Date:
20130219
Docket:
IMM-4528-12
Citation:
2013 FC 173
Toronto, Ontario, February 19, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
ZHAN
CONG CAO
SHU FEN WEN
|
|
|
|
Applicants
|
|
and
|
|
|
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Member’s finding that the applicants’ oral
testimony, personal information form (PIF) narrative, and documentary evidence
concerning their treatment by family planning authorities in China was not
plausible or credible, and as a result that they were not objectively at risk
of sterilization, was based on a microscopic examination of the applicants’
evidence; speculation; and unsupported inference. As a consequence the
decision is unreasonable.
Background
[2]
The applicants are married and are citizens of China. In July 2007, they had their first child – a son. Ms. Wen says that after she gave
birth, the couple was not permitted to have any more children, and that she was
required to wear an intrauterine device (IUD) to prevent any further pregnancy.
[3]
In September 2008, Ms. Wen attended an IUD
examination with family planning officials. Despite the IUD, she was
pregnant. The family planning officials took her to the hospital immediately
for a forced abortion and they wanted her to be sterilized. Ms. Wen would not
agree and the officials accepted that she continue to wear an IUD but stated
that if she became pregnant again she would need to be sterilized.
[4]
On March 2, 2009, Ms. Wen attended another IUD
examination with family planning officials and was again found to be pregnant.
She was again brought immediately to the hospital to have a forced abortion,
but this time the officials were insistent that she also be sterilized.
However, the doctors concluded that she could not at that point be sterilized
because she was haemorrhaging from the abortion. So the family planning
officials decided, that day, that Mr. Coa must be sterilized instead, and
immediately set off for his house.
[5]
Mr. Coa was not home when the family planning
officials arrived. They left a notice for him to report to the birth control
office on March 6, 2009. According to the applicants’ PIF, the couple went
into hiding on March 4, 2009. When Mr. Coa did not report to the birth control
office as demanded, the officials paid another visit to their home. They
confiscated family property, damaged the home and suspended the supply of
utilities. The applicants produced a list of confiscated items, purportedly
issued by the family planning authorities, dated March 7, 2009.
[6]
On May 8, 2009, fearing that they could no
longer remain in China safely, the applicants departed for Canada with the assistance of a smuggler, and claimed refugee status shortly after arriving.
[7]
In January 2011, Ms. Wen gave birth to the
applicants’ second child, a girl. The applicants say they “continue to fear
sterilization as the family planning officials have continued to seek us out at
[Mr. Coa]’s uncle’s home and our close relatives’ homes, more recently once
every two months.” On each of these visits, the authorities’ warnings have
only been verbal.
[8]
Ms. Wen testified at the refugee hearing on
behalf of both applicants. Certain notable documents were before the Board:
the above-mentioned confiscated items list, “an IUD booklet, a sterilization
notice for Mr. Coa, two documents concerning abortions in September 2008 and
March 2009, and an illness diagnosis document dated March 3, 2009.”
[9]
The Board, in rejecting the claim, made the
following negative credibility findings:
(i)
The Board found that the Guangdong Provincial
Family Planning Regulations provide that the penalty for an “out-of-plan”
child is a social support fee, which rises with the number of out-of-plan
children, and that “there is no evidence available to [it] that women are
forcibly sterilized in China because there is the possibility of a future
pregnancy.” It found Ms. Wen’s explanation as to why the authorities would try
to sterilize her, despite these rules and the fact that she had only one child
at the time, “neither plausible nor credible [emphasis added].”
(ii)
Ms. Wen’s IUD booklet, testimony, and PIF
indicated that her second forced abortion took place on March 2, 2009, but two
hospital documents tendered as evidence were dated March 3, 2009. The Board
felt that Ms. Wen’s explanation was “that the hospital document was provided on
the day she was released and she stayed one night in the hospital” was
insufficient as “two hospital documents were disclosed. One document
specifically concerns the abortion and it is dated March 3, 2009. The other
document concerns the female claimant’s health problems after the abortion and
further indicates that as a result, she cannot be sterilized. It too is dated
March 3, 2009.” The Board found that Ms. Wen did not provide a credible
explanation for the discrepancy.
(iii)
The March 3, 2009 document indicating abortion
surgery had been performed also indicated that the patient’s condition after
surgery was “well.” However, the second March 3, 2009 hospital document
indicated there was bleeding after the surgery and there could be no
sterilization.
(iv)
If the planning authorities documented their
demand that the male claimant be sterilized, it was “reasonable to assume that
the demand that the female claimant be sterilized would also be documented.”
(v)
The demand for Mr. Coa to be sterilized was
dated March 2, 2009, but the medical documents concerning Ms. Wen were dated
March 3, 2009. Ms. Wen did not provide a credible explanation about the
discrepancy.
(vi)
There was no documentation from the family
planning authorities concerning Ms. Wen’s two forced abortions.
(vii)
Except the March 2, 2009 demand for Mr. Coa to
appear at the birth control office, there was no documentation from the family
planning authorities since the applicant couple went into hiding, and all of
their demands from that point had been “verbal” only.
[10]
The Board also found that the documentary
evidence generally supported the conclusion that the imposition of fines, as
noted above, and not forcible sterilization was the norm in Guangdong Province,
and that the applicants would be subject to a fine at most were they to return
to China with their second Canadian-born child.
[11]
In summary, the Board found that the documents
provided were fraudulent and that the applicants had not discharged their
burden of proving, on a balance of probabilities, that they would be persecuted
or be personally at risk of cruel and unusual treatment or punishment or a risk
to their lives or a risk of torture by any authority in China, and dismissed
their claims accordingly.
