Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Immigration ‑‑ Convention refugee ‑‑ Well‑founded fear of persecution because of membership in particular social group or political opinion ‑‑ Likelihood of forced sterilization following breach of China's one‑child policy ‑‑ Confession as to involvement in pro‑democracy movement ‑‑ Whether or not appellant had well‑founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion ‑‑ Whether or not sterilization a form of "persecution" within the meaning of s. 2(1)(a) of the Immigration Act ‑‑ Whether or not persons facing forced sterilization members of a "particular social group" ‑‑ Whether or not persons refusing forced sterilization expressing a "political opinion" ‑‑ Immigration Act, R.S.C., 1985, c. I‑2, ss. 2(1) "Convention refugee", (a)(i), (ii), (b), 3(g), 19(1)(c).
Appellant sought Convention refugee status because of his fear of being forcibly sterilized for a violation of China's one-child birth control laws. To be classified a Convention refugee, the appellant had to establish that he had a well‑founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion. He had been visited at his restaurant on a number of occasions by the Public Security Bureau (PSB) because of alleged involvement in the pro-democracy movement and had signed a confession to this effect in July 1989. He had been visited at home on five occasions by the PSB following the discovery of the second child in April 1990 and his wife lost her job because of the breach. To end these PSB visits appellant submitted a written undertaking to undergo sterilization within three months. He then fled China. Appellant alleged a fear of persecution by being forced to undergo sterilization. He testified that since leaving, his family had suffered harassment from the PSB and that, if returned to China, he might face arrest, imprisonment, long‑term unemployment or even murder. The Immigration and Refugee Board found that the appellant was not a Convention refugee. It held that forced sterilization did not constitute a form of persecution, so made no finding as to whether the appellant had a well‑founded fear of forced sterilization. The Federal Court of Appeal upheld the Board's decision. The issues to be considered here included: (1) whether forced sterilization is a form of "persecution" within the meaning of s. 2(1)(a) of the Immigration Act; (2) whether persons facing forced sterilization are members of a "particular social group"; (3) whether those refusing forced sterilization are expressing a "political opinion"; and (4) whether, assuming persons who have a well‑founded fear of sterilization for violating China's one‑child policy are eligible to be considered Convention refugees, the appellant has a well‑founded fear of forced sterilization or of other persecution.
Held (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting): The appeal should be dismissed.
Per Sopinka, Cory, Iacobucci and Major JJ.: A person facing forced sterilization was assumed (without its being decided) to be a member of a particular social group. The claimant, to establish a well‑founded fear of sterilization, must demonstrate subjective fear persecution and establish that this fear is well‑founded in the objective sense, both on a balance of probabilities.
A refugee claimant must establish to the Board's satisfaction that the alleged fear exists in his or her mind in order to meet the subjective aspect of the test for a well‑founded fear of persecution. Normally the claimant's evidence will be sufficient to meet the subjective aspect of the test where the claimant is found to be a credible witness and his or her testimony is consistent. Here, appellant's testimony, even with respect to his own fear of forced sterilization, was equivocal and inconsistent at times.
The appellant did not meet the burden of proof on the objective aspect of the test. Evidence with respect to the enforcement procedures used within a claimant's particular region at the relevant time was not presented to the Board. Such evidence, if not available in documentary form, can be established through testimony with respect to similarly situated individuals. Appellant provided neither. Nor did he produce any evidence that the forced sterilization is inflicted upon men in his area. In fact, the documentary evidence produced by the appellant strongly suggested that penalties for breach of the one‑child policy only applied against women. Then, too, the local authorities had taken no action to enforce appellant's signed consent to sterilization even though more than a year had lapsed and the fine levied for the breach of the birth control laws had still not been paid and, indeed, had been reduced. Absent any evidence to establish that his alleged fear of forced sterilization was objectively well‑founded, the Board was unable to determine that the appellant had a well‑founded fear of persecution in the form of a forced sterilization. The issue of whether or not the forced sterilization was related to the appellant's alleged involvement with the pro-democracy movement was not raised by the appellant at the Board level or on appeal and was not before this Court.
Per La Forest, L'Heureux‑Dubé and Gonthier JJ. (dissenting): The Court could not safely decide whether or not there was evidence on which the Board could conclude that the appellant was a member of a particular group. The matter should be remitted back to the Board to be decided in accordance with the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (the "UNHCR Handbook"). Using these guidelines for establishing the facts of a given case, a determination could be made as to whether a Convention refugee was entitled to any benefit of the doubt regarding his story.
Here, the appellant's account of events so closely mirrors the known facts concerning the implementation of China's population policy that, given the absence of any negative finding as to the credibility of the appellant or of his evidence, his quite plausible account is entitled to the benefit of any doubt that may exist. Sections of his testimony should not be seized upon in isolation. Such a technique is antithetical to the guidelines of the UNHCR Handbook. In light of these explicit guidelines, Canada's refugee burden should not be thwarted by an unduly stringent application of exacting legal proof that fails to take account of the contextual obstacles customary to refugee hearings.
The implementation of China's one-child policy, through sterilization by local officials, can constitute a well-founded fear of persecution. The alleged persecution does not have to emanate from the state itself to trigger a Convention obligation. Serious human rights violations may well issue from non‑state actors or from subordinate state authorities if the state is incapable or unwilling to protect its nationals from abuse. Determination of the precise degree of involvement by the Chinese government was neither necessary nor possible from the evidentiary record.
When the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution is crossed. Canadian judicial bodies may at that juncture pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status, assuming of course that the claimant's credibility is not in question and that his or her account conforms with generally known facts.
Basic human rights transcend subjective and parochial perspectives and extend beyond national boundaries. Recourse can be had to the municipal law of the admitting nation, nevertheless, because that law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights. Forced sterilization constitutes a gross infringement of the security of the person and readily qualifies as the type of fundamental violation of basic human rights that constitutes persecution. Notwithstanding the technique, forced sterilization is in essence an inhuman, degrading and irreversible treatment.
A well‑founded fear must be evaluated both subjectively and objectively. The fact that the appellant did not specifically invoke the term "fear of persecution" or equivalent words to that effect was of no particular import. The testimony of his harassment, together with his flight from China, directs a finding that he had an implicit well-founded fear of persecution. The generally known facts establish the existence of objective grounds for appellant's fearing forced sterilization. This was an issue for consideration by the Board.
A refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him‑ or herself. Rather, he or she must be voluntarily associated with a particular status for reasons so fundamental to that person's human dignity that he or she should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right. The right asserted can be categorized as the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. This fundamental right has been recognized in international law. The possibility also exists that the appellant may have a well-founded fear of persecution on the basis of a political opinion held by or imputed to him.
Cases Cited
By Major J.
Distinguished: Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314; referred to: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; R. v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All E.R. 193.
By La Forest J. (dissenting)
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; H. (W.I.) (Re), [1989] C.R.D.D. No. 15; Guo Chun Di v. Carroll, 842 F.Supp. 858 (1994); Xin‑Chang Zhang v. Slattery, 859 F.Supp. 708 (1994); Matter of Chang, Int. Dec. 3107 (1989); Minister for Immigration and Ethnic Affairs v. Respondent A (1995), 130 A.L.R. 48, rev'g (1994), 127 A.L.R. 383; Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154; Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129; Chen Zhou Chai v. Carroll, 48 F.3d 1331 (1995); Shu‑Hao Zhao v. Schiltgen, 1995 WL 165562; A. (W.R.) (Re), [1989] C.R.D.D. No. 98; K. (H.H.) (Re), [1991] C.R.D.D. No. 484; X. (D.K.) (Re), [1989] C.R.D.D. No. 293.
Statutes and Regulations Cited
Convention on the Elimination of All Forms of Discrimination against Women, March 1, 1980, Can. T.S. 1982 No. 31, art. 16(1)(e).
Immigration Act, R.S.C., 1985, c. I‑2, ss. 2(1) "Convention refugee" [rep. & sub. c. 28 (4th Supp.), s. 1], (a)(i), (ii), (b), 3(g), 19(1)(c).
International Covenant on Civil and Political Rights, December 19, 1966, Can. T.S. 1976 No. 47, art. 23(2).
Authors Cited
Aird, John S. Slaughter of the Innocents: Coercive Birth Control in China. Washington, D.C.: The AEI Press, 1990.
Gewirtz, Daniel S. "Toward a Quality Population: China's Eugenic Sterilization of the Mentally Retarded" (1994), 15 N.Y.L. Sch. J. Int'l & Comp. L. 139.
Gregory, Lisa B. "Examining the Economic Component of China's One-Child Family Policy Under International Law: Your Money or Your Life" (1992), 6 J. Chinese L. 45.
Lin, Stanford M. "China's One‑Couple, One-Child Family Planning Policy as Grounds for Granting Asylum ‑‑ Xin‑Chang Zhang v. Slattery, No. 94 Civ. 2119 (S.D.N.Y. Aug. 5, 1994)" (1995), 36 Harv. Int'l L.J. 231.
Macklin, Audrey. "Canada (Attorney‑General) v. Ward: A Review Essay" (1994), 6 Int'l J. of Refugee L. 362.
Moriarty, Tara A. "Guo v. Carroll: Political Opinion, Persecution, and Coercive Population Control in the People's Republic of China", 8 Geo. Immigr. L.J. 469.
Shiers, E. Tobin. "Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers" (1990), 30 Va. J. Int'l L. 1007.
United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status. Geneva: 1979.
United Nations. Programme of Action of the United Nations International Conference on Population and Development. Draft, unedited version, Principle 8; c. VII, para. 7.2.
United States of America. Department of State. Report submitted to the Committee on Foreign Affairs, U.S. House of Representatives and the Committee on Foreign Relations, U.S. Senate. Country Reports on Human Rights Practices for 1993. Washington: U.S. Government Printing Office, 1994.
United States of America. Department of State. Report submitted to the Committee on Foreign Relations, U.S. Senate and the Committee on Foreign Affairs, House of Representatives. Country Reports on Human Rights Practices for 1990. Washington: U.S. Government Printing Office, 1991.
Valpy, Michael. "The suspicion of a gelded refugee process", Globe and Mail, Toronto, March 7, 1995, p. A2.
APPEAL from a judgment of the Federal Court of Appeal, [1993] 3 F.C. 675, 156 N.R. 279, 20 Imm. L.R. (2d) 181, dismissing an appeal from a judgment of the Immigration and Refugee Board (Refugee Division). Appeal dismissed, La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting.
Rod Holloway and Jennifer Chow, for the appellant.
Gerald Donegan, for the respondent.
Brian A. Crane, Q.C., and Howard Eddy, for the intervener Immigration and Refugee Board.
Ronald Shacter, for the intervener Canadian Council of Refugees.
The reasons of La Forest, L'Heureux-Dubé and Gonthier JJ. were delivered by
1 La Forest J. (dissenting) -- This case raises several issues concerning the definition of a "Convention refugee" in s. 2(1) of the Immigration Act, R.S.C., 1985, c. I‑2 (rep. & sub. c. 28 (4th Supp.), s. 1), first considered by this Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. That section reads:
2. (1) . . .
"Convention refugee" means any person who
(a)by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b)has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
2 The present appeal is from a judgment of the Federal Court of Appeal which dismissed an appeal from an Immigration and Refugee Board decision denying the appellant's claim for Convention refugee status. At issue is whether a well‑founded fear of forced sterilization for failure to comply with China's birth control policy is a "well‑founded fear of persecution" for reasons of "membership in a particular social group". The appeal also deals with the proper interpretation of "persecution", "membership in a particular social group", and "political opinion" as defined in the Act and explained by this Court in Ward, supra. In considering these questions it will be necessary to determine the proper evidentiary approach to be applied to the testimony of a refugee claimant.
Facts
3 The appellant, Kwong Hung Chan, is a citizen of the People's Republic of China (China) from Guangzhou City. His ethnic origin is Han Chinese. During the Cultural Revolution, he and his family suffered persecution because of his father's background as a landowner, but there was no other evidence of persecution for this reason beyond the period of the Cultural Revolution.
4 In June, 1989, pro‑democracy students demonstrated in front of his restaurant. The appellant donated food and drinks and some money to support the students. From July 1989, until April 1990, officers of the Public Security Bureau (PSB) visited the appellant's restaurant ten or more times, usually the same group of four to six officers. The PSB officers accused the appellant of having participated in the pro‑democracy movement and of being a counter‑revolutionary. Staff and customers of the restaurant were interrogated. After the officers' second visit in mid‑July 1989, the appellant voluntarily reported to the local PSB office to write a confession of his pro‑democracy activities. The interrogatory visitations of PSB officers continued for months after this confession.
