TB1-20518

RPD File No. / N° de dossier de la SPR : TB1-20518 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX Demandeur(e)(s) d'asile (a.k.a. XXXX XXXX XXXX) Date(s) of Hearing November 5, 2013 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision November 19, 2013 Date de la décision Panel M. Pettinella Tribunal Counsel for the Claimant(s) Jacqueline M. Lewis Conseil(s) du (de la/des) demandeur(e)(s) d'asile Barrister and Solicitor Tribunal Officer N/A Agent(e) du tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre INTRODUCTION [1] The claimant, XXXX XXXX, a citizen of the People's Republic of China (China), seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act1 (IRPA). IDENTITY [2] The claimant's identity and her citizenship as a national of China have been established by her testimony and supporting documentation filed and entered in these proceedings.2 ALLEGATIONS [3] The specifics of the claim are set out in the claimant's Personal Information Form (PIF)3 narrative; however, the following is a summary. [4] The claimant was married on XXXX XXXX, 1997 to XXXX XXXX XXXX. Their daughter was born on XXXX XXXX, 1998. [5] After the birth of her daughter, the claimant had an intrauterine device (IUD) inserted as was required by the state Family Planning Office (FPO). She also went for regular pregnancy/IUD check-ups at the family planning office. The IUD caused the claimant discomfort, back pain and prolonged menstruation but a doctor told her that there was no medicine that would relieve the effects of the IUD. [6] During a pregnancy/IUD check-up on XXXX XXXX, 2010 it was discovered that the claimant was pregnant. She was immediately taken to hospital and was forced to undergo an abortion against her will. [7] The claimant was forced to have an IUD inserted 40 days after the abortion. She continued to have lower back pain, abdominal pain and long and heavy menstruation. Doctors could not remedy the ailments. The claimant was told by FPO officers that she could not have her IUD removed unless she agreed to be sterilized. [8] In XXXX 2011, a doctor found a fiber tumour in the claimant's uterus. The doctor also found an infection in the area where the IUD was located. FPO officers refused the claimant's request to have the IUD removed even though her doctor suggested it be removed. [9] In XXXX 2011, the claimant had her IUD removed at a private clinic on the advice of her mother and husband. As it would be discovered by FPO officers at her next check-up that her IUD had been removed, she decided to leave China. The claimant and her husband then went into hiding. [10] While in hiding, the claimant learned that FPO officers had gone to her house when she did not show up for her XXXX 2011 appointment. They left a notice for her to appear within one week. One week later, the FPO officers returned and left a notice indicating that she had been fined and was required to submit to a pregnancy test. The notice also indicated that if it was found that she was pregnant, she would have to undergo an abortion and then a sterilization procedure. [11] In late XXXX, FPO officers returned to the claimant's house and confiscated some household items. They continued to look for the claimant at the homes of relatives. [12] The claimant fled China to the United States of America (U.S.) on XXXX XXXX XXXX 2011. She arrived in Los Angeles the same day and flew to Seattle four days later. She was driven to the Canada/U.S. border where she crossed into Canada illegally. She claimed refugee protection on December 1, 2011. DETERMINATION [13] I find that the claimant is not a Convention refugee as she does not have a well-founded fear of persecution on a Convention ground in China. I also find that the claimant is not a person in need of protection in that her removal to China would not subject her personally to a risk to her life or a risk of cruel and unusual treatment or punishment. I also find that there are no substantial grounds to believe that her removal to China would subject her personally to a danger of torture. My reasons are as follows. ANALYSIS Credibility Failure to claim elsewhere [14] In order to succeed, the claimant needs to prove, on a balance of probabilities, that she has a reasonable subjective fear of persecution and that this subjective fear is objectively well-founded.4 A subjective fear of persecution is solely based on the assessment of the claimant's credibility while the objective fear is usually established by documentary evidence regarding country conditions.5 [15] The courts have found that failing to apply for refugee status in a foreign state is a factor the Immigration and Refugee Board (IRB) is entitled to consider in assessing the applicant's subjective fear.6 The courts have also stated that finding that the claimant lacked subjective fear due to his/her failure to apply for asylum in the U.S. is sufficient, alone, for the Refugee Protection Division to reasonably deny the refugee claim.7 [16] In 2011, the claimant solicited the services of a smuggler to take her to Canada. She obtained her passport in XXXX 2011 and a U.S. visitor's visa was issued in XXXX 2011 from the U.S. Consulate Office in Guangzhou. She flew to the U.S. on XXXX XXXX, 2011 and then entered Canada illegally four days later. [17] The claimant was asked why she did not seek asylum while in the U.S. She stated that the snakehead told her that human rights in the U.S. were not as good as Canada. She went on to say that it was easier to have her refugee claim accepted in Canada. [18] I note that the U.S. is a highly democratic country with an exemplary human rights record. There is no credible evidence before me that would suggest that the claimant's asylum claim, had she filed one in the U.S., would not have been carefully considered. In the case of Gomez Bedoya, the Court commented that the U.S. has ratified the United Nations Convention Relating to the Status of Refugees and there is no reason to believe that it does not abide by its obligations. The fact that the rate of successful applications may be lower there does not justify the claimants' failure to seek protection in the U.S.8 [19] The claimant maintains that she fled China because she feared being forcibly sterilized. [20] If her desire was to find a country where she would not face forced sterilization, it is not logical that she would leave the U.S., where she had legal status by virtue of her visitor's visa, and risk entering Canada illegally. She was running the risk of being detected by Canada Border Service officials and sent back to China. Her failure to claim in the U.S. speaks to her lack of subjective fear. [21] The claimant was the client of the smuggler. The claimant is the person who would have told the smuggler what country she wanted to go to. It is unlikely that the smuggler would have a vested interest in where the claimant ended up. In fact, it would be much easier for the smuggler to end their journey in the U.S. as they flew into the U.S. and the claimant entered with legal documents. Coming to Canada is more work with more potential dangers. It was also more expensive. The claimant leaving the U.S. and coming to Canada is simply not logical. [22] It is clear that the claimant was motivated to leave China; however, her motivation appears to be for purposes other than finding a country where she could control her own reproductive destiny as she has alleged. I draw a negative inference from the claimant leaving the U.S. and not claiming asylum in that country and find that it undermines her credibility. Insertion of IUD [23] The claimant indicates in her PIF narrative that she was forced to have an IUD inserted after the birth of her daughter in 1998. She also indicates that it felt very uncomfortable, caused back pain and longer menstruations. When asked why she did not use another form of contraception, the claimant said that she asked the FPO officers about contraceptive medicine or condoms but was told that it was not permitted. When asked when she inquired about this, the claimant said that it was on XXXX XXXX, 2010. When asked a second time about considering the possibility of an alternate contraception method after the birth of her daughter in 1998, the claimant once again indicated that the FPO did not allow her to have her IUD removed when she asked about it on XXXX XXXX, 2010. She indicated that her condition became severe after the IUD was inserted 40 days after her abortion on XXXX XXXX, 2010. [24] I find it highly unreasonable that the claimant would not ask the FPO officers about alternate forms of contraception immediately after suffering from the adverse effects of the IUD in 1998. I also find it highly unreasonable that the claimant would wait approximately 12 years before she asked family planning officers if she could have her IUD removed and use an alternate form of birth control. The claimant alleges that she suffered discomfort, lower back pain and longer periods of menstruation since having the IUD inserted after her daughter's birth in XXXX 1998. It would be reasonable to expect an individual, who is experiencing adverse medical reactions to an intrauterine device, to immediately approach those who demanded that she wear the device to suggest alternate means of birth control. It would be unreasonable for an individual to suffer from discomfort, pain and other anomalies, when told by a doctor that there was no medicine to remedy the conditions, and not approach, for approximately 12 years, those who could approve an alternate method. I find the claimant's unreasonable allegations further undermine her credibility. XXXX XXXX, 2010 abortion [25] The claimant maintains that during a pregnancy/IUD check-up on XXXX XXXX, 2010 it was discovered that she was pregnant and was immediately taken to hospital and forced to undergo an abortion against her will. When asked how long she remained in hospital, the claimant said that she did not know as she was not conscious. When asked to explain how she was rendered unconscious, the claimant described how two men dragged her to the operating room and she fainted as she was struggling. When asked if she was conscious when she left the hospital, the claimant said that two men helped her out of the operating room, they gave her back her phone and she called her husband. She went on to say that half an hour later her husband arrived and took her home. When asked how long she had been in hospital, the claimant said she had been there for one hour. When asked why she had indicated earlier that she did not know how long she had been in hospital, the claimant indicated that she did know if the question concerned how long she had been unconscious or how long she was waiting to go home. [26] I reject the claimant's explanation regarding the above-noted inconsistency. It would be reasonable to expect a hospital patient to know how long they had been in hospital, even if the person was unconscious for a period of their stay. One only has to remember when they entered and when they exited the hospital which the claimant recalls in this case. If the claimant was unclear of the initial question regarding how long she remained in hospital, she could have asked. She did not ask. The claimant was instructed at the outset of the hearing that if a question was unclear, she was to say so and the question would be rephrased. She was instructed to say she did not know the answer to any questions she did not know the answers to. The claimant only indicated that she was in hospital for one hour after realizing that she had testified as to knowing when she entered the hospital and when she exited. It would be reasonable to expect her to know this before the question was asked. [27] If this event actually occurred as the claimant has alleged, I would expect that the claimant's testimony regarding the timelines of the event would be consistent. The fact that she testified that she did not know how long she remained in hospital and then gave significant detail about her experience in hospital, including how long she was there for, further damages her credibility. Forced abortion [28] As noted above, the claimant has alleged that family planning officers forcibly took her to a hospital and performed an abortion against her will. Country documents tell me that forced abortion is illegal in China. Although forced abortion is not unheard of in China, country documents further state that citizens who have unauthorized children are required to pay a fine known as the social maintenance fee. Chinese officials are reported to use coercion to enforce compliance with the one child policy. They also enforce the policy through the use of group benefits and rewards so that the subject's work group or village would be affected thereby causing pressure on the woman to have an abortion.9 [29] The claimant testified that she did not sign a consent form for the abortion. Documentary evidence indicates that women are required to sign an "informed consent" form before having an abortion.10 It is reported that not until social compensation fees and intense psychological and social pressure have proven insufficient to compel a women to have an abortion that forced abortion is resorted to. Reports of such actions by Chinese officials are declining.11 [30] The documentary evidence noted above is significant to this case as the claimant has alleged that she was subjected to undergo a forced abortion at the very moment family planning officials discovered she was pregnant. This alleged action is not consistent with the country documents which state that forced abortion is rare and only resorted to when other less drastic methods and techniques have proven ineffective. Based on the evidence before me, I do not think it is reasonable to conclude that initially the Chinese officials would not follow a less oppressive approach in the first instance which the country documents state is the manner with which such situations are handled. In light of the evidence before me, I do not find the claimant's account of being forced to undergo an abortion to be credible. XXXX 2011 medical diagnosis [31] The claimant maintains that, in XXXX 2011, she was diagnosed with a fiber tumour in her uterus and an infection in the area her IUD was located. Her doctor strongly suggested that her IUD be removed but the FPO officers refused to allow it. The claimant presented a medical booklet document as corroborating evidence.12 A handwritten entry dated XXXX XXXX, 2011 indicates that an ultrasound showed there was a fiber tumour in the uterus and infection in the area where the IUD was placed. However, entries dated XXXX XXXX, 2011 and XXXX XXXX, 2011 make no reference to a fiber tumour in the uterus or infection in the IUD area. When asked to explain why there is no further mention of these diagnoses in the subsequent medical entries, the claimant indicated that she had been prescribed medication and the medication noted in the subsequent medical notes was for the same therapy. [32] I reject the claimant's explanation regarding the absence of references to the XXXX XXXX, 2011 diagnoses in subsequent medical notes. It would be reasonable to expect medical professionals to make references to initial medical diagnoses in subsequent medical entries regarding a patient's care until the ailments or condition are no longer issues. The claimant indicated at the hearing that she continued to suffer from the fiber tumour in her uterus. It is unreasonable for a medical doctor to diagnose significant sicknesses, ailments, diseases or disorders, such as tumours and infections, and not address them in medical notes following the initial diagnoses. It makes the medical information inaccurate. Inaccurate medical information is not the hallmark of genuine documents and damages its evidentiary value. I give little weight to this document and find that it undermines the claimant's credibility with respect to her medical issues. Hospital record [33] The claimant maintains that, on XXXX XXXX, 2010, she was taken to hospital by family planning officials where the foetus she was carrying was forcibly aborted. She testified that she was given a statement from the hospital after the abortion. The claimant provided a diagnosis certificate from the Guangdong Province Maternal and Child Care Hospital that states "Diagnosis result: abortion" and "Suggestion: take 15 days rest".13 This evidence is in contrast to the country documents regarding hospital admittance and discharge in China. [34] Being admitted to hospital is not the standard procedure for abortions in China. There is no additional information on the diagnosis certificate provided by the claimant to explain why she required hospitalization. Country documents state that patients with less serious illnesses can go to medical clinics or hospitals for diagnosis and treatment; in these cases, medical clinics and hospitals issue booklets to patients to record the nature of the illness and the recommended treatment. When illnesses are more serious, individuals are admitted to hospital for diagnosis and treatment, and, in these cases, the medical records are very detailed and include information on symptoms, physical exams, diagnosis and treatment. When patients