Date: 20011102
Court File No.: IMM-5860-00
Neutral Citation: 2001 FCT 1196
Ottawa, Ontario, this 2nd day of November, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
XUE BI YE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a refugee claimant, originally from the rural town of Long Gui, Guangzhou City, Guangdong Province, in the People's Republic of China. She seeks judicial review of the negative decision of the Convention Refugee Determination Division (CRDD) dated October 23, 2000.
[2] Her evidence was that in 1999 she became pregnant with a second child and was forced to go into hiding from the authorities since her pregnancy was not sanctioned by the Chinese Government and violated planning laws. She had not obtained a permit from the Family Planning Office ("FPO").
[3] On October 12, 1999, she contends that she was discovered by the FPO and forced to undergo an abortion. As a result of the abortion, the applicant claims that she had lost a lot of blood and was too weak to undergo sterilization. After being released from hospital, the applicant contends that she and her husband went into hiding so that neither would have to undergo sterilization. The FPO advised her relatives that she should attend at the FPO for sterilization. A summons for sterilization was subsequently delivered to her home by the authorities. It is at this point that she realized she would no longer be able to live safely in China.
[4] On February 10, 2000, the applicant arrived in Vancouver via Macau and Taiwan and claimed Refugee status on the same day based on a well founded fear of persecution in China by reason of China's family planning policy. The applicant left behind her husband, daughter, mother, father, sister and two brothers who still reside in Guangzhou City, Guangdong Province, in the People's Republic of China.
[5] The negative decision of the CRDD was based on a finding that the claimant is not a credible or trustworthy witness with respect to alleged events of past persecution.
[6] The applicant raises two issues:
(a) Whether the Board erred in finding that the events alleged by the applicant could happen and yet determined that they were unlikely to happen and therefore finding that the evidence lacked plausibility.
(b) Whether the Board erred in finding that it was possible but not probable that the applicant was persecuted for failure to wait four years to have a child.
[7] In reviewing plausibility findings of a specialized tribunal, there is no longer any doubt that such a tribunal has complete jurisdiction to determine the plausibility of testimony. In the words of Mr. Justice Décary in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, pp. 316-317 at paragraph 4, "... 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."
[8] In Razm v. Canada (Minister of Citizenship and Immigration) (1999) 164 F.T.R. 140, p. 141 at paragraph 2, Mr. Justice Lutfy (as he then was) stated that it was indeed now trite law, that the CRDD has complete jurisdiction to determine the plausibility of testimony, and where reasons for decisions on credibility are stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
[9] The burden rests on the applicant to show that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[10] On the first issue, the applicant essentially argues that the CRDD erred in stating that the fact that the country documents reveal that a forced abortion in the applicant's situation is rare, necessarily means that the events are implausible. The CRDD, after reviewing all of the documentary evidence, determined that the claimant's testimony of forced abortion and sterilization threat in a rural area of China in 1999 is not likely to be true. The CRDD did acknowledge in its reasons that such events are possible in rural China in 1999 but not probable and therefore implausible. It is my opinion that such an inference was reasonably open to the CRDD.
[11] On the second issue, the applicant acknowledged that families were permitted to have two children in her locality. However, the children must be four years apart. The CRDD after considering the documentary evidence found it improbable that family planning officials would come up with such severe sanctions - forced abortion and threat of sterilization - when the Policy would have permitted the applicant to have a second child only if she had waited a few more years, particularly when millions of other Chinese are permitted to have two children without attracting such sanctions. The CRDD found this to be implausible and drew a further adverse inference as to the claimant's credibility. I find that both the inference on implausibility and the negative inference on the credibility of the applicant were reasonably open to the CRDD.
[12] I find that the applicant has not discharged her burden of showing that the inferences drawn by the CRDD could not reasonably have been drawn. I find no reviewable error in the CRDD's findings.
[13] For the above reasons this application for judicial review is dismissed.
[14] The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge