Date: 19990209
Docket: IMM-1372-98
BETWEEN:
JIN XIANG YANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 [as amended] in which the applicant requests the Court to review and set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (hereinafter "the Board"), dated March 3, 1998, in which the Board found the applicant not to be a Convention refugee.
[2] The applicant is a citizen of the People's Republic of China who came to Canada in 1995 and claimed to be a refugee on the ground that he had a well-founded fear of persecution because of his political opinion. The Board found that there were serious reasons for considering that he had committed a crime against humanity, and was thus excluded from the definition of a refugee by Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, which is incorporated into the Immigration Act R.S.C., 1985, c. I-2 by a Schedule.
[3] In October 1993 the applicant had been elected to be head of his village, a position that he held until at least the end of 1994. Part of his responsibilities included the implementation in his village of China's family planning policy: more specifically, he maintained statistics on pregnancies and births which are used by the authorities for detecting women who are pregnant without a "birth permit", or who have had more than the one child permitted by the policy. He also accompanied members of the Public Security Bureau when they came to the village to arrest such women who did not "co-operate" and to take them away for forced sterilization or abortion. Although present when these arrests were made in June and December 1994, he did not himself arrest anyone prior to removal for forced sterilization or abortion.
[4] During the applicant"s tenure in office, the Public Security Bureau made approximately ten visits to the village. The applicant told the Board that he did not know that the women arrested were taken to a hospital for forced sterilization and abortion, but the Board did not find his evidence credible on this point.
[5] His claim for refugee status rested on an incident in December 1994 when a woman from the village, Ms. Lim, who was seven months pregnant, was arrested for not having a "birth permit", and was to be forcibly aborted. Being opposed to this method of enforcing the family planning policy, and feeling sympathy for this woman, he permitted her to escape, an action that caused him to go into hiding and to fear that he would be prosecuted by the authorities if he remained in China. Without determining the veracity of the applicant's claim for refugee status, the Board found that he could not be a refugee because he had been complicit in crimes against humanity contrary to Article 1F(a).
[6] There is no doubt that a person who is a willing participant in a forced sterilization or abortion cannot be a refugee by virtue of Article 1F(a). The question on which this case turns, however, is whether the Board erred when it found that the applicant's conduct made him an accomplice in this activity. It has been held that a person is not an accomplice in a crime against humanity merely by being present when it was committed, unless the individual has an "intrinsic connection" with the persecuting group; Ramirez v. Canada (Minister of Employment and Immigration) [1992] 2 F.C. 306, 317 (F.C.A.).
[7] The Board found that he had such a connection on the basis of the following facts. First, he had willingly assumed the office of village head knowing that the responsibilities of this office included overseeing the implementation of the family planning policy. Second, he had carried out these responsibilities, including accompanying members of the Public Security Bureau when they came to make arrests in the village. Third, he was aware that those who did not comply with the family planning policy, and refused to "co-operate", were liable to be subjected to forcible sterilization or abortion.
[8] The Board also rejected the applicant's contention that in assisting in the enforcement of the family planning policy he was acting under "superior orders". The Board concluded that "superior orders" that involved assisting in the arrest of women with a view to their forcible abortion or sterilization would offend the conscience of reasonable right-thinking persons, and therefore was not an available defence.
[9] For the applicant, Ms. Silcoff argued that the Board had erred in law in failing in its reasons to address and evaluate evidence that was of central importance to his refugee claim. The applicant had stated in his Personal Information Form that he had not approved of the measures taken by Chinese authorities to enforce the National Family Planning Policy and had disassociated himself from them at the earliest opportunity by allowing Ms. Lim to escape custody in December 1994. Moreover, the Board did not even mention the fact that a summons had been issued against him for facilitating the escape of persons arrested for non-compliance with the family planning policy. She argued that these facts were relevant to showing that he had no "common purpose" with those carrying out persecutorial acts, and had acted out of a fear that he would be prosecuted if he did not assist the Public Security Bureau.
[10] It does not seem to me that the applicant's mens rea is disproved by the fact that he may secretly have harboured ethical reservations about some of the activities in which he was engaged as part of his responsibilities as village head, a position that he had willingly assumed in the knowledge of what it entailed. Moreover, his release of Ms. Lim in December 1994, at the urging of her friends and relatives, during the second Public Security round-up in which he had participated in that year cannot establish his disassociation from the persecutorial acts at the earliest possible moment.
[11] In my view, the Board's decision contains no error of law and accordingly I dismiss this application for judicial review.
OTTAWA, ONTARIO John M. Evans
February 9, 1999. J.F.C.C.
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