are discharged from hospital they receive a summary report, which usually outlines the patient's symptoms, diagnosis, and treatment. The original summary report is automatically given to the patients while the hospital retains a copy.14 The document submitted by the claimant is a diagnosis certificate from a hospital. She testified that the diagnosis certificate is the only document she received from the hospital. In this case, I would expect that the claimant would have been supplied a booklet recording the nature of the illness and the recommended treatment or the more detailed report that country documents tell me are routinely issued upon discharge of hospitalized patients. Fine notice [35] The claimant provided a notice from the Birth Control Office of a district in Guangzhou City.15 The document indicates that the claimant refused to attend an IUD check-up appointment without valid reasons. It also indicates that if she was found to be pregnant after verification, she must proceed to have an abortion and then a sterilization operation. I find these statements to be significant in that this exhibit documents an illegal activity conducted by family planning officials. Chinese Family Planning Law states that government officials will be held criminally responsible for any violation of the law.16 I do not find it reasonable that if the claimant was forced to undergo an abortion or sterilization, illegal actions in China, that the perpetrators would document their illegal actions thereby exposing themselves to criminal prosecution. [36] The lack of credible documentary corroborating evidence regarding the alleged hospitalization of the claimant, the inconsistency in the manner the country documents say hospital reports are issued, the documentation of illegal activities in the notice to the claimant by government officials, and the claimant's evidence that the Chinese officials resorted to forced abortion as a matter of first choice rather than making attempts to pressure her into having an abortion as the country documents state is the preferred course of action, cause me to question the claimant's evidence. I therefore place little weight on her evidence regarding being forced to undergo an abortion and, later, sterilization. Travel on own passport [37] The claimant testified that she traveled on her own authentic passport from China to the U.S. When asked how she was able to leave China considering that she was wanted by the FPO, she said that she asked the snakehead to arrange it. Country documents17 state that the Public Security Bureau (PSB) have established a national policing database, which includes "criminal fugitive information" and "information on passports and exit and entry." In a XXXX XXXX, 2009 correspondence with the Research Directorate,18 a counsellor at the Embassy of the People's Republic of China in Ottawa provided the following information on Public Security Bureau (PSB) information sharing: The national computer network of policing is called the Golden Shield Project. The Project has eight databases:(1). Population information, mainly the information on the citizen ID; (2). Criminal record information; (3). Criminal fugitive information; (4). Information on stolen and robbed cars; (5). Information on passports and exit and entry; (6). Information on registered cars and drivers; (7). Information on police officers; (8). Information on key fire-prevention units. Now all police departments at the county level and above (namely police departments at provincial, city and county levels) and most police stations and other grass-roots units (namely police under the county level) can connect to the system. Some small police stations and grass-roots units in remote areas cannot connect to the system. Chinese police are in charge of exit and entry administration. Just like Canada Border Services Agency (CBSA), in all ports of entry including international airports there are police units in charge of examination and they can connect to the system. A researcher stated the following in correspondence with the Research Directorate: China's Public Security Departments absolutely do have nationwide computer information sharing networks, and have been working hard to develop and expand those for at least a decade. It also includes monitoring phone conversations with advanced speech recognition technology, and monitoring citizens' movement through a vast network of surveillance cameras, equipped with face recognition technology. [38] The claimant testified that FPO officers went to her house between eight to ten times in search of her. She also indicated that they went to her mother's house six to seven times. The claimant testified that the last time FPO officers went to her house was in XXXX 2013. Given the FPO's alleged interest in the claimant, it would appear unlikely that the claimant would have been able to leave China without being detected. I acknowledge that the documentation states, in part, that, in some instances, there have been reports of police not sharing information. However, given the alleged relentless pursuit of the claimant by the FPO, it is reasonable to expect that the claimant's name would have been entered into the database as persons wanted by the authorities, and, as such, she would not have been able to exit the country. The claimant alleges that she asked the smuggler to arrange her undetected exit from China; however, she provided no credible evidence to indicate how he did this. Counsel submitted that the smuggler would only have to bribe one official; however, no credible evidence was presented to indicate that this was done. [39] I draw a negative inference from the claimant's ability to exit China on her own passport given the alleged heightened