Date: 20000531
Docket: IMM-678-99
Ottawa, Ontario this 31st day of May, 2000
PRESENT: THE HONOURABLE MADAM JUSTICE E. HENEGHAN
BETWEEN:
TSUN YUN CHOW
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] This is a judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("Board") rendered on December 17, 1998. In its decision, the Board determined that Tsun Yun Chow (the "Applicant") was not a Convention refugee.
[2] The Applicant is a citizen of the People's Republic of China. She arrived in Canada on March 22, 1998. The Applicant claimed refugee status based on membership to particular social group, namely, women in China with more than one child.
[3] The Applicant has two daughters. The first daughter was born in 1995 and the other was born in 1997 while the Applicant was in hiding. The Applicant claims that the family planning committee discovered that she had a second child and as a result, she was detained in September of 1997 for 10 days. She also alleges that she was fined 38,000 RMP, released and told to return within a month to be sterilized. The Applicant went into hiding in October 1997 to avoid sterilization. She also claims that in January 1998 the Chinese authorities rescinded her husband's business license in retaliation for her disappearance.
[4] In its decision, the Board found implausibilities and omissions in the Applicant's testimony and thus, found a general lack of credibility on the part of the claimant. The Board also determined there was insufficient credible and trustworthy evidence on which to declare the Applicant a Convention refugee.
[5] The Board put forth a number of reasons, in stating that the Applicant was not credible:
| - The Board stressed that the Applicant failed to mention her main fear, forced sterilization, at the Port of Entry. Instead, the Applicant stated "family planning, can't have more children without paying a fine". |
| - The Board noted that the claimant was unable to provide an explanation as to why the authorities had failed to sterilize her when she was detained or why her husband had not been sterilized. The Board indicated that there is credible documentary evidence that the Chinese authorities can be ruthless in the area of family planning policy. The Board stated that this documentary evidence supports the Board"s disbelief in the Applicant"s testimony. |
| - The Applicant is attempting to flee the ruthless behaviour of the family planning policy authorities. The Board found this attempt incompatible with the Applicant"s claim that she was released from detention without sterilization. |
| - The Board indicated that the documentary evidence concerning the Guangdong province is contradictory; some experts say it is lax with regard to the enforcement of family planning policy and others say policy is forcibly implemented. Following the documentary evidence, the Board found that the Applicant, based on her profile would attract a more lenient attitude by the family planning committee. |
| - The panel stated that its adverse finding of credibility is corroborated by the fact that the husband remains in China without being harassed by the authorities. The Board also stressed that the husband had not been sterilized. |
[6] At the Port of Entry, the Applicant made a statement that she was claiming refugee status because "family planning, can"t have more children without paying a fine". The Board relied on this statement in conjunction with the documentary evidence to discredit the Applicant"s credibility.
[7] Although the Board is entrusted with the task of weighing the evidence and assessing the Applicant"s credibility and these findings are treated deferentially, I am of the opinion that the Board was unreasonable in its assessment of the Applicant"s testimony. The Board found the Applicant not to be credible based on her statement at the Port of Entry. The Board then used the documentary evidence to substantiate its finding that the Applicant was not credible. In particular, the Board used the documentary evidence which states that the Chinese authorities can be ruthless in the enforcement of family planning. Based on this documentary evidence in which the Chinese authorities were described as ruthless, the Board discounted the Applicant"s credibility when she was unable to explain why she had not been sterilized when detained.
[8] In the same decision, the Board then contradicts itself by stressing that the documentary evidence concerning the Guangdong province is contradictory. Some experts say it is lax with regard the enforcement of family planning policy and others say policy is forcibly implemented. The Board, following the documentary evidence, found that the Applicant, based on her profile would attract a more lenient attitude by the family planning authorities.
[9] In my opinion, it is irrational and unreasonable for the Board to use the documentary evidence in a contradictory manner. Specifically, it is irrational for the Board to first find that the family planning authorities in China are ruthless and use this information to disbelieve the Applicant"s testimony regarding her release from detention without sterilization, and then for the Board to subsequently state that the Applicant does not have an objectively reasonable fear of persecution given the Board"s finding that in her province, and based on her profile, the Applicant would be treated more leniently by the family planning authorities. These two findings stemming from the documentary evidence are contradictory and cannot stand together.
[10] In Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280 (F.C.T.D.), Madam Justice Tremblay-Lamer summarized the standard of review applicable to judicial reviews of the Convention Refugee Determination Division. Madam Justice Tremblay-Lamer wrote:
| Taking all these factors into account, as required by the pragmatic and functional approach, and having carefully considered the decisions of the Supreme Court in Pushpanathan and Baker, I am of the opinion that the appropriate standard of review for the determinations of whether or not there is more than a mere possibility that the Applicant would face persecution if he were to return to India remains patent unreasonableness. |
| However, accepting a more deferential approach does not preclude this Court from intervening where there is a palpable error or where the Board"s conclusion is not supported by a reasonable interpretation of the facts. |
| In a pragmatic approach, there is in my opinion a very thin line between a reasonable and a patently unreasonable decision.... At the end of the day, the decision will have to stand a thorough examination by the reviewing Court in order to enable the Court to evaluate if the tribunal"s reasons are in accordance with the evidence and to ensure that they are not clearly illogical or irrational.1 |
[11] The Board has used the documentary in antithetical manner and thus, I find the Board"s reasons to be illogical.
[12] In finding the Applicant not to be credible, the Board also stresses that the Applicant"s husband remained in China without being harassed. However, in the transcript, the Applicant explains to the Board that her husband"s license was taken away by the authorities as a consequence of her evasion of sterilization.
[13] Given that the husband"s license was revoked, it is my opinion that the Board did not have regard to the totality of the evidence in reaching its conclusion that the husband was not harassed by the authorities.
[14] Moreover, in its decision, the Board uses its conclusion that the Applicant"s husband was not harassed to reinforce its finding that the Applicant is not credible and that the lack of harassment by the Chinese authorities of the husband is inconsistent with the Applicant"s fear of persecution in China.
[15] For the reasons articulated above, the judicial review is granted and the matter sent back for redetermination by a differently constituted panel.
[16] Counsel for the parties have seven days following their receipt of these reasons to request that a question be certified.
ORDER
[17] IT IS ORDERED that the judicial review be granted.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
May 31, 2000
__________________
1Ibid. at para 15-17.
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