THE MINISTER OF CITIZENSHIP v. IMMIGRATION, 2003 FCT 330

Date: 20030320 Docket: IMM-1574-02 Neutral citation: 2003 FCT 330 Toronto, Ontario, Thursday, the 20 th day of March, 2003 PRESENT: The Honourable Madam Justice Snider BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant - and - KAI XIAN CHEN (a.k.a. WEN LE CHEN) Respondent REASONS FOR ORDER AND ORDER [ 1 ] Mr. Kai Xian Chen (the "Respondent") was born in and claims to be a citizen of the People's Republic of China ("PRC").

With a Grenadian passport in the name of Wen Le Chen, he arrived in Canada on June 12, 2000 and claimed a well-founded fear of persecution based on his belief in Tian Dao (also knows as "Tien Dao"), an illegal religion in the PRC. David Cooke of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), by decision dated March 19, 2002, found Mr. Chen to be a Convention refugee.

The Minister of Citizenship and Immigration (the "Applicant") seeks judicial review of that decision. [ 2 ] The most critical issue before the Board was whether the Respondent had become a citizen of Grenada. If the Respondent had acquired Grenadian citizenship, he would lose his Chinese citizenship under Chinese law and the country of reference for determination of his claim before the Board would become Grenada, not the PRC. [ 3 ] Before coming to Canada, the Respondent spent approximately four months in Grenada, which is approximately the period of time that it takes to process Grenadian citizenship.

On his arrival in Canada, he presented a Grenadian passport, dated 1998, in the name of Wen Le Chen with the Respondent's photograph and date of birth. Grenadian officials confirmed that Wen Le Chen was a full citizen of Grenada. A Grenadian government official confirmed that the picture of Wen Le Chen on file at the Grenadian Immigration and Passport Office and the picture of Kai Xian Chen sent to her by the Board were a match.

An Examiner of Counterfeits for the Royal Canadian Mounted Police examined the authenticity of the Grenadian passport and concluded that it was "a genuine passport of Grenada, bearing no evidence of alteration. However, the forensic examination does not establish whether or not the passport was legitimately obtained" (the "forensic report"). Issues [ 4 ] The issues can be stated as follows: Did the Board err in law by basing its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it: (

a) in respect of the citizenship of the Respondent? (

b) in respect of the Respondent's adherence to Tian Daoism? Analysis [ 5 ] For the reasons that follow, I am of the view that this application for judicial review should be dismissed, notwithstanding that the Board's finding that the passport was altered was made without regard to all of the evidence before it and was based on speculations not supported by the evidence.

Issue #1: Citizenship of the Respondent Standard of Review [ 6 ] I agree with the Respondent that a finding of fact is at the heart of the Board's jurisdiction and ought not to be interfered with unless that finding is perverse or capricious or is made without regard to or in contradiction to the preponderance of the evidence ( Shahamati v. Canada (Minister of Employment and Immigration) , [1994] F.C.J. No. 415 (C.A.) (QL) ; Aguebor v. Minister of

Employment and Immigration , [1993] F.C.J. No. 732 (C.A.) (QL) ); Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437 (T.D.) (QL) ). [ 7 ] In respect of the matter of citizenship, the Board made two findings: 1. The Board found, on a balance of probabilities, that a passport was obtained for Wen Le Chen in 1998 and was altered, at least insofar as the picture was concerned, in order to smuggle the Respondent into Grenada and elsewhere. 2. The Board found that the Respondent was not Wen Le Chen and would therefore not be granted all the rights and privileges of Grenadian citizenship.

As a result, the Respondent remains a citizen of PRC. [ 8 ] In general, to be admitted as a citizen of a country, with all of the rights and privileges of citizenship of that country, one is required to do two things; first, to present an authentic, valid passport, and, secondly, to demonstrate that the person presenting the passport is the same person named in that document. In my view, the Board correctly looked at both aspects of citizenship.

Authenticity of Grenadian Passport [ 9 ] The Board concluded that the Grenadian passport was obtained for an individual named Wen Le Chen in 1998 and that the passport had been altered, at least insofar as the photograph was concerned, for the Respondent. The Board based this conclusion on the testimony of the Respondent that the smuggler replaced the original photograph on the passport with his own photograph and on the documentary evidence regarding corruption in Grenada.