interest that the Family Planning Office had in the claimant, their efforts to locate her and the ability of the authorities to identify her when she departed China. If the claimant returns to China and becomes pregnant [40] The country documents give me little guidance on what the claimant could reasonably expect should she return to China and become pregnant. They do state that the National Population and Family Planning Commission issued a directive in the summer of 2012 to all family planning committees prohibiting forced abortion and sterilization.19 This suggests that forced abortions have taken place, otherwise there would have been no reason for the directive. On the other hand, it is also clearly prohibiting this type of action. [41] Central to this portion of the analysis is determining when and under what circumstances the social maintenance fee would be applied and when and if officials would resort to forced abortion. One possible indicator is the finding of the China Human Rights Defender organization that states that a small yet growing middle class are able to buy their way out of the one child policy.20 [42] They also state that sources report that local authorities occasionally launch campaigns to crack down on or prevent non-compliance with family planning policy. These campaigns are sometimes known as spring family planning service activities which are designed to take advantage of the spring festival season when migrant workers return home to visit family.21 This claimant is not a migrant worker and was employed as a machine operator with a refrigerator and air conditioner compressor company. Her husband was employed as an equipment maintenance worker with a railway company. The claimant was able to raise a considerable amount of money to allow her to pay an agent and to buy a visa for the U.S. She also raised enough money to pay for her travel to the U.S. and then Canada. [43] This claimant does not fit into the category that country documents appear to suggest would be at higher risk to be subjected to draconian treatment by Chinese authorities. I find that there is less than a reasonable chance that she would be subjected to forced abortion or sterilization if she returned to China and if she became pregnant. I rather find that if she returned to China and if she was to become pregnant that she would be subjected to a social maintenance fee. The Federal Court has found that economic sanctions, as a means to enforce compliance with the law, do not amount to persecution.22 [44] To be a Convention refugee or a person in need of protection, the claimant would have had to show that there was a serious possibility that she would be subjected to persecution or that she would be subjected, on a balance of probabilities, to a danger of torture, a risk to her life, or a risk of cruel and unusual treatment or punishment, if removed to China. In this case, I have found the allegations of the claimant regarding being forced to undergo an abortion not to be credible. Country documents lead me to I find that, in the claimant's particular set of circumstances, if she were to return to China and have another child, that she would, at worse, be subjected to social maintenance fees and at best would not be subjected to any sanctions at all. [45] As a cumulative result of the above-noted anomalies, I find that the claimant lacks credibility. I do not accept, on a balance of probabilities, that the events, as described by the claimant in her PIF narrative and at the hearing, occurred as described. Specifically, I do not accept that the claimant was forced to have an abortion on XXXX XXXX, 2010 or that she faced forced sterilization. I also find the claimant's evidence lacking in credibility with respect to the events material to her refugee claim. Therefore, I find that there is not a serious possibility of persecution should she return to China. I therefore conclude that the claimant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons, I find that the claimant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [46] I determine that the claimant is neither a Convention refugee nor a person in need of protection. The Refugee Protection Division therefore rejects her claim. (signed) 'M. Pettinella' M. Pettinella November 19, 2013 Date 1 As enacted by S.C. 2001, c. 27. 2 Exhibits R/A-2 and C-3. 3 Exhibits C-1 and C-4. 4 Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689. 5 Canada (Minister of Citizenship and Immigrantion) v. Alvarez Contreras et al [2009-04-23] IMM-4087-08 2009 FC 398. 6Ortiz Garzon v. Canada (Citizenship and Immigration) 2011 FC 299 Date: March 11, 2011p.7. 7 Goltsberg V. M.C.I. (F.C., IMM-117-10), 2010, FC 886 and Gamassi, Hichem v. M.C.I. (F.C.T.D. IMM-5488-9), Pinard, November 10, 2000. 8 Gomez Bedoya, Dreny Amparo v. M.C.I. (F.C., no. IMM-4646-06, de Montigny, May 10, 2007; 2007 FC 505. 9 Exhibit R/A-1, National Documentation Package (NDP) for China (May 3, 2013), item 5.5, Response to Information Request CHN104185.E. 10 Exhibit R/A-1, item 5.6, Response to Information Request CHN103205.E 11 Exhibit R/A-1, item 5.10. 12 Exhibit C-3, item 12. 13 Exhibit C-3, item 4. 14 Exhibit R/A-1, item 3.3. 15 Exhibit C-3, item 8. 16 Exhibit R/A-1, item 5.11. 17 Exhibit R/A-1, item 10.2, Response to Information Request CHN102485.E 18 Exhibit R/A-1, item 2.3. 19 Exhibit R/A-1, item 5.5. 20 Exhibit R/A-1, item 5.1, Response to Information Request CHN103033.E 21 Exhibit R/A-1, item 5.5. 22 Li, Mei Yun v. M.C.I. (F.C., IMM-3375-10) May 25, 2011; 2011 F.C. 610. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (May 18, 2010) Disponible en français RPD.15.7 (May 18, 2010) Disponible en français RPD File No. / N° de dossier de la SPR : TB1-20518 RPD File No. :TB1-20518