Yang v. Canada (Citizenship and Immigration)

Yang v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2010-04-29
Neutral citation
2010 FC 468
File numbers
IMM-4453-09
Decision Content
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