Date: 20070928
Docket: IMM-4243-06
Citation: 2007 FC 974
Ottawa, Ontario, September 28, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JIN XIA ZHENG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Jin Xia Zheng
is a citizen of the People’s Republic of China who claimed refugee protection
on two bases: first, as a perceived Falun Gong supporter; and, second, as a
woman affected by the one-child policy of China in that she would be forced to
undergo sterilization or the insertion of an intra-uterine device (IUD). The
Refugee Protection Division of the Immigration and Refugee Board (RPD or Board)
rejected Ms. Zheng's testimony as being implausible and incredible.
[2] On
this application for judicial review of that decision, the Minister concedes
that the Board's reasons contain errors but argues that the reasons as a whole
withstand scrutiny. The application for judicial review is allowed because,
notwithstanding the able submissions of counsel for the Minister, I find that
the Board committed errors that directly affected its rejection of Ms. Zheng's
testimony as it touched upon the issue of the one-child policy.
[3] It
was Ms. Zheng's testimony that she became pregnant in 2005. She and her
boyfriend then went to the neighborhood committee to apply for a marriage
certificate. She says that while there she became ill and vomited, and the
neighborhood committee then questioned her as to whether she was pregnant. She
admitted that she was pregnant. Thereafter, she was forced to take pills that
induced an abortion. She was told she would have to return later to have an
IUD inserted.
[4] The
RPD rejected this testimony because Ms. Zheng could not produce any government
paperwork stating that she had an abortion, because she could not name the
medication that was forcibly put down her throat, and because it was
implausible that she would be ill within the first month of pregnancy while
being interrogated by the neighborhood committee. In order to conclude that it
was implausible that Ms. Zheng would be forced to undergo an abortion, the
RPD also relied upon the facts that she was only one month pregnant and that
both her parents and her boyfriend's parents supported the couple.
[5] There
are two significant difficulties with the Board’s reasoning. First, the
pregnancy was more advanced than the Board believed. Ms. Zheng testified that
she was seven or eight weeks pregnant when she attended the neighborhood
committee and was forced to undergo an abortion. She produced an ultrasound
report that reported her to be 7.2 weeks pregnant as of April 10, 2005. Human
experience would tell the RPD that this would increase the likelihood of
morning sickness and vomiting. It is not obvious that the RPD would draw the
same inference had it appreciated that Ms. Zheng's pregnancy was more
advanced. It was patently unreasonable for the Board to draw the inference
that it did based upon a misunderstanding of the evidence.
[6] Second,
the documentary evidence before the RPD established that the People’s Republic of
China prohibits pregnancies of unmarried women and documented instances of
couples who were not legally married being forced to undergo abortions. In
view of that evidence, there was no rational connection upon which the RPD could
infer that the existence of parental support rendered a forced abortion to be
implausible. The implausibility finding was, therefore, patently unreasonable.
[7] After
the Board’s two implausibility findings are removed, the remaining reasons
for rejecting Ms. Zheng's evidence about her pregnancy and abortion are the
absence of corroboration and the finding that it was incredible that Ms. Zheng
would not be able to name the medication that she was forced to take.
[8] As
to the latter finding, Ms. Zheng testified that the pills were forced down her
throat. In that circumstance, one cannot logically draw any inference that Ms.
Zheng ought to know the name of the medication. There was no evidence that she
otherwise was able to learn the name of the medication.
[9] There
remains the absence of documents corroborating the forced abortion. Leaving
aside whether there was any basis in the evidence upon which to assume that
such a document would exist, in the absence of contradictory evidence it is an
error for the RPD to require an applicant to produce corroborative evidence.
See: Ahortor v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 705 at para. 45 (T.D.). The absence of
corroborative evidence was therefore an insufficient basis upon which the RPD
could impugn Ms. Zheng's testimony.
[10] The
application for judicial review is therefore allowed.
[11] Counsel
posed no question for certification, and I am satisfied that no question arises
on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed, and the decision
of the Refugee Protection Division dated July 10, 2006 is hereby set aside.
2. The matter is remitted for redetermination before a
differently constituted panel of the Refugee Protection Division.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4243-06
STYLE
OF CAUSE: JIN
XIA ZHENG, Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION,
Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: SEPTEMBER 20, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: SEPTEMBER 28, 2007
APPEARANCES:
HART KAMINKER FOR
THE APPLICANT
LORNE MCCLENAGHAN FOR
THE RESPONDENT
SOLICITORS OF RECORD:
HART KAMINKER FOR
THE APPLICANT
BARRISTER
AND SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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