5 In November 1989, 12 years after their first child was born, the appellant's wife gave birth to their second child, thereby violating China's much publicized one-child birth policy. His evidence was that the PSB learned of the second child while conducting a census in April 1990. In late May 1990, the appellant and his family were accused by PSB officers and local neighbourhood committee members of violating China's birth control policy. The PSB officers immediately informed his wife's work unit of the family's population policy violation, causing her to lose her job.
6 PSB officers together with members of the neighbourhood committee visited the appellant's home on five different occasions in all before his flight from China. He testified that they insulted his family, calling them the "enemy of the class" and stating that they had purposely disobeyed the government's birth control policy, thereby causing the neighbourhood committee to be deprived of a low birth rate bonus. The officers demanded that the appellant pay a substantial fine and that either the appellant or his wife be sterilized. The appellant testified that the PSB officers stated that if neither he nor his wife was willing to be sterilized then one of them would be forced to submit to this procedure. The appellant's family discussed their dilemma and decided that, in order to prevent further PSB harassment, the appellant would give the PSB officers a signed document stating that he would agree to undergo sterilization within three months. The appellant testified, however, that he "never thought of going to have this kind of cruel operation".
7 During the last of the five visits to the appellant's family home, the PSB officers demanded payment of the monetary sanction imposed for violation of the one-child policy. The appellant told the officers that his family did not have sufficient money to pay the fine.
8 The appellant left China on July 19, 1990, three weeks after the fifth visit of the PSB officers to his home, and before the expiration of the three-month period within which he had agreed to submit to sterilization. The appellant travelled initially to Hong Kong and, on July 23, 1990, proceeded to Canada where he immediately sought Convention refugee status. His hearing before the Board occurred 16 months after he left China.
9 Before the Board the appellant claimed that after his departure his family continued to be harassed by the PSB for violating the one-child policy. Appellant's counsel submitted in evidence two letters sent from the appellant's wife in China, respectively six and ten months after his arrival in Canada. These letters recounted further PSB and neighbourhood visits in which the authorities continued to seek the appellant, demanding his arrest and sterilization. According to the second letter, the authorities seized certain items of the family's personal property as security for the still unpaid fine. The appellant's wife expressed concern that if the fines were not paid, the couple's second child would not be able to be a registered household member, thereby affecting the child's future social benefits. Subsequent to the second letter, the appellant was informed by telephone that his wife was taken and detained overnight by the police. The appellant further testified that the neighbourhood committee prevented the appellant's wife from getting another job by refusing to exercise their authority to issue the requisite job replacement certificate. The appellant stated that if he were returned to China he could be imprisoned, permanently prevented from working, and possibly murdered. He testified that the government would not listen to his complaints and that the neighbourhood committee might attempt to exact revenge for having adversely affected the bonus of some of its members.
Judgments
Immigration and Refugee Board (Refugee Division) October 23, 1991
10 Before the Refugee Board, the appellant claimed refugee status on the grounds of his political opinion and his membership in a particular social group.
11 The Board first set forth the facts substantially as I have just given them. As Mahoney J.A. later observed, the Board neither made nor implied any adverse finding as to the credibility of his evidence, and the appellant's Personal Information Form and viva voce evidence are entirely consistent with one another.
12 The Board then proceeded to examine the appellant's claim on the stated grounds. As to membership in a particular social group, the Board identified the relevant group as his family, and dismissed his claim on that basis because it did not find the claimant had good ground for fearing persecution because of his family background. This portion of its reasons read as follows:
Membership in a Particular Social Group
This panel accepts that the various members of the claimant's family, including the claimant, have suffered persecution during the Cultural Revolution due to their family background. However, no evidence was adduced to suggest that the claimant was persecuted beyond the period of the Cultural Revolution. Furthermore, he was able to subsequently obtain a university education and several managerial positions. According to all the above, this panel does not find the claimant to have good grounds for fearing persecution based on his membership in a particular social group, namely, his family background.
13 The Board then considered the appellant's claim to refugee status on the basis of well-founded fear of persecution because of his political opinion on two separate bases. First it found that the appellant did not have good grounds for fearing persecution by reason of his political opinion as manifested through his pro‑democracy activities. It then dealt with the appellant's allegation of a fear of persecution by being forced to undergo sterilization, which became the principal issue on appeal. The Board dismissed this ground because it did not find sterilization to be a form of persecution for a Convention reason, but rather as a government measure to implement a general family planning policy. There was, it added, no evidence adduced to suggest the appellant would be physically abused during the sterilization process. It also noted the appellant's testimony that he did not wish to have any more children. The Board, in consequence, held that the appellant's claim on this ground to be unfounded. Its reasons regarding political opinion read:
Political Opinion
Sometime between July and August 1989, the claimant voluntarily handed in a written confession of his pro‑democracy activities to the PSB. Thereafter, the claimant remained in the PRC until July 1990. Subsequent to his confession, the PSB officers visited the claimant's restaurant on numerous occasions to conduct interrogations of the claimant, his staff, and his customers on the subject of the pro‑democracy movement. The claimant was present during three such interrogations. Despite their knowledge of the claimant's participation in the pro‑democracy activities, the PSB never arrested or detained him, even though they had ample opportunity. Furthermore, no evidence was adduced to suggest that the investigation into the matter of the claimant's involvement with the pro‑democracy movement went beyond April 1990. Finally, the claimant's family encountered no difficulties in renewing the claimant's driver's licence (exhibit # 3) with the PSB in December 1990, five months after the claimant had fled the PRC. Based on the evidence, this panel does not find the claimant to have good grounds for fearing persecution by reason of his political opinion as manifested through his pro‑democracy activities.
The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well‑founded.
14 The Board accordingly found that the appellant was not a Convention refugee.
Federal Court of Appeal, [1993] 3 F.C. 675
15 An appeal to the Court of Appeal was dismissed by a majority; Heald and Desjardins JJ.A. gave separate reasons. Mahoney J.A. dissented.
Heald J.A.
16 Heald J.A. initially noted the appellant's oral submission that the sole issue he would be raising was "the sterilization issue". He added that there was support on the record for the Board's finding that the appellant was neither persecuted because of his family membership nor because of his political opinion, so that these findings should not be disturbed. This left as the sole issue whether coerced sterilization could give rise to a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.
17 On the latter issue, Heald J.A. observed, at p. 686, that in Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), a decision rendered shortly before the present case, the court had concluded, at p. 322, that "forced or strongly coerced sterilization" constituted persecution since sterilization violated a woman's security of the person and subjected her to cruel, inhuman and degrading treatment. He agreed that it had not been shown that sterilization of a man was qualitatively different from that of a woman and that, therefore, forced or strongly coerced sterilization would amount to persecution.
18 Heald J.A. then noted, however, that in Cheung a distinction had been made between women who have more than one child and have a reasonable fear of forced sterilization and those who have more than one child but do not have such a fear. Only the former could claim a well‑founded fear of persecution under the Refugee Convention. He recognized that forced sterilization is not a law of general application in China, but rather an enforcement measure taken by some local authorities and tacitly accepted by the central government. He observed that the reasonable chance that acceptable sanctions such as economic measures might exist made the determination of whether or not a person has a well‑founded fear of persecution a subtle finding of fact.
19 Heald J.A. contrasted the record of the present case to the uncontested testimony in Cheung, and found on the evidence that the appellant had a well‑founded fear of persecution equivocal. He seized upon specific portions of the appellant's translated testimony as revealing ambiguity by the appellant on whether or not he faced a reasonable chance of sterilization. Heald J.A. observed that the appellant's testimony evidenced the imposition of important economic sanctions which, as Cheung indicated, were not sufficient to establish persecution. Upon a consideration of the evidence, Heald J.A. remained unconvinced that the appellant had a well-founded fear of persecution in the form of sterilization. Nonetheless, he proceeded to consider the second branch of the Convention refugee test, the enumerated grounds, i.e., membership in a "particular social group" and "political opinion".
20 Heald J.A., at p. 691, considered the appellant's particular social group as "parents in China with more than one child who disagree with forced sterilization". That group did not, he noted, fall within any of the three categories set out in the working rule in Ward, at p. 739, namely:
(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
The group did not fall within the first category because the number of offspring one has is neither innate nor unchangeable. The conditions of the second category were also not met because of the lack of voluntary association amongst members of this group. Finally, he noted that the group failed the third Ward category because it had no historical permanence.
21 Heald J.A. then elaborated upon his finding that the appellant's particular social group failed to meet any of the Ward categories. He noted that while parents who have breached the one-child policy are identifiable, the sub‑group of those persons faced with sterilization could not be recognized until after the treatment had been ordered. Indeed, he found that the group was defined solely by the fact that its members face a particular form of persecutory treatment; the finding of membership in a particular social group was dictated by the finding of persecution. Heald J.A. found that to employ this logic would reverse the statutory definition in which persecution must be driven by one of the enumerated grounds and not the inverse. He also noted, at p. 693, that Ward had rejected an approach whereby groups were defined "merely by virtue of their common victimization as the objects of persecution". He decided that the appellant's fear clearly stemmed from what he did as opposed to what he was.
22 Heald J.A. then considered the argument that a failure by a citizen to agree to sterilization under the policy in force in China was tantamount to a political statement in that it would be perceived as an anti‑governmental political opinion, which would constitute a well‑founded fear of persecution. He examined the appellant's testimony and found there was little evidence to support such a finding. Although this Court in Ward, at p. 746, adopted a broad definition of political opinion ‑‑ "any opinion on any matter in which the machinery of state, government, and policy may be engaged" ‑‑, some limits on the definition of political opinion were required to prevent the enumerated grounds from being obviated. The persecutory treatment emanated not from a refusal to submit to sterilization but from breach of the one-child policy which he likened to a breach of a provision of Canada's Criminal Code , generally not viewed as a political statement. He could see no evidence that the authorities perceived the appellant's acts as a political statement or as a challenge to their authority. Heald J.A. then considered that the population policy was well within the jurisdiction of the Chinese government, and could not, in itself, be categorized as persecutory. While Heald J.A. abhorred the penalty, he concluded, at p. 696, that the appellant had not succeeded in establishing that the alleged persecution was by reason of "political opinion".
Desjardins J.A.
23 The other majority judge, Desjardins J.A., noted that while she found the appellant's testimony and evidence not free from ambiguity, she would not decide this appeal on its facts alone, choosing instead to address the highly complex issues regarding the meaning of the terms "particular social group", "political opinion", and "persecution".
24 Desjardins J.A. quickly disposed of the contention that the appellant belonged to a "particular social group" under the second or third branches of the Ward working rule because these involved a voluntary status and there was none here. Turning then to the first branch, "a group `defined by an innate or unchangeable characteristic'", she found that the "innate or unchangeable characteristic" had to be distinguished from the basic human right which the group might defend. The innate characteristic had to be so strong that it would make a group of individuals what they are, independently of that for which they fight. While she accepted that forced sterilization violated the basic human right of reproductive control, Desjardins J.A. found that while the basic rights of the group were threatened, the appellant's group was not affiliated in so fundamental a manner as to qualify as a particular social group. A violation of a basic human right did not, by itself, create a "particular social group". She stated, at p. 721:
The appellant is essentially targeted because of what he did (i.e., he violated the one‑child policy) and not because of what he is (i.e., a Chinese father). The reprimand, i.e., forced sterilization, is in violation of his basic human right, but this right is common to humanity, not common to his group. He objects, rightly so, to forced sterilization. But that is what he is fighting against. It cannot be an "innate" characteristic of his group. [Emphasis in original.]
25 She further found that the procedure carried out by some local officials in China was not a sterilization policy to prevent childbearing, but was instead a measure of punishment for excess births. She noted that the policy itself had not been challenged before the court and therefore remained legitimate.
26 Desjardins J.A. then examined whether there was any basis for a claim on the ground of political opinion, under the guidelines provided by this Court in Ward. She considered whether the appellant's action, motivated in defence of his basic human rights, could be viewed by the Chinese local authorities as a gesture of defiance to the national authority, particularly since that country was governed by an authoritarian form of government. Absent specific evidence, however, she hesitated to make such an inference considering that local authorities enforced the sterilization policy.
27 Desjardins J.A. added, however, that she preferred not to decide the case on the sole basis of lack of evidence, so she proceeded to a substantive examination of the issues as framed by the appellant. The claimant's objection, she noted, related to the means employed by some local authorities to enforce a general policy. This, she stated, raised two questions: first, whether forced sterilization as a measure of population control amounted to "persecution" under the Convention relating to the status of refugees and the Immigration Act, and second what the scope of the Convention itself should be.
28 As to the first question, Desjardins J.A. acknowledged that the term persecution itself was broad but, as the record was silent as to the medical procedure followed, she found, at p. 724, that she "must assume . . . that it is carried out through a normal [medical] procedure currently in use by those who voluntarily opt for this procedure elsewhere, including this country".
29 As to the second question, Desjardins J.A. held, at p. 724, that since the validity of the Chinese government's population control policy was not in question, it could not be said "that when a foreign government employs means that violate basic human rights, as known in Canada, so as to ensure the respect of a valid social objective, such means amount to `persecution' under the Convention". She found that the Convention was not meant to protect those who resist the realization of valid state objectives but rather those who become victims by virtue of the pursuit of illegitimate goals by the state.
Mahoney J.A. (dissenting)
30 Like Heald J.A., Mahoney J.A. began by observing that the appellant's counsel had chosen not to argue any of the grounds raised in her memorandum but, instead, relying entirely on the Cheung case, supra, asserted, at p. 705, a claim based solely on the appellant's fear of sterilization as a member of a particular social group, namely, "parents in China with more than one child who do not agree with the Government's sterilization policy". Under these circumstances, he found it necessary to confine himself to the sterilization ground.
31 Having examined the record, he then cited, at p. 702, the penultimate paragraph of the refugee panel's reasons as being the "entirety of the decision" dealing with the appellant's fear of sterilization, which reads:
The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well‑founded.
32 Mahoney J.A. then reviewed the Board's decision, at p. 702. He first observed that "[t]he suggestion that evidence is necessary to establish that forced sterilization entails physical abuse calls into question the panel's understanding of what is meant by `physical abuse' in any ordinary sense of the term". He then added that the appellant's testimony that he did not wish to have more children and another remark expressing his personal intention did not support a conclusion that his fear of persecution in the form of forced sterilization was not well‑founded, because there was no suggestion that the authorities shared his opinion or that he thought they did.
33 Mahoney J.A. then concluded these preliminary comments, at p. 702, by stating that "[t]he validity of the tribunal's finding that `sterilization (is not) a form of persecution for a Convention reason' depends entirely on the qualification `for a Convention reason'".
34 The remainder of his reasons are devoted to that issue. In undertaking that task Mahoney J.A. first considered the case of Cheung, in which a unanimous panel of the Federal Court of Appeal consisting of himself, Linden and Stone JJ.A. had previously decided that forced sterilization fell within the definition of persecution as contemplated by the Convention refugee definition. He cited (at p. 703) from the reasons of Linden J.A. who stated:
Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in pursuit of a legitimate end is still brutality.
The forced sterilization of a woman is a fundamental violation of basic human rights. It violates Articles 3 [life, liberty and security of the person] and 5 [cruel, inhuman or degrading treatment or punishment] of the United Nations Universal Declaration of Human Rights.
35 Mahoney J.A. then referred, at p. 704, to E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, in which this Court found, in the case of a female incompetent, that non‑therapeutic sterilization without consent was a "grave intrusion on a person's rights" and an "irreversible and serious intrusion on the basic rights of the individual". He found no distinction between the sexes that would alter this characterization. Mahoney J.A. stated, at p. 704, that "[w]hatever view may be taken of the other sanctions by which the population control policy is enforced, involuntary sterilization ‑‑ physical abuse that is an irreversible and serious intrusion on the basic rights of the individual ‑‑ is persecution". The evidence, he noted, indicated that the central government, by its passivity, either tolerated or abetted the excesses of local officials in their enforcement of its population control policy by means it officially disavowed. He concluded that a well‑founded fear of sterilization amounted to a well‑founded fear of persecution and, on the evidence, that the appellant's fear of sterilization were he returned to China was both subjectively and objectively well‑founded.
36 Mahoney J.A. then proceeded to determine whether the reason for persecution was membership in a particular social group and, if so, whether that social group fell within one of the categories identified in Ward. He found no meaningful distinction between the particular social group identified in Cheung and the present case. That case, he stated, held that women in China who have more than one child and were faced with forced sterilization are to be considered as a "particular social group". He dismissed as unacceptable the submission of the appellant's counsel that the social group in issue was women in China with more than one child who do not agree with the government's sterilization policy.
37 Mahoney J.A. then observed that if under the refugee determination process it was decided that the reason for the persecution was membership in a particular social group, the next question was whether that social group fell within one of the categories identified in Ward. To assist in the latter determination, he posed the question (at p. 707): "is the personal characteristic shared by members of the group analogous to race, religion, nationality or political opinion in that it is either unchangeable because it is innate or a fact rendered permanent by history or, although changeable, so fundamental to their human dignity that they should not be forced to abandon it?" He then applied the Ward working rule and decided, at pp. 707-8, that:
As to the second and third categories, I take the notion of "voluntary association" to be an antonym to the "innate or unchangeable characteristics" of the first, and not to imply that an organization has necessarily been joined or an association formed. That would appear to accord with the "normal" definition of the UNHCR Handbook.
77. A "particular social group" normally comprises persons of similar background, habits or social status.
. . .
I have been unable to conceive of a reason, fundamental to human dignity, for persons to associate formally which would not result in a membership that was either religious or expressive of political opinion and, thus, obviate the need for recourse to the particular social group class of the definition. In my opinion, it is the shared reason fundamental to their human dignity that defines and constitutes the second group. A conscious act of association is not an essential element.
I should add that he had earlier noted that the working rules in Ward were framed in terms of individuals rather than organized groups.
38 Mahoney J.A. then cited (at p. 709) a passage from Cheung, previously approved by this Court in Ward:
All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman's reproductive liberty is a basic right "ranking high in our scale of values".
And he noted, at p. 709, the observation in Ward that this approach placed "the focus of the inquiry . . . on the basic right of reproductive control". Finally, Mahoney J.A. observed, at p. 709, that "[n]othing in Cheung suggests that the claimant had adhered to any sort of a formal association".
39 In concluding Mahoney J.A. expressed his profound disagreement with the notion that the legitimacy of the population control policy excluded persecution in pursuit of it from the Convention refugee definition. He would have allowed the appeal, set aside the decision of the Refugee board and declared the appellant to be a Convention refugee on the following basis (at pp. 709-10):
I understand Eve to be authority for and Ward, by its treatment of Cheung, to approve the proposition that the right to reproductive control is fundamental to human dignity. If it may be correctly said that, as in Ward, this appellant is threatened by persecution for what he (and his wife) did, not for what they were, what they and each of them, did ‑‑ exercise a fundamental human right to reproductive control ‑‑ is very different in quality to what Ward had done and identical to what Ms. Cheung (and her husband) had done.
. . .
In my opinion, this case is not distinguishable from Cheung and nothing in Ward casts any doubt on the correctness of the Cheung decision. Quite the contrary.
The Appeal Before This Court
40 The appellant sought and was granted leave to appeal to this Court. He alleged that the Federal Court had erred in the following respects:
(a)in deciding that forced sterilization was not persecution as contemplated in the definition of Convention refugee;
(b)in deciding that the appellant did not face persecution on the basis of "political opinion";
(c)in deciding that the appellant did not fall within a "particular group" because his affiliation with the social group was based not on what he was, but what he did;
(d)by making unnecessary and improper findings of fact and credibility in deciding whether the appellant faced a reasonable chance of persecution by sterilization; and
(e) in departing from its recent decision in Cheung, which held that a person who faced sterilization for breach of China's one-child policy was a member of a particular social group.
41 In the Court of Appeal, counsel for the respondent the Minister of Employment and Immigration had contested all the substantive legal grounds advanced by the appellant in the present case. In the appeal before this Court, however, counsel abandoned most of those positions. Thus he accepted paragraph (a) that forced sterilization constituted persecution, which he qualified as "an extreme violation of the right to security of the person", and as such "an extreme violation of his human rights". He further accepted on the basis of instructions from the Minister and this Court's decision in Ward, supra, that the appellant could be a member of a particularized group, and that association with such a group is not limited to some sort of conscious affiliation in the sense of an awareness of membership. In short, counsel does not appear to differ from the appellant as regards the definition of a particular group. Far from disagreeing with the appellant, in common with all the interveners, he encouraged the Court to clarify these issues.
Unlike his position in the Court of Appeal, his argument before our Court was that there was no evidence in the present case upon which the Board could conclude that the appellant was a member of a particular group or alternatively that it was unsafe for a court of appeal to decide the matter, in which case it should be referred back to the Board. I add that counsel took the view that the Court of Appeal did not err in holding, on the evidence, that the appellant did not face persecution by reason of political opinion. I shall deal with all these issues.
Analysis
The Factual Issue
42 Let me state at the outset that the respondent Minister was, in my view, correct in adopting the position he took in relation to the substantive legal issues set forth in the preceding paragraph, and I shall, as all parties requested, attempt to clarify these issues later. Before doing so, however, it is first necessary to consider the respondent's contention that there was no evidence upon which the Board could conclude that the appellant was a member of a particular group. I say immediately that I cannot accept this contention. Rather, I agree with the alternative position of both parties that it would be unsafe for a court of appeal to decide the matter and would remit the matter back to the Board. The Board, it will be remembered, dismissed the appellant's allegation of a fear of persecution by being forced to undergo sterilization on the legal ground that it did not find sterilization to be a form of persecution for Convention reasons. It made no factual finding for or against the appellant's facing a reasonable chance of sterilization. That, coupled with the fact that in the words of the members of the majority of the Court of Appeal, the evidence on a number of crucial issues is "equivocal" or "ambiguous", in itself, justifies ordering a new hearing before the Board, the members of which have the relevant experience and training to assess such matters. I will in the course of these reasons have occasion to refer to some instances of these factual ambiguities about which, removed as we are, my colleague Justice Major and I would tend to take divergent views.
43 Since I have determined that the case should be remitted to the Board, I would ordinarily prefer not to comment further on the facts. However, since my colleague has decided that the appeal should be dismissed on a factual basis, I find it necessary to give my perspective on the facts. In doing so, however, I am cognizant that this Court is a court of law, not facts. Accordingly, as triers of fact, it is incumbent on the Board, and not this Court, to find whether or not the appellant was in fact a refugee uninhibited by any views I may have formed on the matter.
44 In undertaking a factual examination, it seems to me, one cannot ignore the contextual considerations arising out of the inherent obstacles that attend refugee hearings. In elucidating what I have in mind, I find it necessary to consider both the purpose of a refugee hearing and the inherent obstacles that attend this particular inquiry. The challenges of an immigration hearing were well summarized in a recent article by Michael Valpy ("The suspicion of a gelded refugee process", Globe and Mail (Toronto), March 7, 1995, at p. A2), who remarked:
A refugee hearing is probably one of the most difficult judicial or quasi‑judicial events existing in Canada.
Its purpose is to examine someone from a different culture, speaking a different language, from a country that lies perhaps thousands of kilometres away. Its objective is to determine not so much what has happened but what will happen if that person is returned to where he or she came from. [Emphasis in original.]
45 A reviewing court must, in assessing a Board's factual decision, attempt to put itself in its position. This can pose serious difficulties where the Board has made no finding on a critical issue but has simply disposed of the matter on the basis of a legal finding. This difficulty is increased because of difficulties that arose in the process of translation. Possibilities of distorted renderings of the evidence always exist, and this at times makes it difficult to understand when reduced to writing, a factor that is not absent in this case. Moreover, at a critical point in the testimony ‑‑ when the appellant responded to a question concerning his disobeying the Chinese one-child policy ‑‑, the Presiding Member of the Refugee Board detected that the appellant had responded in a more comprehensive manner than the interpreter. The appellant was then told that he would have to ensure that his sentences were short enough that the interpreter would be able to translate fully. Whether or not vital information was lost through imprecise or incomplete translation of the appellant's testimony that would be relevant in determining factual issues never considered by the Board is unknown. Unfortunately, the Board did not direct the Refugee Hearing Officer to cross‑examine the appellant, a measure that might well have enhanced the evidentiary foundations of this case.
46 These considerations reinforce my view that this Court should not simply disallow the appellant's Convention refugee claim on the basis that he failed to establish that he had an objectively well‑founded fear of persecution in the form of sterilization. Instead, as I noted, I believe the appellant is entitled to have his claim reheard before a Refugee Board in accordance with the guidelines of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status, the "UNHCR Handbook". As I noted in Ward, at pp. 713-14, while not formally binding upon signatory states such as Canada, the UNHCR Handbook has been formed from the cumulative knowledge available concerning the refugee admission procedures and criteria of signatory states. This much‑cited guide has been endorsed by the Executive Committee of the UNHCR, including Canada, and has been relied upon for guidance by the courts of signatory nations. Accordingly, the UNHCR Handbook must be treated as a highly relevant authority in considering refugee admission practices. This, of course, applies not only to the Board but also to a reviewing court.
