Date: 20030917
Docket: IMM-2435-03
Citation: 2003 FC 1077
BETWEEN:
HAN JUN YANG, YU JIN SU,
HUI TING YANG and JU PENG YANG
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicants not to be Convention refugees and not to be persons in need of protection. The decision of the RPD is dated the 13th of March 2003.
[2] The Applicants seek a declaration that the RPD's determination that they are not Convention refugees and not persons in need of protection is invalid and an order quashing the decision and referring the Applicants' application back to the Immigration and Refugee Board for redetermination in accordance with such directions as this Court considers appropriate and consistent with its reasons. The Respondent urges that the application for judicial review be dismissed.
BACKGROUND
[3] The Applicants are husband and wife and their son and daughter. They are citizens of the People's Republic of China. Han Jun Yang (the "Principal Applicant") and his wife Yu Jin Su offended against China's population control policies by having two children only two years apart. In the result, they were required to pay a fine to register the younger child, their daughter, in their household registration. Additionally, Yu Jin Su was required to take precautions against a further conception. When the required precautions resulted in pain, she was advised that she would have to accept sterilization. She was able to avoid sterilization by the simple means of going into hiding each time authorities called at the family home.
[4] In 1991, the Principal Applicant emigrated, apparently legally, to Argentina. In 1993, the rest of the family joined him in Argentina, once again, apparently openly and in compliance with law.
[5] Commencing in 1998, the Applicants were subjected to robbery with violence on five occasions while working and operating a restaurant in Argentina. In the result, they left Argentina and travelled to Canada where they claimed Convention refugee status. Since all four claimants are over the age of 18, their claims were determined separately, notwithstanding that they were heard together.
[6] The Principal Applicant and his wife fear persecution if required to return to China for violation of the family planning, or population control, policies. The Principal Applicant's wife fears that she will still face forced sterilization. Additionally, the Principal Applicant and his wife did not fully pay the fine that was imposed on them and they fear they would be required to pay at least the balance. The family expresses fear that the daughter will face discrimination in education and employment as a child born in violation of the family planning policies. The family also expresses concern that, since their household registration was cancelled when they left China, if required to return, no land would be assigned to them, no household registration would be provided to them and they would thus be unable to earn a living.
[7] The Applicants fear discrimination and renewed robbery and violence if required to return to Argentina. Since the Applicants' claim against the People's Republic of China was rejected by the RPD, their claim against Argentina was not considered and therefore will not be addressed further in these reasons.
THE DECISION UNDER REVIEW
[8] The RPD's analysis with respect to the Principal Applicant and his wife is in the following terms:
I find there is less than a serious possibility the family planning authorities in China will require either of these claimants to submit to sterilization if they return to China. When Mr. Yang was in China previously, the family planning authorities wanted to sterilize his wife and she was the one who had to go into hiding. When the authorities were unable to find her, there is no evidence they wanted Mr. Yang for sterilization. As there is no evidence the family planning authorities ever considered Mr. Yang for sterilization in the past, I find there is less than a serious possibility they will want to sterilize him if he returns to China.
Further, I find it is speculative that Ms. Su will face forced sterilization if she returns to China. While the enforcement of family planning goals has become stricter in many areas of China, forced abortion and forced sterilization are contrary to official government policy. However, some areas continue to use those practices. Other areas do not. Since these two claimants no longer have their rural household registration, they will need to select an area to move to in China, and they can choose to avoid areas where local family planning officials use forced sterilization. Further, Ms. Su is now 48 years old and last had a child twenty years ago. I find it very unlikely she would attract the attention of the family planning authorities now, for an improperly spaced birth twenty years ago. Ms. Su says she was advised by a person at the health department in their former Township that she would need to submit to sterilization if she returns. I put no weight on this second-hand information, by someone from one township in China. There is no evidence the claimants are required to return to that township. Ms. Su has shown no intention of having any more children and has avoided pregnancy since the birth of her second child in 1983. Given that forced sterilization is contrary to central government policy, I find there is less than a serious possibility a local family planning authority would target a 48-year-old woman, who has not had a child in twenty years, for forced sterilization. I find it is mere speculation that Ms. Su will face forced sterilization if she returns to China.
Further, I find the fact that these two claimants no longer have a household registration or an allotment of land and are not sure how they will earn their living is not persecution nor cruel and unusual punishment or treatment. Mr. Yang left China twelve years ago and Ms. Su left ten years ago. They lived in Argentina by running a business. There are many people in China who have no allotment of land. They work in other parts of the public and private economy. There is no evidence that Mr. Yang and Ms. Su would not be allowed to seek employment in the public or private sectors in China. There is no evidence that they could not become rural residents again and obtain a new allotment of land. In fact, there is no evidence they cannot return to their former village, except their household registration there was cancelled. However, there is no evidence they cannot apply to get a new household registration there. I find it is mere speculation that these two claimants will be unable to earn a living in China. They are citizens of China and are entitled to live and work there. I find it is not persecution, or cruel and unusual punishment or treatment, or a risk to their lives if they must start again in China, either by trying to obtain a new allotment of land or by looking for employment and housing in a non-agricultural setting as they did in Argentina.
