Docket: IMM-5273-15
Citation:
2016 FC 753
Ottawa, Ontario, July 5, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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JINDONG 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
I.
Introduction
[1]
This is an application for judicial review of a
decision of the Refugee Appeal Division of the Immigration and Refugee Board of
Canada [RAD], dated October 21, 2015, that confirmed the Refugee Protection
Division’s [RPD] determination that the Applicant was neither a Convention
Refugee or person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act].
II.
Background
[2]
The Applicant, Jindong Huang, is a citizen of
China who fears persecution at the hands of the Chinese government for failing
to report for sterilization, in violation of China’s one child policy. She
fears if she returns to China she will be forcibly sterilized.
[3]
The Applicant currently has two children. Her
son was diagnosed with Tourette’s syndrome in 2006, and she and her husband had
a daughter in 2010, after having been approved for a second birth permit in
2008.
[4]
On December 2, 2014, the Applicant found out at
a quarterly pregnancy check-up that she had become pregnant and was subjected
to an abortion against her will. The Applicant was issued a notice to report
for sterilization and was fined for her unplanned pregnancy.
[5]
The Applicant and her husband went into hiding
on December 10, 2014, and were informed by relatives that family planning officials
had left a notice for both of them to report for sterilization.
[6]
The Applicant used a smuggler to come to Canada
and her husband remained in hiding, as he did not have a passport.
[7]
The Applicant’s refugee protection hearing took
place over two sittings on May 20 and July 29, 2015. In the decision dated July
31, 2015, the RPD rejected her claim, concluding that the Applicant was not a
credible witness [the RPD Decision].
[8]
The RAD confirmed the determination of the RPD
pursuant to subsection 111(1)(a) of the Act and dismissed the Applicant’s
appeal [the Decision]. It found that the Applicant would not face a serious
possibility of persecution or a risk to life, or cruel and unusual treatment or
punishment, or a danger of torture, if she were to return to China.
[9]
Citing the Federal Court decision in Huruglica
v Canada (Minister of Citizenship and Immigration), 2014 FC 799 at paragraphs
54, 55 [Huruglica (FC)], the RAD outlined it would conduct its own
assessment of the RPD Decision and come to an independent assessment of whether
the Applicant is a Convention refugee or a person in need of protection, while
providing deference to the RPD’s findings of credibility.
[10]
The RAD denied the Applicant’s request for an
oral hearing pursuant to subsections 110(3), (4), and (6) of the Act since no
new evidence was submitted in the appeal.
[11]
The RAD then addressed the Applicant’s
allegation that the RPD had erred in its analysis of her use of a smuggler. The
Applicant testified before the RPD that she used a smuggler to get to Canada
because she had never travelled before. The RPD noted that the Applicant had
provided her current and expired (2006) passports when applying for a visa to
Canada, and that the expired passport indicated the Applicant had extensively
travelled. The RPD made a negative credibility finding on the basis that:
a.
the Applicant testified she had no knowledge of
the expired passport, yet it contains three different photographs of her; and
b.
the Applicant testified she had only provided
the smuggler a single current photo of herself, which does not explain the
three different photos in the passport, and later adjusted her testimony,
stating that the smuggler actually took a photo of her.
[12]
The RAD, “[a]fter its
own review and assessment of the evidence”, agreed with the RPD’s
finding that the Applicant could not adequately explain the existence of the
expired passport and the fact it contained three different photos.
[13]
It also gave little weight to the Applicant’s
explanation the expired passport was not genuine because she was unable to
travel in 2009 due to complications with her pregnancy. The Applicant had
provided medical records for herself and her son at the RPD hearing, and the
RAD concluded it would be reasonable to expect she should have been able to
tender corroborative documentation of such complications, had they indeed
occurred.
[14]
The RAD agreed with the RPD, concluding that the
Applicant was not credible regarding the existence of the expired passport. The
RAD determined the passport was genuine, as accepted by Canadian authorities in
the visa office in China, and as further supported by the six visas for
different countries and accompanying stamps, which show the visas were used.
[15]
The RAD further disagreed with the Applicant
that the RPD’s analysis and rejection of her evidence surrounding her
pregnancy, abortion and sterilization was unreasonable.
[16]
The Applicant’s Birth Control Service Card did
not include any information on the December 2, 2014 check-up, at which the
Applicant alleges to have been found pregnant and subjected to a forcible
abortion. The RPD had rejected the Applicant’s explanation that the entry was
not made because she was immediately taken for an abortion. Further, the RAD
noted that the card itemizes every other check-up the Applicant attended, and
cited documentary evidence supporting that the card is a document designed to
capture and record whether a person is pregnant.
[17]
After its own review and assessment of the
evidence, the RAD concluded it is reasonable to expect that the December 2014
check-up would have been included on the Birth Control Service Card. Moreover,
the lack of any check-up information undermines the Applicant’s allegations
that she reported for a check-up on December 2, 2014, was found to be pregnant,
and thus that the pregnancy was forcibly aborted.
[18]
The RAD was also not persuaded by the
Applicant’s argument that the RPD’s treatment of other documents was
unreasonable.
[19]
In light of the above adverse credibility
findings, the RAD noted that the credibility of the abortion certificate was
also called into question, and afforded it little weight, given that:
a.
documentary evidence indicates forgery of
documents is commonplace in China;
b.
the abortion certificate is a simple document
that lacks features that would assist in establishing its genuineness: namely,
it was generated utilizing a word processor, and does not bear the signature or
name of the issuing individual or a logo or pre-printed letterhead;
c.
though the Applicant provided other medical
documentation, she did not tender any medical confirmation that she underwent
an abortion that resulted in extensive bleeding, as alleged; and
d.
the RAD was not persuaded by the Applicant’s
argument that the abortion certificate did not include the reason the abortion
was performed because it is obvious, as there are other reasons why a pregnancy
would be terminated outside of violations of the one-child policy.
