Saturday, July 14, 2012

Lin—improper rejection of personal documents based on availability of false documents

Lin v. Canada (Citizenship and Immigration), 2012 FC 157 (CanLII)

Judge: Justice Russell; Date heard: January 10, 2012; Date decided: February 6, 2012; Counsel for Lin: Lindsey Weppler, Agent for Jacqueline Lewis; Counsel for Minister: Lucan Gregory; Place of Hearing: Toronto, Ontario.

The applicant was a citizen of China and professed Christian whose claim for protection was denied by the Refugee Protection Division (RPD).

The applicant claimed that in October 2007, he missed a service at the underground church which his family attended. A fellow member’s mother phoned him and told him that his parents had been arrested by the Public Security Bureau during a raid on the church (para. 3). The applicant was confident that his parents would not disclose that he was a member of the church, so he felt safe going to the police station to try to bail his parents out, whereupon he was detained for three days.

He and his parents were originally released upon payment of 100,000 Yuan [about $12,960.00 CDN], and they were under a reporting regime, weekly and sometimes more often. The family continued practicing in their home, and not attending their former underground church. The family decided that the applicant ought to leave China, and he stopped reporting to the PSB. With the assistance of a smuggler, the applicant left China in January 2008 and came to Canada via Dubai and Israel (paras. 4-6).

After the applicant made his claim, he alleged that he had learned that his parents had gone into hiding, and that they were subsequently arrested and were being held in prison (para. 7).

Justice Russell found that the RPD’s reasoning in rejecting the applicant’s documents was faulty. The RPD rejected the documents on the basis that there was evidence that false documents were widely available in China. Justice Russell stated:

The RPD’s reasoning would mean that even genuine documents would not be acceptable. The fact that inauthentic documents are available does not relieve the RPD of the duty to determine whether particular documents presented by a claimant are genuine or not. The Respondent argues that the “fraudulent documents” ground merely supports the RPD’s earlier finding that the Applicant’s evidence is not acceptable because it is not supported by the objective evidence referred to by the RPD. In my view, this would mean that the RPD excluded evidence on the sole basis that it contradicts its own information package, and not because it has any inherent defects. (para. 54)

Justice Russell found that the RPD was obliged to actually look at the documents to determine whether they were fraudulent (para. 55), particularly since it accepted his passport (paras. 56-58).

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