47 Under the UNHCR Handbook heading "Establishing the facts" the following critical paragraphs appear. They need to be read as a whole but I have emphasized some parts to give an immediate flavour of their content.
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.
. . .
201. Very frequently the fact‑finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant's experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be "the last straw"; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear "well‑founded"....
202. Since the examiner's conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an "undeserving case".
. . .
203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. [Emphasis added.]
China's One-Child Policy
48 While the state of affairs existing in certain countries from which a refugee seeks asylum may well be entirely unknown to most Canadians, the Refugee Board is in a different position, given its constant concern with such matters. That noted, the Refugee Board must be conceded a reasonable amount of time to familiarize itself with the latest international developments causing refugees to flee to countries such as Canada which have accepted the responsibility of harbouring persecuted persons. Such a highly publicized matter as China's population policy, which has been the subject of much attention in human rights and immigration law circles as well in the popular media since its inception in 1979, can be said to fall well within the UNHCR Handbook category of "generally known facts" (see paragraph 204 of the UNHCR Handbook, supra).
49 Canadian refugee boards have considered refugee claimants from China alleging fear of persecution in the form of sterilization dozens of times in the last five years alone; see infra. Indeed, during that period there have been more than 20 refugee claimants who alleged forced sterilization or forced abortion from Guangzhou City alone, the home city of the appellants in both the present case and in Cheung. I state in passing that while there have been many Chinese claimants alleging persecution similar to that of the appellant, there has been, by no measure, a deluge of refugee claimants. As early as 1989 a Refugee Board accepted the testimony of a refugee claimant alleging sterilization as a form of persecution; see H. (W.I.) (Re), [1989] C.R.D.D. No. 15 (No. V89‑00501). There is no evidence that following this decision, for instance, Canada's ability to fulfil its Convention refugee admittance obligations was in any way compromised. Rather, over the last five years, Canada has continued to grant Convention refugee status to approximately 70 percent of all claimants, or 15,224 persons in 1994: Immigration and Refugee Board, News Release, March 14, 1995. Only 314 of those claimants in 1994 were from China and, of course, many of these claimed Convention refugee status for reasons other than coerced sterilization.
50 It is a generally known fact that nations subject to the same Convention refugee obligations as Canada, such as the United States and Australia, have also been concerned with Chinese refugee applicants recounting stories of alleged persecution remarkably similar to that of the present appellant: for representative examples see Guo Chun Di v. Carroll, 842 F.Supp. 858 (E.D.Va. 1994); Xin‑Chang Zhang v. Slattery, 859 F.Supp. 708 (S.D.N.Y. 1994), and Matter of Chang, Int. Dec. 3107 (BIA1989). Academic authorities have also extensively canvassed the topic of refugees from China alleging persecution in the form of coerced sterilization; see, among other sources, Stanford M. Lin, "China's One‑Couple, One-Child Family Planning Policy as Grounds for Granting Asylum ‑‑ Xin‑Chang Zhang v. Slattery, No. 94 Civ. 2119 (S.D.N.Y. Aug. 5, 1994)" (1995), 36 Harv. Int'l L.J. 231; Tara A. Moriarty, "Guo v. Carroll: Political Opinion, Persecution, and Coercive Population Control in the People's Republic of China", 8 Geo. Immigr. L.J. 469; Daniel S. Gewirtz, "Toward a Quality Population: China's Eugenic Sterilization of the Mentally Retarded" (1994), 15 N.Y.L. Sch. J. Int'l & Comp. L. 139; Lisa B. Gregory, "Examining the Economic Component of China's One-Child Family Policy Under International Law: Your Money or Your Life" (1992), 6 J. Chinese L. 45, and E. Tobin Shiers, "Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers" (1990), 30 Va. J. Int'l L. 1007.
51 The U.S. Department of State's Country Reports on Human Rights Practices for 1993, February 1994 ("Country Report") summarizes what an examination of the mentioned cases and articles indicates. Earlier, largely unchanged versions of this oft‑cited annual report, were available at the time the Board rendered judgment. The Country Report states at p. 609:
China's population has roughly doubled in the past 40 years to nearly 1.2 billion people, over a fifth of all humanity. In the 1970's and 1980's China adopted a comprehensive and highly intrusive family planning policy. This policy most heavily affects Han Chinese in urban areas. For urban couples, obtaining permission, usually issued by their work units, to have a second child is very difficult. Numerous exceptions are allowed for the 70 percent of Han who live in rural areas. Ethnic minorities are subject to less stringent population controls. Enforcement of the family planning policy is inconsistent, varying widely from place to place and year to year.
The population control policy relies on education, propaganda, and economic incentives, as well as more coercive measures, including psychological pressure and economic penalties. Rewards for couples who adhere to the policy include monthly stipends and preferential medical and educational benefits.
Disciplinary measures against those who violate the policy include stiff fines, withholding of social services, demotion, and other administrative punishments, including, in some instances, loss of employment. Unpaid fines have sometimes resulted in confiscation or destruction of personal property. Because penalties for excess births may be levied against local officials and the mothers' work units, many persons are affected, providing multiple sources of pressure.
Physical compulsion to submit to abortion or sterilization is not authorized, but Chinese officials acknowledge privately that there are still instances of forced abortions and sterilizations in remote, rural areas. Officials maintain that, when discovered, abuses by local officials result in discipline or retraining. They admit, however, that stronger punishment is rare and have not documented any cases where punishment has occurred.
52 The Country Report, at p. 605, specifically discusses "Political and Other Extrajudicial Killing" and "Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment". The report finds that, in 1992 for instance, at least 12 people died as a result of torture while in Chinese police custody. An example is offered of a farmer who was beaten to death by local officials after he protested the level of taxes and fees. Credible reports are also noted of both male and female detainees being punished with the use of cattle prods, electrodes, beatings, and shackles. According to the Country Report, some persons involved in both the 1989 Tianamen Square uprising and certain activists who wish to free Tibet from Chinese occupation continue to be detained as political prisoners. The number of such persons is impossible to determine but, by some estimates, it may be in the thousands. In sum, the Country Report offers a portrait of a nation with, at best, a checkered human rights record.
53 I should add that other countries that have assumed Convention refugee obligations are also confronting Chinese refugee claims alleging coerced sterilization similar to that of the present appellant. Australia is one; see for example the recent decision of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v. Respondent A (1995), 130 A.L.R. 48, to which reference is made later in these reasons. Interestingly, the husband and wife in that case came, once again, from the environs of Guangzhou City.
Benefit of the Doubt
54 The appellant's account of harassment and threatened persecution at the hands of PSB officials can be compared with the generally known factual picture that emerges upon an examination of all available evidence from the mentioned sources. Using the guidelines provided by UNHCR Handbook for establishing the facts of a given case (see especially paragraph 203), it can be determined whether a Convention refugee is entitled to any benefit of the doubt regarding his story.
55 In this case, the appellant's description of events very closely conforms with what is known now, and what was readily available to the Refugee Board at the time of his hearing. The appellant is a member of the Han Chinese ethnic group. He is from an urban area, Guangzhou City, whose local authorities practise population control coercion in the form of forced sterilization as confirmed by numerous other refugee claimants. The appellant claims that he was subject to psychological pressure and threatened with disciplinary measures including stiff fines and coerced sterilization, not necessarily by the government itself, but certainly by local officials of the PSB and neighbourhood committee members. He testified that his wife has been prevented from acquiring another job. His wife's letters stated that personal property had been confiscated and that their second child's registration within his family was threatened, a serious penalty in a country in which "unauthorized" children lose their right to free education and health care subsidies; see, among other sources, Gregory, supra, p. 52. He further testified that if he were returned to China, disciplinary measures could include imprisonment, denial of access to employment, and possibly murder. In effect, his testimony can be seen to reflect what the Country Report cites as customary; his decision to have a second child had the effect of providing multiple sources of pressure from both PSB officers and neighbourhood committee members.
56 The appellant's account of events so closely mirrors the known facts concerning the implementation of China's population policy that, given the absence of any negative finding as to the credibility of the appellant or of his evidence, I think it clear that his quite plausible account is entitled to the benefit of any doubt that may exist. With respect, I see no merit in the approach taken by some members of the court below and by my colleague Major J. to seize upon sections of the appellant's testimony in isolation. Indeed, I find such a technique antithetical to the guidelines of the UNHCR Handbook (see paragraph 201).
57 If such an unremitting approach were regularly applied to the brief testimony of refugee claimants who generally receive and answer questions through the aid of an interpreter, it can be certain that Canada would annually admit very few refugees indeed. I recognize that, if it so chooses, the Government of Canada is quite capable of renouncing its voluntarily adopted obligations to grant asylum for Convention refugees claimants. Until such time, however, I believe that the UNHCR Handbook and s. 3(g) of the Immigration Act, which declares that it promotes Canada's domestic and international interests to recognize the need to fulfil its "international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted", must be followed. Given these explicit guidelines, I think it clear that Canada's relatively small yet nonetheless important refugee burden should not be thwarted by an unduly stringent application of exacting legal proof that fails to take account of the contextual obstacles customary to refugee hearings. I am mindful that the possibility of a flood of refugees may be a legitimate political concern, but it is not an appropriate legal consideration. To incorporate such concerns implicitly within the Convention refugee determination process, however well meaning, unduly distorts the judicial‑political relationship. To alter the focus of refugee law away from its paramount concern with basic human rights frustrates the possibility that foreign persecution may be eventually halted by international pressure. To accept at the judicial level that fundamental human rights violations do not serve to grant Convention refugee status minimizes one of the principal incentives the international community has to denounce foreign persecution and attempt to affect change abroad: to avoid a flood of refugee claimants.
58 Viewing the appellant's evidence in the manner described by the UNHCR Handbook helps elucidate two further matters. The appellant testified that subsequent to his flight from China his wife had yet to be sterilized, although she too had been threatened with sterilization. I do not see that this fact can be used to make any fear of persecution the appellant may have had less legitimate. If anything, this evidence supports the appellant's apprehension that he was the true object of the PSB scrutiny. Furthermore, simply from a pragmatic standpoint, it may well be that the PSB and neighbourhood committee elected not to sterilize the appellant's wife, given that the law against a couple having more than one child could not be further violated when her husband was in exile in Canada.
59 The evidence that the appellant's family was able to renew his driver's licence with the PSB some months after he fled the country may be viewed in a similar light. With the appellant out of the country, to deny the appellant a driver's licence would serve no purpose; he would not be driving in China in any event. Assuming the authorities did not know the claimant had left the country, the granting of the licence would not entirely dissipate the fear, whether viewed objectively or subjectively, that the claimant would ultimately be sterilized. At best, I think it is a factor that can only be given limited weight, given the speculation that seems necessary in order to ascertain any ultimate significance to it. Further, it must be remembered that it must in the end be considered with the whole of the evidence, keeping in mind that in such consideration the appellant must be given the benefit of the doubt.
60 In sum, I do not accept that this appeal can be dismissed as easily as suggested by my colleague. As already noted, no conclusion was drawn, in favour or against the appellant's facing a reasonable chance of sterilization. However, the appellant may be entitled to the benefit of the doubt as his personal account is widely supported by, and is consistent with, what is known of the current implementation of the population policy within his region of China. What remains to be determined, then, is whether the implementation of that policy, through sterilization by local officials, can constitute a well-founded fear of persecution in light of this Court's decision in Ward and that of the Federal Court of Appeal in Cheung, supra.
State Complicity and Persecution
61 As was made clear in this Court's decision in Ward, the alleged persecution does not have to emanate from the state itself to trigger a Convention obligation. Serious human rights violations may well issue from non‑state actors if the state is incapable or unwilling to protect its nationals from abuse. A fortiori, this must apply to subordinate state authorities. The security of nationals is the essence of sovereignty and the most basic obligation a state owes its citizens.
62 In terms of the present appeal I am in agreement with the following statement, at p. 704, of Mahoney J.A. in the Court below:
The evidence does not lead to the conclusion that the central government of China is unable to protect its citizens from the excesses of the local authorities. Rather, it indicates a central government which, by its passivity, is either tolerating or abetting the enforcement of the population control policy by a means which it officially disavows.
63 This conclusion is, in my view, incontestable upon a reading of the mentioned international jurisprudence and academic authorities on the subject. As the Country Report, supra, makes clear, while local officials are rarely punished for abuses committed during the sterilization process, economic sanctions are levied against such officials when birth rates are too high. It is evident, then, that the Chinese government, if nothing else, creates a climate in which incentives for mistreatment are ripe. Accordingly, I find it neither necessary nor possible from the evidentiary record to determine the precise degree to which the Chinese government is involved in sanctioning the particular conduct of its own local officials. It will often be the case that a refugee claimant will not know with any certainty the operational structure of his or her persecutor when such actor is a government or organization. Indeed, it is quite conceivable that a refugee may only have a vague notion as to why he or she is being persecuted. In a situation like the present, it is enough that there is clear and convincing evidence that the government of China is not using its capabilities to protect persons in the position of the appellant.
64 While the Federal Court of Appeal unanimously agreed that local authorities carried out sterilization procedures without the authority of the central government, there was some confusion as to whether the legitimacy of the population policy of the Chinese government was at issue. Desjardins J.A. noted that the legitimacy of the government policy itself had not been challenged and therefore remained proper. Since the legitimacy of the Chinese government's population control policy was not in question, she reasoned, at p. 724, that it could not "be said that when a foreign government employs means that violate basic human rights, as known in Canada, so as to ensure the respect of a valid social objective, such means amount to `persecution' under the Convention". Heald J.A., however, was of the view that the population policy of the Chinese government was well within the jurisdiction of the government given its concern with its population problem. He found that an analogy to criminal law was apt in terms of whether the appellant's actions could be considered a political opinion. He reasoned, at p. 695, that what occurred in this case was a "breach of a law and reluctance to undergo the ensuing penalty".
65 I should say that I do not in general consider it appropriate for courts to make implicit or explicit pronouncements on the validity of another nation's social policies. In the present case, the full extent of the Chinese population policy is unknown in this country and undue speculation as to its legitimacy serves no purpose. Whether the Chinese government decides to curb its population is an internal matter for that government to decide. Indeed, there are undoubtedly appropriate and acceptable means of achieving the objectives of its policy that are not in violation of basic human rights. However, when the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution will have been crossed. It is at this point that Canadian judicial bodies may pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status, assuming of course that the claimant's credibility is not in question and that his or her account conforms with generally known facts.
66 I find further that questions as to whether the foreign policy is of general application, a focus of concern for the majority below, may not be crucial to an individual refugee determination. It is quite possible that a law or policy of general application may well be violative of basic human rights; the apparent policy of the former Khmer Rouge regime in Cambodia mentioned by the intervener, Canadian Council for Refugees, whereby people who wore eyeglasses were arrested, detained, and then executed, if of general application, would still be very much persecutory. I note, on the facts of the present case, that the evidence strongly supports a belief that the population policy has not been applied and enforced generally. Urban Han Chinese, with variations by region, appear to bear the brunt of the policy; see Country Report, supra. Non‑Han Chinese in rural areas, for instance, appear to be permitted to have as many as three or four children; see Gregory, supra, p. 53. The appellant of course is an urban Han Chinese from a region that has been the subject of many accounts of implementation of the population policy by forced sterilization.
67 Some mention of analogies between valid criminal law and the one child per couple policy is warranted. As I made clear in Ward, Parliament has codified a criminal law exemption in s. 19(1)(c) of the Immigration Act, the essence of which states that persons who have been convicted of an offence will not be granted Convention refugee status if the same offence, similarly committed in Canada, would constitute an offence in Canada punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed. It is true, as I explained in Ward, at p. 742, that the Act accords some flexibility to the Minister to permit entry to claimants with past criminal records. However, this is insufficient to permit the Act to be read as supporting the concern expressed by Desjardins J.A., at p. 724, that "those who face capital punishment as a consequence of a breach of a valid and legitimate piece of legislation would automatically become refugees under the Convention" (emphasis added). A plain reading of the relevant provisions of the Act simply does not support this apprehension. Indeed, by the reasoning of Desjardins J.A., which accords extensive deference to "valid and legitimate" legislation of foreign nations, it would seem that had the Chinese government designated death as the appropriate penalty for violation of the population policy, such conduct could not be seen as persecutory since it could be classified as mere resistance to the "realization of valid state objectives". Respectfully, I am unable to accept that approach.
68 Refugee boards and supervising appellate courts must take a cautious approach to the invocation of state authority arguments as Linden J.A. made clear in his judgment in Cheung. I endorse his finding, at p. 323, that:
Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.), the Court held that even where there is a law of general application, that law may be applied in such a way as to be persecutory.... if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.
69 This approach is, in my view, eminently sensible. It returns the focus of a refugee hearing to the essential question of whether the claimant's basic human rights are in fundamental jeopardy. This point was underscored in Ward where it was stated, at p. 733, that "[u]nderlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination". In that case, this Court endorsed an approach in which the concern of refugee law ought to be the denial of human dignity in any key way with the sustained or systemic denial of core human rights as the appropriate standard. The Court there noted, at pp. 733-34:
This theme sets the boundaries for many of the elements of the definition of "Convention refugee". "Persecution", for example, undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection"; see Hathaway [The Law of Refugee Status (Toronto: 1991)], at pp. 104‑5. So too Goodwin‑Gill [The Refugee in International Law (Oxford: 1983)], at p. 38 observes that "comprehensive analysis requires the general notion (of persecution) to be related to developments within the broad field of human rights". This has recently been recognized by the Federal Court of Appeal in the Cheung case.
70 Both Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154, and Cheung were approved in Ward for developing tests making the consideration of basic human rights the appropriate focus of a refugee inquiry. It was noted that groups defined by a characteristic that is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights, were beyond Canada's obligation and responsibility. The essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way. This question must be asked of the present appellant's allegations.
71 These basic human rights are not to be considered from the subjective perspective of one country, as Desjardins J.A. suggests. By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries. This does not mean, however, that recourse to the municipal law of the admitting nation may not be made. For such municipal law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights. Accordingly, this Court's decision in Eve, supra, which concerned an application for the non‑therapeutic sterilization of a mentally incompetent adult by a parent, may be looked to for guidance.
72 In Eve, at pp. 431 and 432, this Court affirmed that forced sterilization constitutes a "grave intrusion on a person's rights" and as an "irreversible and serious intrusion on the basic rights of the individual". Certainly this is true in this kind of context. Two of the justices below followed this reasoning, citing Eve directly, while the other acknowledged that he found this particular penalty abhorrent. In my opinion, the sanction of forced sterilization against the appellant in the present case would constitute a gross infringement of the security of the person and readily qualify as the type of fundamental violation of basic human rights that constitutes persecution as discussed in the mentioned authorities and the UNHCR Handbook.
73 I note that Desjardins J.A. correctly found, on the strength of Eve, that forced sterilization constitutes a violation of a basic human right. However, she later decided, at p. 724, that, as the record was silent concerning the medical procedure to be followed, she "must assume . . . that it is carried out through a normal procedure currently in use by those who voluntarily opt for this procedure elsewhere, including this country". With respect, I do not agree. In sum, I think that whatever technique is employed, it is utterly beyond dispute that forced sterilization is in essence an inhuman and degrading treatment involving bodily mutilation, and constitutes the very type of fundamental violation of basic human rights that is the concern of refugee law. I fully endorse the remark of Linden J.A. in Cheung, at p. 324, that "[t]here are a few practices that could be more intrusive and more brutal than forced sterilization". I add that even if the issue were dependent on the method of sterilization adopted, my assumptions about its nature would be different from that adopted by Desjardins J.A. If the specific nature of the sterilization procedure had to be made, I would tend to the view that the procedure would be most unlike the consensual procedure that would occur in Canada, a highly industrialized society with some of the finest medical facilities and practitioners in the world. The appellant, instead, would be sterilized for punitive rather than therapeutic reasons, in a nation where sterilization abuses have already been documented, at the behest of persons angry at the appellant for depriving them of a bonus for low birth rates, and in facilities most unlikely to rival a Canadian hospital.
Well-Founded Fear
74 Ward confirmed the approach of Heald J.A. in Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.), that a well-founded fear must be evaluated both subjectively and objectively. The UNHCR Handbook enunciates an identical approach. As to the former, the Board made no attempt in its written reasons to assess the evidence respecting the appellant's fear of persecution in the form of forced sterilization. It merely decided that it did not find sterilization to be a form of persecution, accepting it as a measure on the part of the Chinese government to implement a family planning policy.
75 Is there evidence on the record upon which this Court can find that the appellant exhibited a subjective fear of forced sterilization? The ambiguity of the evidence makes the determination of the appellant's subjective fear an intricate task. Adding to the obstacles preventing a rapid determination of the appellant's subjective fear is the evidence, apparent upon an examination of the written record, that in at least two instances, the appellant was unwilling to state or elaborate upon certain information, a phenomenon not at all uncommon to refugee claimants from other cultures. The UNHCR Handbook offers substantial guidance in this area:
46. The expressions "fear of persecution" or even "persecution" are usually foreign to a refugee's normal vocabulary. A refugee will indeed only rarely invoke "fear of persecution" in these terms, though it will often be implicit in his story. Again, while a refugee may have very definite opinions for which he has had to suffer, he may not, for psychological reasons, be able to describe his experiences and situation in political terms.
. . .
198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis‑à‑vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case. [Emphasis added.]
The appellant twice noticeably constrained his testimony in regard to the anger and abuse of the PSB directed at the appellant and his family for violating the birth control policy, stating that it "would be very difficult for me to tell you in detail" and that "for me it's very hard to say out loud". The appellant's reluctance to speak at such a crucial stage of his testimony ‑‑ and the lack of intervention on the part of the Board, when faced with the appellant's hesitation, to invite him to articulate his experiences fully ‑‑ would, if one gives credence to the UNHCR Handbook, appear not uncommon in a refugee hearing.
76 Given the problems with the translation record, I see little merit in isolating portions of the appellant's responses in order to highlight possible prevarication. The appellant's testimony must, as the Handbook instructs us, be read in context in its entirety with some allowance for the translation errors that certainly occurred in the appellant's answers and quite possibly in the translation of the Board questions. Viewed in this light, the appellant's testimony does not seem to be particularly equivocal. I cite a portion of the transcript:
QNow, you stated that you signed the confirmation that you would undergo sterilization. Why did you sign that confirmation?
ABecause I felt if I did not sign, I cannot accommodate their request. They can come every day, from the morning to night. Then psychologically, we cannot take that, and also they can go one step ahead, terminate me from my job, and also terminate my parents'. If it has to come to such a stage, that means we would not be able to live, so we sign ‑‑ I signed this document so to pass this difficulty.
QDid you ever intend to abide by their request for sterilization?
AI feel that whether one would like to take a sterilization is his own choice. Even though I'm not going to have a third child, it would not [be] absolutely necessary for me to take a sterilization operation. So I had never thought of going to have this kind of cruel operation.
77 On my reading, the appellant stated that he signed the sterilization consent to end the continued psychological harassment and threats to his employment and that of his parents ‑‑ a significant peril to persons from cultures in which elders are revered. He then attempted to negate any inference that he actually intended to abide by the request to have the operation by stating that such an operation should be a matter of individual choice, that the operation was unnecessary as he was not going to have a third child in any event, and that despite signing the sterilization confirmation agreement, he never in fact considered submitting to an operation that he considered to be cruel. I fail to see how this testimony can serve as evidence of equivocation on the part of the appellant.
78 In terms of what the appellant stated would happen to him if returned to China, he listed a series of possible sanctions including arrest, unemployment, and even murder. Given the considerable testimony the appellant had already given concerning the mounting pressure upon him to submit to sterilization that resulted in his ensuing flight from China, it is not really surprising that he did not again mention that he could be sterilized if returned to that country. I note that he did mention other possible punishments, one of which at least, without deciding the matter at this point, would be a fundamental infringement of basic human rights on the facts of this case itself. Further it is not unreasonable that the appellant would mention punishments other than sterilization if returned as his jeopardy would have substantially altered. If returned, he would not only be seen as a pro‑democracy sympathiser and violator of the population policy as before; he would also be regarded as a fraud for having falsely given consent to submit to surgery as well as bearing the ignominious and quite possibly dangerous distinction ‑‑ given China's overall human rights record as noted in the Country Report ‑‑ of being a forcibly returned exile. Put another way, it is not unimaginable that a refugee claimant might flee a country in fear of one form of persecution, only to find him- or herself forcibly returned and await punishment for another form of persecution reflective of both the original persecution and the added fact that the claimant had attempted to escape.
79 The fact that coercive sterilization is principally used against women in China is no argument that the appellant's fear of persecution was not well-founded. Numerous cases have considered claims by male refugees alleging fear of persecution by means of coerced sterilization in China; these include Matter of Chang, supra, Respondent A, supra, Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995); Shu‑Hao Zhao v. Schiltgen, 1995 WL 165562 (N.D.Cal.); A. (W.R.) (Re), [1989] C.R.D.D. No. 98 (No. T89-00483); K. (H.H.) (Re), [1991] C.R.D.D. No. 484 (No. V90-01187), and X. (D.K.) (Re), [1989] C.R.D.D. No. 293 (No. T89-0031). Even when Convention refugee status was not granted, it was not on the basis that coerced sterilization only applies to female population policy violators. Indeed, neither the parties nor the interveners based any argument on the basis that the policy applied only to women. All academic authorities I have consulted accept the fact that the policy applies, and is enforced, against both sexes.
80 Upon review of the appellant's evidence in it's entirety, I find the fact that the appellant did not specifically invoke the term "fear of persecution" or equivalent words to that effect to be of no particular import. The appellant recounted descriptions of continued harassments both at home and at his place of employment, interrogations of employees and customers, threats and verbal abuse towards himself and his family members, the feeling of being compelled to sign both a confession of pro‑democracy sympathies and a sterilization confirmation form. This testimony, together with his ensuing exodus from China, directs a finding that sufficient evidence exists to find that the appellant had an implicit well-founded fear of persecution.
81 I do not at this stage propose to deal at length with the second step of the inquiry, whether there are objective grounds for the appellant to fear forced sterilization. In this case, the generally known facts that I have previously set forth clearly establish these objective grounds. Thus, I reject Major J.'s conclusion that the appellant failed to adduce any evidence with respect to the objective basis of his fear of forced sterilization. This, too, is an issue that should be considered by the Board. That being so, I propose to consider the enumerated grounds which comprise the essential grounds of contention in the court below.
Membership in a Particular Social Group
82 In Ward, supra, I set forth general guidelines intended to assist in the determination of whether a given refugee claimant could be said to fall within a particular social group. At page 739, I stated:
The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti‑discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories:
(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti‑discrimination influences, in that one's past is an immutable part of the person. [Emphasis added.]
83 As I believed apparent at the time of that decision, only a working rule was enunciated in Ward, not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group. The "general underlying themes of the defence of human rights and anti‑discrimination" (p. 739) were to remain the paramount consideration in determining a claimant's membership in any particular social group. I note that the emphasis on this point was not lost on either the appellant or the respondent in this case.
84 As the appellant does not claim membership in either the first or the third category under the working rule, only the second category need be considered. The starting point for this inquiry, then, is to determine whether the appellant is voluntarily associated in a manner so fundamental to his human dignity that he should not be required to forsake it. In approaching this question, I find it necessary to offer further commentary on two particular passages of my reasons in Ward: the simplified distinction between what one does as opposed to what one fundamentally is, as well as what should properly constitute the object of a claimants' purported voluntary association.
85 In Ward, I stated, at pp. 738-39:
Surely there are some groups, the affiliation in which is not so important to the individual that it would be more appropriate to have the person dissociate him‑ or herself from it before Canada's responsibility should be engaged. Perhaps the most simplified way to draw the distinction is by opposing what one is against what one does, at a particular time. For example, one could consider the facts in Matter of Acosta [Interim Decision 2986, 1985 WL 56042 (B.I.A.)], in which the claimant was targeted because he was a member of a taxi driver cooperative. Assuming no issues of political opinion or the right to earn some basic living are involved, the claimant was targeted for what he was doing and not for what he was in an immutable or fundamental way. [Emphasis in original.]
86 The distinction between what one fundamentally is as opposed to what one merely does offers, as was explained, the most simplified way of discerning when Canada's obligations to refugees should be able to be invoked. Such an inquiry only comes after a consideration of whether an issue exists concerning basic human rights has been undertaken. This simplified distinction was never intended to replace the Ward categories. It is still necessary under the second category to consider whether an association exists that is so fundamental to members' human dignity that they should not be required to forsake it. To apply this simplified distinction without proper consideration of the context in which it arose can lead to ludicrous results. Accepting that the appellant's own particular social group has yet to be yielded by my analysis up until this point of my reasons, I find it difficult to conceive that the associative qualities of having children may be considered so sufficiently analogous to the associative qualities of being a member of a taxi driver cooperative to warrant any meaningful comparison. Moreover, if the distinction was treated as a hurdle claimants are obliged to pass, behaviour fundamental to one's basic humanity, such as having children, could always be classified out of context as something one merely does rather than something one actually is. To pursue this example, however, surely it is nonsensical to find other than that one fundamentally is a parent. Parenting cannot be considered an activity that one merely does, as interchangeable as a particular occupation, without distorting the primary focus of refugee law: the assurance that basic human rights are not fundamentally violated without international recourse.
87 A further issue calls for clarification. The majority of the court below rejected the appellant's claim that he was a member of a particular social group under the second working rule on the basis that there was no evidence of voluntary, active, association. Upon reflection, it is apparent that it may seem possible to conclude that for a refugee to fall within the parameters of the second Ward category, such claimant would have to establish some type of voluntary association with a specific group. In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. Such a claimant is in no manner required to associate, ally, or consort voluntarily with kindred persons. Professor Audrey Macklin in "Canada (Attorney‑General) v. Ward: A Review Essay" (1994), 6 Int'l J. of Refugee L. 362, offers an analysis that returns the second Ward test to its proper inquiry. She states, at p. 375:
In principle, an anti‑discrimination approach should look at the imposed social consequences of possessing certain attributes. After all, it hardly matters to a racist whether a person of colour sees himself or herself as united with other people of colour in a stable association to achieve common purposes. As long as perpetrators of persecution treat people with a shared attribute as comprising a group by virtue of that common characteristic, whether individuals so identified would choose to see themselves as united in any meaningful sense has little impact.
The point can also be illustrated using students as a social group. Assume that a Chinese student is persecuted by police in the wake of the Tianamen Square pro‑democracy, anti‑government demonstrations. The student may be entirely apolitical, have taken no part in the protest, and indeed have nothing to do with fellow students outside the classroom. The police may not even care whether the student shares the views of those who participated in the demonstrations. It is enough to be a student, and for students to have instigated the demonstrations. That student cannot be said to `voluntarily associate' with other members of the designated social group, but may be understood as being voluntarily associated with the status of student for reasons fundamental to human dignity.
As Professor Macklin recognizes, the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right.
88 I accept the respondent's categorization of the right asserted as the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. This fundamental right has been recognized in international law in the International Covenant on Civil and Political Rights, December 19, 1966, Can. T.S. 1976 No. 47, Art. 23(2), the Convention on the Elimination of All Forms of Discrimination against Women, March 1, 1980, Can. T.S. 1982 No. 31, Art. 16(1)(e) (to both of which Canada and China adhere), and by the draft Programme of Action of the United Nations International Conference on Population and Development, Principle 8, at p. 9, and Chapter VII, para. 7.2, at p. 34. In my view, this association is so fundamental to the human dignity of the appellant that he should not be forced to forsake it.
89 In sum, I think that the majority of the Court of Appeal erred in its determination of the appellant's particular social group. Persons such as the appellant, if persecuted on the basis of having had more than one child, would be able to allege membership in a particular social group.
Political Opinion
90 Thus far I have confined myself to the issue whether the appellant might properly be classified as a member of a particular social group. The possibility also exists that the appellant may have a well-founded fear of persecution on the basis of a political opinion held by or imputed to him. Given the Board's treatment of this issue, I find it necessary to make a few cursory remarks about it.
91 While I understand that Ward had not been decided when the appellant's hearing took place, the Board may have erred in its consideration of the political opinion of the appellant by failing to adopt a holistic approach to the interpretation of the appellant's evidence. Specifically, the Board in its reasons only considered the appellant's evidence as to his harassment by PSB officers for his pro‑democracy activities in terms of determining whether the appellant was persecuted for his political opinion. The Board made note that no evidence had been adduced showing that the investigation of the appellant's pro‑democracy activities extended beyond April 1990. While the Board was correct that no such evidence was directly adduced, testimony was presented stating that by May 1990, PSB officers, together with neighbourhood committee members, began their harassment of the appellant and his family for having violated the birth control policy. I do not believe it would have been unreasonable for the Board to infer that, having accepted that the PSB conducted an investigation running from September 1989, until April 1990 concerning the degree and nature of the appellant's pro‑democracy activities, the immediately ensuing investigation by the PSB into the appellant's birth policy violation might have been causally linked. Of course, a refugee claimant in the position of the appellant cannot be expected to provide evidence that the two investigations were indeed related. The Board, though, should not, in its considerations, ignore such possibilities. Given the proximity in time of two PSB investigations concerning an individual accepted by the Board as having suffered past persecution on the basis of his family status, who had confirmed to PSB officials that he was a pro‑democracy sympathizer, it does not seem improbable that the second investigation may have been a pretext to punish the appellant. This conclusion seems altogether possible considering that China is governed by an authoritarian regime scarcely tolerant of political dissent.
92 The UNHCR Handbook sets forth the approach a Refugee Board should follow on such matters. As mentioned, para. 201 instructs a Board to ascertain a wide range of circumstances and to take into account the cumulative effect of the applicant's experience as all the incidents related by the applicant, taken together, could make his fear "well‑founded". Following these sensible guidelines, it is quite possible that the Board drew an artificial distinction in considering PSB investigation of the appellant for his pro‑democracy activities separately from the rapidly ensuing harassment of the appellant for his violation of the population policy. Given that not all urban Han Chinese who have more than one child are required to be sterilized and that abuses of sterilization authority have been acknowledged by Chinese officials, I think there was a sufficient evidentiary basis for the Board to conclude that the PSB may have wished to force the appellant to endure this invasive surgery as a cumulative punishment for his sympathies and actions contrary to the government. The appellant's testimony that the PSB derided him as an "enemy of the class" and accused him of acting "purposely against the government" upon learning of the birth of his second child, can support a conclusion that, from the perspective of the local authorities, his violation of the population policy was linked to his known political stance.
93 Having concluded the matter of the appellant's political opinion in this manner I leave it for another case to resolve whether the action itself of having a child can constitute, in the words of Goodwin-Gill, supra, quoted in Ward, at p. 746, an "opinion on any matter in which the machinery of state, government, and policy may be engaged".
The Decision in Cheung Determinative
94 Finally I should add a word about the treatment accorded by the majority of the Federal Court of Appeal to its own recent decision in Cheung. As I read them, I am unable to see any relevant distinction between that case and the present and the court should not have departed from its reasoning in Cheung, particularly in view of this Court's endorsement of that decision in Ward. I am aware that the Federal Court of Australia has recently followed Heald J.A.'s interpretation of Ward on that point; see Minister for Immigration and Ethnic Affairs v. Respondent A, supra, but for my part I find the reasons of Sackville J., the reviewing judge in that case, ((1994), 127 A.L.R. 383), more consistent with the reasoning in Ward as I have explained earlier.
Disposition
95 For the foregoing reasons, I would allow the appeal with costs throughout. I would remit the case to the Refugee Board for hearing de novo in a manner consistent with these reasons.
The judgment of Sopinka, Cory, Iacobucci and Major JJ. was delivered by
Major J. --
I. Facts
96 The appellant is a university educated married man who held a managerial position in a manufacturing company and owned a restaurant business in the city of Guangzhou in the People's Republic of China (PRC). He fled to Hong Kong on July 19, 1990, and proceeded to Canada where he sought Convention refugee status based on his fear of persecution because of his political opinion and membership in a particular social group.
97 In his testimony before the Immigration and Refugee Board, the appellant alleged that during the Cultural Revolution his family was persecuted owing to his father's background as a landowner.
98 The appellant operated a restaurant in Guangzhou. On June 5 and 6, 1989, students in the pro-democracy movement demonstrated outside his restaurant. Since the appellant was sympathetic to the political cause of the students, he donated food, drinks and 100 renminbi to them during those two days. Between July 1989 and April 1990, Public Security Bureau (PSB) officers visited the restaurant on 13 or more occasions. During these visits, they accused the appellant of having participated in the pro-democracy movement. They also interrogated both the staff and customers at the restaurant regarding the appellant and the students. After the second PSB visit in mid July 1989, the appellant voluntarily reported to the office of the PSB and wrote a confession of his pro-democracy activities.
99 The appellant alleged that in April 1990, the PSB discovered the birth of his second child (born in November 1989) and accused him of having violated the birth control policy of the country. PSB officers visited his home on five occasions concerning this violation. They demanded a monetary fine and the sterilization of either the appellant or his wife. His wife lost her job owing to this violation. After the last visit, the appellant voluntarily submitted a written undertaking to the PSB office that he would undergo sterilization within three months. Twenty days later, the appellant left the PRC on a false passport.
100 The appellant testified that since his departure from the PRC, he had learned that his violation of the country's birth control policy has caused his family to suffer continued harassment in the form of PSB visitations to their home and that, on one occasion, his wife was detained overnight by the PSB. He also alleged that, should he return to the PRC, he might face arrest, imprisonment, long-term unemployment, or even murder.
II. Legislation
Immigration Act, R.S.C., 1985, c. I-2 (rep. & sub. c. 28 (4th Supp.), s. 1)
2. (1) In this Act,
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
III. Judicial History
A. Immigration and Refugee Board (Refugee Division) October 23, 1991
(1) Family Background
101 On the appellant's claim that he feared persecution as a result of his family background, the Board held:
This panel accepts that the various members of the claimant's family, including the claimant, have suffered persecution during the Cultural Revolution due to their family background. However, no evidence was adduced to suggest that the claimant was persecuted beyond the period of the Cultural Revolution. Furthermore, he was able to subsequently obtain a university education and several managerial positions. According to all the above, this panel does not find the claimant to have good grounds for fearing persecution based on his membership in a particular social group, namely, his family background.
(2) Political Opinion
102 With respect to the appellant's alleged fear of persecution by reason of his participation in pro-democracy activities, the Board noted that the PSB had made no attempt to arrest the appellant after he had voluntarily confessed his activities to the PSB although they had ample opportunity to do so.
103 The Board found no evidence to suggest that the investigation into the appellant's involvement with the pro-democracy movement continued beyond April 1990 and noted that five months after his departure from the PRC in July 1990, he had been able to renew his driver's licence. The Board held:
Based on the evidence, this panel does not find the claimant to have good grounds for fearing persecution by reason of his political opinion as manifested through his pro-democracy activities.
(3) Sterilization Not Persecution
104 With regard to the appellant's alleged fear of persecution by reason of forced sterilization, the Board held:
The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the [Chinese] government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well-founded.
The Board concluded that the appellant was not a Convention refugee.
B. Federal Court of Appeal, [1993] 3 F.C. 675
105 The appellant appealed only on the issue of forced sterilization. The three members of the Federal Court of Appeal dismissed the appeal with one justice dissenting.
(1) Heald J.A.
106 Heald J.A., in dismissing the appeal, noted at p. 686 that the Federal Court of Appeal concluded in Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), at p. 322, that "forced or strongly coerced sterilization" of a woman constituted persecution since it violates her security of the person and subjects her to cruel, inhuman and degrading treatment. He held that the sterilization of a man is not qualitatively different from that of a woman and therefore is persecution pursuant to Cheung.
107 Heald J.A. noted, however, that not all breaches of the one-child policy would result in forced sterilization. Forced sterilization is not a law of general application but an enforcement measure taken by only some local authorities. Other local authorities use acceptable sanctions such as economic ones. Therefore, the determination of whether a person with more than one child has a well-founded fear of persecution is a finding of fact which depends upon the evidence in respect of the practices of the relevant local authority.
108 On a review of the evidence, Heald J.A. held that the appellant had not established a well-founded fear of sterilization. This case differs from Cheung in that the Board did not find that the appellant faced a reasonable chance of forced sterilization if returned to China. The appellant and his family faced the imposition of economic sanctions which are not sufficient to establish persecution.
109 Although he held that the appellant had not established a well-founded fear of sterilization, Heald J.A. proceeded to discuss whether the appellant could be considered to be a member of a "particular social group" in light of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, which was decided by this Court subsequent to the decision in Cheung.
110 Heald J.A. held at p. 691 that, a social group defined as "parents in China with more than one child who disagree with forced sterilization" does not fall within any of the three categories of particular social group outlined in Ward. He emphasized at p. 690 the principle enunciated in Ward that fear must emanate from what the claimant is or was "in an immutable or fundamental way", and not what he or she does or did. He observed at p. 691 that "the distinction between parents who have and have not breached the one-child policy derives from what the individuals have done...and not from what the individuals are" (emphasis in original). He also noted that the group does not belong in the category of those who voluntarily associate for reasons fundamental to human dignity because there was no evidence of voluntary active association within the group. Heald J.A. added that the group proposed by the appellant was defined solely by the fact that its members face a particular form of persecutory treatment. He said, at p. 693, that a definition of this kind "voids the enumerated grounds of content" and conflicts with the rejection in Ward of groups defined "merely by virtue of their common victimization as the objects of persecution". Therefore, Heald J.A. concluded that the appellant had not established persecution by reason of membership in a particular social group.
111 Heald J.A. also rejected the appellant's argument that a failure by a citizen to agree to sterilization was tantamount to a political statement. He held that the persecutory treatment did not emanate from a refusal to submit to sterilization but from a breach of the one-child policy. He found there was no evidence the Chinese authorities believed acceptance of the one-child policy was integral to their authority. He stated that the one-child policy is within the jurisdiction of the Chinese government and cannot, in itself, be characterized as persecutory. Sanctions imposed for breach of the policy must be accepted, and despite their abhorrence, cannot serve as a basis for persecution by reason of political opinion. Therefore he concluded that the appellant does not face a well-founded fear of persecution by reason of his political opinion.
(2) Desjardins J.A.
112 Desjardins J.A. also dismissed the appeal but on slightly different grounds. She considered whether the appellant was a member of a particular social group in light of the legal principles set out in Ward. She found at p. 716 that since there was no voluntary status present in this case, the only category from Ward into which the appellant might fall would be a group defined by "an innate or unchangeable characteristic". Desjardins J.A. held that the innate and unchangeable characteristic must be so strong that it makes a group of individuals what they are and that it must exist independently of a basic human right which they fight for. She found that forced sterilization stands in violation of a basic human right but that this right is common to all humanity and not unique to any social group to which the appellant may have belonged. The appellant was targeted for what he did and not for what he is and therefore was not a member of a particular social group.
113 Desjardins J.A. then examined whether there was any basis for a claim on the ground of political opinion, as defined by this Court in Ward. She found that there was no specific evidence to suggest that the appellant's action, motivated in defence of his basic human rights, was viewed by the Chinese local authorities as a gesture of defiance to the national authority. Furthermore, she concluded that forced sterilization under the one-child policy fell beyond the scope of "persecution" under the Convention. She held that the Convention does not cover violations of human rights imposed by local authorities in pursuit of a legitimate state objective such as population control.
(3) Mahoney J.A. (dissenting)
114 Mahoney J.A., in dissent, would have allowed the appeal. He stated at p. 704 that Cheung stood for the proposition that "involuntary sterilization -- physical abuse that is an irreversible and serious intrusion on the basic rights of the individual -- is persecution". He noted that the Board neither made nor implied any adverse finding as to the credibility of any of the evidence presented by the appellant. He concluded that on the evidence, the appellant's fear of forced sterilization, were he to return to China, was subjectively and objectively well-founded.
115 Mahoney J.A. held that this case is not distinguishable from Cheung and that nothing in Ward casts any doubt on the correctness of Cheung. He stated that formal association is not necessary to fall within the ambit of a group whose members voluntarily associate for reasons fundamental to their human dignity. He held that it is the shared reason fundamental to human dignity that defines and constitutes the group and that a conscious act of association is not an essential element.
IV. Issues
1.Is forced sterilization a form of "persecution" within the meaning of s. 2(1)(a) of the Immigration Act?
2.Are persons who face forced sterilization members of a "particular social group"?
3.Are persons who refuse forced sterilization expressing a "political opinion"?
4.Assuming persons who have a well-founded fear of sterilization for violating China's one-child policy are eligible to be considered Convention refugees, does the appellant in this case have a well-founded fear of forced sterilization or of other persecution so as to be granted Convention refugee status?
V. Analysis
116 The central issue in this appeal is whether the appellant can be classified as a Convention refugee. The definition of "Convention refugee" in s. 2(1) of the Immigration Act, requires that an applicant for refugee status have "a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion". In this case, forced sterilization is the form of persecution to which the appellant claims he will be subjected if he returns to the PRC. The appellant argued that forced sterilization constitutes persecution for the purposes of the definition of Convention refugee and that this persecution is for reasons of either his membership in a particular social group or his political opinion, as expressed by breaching the one-child policy.
117 The appellant placed particular reliance on the Federal Court of Appeal's recent decision in Cheung which held a Chinese woman with a well-founded fear of sterilization qualified as a Convention refugee. In Cheung the claimant was forced to discontinue use of an intra-uterine device for medical reasons and underwent numerous abortions. After the birth of her second child, the Family Planning Bureau came to her home and took her to the hospital to be sterilized. The sterilization operation was postponed for six months because of an infection and before that six-month period had expired, Ms. Cheung fled from the PRC. Linden J.A. noted in his reasons (at p. 318):
It was accepted by the Board that the appellant would be sterilized if she were forced to return to China.
118 In Cheung a distinction was made between women who have more than one child and have a well-founded fear of forced sterilization and those who have more than one child but do not have this fear. This distinction must be made in light of the fact, which was relied upon in Cheung, that forced sterilization is not a law of general application but rather an enforcement measure used by some local authorities with, at most, the tacit acceptance of the central government. Thus, the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority.
119 For the purpose of this appeal I am assuming (without deciding) that Cheung was rightly decided and that the appellant is a member of a particular social group within the meaning of s. 2(1). However, the appellant cannot attempt to rely upon the Cheung decision unless he has established that he has a well-founded fear of sterilization. The test for establishing a fear of persecution was clearly stated by La Forest J. in Ward, at p. 723:
More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen [(1984), 55 N.R. 129 (F.C.A.)], at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
The test set out by La Forest J. in Ward is consistent with the approach recommended in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979). That document, which, although not binding, has been accepted as being highly persuasive authority in Canada, explains a "well founded fear of being persecuted" as follows:
38. To the element of fear -- a state of mind and a subjective condition -- is added the qualification "well-founded". This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term "well-founded fear" therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration.
120 Both the existence of the subjective fear and the fact that the fear is objectively well-founded must be established on a balance of probabilities. In the specific context of refugee determination, it has been established by the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that the claimant need not prove that persecution would be more likely than not in order to meet the objective portion of the test. The claimant must establish, however, that there is more than a "mere possibility" of persecution. The applicable test has been expressed as a "reasonable possibility" or, more appropriately in my view, as a "serious possibility". See: R. v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.).
121 In this case, the Board made no finding as to whether the appellant had either a subjectively or an objectively well-founded fear that he would be subjected to forced sterilization if he returned to China. This case is thus immediately distinguishable from Cheung where the Board at first instance made a clear finding that the claimant would face forced sterilization if returned to China.
122 The appellant first raised the issue of forced sterilization in his Personal Information Form. At his hearing, the Board specifically requested the appellant's counsel to focus on this aspect of his claim and provided the appellant with ample opportunity to establish that he had a well-founded fear:
PRESIDING MEMBER: On reviewing the Personal Information Form, the Panel would like you to focus on ... the portions pertaining to his fear of persecution caused by the alleged forced sterilization.
123 As is common in refugee determination proceedings, the appellant did not testify in English but rather testified in Cantonese through an interpreter. The task of the interpreter in a judicial or quasi-judicial hearing is an extremely difficult one and it is hardly surprising that simultaneous translation can sometimes lead to minor infelicities of style. However, the Board (and this Court when reviewing the written record) is well equipped to look past grammatical errors and to grasp the general import of a claimant's testimony, particularly when that testimony is considered as a whole. This is a fundamental part of the sympathetic approach to the evidence which is advocated in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.
124 It is the responsibility of the Presiding Member of the Board to ensure that the interpretation provided to the Board and which is reflected in the written record is as accurate as possible in the circumstances. The primary problem in this regard is when a claimant speaks too quickly or for too long to allow the interpreter to interpret all of the information accurately. In this case, the accuracy of the record is substantially assisted by the fact that the Presiding Member made every effort to ensure that the interpreter was able to interpret the claimant's testimony in a complete and thorough fashion. The efforts of the Presiding Member are apparent on the record early in the portion of the hearing dealing with sterilization at a point when the claimant was describing the one-child policy rather than his personal experience:
QAnd you state that they said that you had disobeyed the birth control policy. What is the birth control policy in China?
AThe birth policy in China was one-child-per-family. Because I am the only son in the family, I myself would like to have more children.
