2017 FC, 2017 FC 1073

Date: 20171127 Docket: IMM-52-17 Citation: 2017 FC 1073 St. John’s, Newfoundland and Labrador, November 27, 2017 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:DAILING YUAN JIANJUN LI LEYI LI LEQIONG LI (A.K.A. LEQING LI)ApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Dailing Yuan (the “Male Applicant”), his wife Jianjun Li (the “Female Applicant”) and their minor daughters Leyi Liand Leqiong Li ( A.K.A. Leqing Li (collectively “the Applicants”) seek judicial review of the decision of the Immigration and RefugeeBoard, Refugee Appeal Division (the “RAD”).

In the decision, made on December 20, 2016, the RAD dismissed the Applicants’ appealfrom the finding by the Refugee Protection Division (the “RPD”) that the Applicants are neither Convention refugees nor persons inneed of protection within the meaning of

section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the “Act”), respectively. [2] The Applicants are citizens of China. They fear persecution on the basis of forced sterilization following a forced abortion,flowing form the family planning policies of the Chinese government. [3] The Female Applicant delivered her first child on December 17, 2009. Her second child was born on November 2, 2011. Sheclaims that she became pregnant a third time, despite using an Intrauterine Device (“IUD”).

She discovered she was pregnant at the endof June 2014 and her next IUD check-up was scheduled for September 2014. Fearing a forced abortion, the Female Applicant hid in thehome of her husband’s uncle. When located there some weeks later by the family planning authorities, she was brought to a hospital andforced to undergo an abortion. [4] The RPD did not believe the Applicants’ claims and made negative credibility findings. In its decision, the RAD reviewedthe findings of the RPD and confirmed the negative credibility determinations.

Indeed the RAD went further and concluded that theFemale Applicant did not undergo a forced abortion and that neither she nor her husband were at risk of forced sterilization. [5] In their application for judicial review, the Applicants argue that the RAD erred in confirming the decision of the RPD, inparticular in its treatment of the psychological evidence that had been produced, in confirming the negative credibility findings and byunreasonably concluding that there is no forward-looking risk of persecution. [6] The first question to be addressed is the standard of review, beginning with the first standard of review, that is the standardof review to be applied by this Court to the RAD. [7] The appropriate standard of review for this Court when reviewing a decision of the RAD is reasonableness; see Canada(Minister of Citizenship and Immigration) v.

Huruglica (2016), 2016 FCA 93 , 396 D.L.R. (4th) 527 (F.C.

A) at paragraph 35. [8] Accordingly, the Court should not interfere if the RAD’s decision is intelligible, transparent, justifiable, and falls within arange of outcomes that are defensible in respect of the facts and the law; see the decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47. [9] Next, I refer to the standard of review to be applied by the RAD upon an appeal from the RPD. [10] In judicial review of a decision of the RAD, the reviewing court must look at the standard of review applied by the RAD tothe RPD’s decision.

The Federal Court of Appeal in Huruglica, supra at paragraph 77 said: … I find no indication in the wording of the IRPA, read in the context of the legislative scheme and its objectives, that supports theapplication of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law. [11] According to the decision of the Supreme Court of Canada in Dunsmuir, supra, there are generally only two standards ofreview, that is reasonableness and correctness.

If the standard of reasonableness does not apply, only the standard of correctness remainsto be applied by the RAD in its review of certain issues before the RPD.

[12] At paragraph 103, of Huruglica, supra, the Federal Court of Appeal concluded: I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, whichraised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, aftercarefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by theappellant, the RPD erred.

Having done this, the RAD is to provide a final determination, either by confirming the RPD decision orsetting it aside and substituting its own determination of the merits of the refugee claim. [13] In my opinion, the paragraph quoted above means that the RAD must apply a correctness standard when reviewing decisionsof the RPD which do not raise issues of the credibility of oral evidence. In the present case, credibility is the determinative issue.

Thosefindings are subject to review on the standard of reasonableness, as noted above. [14] I have reviewed the Application records filed by the parties, as well as the affidavit of Dana Salmon filed by the Respondent.A copy of the transcript of the hearing before the RPD is attached as an exhibit to that affidavit. Both Applicants testified before theRPD. [15] In my opinion, the negative credibility findings made by the RPD were open to it. [16] According to its decision, the RAD reviewed the audio recordings of the RPD hearing.

There are repeated references to theaudio recordings in the decision of the RAD. [17] The decision of the RAD carefully sets out the basis upon which it rejected the arguments before it, presented by theApplicants. [18] In the present proceeding, the Applicants challenge the conclusions of the RAD and submit that they were reached withoutregard to the evidence, in particular the psychological report. They also argue that the RAD failed to consider the ultrasound report datedOctober 9, 2014. [19] That report was commissioned on behalf of the Female Applicant between the first and second sittings before the RPD.

Thethrust of that report, prepared by a clinical psychologist, was to say that the female Applicant suffers from Post-Traumatic StressDisorder and that this condition may affect her ability to testify.

Insofar as the RPD made negative credibility findings, which wereupheld by the RAD, this report is relevant to the credibility assessment of the Female Applicant, and submissions on behalf of theApplicants were made from that perspective. [20] I am not persuaded that either the PRD or the RAD disregarded this evidence. [21] Insofar as the RPD considered the report in its assessment of the credibility of the Female Applicant, it was entitled, indeedrequired, to do so and to evaluate the relevance and weight to be afforded it. [22] A psychological report cannot, by itself, replace the evidence of a witness, including an applicant, before the RPD or theRAD, as the case may be.

I refer to the decision in Khatun v. Canada (Citizenship and Immigration), 2012 FC 159 , [2012]F.C.J. No. 169, at paragraph 94: In this case, the Applicant tries to rely on the Pilowsky Report and the RPD’s alleged ignorance of it to explain away all of the negativecredibility findings. However, as stated by the Respondent, no psychological report could act as a cure-all for deficiencies in theApplicant’s evidence. [23] I agree with the position of the Respondent that the arguments about the ultrasound report should not be entertained. Thesesubmissions were not raised in the Memorandum of Fact and Law.

They were not raised before the RAD. In any event, neither theultrasound report nor the arguments address the determinative issue of credibility. [24] The Applicants submit that the RAD erred by failing to consider the issue of prospective risk. [25] In my opinion, the RAD was not required to address this issue in view of the negative credibility findings which were open toit. [26] In the result, I see no reviewable error arising in respect of the decision of the RAD and this application for judicial reviewwill be dismissed. No question for certification arising.

JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review is dismissed, no question for certification arising. "E. Heneghan" Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-52-17 STYLE OF CAUSE: DAILING YUAN ET AL v. MCI PLACE OF HEARING: toronto, ontario DATE OF HEARING: june 1, 2017 JUDGMENT AND reasons: HENEGHAN J. DATED: november 27, 2017 APPEARANCES : Michael Korman For The Applicants Bridget O’Leary For The Respondent SOLICITORS OF RECORD : Barristor and Solicitor Otis and Korman Barristers and Solicitor Toronto, Ontario For The Applicants Deputy Attorney General of Canada For The Respondent