Date: 20010606
Docket: IMM-4533-00
Neutral Citation: 2001 FCT 590
BETWEEN:
XIU BAO WANG
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (hereinafter "the CRDD"), dated July 31, 2000 wherein it determined Xiu Bao Wang (hereinafter "the applicant") not to be a Convention Refugee.
[2] The applicant claims to be a citizen of China. He claims a well-founded fear of persecution in China on the ground of religion, namely Roman Catholicism.
[3] He alleges that he arrived in Canada on December 18, 1998. He claimed refugee status on December 21, 1998 at a CIC office in Toronto.
[4] He subsequently reported to a CIC office on April 26, 1999. He presented a People's Republic of China resident identity card (hereinafter "RIC'"), in the name of Xiu Bao Wang, issued in China in December 1998. The purpose of the interview was to determine if the applicant was the same individual who entered Canada in September 1998 under the name of Shou Bao Wang.
[5] Shou Bao Wang is of Chinese extraction and entered Canada on a Dominican passport. He was to report to CIC on October 4, 1998 but failed to do so.
[6] On October 13, 1999, a hearing was opened and the applicant was questioned on the religious basis of his claim. The hearing was adjourned and resumed on May 10, 2000 in order for the Board to continue to examine the religious basis of his claim but primarily to deal with the issue of identity and pursue a section 1(E) exclusion issue.
[7] The Board found, on a balance of probabilities, that Xiu Bao Wang and Shou Bao Wang were one and the same person. It determined that Shou Bao Wang is an individual who was born in China and subsequently became a citizen of Dominica in September 1998; that he entered Canada on his Dominican passport and was to report to Immigration Canada on October 4, 1998 which he failed to do.
[8] The Board indicated in its decision that there was no reliable evidence before it that Shou Bao Wang, who entered Canada in 1998 ever departed and that Xiu Bao Wang, who claimed refugee status on December 21, 1998, had no documentary evidence to support his allegation that he entered Canada three days before, on December 18, 1998. Further, the Chinese resident identity card produced by both this applicant and Shou Bao Wang, the latter's identity card having been produced when he entered the country with his Dominican passport, were identical; both bearing serial number 350127720828387. Given that there was no evidence adduced to a well-founded fear of persecution in Dominica, the Board having found that the Minister had established identity and citizenship in Dominica, the applicant was therefore determined not to be a convention refugee.
[9] The Board's findings were based on the following:
(a) The photocopy of the photograph contained in the RIC of Xiu Bao Wang that was issued in November 1998 is almost identical to the photocopy of the photograph contained in the Dominican passport of Shou Bao Wang issued in September 1998.
(b) The color photograph of Xiu Bao Wang taken in Toronto attached to the Notice to Appear, resembles the photocopy of the photograph of Shou Bao Wang contained in the RIC issued in 1989.
(c) The genuine photograph also resembles the photocopy of the photograph contained in the Dominican Certification of Naturalization, and the photocopy of the photograph contained in the Dominican Driver's License of Shou Bao Wang. Both documents were issued in September 1998.
(d) Xiu Bao Wang and Shou Bao Wang have four almost identical physical features: eyebrows, the shape of the nose, large lower lip and a prominent thyroid cartilage.
(e) The 15-digit number contained in the RIC of Xiu Bao Wang, on a balance of probabilities, is identical to the number contained in the RIC of Shou Bao Wang.
(f) The date of birth of Xiu Bao Wang as evidenced in his RIC, Houkou, and Marriage Certificate is identical to that of Shou Bao Wang as evidenced in his Dominican passport and Driver's License.
(g) The address of Xiu Bao Wang in his RIC that was issued in 1998 is similar to that of Shou Bao Wang's which was issued in 1989. The only difference is the street number (X.B.Wang - 115 Wentou & S.B. Wang - 65 Wentou).
(h) The heights of both individuals are identical. The written names "Bao Wang" contained in the signature of Xiu Bao Wang that is evident in his PIF are identical, to the naked eye, to the written names "Bao Wang" contained in the signature of Shou Bao Wang that is evident in the Dominican passport. However, the panel noted that it made no inferences with respect to any of the writing in traditional Chinese characters.
