Federal Court Decisions

                                                                                                                             Date:    20010402

                                                                                      Docket No.:    IMM-300-00

                                                                              Neutral Citation: 2001 FCT 275

Ottawa, Ontario, this 2^nd day of April, 2001

PRESENT:     THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                      XIN GENG

                                                                                                               Applicant

                                                          - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                            Respondent

                                   REASONS FOR ORDER AND ORDER

[1]                Xin Geng, the applicant, brings this application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, (CRDD), dated November 23, 1999, determining that the applicant is not a Convention refugee pursuant to subsection 2(1) of the Immigration Act.^[1] The CRDD further stated that there was no credible basis for the claim, pursuant to subsection 69.1(9.1) of the Immigration Act.

Facts

[2]                The applicant, who is a citizen of China, claims to have a well founded fear of persecution based on his political opinions and his involvement in an anti-communist organization in China, the China Democratic Party, (CDP).

[3]                In January 1998, the applicant became a member of the CDP, he submits that he was the deputy leader of a six member group in the city of Shenyang, capital city of the province of Liaoning.

[4]                The activities of the local Shenyang branch of the CDP consisted of political meetings where pro-democracy readings were held, the printing and distribution of leaflets and pamphlets, and the investigation of corruption of political officials.

[5]                In March 1998, the CDP branch of Shenyang organized a sit-in demonstration at city hall. The demonstration was broken up and investigations were conducted by the Public Security Bureau, (PSB).

[6]                On May 15, 1998, the applicant arrived in Canada on a visitor's visa to study English as a second language. The applicant submits he planned on returning to China by the end of September 1998.

[7]                On June 10, 1998, the applicant was notified by his spouse that the PSB was targeting underground organizations such as the CDP and that certain members of the CDP branch of Shenyang were detained and other members, including the applicant, were wanted.^[2]

[8]                On July 16, 1998, the applicant was, once again, notified by his spouse that the "Central Committee" had sentenced the applicant in absentia for his involvement in the CDP.^[3]

[9]                Based on his status in China, the applicant initiated his claim to be declared a Convention refugee on July 15, 1998.^[4]

[10]            The applicant submitted the following documents for consideration before the CRDD, namely:

(a)        Notice to the detainee's family

(b)        Summons letter

(c)        Conviction and sentence decree

(d)        Article authored by the applicant, Geng Xin, "Multi-Party system is the only way out for China"

(e)        Letter from Geng Xin's wife, June 10, 1998

(f)         Letter from Geng Xin's wife, July 16, 1998

(g)        Bill of Indictment

(h)        Resident ID Card

The decision of the CRDD

[11]            On October 18, 1999 a CRDD panel composed of a single member heard the claim of the applicant. On November 23, 1999, the CRDD rendered its decision finding that the applicant had not discharged his burden of proving that he was a Convention refugee and that the applicant was not a Convention refugee. The panel further found that the applicant failed to establish a credible basis for his claim, as provided in subsection 69.1(9.1) of the Immigration Act.^[5]

[12]            In making its "no credible basis" finding, the panel placed no weight on any of the claimant's personal documents, save and except the claimant's Residential Identification Card. The Panel inferred from its finding of the applicant's lack of credibility at the hearing that the applicant could have fabricated his personal documents. The Panel proceeded to dismiss all of the documents on the basis of its belief that certain documents may have been fabricated.

[13]            It is useful to reproduce the following excerpt from the CRDD's decision:

Apart from the claimant's Resident Identification Card, I am placing no weight on any of the claimant's personal documents. I have found that the claimant is not a trustworthy witness. I am therefore mindful of the possibility that he could have presented fabricated documents, in addition to fabricated testimony. I have already discussed some of my reasons to believe that some of them are fabricated. Under the circumstances of having found the claimant not to be a trustworthy witness, I do not need to go through each and every document. The CRDD is not a court. It is an administrative tribunal and one of the stated mission of this tribunal is to determine claims quickly. Brief reasons are part and parcel of quick determination. So, it is enough to dismiss all if I have provided good reasons to believe that some have been fabricated as I have in this case.^[6]

Issues

[14]            The following issues were raised on behalf of the applicant:

           (a)        Did the Panel err in law by ignoring or misinterpreting evidence properly before it?

