LIN YANG Applicant v. THE MINISTER OF CITIZENSHIP, 2010 FC 468

Federal Court Cour fédérale Date: 20100429 Docket: IMM-4453-09 Citation: 2010 FC 468 Toronto, Ontario , April 29, 2010 PRESENT: The Honourable Mr.

Justice Campbell BETWEEN: LIN YANG Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] The present Application concerns a citizen of China who claims refugee protection on the ground that, as a Christian, he would suffer more than a mere possibility of persecution should he return to China . [ 2 ] In a detailed decision, the Refugee Protection Division (RPD) rejected the Applicant​s claim and in doing so made this statement: ​after consideration of the totality of the evidence available to the panel, I find on a balance of probabilities that the claimant is not a genuine practicing Christian​ (Decision, para. 19).

In reaching this conclusion, the RPD took into consideration that the Applicant lives in Guangzhou City, Guangdong Province, and that a ​lack of any information regarding instances of arrests and other forms of persecution for Guangdong Province in any of the documents available to the panel​ was ​significant and convincing​ (Decision, para. 16). It is agreed that the finding with respect to the Applicant​s residence was made in fundamental error; the Applicant is a native of Fujian Province .

As a result, Counsel for the Applicant argues that the decision was made in reviewable error. [ 3 ] Counsel for the Respondent argues that the fundamental error of fact can be separated from findings with respect to negative credibility, and, thus, the rejection of the Applicant​s claim can still stand. In my opinion, the separation is impossible to make. As noted above, the fundamental error of fact was taken into consideration with other features of the Applicant​s claim, and, in my opinion, had an unfair contaminating influence on the outcome.

Thus, I find that the fundamental error of fact constitutes a reviewable error which renders the decision as unreasonable.

ORDER Accordingly, I set aside the decision under review and refer the matter back to a differently constituted panel for re-determination. There is no question to certify. ​Douglas R. Campbell​ Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4453-09 STYLE OF CAUSE: lin yang v. the minister of citizenship and immigration PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 28, 2010 REASONS FOR ORDER AND ORDER: CAMPBELL J. DATED: April 29, 2010

APPEARANCES : Shelley Levine FOR THE APPLICANT Alex C. Kam FOR THE RESPONDENT SOLICITORS OF RECORD : Levine Associates Barristers and Solicitors Toronto , Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT