Date: 20061031
Docket: IMM-67-06
Citation: 2006 FC 1315
BETWEEN:
YONG
GANG LIANG
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 26th of October, 2006 of an
application for judicial review of a decision of the Refugee Protection
Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD found
the Applicant not to be a Convention refugee or a person otherwise in need of
like protection. The decision under review is dated the 23rd of
November, 2005.
BACKGROUND
[2]
The
Applicant is a thirty-five (35) year old citizen of the People’s Republic of China. His
identity and citizenship is not at issue. He bases his claim to Convention refugee
status or like protection on a fear that his and his wife’s determination to
have a second child, contrary to the one-child policy of the People’s Republic
of China will result
in persecution or like treatment there.
[3]
The
Applicant and his wife had a first child, a son, born in September, 1998. By
September of 2004, the Applicant’s wife was pregnant with a second child. She
faced a forced abortion. To avoid a forced abortion, the Applicant and his
wife went separately into hiding. The whereabouts of the Applicant’s wife
became known to family planning authorities. On the 1st of November,
2004, the Applicant’s wife was ordered to report to authorities. She failed to
comply. In the result, in mid-November, 2004, the Applicant was ordered to
attend for sterilization, particularly in light of the fact that his wife was
in ill health and, when she finally underwent a forced abortion, could not be
sterilized by reason of her health condition.
[4]
The
Applicant’s forced sterilization was scheduled for the 29th of November,
2004. To avoid this destiny, the Applicant fled the People’s Republic of China
and arrived in Canada on the 18th of January, 2005.
Six (6) days after his arrival in Canada, the Applicant filed a
claim for Convention refugee protection or like protection.
THE DECISION UNDER
REVIEW
[5]
The
RPD found the Applicant’s identity not to be an issue. He was determined to be
a citizen of the People’s Republic of China. Nonetheless, the RPD
determined the Applicant not to be credible as it found his evidence not
credible in respect to material aspects of his claim. It wrote:
...There were several
inconsistencies, omissions and implausibilities between the claimant’s oral
evidence and the documentary evidence presented in support of his claim. At
times during the hearing, the claimant’s testimony was both vague and evasive.
The panel finds that the claimant did not testify in a straight-forward manner.
[6]
In
support of its finding that the Applicant was not credible, the RPD cited one
implausibility and two omissions from the Applicant’s Personal Information Form
that it found to be significant.
[7]
With
respect to the implausibility, it wrote:
…When the claimant was
asked if he was aware as to whether or not his spouse could conceive children,
he testified that he was unclear as to whether or not this was medically
possible, having now had a forced abortion and the fact that she continued to
be in ill health. The claimant went on to testify that he failed to consider
these facts. The panel drew a negative inference from this testimony, since
the claimant’s exclusive premise for making a refugee claim in Canada is based
primarily on the future possibilities of he and his spouse bearing an
additional child. If in fact his spouse cannot bear children due to medical
reasons, her continued ill health and the possibility of the claimant being
sterilized by the Chinese authorities does not exist. The panel therefore
finds it implausible that the claimant would not be aware of whether or not his
spouse can once again become pregnant.
With great respect, the Court takes
judicial notice of the fact that whether or not a woman is capable of
conceiving a child or, put another way as acknowledged by the RPD, conception
is medically possible, is a highly technical issue. The RPD placed an
unreasonable burden on the Applicant in expecting that he would be able, from
afar, to provide a direct answer to this question.
[8]
With
respect to the Applicant’s alleged first omission from his Personal Information
Form, the RPD wrote:
…the panel notes the
claimant testified that the family-planning officials had visited his home on
numerous occasions beginning January 13, 2005, on a monthly basis, with the
last visit taking place October 15, 2005. It was noted for the claimant that
he failed to include this in his PIF and whether or not he perceived this to be
an important fact. He testified that he perceived these visits by the
family-planning officials to be significant and that he had failed to include
this information in his PIF due to the inadequacy of the interpreter and the
quality of interpretation. The panel did not accept this response as adequate,
in light of the fact that the claimant indicated this was an important fact in
his claim. Furthermore, the panel notes that the first visit by the family-planning
officials took place prior to the completion of the claimant’s PIF and the
panel notes that an amendment was made to the PIF, prior to the commencement of
the hearing. Therefore, any significant or important information could also
have been amended prior to the commencement of the hearing. The panel
therefore finds this to be a material inconsistency between the documentary
evidence and the viva voce evidence provided at the hearing.
The Applicant did, in fact, include the
following statement in his PIF:
While in hiding, I
learned that the birth control were looking for me here and there. They also
issued a notice for my sterilization on November 29, 2004.
The distinction between “here and there”
and at his home, is a fine one, particularly when one takes into account that
the Applicant speaks neither English nor French and was entirely reliant on
interpretation and an immigration consultant in completing his PIF and on an
interpreter in testifying at the hearing before the RPD.
[9]
With
respect to the second alleged omission from the Applicant’s PIF, the RPD wrote
:
Finally, the panel notes
that the claimant testified that a Mr. Liang Jun Tao had been sterilized in
2003. When it was again noted for the claimant that he failed to include this
information in his PIF and was again asked if he perceived this to be an
important and significant fact in his story, he testified that his story was
about him and not other individuals. The panel noted for the claimant the
requirements outlined in the completion of one’s PIF narrative, with respect to
similar situated individuals. The claimant went on to testified [sic], once
again citing inadequate interpretation. The panel did not accept this response
as adequate, in light of the fact that the claimant testified at the
commencement of the proceedings that his PIF had been interpreted to him.