[20]
On the totality of the evidence, and on a
balance of probabilities, the RAD concluded that the Applicant’s allegation she
became pregnant and was forced to have an abortion in December 2014 was not
credible.
[21]
For the same reasons it rejected the
authenticity of the abortion certificate, the RAD also concluded that the
sterilization notices lack features establishing they are genuine, and afforded
the documents little weight. Having found that the pregnancy and abortion were
not credible, the Applicant’s allegation she was given sterilization notices
following the abortion was also not credible; nor is her allegation she was
pursued by family planning officials. Thus, the Applicant is not at risk of
sterilization for having violated the one-child policy.
[22]
Finally, the RAD found that the Applicant’s
allegation the RPD breached procedural fairness by failing to notify her of the
deficiencies in her claim – in particular her failure to include an affidavit
from her family concerning the abortion – lacks substance and specificity.
Though it would have been preferable for the RPD to have put the issue to the
Applicant in the hearing, the RAD noted the Applicant has demonstrated she is
in contact with her family and has the ability to acquire documents from China.
Rule 11 of the Refugee Protection Division Rules, SOR/2012-256, clearly
states that the Applicant must provide documents, or indicate efforts made in
attempting to acquire evidence to corroborate central elements of her claim. The
RAD notes that the abortion is central to the Applicant’s claim and the
evidence the Applicant did tender in this regard was addressed by the RPD at
the hearing.
[23]
On the basis of its independent assessment of
the evidence, the RAD concluded that there was no breach of procedural fairness
that would impact the ultimate determination, as affidavits attesting to the
abortion would have had little impact on the outcome of the determination.
III.
Issue
- Was the RAD’s Decision reasonable?
IV.
Standard of Review
[24]
The Federal Court of Appeal has recently
clarified in Canada (Minister of Citizenship and Immigration) v Huruglica,
2016 FCA 93 at paragraph 35 [Huruglica (FCA)] that this Court is
required to review decisions of the RAD on a standard of reasonableness.
V.
Analysis
A.
Was the RAD’s Decision reasonable?
[25]
The Applicant argues that the RAD Decision,
namely its analysis of the authenticity of documentation, is incongruous.
[26]
The Applicant submits that essentially the RAD concluded
it is possible to purchase any document in China in support of its rejection of
each of the Applicant’s corroborating documents. However, it ignored that same
country documentation evidence in finding the expired passport genuine and
drawing a negative inference when the Applicant provided no documents to
corroborate certain aspects of her claim, such as her inability to travel in
2009 due to medical complications. The Applicant takes the position that this “ad-hoc” cherry-picking approach to the analysis of
documentation is unreasonable.
[27]
At the heart of the RAD Decision is the finding the
Applicant lacked credibility with respect to a number of documents and facts
relating to her pregnancy, abortion and sterilization. In conducting its
analysis, the RAD relied upon the decision in Huruglica (FC), above.
This decision has since been supplanted by Huruglica (FCA), above, in
which the Federal Court of Appeal determined that the RAD is to review
RPD decisions on a correctness standard, carefully considering the RPD decision
before carrying out its own analysis of the record to determine whether the RPD
erred (Huruglica (FCA), above, at paras 78, 103).
[28]
Notwithstanding the RAD’s citation of Huruglica
(FC), it is apparent the RAD properly engaged in a correctness review: it conducted
an independent and thorough assessment of the RPD Decision and also considered
the totality of the evidence in evaluating the Applicant’s arguments.
[29]
While the Applicant may disagree with the RAD’s
assessment of the documentary evidence, I find it committed no reviewable error
in its analysis and weighing of the evidence.
[30]
The RAD conducted a detailed assessment of the
individual documents in evidence, and it was reasonable for it to arrive at
different conclusions regarding the documents’ legitimacy, given their
different features.
[31]
It provided transparent and justifiable reasons
why the abortion certificate and the sterilization notices were rejected as not
genuine. The RAD first cited the country documentation evidence, showing the
prevalence and availability of fraudulent documents in China. While that
certainly does not mean every document from China will be fraudulent, or that
they can be presumed to be fraudulent, the RAD also noted that in addition to
credibility concerns which called into question whether the abortion had even
taken place, the abortion certificate and sterilization notices bore features
that could be easily replicated: they were “very simple
documents” generated using a word processor and did not bear the
signature or name of the issuing individual or a logo or pre-printed letterhead.
[32]
In assessing the Applicant’s expired passport,
the RAD provided cogent reasons why it considered the document to be genuine.
Not only were various features of the passport supportive of that finding –
such as the three different pictures of the Applicant and the six visas with
accompanying stamps from the issuing countries – but it had also been
previously accepted as genuine by Canadian Immigration Officials.
[33]
Moreover, it is not inconsistent for the RAD to
draw negative inferences from the Applicant’s inability to provide certain
corroborating documents that the RAD found, on a balance of probabilities, would
be reasonable to expect, given her other evidence. The Applicant provided
medical documentation for herself and her son, thereby demonstrating her
ability to acquire such records. Yet, she provided no medical evidence that she
was unable to travel in 2009 due to pregnancy complications, or that she
underwent an abortion that resulted in extensive bleeding.
[34]
The onus was on the Applicant to establish her claim.
It was not unreasonable for the RAD to expect the Applicant to provide credible
evidence corroborating the allegations that were the foundation of her fear of
persecution and that lie at the heart of her refugee claim.
[35]
I find no error that would justify the Court’s
intervention. The RAD’s assessment of the evidence is intelligible,
transparent, and justifiable, and the Decision it came to falls within the
range of reasonable outcomes.
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