Issues
[12]
The applicants raise the following issues:
1. Whether
the Board erred in finding that the applicants’ fear of sterilization was not
credible; and
2. Whether the Board erred in
assessing the applicants’ objective basis of the claim.
Analysis
[13]
Much of the Board’s decision as to credibility
rested on its view that the two hospital documents dated March 3, 2009, showed
that the abortion was performed on that date, one day after the husband was
issued a document directing that he be sterilized. I agree with the applicants
that these documents show no such thing.
[14]
These two documents are “stamped” by the
hospital on March 3, 2009, but neither state that the abortion was performed on
that date. The Member unreasonably concluded that the date the document was
stamped reflected the date the abortion was performed. Ms. Wen’s testimony
that she was made to undergo an abortion on March 2, 2009, and that the family
planning officials decided that day that her husband would be sterilized is not
inconsistent with these documents, as the Member found.
[15]
The applicants also submit that the Member was
unreasonable in finding any contradiction with the documentary description of Ms.
Wen’s post-abortion condition. She was not “well” immediately following the
surgery on March 2, they say, but well, or well enough to be discharged on
March 3, 2009.
[16]
The Birth Control Surgery Certificate states:
Condition
after surgery: Well.
The
Illness Diagnosed Certificate states:
The illness was diagnosed
from our obstetrics and gynecology department as followed:
1. Early pregnancy,
abortion
2. bleeding after
the surgery, light anemia.
[sic]
The applicants’
PIF states that Ms. Wen suffered from haemorrhaging during the abortion and, as
a result, could not be sterilized at that time. Her testimony at the hearing
was that she had “a major haemorrhage after the abortion.”
[17]
In its reasons, the Board drew a negative
inference from the discrepancy in the descriptions of Ms. Wen’s post-abortion
condition – “Well” versus haemorrhaging. Even if one accepts that the Birth
Control Surgery Certificate was issued on March 3, 2009, that does not
satisfactorily explain why “Well” would have been noted as Ms. Wen’s condition
after her surgery the day before. Her condition was not well; according to
her, she was haemorrhaging badly. Moreover, whoever filled out the other March
3, 2009 hospital document Ms. Wen was provided – the Illness Diagnosed
Certificate – did note that she was bleeding after the surgery.
[18]
On the other hand, there was an issue at the
hearing about the accuracy or precision of the translations provided by the
applicants – an issue the Board itself identified at the hearing when the
hearing translator rendered a different translation of certain parts of the
hospital documents, and which prompted the Board Member to remark: “You better
get yourself another translator, counsel.”
[19]
I agree with the Member that the literal meaning
of the Birth Control Surgery Certificate contradicts the Illness Diagnosed
Certificate, and the Board was justified in pausing to consider this issue. On
the other hand, one must question how strong an inference can be drawn from
this. Could “well” have meant “stable?” The Board had already noted certain
translation inaccuracies on these hospital documents. Standing alone, this
negative inference is valid, but by itself it is not particularly strong and
standing alone it would be unreasonable to reject all of the applicants’
evidence.
[20]
The Board also found that it was “reasonable to
assume, in the context of the documentary evidence,” that “there would be some
Family Planning documentation concerning … [Ms. Wen’s] alleged required
sterilization.”
[21]
This assumption is made without any foundation.
There is no reference to any documentary evidence that establishes a foundation
for this assumption and the Board Member does not profess to have any special
expertise in this area. I agree with the applicants’ submission that the lack
of documentation from the authorities demanding that Ms. Wen be sterilized is
consistent with what she explained happened on March 2, 2009 – that the Family
Planning authorities took her to the hospital straight from her IUD
examination, and spoke directly with the doctors regarding her sterilization.
In that circumstance there was no need for any documentation. Mr. Coa, on the
other hand, was not home when the authorities went to find him – so they left
him a written demand for him to appear.
[22]
The Board also examined both the official family
planning regulations in Guangdong Province and documentary evidence about
incidences of forced abortions and sterilization in its reasons. It found that
forced abortions and sterilization, such as seems to have occurred in Puning City, were the exception in Guangdong Province and that the applicants were not
personally at risk or would be pursued for forced sterilization. The Board
also found that the applicants’ story lacked plausibility in light of the
regulations in place in Guangdong.
[23]
The applicants submit that despite the official
regulations in Guangdong, “coercive measures are well documented in the country
references.” They highlight a multitude of passages from documentary evidence
before the Board stating that the government in Guangdong was cracking down on
the population problem; that the mass sterilization campaign in Puning City (Guangdong Province) was not an isolated instance; and that couples in violation of
family planning policies were “routinely subjected to forced abortions and/or
sterilizations.” They point out that in the context that the IUD had been
ineffective not once but twice, there was an objective basis for their fear and
their allegations of attempted coerced sterilization are entirely plausible.
[24]
I find the Board’s conclusion to be
unreasonable. Certainly the applicants’ story is plausible based on the
evidence in the record. Most important, however, is that the Board makes its
finding in relation to the documentary evidence “in the context of [the]
findings and negative inferences noted above” [emphasis added]. Given my
finding that a number of these inferences were unreasonably made, it must be
concluded that so too is the Board’s conclusion as to the significance of the
documentary evidence.
[25]
The Board’s decision is unreasonable. It lacked
valid reasons for rejecting Ms. Wen’s sworn testimony and documents and relied
on improperly made plausibility findings. The decision must be set aside.
[26]
No question was proposed for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that the application is allowed, the applicants’ refugee
claim is remitted back to the Board to be determined by a different Member, and
no question is certified.
"Russel W. Zinn"
Email this Content