BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
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.[1] 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)[2], 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.
JUDGE
Ottawa, Ontario
October 31, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-67-06
STYLE OF CAUSE: YONG GANG LIANG
APPLICANT
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 26, 2006
APPEARANCES:
Mr. Mark Rosenblatt FOR APPLICANT
Ms. Janet Chisholm FOR RESPONDENT
SOLICITORS OF RECORD:
Mark Rosenblatt
Barrister & Solicitor
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
[1] See Thavarathinam v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 186 (F.C.A.) (QL) recently applied in Saeed v. Canada (Minister of Citizenship and Immigration) 2006 FC 1016; Ogiriki v. Canada (Minister of Citizenship and Immigration) 2006 FC 342; and Mohammad v. Canada (Minister of Citizenship and Immigration) 2006 FC 352; Adar v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35; Mbabazi v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 1623 (QL) and Egbokheo v. Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 285 (QL); and Jones v. Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 591 (QL); Gebremichael v. Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 689; and R.K.L. v. Canada (Minister of Citizenship and Immigration) [2003] F.C. J. No. 162.
[2] (1989), 99 N.R. 168 (F.C.A.)