Docket: IMM-8000-13
Citation:
2015 FC 369
Toronto, Ontario, March 24,
2015
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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CUIQIONG HUANG
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Applicant
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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 dated November 19, 2013 wherein the Applicant’s
claim for refugee protection was rejected.
[2]
The Applicant is an adult female person who is a
citizen of the Peoples Republic of China. She married in China in 1997 and a year later, gave birth to a daughter. She was then required by the State to
have an intrauterine device (“IUD”) inserted. Notwithstanding the IUD, she
became pregnant in 2010; the State required her to undergo an abortion; another
IUD was inserted. This as well as the former IUD caused difficulties for her;
she requested that it be removed; the State refused.
[3]
The Applicant fled China and arrived by air in
the United States. Instead of claiming asylum there, a few days later, she was
taken to the Canadian border where she entered Canada and claimed refugee
protection.
[4]
A Member of the Refugee Protection Division held
a hearing respecting the Applicant’s claim. In the decision following the
hearing, the Member rejected the claim for refugee protection. Among the
reasons for rejecting the claim was the Applicant’s failure to seek asylum in
the United States which undermined her credibility. Further, the Member was
critical of the Applicant’s failure to seek other contraception means rather
than an IUD. Various other inconsistencies and improbabilities were cited
concerning her evidence as to her abortion and medical treatment. The fact
that the Applicant was free to leave China on her own passport undermined her
claim that she was sought by the authorities.
[5]
The Member held that, even if the Applicant
became pregnant and were to return to China, she would only be subject to a
social maintenance fee.
[6]
Taking these matters cumulatively, the Member
found that the Applicant lacks credibility and was not a person in need of
protection or at risk.
[7]
The issue before me is whether the determination
before the Member was reasonable.
[8]
The reasons of the Member are not without their
flaws as pointed out in the able argument of Counsel for the Applicant. The
evidence as to forced abortions in China particularly before 2012 clearly
points to a multitude of forced abortions, often in graphic detail. The
reference by the Member to the Golden Shield programme which guards against
leaving China is directed to those with criminal records and not those
suspected of contravening the one-child policy.
[9]
Applicant’s Counsel argues that these and other
errors constitute a fatal flaw that permeates the decision leading to the
Member rejecting the Applicant’s claim.
[10]
Respondent’s Counsel, while admitting that there
were errors, argues that the rejection can be maintained on a sound basis. The
evidence is quite clear that the Applicant came to the United States from China but failed to make a claim for asylum there, preferring Canada because “it’s easier for Canada to accept your refugee claim”.
Neither the Board nor the Court likes country shopping (see Remedios v Canada (Minister of Citizenship and Immigration), 2003 F.C.T. 437 at paragraphs 23 and
24). Further, Counsel argues that the conclusion of the Member that the
Applicant is most likely to be subject only to a family maintenance fee if she
were to return to China and became pregnant, is a reasonable finding on the
evidence. Lastly, the fact that the Applicant endured apparent difficulties
with the IUD for about twelve years without changing to some other method of
contraception undermines her claim as to difficulties in that regard.
[11]
I conclude that, notwithstanding its flaws, the
decision in the result is reasonable particularly on the principle issues of
county shopping and lack of physical harm, if returned. It will not be set
aside.
[12]
No party requested certification.
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