Docket: IMM-6874-11
Citation: 2012 FC 608
Ottawa, Ontario, May 18,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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JIAN HUA ZHENG
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Jian Hua Zheng, contests a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated September 6,
2011, that determined she was neither a Convention refugee nor person in need
of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
I. Facts
[2]
The
Applicant is a citizen of China. In 1996, she became pregnant and was
forced to have an abortion because she could not legally marry at that time. Shortly
thereafter, she fled the country intending to meet her boyfriend in the United
States (US). However, they lost contact and she continued to the US without him.
[3]
In
2008, the Applicant met a Canadian man and again became pregnant. In August,
she joined him in Toronto and stayed with him until December of that same
year. They never married, but the child was born in Canada. She
subsequently met and had a second child with another man in Canada.
II. Decision
Under Review
[4]
The
Board made the following observations with regard to documentary evidence:
family planning policies vary by region and it is reasonable to assume
“remedial measures” in Fujian refers to social compensation fees; the children
could be registered in her hukou and not denied basic social support provided
the required social compensation fee was paid; there are no reports of couples
experiencing difficulties with children born overseas; and evidence regarding forced
sterilizations in China is mixed.
[5]
The
Board also gave no weight to a Sterilization Certificate and letter from her
cousin alleging prejudicial treatment of a son on return from the US, given
issues associated with the dates and contrary documentary evidence.
[6]
The
Board concluded:
In the context of the country documentary
evidence cited above, I find, on a balance of probabilities, that the claimant
and her children can return to China without jeopardy, that she is not at risk
of sterilization in Fujian province and that her children will be registered in
her hukou, either on the payment of a social compensation fee, or, as
indicated in country documentary evidence cited above, without a penalty since
they were born overseas.
III. Issues
[7]
The
general issue before this Court is whether the Board committed a reviewable
error in the assessment of the Applicant’s claim.
IV. Standard
of Review
[8]
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 (see Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 51).
[9]
Under
this standard, the Court will only intervene where a decision lacks
justification, transparency and intelligibility or does not represent an
acceptable outcome defensible in respect of the facts and law (Dunsmuir,
above at para 47).
V. Analysis
[10]
The
Applicant contests the Board’s main finding at paragraph 6 of its reasons where
it states:
[6] […] However, a number of other
provinces, including Fujian province, are specifically
noted as requiring unspecified remedial measures. The U.S. Congressional
Annual Report cited above indicates that remedial measures are used
synonymously with compulsory abortion. However, in the context of no recent
evidence of forced abortion or forced sterilization in Fujian province, I find,
on a balance of probabilities that it is reasonable to assume that remedial
measures refers to the Fujian provincial system of social compensation fees
noted above.
[11]
The
Applicant asserts that the Board misconstrued the evidence of “remedial
measures” in Fujian as not
including forced sterilization despite evidence that this was the case.
[12]
I
am inclined to agree with the Applicant’s position under the circumstances. It
was unreasonable for the Board “to assume that remedial measures refers to the Fujian provincial
system of social compensation fees.” Since the country documentation, notably
the US Congressional-Executive Commission on China Annual Report 2009, clearly
shows that reference to “remedial measures” includes forced sterilization, the
Board’s finding that such measures would only imply a social compensation fee
in Fujian province
does not reflect the evidence presented or meet the criteria of justification,
transparency and intelligibility. On this basis alone, the matter will be sent
back for reconsideration.
[13]
As
to the evidence of a similarly situated person based on the letter from the
Applicant’s cousin and Sterilization Certificate, however, I do note the Board
is entitled to find it lacking in credibility or attribute no weight to it as
was done in this particular case. The Board found the “requirement for
sterilization before a woman with one child is allowed to marry is neither
plausible nor credible.” This conclusion was reasonably open to the Board as
there was no credible evidence in relation to the issues regarding the dates
from the Sterilization Certificate.
VI. Conclusion
[14]
For
these reasons, the application for judicial review is allowed. The matter is
remitted back to a newly a constituted panel of the Board for re-determination.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is allowed. The matter is remitted back to a newly constituted panel of
the Board for re-determination.
“ D.
G. Near ”
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