Date: 20110310
Docket: IMM-1972-10
Citation: 2011 FC 288
Ottawa, Ontario, March 10, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SUISHAN HUANG
JIA HAO HUANG (A MINOR)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated March 11,
2010, wherein the Applicants were determined to be neither convention refugees
nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, RS 2001, c 27 [IRPA]. The Board
determined that based on the evidence and because of its negative
determinations as to credibility, the Principal Applicant (PA) failed to
establish more than a mere possibility that she would be persecuted or that she
would be personally subjected to a risk of cruel and unusual treatment or
torture.
[2]
Based
on the reasons below, the application is dismissed.
I. Background
A. Factual
Background
[3]
The
PA, Suishan Huang, and her son, Jia Hao Huang, the minor applicant, are both
citizens of the People’s Republic of China (PRC). The PA is the designated representative
of the minor applicant. The PA fears persecution at the hands of the Chinese
family planning officials because she violated the PRC’s birth control
policies.
[4]
The
PA alleges that shortly after the birth of her daughter in October 1996 she was
required to wear an intrauterine device (IUD) to prevent further pregnancies in
compliance with the PRC’s One-Child Family Planning policy. However, the PA
realized in May 2002 that she was pregnant again and so went into hiding to
avoid her pregnancy check-ups. The PA gave birth to her son in January 2003
and left him in the care of her aunt. She had her IUD reinserted and returned
home.
[5]
While
the PA was in hiding she missed one of her IUD check-ups. Birth control
officers approached her husband who told them that she was sick and away for
medical treatment. Upon her return she attended a check-up and was fined 5,000
RMB for missing her regular IUD check-up.
[6]
The
PA’s aunt was able to obtain an Outpatient Record Card from the First People’s
Hospital in Guangzhou City for the minor
applicant, and he was successfully treated for non-serious illnesses. However,
in July 2006 the minor claimant came to the attention of the hospital’s birth
control officers when he had to be admitted for a more serious illness.
[7]
The
PA’s aunt called her to warn her that the minor applicant had raised the
suspicions of the birth control officers. The PA and her husband decided to go
into hiding, fearing that they might be in trouble, while the PA’s mother was sent
to retrieve the minor son. Two birth control officers visited the PA’s home
and left a Family Planning notice with the husband’s parents. The notice
indicated that either the PA or her husband were to be sterilized for violating
the Family Planning policies, and that they had to pay a 70,000 RMB fine within
one week.
[8]
One
week after that visit, the birth control officers returned, accompanied by two
police officers. They left a Public Security Bureau (PSB) Notice to attend an
inquiry. The PSB notice also indicated that they were subject to a 50,000 RMB
fine.
[9]
Fearing
forced sterilization, the PA and her husband located a smuggler, who agreed to
help the PA flee by posing as her partner. The smuggler agreed to take the minor
applicant and provided both Applicants with a false passport.
[10]
The
Applicants arrived in Canada on August 13, 2006 and
applied for refugee protection the same day.
B. Impugned
Decision
[11]
The
Board determined that the PSB Notice was, on a balance of probabilities,
fraudulent. The Board also came to the conclusion, on a balance of
probabilities, that the minor applicant’s medical booklet was not genuine.
From the submission of these two fraudulent documents the Board drew a negative
inference regarding the PA’s credibility.
[12]
The PA
also omitted specific information in her PIF. During the hearing of this
claim, the PA testified that her mother was forcefully sterilized in 1987.
Although the Applicant claimed to have learned this prior to hearing, she did
not amend her PIF or have allegedly corroborating documentary evidence
translated. The Board found it unreasonable that the Applicant would not have
made efforts to enter this information into evidence and determined that the PA
embellished her oral testimony, further supporting the inference that the PA
was neither credible nor trustworthy.
[13]
Furthermore,
the Board found that the PA’s evidence was inconsistent with the documentary
evidence. Firstly, the documentary evidence indicates that a couple would only
be subject to one fine for violating the family planning policies, not two as
the PA alleged. Secondly, there have been no reports of incidents of forced
sterilization in the PA’s home municipality, the Guangzhou urban area, among the sources consulted by
the Immigration and Refugee Board’s Research Directorate for the period 2002 –
2005. Furthermore, family planning officials are no longer evaluated on the
basis of meeting birth quotas, but on the care being provided. Based on the
foregoing, the Board found that, on a balance of probabilities, the PA’s
subjective fear of persecution was not supported by the objective situation in Guangdong province.
II. Issues
[14]
The
issues raised in this application are:
(a) Did
the Board err in failing to consider the Neighbourhood Committee Notice
requiring the PA to be sterilized?
(b) Did
the Board err in finding, on a balance of probabilities, that the PA’s
subjective fear of persecution was not supported by the objective situation in Guangdong province?
III. Standard
of Review
[15]
It
is well-established that decisions of the Board as to credibility are factual
in nature and are therefore owed a significant amount of deference. The
appropriate standard of review is a standard of reasonableness (Lawal v
Canada (Minister of Citizenship and Immigration), 2010 FC 558, at
para 11; Aguebor v Canada (Minister of Employment and Immigration)
(1993), 160 NR 315, 42 ACWS (3d) 886 (FCA) at para 4).
