ZHI QIANG XU Applicant - v. -, 2003 FCT 381

Date: 20030401 Docket: IMM-1698-02 Citation: 2003 FCT 381 Ottawa, Ontario, this 1 st day of April, 2003 PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD BETWEEN: ZHI QIANG XU Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] The applicant seeks judicial review of the March 26, 2002 decision of the Convention Refugee Determination Division (the "CRDD") that dismissed his claim for refugee status. Facts [ 2 ] The applicant is a citizen of China and was a resident of Guangzhou.

He claims refugee status based on a fear of persecution arising from the threat of forced sterilization imposed by Chinese officials. [ 3 ] The applicant and his wife had a child in 1995. In December 2000, the applicant's wife became pregnant a second time. In February 2001, she was sent a notice by the Family Planning Officials (the "FPO") requesting that she undergo a gynaecological examination and, failing that, she and her husband would be forced to undergo sterilization. [ 4 ] The applicant's evidence is that his wife was dismissed from her job because she had violated the family planning policy.

She then went into hiding. The FPO visited the applicant at home a number of times and threatened him with forced sterilization. The applicant states that he was also dismissed from his job and that he subsequently made arrangements to flee China. [ 5 ] The applicant's wife had a miscarriage and did not deliver a second child. [ 6 ] The applicant states that members of his family have been subjected to pressure and negative treatment as a result of his failure to comply with the FPO.

He also states that his daughter was prevented from attending school for her first grade, in the fall of 2001. [ 7 ] The applicant arrived in Canada on May 9, 2001, and claimed refugee status. CRDD's Decision [ 8 ] The CRDD found that , "...The allegations that lie at the heart of the claimant's claim were shown to be not credible when compared with his CIC [Citizenship and Immigration Canada] notes, country documents, and his wife's testimony." The CRDD noted that the applicant told the CIC that he had fled China because he held "dissident political views" and did not mention difficulties with the FPO.

The CRDD stated that this omission impugned his credibility. [ 9 ] The CRDD found that the applicant stated in his PIF that the FPO came to his house and asked his wife to undergo a gynaecological examination. However, in oral testimony, the applicant stated that the FPO delivered a notice to the house requesting that his wife have an examination, while his wife was in hiding. [ 10 ] The applicant testified that he and his wife were dismissed from work and their "waiting for employment" cards were withheld as a punishment, and that they could not seek work without these cards.

The applicant did not mention this evidence in his PIF, and the CRDD found it not to be credible that he would leave out these facts in his PIF. [ 11 ] The applicant's wife miscarried and stated that she did not fear sterilization by the FPO, unless she got pregnant again. She maintained that her husband would be sterilized should he return to China. She stated that Chinese authorities sterilize men when their wives violate the policy by bearing children.

However, the CRDD cited documentary evidence suggesting that male sterilization is not popular in China, that in 1992, 95% of sterilizations were performed on women, and that forced sterilizations have been replaced with heavy fines. [ 12 ] The CRDD noted that four witnesses from China were telephoned during the hearing to provide evidence. The applicant's

[ 12 ] The CRDD noted that four witnesses from China were telephoned during the hearing to provide evidence. The applicant's friend, Zheng Chuen, confirmed the applicant's understanding of the "waiting for employment" card. However, his wife stated that only personal identification was required in order to find work. The CRDD found the applicant's testimony concerning the "waiting for employment" card to be unreliable. [ 13 ] The applicant's mother and sister were interviewed from Guangzhou.

The applicant's mother stated that the neighbourhood committee had come to their house many times in 2001 to "do the surgery". She also stated that, until one member of the impugned couple shows up, the government refuses to process the paperwork for other family members, such as for drivers' licences. [ 14 ] The applicant's sister stated that she did not want to have a second child because she and her husband could not afford it. She stated that some people in China had multiple children and hid them when the authorities came around. She was not sure of having heard of a man being sterilized.

