Chen v. Canada (Minister of Citizenship and Immigration), 2015 FC 225

• Judge: Rennie, J.
• Court: Federal Court (Canada)
• Case Date: January 15, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 225;(2015), 476 F.T.R. 110 (FC)

Chen v. Can. (M.C.I.) (2015), 476 F.T.R. 110 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.070

Li Xing Chen (a.k.a. Li Xin Chen)

(applicant) v. Minister of Citizenship and Immigration (respondent)

(IMM-8158-13; 2015 FC 225)

Indexed As: Chen v. Canada (Minister of Citizenship and Immigration)

Federal Court

Rennie, J.

February 19, 2015.

Summary:

The applicant was a citizen of China. After she became pregnant with her second child, she fled China and made a claim for refugee protection in Canada. The Refugee Protection Division of the Immigration and Refugee Board of Canada found that the applicant was neither a Convention refugee nor a person in need of protection pursuant to ss. 96 and 97 of the Immigration and Refugee Protection Act. The applicant applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The applicant was a citizen of China - After she became pregnant with her second child, she fled China and made a claim for refugee protection in Canada - The Refugee Protection Division of the Immigration and Refugee Board of Canada dismissed the applicant's claim, primarily on the grounds that she was not credible and would not face persecution if returned to Fujian province on account of her violation of the Family Planning Policy - The applicant applied for judicial review - The Federal Court dismissed the application - The Board conflated plausibility with credibility findings and did not precisely elaborate on the reasons why it considered the visits of the Public Safety Bureau to the applicant's home to be implausible - However, having regard to the record and the reasons, it was readily apparent why the Board made the decision that it did - The outcome, and the reasoning by which it was reached, was both intelligible and transparent - The risk of persecution was assessed prospectively - Here, the applicant fled a risk of abortion - She had had the child and the fear that precipitated her flight had evaporated - Although the applicant said that she and her husband still feared a risk of forced sterilization, that risk was speculative - The Board found that a fine rather than forced sterilization or other harm was more likely than not the kind of penalty that the applicant would face - The Board's findings with respect to this issue were open to it on the face of the record before it - Moreover, there was a long line of jurisprudence to the effect that the fine or '"social compensation fee" charged to families that had more than one child was not persecution within the meaning of the Convention - See paragraphs 13 to 26.

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and person in need of protection - Credible basis for claim - [See Aliens - Topic 1322 ].

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and person in need of protection - Credible basis for claim - The Federal Court stated that "Plausibility findings should only be made in the clearest of cases, such as when the applicant's testimony is outside of the realm of what could reasonably be expected or when the documentary evidence demonstrates that the events could not have taken place as alleged. Plausibility findings are predicated on a conclusion that the description of events is so unusual or beyond the scope of common experience and common sense that they are disbelieved. Plausibility findings are contrasted with findings predicated on inconsistency within the applicant's own testimony, between the applicant's testimony and other documents, material omissions, the lack of precision in testimony or the absence of documentation where documents or corroborative evidence might normally be anticipated. Caution must be exercised when rejecting evidence on the basis of plausibility ... There are two reasons for this. First, it is inherently subjective. Second, ... 'Refugee claimants come from diverse backgrounds and the events described in their testimony are often far removed from the ordinary life experience of Canadians. What appears implausible from a Canadian perspective may be ordinary or expected in other countries'" - See paragraphs 14 to 15.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See Aliens - Topic 1322 ].

Cases Noticed:

Valtchev v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R. 267; 2001 FCT 776, refd to. [para. 15].

Ndjavera v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 198; 2013 FC 452 , refd to. [para. 15].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 22].

Huang v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 176;  2011 FC 288, refd to. [para. 25].

Wang et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 385; 2011 FC 636, refd to. [para. 26].

Counsel:

Micheal Korman, for the applicant;

Prathima Prashad, for the respondent.

Solicitors of Record:

Otis & Korman, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on January 15, 2015, at Toronto, Ontario, before Rennie, J., of the Federal Court, who delivered the following judgment on February 19, 2015.