Docket: IMM-4111-15
Citation:
2016 FC 846
Ottawa, Ontario, July 20, 2016
PRESENT: The
Honourable Mr. Justice Southcott
|
BETWEEN:
|
|
SHU FEN LU
JIN HUI SU
ZHI YING SU
XU YANG SU
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Refugee Appeal Division of the Immigration and Refugee Board [RAD]
dated August 16, 2015, in which the RAD confirmed the decision of the Refugee
Protection Division [RPD] that the Applicants are not Convention refugees
or persons in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, this application is
dismissed.
I.
Background
[3]
Shu Fen Lu, her husband, Jin Hui Su and their
children, Zhi Ying Su and Xu Yang Su, are all citizens of China. As expressed
in the RAD’s decision, their claim is based on Mrs. and Mr. Lu’s violation of
the Family Planning Policy of China. Mrs. Lu and her husband had a daughter but
wanted also to have a son, and in August 2010, Mrs. Lu attended a private
clinic to remove her IUD. She became pregnant soon after, and their son was
born on July 19, 2011.
[4]
Mrs. Lu received a fine for missing her mandatory
IUD checkup and for the birth of her second child. Three months later, when she
attended the birth control office to have an IUD inserted, she was diagnosed
with severe pelvic inflammation. As an alternative to the IUD, she was mandated
to attend a pregnancy check up on a monthly basis and her husband was provided
with condoms.
[5]
Mrs. Lu alleges that she discovered that she was
pregnant again in December 2013 and went into hiding at an aunt’s house. In
January 2014, her husband was handed a fine notice, as she had not attended her
monthly check up. She alleges that in April 2014, four birth control officers
came to her aunt’s house and she was forced to undergo an abortion. She was
also informed that she would have to be sterilized to ensure that she would
have no more children.
[6]
In June 2014, the Applicants found a smuggler
who assisted them to come to Canada. They arrived on February 1, 2015. They allege
that Family Control officers have gone to their house since they left China and
left a fine notice, because Mrs. Lu did not attend the sterilization surgery.
[7]
The RPD refused the Applicants’ claim on June 3,
2015, following which they appealed to the RAD. There was no oral hearing
before the RAD, and the Applicants did not submit any new evidence.
II.
Impugned Decision
[8]
The RAD considered the issues raised by the
Applicants including the RPD’s credibility assessment, findings on peripheral
issues, and assessment of personal documentation submitted in support of the
claim.
[9]
Credibility was the determinative issue in the appeal.
First, the RPD found that Mrs. Lu provided inconsistent evidence as to when she
stopped working in China and that it would be reasonable to expect her to
recall this timing, because she stated that she quit her job in order to leave
China. The RAD agreed with the RPD that this inconsistency affected Mrs. Lu’s
credibility.
[10]
Second, the RPD found that if Mrs. Lu was in
hiding, it was not reasonable that she would continue to go to work even for
one or two days per week as she had testified at the hearing. The RAD found
that this evidence was central to the claim. It concluded that her testimony
that she was in hiding was at odds with her testimony that she worked one to
two days per week and, therefore, she was likely not in hiding as alleged.
[11]
Third, the RAD, on its review of the record,
found that Mrs Lu gave contradictory evidence regarding the medication she took
to control her pelvic inflammation. According to the RAD, this called into
question whether she was indeed unable to wear the IUD in the first place. It
found that this detail was also central to the claim.
[12]
In addition to the credibility findings stated
above, the RAD made adverse findings with regards to documentary evidence.
[13]
The RPD had questioned the veracity of Mrs. Lu’s
gynecological examination records, since they failed to mention that she and
her husband had to use condoms. The RAD found that this information would
reasonably be expected to be included in the examination records, as the
authorities provided the condoms and the very purpose of the visit was to
monitor contraceptive use.
[14]
The RPD had considered other documentary
evidence (certificate of diagnosis of pelvic inflammation, notice of mandatory
sterilization procedure, notice of penalties related to mandatory sterilization,
and certificate of induced abortion). However, in the absence of security
features and the negative findings regarding the testimony of Mrs. Lu, the RPD
accorded no weight to these documents and concluded that Mrs. Lu was likely not
forced to undergo an abortion in April 2014 as alleged. The RAD found that it
was open to the RPD, based on the contents or lack thereof of the specific
documents, to accord no weight to the documentary evidence submitted by the Applicants.
[15]
The RAD found that the evidence surrounding the
certificate of induced abortion was the most significant. The RAD agreed with
the RPD’s finding that the illegality of forced abortions in China called into
question the veracity of this document. Therefore, in its view, the RPD’s
finding was absent of any error.
[16]
Finally, the RPD had considered the risk of
forced sterilization if the family were to return to China, given that they
already have two children. Referencing material from the National Documentation
Package [NDP], the RPD accepted that parents of two children are often
pressured to be sterilized but considered that the Applicants were not at risk
for sterilization until the authorities discovered a third pregnancy in April
2014. The RAD found it telling that Mrs. Lu was never fearful of being
sterilized after the birth of her second child and noted the RPD’s finding that
the Principal Applicant’s fear with respect to China’s one-child policy was
speculative. The RAD again found the RPD’s findings to be absent of any error.
III.
Issue
The sole issue is whether the RAD’s decision
was unreasonable.
IV.
Standard of Review.
[17]
The Respondent refers to the Federal Court of
Appeal’s decision on standard of review in Canada (Minister of Citizenship
and Immigration) v Huruglica, 2016 FC 93 [Huruglica], particularly
Justice Gauthier’s observation at paragraph 79 that an appeal before the RAD is
not a true de novo proceeding and her conclusion at paragraph 103:
[103] I conclude from my statutory
analysis that with respect to findings of fact (and mixed fact and law) such as
the one involved here, which raised no issue of credibility of oral evidence,
the RAD is to review RPD decisions applying the correctness standard. Thus,
after carefully considering the RPD decision, the RAD carries out its own
analysis of the record to determine whether, as submitted by the appellant, the
RPD erred. Having done this, the RAD is to provide a final determination,
either by confirming the RPD decision or setting it aside and substituting its
own determination of the merits of the refugee claim. It is only when the RAD
is of the opinion that it cannot provide such a final determination without
hearing the oral evidence presented to the RPD that the matter can be referred
back to the RPD for redetermination. No other interpretation of the relevant
statutory provisions is reasonable.
[18]
The Respondent argues that the RAD in the
present case performed its own independent assessment, both taking into account
the RPD’s decision and conducting its own analysis, which met the requirement
of Huruglica to review the RPD’s decision on a standard of correctness. However,
the Applicants are not arguing that the RAD incorrectly articulated or
misapplied the standard of review. Rather, they argue that the RAD’s assessment
of the evidence was itself flawed. The Respondent submits that the Court’s
review of such assessment by the RAD is to be performed on a standard of
reasonableness, relying on paragraph 35 of Huruglica. I agree that this
is the applicable standard and note that the Applicants do not take issue with
this, as they argue that the RAD’s decision is unreasonable.
V.
Positions of the Parties
A.
Applicants’ Argument
[19]
The Applicants submit that the RAD engaged in an
overzealous assessment of Mrs. Lu’s testimony and focused on collateral points
immaterial to the claim. They argue that the determinative issue in this claim
is not whether Mrs. Lu was in hiding, but whether she is at risk of forced
sterilization given that she and her husband already have two children and
tried for a third child in violation of China’s family planning policy. They
rely on a number of official documents to support their claim and argue that
the RAD only considered two of these documents, the certificate of family
planning services and the certificate of induced abortion.
[20]
The Applicants’ position is that the RAD
committed a reviewable error in rejecting the certificate of family planning
services on the basis that this document did not mention that the adult
Applicants were provided with condoms. The Applicants argue that there was no
evidence before the RAD to indicate that this information is ordinarily contained
in such a certificate. They also submit that it was unreasonable for the RAD to
draw an adverse inference from Mrs. Lu’s failure to provide an explanation as
to why that information was missing from the document, as she was not its author.
[21]
The RAD’s finding with respect to the
certificate of induced abortion is similarly impugned on the basis that this is
an unreasonable plausibility finding and that it was unreasonable to expect
Mrs. Lu to be able to explain why the authorities would have issued a
certificate related to an illegal procedure.
[22]
The Applicants also argue that the RAD failed to
consider the notice of mandatory sterilization procedure, which was relevant
and probative to the central issue in the case. They rely on Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), 1998 FCJ No 1425 which
states that the more important the evidence that is not mentioned and
specifically analyzed in an agency’s reasons, the more willing a court may be
to infer that the agency made an erroneous finding of fact without regard to
that evidence.
[23]
Lastly, the Applicants submit that the RAD erred
in dismissing the treatment of the risk of forced sterilization for parents of
two or more children. The NDP indicates that there is an incentive on the part
of family planning officers to impose forced abortions and forced
sterilizations in order to uphold the one child policy. The Applicants refer to
a considerable volume of evidence in the NDP to the effect that these practices
persist. Their position is that the RAD erred in rejecting Mrs. Lu’s present
fear of forced sterilization on the basis that she did not flee China after the
birth of her second child four years ago. The Applicants argue that characterizing
their fear as speculative discounts the fact that the fear only became real
after the forced abortion and is a finding inconsistent with the country condition
evidence.
B.
Respondent’s Argument
[24]
The Respondent notes that the Applicants did not
take issue with certain determinative RAD findings. The RAD concluded that Mrs.
Lu was not in fact hiding and continued to work until July 2014 and also that
she was not forced to undergo an abortion and forced sterilization.
[25]
With respect to the documentary evidence, the
Respondent submits that Mrs. Lu’s alleged encounters with officials are within
her direct personal knowledge and it was open to the RAD to ask her why one
type of contraception was mentioned in her records and not the other. Similarly,
the RAD’s finding that the certificate of induced abortion was fraudulent was
reasonable and rooted in an assessment of the evidence before it on the
illegality of forced abortion. The Respondent also argues that the Applicants
have not explained how the notice of mandatory sterilization procedure, which
is one of several document submitted by the Applicants that had no security
features, lends credence to their account.
[26]
Finally, the Respondent submits that the RAD’s
assessment of forward-looking risk as speculative was reasonable, taking into account
both the country condition documents and the evidence of the Applicants’ own
experiences to the extent they were accepted by the RPD and the RAD.
VI.
Analysis
[27]
The Respondent argues that, on this judicial
review application, the Applicants did not take issue with the RAD’s adverse
credibility findings. While these findings were not the focus of the
Applicants’ arguments, I do not consider the Applicants to have left these findings
entirely unchallenged, as their written argument does take the position that
the RAD conducted an overzealous assessment of Mrs. Lu’s testimony and focused
on collateral points immaterial to the claim. However, I am not convinced that
there is any error in these findings. I do not find it unreasonable for the RAD
to have concluded that Mrs. Lu’s inability to recall when she quit her job
because she wanted to leave China, and the fact that she testified to
continuing to work at the time she was in hiding, impugned her credibility on
issues central to her claim.
[28]
The Applicants’ arguments focused principally
upon the RAD’s treatment of the documentary evidence submitted by the
Applicants and its findings on risk of forced sterilization, given the volume
of country condition documentation identifying this risk.
[29]
I do not find the RAD’s treatment of the
gynecological examination records or certificate of inducted abortion to be
unreasonable. The Applicants rely on Lin v Canada (Minister of Citizenship
and Immigration), 2014 FC 683 as authority that a negative inference should
not be drawn because a claimant cannot explain a third party’s decision. While
I agree with that principle, I do not read the RAD’s reasons as turning on the Mrs.
Lu’s inability to explain why the gynecological examination records do not
refer to the method of contraception or why the authorities would issue the
certificate of induced abortion and thereby document the illegal practice of
forced abortion. The RAD gave Mrs. Lu an opportunity to speak to its concerns
about these documents and cannot be faulted for doing so. However, its finding
on these issues turns on its own analysis, not on the lack of an explanation
from the Mrs. Lu.
[30]
With respect to the gynecological examination
records, the RPD relied on documentary evidence that mandatory gynecological
checks are performed for the purpose of monitoring contraceptive use, from
which it concluded that it was reasonable to expect that the Applicants’ use of
condoms as a means of birth control would be noted. Based on the absence of
that information in those records, the RPD drew a negative inference as to the Applicants’
credibility and found it more likely than not that the gynecological
examination record was fraudulent.
[31]
The RAD found no error in the RPD’s negative
inference, also reaching the conclusion that these records are used to monitor
an individual’s contraceptive and pregnancy records. While the Applicants argue
that the RAD’s finding was not supported by any evidence as to what such
records should contain, I find that that evidence as to their purpose supports
the reasonableness of the RAD’s conclusion.
[32]
Turning to the certificate of induced abortion, I
do not understand the Applicants to be challenging the RAD’s observation that forced
abortion is illegal (although they argue based on the country condition documents
that it nevertheless takes place). Rather, their position is that the the RAD
engaged in an impermissible implausibility analysis in questioning the veracity
of the certificate based on the illegality of such practice. I interpret the
RAD’s reasoning to be that, while this practice may take place, it is not
logical that Chinese authorities would document the illegal practice in a
formal certificate. I cannot conclude this reasoning to be unreasonable.
[33]
The Applicants also argue that the RAD erred in
failing to individually assess the notice of mandatory sterilization. They rely
on Justice Russell’s decision in Liu v Canada (Minister of Citizenship and
Immigration), 2013 FC 896 [Liu] at paragraph 43, which states that
it is an error to reject one supporting document outright because another
document is found not to be genuine, and my decision in Yu v Canada
(Minister of Citizenship and Immigration), 2015 FC 1138 [Yu] at paragraphs
31 to 35, finding it to be an error to reject the authenticity of a supporting
document based on a finding that the applicant was not credible.
[34]
I consider the import of both these decision to
be that a supporting document must be subjected to some independent assessment
and that, credibility concerns, on their own, are not sufficient to impugn the
documentary evidence. In my view, the RAD did not rely exclusively on
credibility concerns but engaged in an independent assessment of the
documentary evidence. Both the RPD and the RAD refer to the notice of mandatory
sterilization procedure, but the RPD gives no weight to the document, and the
RAD finds no error in that conclusion. Based on a review of both decisions,
this conclusion is based not only upon the concerns with the credibility of Mrs
Lu, but also upon the adverse finding on the veracity of the certificate of induced
abortion.
[35]
I do not consider it unreasonable for the RAD to
have relied on its adverse finding on the veracity of the certificate of
induced abortion as contributing to its rejection of the notice of mandatory
sterilization procedure. As the Respondent points out, these two documents are
not independent. The certificate of induced abortion itself refers to a
requirement to appear for a mandatory sterilization procedure, and the notice
of that procedure was issued three days later. In my view, the relationship
between these documents distinguishes their treatment by the RAD from the
approach which was impugned in Liu. In Liu, the RPD found a
summons issued to the applicant to be fraudulent and on that basis rejected
what appears to have been unrelated documentation of the detention of the
applicant’s mother and the dismissal of his father from his employment. My
conclusion is that, where there is a relationship between documents supporting
an applicant’s claims, it is not unreasonable for the RAD to take one document
into account in its assessment of the other. In this case, the probative value
of the mandatory sterilization procedure was diminished once the RAD found that
the certificate of induced abortion that preceded it was likely a fake
document.
[36]
Finally, I have considered the Applicants’
arguments related to the RAD’s findings on risk of return to China. The
Applicants refer to a significant volume of country condition evidence before
the RAD which supports their position that parents of two or more children face
risk of forced sterilization in China. However, I do not read the RAD’s
decision, or that of the RPD, as taking issue with that position. Referencing
one of the documents in the NDP, the RAD expressly notes that the RPD accepted
that the Applicants’ family has two children and that parents of two children
are often pressured to be sterilized. Rather, the decision turns on an
analysis, based on the evidence specific to the Applicants’ claim, of whether
they themselves face that risk.
[37]
The Applicants argue that they face the risk of
forced sterilization, because they are a family that already has two children,
and that no further analysis is required. My conclusion is that the RAD cannot
be faulted for reviewing this question in the context of the evidence
surrounding the Applicants’ claim. The RAD’s finding that the Applicants have
not satisfied their burden on this issue is derived from consideration of the
Applicants’ alleged interactions with Chinese family planning authorities; to
the extent those allegations were accepted by the RAD. The RAD rejected the
allegation that Mrs. Lu was forced to undergo an abortion of a third pregnancy,
and the evidence is that the birth of their second child prompted Chinese
authorities to impose contraceptive measures but did not prompt them to pursue
forced sterilization. I cannot conclude the RAD’s decision based on this
evidence to be outside the range of reasonable outcomes. Being conscious of the
deference required in applying the applicable standard of review, I find no
basis to interfere with the decision.
[38]
Neither party proposed a question of general
importance for certification for appeal.
Email this Content