The Board made no reference to the forensic report which concluded that the passport was genuine and had not been altered, and did not explain why it preferred the testimony of the Respondent to this report. [ 10 ] In my view, the Board committed an error by not referring to the forensic report. Although the Board is not obligated to refer to every piece of documentary evidence before it, evidence which is directly relevant to the central issue and which contradicts the Board's finding of fact should be addressed ( Atwal v. Canada (Secretary of State) , [1994] F.C.J.

No. 1113 (T.D.) (QL) ). [ 11 ] The forensic report was prepared specifically for this case by an Examiner of Counterfeits for the R.C.M.P. The conclusions of the report are directly relevant to a central issue addressed by the Board. In the words of the Board, the "major concern for the panel is the status that the claimant has in Grenada." The forensic report's conclusion that the passport was genuine and not altered directly contradicted the Board's finding that the passport was altered. The findings of the forensic report also placed the veracity of the Respondent's testimony regarding the passport in doubt.

Although counsel for the Respondent suggests that the Board rejected the forensic report because, given the corruption in Grenada, it would have been possible for the Respondent to obtain a forensically sound passport with his photograph under a false identity, there is nothing in the Board's decision to support this suggestion.

While the Board was entitled to reject the forensic report and accept the testimony of the Respondent that he was not a citizen of Grenada, it had an obligation to specifically refer to and analyze the report. [ 12 ] Moreover, the Board engaged in pure speculation, not supported by the evidence before it, in its finding that the passport was not valid. [ 13 ] First, the Board suggested that it was possible that the Grenadian official was looking at a computer-generated photograph.

In his submissions at the hearing, counsel for the Respondent pointed out that it would be possible to alter the photograph in the Grenadian file if that photograph was stapled to the registration certificate, rather than being computer-generated and printed directly onto the certificate.

The Board's speculation that the photograph in the Grenadian file could have been computer-generated is neither supported by the evidence nor does it actually support the Board's ultimate conclusion on this issue. [ 14 ] Second, the Board then suggested that it was possible that the photograph on file in the Grenadian Immigration and Passport Office could have been replaced with a photograph of the Respondent in 2000. There was evidence before the Board regarding the possibility of purchasing passports and citizenship in Grenada.

However, aside from a suggestion from counsel for the Respondent in his submissions at the hearing, there was no evidence to support the speculation that the files in the Grenadian Immigration and Passport Office had been tampered with. This speculation is also contradicted by the forensic report. If the passport was unaltered, then the photograph of the Respondent would have been the original photograph on that document.

As a result, there would be no need to change the photograph in the Immigration and Passport Office file, because the original photograph, that of the Respondent, would have been on file. [ 15 ] However, these errors are not sufficient to dispose of this case. For, even if the passport is valid, it does not answer the question of whether the Respondent could use it to avail himself of the rights and privileges of citizenship in Grenada.

Access to Citizenship of Grenada by Respondent [ 16 ] As pointed out by the Respondent, the Board also considered whether the Respondent, with this particular passport, would have been extended the rights and privileges of citizenship in Grenada. On this point, the Board stated: I find, on a balance of probabilities, that that person is not the person before me, and the same rights and privileges would not be granted to this person, should he honestly go back to Grenada and honestly state who he is.

Therefore, I find that this person [the Respondent] is not a citizen of Grenada. [ 17 ] The Board reached this conclusion, in part, on the basis of a letter dated September 14, 2001 from the Third Secretary of the High Commission Office of Grenada in Canada. That letter stated that Grenada considers Wen Le Chen to be a citizen of Grenada. There was evidence before the Board to establish the Respondent's identity as Kai Xian Chen, namely the Resident Identification Card of Kai

Xian Chen, a Graduation Certificate of Kai Xian Chen and Kai Xian Chen's Tian Dao membership card. [ 18 ] The Applicant relied on the case of Zheng v. Canada (Minister of Citizenship and Immigration) , [1996] F.C.J. No. 1349 (T.D.) (QL) . However, I note that identity was not an issue in that case where all of the claimants held valid Tonga passports in their own names.

