2011 FC, 2011 FC 1359

Date: 20111125 Docket: IMM-1998-11 Citation: 2011 FC 1359 Ottawa , Ontario, November 25, 2011 PRESENT: The Honourable Mr. Justice Mosley BETWEEN: FEI ZHENG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The applicant, Mr. Fei Zheng, is a citizen of China . He brought this application for judicial review under

section 72 of the Immigration and Refugee Protection Act , SC 2001, c 27 (hereafter IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division which found him not to be a Convention refugee or a person in need of protection. [ 2 ] For the reasons that follow, the application is granted and the matter is remitted to the Board for reconsideration by a differently constituted panel. [ 3 ] Mr. Zheng claims to have become a Christian in China , joining an underground Church, after a discussion with a friend who suggested that he would be healed from sleepwalking if he did so.

He moved to Canada for studies in September 2008. He claims that his mother called on March 24, 2009 to warn him that the Public Security Bureau came to confiscate his computer and some letters, and to warn him that members of his Church had been arrested. Thereafter, he made a claim for refugee protection. [ 4 ] The determinative issues before the Board were the applicant’s credibility regarding his religious affiliation and the risk of persecution of Christians in his home province of Fujian .

With regard to the applicant’s credibility, the Board drew negative inferences from inconsistencies in his testimony relating to his college attendance and registration, visits to a hospital and religious affiliation. [ 5 ] T he Board found that on the basis of the documentary evidence considered, the applicant could return to his home province without fear of persecution.

The panel found that reports of reliable neutral sources did not identify any arrests of Christians in the province and identified it as having the most liberal policy on religion in China . [ 6 ] The issues raised on this application were whether the Board erred in relying on a non-disclosed document, erred in its credibility findings and reached an unreasonable conclusion regarding the risk of persecution in the Fujian province. As I have found that

there was a breach of procedural fairness requiring that the matter be returned for reconsideration, I do not consider it necessary to dealwith the other issues. [7] Where procedural fairness is in issue, the proper approach is to ask whether the requirements of natural justice in theparticular circumstances of the case have been met: Bokhari v Canada (Minister of Citizenship and Immigration), 2011 FC 354 at para8. [8] As the respondent submits, a breach of procedural fairness will not result in relief in each case.

If it is apparent that thedecision maker would have reached the same decision notwithstanding the breach, and no purpose would be achieved by remitting it forreconsideration, the decision should stand: Yassine v Canada (Minister of Employment and Immigration), 1994 CarswellNat 219, 27Imm LR (2d) 135, 172 NR 308 (CA) at para 9; and Mobile Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 SCR 202 para 53. [9] Here, the Board relied upon a document, dated September 7, 2005, that was not disclosed to the applicant and was not foundin the Board’s national information request package for claims based on religious persecution in China.

The document in question wasthe source of the Board’s findings regarding the treatment of underground churches in the applicant’s home province. However, thedocument had been removed from the information package and replaced by an updated version dated June 30, 2010.

References toFujian having a liberal policy on the practise of Christianity had been removed in the updated document based on more recent reportswhich indicated that such a conclusion would be misguided. [10] As indicated in Bokhari, above, at paragraphs 23-24 and Mancia v Canada (Minister of Citizenship and Immigration), (FCA), [1998] 3 FC 461 (CA) at paragraph 16, document disclosure is important for procedural fairness as it gives theapplicant an opportunity to properly respond to the Board’s concerns.

See also May v Ferndale Institution, 2005 SCC 82, at paragraph92. [11] Here, the Board’s concerns related primarily to the treatment of Christians in the applicant’s home province. The earlierdocument presented a more favourable view of the situation in that province than later information reflected in the 2010 document wouldsupport. [12] The respondent’s argument that the 2005 document was not the “cornerstone” of the decision is not persuasive given theBoard’s reliance on the more positive picture that it presents.

Nor am I satisfied, based on a reading of the transcript of the hearing, thatthe applicant’s counsel was aware of the content of the document. It is clear from the transcript that counsel addressed the generalquestion of a more liberal policy in Fujian Province, but without reference to the specific comments in the 2005 and 2010 documents. [13] In the circumstances, I find that the Board’s reliance on the earlier document constituted a breach of procedural fairness.

I amunable to agree with the respondent that the 2010 changes to the document are so trivial that I should find that the decision maker wouldhave reached the same conclusion notwithstanding the breach. [14] The application is, therefore, granted. No serious questions of general importance were proposed for certification. JUDGMENT THIS COURT’S JUDGMENT is that the application is granted and the matter is remitted for reconsideration by a differentlyconstituted panel of the Refugee Protection Division. No questions are certified. “Richard G. Mosley” Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-1998-11 STYLE OF CAUSE: FEI ZHENG and THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 20, 2011 REASONS FOR JUDGMENT AND JUDGMENT: MOSLEY J. DATED: November 25, 2011 APPEARANCES : Elyse Korman FOR THE APPLICANT Jocelyne Epejo Clarke FOR THE RESPONDENT SOLICITORS OF RECORD : ELYSE KORMAN Otis and Korman Toronto , Ontario FOR THE APPLICANT

MYLES J. KIRVAN Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT