Date: 20090723
Docket: IMM-4783-08
Citation: 2009 FC 751
Ottawa, Ontario, July 23,
2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SUISHAN HUANG
JIA HAO HUANG (a minor)
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision of the Refugee Division of the Immigration and Refugee Board
(Board), dated October 7, 2008 (Decision) refusing the Applicants’ application
to be deemed Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant and her son, Jia, are citizens of the People’s Republic of China (PRC). The
Principal Applicant was born in Guangzhou City, Guangdong Province,
PRC.
[3]
The
Applicant was married on November 28, 1995 and had her first child, a daughter,
on October 28, 1996. Shortly after the birth of her daughter, the Principal
Applicant was required to wear an IUD. After the IUD was inserted, she was
required to have a pregnancy check up to 4 times a year for the first 3-year
period. From 2000, the Principal Applicant’s pregnancy checks were reduced to twice
a year.
[4]
In
May 2002, the Principal Applicant felt sick and began to vomit and react to
food and oil smells, so she thought she might be pregnant. She confirmed that
she was pregnant using a pregnancy test purchased by her aunt. She told her
husband and they became worried because they are Buddhist and do not believe in
abortion. The Principal Applicant and her husband agreed that she should go
into hiding at her aunt’s house.
[5]
While
in hiding, birth control officers went to the Principal Applicant’s house
because she did not attend her scheduled check-up. When the birth control
officers asked the Principal Applicant’s husband where she was, the husband
told them that she was sick and had gone to a relative’s house in another
province for medical treatment and she would not be back for some time. The
birth control officers believed the husband and advised him that the Principal
Applicant should attend for a check-up as soon as she returned home.
[6]
The
Principal Applicant gave birth to Jia on January 27, 2003 while in hiding at
her aunt’s house. One month after Jia was born, the aunt found a private doctor
in the area to insert an IUD. The Principal Applicant left Jia with her aunt. She
then returned home and had her check-up at the local birth control office. She
was allowed to go, but was fined for failing to attend her IUD check-up at the
appropriate time.
[7]
On
July 20, 2006, the aunt called and told the Principal Applicant that her son
had a serious fever and was in the hospital for treatment. The aunt advised
that the birth control officers at the hospital had asked for signatures from the
Principal Applicant and her husband before treatment. However, the doctor had proceeded
with treatment because Jia required an injection right away to avoid pneumonia.
The birth control officers asked the aunt why she was with Jia and said they would
to look into the situation.
[8]
The
Principal Applicant and her husband sent the Principal Applicant’s mother to
see Jia and to bring him back after treatment. The Principal Applicant and her
husband went into hiding at the Principal Applicant’s cousin’s house.
[9]
On
July 21, 2006, two birth control officers went to the Principal Applicant’s
house looking for her and her husband. The officers told the husband’s parents
that the Principal Applicant and her husband had seriously breached the birth
control policies and had deceived the birth control officers by having a second
child. The birth control officers left a notice with the husband’s parents that
the Principal Applicant and her husband must go to the birth control office for
sterilization and must pay a 70,000 RMB fine within a week.
[10]
Less
than one week later, the birth control officers, accompanied by two police
officers, went to the Principal Applicant’s house again and left a notice with her
parents-in-law. After the Principal Applicant and her husband learned about this,
they realized they were in “big trouble.” They asked the husband’s cousin for
help. The cousin found a smuggler to take the Principal Applicant out of the
country. The Principal Applicant and the smuggler pretended to be a couple. Jia
has no legal status in China, so the Principal Applicant asked the
smuggler if she could bring him with her. The smuggler agreed.
[11]
The
Applicants arrived in Canada on August 13, 2006 by air at Pearson International Airport and filed
for refugee protection at the Etobicoke office of Citizenship and Immigration
Canada (CIC) on August 15, 2006.
[12]
The
Principal Applicant claims to have a well-founded fear of persecution at the
hands of the Communist regime in PRC and, in particular, the family planning
officials, because Jia is a second child. Jia claims to have a well-founded
fear of persecution because of his inability to obtain an education or other
social benefits. They claim to be persons in need of protection because they
would be subjected personally to a risk to their lives or to a risk of cruel
and unusual treatment or punishment, or to a danger of torture in the PRC. The
Principal Applicant is the Designated Representative of Jia.
DECISION UNDER REVIEW
[13]
The
Board held that the Applicants were not Convention refugees or persons in need
of protection.
[14]
The
Board found that, on a balance of probabilities, the Applicants do not have a
well-founded fear of persecution. It was pointed out by the Board that the law
with respect to the One-Child Policy in the province of Guangdong prohibits
forced sterilization and that a fine must be paid within a three-year period. Jia
could also be registered on the family hukou, allowing him to go to
school and obtain any other social benefits.
[15]
When
the Principal Applicant was asked why she and her husband were required to pay
a fine within one week and that one of them be sterilized (which the Board said
was against the law) the Principal Applicant stated that she did not know. The
Board cited country documentation as evidence that indicates forced
sterilizations are against the law in Guangdong province. The Principal
Applicant was also asked why the state requested that one of them must be
sterilized, but she did not know. The Board did not find the Principal Applicant’s
testimony to be plausible, since it claimed that forced sterilizations are
against the law in the province of Guangdong.
[16]
In
addition, the Board noted that the notice from the Public Security Bureau,
which the Principal Applicant claimed to have received, does not contain a
signature. It also does not have the appropriate perforation. When the
Principal Applicant was asked to explain this, she indicated that the notice
was from the local Public Security Bureau office, which is different from the
Public Security Bureau. The Board did not accept this explanation and noted
that it had seen hundreds of notices from the Public Security Bureau with signatures
and perforations.
[17]
The
Board also pointed out to the Principal Applicant that there was nothing in the
country documentation to indicate that two fines needed to be paid, and the
Principal Applicant could not provide any documentary evidence to support her
allegation with respect to the payment of two fines.
[18]
The
Board did not place any weight on the two notices provided by the Principal
Applicant with respect to the payment of fines and forced sterilization. The
Board cited country documentation that indicates a flourishing trade in
fraudulent documents, including identity documents used by refugee claimants. The
Board also noted that the fine of approximately $10,000 was cheaper than the
amount the Principal Applicant said it had cost for her and Jia to come to Canada, which was
approximately $30,000 US.
[19]
The
Board concluded that the Principal Applicant should be able to return to the PRC,
pay a fine for having a second child, and have Jia registered on the family hukou.
The Board found no serious possibility that the Applicants would be persecuted
or subjected personally to a risk to their lives or to a risk of cruel and
unusual treatment or punishment, or to a danger by any authority in the PRC. Therefore,
the Applicants were neither Convention refugees or persons in need of
protection.
ISSUES
[20]
The
Applicant submits the following issues on this application:
1)
Did
the Board err in finding that forced sterilizations are against the law in the province of
Guangdong
and in its interpretation and analysis of Information Request CHN43031.E and
Information Request CHN43165.E?
2)
Did
the Board err in not finding it plausible that family planning officials would
indicate in a notice that someone would be forced to be sterilized, since
country documentation indicates individuals could be incarcerated for breaking
the law?
STATUTORY PROVISIONS
[21]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed
by the regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle,
exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
|
STANDARD OF REVIEW
[22]
The
Respondent submits that the standard of review for this Decision is
reasonableness. When a Board’s decision is based on an assessment or weighing
of facts before it, the decision is only reviewable where it is based on an
erroneous finding of fact made in a perverse or capricious manner or without
regard to the material before it. The Board should be accorded appropriate
deference given its role as a specialized tribunal. See: Pratap v. Canada (Minister of
Citizenship and Immigration) (26 March 2008) IMM-3500-07 (F.C.)
[unpublished]. I agree with the Respondent’s submissions.
[23]
The
issues raised by the Applicant go to the Board’s credibility findings. The
allegation is that the Board based its decision upon a finding of fact that was
not supported by the evidence before it and then used that finding of fact to
make adverse credibility findings. On issues of credibility, the standard of
review has, pre-Dunsmuir, been patent unreasonableness: Hou v. Canada (Minister of Citizenship and Immigration) 2005 FC 1586
at paragraph 13 and Aguebor v. Canada (Minister of Employment and
Immigration),
[1993]
F.C.J. No. 732 (F.C.A.) at paragraph 4 (Aguebor).
[24]
In Dunsmuir v.
New Brunswick 2008 SCC 9 (Dunsmuir) the Supreme Court of Canada
recognized that, although the reasonableness simpliciter and patent
unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[25]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[26]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issues on this application to be reasonableness. When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and intelligibility
within the decision-making process [and also with] whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENTS
The Applicants
Did the Board err in finding that forced
sterilizations are against the law in the province of Guangdong and in its interpretation and
analysis of Information Request CHN43031.E and Information Request CHN43165.E?
[27]
The
Applicants submit that the Board cites Information Request CHN43031.E to
support its finding that forced sterilization is against the law in the province of
Guangdong. The Applicants say that this documentary evidence does not support
the Board’s conclusions, since Information Request CHN43031.E refers to the new
population and family planning regulations for the province of Guangdong that went
into effect on September 1, 2002. The Applicants note that a review of the
Guangdong Planning Regulations shows they do not provide that forced
sterilizations are against the law in the province of Guangdong.
[28]
The
Applicants cite and rely upon Chow v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. 788 at paragraph 9 for the proposition that it
is irrational and unreasonable for the Board to use documentary evidence in a
contradictory manner and that such use constitutes a reviewable error. The
Applicants also cite and rely upon Luzi v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1179 at paragraph 34:
34
As occurred in Hajai v. Canada (Minister
of Citizenship and Immigration) (2000), 192 F.T.R. 141, the Board here
misapprehended the evidence before it in reaching its conclusions related to
implausibility. Its findings in other areas are therefore suspect as well. As
stated by Justice Pelletier, as he then was, in Hajai, supra, at
paragraph 14:
...There
comes a point at which the sheer number of errors, whether material or not,
leaves one with little confidence in the soundness of the other conclusions
reached by the Tribunal. It is clear that the CRDD based its decision on findings
of fact made without regard to the material before it. For that reason, the
decision must be set aside and the matter remitted to another panel for
determination.
[29]
The
Applicants submit that the supporting documentation provides that forced
sterilizations continue to occur and it is “very common” for out-of-plan births
to result in the sterilizations of one of the parents. In particular, the
Guangdong Planning Regulations provide as follows:
In order to prevent and decrease the
number of unwanted pregnancies, the family planning administrative department
at each level of government shall create the prerequisite conditions and advise
couples of child-bearing age in how to make an informed choice about
contraceptive measures. The first choice for a woman of child-bearing age who
has given birth to one child shall be an intrauterine device. Where there are
already two or more children, the first choice shall be a ligation for either
the husband or wife.
[30]
The
Applicants also cite Article 27 of the Guangdong Planning Regulations:
If a child should die after a couple has
already undergone a sterilization operation, a tubal ligation (vas deferens)
reversal procedure may be carried out where family planning requirements are
met, husband and wife apply jointly and the family planning administrative
department at the county or higher level approves.
[31]
The
Applicants submit that the Guangdong Planning Regulations in Information
Request CHN43031.E clearly contemplate the sterilization of parents who have
two or more children, which is contrary to the Board’s finding that forced
sterilizations are against the law in the province of Guangdong.
[32]
The
Applicants cite and rely upon Egeresi v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1133 at paragraph 7:
…No reference was made to the extensive documentary evidence that
did not support its position nor was any reference made to the evidence given
by the applicant in this regard. It may well be that this finding was open to
the RPD, but it must be evident, from the reasons, that it has undertaken a
proper analysis to support its conclusion. This it failed to do and such
failure, in my view, constitutes reviewable error.
[33]
The
Applicants also rely upon Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 at
paragraph 17:
17 However, the more
important the evidence that is not mentioned specifically and analyzed in the
agency's reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.) In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[34]
The
Applicants also point out the following passage from Information Request
CHN43165.E:
Amnesty International (AI), in an 8
October 2004 article, commented that human rights organizations have not been
able to conduct independent research on allegations of forced sterilization and
abortion in China due to strict control of
information by authorities.
…
The lecturer in international relations
indicated that, while she had no evidence of forced sterilizations for the
period covered by this Response, this did not mean none had taken place.
…
…[i]n circumstances when social
compensation fees and intense psychological and social pressure are not
sufficient to compel women to have an abortion, there are reports, albeit
declining, of instances where the authorities have physically forced a woman to
terminate a pregnancy…Forced sterilizations continue to occur, most frequently
when couples have more children then the allowable number.
…
A People’s Daily article reported
that the deputy director of the Legislative Affairs Office of the State Council
indicated that China would neither tighten nor relax its family planning policy
and that “China must impose strict restrictions on extra-policy births”.
[35]
The
Applicants submit that the Board erred in its analysis of Information Request CHN43165.E
by relying on the conclusion that the Principal Applicant would not be forced
to undergo sterilization by offending the one-child policy.
[36]
They
also say that the Board appears to acknowledge that sterilization for those
offending China’s family planning
policy is a potential penalty, but the penalty, if any, is the payment of a fine.
The Applicants allege that the Board was confused in its understanding of the
punishment for offending the one-child policy in China.
Did the Board err in not finding it
plausible that family planning officials would indicate in a notice that
someone would be forced to be sterilized, since country documentation indicates
such individuals could be incarcerated for breaking the law?
[37]
The
Applicants rely upon Yada v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 37 (F.C.T.D.) at paragraph 24:
24 The
reasons or the bases set out for finding particular aspects of the applicants'
evidence to be implausible simply do not reasonably relate to the evidence
before the panel. Its conclusions might be reached by another panel, but the
reasons for those conclusions must be rationally related to the evidence. Here
that is not the case. The decision is patently unreasonable in the absence of
reasons related to the evidence adduced.
[38]
The
Applicants submit that the Board’s finding that it is implausible that family
planning officials would indicate in a notice that someone would be forced to
be sterilized is based on the finding that forced sterilizations in China are illegal.
That finding is not supported by the evidence. Therefore, the errors committed
by the Board cannot withstand judicial scrutiny.
The
Respondent
Credibility
[39]
The
Respondent submits that the Board rejected the Applicant’s refugee claim on the
basis of numerous credibility concerns with the Applicant’s story. The Board
provides clear, comprehensive and cogent reasons for all of its credibility
determinations.
[40]
The
Respondent says that it is trite law that a Board’s factual and credibility
findings are entitled to the highest level of deference by this Court. See: Aguebor.
[41]
The Respondent notes that documents CHN43031 and CHN 43165, which are
referred to by the Applicants, describe a “social compensation fee” which is
required of those who have more than one child in Guangdong province. These
documents do not provide that forced sterilizations are used as a punishment.
Therefore, these documents support the Board’s finding that there are few
incidents of forced sterilizations in China.
[42]
The Respondent also says that the Board was correct to say that
there were no examples of people being forcibly sterilized between 2002-2005,
as per document CHN43165.E. The fact that this document quotes persons who
speculate without proof that sterilizations may still occur is not evidence
that the Applicants are at risk of forced sterilization.
