Date: 20071004
Docket: IMM-5103-06
Citation: 2007 FC 1001
BETWEEN:
YIN HUAN SHEN
JUN CAO YONG
HUI SHAN CAO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
The
applicants, a husband, wife and their daughter, are seeking judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated August 16, 2006, determining that the applicants are
not “Convention refugees” and not “persons in need of protection”.
[2]
The
applicants arrived in Canada, from Guangzhou in the Guangdong province of China, in 2003,
and sought protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. In her Personal Information Form
(PIF), the female applicant claimed that she had been forced to wear an intra-uterine
device (IUD) after the birth of her first child, despite the discomfort and
excessive bleeding it caused. When officials discovered, during a routine
check-up, that she was pregnant with a second child, she was subject to an
immediate forced abortion. Since the IUD could not be replaced immediately
after the abortion, the applicants were required to pay a guarantee of 5,000 RMB
in order to ensure that the female applicant would return in one month’s time
for reinsertion of the IUD. Instead, the applicants went into hiding and, after
two months, came to Canada. The applicants claim they face forced
sterilization if they return to China.
[3]
The
Board rejected the applicants’ claims to refugee and protected person status.
For the Board, the primary issue in the claims concerned the credibility of the
claimants’ subjective fear of persecution if they returned to China. In
particular, the Board determined that the female applicant was not credible
with regard to her claim of being subjected to a forced abortion, and that the
applicants were not credible with regard to their claim that they faced forced
sterilization if they were to return to China.
* * * * * * *
*
[4]
The
applicants rely on Cepeda-Gutierrez v. Canada (M.C.I.) (1998), 157
F.T.R. 35, to argue that, while the Board need not refer to every piece of
evidence before it, its burden of explanation increases with the relevance of
the evidence in question to the disputed facts, and that, in this case, the Board
completely ignored highly relevant evidence.
[5]
In Cepeda-Gutierrez,
supra, the Court determined that it may infer, from an agency’s failure
to mention some evidence in its reasons, that the agency made a decision that
was not based on the evidence before it. However, “the reasons given by
administrative agencies are not to be read hypercritically by the court […] nor
are agencies required to refer to every piece of evidence that they received
that is contrary to their finding.” The Court did, nevertheless, point out that
“a blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears
squarely to contradict the agency’s finding of fact.”
[6]
In my
view, Cepeda-Gutierrez is distinguishable from this application, since
the evidence in that case was particular to the applicant, whereas the evidence
which the applicant claims was ignored here is general documentary evidence.
[7]
However,
even if Cepeda-Gutierrez applies, I am of the opinion that the Board’s decision
was not patently unreasonable. The Board clearly engaged in a weighing of the
conflicting evidence when it determined that the female applicant “may or may
not be telling the truth” on the issue of forced abortion. As the respondent
points out, the Board is entitled to determine what evidence it will rely on in
the case of conflicting evidence, and it can also decide to prefer documentary
evidence to testimony (Ganiyu-Giwa v. Canada (M.C.I.), [1995] F.C.J. No.
506 (T.D.) (QL)). The Board determined that the female applicant’s claim was
not credible because she claimed that forced abortions were standard practice
in her region, a claim which was not supported by the documentary evidence.
This is clear from the following excerpts from the Board’s reasons:
A
2001 study of Chinese birth planning noted that the one-child standard remained
in place and that a woman with an out-of-plan-pregnancy would be the subject of
determined official social pressure to undergo an abortion. However, if a woman
insisted on carrying an out-of-plan pregnancy to term, the punishment is “a
substantial fine and revocation of any one-child benefits for the parents…” In
addition, reports of specific incidents of forced abortions and forced
sterilization in the region of Guangzhou, the claimants’ home region, in the
period 2002-2005, could not be found among the sources consulted by the IRB’s
Research Directorate. This does not mean that none occurred. Information regarding
such matters is often difficult to obtain. However, it seems clear that such
persecutory measures were not the standard official response in 2003. […]
The
female claimant stated in her Personal Information Form (PIF) that the
requirement to use an IUD and the discomfort and excessive bleeding it caused “was
the beginning of the persecution.” In this regard, a document titled, “Procedures
Governing Population and Family Planning Management in the City of Guangzhou” notes that alternative means of birth control may be
chosen if medical officials certify that the IUD is inappropriate for health
reasons. The same document notes a range of situations in which more than one
child is permitted. I take a negative inference from the female claimant’s uncritical
generalizations concerning abortions and sterilization as standard policies and
her emphasis on the burdens of using an IUD without any apparent attempt to
seek alternative protection. While it is not possible to know whether the
female claimant has had an abortion and the particular circumstances in which
it might have taken place, I find the female claimant’s story of an immediate
forced abortion and denial of access to her family not to be credible.
[8]
The
role of the Court in this case is not to determine whether or not it agrees
with the Board’s assessment, but rather to determine whether the Board’s
decision was patently unreasonable. The above excerpt demonstrates that the Board
considered the fact that there was conflicting evidence, and that its
conclusion is not patently unreasonable.
[9]
The
applicants also challenge the Board’s decision not to give weight to the register
which had been submitted by the female applicant. In this regard, the Board
stated:
The
female claimant’s narrative concerning her second pregnancy and subsequent
forced abortion was supported by an IUD check register. However, the
authenticity of the register was in doubt and it was subjected to a forensic
examination. The result was ‘inconclusive’ because of the lack of a genuine
corresponding specimen. There is, therefore, no firm documentary support for
her story. […]
[10]
The
applicants take issue with this assessment of the document, and argue that the Board
should have given it more weight based on the forensic report’s further
statement that, although the findings were inconclusive, the document had not
been produced by copier or printer and “all written data is consistent with a
specific handwriting tool.”
[11]
However,
this argument again goes to the weight the Board gave to the evidence. It is
clear from the panel’s above statement that the Board considered the register,
but determined that it was of low value. It was within the Board’s power to do
so. Therefore, I do not find that the Board’s determination that the female
applicant’s claim of forced abortion lacked credibility was patently
unreasonable.
[12]
The
applicants further claim that, if they return to China, they face forced sterilization because they
have violated the one-child policy. The Board found that this claim also lacked
credibility, but the applicants submit that the Board again failed to address
relevant evidence.
[13]
I
would dismiss this claim as well. The Board’s reasons make it clear that it
considered the conflicting evidence:
. . . Country documents provide mixed
messages regarding the nature of any penalty that the two adult claimants might
experience. However, the preponderance of such evidence indicates that their
likely penalty would be a fine and the denial of social benefits, burdensome
but not persecution.
[14]
The
Board was entitled to come to this conclusion. As Justice Pelletier pointed out
in Conkova v. Canada (M.C.I.), [2000] F.C.J. No. 300 (T.D.) (QL), “[t]he
view which the [Board] took of the evidence was one which could reasonably be
taken, just as the opposing view could also reasonably be taken. […] As long as
its conclusion is not one which is wrong on its face, it is not patently
unreasonable.”
* * * * * * * *
[15]
For
all the above reasons, I find that the Board’s decision that the applicants’
claims were not credible was not patently unreasonable, and as a result, the
application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa, Ontario
October
4, 2007
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