[16]
Similarly,
the weight assigned to evidence and the interpretation and assessment of
evidence are all reviewable on a standard of reasonableness (N.O.O. v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at para
38).
[17]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument
and Analysis
A. The
Board Did Not Fail to Consider the Notice
[18]
The
PA submits that the Board failed to indicate in its reasons the impact, if any,
the Neighbourhood Committee Notice had in coming to the conclusion that the PA
was neither a Convention Refugee nor a person in need of protection.
[19]
The
Respondent submits that the PA’s assertion that the Board made no comment on
the Neighbourhood Committee notice is erroneous. The Reasons and the
transcript show that the Board had regard to the notice, but decided to give it
little weight.
[20]
In
its Reasons, the Board referred the Neighbourhood Committee notice as the
Family Planning notice, and as the Respondent asserts, mentioned it at
paragraph 21 of its Reasons. This notice allegedly fined the PA 70,000 RMB and
advised that either the PA or her husband would be sterilized. This notice was
received prior to the PSB notice which fined the couple 50,000 RMB for the same
offence. Based on the documentary evidence which indicated that the PA and her
husband would be subject to one fine and not two, the Board decided to
attribute little weight to the Family Planning notice, and no weight to the PSB
notice, which the Board had previously determined to be fraudulent.
[21]
As
the Respondent submits, there is no merit to the PA’s argument. This Court has
held that an applicant’s overall credibility may affect the weight given to the
documentary evidence (Granada v Canada (Minister of Citizenship and Immigration), 2004 FC 1766, 136 ACWS
(3d) 123 at para 13). Furthermore, this Court has gone so far as to hold that
where the Board has concluded that the Applicant’s claim, including facts to
which personal documents refer, is not credible on the whole, it is not an
error to fail to explain why the documents which purport to substantiate
allegations found not to be credible are not given any weight (Ahmad v
Canada (Minister of Citizenship and Immigration), 2003 FCT 471, 122 ACWS
(3d) 533 at para 26; Hamid v Canada (Minister of Employment and Immigration)
(1995), 58 ACWS (3d) 469 (FCTD) at para 21).
[22]
Given
the Board’s findings regarding the authenticity of the other documents and the
resulting negative credibility inference, coupled with the evidence in the
national documentation package, the Board’s decision to attribute little weight
to the notice, is entirely justified, transparent and intelligible (Chen v
Canada (Minister of Citizenship and Immigration), 2010 FC 282, at
para 4). If anything the PA is asking the Court to reweigh the evidence,
an activity which is outside the scope of this Court’s function on judicial
review (Brar v. Canada (Minister of Employment and Immigration) (FCA),
[1986] FCJ No 346 (QL)).
B. The Board Did
Not Err in Finding that the PA’s Fear Was Not Supported by the Objective
Situation
[23]
In
paragraph 22 of its Reasons, the Board states:
Article 25 of the Guangdong Family
Planning Regulations states that “Contraception shall be the first component of
family planning;” and “Where there are already two or more children, the first
choice shall be ligation for either the husband or the wife.” However, the
Panel notes that there have been no reports of specific incidents of forced
sterilizations in the Guangzhou urban area, which is the principal claimant’s
and her husband’s home municipality, found among the sources consulted by the
Research Directorate of the IRB for the period 2002-2005. The Research
Directorate of the IRB has contacted a UNFPA representative in China and was informed that local Family Planning officials are
no longer being evaluated by government officials on the basis of meeting birth
quotas but on the care being provided. For these reasons, the Panel finds, on
a balance of probabilities, that the claimant’s subjective fear of persecution
is not supported by the objective situation in Guangdong
province. The Panel further determines, on a balance of probabilities, that
the principal claimant was not at risk of forced sterilization by the Family
Planning Bureau in Guangzhou.
[24]
The
PA submits that the Board used the documentary evidence in a contradictory
manner and that the Board’s decision, namely that the PA was not at risk of
forced sterilization by the Family Planning Bureau in Guangzhou, was made without
regard for the material before it which clearly does not support the finding
made by the Board. The PA bases this assertion on articles of the Guangdong
Planning Regulations submitted by the PA’s counsel which contemplate
sterilization for a couple with two or more children.
[25]
The
Respondent argues that the Board referred to contradictory evidence, noting
that the laws refer to sterilization but then pointing to information
indicating that forced sterilizations are not actually being pursued by the
authorities. It appears based on the documentary evidence that the current
trend in dealing with the birth of children in excess of the permitted number
is to impose fines rather than force the sterilization of the parents, and as a
result, forced sterilization is not a probable result of the birth of an
additional child. The Respondent submits that this is a reasonable assessment
of the documentary evidence, and that the conclusion drawn was therefore open
to the Board (Liang v Canada (Minister of Citizenship and Immigration), 2009 FC 86, 176 ACWS
(3d) 203 at para 54).
[26]
I
share the Respondent’s view. The PA’s argument amounts to a disagreement with
the Board’s assessment and weighing of the evidence. There is no reason for
this Court to intervene. The conclusion that the Applicant’s subjective fear
is not supported by the objective situation in the Guangdong province is supported
by the evidence.
V. Conclusion
[27]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
[28]
No
question to be certified was proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
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