Date: 20010327
Docket: IMM-2642-00
Neutral Citation: 2001 FCT 244
BETWEEN:
XIU LAN GUAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
LUTFY A.C.J.
[1] Despite the able submissions of the applicant's counsel, I cannot conclude that the Refugee Division's decision for its negative finding of credibility discloses any error which would warrant this Court's intervention.
[2] The single-member panel did not believe the applicant on three important issues. First, the panel member did not accept the authenticity of the applicant's family household registration ("hukou"), purportedly dated some four years after she and her relatives had fled their residence and one month after the applicant herself arrived in Canada. Second, the panel member did not believe that the government authorities delivered their notice of the RMB28,000 fine against the applicant by leaving a copy with a relative, some four or five months after the family was forced to abandon their residence. Third, the panel member had difficulty accepting the applicant's confused version concerning how she came to know the smuggler who allegedly assisted her to reach Canada.
[3] After a careful reading of the transcript of the applicant's testimony, I am fully satisfied that these three negative findings were open to the tribunal. The record also discloses other discrepancies in the applicant's evidence which were referred to in the reasons but appropriately given less importance.
[4] Also, as noted in her reasons for decision, the panel member's assessment of the applicant's credibility might have been more favourable if one or more of her family members, including her mother and three siblings who reside in Canada, had testified to corroborate her version. None of the applicant's relatives in Canada appeared as witnesses concerning her number of children and the difficulties she encountered in 1990 with the government authorities. This appears to have been a factor of some importance to the panel member in assessing the applicant's evidence.
[5] Counsel focussed his submissions principally on the panel member's interpretation of the applicant's personal documents to establish that she was sterilized and fined in May 1990 after the birth of her second son.
[6] The panel member did refer to the applicant's "certificate of abortion" as not being genuine when, in her oral and written reasons, she should have stated "certificate of sterilization". The document in question refers to "date of surgery of abortion, contraceptive ring, sterilization" and the appropriate intervention is to be marked. This incorrect reference to the document is not a serious error.
[7] The applicant also argued that the panel member misconstrued the country evidence to conclude that her personal documents, particularly her certificate of sterilization, were not authentic. Counsel made four points in support of this submission.
[8] First, the twenty-one-day leave provided for in the certificate of sterilization is precisely the period of recuperation noted in the family planning regulations of the applicant's home province.
[9] Second, an I.R.B. Research Directorate report (CHN33035.EX) confirms that certificates of sterilization are used to obtain benefits in the implementation of China's family planning policy.
[10] Third, the Research Directorate report refers to one expert who doubted that a "certificate of forced abortion" existed. In her reasons, the panel member stated that this expert had no knowledge of "certificates of abortion". It was an error for the panel member to use the Research Directorate report as one of the grounds for concluding that the certificate was not authentic. However, another country evidence report refers to the illegal purchase and production of false abortion-related documents. While the panel member wrongly interpreted the Research Directorate report by confusing "certificate of forced abortion" with "certificate of abortion", her other findings adequately support her negative assessment of the applicant's credibility. Her error concerning the Research Directorate report is not one that warrants the Court's intervention in these circumstances.
[11] Fourth, the panel member put into question the applicant's ability to give birth twice with little interference by the family planning authorities. Contrary to the suggestion made by counsel, the panel member understood that, in her words: "It is only after the birth of her second child that the family planning officials appeared to come in and demand sterilization and fines." This finding is chronologically correct. It was open to the panel member to take this issue into consideration in her credibility assessment.
[12] The applicant raises a disclosure issue as her final argument. On March 27, 2000, approximately one week prior to the oral decision which immediately followed the applicant's refugee hearing, the Research Directorate report, referred to earlier, was updated to include the following statement relied upon by counsel:
The "certificate" for sterilization, abortion and insertion of IUD are [sic] issued by the hospitals or family planning clinics for the purpose of ensuring clients receiving such operation have a safe paid leave, and it is difficult to provide a sample because of the lack of a standard form.
[13] I do not accept that the Board's failure to have made available this updated report to the panel member and the applicant prior to the hearing constitutes a reviewable error. This new information further confirms the existence of certificates of sterilization and their issuance by family planning clinics, as indicated on the document relied upon by the applicant. However, as I noted earlier, the several other factors relied upon by the panel member to dismiss the applicant's testimony are supported by the transcript and are unrelated to the certificate of sterilization.
[14] For all these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 27, 2001
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