Federal Court Decisions

                                                                                                                                                          

Date: 20020201

Docket: IMM-5764-00

                                                                                                  Neutral Citation: 2002 FCT 126

BETWEEN:                                                                                              

SAI JIN CHI (aka DIA, SUI GIN)

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                    REASONS FOR ORDER

HANSEN J.

[1]                 This is an application for judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2. The applicant seeks an order setting aside the October 19, 2000 decision by the Convention Refugee Determination Division ("CRDD"), which determined Sai Jin Chi ("applicant") is not a Convention refugee.

Background

[2]                 The applicant is a 29 year-old national of the People's Republic of China ("PRC") who arrived in Canada by boat in August 1999 and has been in custody since her arrival. She claims to have left a husband and a five-year old daughter behind in the PRC. The applicant fears that the government of the PRC will deprive her of the opportunity to give birth to a son, either through sterilization, forced abortion or the forced insertion of an intrauterine birth control device ("IUD").

[3]                 The applicant states she is the third child of a rural family from Fujian province. She entered into an arranged marriage at the age of 25, and she states that the marriage was never registered. The applicant began to live with her husband in his household, and in September 1996, gave birth to a daughter with the assistance of a mid-wife in a private home. The child's birth has never been registered. The applicant states that by concealing the existence of her daughter, she would preserve her ability to have another child. The applicant states she wants to have a son, which would please her husband. One month after the daughter's birth, the applicant states that she was forced to have an IUD inserted. The family planning authorities required her to wait for five years before having a second child. The applicant states that she has experienced pain and illness as a consequence of the IUD, but family planning officials dismissed her concerns.

[4]                 In any event, the applicant states that she and her husband attempted to deceive the family planning authorities by not registering their daughter's birth and illegally removing the IUD. Soon after, the applicant became pregnant and went into hiding at a friend's residence out of fear that the authorities would become suspicious when she failed to report for her 3-month IUD checkup. In the end, the authorities discovered her pregnancy and forced her to undergo an abortion late in her term. Her application states that after this traumatic event, her marriage broke down, her husband left her, and she suffered from depression.

[5]                 It was at this time that the applicant turned to the Tien Dao doctrine and began attending the temple regularly. On July 1, 1999, the Public Security Bureau ("PSB") raided the temple, but the applicant escaped out the back entrance, and went into hiding in a cave until the next morning when she went to her aunt's home.

[6]                 Several days later, the applicant states her mother and sister arrived bearing a summons for the applicant's arrest. The CRDD's reasons summarize her flight from China as follows:

... The claimant now had two reasons she alleged to be fearful. One was her fear of family planning authorities. She felt she was at risk of being sterilized and, as well, she was facing possible arrest and incarceration for her attachment to Tien Dao. This led her to decide to flee to Canada and she did so by boat, although she was ambiguous as to exactly how those arrangements were made and who paid for the voyage.

[7]                 When the applicant arrived in Canada, she still experienced significant medical problems associated with the IUD. Her medical file shows a number of complaints relating to this device, which had been implanted for several years. The IUD was ultimately removed. The applicant fears that if she is returned to China she will be forced to have an IUD or she will be sterilized. Even if she is allowed to give birth again, she fears regardless of the sex of the child, she will subsequently be sterilized.

Decision under Review

[8]                 The CRDD accepted the applicant was a resident of the PRC from the Fujian province. The CRDD found, however, that the applicant did not provide any credible evidence that she had been married, that she had given birth to a child, or that she had been forced to undergo an abortion.

[9]                 The CRDD did not find it credible that the applicant had no marriage certificate since, based on its extensive experience with claimants from the Fujian province, it is common for married persons from all walks of life in the Fujian province to have marriage certificates, or "double happiness certificates". The CRDD stated that such a certificate lays the foundation for someone to bear children legally under the auspices of the family planning programme of China, something, according to the CRDD, the applicant said she and her husband hoped to do. Further, since the child's birth had not been registered, it was questionable as to how the family planning authorities became aware of the child's existence and required the applicant to use an IUD.

[10]            Second, the CRDD noted the applicant produced no household registration to show she was married or even resident in the same house as her husband, or that she had a daughter. Instead, the applicant offered a hukou issued in 1997, indicating she was still living in her parents home. The panel noted the applicant's siblings who had left home to marry had been removed from the hukou, but the applicant's name remained. The CRDD reasoned that if the applicant had left in 1995 to marry, as she said she did, her name would also have been removed from the 1997 hukou. The CRDD observed that there are a number of reasons the hukou registration system could be relied upon as accurate: it is designed to legitimize the location of persons in China, and an up-to-date hukou entitles holders to receive specific social benefits, such as oil and food. So aside from the obligatory basis for accurate record keeping, there are other incentives for accurate hukou record keeping. The CRDD found it was not logical for the claimant not to have complied with normal hukou registration procedures, if indeed she had left her parents' house to live with her husband.

[11]            The CRDD found the applicant's claim that she did not register her daughter's birth because she wanted to keep it a secret from family planning authorities was "blatantly inconsistent" with her admission that the authorities "definitely did know" about her daughter.

[12]            The panel found it was not credible that in a society as bureaucratically oriented and politically aware as the PRC, that the applicant could have no knowledge of the hukou system. The CRDD implied that the applicant's testimony on this point impugned the credibility of her claim generally. The CRDD stated as follows:

Counsel for the claimant argued in his submissions that the claimant's lack of knowledge about the hukou and about hukou registration procedures flowed from the fact that she was not responsible for the hukou and knew nothing of the process. The panel cannot accept this argument as a legitimate reason for the claimant's lack of understanding on this point. I have earlier mentioned the panel's observation that China is a very bureaucratic society where persons from an early stage are conditioned to report basic life events to authorities and to record them, and the hukou is a basic method of controlling not only the movements of the Chinese population, but their entitlements to benefits. If the claimant alleges that she knows nothing about her hukou because this very minimal responsibility was not within her purview, then the panel must wonder what other elements of her claim are not within her purview. Either the claimant is an individual who is adducing her own evidence in support of her claim and whose knowledge of her circumstances can be relied upon, or if she is not answerable for her own evidence in relation to the hukou and other elements of her story. The claimant cannot have it both ways.

[13]            Aside from her inability to provide any supporting documentation, the CRDD found the applicant did not answer questions clearly and unambiguously. She seemed to contradict herself, saying she wanted to have a son to please her husband, but her PIF stated they had separated and there was a "... clear indication in her PIF that the marriage had actually broken down". The CRDD found there was no credible evidence upon which to conclude the applicant is a partner in a lawful and subsisting marriage. They further found that family planning regulations are applied in a relaxed manner in Fujian province, with the average number of live births exceeding 2.5 per family, and that many rural families are not limited to two children, particularly when the children are female.

[14]            In summary, the CRDD found the applicant neither reliable nor trustworthy as a witness in respect of the primary allegations underpinning her claim. The reasons conclude as follows:

So, on balance, the panel does not find the claimant to be a reliable or trustworthy witness in respect of her primary allegations and it does not find that there is an objective, cogent basis in the documents before it, which would underpin or sustain those allegations in respect of conditions prevailing in China at the moment.

Issues

[15]            The applicant alleges the CRDD made findings of fact that are perverse, unsupported by the evidence, directly contradicted by the evidence, and beyond their special expertise as specialized Tribunal members.

[16]            The applicant submits there was no reason for her to have an IUD if she were not forced by the family planning authorities to prevent further pregnancy. There was no evidence she had made this birth control choice on her own. The applicant argues the existence of the IUD is clear proof of the existence of at least one child. As well, the applicant argues that the CRDD completely ignored the fact that the applicant repeatedly expressed her desire to give birth to a son. As a result, the CRDD suggested to the applicant that she does not face a risk upon return to China since she would be a single woman living childless without an IUD.

[17]            The respondent submits the CRDD is entitled to assess the credibility of a claimant and to draw reasonable inferences in light of the totality of the evidence. The respondent relies on Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at paragraph 4 (F.C.A.), where the Federal Court of Appeal stated:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.

Analysis

[18]            The CRDD's finding that the applicant will not face punishment upon return to China rests on their rejection of the applicant's evidence regarding the existence of her marriage and daughter. Therefore, I will begin my analysis by considering whether the CRDD erred in finding that the applicant put forward no credible evidence that she is married and has a child.

Did the panel err in finding that the applicant did not present credible evidence that she is married and has a child?

[19]            The applicant submits that the CRDD's conclusion that there was no credible evidence that she was married or has a child is a perverse finding of fact made without regard to the evidence.

[20]            The applicant argues that the CRDD completely ignored the cultural significance of the IUD. In rural China, according to the applicant, the fact that a woman has an IUD is evidence of state enforcement of her reproductive capacity. She notes that there is no reason for a woman to have an IUD if the family planning authorities were not attempting to restrict her from becoming pregnant. There is no mention in the documentary evidence that single or no longer married women in China have IUD's for their own personal reasons. The applicant submits that the existence of the IUD is clear evidence of not only state control over her body, but also of her marriage and the existence of at least one child.

