Docket:
IMM-6522-13
Citation:
2014 FC 422
Ottawa, Ontario, May 5,
2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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MIN JIA
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ZHIHAI WANG
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review,
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision that the applicants were not Convention
refugees or persons in need of protection.
[2]
For the reasons which follow, the application is
dismissed.
I.
Background
[3]
Ms. Jia and Mr. Wang are Chinese citizens. They
testified that they were both previously married and each had one child from
their first marriage. After Ms. Jia’s son was born in 1994, she used an IUD as
contraception. Ms. Jia and Mr. Wang met in 2006 and began cohabiting in
January 2009. In May 2012, Ms. Jia, then in her late thirties, discovered that
she had accidentally become pregnant. The couple married in June 2012 and
applied for a birth permit but it was refused as they each had a child
already. Ms. Jia went into hiding.
[4]
In July 2012, because Ms. Jia was not at work
and was missing her family planning check-ups, family planning officials came
to their house, interrogated Mr. Wang’s parents, and assaulted them. The
officials visited again in August and told Mr. Wang’s parents that they would
find the couple sooner or later and would deal with them.
[5]
In August 2012, the couple applied for a visitor
visa and in October of that same year, they travelled to Canada. On January 4, 2013, the family planning officials came to the family house in China again, arrested Mr. Wang’s parents, and sent them to a detention facility, where they
interrogated them about Ms. Jia’s pregnancy. Ms. Jia gave birth to a daughter
in Canada on January 16, 2013. The couple applied for refugee protection
approximately one week later. They explained to the Refugee Protection
Division [RPD] that they feared severe persecution for having breached the
one-child policy if they were returned to China.
II.
Impugned decision
[6]
The RPD heard the applicants’ case on September
13, 2013 and issued a decision on September 18, 2013. It accepted their
identity as citizens of China but found that they were not refugees or persons
in need of protection. The Board member noted that she took into account the
Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related
Persecution [the Gender Guidelines] in making her determination.
[7]
The Board member identified a number of
credibility issues in the claimants’ documents and testimony and indicated that
in her assessment she had focussed on the authenticity of the documents
submitted.
[8]
First, the claimants had submitted notices of
detention indicating that Mr. Wang’s parents were detained on January 2, 2013,
because Ms. Jia had given birth to “two babies in excess
of the law”. Ms. Jia explained that this meant a total of two babies,
the second one being over the limit, and that the notices referred to her
pregnancy, as her second child was not born until January 16th. She
had previously testified that her in-laws had not revealed the pregnancy, but
when confronted with the document, explained that she had made a mistake, and
they had revealed it in January 2013 when interrogated. The Board member did
not consider these to be satisfactory explanations. She weighed the convoluted
and contradictory testimony and considered the documentary evidence that the
market for fraudulent documents was expanding rapidly in China, and found on a balance of probabilities that the notices of detention had been fabricated to
support the claim.
[9]
The Board member then considered a family
planning certificate submitted by Ms. Jia. It indicated her date of birth as
being July 21, 1973 and was issued on January 1, 2010, but gave her age as 39.
Ms. Jia explained that in China children are considered to be one year old at
the time of birth, and that depending on when the Chinese new year fell, they
might be two years older than their calendar age. However, the Board member
gave this explanation little weight as the claimant’s calendar age on January
1, 2010 was 36 years old, not 37 or 38, so the discrepancy remained unaccounted
for. In addition, the family planning certificate did not indicate a method of
birth control and did not record any birth control checks during the validity
of the document, only regular verification of Ms. Jia’s address. Ms. Jia
stated that the information on her IUD was contained in a previous booklet
which she had destroyed and that no specific entry would be made after birth
control checks; however, the Board member did not find this very persuasive.
The Board member concluded on the balance of probabilities that the document
only showed address verifications and not regular birth control checks, and
therefore did not corroborate Ms. Jia’s account of regular state check-ups.
She found that the document was also, on a balance of probabilities, fabricated
to support the refugee claim.
[10]
The Board member’s findings in respect of the
two documents caused her to find that none of the applicants’ documents
concerning the alleged risk from family planning authorities were trustworthy
and reliable. She therefore placed no weight on the document purporting to
deny a birth permit for the couple’s daughter.
[11]
The Board member found that the fabrication of
documents in evidence also tainted the evidence produced, to show that the
applicants each had one child from a previous marriage. A birth certificate
document was produced for Ms. Jia’s son but only a notary public certificate
was produced for Mr. Wang’s son. A documentary source in the national
documentation package indicated that such a certificate would “theoretically represent an expert judgment on the part of the
notarial official as to the facts documented” and could be issued on the
basis of an oral statement by an applicant. The Board member acknowledged that
household registration books for both applicants were submitted showing a son
for each, but noted that these were prone to widespread fraud. She also
acknowledged that Ms. Jia had declared both a son and a stepson on her Canadian
visa application.
