Date: 20090330
Docket: IMM-3121-08
Citation: 2009 FC 327
Ottawa, Ontario, March 30,
2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
JIN
XIA ZHENG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Jin Xia Zheng in connection
with the refusal by the Refugee Protection Division of the Immigration and
Refugee Board (Board) to grant her refugee status. This is Ms. Zheng’s second
application following on an earlier proceeding in this Court where Justice
Eleanor Dawson set aside the Board’s first decision because its plausibility
findings were found to be patently unreasonable: see Zheng v. Canada (Minister
of Citizenship and Immigration), 2007 FC 974.
I.
Background
[2]
Ms.
Zheng claimed that she had been a bookseller in China and that she
had sold Falun Gong material. She testified that after the ban on Falun Gong
publications took effect in 1999 she placed the offending stock in a corner of
her shop to avoid its detection. Nevertheless, in 2005 government inspectors
found the material and she was fined. Later that year she said that she became
pregnant by her boyfriend. When they attempted to obtain permission from the
local authorities to marry she admitted to being pregnant. According to Ms.
Zheng this caused the authorities to immediately attempt to induce an abortion
by forcibly requiring her to ingest medication. She said that this procedure
was repeated the next day and it led to an abortion. She also claimed that she
was then told that she would be required to accept an intrauterine device (IUD)
and to submit to a Falun Gong re-education program. Ms. Zheng was not compliant
with these demands which led, in turn, to a confrontation with the local
authorities and to the threat of sterilization. It was at that point and with
the help of her parents that she came to Canada.
The Board Decision
[3]
The
Board accepted very little of Ms. Zheng’s risk narrative and it found her not
to be credible. This credibility conclusion was not based on internal
inconsistencies in Ms. Zheng’s testimony but instead arose from the Board’s
belief that most of her testimony was implausible or improbable.
[4]
The
only aspect of the Board’s decision that is material to this application is its
treatment of the evidence concerning Ms. Zheng’s pregnancy, her abortion and
her allegation that she was ordered to accept an IUD. That part of the decision
was as follows:
The panel has found that the claimant’s
testimony regarding the Falun Gong incident is not credible and that the
incident did not take place. The panel has further found that the claimant’s
testimony concerning the alleged forced abortion is not credible. The claimant
disclosed a summons from the Public Security Bureau (PSB) dated May 25, 2005,
requiring her to appear because she supported an evil cult and violated the
Family Planning Policy. It was in response to this summons that the claimant
decided to leave China.
There are some problems with this notice.
There is no mention of Falun Gong. The term ‘cult’ is used by the Chinese
government to describe a number of organizations and Falun Gong is generally
specifically noted in such documents. In addition, the demand that the claimant
wear an IUD was made by family planning officials. There is, however, no
document from family planning officials regarding the claimant’s failure to do
so. The claimant alleged that family planning officials told her on April 20,
2005, to appear for an IUD insertion in a month. No specific date was noted in
her testimony. There does not appear to be any reason for a PSB summons to be
issued on May 25, 2005. These problems with the document raise a doubt
regarding its authenticity.
Even if the claimant’s testimony and
narrative concerning the abortion were true and even if the summons is an
authentic document, there remains no clear basis for a claim for refugee
protection based on possible future risk of persecution. The claimant testified
and noted in her PIF that family planning officials threatened sterilization if
she did not wear an IUD and take the Falun Gong training course. However, there
is no documentary evidence to support the claimant’s assertion that this threat
was made. As well, there is no mention of sterilization threat in the summons.
When the claimant was asked why she feared being returned to China, she testified that she feared being
required to wear an IUD and being forced to take a Falun Gong training course.
There was no mention of the sterilization threat. Finally, there is, in this
regard, no documentary evidence known to the panel that indicates that an
unmarried woman without children would be sterilized because she refused to
wear an IUD and refused to take a training course regarding alleged Falun Gong
activity. The panel finds, on a balance of probabilities and in the context of
findings noted above, that no threat of sterilization was made by either agents
of the PSB or the local family planning agency.
With regard to the requirement to wear an
IUD, the panel has noted that this is a law of general application for women of
child bearing age. Although it is clearly problematic, the panel finds that it
does not rise to the level of persecution as prescribed under section 96 and
subsection 97(1) of the Immigration and Refugee Protection Act. With
regard to the requirement to take a Falun Gong training course, this is clearly
a form of harassment and not persecution.
[Footnotes omitted]
II. Issues
[5]
(a) Did
the Board draw an unreasonable credibility conclusion?
(b) Did
the Board err in law in finding that the obligation to submit to the use of an
IUD does not constitute persecution under s. 96 of the Immigration and
Refugee Protection Act, S.C. 2001, c.27 (IRPA)?
III. Analysis
[6]
The
determinative issue in this application is whether the Board erred in law in
finding the forced use of an IUD does not constitute persecution. Errors of law
of this sort are to be reviewed on a standard of correctness: see Sketchley
v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392.
[7]
The
Board’s credibility analysis is, in some aspects, rather strained. For
instance, the Board expressed concern about Ms. Zheng’s failure to lie to the
authorities about her pregnancy. It seems to me that a person’s unwillingness
to lie to the authorities is hardly a sound basis for questioning her
credibility. At the same time the Board expressed some concern about Ms.
Zheng’s unwillingness to submit to an IUD pointing out that this was a law of
general application not directed particularly at her. It is somewhat
inconsistent to fault Ms. Zheng for failing to mislead the authorities about
her pregnancy only to later criticize her for refusing to obey their demands
concerning the use of an IUD.
[8]
Ms.
Zheng offered an entirely reasonable explanation for refusing to use an IUD as
can be seen from the following testimony:
Q. Did you wear
the IUD?
A. No.
Q. Why not?
A. I didn’t want
to.
Q. But the law
said you had to.
Why not?
A. I was not
willing to.
Q. Sorry?
A. I
was not willing to do the insertion.
This is a
torture to me. I don’t want to have this kind of stuff in my body. I can’t
accept this fact physiologically. To insert - - the insertion of IUD, and
getting married, and giving birth is something that should be decided by
myself, and that’s my own choice.
In western
countries, everybody has this right to choose. I’m a human being. Why not that
I could have this kind of freedom, and my body is my own and this is a basic
freedom. I didn’t ask for more.
Why should I
do something that is against my own will?
Q. Countries
have laws and they often require people to do things they would rather not do.
This was a law of general application in regard to women of child bearing age
in China. It was not
directed personally at you.
[9]
It
was disingenuous for the Board to dismiss this testimony and to question Ms.
Zheng’s credibility about her refusal to use an IUD on the ground that such a
requirement was not particularly directed toward her. From the perspective of
Ms. Zheng this procedure was directed at her and it would provide no comfort
that many others might be facing the same predicament. The Board’s analysis
reflects a troubling lack of sensitivity on this issue apparently driven by its
view that the state’s forcible insertion of an IUD is not persecutory conduct.
[10]
The
Respondent took no particular position concerning the Board’s IUD conclusion arguing
instead that it was an alternative finding and that Ms. Zheng’s evidence about the
IUD risk was also not believed. I do not accept that characterization of the
decision.
[11]
It
is clear that the Board did not accept Ms. Zheng’s story about the
circumstances of the abortion including her claim that she was threatened with
sterilization. But there is nothing in the decision which suggests that the
Board did not accept her testimony that she had been pregnant, that the
pregnancy had been terminated and that she was ordered to submit to an IUD.
Indeed, the Board must have accepted the fact of Ms. Zheng’s pregnancy because it
had stipulated in its questioning of her that she had been subjected to an
abortion.
This also explains why the Board found it unnecessary to comment on the
ultrasound report.