[43]
The Respondent contends that the evidence supports the
Board’s finding that the punishment for unauthorized births in Guangdong
province is a social compensation fine and that forced sterilization is not a punishment
provided for in the Population and Family Planning Regulation of Guangdong
Province.
[44]
The Respondent also argues that the
Applicants’ arguments amount to a disagreement with the weight the Board placed
on the evidence. The Applicants have failed to provide any cogent arguments to
suggest that the Board’s findings are unreasonable.
ANALYSIS
[45]
The
Board makes a crucial plausibility finding based upon its view that forced
sterilizations are against the law in Guangdong province:
Since forced sterilizations are against
the law in the province
of Guangdong, I do not find it plausible
that family planning officials would actually state that a person must be
sterilized, since the country documentation indicates such individuals could be
incarcerated for breaking the law.
[46]
If
the Decision is read as a whole, it is clear that the Board places considerable
reliance upon its view that forced sterilization is against the law in Guangdong, and the Board
refers to, and footnotes, Information Request CHN43031.E as the evidentiary
basis for this view.
[47]
The
problem is that CHN43031.E does not say that forced sterilization is illegal in
Guangdong.
[48]
The
Respondent says this does not matter because the prepondence of the
documentation package leads to the conclusion that the Principal Applicant
would not face forced sterilization if she were to return to China. This may be
the case, but the documentation also suggests that sterilizations do sometimes
take place and the Applicants’ story was found implausible, at least in part,
because the Board found that the notices were not genuine because sterilization
is illegal in Guangdong.
[49]
The
Respondent also says that the reference in the Reasons to CHN43031.E is simply
a footnote error. This hardly seems likely to me because the reference is made
several times. Also, the Respondent’s citing of CHN40685.E, which was also in
the information package before the Officer, does not, in my view, alleviate the
problem.
[50]
The
Respondent says that the following words support the Board’s view on the
illegality of forced sterilization:
Discrimination against, and maltreatment
of, women who give birth to a female infant, as well as sterile women, shall be
strictly prohibited. Discrimination against, maltreatment and abandonment of
female infants shall be thoroughly banned (Xinhua 2 Jan. 2002).
[51]
It
is not entirely clear what this prohibition speaks to, but it provides no
confirmation that forced sterilization is illegal in Guangdong and, in any
event, this is not the evidence upon which the Board says it relied upon for its
view that “forced sterilizations are against the law in the province of Guangdong.”
[52]
The
document relied upon by the Board is CHN43031.E which provides no evidentiary
basis for such a view. In fact, CHN43031.E refers to the actual regulations in
force that deal with the new population and family planning regulations for the
province of Guangdong which went into effect on 1 September 2002 (PRC 25 July
2002). A translation of those regulations actually refers to the use of
sterilization in Article 25:
The first choice for a woman of
childbearing age who has given birth to one child shall be an intrauterine
device. Where there are already two or more children, the first choice shall
be a ligation for either the husband or wife. (Emphasis added).
[53]
This
language does not support the Board’s view that forced sterilization is illegal
in Guangdong.
[54]
In
my view, then, this was not simply a case where the Board reviewed and weighed
the evidence on forced sterilization in Guangdong and
concluded that the Applicant would not face forced sterilization. This was a
case in which the evidence showed that sterilization might still occur, even
though it is becoming less frequent, and the Applicants’ story concerning
crucial evidence (the notices to report) was discounted, at least in part,
because of the Board’s unsupported views concerning the illegality of forced
sterilization in Guangdong. In other words, because the notices were
discounted, they could not be part of the weighing process.
[55]
There
was no evidentiary basis for the Board’s repeated assertion that forced
sterilization is illegal in Guangdong. The Board based its
credibility findings, in significant part, upon its own unsupported
assumptions. In my view, this renders the Decision unreasonable.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is allowed and the matter is returned for reconsideration by a
different officer;
2. There is no
question for certification.
“James
Russell”
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