Docket: IMM-8158-13
Citation:
2015 FC 225
Ottawa, Ontario, February 19, 2015
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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LI XING CHEN (A.K.A. LI XIN CHEN)
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Applicant
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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
I.
Nature of the Matter
[1]
The applicant seeks to set aside a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the Board), dated November 26, 2013, which found that she was neither a
Convention refugee nor a person in need of protection pursuant to sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow the application is dismissed.
II.
Facts / The applicant’s evidence
[2]
The applicant, Li Xing Chen, is a 33 year old
citizen of China. The applicant married her husband on January 24, 2006 and
their first child, a daughter, was born on December 7, 2008. After her
daughter was born, the applicant was required by the family planning
authorities to use an IUD as contraception.
[3]
In May, 2011 the applicant suspected she was
pregnant. Her suspicion was subsequently confirmed by a doctor. During an
evening out, her husband shared the news with work colleagues, one of whom reported
the applicant’s pregnancy to the local Birth Control Committee. Another
colleague warned the applicant of this disclosure and the applicant went into
hiding.
[4]
While the applicant was in hiding, the Public
Safety Bureau (PSB) visited the applicant’s home for the purpose of taking her
in for a forced abortion. Upon being told that the applicant was not home, the
PSB ordered the applicant to report to the Birth Control Office immediately for
an abortion. The applicant’s home was searched and her identification was
seized. The PSB has returned to her home on several occasions to look for her.
[5]
On August 1, 2011, the applicant’s husband was
fired from his job because of the applicant’s pregnancy and her failure to
report for an abortion. One month later the PSB returned to the applicant’s
home and left a note stating that the applicant was required to have an
abortion and that either she or her husband was required to undergo
sterilization. After receiving this note, the applicant’s husband also went
into hiding.
[6]
The PSB continued to visit the applicant’s home
and the homes of her family members. Fearing forced abortion and sterilization
the applicant sought the assistance of a smuggler to assist her in fleeing China using a fake Hong Kong passport. She arrived in Canada on September 6, 2011 and made a claim
for refugee protection on the same day. Her husband remained in China as the couple could not afford to have him smuggled out of the country. The couple’s
second daughter was born four months after the applicant arrived in Canada.
[7]
On November 26, 2013, the Board dismissed the
applicant’s claim, primarily on the grounds that she was not credible and would
not face persecution if returned to Fujian province on account of her violation
of the Family Planning Policy.
III.
Decision
[8]
The Board found the determinative issue was
credibility and concluded that on a balance of probabilities, the PSB and other
officials were not seeking the arrest of the applicant and that the authorities
may not have even been aware that the applicant was pregnant prior to her
leaving China.
[9]
The Board made several plausibility findings,
including that if the applicant and her husband were truly concerned about
keeping the pregnancy a secret, the husband would not have revealed the news to
his work colleagues. Consequently, the Board found that on a balance of
probabilities, her husband did not tell any of his co-workers about the
pregnancy, and therefore none of the co-workers reported the pregnancy to the
authorities. The Board also found that the applicant made up an explanation
about her husband drinking and revealing the pregnancy as a result because this
information was not included in either her original or her amended Personal
Information Form (PIF).
[10]
The Board then went on to find that the
applicant embellished her story. The Board noted that the applicant’s story
regarding the disclosure of the pregnancy to the authorities, followed by the
PSB visiting her home the next day, did not make sense. Specifically, the
Board found it implausible that the PSB would visit and demand the applicant have
an abortion the day after being informed of the pregnancy, rather than first
trying to verify the pregnancy. The Board also found that it was implausible
that the PSB visited the applicant’s home on four separate occasions and yet
only left a pregnancy termination notice on September 12, 2011, six days after
she left in Canada. Finally, the Board noted that there were inconsistencies
in the applicant’s testimony; for example the applicant was asked how the
authorities became aware of her pregnancy, to which she replied “Because I didn’t appear for my next IUD check-up appointment.”
It was only after further probing that the applicant responded “somebody reported me.”
[11]
The Board also relied on documentary evidence to
state that if the applicant was pregnant with a second child, she would be
required to pay a fine and would not be subject to a forced abortion. The
Board noted that although the documentary evidence did suggest that forced
abortions and sterilizations still occur in China, a proper reading of the
documentary evidence suggested that abortions and sterilizations affect couples
who have inherited genetic diseases – which the applicant and her husband did
not have.
[12]
The Board also assigned little weight to
corroborating evidence provided by the applicant. The Board reasoned that due
to the previously noted credibility problems, the letters provided, including
letters from her friends, her husband, her mother-in-law and a police report,
could not be relied upon. The information contained in the documents was not
corroborated by any other credible and trustworthy evidence. Further, the
Board found that the applicant had the “capacity and
desire to utilize fraudulent documents as evidence by the way she obtained a
fake passport and visa which was improperly obtained.”
IV.
Analysis
[13]
The primary challenge to the decision is
directed to three findings by the Board with respect to what was characterized
by the Board as the plausibility of the claimant’s narrative.
[14]
Plausibility findings should only be made in the
clearest of cases, such as when the applicant’s testimony is outside of the
realm of what could reasonably be expected or when the documentary evidence
demonstrates that the events could not have taken place as alleged.