Finally, I find it is not persecution nor serious harm if these two claimants must still pay off their previous fine. In their Personal Information Forms, the claimants say they still owe 2000 Yuan, which I find is a modest sum. At the hearing, Mr. Yang said they owe 5000 Yuan as the 3000 they paid earlier may have been a bribe and not a partial payment. They produced a recent notice that says they did not pay off the 5000 Yuan. However, that notice does not set out how much money they owe or if there are any consequences other than paying off the outstanding amount. There is no evidence the claimants owe more than either 2000 or 5000 Yuan. I find this amount of debt is not persecutory nor cruel and unusual punishment or treatment. The claimants spent more money than that travelling to Canada.
In summary, based on the evidence I find there is less than a serious possibility either Mr. Yang or Ms. Su will face persecution in China, or face cruel and unusual punishment or treatment, or a risk to their lives, or a danger of torture if they return to China.
[Emphasis added, citations omitted]
[9] The claims of the Principal Applicant's and his wife's children were disposed of more summarily, partially in light of the analysis and determination with respect to their parents. While the analysis and determination with respect to the Principal Applicant and his wife were challenged before me, the determinations with respect to their children were essentially not in dispute except as those determinations were impacted by the determinations with respect to their parents.
THE ISSUES
[10] In the Applicants' memorandum of law, the issues on this application for judicial review are described in essentially the following terms: first, has the RPD misstated the documentary evidence, failed to place the evidence in context, or failed to consider relevant evidence or ignored it to omission such that it can be said the RPD has failed to observe principles of fairness and thus erred in law; and, secondly, has the RPD erred in its appreciation of persecution as it relates to the ability of these Applicants to obtain employment in China due to unpaid fines or fines likely due.
ANALYSIS
[11] It is to be noted that, in the portion of the decision of the RPD that is quoted earlier in these reasons, the phrase "there is no evidence" is used seven times. Counsel for the Applicants urged that, in the third quoted paragraph where the phrase is used four times, it's usage is simply incorrect regarding the ability of the Applicants to become rural residents again and obtain a new allotment of land, regarding return to their former village and regarding obtaining a new household registration in that village. Further, counsel urged, there was evidence before the RPD that, save in the underground market, the Principal Applicant would have great difficulty obtaining employment, whether in the public or private sector in China, without a household registration or an allotment of land. Counsel urges that the RPD in effect ignored evidence before it that was specific to the very circumstances of the Principal Applicant and his wife.
[12] In the portion of the RPD's reasons earlier quoted, the following findings of fact are made either explicitly or implicitly. First, that if the Applicants are required to return to China, they will be able to select an area of the country in which to resettle; secondly, that the Principal Applicant would not only be allowed to seek employment but would likely be successful in such a search; thirdly, that the Applicants could again become rural residents and obtain a new allotment of land; and finally, that the Applicants could return to their former village and get a new household registration there. No evidence is cited to support any of these findings. Evidence that might cast doubt on their validity is either ignored or is said not to exist on the record that was before the RPD.
[13] In the oft-quoted decision of Justice Evans, then of the Trial Division of the Federal Court of Canada, Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration), Justice Evans noted the deference due by this court to findings of fact made by tribunals such as the RPD. He wrote at paragraph 14 of his reasons:
...in order to attract judicial intervention under s. 18.14)(d) [of the Federal Court Act] the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence"...
[14] I am satisfied that certain of the findings of fact, explicit or implied, to which I have just referred, were, on the record before the RPD "palpably erroneous" in the absence of any analysis whatsoever of the evidence on the record, some of which derived from personal experience of a person directly related to the Applicants. On a thoroughgoing analysis of the evidence, it might conceivably have been open to the RPD to conclude that the Applicants, if required to return to the People's Republic of China, could choose the location in that vast country where they wished to resettle, could obtain a household registration or an allotment of land in an area where the Principal Applicant's wife would not risk being required to undergo sterilization, and could obtain meaningful employment. But in the absence of such an analysis, I conclude that the RPD's factual conclusions that underlie its decision simply were not open to it. In the words of Justice Evans, they were made "without regard to the evidence".
CONCLUSION
[15] Based upon the foregoing brief analysis, I am satisfied that the decision under review must be set aside and the Applicants' application must be returned to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel. An Order will go accordingly. When consulted at the close of the hearing, neither counsel recommended certification of a question. I am satisfied that no serious question of general importance arises out of this matter. In the result, no question will be certified.
(Sgd.) "Frederick E. Gibson"
Judge
Vancouver, BC
September 17, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2435-03
STYLE OF CAUSE: HAN JUN YANG, YU JIN SU,
HUI TING YANG, and JU PENG YANG
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: September 16, 2003
REASONS FOR ORDER: GIBSON, J.
DATED: September 17, 2003
APPEARANCES:
Mr. Robert J. Kincaid for APPLICANT
Ms. Helen Park for RESPONDENT
SOLICITORS OF RECORD:
Robert J. Kincaid Law Corporation for RESPONDENT
Vancouver, B.C.
Morris Rosenberg for APPLICANT
Deputy Attorney General of Canada
See, for example, para. 12 of the Principal Applicant's response to question 37 in his Personal Information Form, pages 30 and 31, Volume 1 of the Applicants' Application Record
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