(b)        Did the Panel make patently unreasonable findings of fact or base its decision on findings of fact made in a perverse and capricious manner without regard for the material properly before it?

           (c)        Did the Panel misapply and/or misconstrue the definition of Convention refugee, thereby erring in law?

           (d)        If the Panel's errors were not reviewable errors of law, then did the cumulative effect of these errors amount to an error of law?

Standard of Review

[15]            The standard of review is distinct for questions of law and questions of fact. The Supreme Court of Canada confirmed in the Pushpanathan decision^[7] that all questions of law determined by the CRDD are governed by the standard of correctness. However, when it comes to factual findings and determining the plausibility of testimony, much deference is afforded the Refugee Division and the standard of review is now accepted to be the "patently unreasonable standard" as enunciated by by Décary J.A. in Aguebor:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.^[8]

Analysis

[16]            Factual findings are not open to judicial review unless it can be shown that inferences drawn by the CRDD are patently unreasonable. In the present case, the CRDD determined that the applicant was not a credible or trustworthy witness. This finding was based on discrepancies and omissions emanating from the applicant's testimony. The CRDD did not accept as plausible many of the explanations given by the applicant to questions from the Panel.

[17]            I find that it was open, and indeed reasonable, for the CRDD to make such a finding of lack of credibility on the part of the applicant upon the evidence before it. This Court in Sheikh^[9] established that a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Such a determination may be made without the panel disbelieving every word an applicant has uttered.

[18]            However, do the principles in Sheikh extend to a no credible basis finding on the applicant's claim, particularly when all of the evidence, objective and subjective, has not been assessed by the Panel?

[19]            It must be noted that a finding of no credible basis pursuant to subsection 69.1(9.1) is not without consequence. The applicant is deprived of a Post Determination Refugee Claimants in Canada Class (PRDCC) claim upon the Panel stating that there was no credible basis for the claim.

[20]            In a recent decision Denault J. thoroughly analysed the issue surrounding findings of no credible basis and the applicability of the Sheikh decision. I agree with his conclusion that a decision based on subsection 69.1(9.1) of the Immigration Act requires an analysis of all the evidence, both objective and subjective:

In my view, what Sheikh tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding. In this case (...). In my view, the new subsection 69.1(9.1) of the Immigration Act also requires an analysis of all the evidence, both objective and subjective.

(...)

In this case, the panel found that the applicant failed to establish a credible basis for his claim, in accordance with subsection 69.1(9.1), after concluding that the applicant had adduced no credible or trustworthy evidence at the hearing on which it could have determined that the applicant was a Convention refugee.

(...)

In order to make such a finding, the Refugee Division had an obligation to assess all the evidence and to expressly state the reasons that led to its no credible basis finding. By failing to expressly assess all the evidence, both subjective and objective, and by focussing exclusively on the applicant's testimony, the panel committed an error that is subject to judicial review.^[10]

[21]                In the case at bar, by failing to expressly assess all the evidence, both subjective and objective, and particularly the documentary evidence before it, the CRDD committed an error that, in my view, is subject to judicial review. I find that it was patently unreasonable for the CRDD to dismiss all of the documentary evidence simply because it provided good reasons to believe that some of the documents have been fabricated. To draw such an inference that led to the dismissal of all of the documents without an appropriate assessment of all subjective documentary evidence,    warrants judicial intervention.

[22]            In Cepeda-Gutierrez, Evans J., as he then was, deals with the need to deal with and analyse contradictory evidence:

Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.^[11]

[23]            In making a finding of no credible basis, the CRDD had an obligation to assess all the evidence and to expressly state the reasons that led to its finding.

[24]            For these reasons the judicial review is allowed.

[25]            There is no question of general importance which would require certification.

                                                                       ORDER

THIS COURT ORDERS that:

1.         the application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 23, 1999, is allowed, the decision is set aside and the matter is referred back to the CRDD for redetermination by a differently constituted panel.

                                                                                                                       "Edmond P. Blanchard"                  

                                                                                                                                                   Judge                      

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