Plausibility findings are predicated on a conclusion that the description of
events is so unusual or beyond the scope of common experience and commons sense
that they are disbelieved. Plausibility findings are contrasted with findings
predicated on inconsistency within the applicant’s own testimony, between the
applicant’s testimony and other documents, material omissions, the lack of
precision in testimony or the absence of documentation where documents or
corroborative evidence might normally be anticipated.
[15]
Caution must be exercised when rejecting
evidence on the basis of plausibility; Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, para 7. There are two reasons
for this. First, it is inherently subjective. Second, as I noted in Ndjavera
v Canada (Citizenship and Immigration), 2013 FC 452 at para 11: “Refugee claimants come from diverse backgrounds and the
events described in their testimony are often far removed from the ordinary
life experience of Canadians. What appears implausible from a Canadian
perspective may be ordinary or expected in other countries.”
[16]
Although characterized as such, the first
plausibility finding made by the Board is not, in fact, a plausibility
finding. However, the characterization of the nature of the finding is of no
consequence. The Board found it implausible that the applicant’s husband would
divulge what was said to be a closely guarded secret of the pregnancy to co‑worker
while intoxicated. Rather, the applicant told two dramatically different
stories with respect to the key events leading to her decision to flee. Before
the Board, she testified that, being acutely aware of the family planning
policies, they kept the pregnancy secret. In her narrative however, she said
that, on receipt of confirmation of her pregnancy “My
husband I were very happy to hear this, especially my husband. So, he shared
this good news with some of his colleagues at his work unit, one of those was
Lian Sheng Chen.”
[17]
This is an inconsistency within the applicant’s
own evidence, on a material point. The Board did not believe the applicant.
[18]
I turn to the second finding, which is, in fact,
a plausibility finding. The Board considered it implausible that officials
from the PSB, the Birth Control Committee and the Human Resources officer of
her husband’s company attended “to arrest her for
abortion” the day immediately following her husband’s disclosure to his
co workers. The applicant managed to avoid arrest only because another
employee alerted her to the fact that the authorities were en route to arrest
her.
[19]
While the Board did not cite any evidence to
support its conclusion that a coordinated visit of three agencies would not
arrive the morning after her husband’s disclosure, the Board was not obligated
to accept the testimony, but rather was required to test it in light of common
sense and rationality, and the balance of the applicant’s evidence. In this
regard, further elements of the evidence were considered by the Board.
[20]
First, the Board noted that, based on the
documentary evidence, the Family Planning Administrative Department must give
permission for any “corrective action.” The
applicant’s evidence, however, was that she was to be arrested for a forced
abortion the very day after her husband disclosed the pregnancy. The applicant
would have the Board believe that the preliminary administrative step was being
overlooked by the authorities.
[21]
The Board also considered the evidence that the
PSB visited the applicant’s home on four separate occasions, and those of her
immediate family on a further nine occasions between June 21 and September 12,
2011. Nevertheless, it only left the pregnancy termination notice on September
12, 2011, a week after the applicant departed. The official stamp on the
notice is unclear and could not be translated and although issued September 12,
2011, demands that the applicant attend for an abortion “the next day.” Although the authorities interviewed
the applicant’s husband in late June, no notice was left with him at that time
and he was not arrested.
[22]
This case falls squarely with Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62. The Board conflated plausibility with credibility findings and
did not precisely elaborate on the reasons why it considered the visits of the
PSB to be implausible. However, having regard to the record and the reasons, it
is readily apparent to the Court why the Board made the decision that it did. The
outcome, and the reasoning by which it was reached, is both intelligible and
transparent.
[23]
It is a basic principle of the refugee law that
the risk of persecution is assessed prospectively, or put more simply, refugee
law is forward looking. Here, the applicant fled a risk of abortion. She has
had the child and the fear that precipitated flight has evaporated. Although
the applicant says that she and her husband still fear a risk of forced
sterilization, that risk, is speculative. The Board noted that there are local
significant variances with respect to degree and nature of enforcement of
Family Planning policies and the Board declined to infer, based on the
evidence, that forced sterilization remained a serious possibility.
[24]
I accept counsel for the applicant’s argument
that there is evidence in the record which describes a regulatory enforcement
regime which would allow for “corrective measures”
in the case of violation of the one child policy. The Board, however, found
that “on a whole, a fine rather than forced
sterilisation or other harm is more likely than not the kind of penalty that
the claimant would face.” The Board considered a wide variety of
current documentary evidence in assessing whether the applicant would be
subject to a social compensation fee if returned to China or whether she was at
risk of forced abortion/sterilization.
[25]
The applicant is asking the Court to reach a
different conclusion with respect to the same evidence as to prospective risk.
The disposition is analogous to that in Huang v Canada (Citizenship and
Immigration), 2011 FC 288 at para 26; where Justice Near observed:
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.
[26]
The findings of the Board with respect to this
issue were open to it on the face of the record before it. Moreover, there is
a long line of jurisprudence to the effect that the fine or “social compensation fee” charged to families that
have more than one child is not persecution within the meaning of the
Convention; Huang, paras 23-26; Wang v Canada (Citizenship and
Immigration), 2011 FC 636, para 27.
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