Date: 20110525
Docket: IMM-3375-10
Citation: 2011 FC 610
Ottawa, Ontario, May 25, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MEI YUN LI
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of member Coralie Buttigieg
of the Immigration and Refugee Board (the Board) dated May 19, 2010, wherein
the Applicant was determined not to be a Convention refugee nor person in need
of protection pursuant to section 96 and subsection 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
Mei
Yun Li (the Applicant) is a Chinese citizen who claims refugee status on the
basis of her religion and for violating China’s family planning policy. She is the mother of
two children, one of whom was born in and remains in China, and the other who was
born in Canada. She arrived in Canada on May 6, 2007 and
claimed refugee protection on May 10, 2007.
[4]
Following
a difficult divorce, a friend persuaded the Applicant to attend an underground
Christian church in May 2006. The Applicant then began attending the church
regularly. On March 27, 2007, a neighbour informed the Applicant that the
Public Security Bureau had come to her home earlier that day to arrest her. The
Applicant went into hiding, and eventually left China with the assistance of a smuggler.
[5]
On
October 21, 2008, the Applicant gave birth to her second child. In addition to
the alleged persecution by the Chinese authorities for her membership in the
underground church, she also claims refugee status because she fears that she
would be sterilized if she returns to China and that she will be unable to register her
second child. She also fears the exorbitant fines charged for having children
out of wedlock and for having more than one child.
B. Impugned
Decision
[6]
The Board
found that the Applicant was not a credible witness with respect to several key
elements of her story, such as when she began attending the underground church
and the authorities’ attempts to arrest her. The Board found that the
Applicant was not a genuine practicing Christian while she was in China. The Board further
found that she would not be at risk of forced sterilization in China, and that the family
planning policy was a law of general application and therefore not persecutory.
II. Issues
[7]
This
application raises only one issue:
(a) Is
the Board’s conclusion that the Applicant was not at risk of persecution for
violating the family planning policy reasonable?
III. Standard
of Review
[8]
The
issues before the Court require a deferential standard of review because they
deal with the Officer’s findings of fact and weighing of the evidence.
[9]
The
Supreme Court held in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at paragraph 53 that “Where the question is one of fact, discretion or
policy, deference will usually apply automatically [citations omitted]. We
believe that the same standard must apply to the review of questions where the
legal and factual issues are intertwined with and cannot be readily separated.”
[10]
The
Board’s conclusions that the Applicant would not face persecution for her
religion or for violating the family planning policy are issues of mixed fact
and law, as they are based on the Board’s application of the law on persecution
in the refugee context to the evidence in the record. As such, they attract a
reasonableness standard (Dunsmuir, above at para 53).
[11]
As
set out in Canada (Citizenship and
Immigration) v Khosa,
2009 SCC 12, [2009] SCJ No 12 and Dunsmuir, above,
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument and Analysis
A. The Board’s Determination that
the Applicant is Not At Risk of Persecution for Violating the Family Planning
Policy is Reasonable
[12]
The
Applicant submits that the Board failed to explain its finding that the family
planning policy and the fines for violating it are laws of general application
and therefore do not amount to persecution. The Applicant argues that the
Board was required to provide some analysis as to whether the law is one of
general application, but instead just stated a conclusion. The Applicant
further submits that the Board should have examined whether, despite being a
law of general application, the policy and accompanying fines are persecutory. Finally,
the Applicant submits that the Board erred in determining that her
Canadian-born son would not be included in the family planning policy.
[13]
The
Respondent submits that the Board’s reasons as a whole are sufficient. The
Respondent further submits that an economic sanction does not amount to
persecution, and that the fines for violating the family planning policy are
not akin to forced sterilization. The Respondent further submits that, even if
the fines may be discriminatory, they are not persecutory. Finally, the
Respondent submits that the Board’s conclusion that the Applicant’s Canadian-born
son would not be included in the family planning policy is reasonable.
[14]
The
Applicant argues that the Board had an obligation to provide reasons as to why
it found the family planning policy to be a law of general application, but she
has not provided any authority in support of this argument. The Respondent
relies on two cases, neither of which is useful in this context: Valentin v Canada
(Minister of Employment and Immigration), [1991] 3 FC 390, 167 NR 1
(FCA) dealt with criminal law for staying outside of one’s country longer than
the exit visa allowed, and Zolfagharkhani v Canada (Minister of Employment
and Immigration), [1993] 3 FC 540, 20 Imm LR (2d) 1 (FCA) concerned a
conscientious objector claiming refugee protection because of Iran’s forced conscription
law.
[15]
However,
the Court of Appeal’s decision in Cheung v Canada (Minister of Employment
and Immigration),
[1993] 2 FC 314, 19 Imm LR (2d) 81, which both parties cite, is informative. Cheung
considered China’s family planning
policy and determined that an applicant who faced forced sterilization for
violating it had a well-founded fear of persecution. In considering whether
forced sterilization amounted to persecution, the Court accepted that the
policy is a law of general application (see paragraphs 16 and 17).
[16]
Cheung, above, further held
that, even though it was a law of general application, it amounted to
persecution because the penalty for violating the policy was forced
sterilization at the time. Although the evidence indicates that this Applicant
will not be forcibly sterilized for breaching the family planning policy, the
Applicant also advanced an argument before the Board that the fines were so
great as to be persecutory. The Board rejected this argument summarily,
stating at paragraph 34 of the decision that “The requirement to pay a fine if
a child is born out of plan is a law of general application. It cannot be
considered persecutory and a basis for a refugee claim.”
[17]
This
Court has determined that the fines imposed for breaching China’s family planning
policy are generally not persecutory. The Respondent relies on Lin v Canada (Minister of Employment
and Immigration),
(1993), 66 FTR 207, 24 Imm LR (2d) 208 (Fed TD), in which Justice Paul Rouleau
stated at paragraph 6 that “economic sanctions, as a means to enforce
compliance with the law, does [sic] not amount to persecution.”
[18]
Although
the fines for breaching the family planning policy are substantial, the
Applicant has not provided any authority to rebut Justice Rouleau’s ruling. The
Board’s reasons on this issue are less than ideal, as no reasoning is given for
rejecting the Applicant’s argument that the fines are so high that they are
persecutory, but the conclusion is clear.
[19]
The
Applicant also suggests that the fines are persecutory because children born
out of wedlock draw a greater fine than children born to a married couple. Because
the law is applied differently to married and unmarried women, the Applicant
argues that it is not a law of general application and is persecutory. The
Respondent argues that not all discrimination is persecution, and cites several
cases from this Court which address the difference between the two concepts. Although
the fines levied against unwed mothers are higher than those for married couples,
there is no evidence that this distinction is discriminatory, let alone
persecutory. The sole basis for the Applicant’s argument that the fine is
persecutory appears to be the amount. However, in the absence of any evidence
or argument to this effect, there is no basis for the Court to interfere with
the Board’s finding that the fine is not persecutory.
[20]
The
Board considered the Applicant’s argument that the fines for violating the
family planning policy are persecutory. Although this portion of the decision
is quite terse and is lacking in analysis, the conclusion is reasonable.
[21]
The
Board concluded based on the totality of the evidence that the Applicant’s
second child would not be included in the family planning policy because he was
born in Canada. The Applicant
disputes the ultimate conclusion, but has failed to justify any intervention by
the Court. The mere fact that the Applicant disagrees with the conclusion, or
even that the Court might have come to a different conclusion, is not
sufficient to find the conclusion unreasonable. There is no basis for
disturbing the weight the Board gave to the evidence.
[22]
In
summary, the Board’s determination that the Applicant would not be at risk of
persecution for violating the family planning policy appears to be reasonable.
The Applicant disputes the determination, but she has failed to demonstrate
that it is unreasonable based on the evidence in the record. As such, the
decision cannot be set aside.
V. Conclusion
[23]
No
question was proposed for certification and none arises.
[24]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
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