[12]
The Board member placed little weight on the
reliability of the testimony and documentation of the applicants’ household
composition. She found that there was insufficient trustworthy and reliable
evidence to establish on a balance of probabilities that the applicants had
violated Chinese family planning laws and would face persecution as a result.
She noted that she had considered Mr. Wang’s assertion that the couple wished
to have more children, but noted that they were now aged 43 and 40 and that
this was speculative. She also noted that she had considered case law
referenced by the applicants where strong opposition to mandated birth control
had led to persecutory treatment, but found that this was not the applicants’
situation. Ms. Jia had stated that she had complied with family planning
regulations for approximately 18 years, although she disliked the check-ups,
and that her recent pregnancy had been accidental. This did not constitute
such a strongly held belief that it would constitute persecution to force her
to submit to state reproductive supervision.
[13]
The Board member concluded that the applicants
had not provided sufficient credible and reliable evidence to support a finding
that they would face more than a mere possibility of persecution if returned to
China, or a finding that on a balance of probabilities they would face a risk
to their lives, a risk of torture, or a risk of cruel and unusual treatment or
punishment. She rejected the claims.
III.
Issue
[14]
The issue is whether the Board erred in its
review of the evidence when concluding that the applicants had failed to prove
a well-founded fear of persecution in China.
IV.
Standard of review
[15]
The applicants did not present arguments on the
standard of review. The respondent argued that the applicants’ case turns on
the Board’s credibility assessment and weighing of the evidence, for which the
standard of review is reasonableness.
[16]
The standard for a Board’s assessment and
weighing of evidence has been established to be reasonableness: Dunsmuir v New Brunswick, 2008 CSC 9 [Dunsmuir] at para 53. However, the standard for the
choice of the correct legal test or threshold, is generally that of correctness:
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa]
at para 44.
V.
Analysis
Did the Board err in its review of the evidence when concluding that
the applicants had failed to prove a well-founded fear of persecution in China?
[17]
The applicants argue that although the Board
mentioned the Gender Guidelines, it failed to apply them by taking into
consideration Ms. Jia’s genuine subjective fear of persecution based on her
pregnancy, which was supported by objective country documentation concerning
the one-child policy. Instead, the Board discounted the applicants’ testimony
due to authenticity concerns with the documents they had submitted. The
applicants submit that the inconsistencies in their story did not invalidate
the factual situation of cruel and inhumane treatment of violators of the
one-child policy.
[18]
The main issue before the Board was
credibility. It found that given the irregularities in the testimony and
documents presented to it, there was insufficient reliable evidence to find
that the applicants faced persecution as envisaged in section 96 of the IRPA or
unacceptable risks as envisaged in section 97 of the IRPA, if returned to China. The applicants do not point to any specific evidence which the Board ignored, nor
do they demonstrate how the international instruments cited would have changed
the outcome of the decision.
[19]
Findings of credibility lie at the heart of a
Board’s expertise in determining the possibility of testimony and drawing
inferences from the evidence. It is well-established that an applicant’s
overall credibility may affect the weight given to the documentary evidence (Granada
v Canada (MCI), 2004 FC 1766 at para 13; Hamid v Canada (MCI),
[1995] FCJ No 1293 (QL) (TD) at para 21; Huang v Canada (MCI), 2011 FC
288 at para 21).
[20]
A Board is not obliged to list every piece of
evidence and every argument in order for its decision to be reasonable (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 [Newfoundland Nurses] at para 16). When the
record is viewed as a whole, it is clear that it was open to the Board to find
as it did. I am in agreement with the respondent. The applicants’ arguments
amount to a request to reweigh the evidence. The Board’s decision was a possible,
acceptable outcome within the bounds of reasonableness.
[21]
In view of the fact that the applicants were
deemed not to be credible and their documents were suspect due to their
numerous irregularities, there was no credible evidence on which the RPD could
find a subjectively or objectively well-founded fear of persecution, or support
a finding that the applicants would be persecuted were they to return to China. In cases relied upon by the applicants such as Canada (MCI) v Ye, 2013
FC 634, there was reliable evidence to support the central elements necessary
to prove a well-founded fear of persecution.
[22]
The RPD’s finding that the applicants’ story
lacked the hallmarks of a truthful account was justified. The Board’s decision
was a reasonable, acceptable outcome within the bounds of reasonableness.
[23]
For the above reasons, the application is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is dismissed.
"Peter Annis"
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