Toronto, Ontario, October 12, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
YING CHEN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Xiaomiao Cai and Ying Chen are citizens of the People's Republic of China. Their claim for refugee protection was based upon their alleged fear that they would be persecuted because of their violation of China's "One Child" policy.
[2] The decision of the Refugee Protection Division of the Immigration and Refugee Board turned upon the Board's assessment of the credibility of the female claimant. Despite the high degree of deference to be accorded to such findings, I am satisfied that two of the Board's key findings were based upon a misapprehension of the evidence, and were thus patently unreasonable. As a result, the Board's decision must be set aside.
The Applicants' Allegations
[3] The applicants assert that after they had their first child, the female applicant was forced by the Chinese authorities to wear an intra-uterine birth control device. Her compliance with the IUD requirement was monitored through quarterly check-ups.
[4] Notwithstanding the fact that she continued to wear the IUD, the female applicant says that in February of 2003, she discovered that she was pregnant. In order to avoid a forced abortion and sterilization, the female applicant and her husband went into hiding. The female applicant missed her scheduled appointment with the birth control officer in mid-March of 2003, after which the officer and representatives of the Public Security Bureau began looking for her. At this point, the applicants decided to flee the country.
Analysis
[5] The primary basis for rejecting the applicants' claims was that the Board did not believe that the applicants were in Chinawhen the female applicant became pregnant. The Board came to this conclusion based upon the presiding member's understanding of the evidence in the 'check-up booklet' belonging to the female applicant, which recorded the dates of her appointments with the family planning authorities.
[6] According to the Board, the last recorded appointment for the female applicant was in December of 2001. Based upon this, the Board found that there was a gap in the female claimant's story, and that her whereabouts between December of 2001 and March of 2003 had not been accounted for. According to the Board, this brought "the claimant's credibility into disrepute".
[7] A review of the evidence discloses that the booklet actually records the female applicant having been examined by the family planning authorities in March, June, September and December of 2002. This page in the booklet was evidently not reproduced in the English translation of the document. Although this omission was drawn to the attention of the member at the hearing, it nevertheless appears that the member either overlooked or ignored the evidence of the 2002 appointments in arriving at a decision.
[8] Given the central role that this finding played in the Board's analysis, I would be prepared to set aside the Board's decision on this basis alone. However, it is clear that the Board also made a second serious error in its assessment of the facts.
[9] The Board also found that the evidence in the female applicant's passport contradicted the evidence in her check-up booklet. According to the Board, the booklet records the applicant having been examined on June 26, 2001, whereas her passport shows that the applicant left China the day before to go to Singapore. Given that the female applicant apparently was not in Chinaon the date in question, the Board found that "not only have the claimants presented a foundation document which has proved to be fraudulent, but it puts the entire claim in jeopardy since one could then conclude that the remainder of the claimants' allegations are of dubious veracity."
[10] The problem with this reasoning is that the female applicant's appointment was not on June 26, 2001 at all. The booklet clearly indicates that the appointment was on June 25. It would therefore have been quite possible for the applicant to have had her examination on the 25th, prior to flying to Singapore later that same day.
Conclusion
[11] As I am satisfied that the two key factual findings made by the Board in this case were based upon a fundamental misunderstanding of the evidence, the application for judicial review is allowed.
Certification
[12] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-9948-04
STYLE OF CAUSE: XIAOMIAO CAI,
YING CHEN
Applicants
and
Minister of Citizenship and Immigration
Respondent
DATE OF HEARING: October 11, 2005
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
APPEARANCES BY:
Hart A. Kaminker For the Applicants
Marcel Larouche For the Respondent
SOLICITORS OF RECORD:
Hart A. Kaminker
Barrister and Solicitor
Toronto, Ontario For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent