Date : 20050713
Docket : IMM-7023-04
Citation : 2005 FC 982
OTTAWA, Ontario, this 13th day of July , 2005
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN :
QUI YIN ZHANG
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for leave and for judicial review, under s. 72(1) of the Immigration and Refugee Protection Act ("the Act") S.C 2001, c. 27, of the decision ("Decision") made by an officer ("Officer") of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated July 13th, 2004. The Board found that the applicant was not a Convention refugee, or a person in need of protection. The Board did not believe the applicant's identity as a national of the People's Republic of China ("China").
[2] The applicant, Qui Yin Zhang, claims to be a citizen of the China. He claims to be persecuted on the basis of his Catholic religion.
[3] The applicant was introduced to Catholicism in 2001 and he was baptised on March 31, 2002.
[4] The applicant claims that the Public Security Bureau ("PSB") is seeking to arrest him for being involved in illegal religious activities. He claims that one of his friends and fellow Catholic, Feng Huang, was arrested, and sent to prison. As a result of the arrest, the applicant decided to flee China and come to Canada.
[5] After arriving in Canada, the applicant learned that he was still sought by the PSB and that he has been expelled from his work.
[6] The Board found that the applicant was not a Convention refugee, nor a person in need of protection, because the Board did not believe the applicant's identity as a national of China.
[7] The Board noted that the identity documents submitted by the applicant were an original birth certificate, Graduation Certificate, Canadian report cards, and photocopies of his Resident Identity Card and Hukou (household registration).
[8] The applicant was questioned about the whereabouts of his Resident Identity Card. Initially, he stated that the card was seized by the PSB. Later he submitted that his father had turned in all their Resident Identity Cards in November 2002. The Board found this to be a contradiction and did not believe the applicant's identity.
[9] The Board then went on to discuss the Hukou. The applicant claims to be born in Guangdong province, and his Hukou is therefore Guangdong. However, in 1993 his father moved the family to Fujian where the applicant attended school from 1993-1999. The Board noted that the applicant's Hukou was not changed and makes no reference to Fujian. The applicant explained that the Hukou was not changed because his father never bough a house in Fujian until April or May of 2002. The Hukou were issued to the family in February 2003 and the Board found that his Hukou should reflect the new address. The Board found that this is further evidence to disbelieve the applicant's identity. The Board also noted that the applicant's Personal Information Form ("PIF") does not mention Fujian as his place of residence.
[10] The Board gave no weight to the original birth certificate because of the problems with the missing Resident Identity Card and the problems with the Hukou. The Board noted that the Report Cards can prove academic attendance in Canada but do not identity him as a national of China. The Board also noted that the original Resident Identity Card (Hukou) is the only identification that can be forensically tested.
[11] The Board concluded that the applicant failed to establish his identity as a national of China and refused his refugee application.
[12] The applicant argues that the Board made its decision without considering the totality of the evidence, that it ignored the birth certificate and Chinese graduation certificate and made a reviewable error in assessing the Hukou.
[13] The applicant notes that he was questioned extensively on Catholicism and religious knowledge, however the reasons do not discuss his obvious knowledge of religion but merely his identity documents. The applicant argues that the Board failed to consider the totality of the evidence.
[14] The applicant submits that his Chinese graduation certificate, which contains a photo, and his original birth certificate, in and of themselves constitute sufficient documents to prove his identity as a national of China. The applicant notes that the certificates were both given no weight or possibly ignored (in the case of the Graduation Certificate) by the Board.
[15] The respondent argues that the Board's decision was reasonable, as the Board is entitled to make findings regarding the identity of the applicant. The respondent argues that findings of identity must be given greater deference since the Board is specialized in the subject matter and had access to the documents provided.
[16] For the standard of review, the respondent relies on Kelen J.'s decision in Gasparyan v. Canada (Minister of Citizenship and Immigration) 2003 FC 863, which states at para 6:
¶ 6 The appropriate standard for reviewing the Refugee Division's assessment of identity documents is patent unreasonableness: Adar v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35 at para. 15; and Mbabazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623, 2002 FCT 1191 at para. 7. The panel had first-hand access to the identity documents and the testimony of the applicants, and also possesses a high level of expertise in this area.
[17] The decision in Gasparyan implies that a negative finding of identity goes toward supporting a negative credibility finding. However, a negative identity finding alone, where identity documents are provided, should be approached with caution.
[18] The Board is a specialized tribunal and should be given considerable deference when it comes to the assessment of identity documents, credibility, and subjective fear. However, a Board should not ignore original documents in an assessment of identity nor should it ignore relevant factors in an assessment of credibility. In this case, the Board did not mention or refer to the Chinese Graduation Certificate in its decision. The applicant correctly submits that the graduation certificate contains a photograph, along with an embossed seal, and affirms his identity and confirms his school attendance in Fujian. The applicant notes that the Board gave his original birth certificate no weight, based on the Hukou or Resident Identity Card. The evidence was essentially ignored. Given the total disregard for the graduation certificate and the lack of probative value given the birth certificate, I believe the Board committed a reviewable error. The combination of the rejected and ignored evidence was sufficient enough for the Board to have undertaken a further analysis of the applicant's subjective and objective circumstances as well as of his credibility as to persecution because he was a Roman Catholic.
[19] A rejection of the identity of an applicant as a national of a given country should not, without a reasonable examination of all the identity documents, give rise to negation. By ignoring the graduation certificate and giving no probative value to the birth certificate, the Board committed a reviewable error. Having reviewed the transcript there is no doubt that other than identity questions, his assertion as to his religious beliefs were unchallenged. Further his explanation that his father looked after the identity card changes makes some sense. How can an eight year old boy, without a mother (the father was a widower), when moving to another province be aware of what his father was doing on behalf of the family.
ORDER
The application for judicial review is allowed and the matter returned to a differently constituted panel for reconsideration.
« Paul U.C. Rouleau »
JUDGE
OTTAWA, Ontario
July 13, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-7023-04
STYLE OF CAUSE : QUI YIN ZHANG v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 13, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: July 13, 2005
APPEARANCES:
Ms. Kathy Clark FOR THE APPLICANT
Ms. Kristina Dragaitis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lewis & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT