Date: 20091014
Docket: IMM-4793-08
Citation: 2009 FC 1031
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
SUM, KUN TONG
CAO, CUI ZHI
SUM, XIAO LAN
SUM, MAN YEE
SUM, YIN CHING
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
case involves judicial review of a negative Pre-Removal Risk Assessment (PRRA)
decision made by a PRRA officer (the Officer) and dated September 8, 2008
(the Decision).
[2]
The
Decision dealt with risks identified by a family of six from China (two
parents, three daughters and one son). The Mother and Father (who were 51 and
53 years old at the time of the Decision) fear forced sterilization on their
return to China.
[3]
Before
they fled to Canada, the Parents
were agricultural residents of Guangzhou City, in Guangdong Province. As
such, they were entitled to have two children and they had two daughters who
were 22 and 20 years of age at the time of the Decision. Following their birth,
the Parents had a third daughter and a son who were 18 and 16 years old at the
time of the Decision.
[4]
The
three daughters (who are not married) fear the compulsory insertion of
intrauterine devices (IUDs) after they give birth to their first children, and
the two youngest children (the boy and the third girl) fear persecution because
their births were not registered in their family’s household registration
booklet.
[5]
The
Parents paid fines totalling 13,000 RMB for their third and fourth children but
were not allowed to register their births. Then, the Mother received notices
dated August 7, 1997 and August 4, 1998 indicating that she was
required to undergo sterilization.
[6]
In
response, the Mother and her two eldest daughters fled to Canada on
September 2, 1998 and claimed refugee status the following March. The
Father and the younger daughter and son entered Canada on
March 28, 1999 and claimed refugee status in June of that year. The
family’s two refugee claims were heard together and denied on December 16,
1999. That decision was not the subject of an application for judicial review.
[7]
On
February 27, 2008, the family filed a PRRA application, and a submission was
filed by their lawyer on March 10, 2008. It included copies of two
receipts for the fines, copies of the sterilization notices sent to the Mother
and a copy of the Household Registration Booklet. It also listed eight publicly
available documents. However, it did not append any affidavits dealing with
pertinent information such as:
·
Evidence
from family members in Guangzhou City (the Father
has three sisters and two brothers living there) about current local family
planning enforcement. This evidence might have indicated whether forced
sterilizations are performed on similarly situated adults in their 50s, whether
parents who have paid fines have been allowed to register their “extra”
children, and whether such children are now being treated equally with children
born under the family planning regime.
·
Evidence
from the daughters indicating whether they were interested in marriage and
motherhood, whether or not they supported China’s family
planning policy, and whether they would consent to the insertion of an IUD once
they had borne their first children.
[8]
In
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R.
593, the Supreme Court considered Mr. Chan’s fear of forced sterilization
in China. At
paragraph 137 of the decision, Mr. Justice John Major, writing for the
majority, made the following statement:
The appellant failed to adduce any
evidence for the Board that forced sterilization is actually carried out and
not merely threatened by the local authorities in his area. Evidence with
respect to the enforcement procedures utilized within a claimant’s particular
region at the relevant time should be presented to the Board. Where such
evidence is not available in documentary form, the claimant may still be able
to establish that the fear was objectively well-founded by providing testimony
with respect to similarly situated individuals. This liberal approach to
establishing the facts which represents a significant relaxation of the usual
rules of evidence is intended to grant the claimant the benefit of the doubt in
cases where strict documentary evidence may be lacking. This approach is fully
consistent with the guidelines set out in the UNHCR Handbook:
43. These considerations need not necessarily
be based on the applicant’s own personal experience. What, for example,
happened to his friends and relatives and other members of the same racial or
social group may well show that his fear that sooner or later he also will
become a victim of persecution is well-founded. The laws of the country of
origin, and particularly the manner in which they are applied, will be
relevant. The situation of each person must, however, be assessed on its own
merits.
In this case, the appellant failed to
provide either documentary evidence or anecdotal evidence to substantiate his
claim that the pressure from the Chinese authorities to submit to sterilization
would extend beyond psychological and financial pressure to actual physical
coercion.
[9]
The
absence of anecdotal evidence in the present case about the situation in Guangzhou City is
significant because many of the publicly available documents are not helpful. This
is so because the methods of enforcement used by Family Planning officials at
the local level vary greatly from province to province and from city to city.
[10]
Against
this background, I will deal with the risks at issue.
THE PARENTS
[11]
They
fear sterilization on their return to China for having twice
violated the Family Planning Policy. The Applicants say that the Officer’s
selective reading of the documents described below amounted to a failure to
consider all the relevant evidence.
[12]
With
regard to Guangzhou, the Officer
relied on the Immigration and Refugee Board’s (IRB) report CHN43165.E dated
February 21, 2005 which read, in part:
Reports of specific incidents of forced
abortions or forced sterilization in the regions of Guangzhou and Fuzhou could
not be found among the sources consulted by the Research Directorate […]
[…]
In regards to local family planning
regulations in Guangzhou, according to the director of the family planning
technological department in Guangzhou’s population bureau, the region experienced
relatively few unplanned births and population control was no longer a “prickly
problem” (China Internet Information Center 4 Nov. 2002). With Guangzhou recording low birth rates and
a preponderance of single-child families, officials are turning their attention
to men’s reproductive health and “improving the quality of the population”
(ibid.).
[my emphasis]
[13]
The
Applicants say that this report was prepared to deal with birth planning
policies in Guangzhou and not with
forced sterilization. However, the statement that evidence of forced
sterilization “could not be found” suggests that the issue was investigated. In
these circumstances, the fact that no evidence was found was significant, and
it was reasonable for the Officer to conclude that, even for couples of child
bearing age, the authorities in Guangzhou would be unlikely to require
forced sterilization.
[14]
The
Applicants also complain that this report was not reliable because it was dated
in 2005. However, in the absence of any evidence of changed circumstances, I am
satisfied that it was reasonable for the Officer to give it consideration.
[15]
The Officer’s
Decision also shows that he relied on IRB report CHN43031.E to suggest that
fines would be used to enforce family planning. The Applicant says that the
report doesn’t mention sterilization because it wasn’t prepared for that
purpose. It was prepared to deal with new regulations in Guangdong Province in 2002, and forced sterilization was not part of
the regulations. However, what the Officer actually concluded having read the
new regulations was that fines were “more likely” to be imposed than forced
sterilization. In my view, this was a reasonable conclusion given that the new
regulations spoke of significant fees.
[16]
The
Applicants fault the Officer for selective use of sources and for failing to
rely on the most recent US DOS report of March 11, 2008 which said at page
14:
[…] In the case of families that already
had two children, one parent was often pressured to undergo sterilization. […]
[17]
My
difficulty with this submission is that I am satisfied that the statement
applies to families in which the parents are still of child bearing age. It is
not obvious that it applies to parents, such as the Applicants, who are in
their 50s and whose last child was born seventeen years ago. For this reason, I
have concluded that the Officer did not err in failing to refer to this
document.
[18]
The Applicants also
criticize the Officer for failing to mention IRB CHN102495.E dated May 10,
2007. It considered whether forced sterilizations were still occurring and said
that they did occur at the hands of local authorities although they were
illegal. However, because this statement did not focus on Guangzhou, it is my view that the Officer was not required to mention
it in his decision.
[19]
Lastly,
the Officer referred to a statement made by a German expert on China who said the
following in a seminar report dated March 17, 2006:
[…] The regulations of […] Guangdong […] have other [unspecified]
punishments for contraventions [of family planning law]. It is very common not
only to terminate out-of-plan pregnancies, but also to sterilize one of the
parents.
[20]
The
comments made above regarding the US DOS report also apply here. Since the
parents in this case are highly unlikely to experience a pregnancy, they are
unlikely to contravene the family planning law or face sterilization.
THE UNREGISTERED
CHILDREN
[21]
The
Applicants suggested that the Officer overlooked the fact that the two youngest
children had not been registered. However, the Officer noted that he had no
evidence from the Applicants about whether, since the Parents had paid the
fines, the “[…] authorities in Guangzhou City continue to
regard those two children as unregistered or “black” children.” This suggests
to me that the Officer was aware of the Applicants’ submission that, in spite
of payment of the fines, they had been unable to register their two youngest
children before they left China.
[22]
The
Applicants are critical of the Officer’s reliance on what they describe as a
“vague” statement in IRB Report CHN102496.E dated May 11, 2007 about
recent moves to register unapproved children. The report said in part:
[i]t is still quite common [in China] for unplanned, hence “unapproved,”
children to be unregistered. In some places, very recently, there are moves to
register them as well, [and] disregard the family planning issue (especially if
an excuse of good guanxi [informal networking or connections] can be found).
But the parents, especially in the remote rural areas, are not very forthcoming
[in registering their children] because the fear of fines, etc. may still be
real.
[23]
However,
in concluding that the unregistered children were not at risk, the Officer did
not rely on that passage and its suggestion that registrations were beginning.
Rather, he relied on the fact that the fines had been paid and on a further
statement in the same report which read:
An 11 August 2005 article in Reproductive
Health, a “peer-reviewed online journal focusing on all aspects of human reproduction”
(Reproductive Health n.d.), similarly notes that children born outside of
China’s family planning regulations may not be registered by the authorities or
be “treated equally,” unless their parents pay a fine (ibid. 11 Aug. 2005, 3).
[24]
Lastly,
although the Applicants referred to this report in support of their submissions
without suggesting that it was unreliable, they now say that it is wrong when
it suggests that paying fines leads to registration and equal treatment. They
say that, if the footnotes for this statement are checked, the underlying
information came from the late 1980s and is out of date. In my view, this
submission cannot succeed. There is no duty on an officer to conduct in depth
research to check the status of footnotes in the IRB’s reports when they have
been relied on by an applicant without qualification.
[25]
In
any event, in the absence of any evidence from the Applicants that
circumstances have changed, there is no reason to conclude that the IRB Report
is wrong when it says that payment of a fine entitles children to registration
and equal treatment. The Officer’s conclusion was supported by the evidence and
was therefore reasonable.
THE THREE DAUGHTERS
[26]
The
concern is that, after marrying and giving birth to their first children after
their return to China, these young women may not consent to the insertion of an
IUD and may face forced insertion. On this issue, the Officer reached the
following conclusion:
[…]
Secondly, counsel states in the PRRA
submission that the three sisters will be persecuted by local authorities
through the imposition of the compulsory use of an IUD birth control device.
However, since the USDOS report noted that IUDs and female sterilization
account for over 80% of birth control methods employed in China, I find that the applicants have failed
to demonstrate a nexus between their particular circumstances and the five
grounds of persecution. In other words, since IUDs are so widely used by all
segments of Chinese society I find that no one race, nationally, religion,
particular social group or political opinion has been discriminated against by
the use of IUDs.
[27]
The
Applicant says that this statement discloses an error of law because, although the
Officer appears to be dealing with the issue of persecution under section 96 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA),
he does not consider whether the persecution arises from the language or
enforcement of a law of general application.
[28]
In
my view, the Officer’s statement is confusing for a number of reasons. First,
IUDs are not widely used by all segments of Chinese Society, they are only used
by women. Second, the passage does not distinguish between the compulsory use
of IUDs and their forced use. They may be compulsory and inserted without
objection. Their use is not the issue. It is their insertion without consent
that is the potential problem for the three daughters. However, as noted
earlier, there is no evidence to suggest that the daughters have any objection
to the compulsory use of IUDs.
[29]
There
is no doubt that the Officer’s reasoning is unclear but, in my view, his error
is immaterial because in the absence of any evidence about their marital or
parental intentions and their views about IUDs, the Officer could not conclude that
the daughters face even the slightest possibility of the forced insertion of
IUDs.
[30]
No
question is certified for appeal.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that, for the reasons given
above, this application is hereby dismissed.
“Sandra
J. Simpson”
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