Date: 20080605
Docket: IMM-4449-07
Citation: 2008
FC 711
Toronto, Ontario, June 5, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MIN FENG ZHAN
XING YI ZHENG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review made pursuant to
section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of
the Immigration and Refugee Board (the Board) dated October 1, 2007, wherein
the applicants were found not to be Convention refugees nor persons in need of
protection under
sections 96 and 97 of the Act.
1. The Facts
[2]
The
primary applicant (the applicant) and her minor son are citizens of the
People’s Republic of China. They come from a rural
household in the Fuzhou region of the province of Fujian. The applicant
claims that after she had the minor applicant in 1995, she wore an
Inter-Uterine Device (IUD) and attended regular IUD examinations as required by
Chinese law. When she became pregnant again in April 2000, the applicant claims
to have gone into hiding to give birth to a second child.
[3]
According
to the applicant, her second child was discovered when she brought him to a
hospital for treatment. After the discovery of her second child, the applicant
claims that she was instructed to undergo sterilization surgery. However, the
surgery was postponed because the applicant was suffering from a chronic pelvic
infection. The applicant asserts that she paid a fine as required.
[4]
The
applicant claims she then moved at this point to a relative’s home for a period
of a few years. She explains her motivation to do so was to avoid subsequent
visits from Family Planning Officials (FPO). However, the applicant alleges
that when she returned home in May 2006, the FPO found her and demanded
additional fines because of her attempt to avoid them. She also claims that
they threatened to suspend her first child from school and to not allow her
second child to register for school.
[5]
The
applicant also alleges that in July 2006 her doctor stated that she was healthy
enough for the sterilization operation, and that both she and her husband then
went into hiding.
[6]
On August
20, 2006, the applicant asserts that she finally left China with her elder son and arrived in Canada that same day.
II. The Decision of the Board
[7]
The Board rejected the applicant's refugee application on the
basis that, given the cumulative negative inferences and findings it had made,
the applicant’s assertion that FPO were pursuing her and required her to be
sterilized were not credible. Because of that, the Board found that the
applicant had not satisfied her burden to establish a serious possibility that
she would be persecuted or that she would personally be subjected to a risk of
cruel and unusual treatment or punishment or in danger of torture by any
authority in the People’s Republic of China.
[8]
In reaching these findings and negative inferences, the Board
considered a number of Responses
to Information Requests (RIR).
[9]
The Board
referred to RIR CHN40685.E when it noted that there was a flexible policy
regarding second children for rural families and that two-child families were
common in rural areas.
[10]
The Board
referred to RIR CHN43031.E when it noted that the Population and Family
Planning Regulations of Fujian indicate that social compensation fees that rise
with each unauthorized child is the penalty for unauthorized children. The
Board also referred to RIR CHN43031.E in noting that the social compensation
payment was for the enhanced future social costs of benefits to be received by
the second child.
[11]
The
Board referred to RIR
CHN43165.E
when it noted that the IRB Research Directorate could not find incidents of
forced abortion or sterilization in Fuzhou for the period 2002 to
2005.
[12]
Ultimately,
the Board noted that there were mixed messages in the country documents.
However, the predominant message, especially in regard to the applicant’s
province, is that the penalty for a second child that the applicant most likely
faced is a fine meant to compensate the government for the additional social
costs that must be paid before the second child will register in the family hukou.
III. Issues
[13]
This
application raises two issues for consideration:
a. Did the Board
err in its
interpretation and analysis of the RIRs? and
b. Did the Board use that
documentary evidence selectively and ignore other evidence that contradicted
its findings?
IV. Standard of Review
[14]
Neither
party provided submissions on the standard of review, except for a brief reference
in the respondent’s memorandums to what used to be called the standard of
patent unreasonableness. The reference by the respondent to the standard
of patent unreasonableness is explainable since at the time the
respondent prepared his memorandum and further memorandum the Supreme
Court had not yet rendered its decision in Dunsmuir v. New
Brunswick,
2008 SCC 9.
[15]
As
we know now from Dunsmuir, the Supreme Court altered the standard of
review analysis, moving from three to two standards of review: reasonableness
and correctness. In that decision, the Court states that “[…] questions of
fact, discretion and policy as well as questions where the legal issues cannot
be easily separated from the factual issues generally attract a standard of
reasonableness while many legal issues attract a standard of correctness. Some
legal issues however, attract the more deferential standard of reasonableness”
(Dunsmuir, above, at paragraph 51).
[16]
Considering
the factual nature of the question in issue, and the special expertise of the
Board, the Court finds the standard of review to be that of reasonableness.
According to this standard, the Court’s analysis of the Board’s decision 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, above, at paragraph
47).
V. Submissions
[17]
The
applicant submits that the RIRs CHN40685.E, and CHN43031.E do not support the
conclusion that there was a flexible policy for second children in certain
parts of rural China and that fines, not
sterilization, are the penalty for unauthorized births.
[18]
The
applicant also submits that the Board misconstrued on the RIR CHN43165.E. The
applicant admits though it provides that no specific incidents of forced
abortions could be found in the Fuzhou
region, but insists that there are passages suggesting that such
abortions/sterilizations could have occurred or that they did occur.
[19]
Finally,
the applicant submits that the Board ignored recent contradictory evidence.
[20]
The
respondent submits for his part that the RIRs clearly support the findings the
Board made. The respondent also asserts that the Board acknowledged that there
was also evidence that did not support its conclusions but found that the
predominant message was that a fine rather than forced abortions or
sterilizations is what the applicant would face in Fujian.
VI. Analysis
[21]
The Court
finds no error on how the Board used the RIRs CHN40685.E and CHN43031.E in its
decision. The selective quotes drawn out of the documents by the applicant do
not contradict the Board’s interpretation of the document, and are merely
general statements of support for the one child policy that make no reference
to forced abortions or sterilizations. The RIR CHN40685.E indicates that there
is some flexibility in the one-child policy, while RIR CHN43031.E indicates a
social compensation fee as the consequence of having a second child.
[22]
Second,
RIR CHN43165.E was relied on for a very specific fact: that the IRB
Research Directorate could not find incidents of forced abortion or
sterilization in Fuzhou for the period 2002 to 2005. It is therefore
irrelevant that there is information in the document that either suggests that
a lack of evidence does not mean that forced abortions or sterilizations are
not occurring nor is it relevant that there is one example in the document of
such a claim that was not backed up with case examples. RIR CHN43165.E was quoted in
the decision for a very specific passage.
[23]
Ultimately,
the Board noted that there was some contradictory information, but found that
the preponderance indicated that the penalty for the applicant’s second child
would have been a fine rather than forced sterilization. Therefore, the Board
did not ignore the contradictory information before it.
[24]
The
Board, acting within its specialized jurisdiction, was entitled to accept the
proof as a whole, only part of it or refuse it completely. The fact that it
relied or interpreted the proof and the RIRs differently than expected by the
applicant does not mean that the Board did not consider all the evidence it is
presumed to have considered.
[25]
Overall
and after considering the proof, the Board’s decision, and the arguments of the
parties the Court finds that the applicant failed with her burden to
demonstrate the decision’s unreasonableness. On the contrary, the Court
finds that the decision flows from a well-reasoned analysis of the facts and
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law and is therefore reasonable. The Board, being a
specialized tribunal, its decision deserves deference and the applicant has
not presented any valid reasons for this Court to intervene and substitute its
own opinion. Therefore, the application will be dismissed.
JUDGMENT
FOR THE
FOREGOING REASONS THIS COURT dismisses the application for
judicial review.
“Maurice E. Lagacé”
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