[10] The applicant submits that the Board erred in the manner in which it proceeded to hear the evidence; that testimony was still incomplete when it decided to pursue the identity question; that the Board reached its decision before having in hand forensic proof as to the authenticity of the identity cards.
[11] The applicant further contends that due to the fact the Board member's contract was not renewed, the last possible date she could hear further evidence was June 23, 2000. At that date, important evidence regarding his identity had still not yet been received. Accordingly, the Board, after June 23, 2000, no longer had open the option of resuming the hearing for further oral evidence. According to the applicant, such a limitation creates an apprehension of bias and provides the Board member with fewer options than other members would have had in the same circumstances. Moreover, it can reasonably be assumed that the Board was biased by time constraints and thus rendered a decision precipitously, knowing that the reasons could be submitted no later than August 18, 2000. Accordingly, the Board breached the applicant's right to a fair hearing and his rights to fundamental justice when it rendered a decision under such restraints and by taking into consideration irrelevant considerations.
[12] The applicant submits that the analysis of the various documents should have been performed by an expert; that such evidence was necessary to support the determination under article I(E) and excluding the applicant. Accordingly, the Board's analysis and conclusions amount to speculation.
[13] The respondent submits that the Board did not err by focussing on the issue of nationality/identity at the second hearing since the Board is the master of its own proceedings. Furthermore, the respondent notes that no objection was taken during the hearing to the manner in which the Board proposed to proceed.
[14] The respondent further submits that the CRDD acted reasonably in suspending its analysis under Article I(E) since the applicant was not a Convention Refugee and, in fact, was a citizen of Dominica.
[15] There is no evidence that the Board gave any assurances that it would delay its decision pending the receipt of forensic evidence, nor is there evidence that the applicant requested that the Board delay making its decision until forensic analysis was received.
[16] The respondent finally submits that the Board was entitled to examine and compare the documents submitted for the purposes of determining the issue of nationality/identity given that a trier of fact may apply principles of common sense in doing so.
[17] It is trite law that the CRDD is an expert tribunal. Thus, the standard of review of the Board on findings of fact is patent unreasonableness. As discussed in Adar v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 695, "[i]n terms of determining the validity of passports and other identity documents, this standard is underscored. The CRDD has all of the expert evidence before it as well as the documents themselves. It assesses the credibility of witness's testimony and weighs it accordingly."
[18] There had been other CRDD decisions wherein the Board took it upon itself to examine identity documents without the benefit of expert evidence, in particular, expert evidence as to handwriting. The Federal Court of Appeal in Owusu v. Canada (Minister of Employment and Immigration) [1989] F.C.J. No. 33 (C.A.) denied a section 28 application wherein it was alleged that the Board erred in failing to require expert evidence to support its finding in respect of handwriting. The Court concluded that the Board's inferences which it drew from the evidence were reasonably open to it.
[19] I am satisfied that the Board did not err in making its own assessment of the identity documents. It is evident that the RIC of Shou Bao Wang and Xiu Bao Wang bore the identical identification number.
[20] There is no doubt that the Board's finding with regards to the applicant's identity was central to the disposition of the claim. Once the Board concluded that Xiu Bao Wang and Shou Bao Wang were one and the same person, it had no choice but to declare that the Applicant was not a Convention Refugee.
[21] It is trite law to say that the onus is on the applicant to justify his claim for refugee status. This applicant offered no evidence to contradict the serial numbers given on both Republic of China identification documents and in no way could he support his statement that he entered Canada three days before attending at Immigration Canada and filing an application claiming refugee status.
[22] I am satisfied that on the balance of probabilities Xiu and Shou are one and the same person; that he entered Canada on a Dominican passport and was a citizen of that country; that there was no need to pursue a claim against the People's Republic of China as initially submitted by this applicant.
[23] The Board clearly indicated at the hearing that it was concerning itself with the applicant's identity and only after that identity was established could the Board examine whether this applicant was a refugee from his country of origin which he alleged was the People's Republic of China. This was the Board's basic concern and no evidence was offered to refute their determination that he was a citizen of Dominica.
[24] Concerning the applicant's position that it can be assumed the Board was biased by time constraints and thus rendered a decision precipitously, I am of the view that this is a bold allegation unsupported by facts and evidence.
[25] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
June 6, 2001