Docket: IMM-5118-15
Citation:
2016 FC 669
Ottawa, Ontario, June 15, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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HUIMING CAO and ZHUOQI YANG
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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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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Refugee Protection Division [RPD] of the Immigration and Refugee Board of
Canada, determining that the Applicants are not Convention refugees pursuant to
section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA] nor persons in need of protection pursuant to section 97 of IRPA. The
RPD also found that the Applicants’ claims do not have a credible basis.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicants are Ms. Huiming Cao [the
Principal Applicant] and her five-year-old daughter Zhuoqi Yang, who are
citizens of the People’s Republic of China [China or the PRC] and came to
Canada on July 26, 2015. Their claim was submitted to the RPD on August 4th,
2015. The Principal Applicant claims that she is at risk of persecution in PRC by
being subjected to forced sterilization as a result of becoming pregnant a
second time.
[4]
Six months after her daughter’s birth in 2011, the
Principal Applicant had an intrauterine device [IUD] inserted by the PRC Family
Planning Office [FPO] to prevent future pregnancies. Following the insertion, she
experienced painful and irregular menstrual periods and was diagnosed with and
medicated for a hormonal imbalance. She attended three checkups per year from
the time her daughter was born, the records from which show that from August 1,
2012 to September 5, 2014 her IUD was in place and she was not pregnant.
[5]
The Principal Applicant alleges that when she attended
the FPO for her January 7, 2015 checkup, she was told that her IUD was not in
place and that she was pregnant. She was also informed she would be required to
have an abortion and was forcibly taken to hospital and put under general
anesthesia while this procedure was performed. When she awoke, she found medication,
her medical record relating to the abortion procedure, and a notice requiring
her to report back to the hospital on February 2, 2015 to be sterilized. She
took the items and called her husband to escort her home.
[6]
The Principal Applicant states that she did not
return to the hospital, instead attending another medical facility for
follow-up care on the advice of a friend. Not wanting to comply with the notice
of sterilization, the family went into hiding, staying with a cousin in another
city. The Principal Applicant alleges that, around the time of her sterilization
appointment, she received several calls from the FPO, but screened them and did
not answer. She was also informed by her neighbours that representatives from
the FPO had come to her house looking for her.
[7]
The family remained in hiding until the
Applicants left China on July 22nd. She states that she fears the FPO will
continue to look for her and sterilize her if she is returned to China. Her
husband remained at home, but she has the support of her parents and other
family here in Canada.
II.
The Impugned Decision
[8]
The RPD found the Principal Applicant lacking in
credibility and that the evidence she produced was not trustworthy. Consequently,
it concluded she had not established that the FPO was looking for her and thus
she was not at risk. As a result, the dependent claim of the minor Applicant
also failed. The RPD further found that, having considered the totality of the
evidence, there was no credible basis for her claim.
[9]
The RPD referred to a number of areas of the
evidence that it considered to be of particular concern. First, it found it
suspect that the abortion was the only entry in the outpatient medical record booklet
presented by the Principal Applicants as documentary evidence of that procedure.
It questioned her on this, especially given that she had previously testified
she went for follow-up treatment, and she responded that she went to another hospital
and did not take the booklet. She testified that she was given medicine at this
hospital. The RPD that noted the Principal Applicant did not provide any medical
evidence in this regard, concluded that she was making up answers to explain
inconsistencies, and drew a negative inference as to her credibility.
[10]
Secondly, the RPD referred to the passage from the
outpatient medical record booklet which states that the patient consented to
general anaesthesia and that the whole procedure went smoothly, which the RPD
considered to be inconsistent with the Principal Applicant’s testimony that she
resisted the abortion.
[11]
The third inconsistency identified by the RPD in
the medical documentation was the fact that the booklet recording the Principal
Applicant’s family planning checkups lacked an entry for the checkup on January
7, 2015, when she alleges the pregnancy was identified. When questioned on
this, the Principal Applicant said that she does not know why there was no
entry recorded on that day, but she offered the possible explanation that, as
she physically resisted being taken from the FPO to the hospital, it may have
been forgotten in the commotion. The RPD rejected this explanation. The
Principal Applicant had testified she found the booklet beside her bed when she
awoke after the abortion. The RPD concluded that, if the FPO officers had kept
the booklet while she was undergoing the abortion, they would have had time to update
it to reflect her last checkup.
[12]
The RPD also drew a negative inference from her
testimony surrounding the history of trouble with her IUD and the lack of
documentation supporting that history. When asked if she felt anything was
wrong with her IUD, she testified she as always in pain, so it did not make a
difference. When prompted, she did refer to several issues with the IUD and
testified to receiving medicine when she had pain. She then testified that she
was diagnosed with a hormone imbalance. The RPD found that, when asked about
this diagnosis, investigations and treatment, her testimony was evolving and did
not have the ring of truth. She also did not provide any medical documents
regarding these medical conditions. When questioned on this, the Principal
Applicant said these documents were in China and she did not know that she
needed to bring them. The RPD was not satisfied with this
explanation, as corroborative documents with respect to her gynecological
problems were central to explaining why she allegedly lost her IUD and became
pregnant.
[13]
The RPD also pointed to two inconsistencies in the
Principal Applicant’s testimony and Point of Entry (POE) documentation. First,
it questioned her as to whether the FPO called her around the time of her
sterilization appointment. When she answered that they had called multiple
times, the RPD asked why this was not in her POE documents, where her narrative
states that they came to her house. She replied that she didn’t think it was
necessary to refer to both as, if they had come to her house, they would
certainly have called as well. The RPD was not satisfied with this explanation.
It concluded that the Principal Applicant was making up answers to be
consistent with her earlier testimony that the FPO used to call her to remind
her of her IUD check-ups. The RPD again found that she was not forthcoming and
drew a negative inference as to her credibility.
[14]
The second inconsistency was in the Principal
Applicant’s description of how she came to be in possession of her medical
documentation. She testified that the notice of sterilization was given to her
by the FPO but later said that, when she awoke from the abortion, her medical
documentation was sitting on her bedside table, that she did not see a nurse or
a doctor, and that she called her husband and went home. When asked about this
inconsistency, she explained that she meant the same thing by both statements
because the notice was left for her by the FPO officials. The RPD was also not
satisfied with the lack of explanation for why the sterilization was not
performed at the time of the abortion. When asked, the Principal Applicant said
that she did not know why the sterilization was not performed at the time, but
thought it may have been due to heavy bleeding, as there was a good deal of
blood on her pants. The RPD found it made little sense that, after she was
dragged to the hospital, tied to her bed, and forcibly subjected to an abortion
as she had testified, there was no one there when she woke up and the relevant
documents were just left by her bed.
[15]
Based on this analysis, the RPD did not believe,
on a balance of probabilities, that the Principal Applicant was pregnant on
January 7, 2015, that she was forced to have an abortion, that she is sought
for sterilization, or that the FPO is after her. Although she had documents to
support the allegations regarding the abortion and the sterilization, the RPD found
that it could put little weight on these documents in its assessment of the
claim, noting that these documents have no security features and could have
been produced by anyone. It referred to an ultrasound report, noting that it
was a printout and that the markings on the image are not decipherable. The
RPD also noted the documentary evidence indicating the availability of fraudulent
documents in China. Considering this, along with its credibility concerns regarding
the testimony of the Principal Applicant, the RPD found that the documents
could not be relied on.
[16]
The RPD concluded by rejecting the Applicants’
claim and finding it had no credible basis.
III.
Issues and Standard of Review
[17]
The issues raised by the Applicants are whether
the RPD erred by:
A.
Making credibility findings that are
unreasonable, cannot be supported by the evidence, or are without proper
reasons or explanation;
B.
Not giving any weight to the Applicants’
supporting documents because they lacked security features and due to the fact
that fraudulent documents are easily obtained in China; and
C.
Finding there to be no credible or trustworthy
evidence on which it could have made a favourable decision and therefore that
there is no credible basis for the claim.
[18]
The parties agree, and I concur, that the issues
raised in this application, as they relate to matters of credibility, are to be
reviewed on a standard of reasonableness (see Dunsmuir v. New Brunswick
(Board of Management), 2008 SCC 9; Moshood v. Canada (Minister of
Citizenship and Immigration), 2016 FC 504 [Moshood], at para 9; Zhou
v. Canada (Minister of Citizenship and Immigration), 2013 FC 619 at para
26). This standard also applies to review of findings of no credible basis (see
Moshood, at para. 9; Hernandez v Canada (Minister of Citizenship and
Immigration), 2016 FC 114, at para. 3; Mahdi v. Canada (Minister of
Citizenship and Immigration), 2016 FC 281, at para 9).
IV.
Positions of the Parties
A.
The Applicants’ Submissions
[19]
The Applicants have provided detailed arguments
in support of their position that the RPD erred in the manner identified in the
issues the Applicants have raised.
[20]
They submit that no negative inference was
warranted regarding the abortion being the only entry in the Principal
Applicant’s medical booklet, as the booklet is specific to the region the
hospital is in and does not constitute a complete medical record. They argue
that it made sense for the Principal Applicant to seek follow-up care at a
different institution, as it is reasonable not to wish to return to a place
where one has had an abortion forced upon her. They also argue that drawing a
negative inference from the record stating that the Principal Applicant consented
to anesthetic is unfair, as it is unlikely the doctor would have noted the
anesthetic and the abortion were forced on her, as this would constitute proof
of a human rights violation.
[21]
The Applicants submit the RPD was also
unreasonable in rejecting the record of family planning checkups, as it is plausible
the January 7, 2015 appointment would not have been recorded in the booklet. As
the visit was not routine, there was a struggle, and she was taken from the
place where she received the checkup to the hospital and did not return, there
are many plausible explanations for why no entry was made that day.
[22]
The Applicants also challenge the finding that
the Principal Applicant contradicted herself when she stated the FPO gave her
the notice of sterilization. As the FPO left it for her beside her hospital
bed, it is not inconsistent for her say the FPO gave her the document. The
Applicants argue that, particularly when it is considered that her testimony
was given through an interpreter, such a finding constitutes an improperly
microscopic analysis.
[23]
The Applicants submit it was unreasonable for
the RPD to reject the ultrasound report because the image of the baby was not
clear. As the RPD is not an ultrasound technician or medical professional, what
is important is the accompanying report which supports the allegation of the
pregnancy. Furthermore, the Applicants cannot have been expected to produce the
original, as it is with the hospital.
[24]
It is the Applicants’ position that the RPD also
erred in drawing a negative inference from the lack of medical documentation of
the history of issues with the IUD, as this matter was not central to the
claim. Any documentation which could have been provided could only have gone to
the pain the IUD had been causing Ms. Cao, not to why she lost it as the RPD
seemed to expect.
[25]
With respect to the alleged inconsistency
between the testimony and the POE documentation as to phone calls from the FPO,
the Applicants submit it is unclear why the RPD rejected the Principal
Applicant’s explanation. The RPD merely recited what was said and then stated a
lack of satisfaction. No reasons were given for the negative inference.
[26]
The Applicants also argue the RPD erred by not
giving weight to the supporting documentation. No analysis was performed as to
the authenticity of the notice of sterilization, the IUD proof of placement,
the outpatient medical record, or the family planning certificate. The Applicants
submit the RPD is obligated to consider this documentation, and not merely
reject it on the basis of the availability of fraudulent documentation in the
PRC and a lack of security features. They argue it was an error to fail to
assess the individual documents and note that some of the documents do bear
stamps from the purported issuer.
[27]
Finally, the Applicants submit the finding of no
credible basis was unwarranted as the Board conflated the analysis with that of
the Principal Applicant’s credibility. They argue that the RPD failed to
consider whether the documentary evidence, including country condition
documentation, could support a finding in the Applicants’ favour regardless of
the credibility of the testimony.
B.
The Respondent’s Submissions
[28]
The Respondent submits that both the credibility
findings and the finding of no credible basis are reasonable and supported by
detailed reasons. The Respondent refers to the RPD’s concerns with respect to
the medical documents, arising from the inconsistencies between the documents
and the Principal Applicant’s testimony, noting in particular the consent to
general anaesthetic, the lack of evidence of follow-up care, and the absence of
a record of the January 7, 2015 family planning checkup or notation of the
pregnancy in the booklet recording those checkups. As a result, little weight
was placed on these documents.
[29]
In relation to the no credible basis finding, the
Respondent relies on Espinoza v Canada (Minister of Citizenship and
Immigration), 2012 FC 502, in which the Court found that where the RPD
gives adequate reasons for a negative credibility finding, further reasons are
not required for a finding of no credible basis. The Respondent also argues
that, even if the RPD has failed to consider documentary evidence, a finding of
no credible basis may be reasonable if it is found the documents cannot
themselves sustain a positive determination. Therefore, it was reasonable for the
RPD to make a finding of no credible basis following its rejection of the
Principal Applicant’s credibility and discounting of all the evidence.
V.
Analysis
[30]
The task assigned to the RPD to make credibility
determinations in refugee claims is a difficult one and, in keeping with the
applicable standard of review, such determinations should be disturbed by the
Court only if outside the range of acceptable outcomes, even if the Court might
have reached a different conclusion on the same evidence (see New Brunswick
(Board of Management) v. Dunsmuir, 2008 SCC 9 [Dunsmuir], at para
47). This is particularly so in circumstances where credibility determination are
based in part on a claimant’s testimony, which only the RPD has had the benefit
of witnessing first-hand (see Dunsmuir at para 49; Alyafi v Canada
(Minister of Citizenship and Immigration), 2014 FC 952 at para 4).
Nevertheless, while conscious of the required deference, having reviewed the
RPD’s decision and considering the Applicants’ arguments challenging the
decision, I am unable to conclude that it falls within the acceptable range.
[31]
The RPD made a number of findings from which it
draws adverse inferences as to the Principal Applicant’s credibility. However,
the most significant component of her testimony relates to the alleged forced
abortion, which is the foundation of her alleged fear and which the RPD found
on a balance of probabilities did not occur. It found that her testimony
surrounding the event made little sense, as it was not reasonable to expect
that, after having been dragged to the hospital and forcibly restrained and
subjected to an abortion, she would then be left alone to wake up, retrieve
documents and medicine left for her, and leave the hospital.
[32]
This amounts to a finding that the Principal
Applicant’s evidence is implausible. This Court has held that implausibility
findings should only be made in the clearest of cases (see Valtchev v Canada
(Minister of Citizenship and Immigration), 2001 FCT 776; Yang v Canada
(Minister of Citizenship and Immigration), 2016 FC 543 at para 10; Chen
v Canada (Citizenship and Immigration), 2014 FC 749, at para 54; Vodics
v. Canada (Minister of Citizenship and Immigration), 2005 FC 783). In K.K.
v Canada (Minister of Citizenship and Immigration), 2014 FC 78, Justice
Annis considered the principles underlying plausibility findings, particularly
in the context of credibility determinations, and their consideration by a
reviewing court. In keeping with the deferential standard of review required by
Dunsmuir v New Brunswick, 2008 SCC 9, Justice Annis’ conclusion at
paragraph 84 was that the applicable test can be expressed as follows:
[84] The question the reviewing court
must ask is whether there exists a range of reasonable inferences that may be
drawn which would include that drawn by the Board. Is the underlying evidence capable
of supporting alternative inference and, if so, does the Board’s decision
lie with that range? If the gap between underlying facts and the proposed
inference based on them is too wide, the outcome may be considered reasonably
speculative.
[33]
Regardless of which articulation of the approach
to reviewing plausibility findings is preferred, I conclude this finding to be
unsupported by any evidence as to practices either as to methods of enforcement
of China’s family planning policies or as to treatment in Chinese hospitals
generally. The Applicant has argued that this finding appears to be based on
assumptions regarding standards of care applicable in Canadian hospitals. I
agree with this submission and conclude this finding to be outside the
reasonable range.
[34]
I also agree with the Applicants that the RPD’s
decision was unreasonable in finding that the Principal Applicant contradicted
herself in testifying first that documents were given to her following the
abortion and later that they were left by her bedside table. From reviewing the
transcript of her testimony, I read her evidence as identifying the source of
the documentation and do not read any of her testimony or its context as
suggesting she was physically handed documentation by medical staff or the FPO
following the abortion.
[35]
This portion of the RPD’s decision also refers
to the RPD asking the Principal Applicant why she was not sterilized at the
time of the abortion, to which she responded she wasn’t sure, but it was
perhaps because she had bled a lot. The RPD stated it was not satisfied with
her explanation but gave no reason for this conclusion in relation to the
possibility of performing the abortion and sterilization at the same time.
Moreover, the Principal Applicant cannot be expected to be able to speak either
to the practices of the FPO or the medical implications of combining these
procedures, and I again find this portion of the decision to be unreasonable.
[36]
The RPD’s adverse credibility determination was
also influenced by what it interpreted to be gaps in the medical documentation.
Specifically, the RPD mentions the booklet documenting the abortion contained
no other entries, the lack of record in her family planning booklet of the
pregnancy and abortion, and the lack of documentation of either her follow-up
visit related to her abortion or the earlier history of problems with her IUD.
The RPD also relied on the absence in the Principal Applicant’s BOC narrative
of references to calls from FPO officers at the time of her sterilization
appointment.
[37]
I do not find these latter conclusions, which
turn on lack of support for her testimony and inconsistencies in her evidence,
to be themselves outside the range of acceptable outcomes. However, it is not
possible for the Court to assess whether the RPD would have reached the overall
conclusion that the Principal Applicant was not credible and rejected her
claim, if it had not made the unreasonable findings described above in relation
to her testimony surrounding the abortion. The RPD’s rejection of the main
supporting documents, being the record of the abortion and the notice of
sterilization, was based in significant measure upon its concerns as to her credibility.
As such, the Court also cannot know if the RPD would have afforded any greater
weight to the corroborating documents had it not made the errors identified
above. It is therefore my conclusion that the decision must be set aside and
returned for redetermination by another RPD member.
[38]
Having concluded that this application for
judicial review must be allowed based on errors in the credibility determination,
and as the no credible basis finding followed from the adverse credibility
determination, that finding must also be revisited.
[39]
The parties did not propose any question of
general importance for certification for appeal, and none is stated.
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