Furthermore, the panel notes that Mr. Liang, Jun Tao is a similar situated
individual. The panel therefore finds this a material omission between the
documentary evidence and the testimony provided by the claimant at the hearing.
The Court’s comments with respect to the
first alleged omission from the Applicant’s Personal Information Form apply
equally to this alleged “material” omission.
[10]
The
RPD then went on to question the well-foundedness of the Applicant’s fear based
upon the fact that he did not apply for Convention refugee or like status in Canada until six
(6) days after his arrival. The delay in claiming was acknowledged not to be
long but the RPD found it to be significant given that the Applicant has a
sister living in Canada, a successful Convention refugee claimant and that he
did not consult with her prior to arriving in Canada and relied on advice from
the smuggler who enabled him to come to Canada to the effect that he should not
claim at the port of entry and this, notwithstanding that he had paid a very
significant sum to the smuggler. Once again with great respect, it is
consistent with paying a very significant sum for support to rely on the advice
provided as part of the consideration for that sum. Further, it is not
difficult to conceive that an individual arriving from the People’s Republic of
China, unable to
speak either English or French, would be disoriented and loathe to immediately
take any dramatic step that might affect his entry to this country. Further,
it is also not difficult to conceive that face-to-face communication by the
Applicant with his sister here in Canada would be far more
satisfactory to him, and perhaps even less risky, than attempting to contact
her by electronic means and obtain advice from her at a distance.
[11]
Finally,
the RPD noted that the Applicant provided, among other documentary evidence, a
birth certificate for his son, born in 1998, and that the cover to that
certificate, both the certificate and the cover itself purporting to have been
issued by governmental authorities in China, reflected a spelling or
typographical error in English, English being the second language appearing on
both the cover and on the certificate itself. On the basis of this spelling or
typographical error, the RPD wrote:
…In examining the cover
of this document, the panel notes that the spelling of “certificate” is
incorrect, despite having the correct spelling of the word “certificate” within
the document spelt correctly. The panel therefore finds this document to be
highly suspect and notes the documentary evidence indicates, “the use of
fraudulent hukou documents remained common in China. Fake hukou
booklets and other identity documents can be purchased on the black market and
even semi-open market.” The panel therefore finds, based on a balance of
probabilities, that this document is fraudulent. Additionally, the panel notes
that the documentary evidence indicates that Chinese officials are aware
fraudulent documents regarding fabricated marriages, child birth and
contraception are prevalent in China to the extent that measures have been
taken to administer punishment on all officials including those directly or
indirectly involved. Therefore, based on the fact that the claimant has
provided documentation that the panel finds to be fraudulent, the Panel places
no weight on the documents provided by the claimant with respect to his alleged
persecution by Chinese authorities regarding his alleged violation of the One
Child Policy.
[12]
The
foregoing represent the totality of the concerns identified by the RPD with
respect to the Applicant’s claim.
ANALYSIS
Standard of Review
[13]
Issues
of credibility, authenticity of documents and findings on subjective fear which
I take to include omissions from a claimant’s Personal Information Form are all
to be reviewed on a standard of review of patent unreasonableness. I find
nothing on the facts of this matter which would justify varying from the
standard of patent unreasonableness with respect to the findings here at issue.
The Findings
[14]
In
Attakora v. Canada (Minister of Employment
and Immigration), Justice Hugessen,
for the Court, wrote:
I have mentioned the
Board’s zeal to find instances of contradictions in the applicant’s testimony.
While the Board’s task is a difficult one, it should not be over-vigilant in
its microscopic examination of the evidence of persons who, like
the present applicant,
testified through an interpreter and tell tales of horror in whose objective
reality there is reason to believe.
I am satisfied that the foregoing quotation
is directly on point on the facts of this matter. The Applicant testified
through an interpreter. He told tales of horror: forced abortion and threats
of forced sterilization. As the Court has forecasted in its brief comments on
each of the above findings made by the RPD, I am satisfied that the RPD was
over-vigilant and engaged in a microscopic examination of the evidence of the
Applicant, both at hearing and in his Personal Information Form; of one of the
pieces of documentary evidence presented by him or on his behalf; and in the
extension of its concern based upon that particular element of documentary
evidence to all of the documentary evidence that he presented. Equally, its
concern with regard to the six (6) day delay amounted to an over-vigilant and
over-critical concern with a delay that in all of the circumstances of this
particular claim amounted to no delay at all.
CONCLUSION
[15]
In
the result, this application for judicial review will be allowed, the decision
under review will be set aside and the Applicant’s claim to Convention refugee
or like status will be referred back to the Immigration and Refugee Board for re-hearing
and re-determination by a differently constituted panel.
[16]
At
the close of the hearing of this application, counsel were advised of the
result and consulted as to whether a serious question of general importance
arises out of the Court’s decision herein. Neither counsel recommended
certification of a question. The Court itself is satisfied that no serious
question of general importance that would be determinative of an appeal from
its
decision herein arises. In the result, no
question will be certified.
“Frederick
E. Gibson”
JUDGE
Ottawa, Ontario
October
31, 2006
Email this Content