She stated that if the authorities cannot catch the woman, they may catch the man, or negotiate. [ 15 ] Given that the applicant's wife did not fear sterilization, the country reports show that sterilization is a rare occurrence, and the applicant's sister said that the family is able to negotiate the outcome of a breach of family-planning rules, the CRDD stated that it did not find credible the applicant's claim of fear of persecution by forced sterilization. [ 16 ] The CRDD noted that the applicant's wife confirmed that her daughter was not in school, but stated that the reason for this was because she had not paid the fine imposed on the family.

The CRDD stated that the applicant had misled it on matters going to the heart of its claim. The CRDD found the applicant to be an "unreliable and untrustworthy witness" and determined that he faces no serious possibility of persecution should he return to China. Issues A. Did the CRDD err in ignoring a key piece of documentary evidence, the notice from FPO stating that either the claimant or his wife would be subjected to forced sterilization? B. Did the CRDD make adverse findings of credibility based on contradictions that are not present in the evidence? C.

Did the CRDD err in ignoring corroborating evidence from witnesses whose evidence was not challenged? Analysis A. Did the CRDD err in ignoring a key piece of documentary evidence, the notice from FPO stating that either the claimant or his wife would be subjected to forced sterilization? [ 17 ] The applicant submits that the CRDD erred in ignoring the notice from the FPO, and submits that this documentary evidence goes to the heart of his claim. [ 18 ] The applicant cites Caballo v. Canada (Minister of Employment and Immigration) , [1994] F.C.J.

No. 669 for the proposition that the CRDD must consider all evidence put before it, and failure to do so amounts to an error of law in that it is a decision made without regard to the totality of the evidence. [ 19 ] I find that the CRDD did not ignore the FPO notice in its assessment of the evidence. The CRDD considered the notice, since it was mentioned in its reasons, but ultimately gave it little weight in the face of documentary evidence that suggested that few male sterilizations occur in China. The CRDD was not required to give "full weight" to the document.

It must have made its decision with regard to the totality of the evidence, and is entitled to weigh the evidence as to reliability and cogency: Hassan v. Canada (Minister of Employment and Immigration) , (1992) 147 N.R. 317 . B. Did the CRDD make adverse findings of credibility based on contradictions that are not present in the evidence? [ 20 ] The applicant submits that the CRDD misconstrued the evidence concerning the notice of gynaecological examination, the applicant's daughter's schooling, and the fear of sterilization experienced by the applicant's wife.

The applicant argues that the CRDD's adverse credibility finding resulting from its misconstruing of the evidence amounts to an error of law, citing Nicola v. Canada (Minister of Cizitenship and Immigration) , [2000] F.C.J. No. 416 . [ 21 ] Concerning findings of credibility, the burden on the applicant is to show that the inferences drawn by the tribunal could not reasonably have been drawn: Aguebor v. Minister of Employment and Immigration , [1993] F.C.J.

No. 732 (QL) . [ 22 ] The CRDD stated in its decision: In his PIF, the claimant stated that the FPO came to his house and asked his wife to have a gynaecological exam. In his oral testimony, he said that his wife was in hiding when the FPO delivered a notice to the family directing her to come for the exam. However, there is no mention of the notice in the PIF or the visit of the FPO to his wife in his oral testimony.

I find the two to be in conflict on this point. [ 23 ] The applicant submits that he did not state that his wife was present when the FPO came to his home in his PIF, and thus there is no inconsistency from which to draw a negative credibility inference. [ 24 ] The applicant's PIF states:

My wife became pregnant for a second time in December 2000. In February 2001 the Family Planning officials came to ask my wife to have a gynecological examination. My wife didn't go because the pregnancy was not permitted and she didn't wanted to have an abortion.

She went into hiding at her sisters in Shen Zhen city, about 120 km away. (Emphasis added) [ 25 ] From the above passage in the applicant's PIF, I do not find unreasonable the Board's inference that the FPO did indeed ask the wife to have a gynecological exam. [ 26 ] In the hearing transcript, at page 209, the applicant testified that his wife was never present when the FPO came to the house. This appears to be inconsistent with a natural understanding of the PIF words quoted above.

