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Case Summary: Proof of fraudulent documents before the RPD

 

The Board is routinely tasked with evaluating the genuineness of documents when considering claims for refugee protection. Frequently, the Board refers to the National Documentation Package (NDP) of a given country to support its findings, including findings that a document is fraudulent. The NDPs contain public documents on country conditions, and some state whether there is a high risk of fraudulent documents originating from a given country.

In Liu v Canada (Minister of Citizenship and Immigration), McDonald J. clarifies that more is required of the RPD than mere reference to the NDP if the Board suspects that a given document is not genuine.

Ms. Liu is a Chinese citizen who claimed refugee protection because of her Falun Gong practice and beliefs. The RPD found her claim was manifestly unfounded. Ms. Liu appealed the decision on several grounds, one of which was the RPD’s consideration of a subpoena Ms. Liu submitted in support of her claim that she would be persecuted if returned to China.

Pursuant to subsection 107.1 of the IRPA, if the RPD rejects a claim on the basis that it is “manifestly unfounded”, it must state its reasons for finding that the claim is clearly fraudulent. The significance of such a finding is that, pursuant to paragraph 110(2)(c), the claimant cannot then appeal to the Refugee Appeal Division, and must make an application for leave and for judicial review to the Federal Court. Indeed that is what Ms. Liu did.

The RPD found the subpoena to be fraudulent, but rested its analysis on the NDP alone. As noted by McDonald J., the RPD failed to consider or explain how this particular piece of evidence was found to be fraudulent:

[13]  However, the RPD did not provide any analysis or reasons as to why the subpoena before it for consideration was fraudulent.  The RPD did not consider any of the features of the document itself such as its format, text, wording, issuing authority, stamps or seals.  It appears the RPD based its fraudulent finding on the information in the National Documents Package that there is a high risk of fraudulent documents in Chinese refugee claims.  Be that as it may, in order for the RPD’s conclusion to be justified, transparent and intelligible, it needed to provide justification for finding the subpoena fraudulent in this case.

Citing an excerpt from Roy J.’s decision in Warsame v Canada (Citizenship and Immigration), the Court held that the RPD’s decision was unreasonable for failing to identify “dishonest representations, the deceit, the falsehood, [that] go to an important part of the refugee claim” to support its ‘manifestly unfounded’ conclusion.

The Court granted Ms. Liu’s application for judicial review and remitted the matter to a different member of the RPD.

 

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