[12]
Having
accepted the fact of an abortion it would have been helpful for the Board to
have determined the extent, if any, of the state’s involvement in that process
and whether the demand for an IUD was one of the resulting consequences. It
appears to me that the Board found it unnecessary to close that evidentiary
loop by its finding that the forcible insertion of an IUD does not, in any
event, amount to state persecution.
[13]
The
Board’s finding that the requirement to use an IUD is not persecutory because
it arises from a law of general application for women of child bearing age,
represents an over-simplification of the applicable legal principles and is an
error of law. The issue of persecution arising from state interference with a
woman’s right to reproductive choice cannot be reduced to the simple
determinant of whether that interference is supported by a law of general
application. That the state is able to legislate in the area of family planning
and population control is not the issue. It is the means by which the state’s
objectives are achieved that must be critically examined. The more coercive or
physically intrusive the approach the more likely it is that the state’s
conduct will be seen to be persecutory. This point was clearly made as long ago
as 1993 by the Federal Court of Appeal in Cheung v. Canada (Minister of
Employment and Immigration), [1993] 2 F.C. 314, 102 D.L.R. (4th) 214 where
Justice Linden made the following observation with respect to the Chinese
practise of sterilization:
Even if forced sterilization were
accepted as a law of general application, that fact would not necessarily prevent
a claim to Convention refugee status. Under certain circumstances, the
operation of a law of general applicant [sic] can constitute persecution.
In Padilla v. M.E.I., [1991] 13 Imm. L.R. (2d) 1 (F.C.A.), the Court
held that even where there is a law of general application, that law may be
applied in such a way as to be persecutory. In Padilla, the Court ruled
that a Board must consider extra-judicial penalties which might be imposed.
Similarly, in our case, the appellant’s fear is not simply that she may be
exposed to the economic penalties authorized by China’s one child policy. That may well be
acceptable. Rather, the appellant, in this case, genuinely fears forced
sterilization; her fear extends beyond the consequences of the law of general
application to include extraordinary treatment in her case that does not
normally flow from that law (Re I. (R.R.), [1992] C.R.D.D. No. 87).
Furthermore, if the punishment or treatment under a law of general application
is so Draconian as to be completely disproportionate to the objective of the law,
it may be viewed as persecutory. This is so regardless of whether the intent of
the punishment or treatment is persecution. Cloaking persecution with a veneer
of legality does not render it less persecutory. Brutality in furtherance of a
legitimate end is still brutality.
[14]
I
do not agree with the Board that the forcible insertion of an IUD is not a form
of state persecution. In E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388 at
para. 92 the Court held that interference with a woman’s reproductive liberty
is a basic right ranking high on our scale of values. A similar observation was
made by Justice Dolores Hansen in Chi v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 126, [2002] F.C.J. No. 186, where
she examined the Chinese practice of sterilization and the forced use of
IUD’s. My own views conform with her concluding comments at paragraph 48:
The punishment that the applicant fears
is the state-enforced suppression of her reproductive capacity. The CRDD’s
suggestion that the applicant can return to China and live as a single woman
without being targeted for sterilization or forced insertion of an IUD is an
imposition of a significant personal choice the applicant does not want to make
and fails to take into account the cultural context.
[15]
What
is left unresolved by the Board decision is whether there were alternative
administrative options available to Ms. Zheng short of a direct physical
assault on her reproductive integrity. There is country condition evidence in
the record dealing with that issue but the Board apparently declined to
consider it after finding that Ms. Zheng’s evidence that she would be forced to
submit to sterilization was not credible.
[16]
Because
the Board decision contains an error of law and must be set aside on that
basis, it is unnecessary to resolve the issue of the reasonableness of the
Board’s credibility analysis. Unfortunately this case must be remitted to the Board
for a third time.
[17]
I
will allow the Respondent 7 days to consider the issue of a certified question.
If the Respondent proposes a certified question, the Applicant will have 7 days
to respond.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be remitted
to a differently constituted panel for reconsideration on the merits and in
accordance with these reasons.
“ R. L. Barnes ”
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