I do not find the CRDD's conclusions to be unreasonable. [ 27 ] The applicant further submits that the CRDD misconstrued evidence concerning the reason why the applicant's daughter was no longer in school. The CRDD stated that the applicant's wife said that her daughter was being kept from school because the family did not pay fines imposed as a result of missing gynaecological exams.

The CRDD stated that this testimony was inconsistent with the applicant's testimony that the daughter was prevented by the state from attending school. [ 28 ] The applicant stated in testimony that he and his wife are against the family planning policy and as a result his family members have trouble accessing government services. He testified that this meant "to stop all the things relating to the family, government services.

If you go to the government for any kind of formalities like my daughter went to school, this is stopped...." [ 29 ] The applicant's wife stated that her child was no longer in school "because she does not have the single-child certificate" and that "before she would be admitted for Grade 1, they require all the documents." When asked what the women in Guangzhou with two children do about schooling, the applicant's wife stated "you have to spend a lot of money to buy that or you will be heavily fined". [ 30 ] I find that it was not unreasonable for the CRDD to infer from this evidence that, according to the wife, the child was not in school because the family had not paid a fine.

This is inconsistent with the applicant's testimony to the effect that the government had refused to school his child because the family was against the family planning policy. In my view, the CRDD did not misconstrue this evidence. [ 31 ] Finally, the applicant submits that the CRDD misconstrued his wife's evidence concerning its conclusion that the wife did not personally fear sterilization. The applicant states that such evidence was not before the CRDD. [ 32 ] The CRDD stated in its decision that the applicant's wife did not personally fear sterilization, unless she got pregnant again.

The CRDD did not say that the applicant's wife did not fear sterilization generally, but that she feared sterilization should she become pregnant again. This finding was not unreasonable and does not constitute a reviewable error. C. Did the CRDD err in ignoring corroborating evidence from witnesses whose evidence was not challenged? [ 33 ] The applicant submits that the CRDD did not challenge the evidence of the applicant's mother and sister, and therefore erred in making findings that are not consistent with the testimony of the mother and sister.

The applicant states that the mother testified that the FPO told the applicant or his wife to undergo sterilization, and that the applicant's sister testified that it was fairly likely that, if the applicant's wife were not sterilized, the applicant likely would be. [ 34 ] The CRDD is entitled to weigh the evidence according to its reliability and cogency: Hassan, supra . Preferring the documentary evidence concerning the likelihood of sterilization to the evidence given by the applicant's mother and sister does not constitute a reviewable error.

Conclusion [ 35 ] I conclude that the CRDD committed no reviewable error in deciding as it did. Consequently, the judicial review will be dismissed. [ 36 ] The parties have had the opportunity to raise a serious question of general importance as contemplated by

section 74 (

d) of the Immigration and Refugee Protection Act , S.C. 2001,

Chapter 27 , and have not done so. I do not propose to certify a serious question of general importance. ORDER THIS COURT ORDERS that: 1. The judicial review is dismissed. 2. There is no serious question of general importance to be certified. "Edmond P. Blanchard" Judge

FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-1698-02 STYLE OF CAUSE: Zhi Qiang Xu v. MCI PLACE OF HEARING: Vancouver, B.C. DATE OF HEARING: February 6, 2003 REASONS FOR ORDER AND ORDER: BLANCHARD J. DATED: April 1, 2003 APPEARANCES : Kyle C. Hyndman FOR APPLICANT Ms. Banefsheh Sokhansanj FOR RESPONDENT SOLICITORS OF RECORD : McCrea & Associates FOR APPLICANT 102 - 1012 Beach Avenue Vancouver B.C. V6E 1T7 Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada Department of Justice 900 - 840 Howe St. Vancouver B.C. V6Z 2S9