Docket: IMM-712-15
Citation:
2015 FC 1193
Ottawa, Ontario, October 21, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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XIAO YAN LIU
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Ms. Liu is a young Chinese widow and the mother
of a little boy. She claims she ran afoul of the Family Planning Office and
fears that if she were returned to China she would again be forced to use an
intrauterine device (IUD) or perhaps even be sterilized.
[2]
The Member of the Immigration and Refugee Board
of Canada who heard her case believed scarcely a word of what she had to say,
so much so that she held the claim did not have a credible basis. As a result,
Ms. Liu lost her right of appeal to the Refugee Protection Division thereof and
so came to this Court by way of judicial review (Immigration and Refugee
Protection Act, sections 107(2) and 110(2)(c)).
[3]
According to Ms. Liu, who lived in Guangdong
Province, she gave birth to a son in 2007. Two months afterwards, she was
required to wear an IUD for birth control purposes as under Chinese law she was
only allowed to have one child. The IUD caused her considerable health
problems. Unfortunately, her husband died the following year.
[4]
After a number of requests, finally the Family
Planning Office allowed her permission to have the IUD removed, but she was
still required to submit to pregnancy tests every four months.
[5]
In 2012, she met her current common law husband,
who also had a son. They moved in together and practiced safe sex. However,
when the FPO learned of the relationship she was again forced to have an IUD
inserted.
[6]
Again, she encountered health problems and was
diagnosed as suffering from chronic pelvic inflammation. However, the FPO would
not allow her to have the IUD removed.
[7]
Then in June 2014, she went for her routine IUD
check-up and was found, to her great surprise, to be pregnant. She was forced
to have an abortion and was told she would have a different type of IUD inserted
40 days thereafter.
[8]
She did not want another IUD inserted and so
went into hiding. She learned that the FPO was looking for her. As she and her
spouse did not have enough money for them to leave the country together, she
left with the aid of a snakehead, with the expectation that her spouse would
follow her when he could afford it. Ideally, one day, they would have a child
together.
[9]
Since coming to Canada she has learned that the
FPO continues to look for her.
I.
The Decision under Review
[10]
The Member noted that Ms. Liu’s testimony “evolved” as different questions were put to her. She
was found not to be a credible witness. She did not establish that she had
violated China’s one-child policy and that she was wanted by the authorities. She
failed to provide her common-law spouse’s address in her immigration
application despite the fact that she lived there for nearly two years. She was
extremely vague as to the whereabouts of her son who, apparently, went to live
with his paternal grandparents. She left China on her own passport, which contradicts
the allegation that she was wanted by the authorities. The member did not
believe that a snakehead was involved.
[11]
The evidence that she underwent an abortion is
extremely flimsy and likely forged. There is certainly no evidence that the
abortion was forced. A review of the transcript also shows that the member had
her doubts that Ms. Liu had a son and a boyfriend. Certainly, if she did not
have to pay a snakehead, there would have been enough money for him to
accompany her to Canada.
[12]
Although it is noted that some family planning
offices are quite aggressive, forced abortion is illegal in China. The likely
penalty for violating the one-child policy is a fine, not forced sterilization.
II.
Ms. Liu’s Submissions
[13]
The finding of a lack of credibility in some
respects is not challenged; such as the whereabouts of her son and where she
lived. However, there was no specific finding, as there should have been, that she
was opposed to having an IUD inserted. Such a violation of her body against her
will constitutes persecution (Ye v Canada (Minister of Citizenship and
Immigration), 2013 FC 634 and authorities cited therein). The member was
required either to find that she was not credible on that issue or to make a
more detailed analysis considering that her story was consistent with many set
out in the country conditions.
[14]
Both jurisprudence and common sense conclude
that the violation of a woman’s reproductive and physical integrity, such as by
means of forced abortion or the forced insertion of an IUD constitutes
persecution and that the victim of such acts is a member of a particular social
class under section 96 of IRPA and is entitled to Canada’s protection.
[15]
However, it was not unreasonable for the member
to conclude that Ms. Liu was not in violation of the one-child policy and did
not undergo an abortion, much less an abortion against her will.
[16]
It is not enough that there is a law on the
books. There must be a serious risk that a person will be persecuted for
violating that odious law. It was not unreasonable for the member to find that
Ms. Liu was not persecuted in China.
[17]
As the risk of persecution is forward looking,
her claim, at least in part, is sur place.
[18]
The member was so taken with Ms. Liu’s other
lack of credibility that she was entitled to dismiss the claim in its entirety,
including the sur place portion thereof. It was not necessary for her to
specifically deal with the sur place portion (Sanaei v Canada
(Minister of Citizenship and Immigration), 2014 FC 402). Furthermore, as
Mr. Justice Beaudry noted in Rahaman v Canada (Minister of Citizenship and
Immigration), 2007 FC 1008, at paragraph 17:
…If the credibility of the applicant is so
severely eroded that the Board does not believe that the applicant has a well
founded fear of persecution, there is no need to look at whether the country
conditions can support his claim.
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