Docket: IMM-3337-03
Citation: 2004 FC 274
Toronto, Ontario, February 24th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
BAI QUAN YANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The Board in this case made the finding that the applicant was not credible based on differences between his PIF and his oral testimony.
[2] While it accepted the fact that the applicant's wife had to undergo a forced abortion under China's one child family and that she suffered haemorrhaging as a result thereof, it did not accept the fact that she since has suffered from anaemia and therefore cannot not be forcefully sterilized.
[3] This finding of credibility was not unreasonable under the circumstances and the Court would not normally disturb it.
[4] However the Board went further and stated:
The panel does not believe the claimant. Instead, it believes that his spouse, who underwent forced abortion three years ago and has remained at home in China, has indeed be sterilized.
[5] This is a mere conjecture by the Board. There is no evidence whatsoever in the record that the wife has indeed been sterilized.
[6] The Board can make finding of credibility, it can reject evidence for good reason, it can make findings of plausibility but it cannot establish new facts by conjecture.
[7] This finding by the Board is essential to its overall conclusion that the Chinese authorities are no longer interested in the applicant.
[8] Given it's materiality this unsupported finding constitutes a reviewable error. The matter is therefore sent back for reconsideration by a differently constituted panel.
ORDER
THIS COURT ORDERS that
1. The decision of the Board of April 2003 is set aside.
2. The matter is referred back to the Board for reconsideration by a differently constituted panel.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3337-03
STYLE OF CAUSE: BAI QUAN YANG
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: FEBRUARY 24, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: FEBRUARY 24, 2004
APPEARANCES BY:
Carla Sturdy For the Applicant
Lorne McClenaghan For the Respondent
SOLICITORS OF RECORD:
Carla Sturdy
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040224
Docket: IMM-3337-03
BETWEEN:
BAI QUAN YANG
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER