Dai et al. v. Canada (Minister of Citizenship and Immigration), (2015) 482 F.T.R. 179 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: May 04, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 482 F.T.R. 179 (FC);2015 FC 723

Dai v. Can. (M.C.I.) (2015), 482 F.T.R. 179 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JN.043

Ying Yi Dai, Yi Huang and Ying Xin Huang (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3772-14; 2015 FC 723)

Indexed As: Dai et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Strickland, J.

June 8, 2015.

Summary:

The principal applicant and her daughters (the minor applicants) alleged that they were citizens of China. The principal applicant alleged that she feared persecution by the Chinese government because of her Christian religion. A member of the Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) found that the applicants had not established their personal identity, nationality or presence in China at the relevant times. The RPD member rejected the applicants' claim for refugee protection made pursuant to ss. 96 and 97 of the Immigration and Refugee Protection Act. The applicants applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1326.9

Admission - Refugee protection, Convention refugees and persons in need of protection - Identity documents - [See Aliens - Topic 1329.3 ].

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - The principal applicant and her daughters (the minor applicants) alleged that they were citizens of China - The principal applicant alleged that she feared persecution by the Chinese government because of her Christian religion - A member of the Refugee Protection Division of the Immigration and Refugee Board of Canada (RPD) found that the applicants had not established their personal identity, nationality or presence in China at the relevant times - The RPD member rejected the applicants' claim for refugee protection - The applicants applied for judicial review - The Federal Court dismissed the application - The RPD member considered the totality of the evidence - The member, when weighing the probative value of the driver's licence, the certificates, the electric bill and a summons, also considered the fact that the principal applicant had submitted a fraudulent document and, in the case of the latter documents, the ready availability of fraudulent documents in China - However, those were not the sole bases upon which the documents were assessed and weighed - Further, the member was entitled to draw adverse conclusions on credibility from the principal applicant's use of fraudulent documents - As to the minor applicants' identity documents, the burden was on the applicants to establish their identity - The only documents submitted that tied their nationality and residence to China were the hukou, which the Member reasonably found not to be genuine, and immunization records - The court rejected the applicants' assertion that a breach of procedural fairness arose from the member's failure to give notice to the principal applicant about her concerns with the authenticity of the immunization records and an opportunity to respond - While the member did not specifically single out the immigration records, the applicants were afforded the opportunity to respond to the member's concern with the authenticity of the documents at large - The member's conclusion as to identity fell within the range of possible, acceptable outcomes that were defensible in respect of the law and the facts.

Cases Noticed:

Gulamsakhi v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 97; 2015 FC 105, refd to. [para. 6].

Diarra v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 220; 2014 FC 123, refd to. [para. 6].

Liu v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 178; 2012 FC 377, refd to. [para. 6].

Wang v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 590; 2011 FC 969, refd to. [para. 6].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 6].

Rahal v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 163; 2012 FC 319, refd to. [para. 6].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Juste v. Canada (Minister of Citizenship and Immigration), 2008 FC 670, refd to. [para. 7].

Olson v. Canada (Minister of Emergency Preparedness and Public Safety), [2007] F.T.R. Uned. 300; 2007 FC 458, refd to. [para. 7].

Wu v. Canada (Minister of Citizenship and Immigration) (2013), 438 F.T.R. 30; 2013 FC 838, refd to. [para. 7].

Etienne v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 469 F.T.R. 40; 2014 FC 1128, refd to. [para. 7].

Kabongo v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 523; 2013 FC 1086, refd to. [para. 8].

Mohmadi v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 471; 2012 FC 884, refd to. [para. 8].

Lin v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 33; 2006 FC 84, refd to. [para. 8].

Zheng v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 630; 2008 FC 877, refd to. [para. 9].

Ru v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 567; 2011 FC 935, refd to. [para. 9].

Elhassan v. Canada (Minister of Citizenship and Immigration) (2013), 444 F.T.R. 177; 2013 FC 1247, refd to. [para. 9].

Guo v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 180; 2013 FC 400, refd to. [para. 9].

Cheema v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 202; 2004 FC 224, refd to. [para. 9].

Valtchev v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R. 267; 2001 FCT 776, refd to. [para. 10].

Torishta et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 215; 2011 FC 362, refd to. [para. 11].

Flores v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 695; 2005 FC 1138 , refd to. [para. 19].

Toure v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 468; 2014 FC 1189, refd to. [para. 20].

Sertkaya v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 448; 2004 FC 734, refd to. [para. 25].

Rasheed v. Canada (Minister of Citizenship and Immigration) (2004), 251 F.T.R. 258; 2004 FC 587, refd to. [para. 25].

Tan v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 430; 2013 FC 911, refd to. [para. 30].

Neethinesan v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 49; 2004 FC 138, refd to. [para. 30].

Yang v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 415; 2009 FC 681, refd to. [para. 34].

Tkachenko v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. B55; 2005 FC 1652, refd to. [para. 34].

Ipala v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 291; 2005 FC 472, refd to. [para. 34].

Barry v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 2; 2014 FC 8, refd to. [para. 34].

Counsel:

N/A, for the applicants;

Kevin Doyle, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on May 4, 2015, at Toronto, Ontario, before Strickland, J., of the Federal Court, who delivered the following decision on June 8, 2015.