Digests

Chen v. Canada (Minister of Citizenship and Immigration)

IMM-2501-00

2001 FCT 1312, MacKay J.

29/11/01

11 pp.

Application for judicial review of CRDD decision applicant not Convention refugee--Applicant, citizen of China, member of group of claimants known as Fujian boat-people, currently incarcerated in Prince George, B.C.--Refugee claim based on fear of persecution based on religious beliefs--Alleging church building demolished by government forces in China, along with 12 other Catholic churches in region where village located--Claiming her sister, nun, arrested and tortured prior to her release, parents went into hiding--Applicant then illegally left China--CRDD did not believe applicant on question of demolition of churches as no documentary evidence thereof found--CRDD found applicant's involve-ment with Roman Catholic Church not sufficient to give rise to well-founded fear of persecution as not christened Catholic, attended church only at Christmas, did not reside with family members more involved than she with Catholic community-- CRDD found punishment, if any, for leaving China illegally would not constitute persecution--Application allowed--May be obligation to disclose document in advance of hearing, particularly where document not disclosed relied upon to find applicant's testimony not credible, and document subsequently found, by later report, presumably available to panel in advance of decision, to contradict conclusion drawn by panel in regard to key element of applicant's testimony-- CRDD's inference from absence of documentary confirmation of applicant's testimony about destruction of churches not sustainable in light of subsequent request for information which confirmed that aspect of applicant's story--With respect to second information report, under normal circumstances, CRDD not under continuing obligation to consider documents not raised by applicant or by Refugee Hearing Officer at hearing--Nevertheless, continuing obligation may arise in exceptional circumstances where, as herein, panel's decision relies significantly on document, produced by IRB in response to requests for information from members, to find applicant's testimony not credible, where conclusion with respect to major element of testimony not sustainable in light of documentary information later provided from same source, even after panel's hearing but before decision--If second report contradicts facts alleged in, or inferences drawn from, prior report on which panel relying significantly, panel should be expected to be aware of later information produced for benefit of CRDD panels generally--Would be unjust for panel to rely solely on first report when later report on same matter, contradicting inference from first report on which panel relies, available well before (18 days herein) decision of panel-- Final assessment of applicant's credibility not well-supported in decision in view of fact accepted most of applicant's story as credible, except about destruction of churches.