2012 FC, 2012 FC 1381

Date: 20121129 Docket: IMM-9703-11 Citation: 2012 FC 1381 Ottawa, Ontario, November 29, 2012 PRESENT: The Honourable Mr. Justice Zinn BETWEEN: CUNGUI YE Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board that found that Mr. Ye, a citizen of China, is not a Convention refugee or person in need of protection.

The determinative issue for the Board was “the credibility of the claimant’s [Personal Information Form] narrative and his oral testimony concerning his membership in an underground church and his pursuit by agents of the [Public Security Bureau (PSB)].” [ 2 ] The Board also found that if Mr. Ye returned to China and if he practiced Roman Catholicism, there is no serious possibility that he would be persecuted.

On my reading of the Board’s decision, however, this last finding was ultimately based upon and fatally coloured by the Board’s finding that the PSB had no interest in him, which was based on the Board’s finding that the summons Mr. Ye provided to the Board was fraudulent. [ 3 ] Mr. Ye raised a number of issues; however, in my view only one needs to be addressed: the Board’s finding that the summons was fraudulent. That finding was unreasonable and, as the decision rests so greatly on it, the decision must be set aside. The Evidence Regarding Mr. Ye’s Summons [ 4 ] Mr.

Ye claims to have joined the Roman Catholic faith in March 2008 when he was introduced to and joined an underground Catholic church. In January 2009 he came to Canada on a student visa and he continued his practice of Catholicism in Canada. [ 5 ] On April 29, 2009, Mr. Ye says that his parents phoned him from China to warn him that the PSB had come to his family home and accused him of attending an illegal underground church and of sending religious materials back to China. The PSB had

arrested some people from his church. A summons was left with his family by the PSB on that date. Mr. Ye’s summons and its translation is reproduced at Appendix A. [ 6 ] Mr. Ye testified that his mother told him that the PSB told her to ask him to go back to China and turn himself in as soon as possible and that if the family were to assist him financially, they would be arrested. He claims to have learned that one of the arrested members of his church was sentenced to three years in prison. The Board’s Analysis of the Summons and CHN42444.E [ 7 ] The Board examined Mr.

Ye’s summons in light of its National Document Package, specifically the following two documents from the Board’s Research Directorate: • CHN42444.E - 01 June 2004: China: Circumstances and authorities responsible for issuing summonses/subpoenas; procedural law; whether summonses are given to individuals or households; format and appearance; whether legality can be challenged; punishment for failure to comply with a summons (1998-2004). • CHN103134.E - 24 June 2009: China: The manufacture, procurement, distribution and use of fraudulent documents, including passports, hukou, resident identity cards and summonses in Guangdong and Fujian in particular (2005 - May 2009). [ 8 ] The Board concluded that his summons was not genuine.

Mr. Ye submits that these documents are dated and questions whether it is safe to rely on them. Admittedly, they are dated, especially CHN42444.E which is now more than eight years old; however, it is the best, if not the only evidence the Board has with which to assess the validity of summonses produced by claimants from China. The Court is very familiar with CHN42444.E as it is regularly referred to and relied on by the Board in examining claims from Chinese citizens who produce summonses from the PSB.

This case is exceptional, in my experience, in that the certified tribunal record contains not only these two documents from the Board’s Research Directorate, but also the three sample summonses attached to and referenced in CHN42444.E: Regarding the appearance and format of summonses, the associate professor of Criminal Justice provided the attached translated samples of a PRC Arrest Warrant, an Arrest-Summons for Interrogation and a Notice of Summons to Testify. No additional documents could be found among the sources consulted by the Research Directorate.

These sample summonses are not included on the reproduction of CHN42444.E on the respondent’s web site and are vital in appreciating the Board’s assessment of the validity of the summons in this case. The sample summonses and their translation as contained in the certified tribunal record are reproduced at Appendix B. [ 9 ] The errors the Board found in the summons provided by Mr. Ye are the following: 1. It lacked a signature acknowledging receipt of the summons; 2. It did not identify his address, age, or gender; and 3. It was missing the date issued and date served. [ 10 ] The Board expected Mr.

Ye’s summons to contain these items as a result of its understanding of CHN42444.E which recites information received from an associate professor at the University of Wisconsin that there are two types of summonses:

a) Zhuanhuan (summons) is used when no arrest or detention of suspects is necessary or contemplated, i.e. when cooperation is expected or flight is not likely. See Art. 92 of PRC Criminal Procedure Law. This is not a coercive measure ( qiang zhi cuoshi ).

b) Juzhuan (arrest summons) is used when voluntary compliance is not appropriate or zhuanhuan has failed. See

Article 50 of PRC Criminal Procedure Law and

Article 60 of Public Security Criminal Procedure Regulations. This is a coercive measure ( qiang zhi cuoshi ). [ 11 ] CHN42444.E notes that corroborating information on Chinese summonses was provided in December 1998 by a law professor at the University of Washington: In 21 December 1998 correspondence to the Research Directorate, a University of Washington law professor provided corroborating

information on the two types of summonses. According to the law professor, chuanhuan is a formal order, issued in writing ( chuanhuan zheng ) or orally ( kotou chuanhuan ), that requires a person to appear at a local police station. When the person served the summons refuses to cooperate, there may be a requirement to use a coercive summons ( qiangzhi chuanhuan ) (University of Washington 21 Dec. 1998). [ 12 ] A plain reading of the information from these sources reveals that the word “z huanhuan ” or “ chuanhuan ” references the act of summoning a person to appear.

It may be “issued” either in written form or orally. This accords with Canadian judicial experience; Canadian courts issue orders both orally and in writing. The information reflects that there are two types of summonses: a non-coercive summons and a coercive summons. The non-coercive summons is used when the PSB wishes to question a person but he is not arrested or detained because it is expected that he will co-operate or is unlikely to flee.

The coercive summons is used when the person to be questioned is arrested or detained because his co-operation is not expected or he poses a flight risk. [ 13 ] The Board makes the following statement regarding the types of summonses and the samples attached to CHN42444.E: I have considered the statement in Response to Information Request CHN42444.E (the “RIR”) which identifies two types of summonses: Z huanhuan , which is used to summons a suspect for questioning without arrest, and Juzhuan , an arrest summons.

The RIR states the Z huanhuan summons for someone to appear for interrogation must state the person, time, and place of appearance for questioning. The duplicate copy is signed, dated and returned by the suspect who keeps one copy. The same RIR goes on to attach samples of an arrest warrant, an arrest-summons for interrogation and a notice of summons to testify but not the Z huanhuan summons.

The Board cites as authority for that last statement this Court’s decision in Chen v Canada (Minister of Employment and Immigration) , 2011 FC 1062 [ Chen ], at para 20 . [ 14 ] The source of the Board’s information and the Court’s in Chen is the following passage from CHN42444.E: With respect to the official procedure for issuing summonses and "arrest-summon warrants" ( juzhuan zheng ), the associate professor provided the following information:

a) Summons[es] ( zhuanhuan ) should be prepared by the public security when it is determined that arrest or detention is not necessary to procure the voluntary appearance of the suspect or defendant for interrogation. The Notice of Summons ( zhuanhuan tongzhi shu ) must be prepared in triplicate stating the person, time, and place of appearance for questioning. The Notice of Summons is then to be stamped with public security official chop. The original copy is kept at the police station. The duplicate copy is signed, dated and returned by the suspect, before the process is deemed completed.

One copy is left with the suspect. b) "Arrest-summons warrant" ( juzhuan zheng ) can only be obtained with the approval of county level and above public security organs upon the presentation of an "Application for Arrest - Summons" ( chengqing juzhuan baogaoshu ). The application will state clearly and support with credible evidence that a crime has been committed, the person to be arrested - summoned for interrogation is connected to the crime, and the suspect is not likely to appear voluntarily or that a summon for interrogation has been executed with no success.

The "Arrest-summons warrant" will be executed with a notation of the time of arrest and at the completion of interrogation.

c) Persons held under the Summons ( zhuanhuan ) or "Arrest-summons warrant" ( juzhuan zheng ) for interrogation cannot be interrogated for longer than 12 hours. No repeated issuance of Summons ( zhuanhuan ) or "Arrest-summons warrant" ( juzhuan zheng ) is allowed ( 17 Apr. 2004 ). [ 15 ] First, it is an error to state that CHN42444.E does not contain a sample of the summons used to procure a person’s voluntary attendance for questioning.

It is evident when one reads CHN42444.E and examines the three sample summonses, that a sample Notice of Summons, the form used to procure a person’s voluntary attendance for questioning – the written order to appear, in other words – is included in the samples attached to CHN42444.E. It is identified as “Form 3: Z huanhuan Tongzhishu (Notice of Summons to Testify).” [ 16 ] Second, it is evident from examining the three sample summonses attached to CHN42444.E that the word “triplicate,” used with reference to written notices of summons, is inaccurate or misleading.

A form in triplicate generally means that there are three identical or exactly corresponding copies. What is clear when one examines the sample forms is that they are not in triplicate, in that sense of the word, rather they have three parts, and those three parts do not contain identical or exactly corresponding information. It is more accurate to say that a Chinese notice of summons is a three-part form, not a form in triplicate.

[ 17 ] With specific reference to the non-coercive notice of summons, the z huanhuan tongzhishu (or zhuanhuan tongzhi shu ), CHN42444.E provides: The Notice of Summons ( zhuanhuan tongzhi shu ) must be prepared in triplicate stating the person, time, and place of appearance for questioning. The Notice of Summons is then to be stamped with public security official chop. The original copy is kept at the police station. The duplicate copy is signed, dated and returned by the suspect, before the process is deemed completed.