Thus, it was logical to conclude that the claimants could avail themselves of the rights and privileges of Tonga citizenship. [ 19 ] In this case, since the Respondent is not Wen Le Chen, the finding of the Board on the ability of the Respondent to access citizenship in Grenada, based on this letter and its belief in the identity of the Respondent, was reasonably open to it. Even if the passport is valid and authentic, it is unlikely that the Respondent, using his own name, would be able to use this passport, issued in a different name, to be accepted as a citizen of Grenada.

Only someone with the name of Wen Le Chen, matching the description on the passport would be able to use it. The Board's finding follows logically and demonstrates an application of common sense. [ 20 ] Accordingly, in spite of an error by the Board with respect to the validity of the passport, the overall conclusion of the Board that the Respondent was not a Grenadian citizen was not patently unreasonable on the evidence before the Board.

Issue 2 : Possibility of Persecution [ 21 ] The third finding of the Board was that, if the Respondent were to return to the PRC, there would be more than a mere possibility that he would be persecuted. [ 22 ] A refugee claimant must show that there are good grounds or a serious possibility that he will be persecuted in the country of his nationality ( Salibian v. Canada (Minister of Employment and Immigration) , 1990 CanLII 7978 (FCA) , [1990] 3 F.C. 250 (C.A.); Adjei v. Canada (Minister of Employment and Immigration) , 1989 CanLII 9466 (FCA) , [1989] 2 F.C. 680 (C.A.); Ponniah v.

Canada (Minister of Employment and Immigration) , [1991] F.C.J. No. 359 (C.A.) (QL) ). In the Applicant's submission, it appears as if the Board simply accepted the Respondent's bald claim regarding his membership in Tian Dao, without any analysis of the bona fides of that claim.

The Applicant submits that it was incumbent upon the Board to establish on the record that the Respondent was an active adherent of Tian Daoism, which it did not do. [ 23 ] The Board found the Respondent to be essentially credible and, without conducting any analysis of the issue, concluded that there was more than a mere possibility that he would be persecuted if he were to return to the PRC. [ 24 ] The law is clear that reasons should be provided on material issues ( Pour v. Canada (Minister of Employment and Immigration) , [1991] F.C.J. No. 1282 (C.A.) (QL) ; Gyamfuah v.

Canada (Minister of Employment and Immigration) , [1994] F.C.J. No. 861 at para. 25 (T.D.) (QL) ). Although it would have been preferable for the Board to elaborate on its conclusion regarding the Respondent's well-founded fear of persecution in the PRC, I am satisfied that the Board has not committed a reviewable error on this point. It is apparent from the Board's decision that it found the Respondent to be credible and accepted his testimony. There was no contradictory evidence before the Board regarding the treatment of Tian Dao adherents in the PRC.

As a result, the basis of the Board's conclusion is clear and this Court should not intervene. [ 25 ] The Applicant submits that the Board erred in finding the Respondent to be credible because the Respondent provided two different accounts of the events which triggered his leaving the PRC. In my view, the Board's conclusion on this issue is not patently unreasonable. Although the description in his Personal Information Form narrative differed slightly from that in his oral testimony, I am not satisfied that the Board's conclusion that the Respondent was essentially credible is a reviewable error.

Question for Certification [ 26 ] Neither party proposed a serious question of general importance for certification. ORDER THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified. "Judith A. Snider" J.F.C.C. FEDERAL COURT OF CANADA TRIAL DIVISION Names of Counsel and Solicitors of Record DOCKET: IMM-1574-02 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant - and - KAI XIAN CHEN (a.k.a. WEN LE CHEN) Respondent DATE OF HEARING: TUESDAY, MARCH 18, 2003 PLACE OF HEARING: TORONTO, ONTARIO REASONS FOR ORDER AND ORDER BY: SNIDER J. DATED: THURSDAY, MARCH 20, 2003 APPEARANCES BY: Mr. Michael Butterfield For the Applicant Mr.

Shelly Levine For the Respondent SOLICITORS OF RECORD: Morris Rosenberg Deputy Attorney General of Canada For the Applicant Levine & Associates Barristers & Solicitors 1400-10 King Street East Toronto, Ontario M5C LC3 For the Respondent FEDERAL COURT OF CANADA Date: 20030320 Docket: IMM-1574-02 BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant - and - KAI XIAN CHEN (a.k.a. WEN LE CHEN) Respondent REASONS FOR ORDER AND ORDER