Date: 19980828
Docket: IMM-3851-97
BETWEEN:
SUI FONG CHO
SU YAN YEUNG (SO YIN YOUNG)
WEI CHONG YOUNG (WAI CHONG YOUNG)
WEI CHAO YOUNG
CHEOK PING YOUNG
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Reasons for Order
Wetston J.
[1] The applicants are citizens of China. They are a husband and wife and their children. The claim was based on the wife"s fear of persecution because of the violation of the one-child family policy. There was also a claim based on the disadvantages that the children would suffer. The main basis of the claim was the wife"s fear of persecution because of the enforcement of the family planning policy against her after her husband"s departure from China as well as the parents" concern for the children"s lack of status because of the violation of the family planning policy.
[2] The female applicant left China in March 1991 and resided in Guyana until she came to Canada in August 1994, at which time she made a refugee claim. Both she and her husband stated at the port of entry that she was making a claim against China because she was going to be required to undergo forced sterilization.
[3] In essence, the Refugee Division found that the applicants were not credible. The Board did accept, however, that the youngest child was born in violation of the family planning policy.
[4] The argument of counsel centered around the claim of the youngest child as well as that of the female applicant, and to a lesser extent, that of the male applicant.
The Claim of the Youngest Child
[5] Counsel for the applicants submits that the Board erred in law and made erroneous findings of fact without regard to the evidence in determining that youngest child was not a convention refugee. The respondent argues that the applicants failed to provide evidence to suggest that the youngest child would be deprived of education and social benefits in this case. In my opinion, the Board did not err with respect to its determination that the youngest child was not a convention refugee. In Cheung v. Canada (M.E.I.) (1993), 19 Imm.L.R. 81 (F.C.A.), it was shown that the child had already suffered deprivation of education and social benefits. However, there was no evidence of that in the instant case. While there is documentary evidence to suggest that second children in China may be deprived of social and educational benefits, because they are not registered on a hukou, the applicants did not in any way demonstrate that a birth certificate does not entitle an individual to benefits. Moreover, there is no evidence to suggest that the child could not be registered. In addition, a fine had been paid by the parents and while still in China the applicants showed no evidence of persecution of the child. The evidence suggests that transient migrants in China are likely to be denied benefits which is not the position of the applicants in this case. Moreover, the Refugee Division did provide reasons for rejecting the father"s explanation that the youngest child"s birth certificate was purchased. I see no basis upon which to interfere with this finding.
The Claim of the Female Applicant
[6] Applicants' counsel submits that the Board made erroneous findings of fact in determining that both the male and the female applicants were not credible. The respondent disagrees with this position and argues that the Board made reasonable assessments of credibility and findings of implausibility which were reasonable and supported by the evidence, both of which should not be interfered with by the Court.
[7] Applicants' counsel argued that the Board made an error of law by failing to consider contradictory documentary evidence in reaching its finding that it was implausible that the authorities would seek to sterilize the female applicant. I see no basis to interfere with this finding. I also disagree with the applicant"s submission that the Board erred in making a negative assessment of the female applicants' credibility based on her evidence regarding her participation in a demonstration, her detention in a mental hospital and the couple"s desire for further children. It was within the Board"s discretion to make implausibility findings based on inferences which, in my opinion, were reasonable and supported by the evidence before the Board.
[8] Applicants' counsel submits that theBoard failed to consider a medical report with respect to the female applicant or discounted its significance on an unreasonable basis. The applicant contends that the report represents a reasonable explanation for the female"s difficulty in testifying that might have affected the Refugee Division"s determination that she was not credible. Applicants' counsel also contends that the Board cannot simply dismiss the medical report and is required to provide an explanation for not accepting it.
[9] The respondent contends that the Refugee Division indeed considered the psychiatric assessment and the fact that the wife was not taking any medication for stress or for any other reason and that she had not missed any days at work as a result of her emotional situation. It is contended that the Refugee Division did not reject the medical report but indeed considered it. The medical report was obtained after the first hearing and prior to the second hearing in this matter. The Board found that the female applicant was evasive and and the report suggested that it was due to post-traumatic stress syndrome.
[10] In my opinion, the Board dealt with the report and no error can be related to the manner in which they considered it. The use of the medical opinion is often dependant upon the facts giving rise to it. The Board did not find the applicant to be credible and the medical opinion did not persuade the Board that her evasiveness was as a result of the post-traumatic stress syndrome. In any event, as I indicated previously, in my view they considered the report in the context of the other evidence before the Board with respect to her credibility.
The Male Applicant"s Claim
[11] In general, the Board impugned the male applicant"s credibiltiy based on the fact that his testimony was vague, evasive and not straightforward. The panel, in my opinion, took into account relevant considerations in determining that the applicant was not credible. Moreover, the Board rejected the male applicant"s testimony concerning his failure to regularize his status and make a refugee claim in Holland. This was based upon an assessment of all of the evidence on this point. The Board determined that the actions of the applicant in not regularizing his status made no sense and was irrational in this regard. Such considerations are clearly within the Board"s authority. In this regard, I see no basis to interfere with the Board"s decision regarding the male applicant"s claim.
Conclusion
[12] No question for certification was proposed and therefore no question is certified. The application for judicial review is dismissed.
Howard I. Wetston
Judge
Ottawa, Ontario
August 28, 1998
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