Date: 20120515
Docket: IMM-6368-11
Citation: 2012 FC 574
Ottawa, Ontario, May 15, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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MIN YI JIANG
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Minister asks that the decision of the Refugee Protection Division of the
Immigration and Refugee Board determining that Ms. Jiang was a Convention
refugee in need of protection be set aside. I informed the parties at the
conclusion of the hearing that this application must be dismissed. The
following are my reasons.
[2]
Ms.
Jiang is a citizen of China. She was granted a study visa in February
2010; she entered Canada on March 5, 2010, and soon afterwards became
involved in a romantic relationship which led to her pregnancy. She is a
single-mother to a one-year-old Canadian-born child.
[3]
On
November 16, 2010, well before the July 2011 expiry of her study visa, she
filed a claim for refugee protection. She alleged a risk of sterilization at
the hands of her local Family Planning Committee in China. Although
the Minister elected not to appear before the Board, written submissions and
evidence was filed to the effect that there was no evidence that a woman who
gave birth outside China would be subjected to forced sterilization upon
return. In short, it was alleged that the China family
planning regime did not apply to single mothers of foreign born children.
[4]
I
agree with the submissions of the Minister that the Board did not specifically
address the evidence submitted by the Minister in the reasons for decision
given at the conclusion of the hearing.
[5]
Specifically,
the Board does not mention an Australian research report which indicates that:
Limited information was found in regards
to the treatment of returning Chinese who had children while abroad. As
mentioned in question 3, some sources report that people returning to China are actively welcomed, and “out-of-plan”
children forgiven. The reports detailed below appear to confirm this. Should
they be penalised, the available information suggests that the penalty would be
a fine/social compensation fee.
[6]
Another
document relied upon by the Minister, a Response to Information Request of the
Board dated January 29, 2009 and which was not referenced by the Board states
that “Chinese nationals who have children while abroad may not be subject to
the one-child policy.”
[7]
The
evidence advanced by the Minister is far from conclusive in showing that the
applicant would be exempted from the family planning policies in China because her
child was conceived in Canada and is a Canadian citizen. Moreover,
there is evidence in the record that single women who give birth abroad would
be treated no differently than those who give birth in China. Further,
although not mentioned in the reasons for decision, it is clear from the
transcript that the Member was aware of the position taken by the Minister as
she questioned the claimant specifically on it.
[8]
As
has been held by the Federal Court of Appeal, “the fact that some documentary
evidence was not mentioned in the Board’s reasons is not fatal to its
decision:” Hassan v Canada (Minister of Employment
& Immigration), (1992) 147 NR 317. Moreover, applying Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, and examining the record as a whole, I cannot
conclude that the result reached in this case was unreasonable. It may not be
the result I would have reached, but it was a result reasonably open to the
Member. As a consequence, the decision cannot be set aside.
[9]
No
question was proposed for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is dismissed and
no question is certified.
"Russel
W. Zinn"
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