granting of leave, there has been an implied waiver and the applicants are restricted to the issues identified in the initial application and memorandum.
While there is conflicting authority on this issue in this Court, I adopt the foregoing conclusion as my own.
[14] Justice Mosley certified the following question with regard to his quoted conclusion:
When must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?
[15] In light of the conflicting authority in this Court, I will certify the same question with respect to this matter.
[16] Turning then to the issues of identity and credibility, while it was not in dispute that the applicable standard of review of the RPD's decision regarding credibility is patent unreasonableness, there is difference of opinion in this Court on identity issues. In Niyongabo v. The Minister of Citizenship and Immigration[2], my colleague Justice Beaudry wrote at paragraphs [21] and [22]:
The jurisprudence of this Court is not unanimous on the issue of the applicable standard of review to the Board's finding regarding a claimant's identity.
In Mayuma v. Canada(Minister of Citizenship and Immigration),... I applied the standard of patent unreasonableness. In Rasheed v. Canada(Minister of Citizenship and Immigration), ... my colleague Justice Martineau applied the standard of reasonableness... .
[citation omitted]
Also very recently, my colleague Justice Phelan, in Li v. Canada(Minister of Citizenship and Immigration)[3] adopted, with a reservation, the patently unreasonable standard of review. At paragraph 5 of his reasons, Justice Phelan wrote:
In determining the standard of review, the Court must analyse what aspect of the decision is being challenged. Is it the credibility of the applicant's story or is it the validity of or, alternatively, the authenticity of documents? I adopt Justice O'Reilly's analysis in Bouyaya v. Canada(Minister of Citizenship and Immigration)... that both the identity of the applicant and the authenticity of documents is subject to a patent unreasonableness standard whereas less deference is owed to the determination of the validity of foreign documents.
[citation omitted, emphasis added]
Whether the appropriate standard of review is patent unreasonableness, and that is undoubtedly the case in respect of the Applicant's credibility, or reasonableness simpliciter, in respect of identity where the reliability of foreign documentation, as here, is at issue, I am satisfied that the result in this matter is the same.
[17] Counsel for the Applicant urged that the RPD scrutinized the Applicant's foreign-issued documentation in an overly critical manner. I cannot agree. In circumstances where the Applicant, as here, arrived in Canada on a false Canadian passport, under the guidance, if not the domination, of a smuggler, I am satisfied that it was incumbent on the RPD to very critically examine the Applicant's other documentation going to her identity and the Applicant's responses to questions relating to that documentation. There is no question but that it did so. Based upon that critical examination, it chose to find her identity documentation untrustworthy. I am satisfied that that conclusion was open to it and that the RPD's examination of the Applicant at hearing was entirely reasonable notwithstanding the Applicant's alleged very limited education and alleged rural life experience. A close review of the transcript leads me to the conclusion that the RPD was both patient and sensitive in its examination of the Applicant.
CONCLUSION
[18] For the foregoing brief reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[19] As earlier indicated, a question will be certified with regard to the "reverse order questioning" or Guideline 7 issue. Counsel for the Applicant requested that the following additional question be certified:
In view of this Court's finding in Ramalingam v. M.C.I., IMM-1298-97 and Chidambaram v. M.C.I., [2003] F.C.J. No. 81, 2003 FCT 66, that the authenticity of documents is not within the Refugee Protection Division's specialized knowledge, can the RPD conclude that a state-issued identity document is not authentic, based upon some physical aspect of the document, without either an expert's report or direct extrinsic evidence that those apparent physical anomalies are indicative or conclusive of malfeasance?
Where a question is certified, certification of a second question is not required. All issues on a decision of this Court on an application for judicial review are open for consideration before the Federal Court of Appeal.[4] In the circumstances, I decline to certify the additional question proposed on behalf of the Applicant.
Ottawa, Ontario.
April 26, 2006.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4127-05
STYLE OF CAUSE: ZHIYING WU
Applicant
and
THE MINSITER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2006
APPEARANCES:
| Marvin Moses |
|
|
Vanita Goela |
|
SOLICITORS OF RECORD:
| Marvin Moses Law Office Toronto, Ontario
|
|
| John H. Sims, Q.C., Deputy Attorney General of Canada Toronto, Ontario
|