One copy is left with the suspect. [ 18 ] What Form 3: Z huanhuan Tongzhishu (Notice of Summons to Testify) shows is that it has three parts: (Part 1) Retained Copy of Notice Summons to Testify which is referred to in the passage above as the “original copy;” (Part 2) Duplicate Page of Notice of Summons to Testify which is signed and dated by the “suspect” and which is referred to in the passage above as the “duplicate copy;” and (Part 3) Notice of Summons to Testify which is referred to in the passage above as the copy left with the suspect. [ 19 ] When one realizes that the written form is a three-part form and not a form in triplicate, one quickly sees the Board’s errors. [ 20 ] First, the Board correctly notes that Mr.

Ye’s summons does not have a signature acknowledging receipt of the summons. However, it was unreasonable for the Board to expect that it would have such a signature because, while CHN42444.E states that the “ duplicate copy is signed, dated and returned by the suspect” or a family member if it is served with the summons, the “duplicate copy” is really the second part of the form which is returned to the PSB after it is signed . Perversely, in light of the Board’s analysis, it is only if Mr.

Ye had produced a summons that he or a family member had signed, that its validity could reasonably be questioned because it should be in the possession of the PSB, not Mr. Ye. [ 21 ] Second, the Board also correctly notes that Mr. Ye’s summons does not identify his address, age, or gender. However, the sample Form 3 reflects that such information is contained only on

Part 1 which is kept at the PSB and

Part 2, which is signed and returned to the PSB. It does not appear on

Part 3, which is the portion of the written form that Mr. Ye or his family would have been given. Again and perversely, in light of the Board’s analysis, it is only if Mr. Ye had produced a summons that identified his address, age or gender, that its validity could be questioned because it should be in the possession of the PSB, not Mr. Ye. [ 22 ] Third, the Board also correctly notes that Mr. Ye’s summons does not contain the date issued and the date served. However, the sample Form 3 reflects that the issue date is in

Part 1 and the date of service is in

Part 2.

Part 3, the part that Mr. Ye would be expected to have contains the “ chop ” of the PSB and the date that it was affixed – the precise information shown on Mr. Ye’s Summons. Again and perversely, in light of the Board’s analysis, it is only if Mr. Ye had produced a summons that identified the date of issue and date of service, that its validity could be questioned because it should be in the possession of the PSB, not Mr. Ye. [ 23 ] The Board also finds that Mr.

Ye would not have been issued a non-coercive summons; he would have been issued a coercive summons, an arrest-summons for interrogation, such as is illustrated in sample Form 2. The basis for that conclusion is stated to be “his arrest was both necessary and contemplated by the PSB.” [ 24 ] I find the Board’s reasoning on this point to be highly speculative and unreasonable. Given that the summons included a charge of “spreading the religion to China from abroad” the PSB knew that Mr. Ye was not in China.

This is confirmed by the statements made by the PSB to his parents that he should return home and turn himself in. As Mr. Ye was already out of the country, arguably the use of a coercive summons would not have been appropriate because he could not be arrested or detained, and he was clearly no flight risk. It is equally possible that the PSB would not wish to scare him off by using a coercive summons. In short, in the circumstances, the Board’s observation regarding the type of summons used was simply insufficient to reasonably ground its adverse inference. [ 25 ] When the Board questioned Mr.

Ye as to the alleged discrepancies between what the Board expected the summons to look like and what it did look like, his response, which the Board did not accept was: “I don’t know what the summons is supposed to look like, but this is what my mother sent me.” Frankly, I have no idea what other response one could have expected him to offer. [ 26 ] The Board’s understanding of CHN42444.E and its expectation as to what a valid summons from China would look like are fatally flawed. As a result, it rejected Mr.

Ye’s evidence and used the conflict with its understanding of CHN42444.E as a basis for its credibility finding. This decision is quashed and the application for protection is to be re-determined by a differently constituted Board. [ 27 ] Neither party proposed a question for certification.

JUDGMENT THIS COURT’S JUDGMENT is that this application is allowed, the Board’s decision is set aside, the application for protection is to be determined by a differently constituted Board, and no question is certified. "Russel W. Zinn" Judge APPENDIX A

APPENDIX B

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9703-11 STYLE OF CAUSE: CUNGUI YE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 25, 2012

REASONS FOR JUDGMENT AND JUDGMENT: ZINN J. DATED: November 29, 2012 APPEARANCES : Shelley Levine FOR THE APPLICANT Veronica Cham FOR THE RESPONDENT SOLICITORS OF RECORD : LEVINE ASSOCIATES Barristers and Solicitors Toronto, Ontario FOR THE APPLICANT WILLIAM F. PENTNEY Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT