Docket: IMM-2446-16
Citation:
2017 FC 52
Ottawa, Ontario, January 16, 2017
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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MIJIAN CAO
XUYAN PENG
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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]
Mijian Cao [the Principal Applicant], and her
son Xuyan Peng [the Son], have applied for judicial review of a decision of the
Refugee Appeal Division [RAD] dated May 16, 2016 [the Decision]. The Decision
confirmed the Refugee Protection Division [RPD] decision that the applicants
are neither Convention refugees nor persons in need of protection. This
application is made pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA].
[2]
The Principal Applicant and her Son lived in
Guangdong province in China. The Principal Applicant was born in 1970 and had eleven
years of formal education. She graduated from teachers college and worked as a
sales manager and sales person for at least ten years. She also had considerable
international travel experience, having visited Japan and Australia in 2007,
and Europe in 2008.
[3]
The Principal Applicant married her husband in
2000. She gave birth to her Son on June 14, 2001. The Principal Applicant
alleges that after the Son’s birth, Family Planning Office [FPO] officials
required her to wear an intrauterine device [IUD]. It caused her a number of
health problems over the years. She made multiple unsuccessful requests for
permission to remove the IUD.
[4]
In March of 2014, the Principal Applicant was
found to be pregnant.
[5]
FPO officials took her to the hospital and required
her to undergo an abortion. The Principal Applicant was also forced to wear a
different IUD beginning in May 2014. Once again, it resulted in ongoing health
issues so, in December 2014, she had a private doctor remove her IUD.
[6]
In May 2015, the Principal Applicant became
pregnant for the second time. She and her husband went into hiding with their Son.
They found a smuggler who arranged for US visas. On July 28, 2015, an FPO official
came to their home as the Principal Applicant had missed her July 27, 2015
checkup. The official told her mother-in-law that the Principal Applicant was
required to come to the office within three days. When she failed to appear, an
FPO official returned on August 2, 2015. He left a notice indicating that the
FPO believed the Principal Applicant was pregnant and that she must submit to
an abortion and that either she or her husband would be sterilized. A second
notice from the FPO listed goods that had been confiscated from the Principal
Applicant’s home as punishment. These two notices will be referred to
collectively as the FPO Notices.
[7]
The Applicant and her husband were informed that
they were dismissed from their jobs.
[8]
On August 22, 2015, the Applicant and her Son
left China with a smuggler. They travelled to the United States [the US], and
after four days, crossed illegally into British Columbia. They then travelled
to Toronto where they made their refugee claim.
[9]
The Principal Applicant’s husband remained
hiding in China.
I.
The Negative RPD Decision
[10]
The RPD found that the Principal Applicant’s
failure to claim asylum in the US, amounted to asylum shopping, and undermined
her subjective fear. She explained that her internet research had shown that
the US deported pregnant asylum seekers, and that her smuggler had expressed
the same concern. However, she was unable to show the RPD the websites which had
provided her with that information.
[11]
The RPD concluded that Guangdong province would
impose a social compensation fee [the Fee], but would not require a forced
abortion or a sterilization. The RPD also found that the Principal Applicant’s newborn
son would be integrated into China’s educational and medical systems once the
Fee was paid. Finally, the RPD determined that the FPO Notices were fraudulent.
II.
The Negative RAD Decision
[12]
The RAD noted that the Applicant’s IUD Booklet
showed that she was not pregnant at her IUD check-up on March 11, 2014. Yet,
her evidence was that she had a forced abortion in mid-March, 2014. Further,
there were no hospital records which recorded an admission for an abortion. The
RAD therefore concluded that she had not experienced a forced abortion.
[13]
The RAD also found that the Applicant had
submitted fraudulent documents because although both FPO Notices allegedly came
from the same office, they had different letterheads and stamps.
[14]
The RAD relied on the most recent information to
conclude that in Guaundong Province, policies requiring abortion and forced sterilization
have not been enforced since 2012.
[15]
Finally, the RAD agreed with the RPD that a
negative reference could be drawn from the Principal Applicant’s failure to
claim in the US.
III.
The Issues
[16]
The Applicant raised numerous issues, but in my
view, only the following could have been dispositive:
- Was the negative
credibility finding reasonable?
- Did the RAD err
in its assessment of the likelihood that the Applicant faced a risk of
forced abortion or sterilization in Guangdong Province?
- Did the RAD
unreasonably conclude that the Applicant should have claimed Refugee
Protection in the US?
IV.
Discussion and Conclusions
[17]
In my view, the RAD’s conclusion that the
Applicant was not credible based on her IUD Booklet was reasonable. It is
obvious that she could not have had a forced abortion in mid-March 2014, as
alleged. As well, the finding that, at least in Guangdong Province, she was not
at risk was also reasonable because it was based on current information about
practices in that province.
[18]
It is also my view that because she is educated
and well-travelled, and because she was unable to show the RAD the basis for
her decision not to claim in the US, it was reasonable to draw a negative
reference about her subjective fear.
V.
Certification
[19]
No questions were posed for certification for
appeal.
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