[21]            The applicant also relies on her oral testimony. She submits that the CRDD had no reason to doubt the existence of her husband and daughter.    The applicant relies on the proposition in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.) at page 305 which states that "[w]hen an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness..."

[22]            The CRDD put much emphasis on the fact that the applicant could not produce documents to support her identity. Also, they found it is implausible that the applicant would still be listed on her parents hukou if she was married. The applicant asserts that the CRDD has:

¼a propensity to make conclusive references to facts about Chinese society. These references are either contradicted by the evidence or not supported at all. For example, they state that it is a normal feature of Chinese life to be in possession of primary identity documents.

In response, the respondent relies on the Federal Court of Appeal decision in Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at paragraph 2. It states that "...the Board is entitled, in assessing credibility, to rely on certain criteria such as rationality and common sense."

[23]            However, the applicant points to documentary evidence before the CRDD that directly contradicts this finding. She notes that the "floating population" in China exists in large part to specifically avoid family planning regulations.

[24]            The respondent responds to these allegations specifically by stating as follows:

...the only explanation the Applicant gave for why she was not registered in her husband's hukou was that she was entered reluctantly into an arranged marriage. It was reasonably open to the Refugee Division to draw adverse inference from the fact that she states that she married her husband in 1995 and went to live with him, however, her parents' 1997 hukou includes her and does not list her as married. The Applicant did not present herself as being a member of the mobile population...

[25]            The documentary evidence produced by the IRB's Research Directorate in September 1998 indicates that the term "floating population" is used to refer to persons "staying away from their place of registration without having transferred their hukou", and notes that "[n]ot all floaters are on the move: some stay in the same place for years".

[26]            The documentary evidence further indicates that migration without transfer of the hukou is often undertaken to avoid family planning regulations. Networks exist to assist rural women travelling to different locations to give birth in order to hide from local family planning officials. On the issue of strategies employed by rural women to circumvent the family planning regulations, an article published in the journal Current History, September 1998, indicates as follows at page 1188:

¼the one-child campaign has put unprecedented pressures on peasant women¼Peasants obviously oppose both the coercive methods and the logic of the campaign. Couples continue to have more than one child in hopes of producing one or more sons, who are considered essential help¼Peasants have also chosen more benign methods [than infanticide, abandonment and ‘selective abortion'] to circumvent the one-child policy, such as not registering the birth of a female¼

[emphasis added]

[27]            Not only does this evidence support the applicant's version of the facts, it directly contradicts the panel's conclusions.

[28]            The applicant, in oral argument, refers to Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131. In this case, Justice Muldoon noted that a tribunal must be cautious when making conclusions of plausibility based on Canadian paradigms. He noted at paragraph 7 that "...refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu".

[29]            The CRDD states repeatedly that a marriage certificate and an accurate hukou would have aided the applicant.

...the panel notes that such a certificate lays the foundation for someone to have legal children legally under the auspices of the family planning programme of China, something that the claimant said that she and her husband were strongly hopeful of being able to do.

[30]            The CRDD found that it doesn't make sense that the applicant would not have conformed to these requirements that would have assisted her.

[31]            The applicant maintains the tribunal ignored the most central evidence to her claim: the applicant wants desperately to have a male child. She asserts that this desire among rural women is clearly supported for cultural and practical reasons.

[32]            The applicant explains that, given that she and her husband wanted to ensure they would be able to have a male child, the registration of their marriage and the birth of their daughter would have diminished their chances of having a son. As is clearly established in the documentation, while a second child is sometimes permitted in rural areas where the first child is a girl, regardless of the gender of the second child, the woman is sterilized following the birth of her second child.

[33]            The CRDD found that the applicant contradicted herself on the point of whether the authorities knew about her daughter. For example, the panel noted that the applicant's PIF states "I gave birth to my child, a daughter, on the ninth day of the ninth month in 1996. When she was just one month old the government notified me to have the IUD implantation done. I had to go for checks every three months." But, the panel points out later that she says "... I didn't register my first child's birth. This would hopefully stop the government from knowing how many children I have."

[34]            In my view, this perceived inconsistency does not withstand scrutiny. The applicant testified that, while she and her husband took steps to try to prevent the authorities from discovering their daughter, the authorities became aware of her existence. A careful review of the transcript reveals that the applicant repeatedly stated that she did not know how the authorities found out about her child. The fact that the applicant's strategy for evading the family planning authorities was not successful does not indicate an inconsistency in her story. At the time of the child's birth, a decision was made not to proceed with registration in the hopes that her existence could be kept secret.

Was the CRDD finding that the applicant adduced no evidence to support the fact that she is married and has a daughter perverse or made without regard to the evidence?

[35]            The applicant did adduce evidence on this point. She testified to having been married and given birth to her daughter. Her testimony is consistent with her PIF narrative. Also, the applicant submits that the existence of the IUD is evidence of state interference with her reproductive system. She notes that the IUD has a particular significance in China; its presence indicates that the woman is married and has at least one child.

[36]            It is well established in the jurisprudence that the CRDD cannot disbelieve the applicant's evidence simply because she fails to produce documents in support of her oral testiony (Ahortor v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 137 and Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168).

[37]            Therefore, I find that the panel erred in finding that the applicant did not present credible evidence that she was married and had a child. The applicant was entitled to the presumption that her testimony was true and ought not be disbelieved solely because she could not produce documentation. Further, the applicant provided a logical explanation for why she did not register her marriage or the birth of her child. She also provided a reasonable explanation for why she may still be listed on her father's hukou. The CRDD failed to consider her explanations.

[38]            In order to succeed on judicial review, the applicant must satisfy the Court not only that the CRDD made an erroneous finding of fact, but that the finding was made "without regard to the evidence" (See for example Sivasamboo v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 741 (F.C.T.D.)).

[39]            In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D). Evans J. explained at paragraphs 15-17:

The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

[40]            Given that one of the CRDD's central findings was that the applicant did not produce credible evidence that she was married and had a child, and given that the applicant's explanations are not inherently illogical, the burden on the panel to explain why they rejected the documentary evidence that supports the applicant's explanations was increased. In my view, they failed to meet this burden.

[41]            The CRDD, in their reasons, alluded to the possibility that even if they had accepted the applicant was married with a child, they still would have denied her claim:

...So there is no reason, based on the panel's reading of the documents, to assume that the claimant would be punished by way of forcible sterilization were she to return to Fujian province, whether or not she was returning to a valid and subsisting marital union and had credibly established the existence of her daughter or wished to have a male child in the future, as she alleged.

[42]            Therefore, I must also consider the panel's finding that the applicant does not face the risk of forcible sterilization upon her return to Fujian province.

Did the panel err in finding that the applicant does not face the risk of forced sterilization upon her return?

[43]            The panel found that family planning regulations are applied in a relaxed manner in Fujian province and that the applicant would not face punishment if returned. The One-Child Policy Update, published by the Research Directorate of the IRB in June 1999 indicates as follows:

The first month after the first birth, the child must be registered with the police and two months after the birth, the mother must be fitted with an IUD; if either of these deadlines is missed, the mother is subject to sterilization¼If the first baby is female, an IUD must be inserted and the couple must wait 38 months before trying to have a second child.

[44]            The report also indicates that, within Fujian province, the population policy is unevenly implemented in rural areas. Another report, Caught between Tradition and the State, reiterates that "there is no uniformity" of enforcement of the family planning policies in rural areas. It goes on to detail the violence inflicted upon women by local authorities charged with implementing the forced sterilization or abortions. It confirms that violent and coercive tactics are used in the Fujian province against women who do not comply with the regulations.

[45]            The respondent makes reference to a report entitled Heaven is High and the Emperor Far Away: Report from the Fuzhou Metropolitan Counties of Liangjiang, Mawei, Fuquing, and Changle, March 2000. This report notes as follows:

There is less effective enforcement of the "one child" policy here than in other parts of China. Almost one-third of the families in the four counties have three children or more. Sanctions against "out-of-plan" births have not proven effective¼.Forced abortion and forced sterilization are reportedly not tolerated now, although local officials acknowledge there were problems with this in the past.

[46]            The panel's finding that the applicant would not be punished by way of forcible sterilization if she were to return to Fujian is central to its rejection of the applicant's claim. With respect to this finding there is substantial documentary evidence that supports the applicant's fears and contradicts the documentary evidence relied on by the panel. In these circumstances, the panel's failure to provide reasons for preferring the documentation on which it relied leads me to the conclusion that the panel's finding was made without regard to the evidence.

[47]            It should be noted that even if the applicant has no marital partner or is not able to reconcile with her husband, the prospect of state enforcement of her reproductive capacity is not diminished. The documentary evidence indicates that unmarried pregnant women in China are subject to mandatory abortions.

[48]            The punishment that the applicant fears is the state-enforced suppression of her reproductive capacity. The CRDD's suggestion that the applicant can return to China and live as a single woman without being targeted for sterilization or forced insertion of an IUD is an imposition of a significant personal choice the applicant does not want to make and fails to take into account the cultural context.

Disposition

[49]            For these reasons, the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted panel.

                                                                                "Dolores M. Hansen"            

                                                                                                      J.F.C.C.                      

OTTAWA, ONTARIO

February 1, 2002