Q You say that everybody --
PRESIDING MEMBER: Excuse me. Mr. Lau, I believe the Claimant has said a little bit more than what you've interpreted. He mentioned something pertaining to the interval between the children? Perhaps instead of your trying to remember, if I may ask the Claimant.
Mr. Chan, did you mention in your last statement something pertaining to the interval between the two children?
CLAIMANT: Yes.
PRESIDING MEMBER: Just before you start, Mr. Lau, it's not a reflection on your part. The Claimant did go on for very long, and I didn't stop him.
(CLAIMANT SPEAKS IN CANTONESE)
PRESIDING MEMBER: Okay, stop there. You have to make your sentences shorter so that Mr. Lau can interpret fully.
As can be seen from this portion of the transcript, Ms. Nee, the Presiding Member understood Cantonese and thus was able to identify specifically the portion of the appellant's testimony which the interpreter had missed. Assigning Board members to refugee determination hearings who understand the claimant's native language and who are thus able to confirm the accuracy of the record independently is a practice to be strongly encouraged.
125 The appellant's oral testimony before the Board was generally consistent with his Personal Information Form statement. He testified that his second son was born in November 1989 and that the Public Security Bureau became aware of the child while conducting a routine census between April and June 1990. The appellant complied with the PSB's demand that he register the child at the police station. On two subsequent occasions the PSB attended at the appellant's home in his absence and allegedly demanded that the appellant and his wife pay a fine of 8,000 dollars and that one of them submit to sterilization:
During the second and the third visit, they demand for a penalty for 8,000 dollars, and also either I or my wife should get a sterilization.
The second and the third visit, at that time I was not at home. I was told by my wife when I got home. The first time happened in the late of May. They want to find out who is going to accept the sterilization. If nobody was willing, then [we] would be forcibly taken to the -- to get the sterilization.
126 The appellant stated that the PSB visited his home two further times and requested that either the appellant or his wife sign a document consenting to sterilization. After the fifth visit, the appellant complied with the request to sign the consent form:
After three days after the fifth visit, I went to the police station and hand in the document saying that I would be willing to take the sterilization operation within three months, and 20 days after that, I left China.
127 The appellant testified that he and his family decided that he should give his written consent to sterilization in order to put an end to psychological harassment caused by frequent visits by the PSB and possible financial coercion:
QNow, you stated that you signed the confirmation that you would undergo sterilization. Why did you sign that confirmation?
ABecause I felt if I did not sign, I cannot accommodate their request. They can come every day, from the morning to night. Then psychologically, we cannot take that, and also they can go one step ahead, terminate me from my job, and also terminate my parents'. If it has to come to such a stage, that means we would not be able to live, so we sign -- I signed this document so to pass this difficulty.
The appellant also gave evidence that his wife's employment was terminated because of this breach of the one-child policy.
128 The appellant's statement in his Personal Information Form and his oral testimony is some evidence that he had a subjective fear of forced sterilization. However, a refugee claimant cannot establish a well-founded fear of persecution simply by alleging the existence of that fear. In order to meet the subjective aspect of the test for a well-founded fear of persecution, the claimant must establish to the satisfaction of the Board that the alleged fear exists in the mind of the claimant. Normally, where the claimant is found to be a credible witness and his or her testimony is consistent, the claimant's evidence will be sufficient to meet the subjective aspect of the test.
129 In this case, the appellant's testimony, even with respect to his own fear of forced sterilization, is equivocal and inconsistent at times. In response to a question by his counsel, the appellant testified that he did not intend to abide by the PSB request for sterilization:
QDid you ever intend to abide by their request for sterilization?
AI feel that whether one would like to take a sterilization is his own choice. Even though I'm not going to have a third child, it would not [be] absolutely necessary for me to take a sterilization operation. So I had never thought of going to have this kind of cruel operation.
130 As well, when asked specifically what would happen if he were to return to China, the appellant made no mention of forced sterilization:
QWhat do you think would happen if you were to return to China?
AIf I going back to China, the most possible thing would be arrest, put in jail. Could also be unemployed for the rest of my whole life, and could not earn a living. If talking something more serious, then I probably will be murdered.
QWhy do you feel that this would happen to you if you were to return?
A... Regarding my second child, it is a fact that that has affect the bonus of some of the neighbourhood committee members. They would be hostile and would try to revenge. They would take the excuse of my difference in political view, and arrest me and put me in jail.
131 It is worth noting that the Board found that the oral testimony of the appellant was insufficient to establish his principal claim of persecution when it found that the appellant was not persecuted on the basis of his political pro-democracy opinion. This finding was not appealed.
132 In my opinion, the evidence of the appellant with respect to his subjective fear of forced sterilization is equivocal at best. However, in the absence of an explicit finding by the Board on this point, it would not be appropriate for this Court to determine that the appellant did not have a subjective fear of forced sterilization.
133 Nevertheless, even if the appellant is given the benefit of the doubt on the question of a subjective fear, the existence of a subjective fear of persecutory treatment is not sufficient to meet the statutory definition of a Convention refugee. It is the responsibility of the claimant at a refugee determination hearing to lay an evidentiary foundation upon which the Board can conclude not only that the fear existed in the mind of the claimant but also that it was objectively well-founded.
134 The objective component of the test requires an examination of the "objective situation" and the relevant factors include the conditions in the applicant's country of origin and the laws in that country together with the manner in which they are applied: see UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras. 42 and 43.
135 The appellant did not meet the burden of proof on the objective aspect of the test. Specifically, he failed to adduce any evidence that his alleged fear of forced sterilization was objectively well-founded.
136 The documentary evidence with respect to China's population control policy which was presented by the appellant to the Board included the February, 1991, Country Reports on Human Rights Practices for 1990 of the U.S. State Department. This document describes the various enforcement measures which are used in connection with the one-child policy. This document makes it clear that the methods of enforcement are within the control of local authorities and vary widely from one area to another (at pp. 852-53):
China's population control policy relies on education, propaganda, and economic incentives, as well as more coercive measures, including psychological pressure and severe economic penalties. Rewards for couples who adhere to the policy include monthly stipends and preferential medical, food, and educational benefits. Disciplinary measures against those who violate the policy often include stiff fines, withholding of social services, demotion, and other administrative punishments. In at least a few cases, people have been fired from their jobs (a very serious penalty in China, affecting housing, pension, and other social benefits) for refusing to terminate unauthorized pregnancies.
Physical compulsion to submit to abortion or sterilization is not authorized, but continues to occur as officials strive to meet population targets. Reports of forced abortions and sterilizations continue, though well below the levels of the early 1980's. While recognizing that abuses occur, officials maintain that China does not condone forced abortion or sterilization, and that abuses by local officials are punished. They admit, however, that punishment is rare and have yet to provide documentation of any punishments.
Enforcement of the family planning policy has been inconsistent and varies widely from place to place and from year to year. The 1990 census data indicate that the average number of children per family (2.3) and the population growth rate (1.5 percent) remain significantly higher than would be produced by successful enforcement of official policy. In many areas, couples apparently are able to have several children without incurring any penalty, while in other areas enforcement has been more stringent. Local officials have great discretion in how, and how strictly, the policy is implemented. Because penalties for excess births can be levied against local officials and the women's work units, many individuals are personally affected, providing an additional potential source of pressure. [Emphasis added.]
137 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.
138 Additionally, the appellant did not produce any evidence to establish that the forced sterilization used by some local authorities in China is inflicted upon men by the local authorities in his area, Guangzhou. In fact, the documentary evidence produced by the appellant strongly suggests that physically coercive penalties for breach of the one-child policy apply principally if not solely against women. In one document which the appellant filed with the Board entitled Slaughter of the Innocents: Coercive Birth Control in China, written by John S. Aird, the author quotes, at p. 71, a portion of the family planning regulations adopted by the Tianhe District in Guangzhou as of January 1, 1987. These regulations make it clear that it is women who are subjected to physical coercion for breach of the one-child policy:
[A]ny woman who does not have an intrauterine device inserted within four months after giving birth shall be fined 20 yuan per month until she accepts the device. If a woman is allowed two children under the law and does not accept an intrauterine device after the birth of the second child, she must be sterilized. Before that measure is taken, she will be fined 50 yuan per month ... If a woman who has one child fails at birth control, the pregnancy must be terminated and the woman sterilized.
139 In this regard it is notable that the passage from the Country Reports quoted above states that penalties for excess births are levied against women's work units. In this case the appellant testified that his wife had lost her job as a result of the breach of the one-child policy, but his Personal Information Form reveals that he maintained his own job as a Manager in the Hung Cheong Works & Trading Company in Guangzhou until the time of his departure from China.
140 The other evidence provided by the appellant also failed to support an objectively well-founded fear of forced sterilization. At the time of the hearing in October 1991, more than a year after the appellant had signed the form confirming that he would agree to be sterilized in place of his wife within three months, no action had been taken to compel the sterilization of the appellant's wife. In fact, at the time of the hearing even the fine of 8,000 dollars had not been paid and the local authorities had apparently accepted a reduction in the amount of the fine in recognition of the fact that the wife was now unemployed:
QThe 8,000 dollars that the Public Security wanted you to pay, did you ever pay that?
AUntil I left China, it wasn't paid. They said -- they said under the condition situation, we don't have that money, they would take a reduction.
QAnd how much was the reduction?
AReduced to 4,800. My wife was dragging and not paying this penalty. Because of that, my child was not allowed officially entered into the record, so recently I have -- I have consulted with my wife, and the money probably will be paid.
Furthermore, the appellant's family successfully renewed his driver's licence in December 1990, some five months after he had left the country. As was noted by the Board with respect to the appellant's separate claim for refugee status on the grounds of pro-democracy political opinion, the renewal of his driver's licence is not consistent with his claim of state imposed persecution.
141 The renewal of the driver's licence is inconsistent with the appellant's assertion that the Chinese authorities would have resorted to physical compulsion to sterilize him. The available evidence with respect to the pressure applied by Chinese authorities to submit to sterilization suggests that the modus operandi was rather to apply financial and regulatory pressure. The 1987 regulations from the appellant's city of Guangzhou, as quoted in the materials provided to the Board by the appellant (Slaughter of the Innocents: Coercive Birth Control in China, supra, at pp. 71-72) provide that:
If an unauthorized baby is the second, third, or subsequent child in a family and sterilization has not been accepted, the family will be denied permission to build a dwelling, their water and electricity will be cut off (or their water and electric rates will be increased five to ten times, depending on the type of residence), grain coupons will not be issued, [and] driver's licenses and private business licenses will be revoked. All these sanctions will end when the sterilization procedure is performed. (The above sanctions apply to all those listed in the family registration book.) [Emphasis added.]
It is unknown what effect the discovery of the birth of his second child would have had on the private business licence which the appellant held for his privately owned seafood restaurant. According to the appellant's testimony, the appellant sold the restaurant in order to raise money to come to Canada in April 1990, before his second child was discovered by the PSB. The Board, and this Court, can rely only on the reasonable deductions which can be drawn from the available evidence, which in this case involves the driver's licence.
142 My colleague, La Forest J. argues that no conclusions can be drawn from individual items of evidence and that on each item the appellant should be given the benefit of the doubt, often by considering hypotheticals which could support the appellant's claim. This approach handicaps a refugee determination Board from performing its task of drawing reasonable conclusions on the basis of the evidence which is presented. This approach is also fundamentally incompatible with the concept of "benefit of the doubt" as it is expounded in the UNHCR Handbook:
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. [Emphasis added.]
143 All the available evidence shows that the Chinese authorities attempt to persuade couples with more than one child to submit to sterilization by psychological, social and financial pressure, including heavy fines. The primary agent of enforcement is the woman's work unit but such measures can include other family members specifically in the case of government controlled licences such as driver's licences. The generally known facts also suggest that some, but not all, local authorities exceed these measures and resort to physical compulsion primarily against women.
144 In this case, the appellant's testimony shows that psychological pressure was applied by frequent visits by the PSB and that financial pressure was applied by means of a heavy fine and termination of his wife's work permit. The appellant's testimony is that he gave written consent to sterilization within three months in order to avoid further psychological or financial pressure. Subsequent to the expiry of the three-month period, the evidence shows that the authorities took no steps to force the sterilization of the appellant's wife, that they significantly reduced the fine and that they renewed the appellant's driver's licence.
145 All of these facts, particularly when taken collectively, run directly counter to all the available evidence as to the behaviour to be expected of the authorities if their intention was to coerce the appellant physically to be sterilized. The available evidence establishes that Chinese authorities intent on physical coercion in contravention of "official" government policy would first exhaust all other means of coercion. Since the appellant's claim that he would be physically coerced into sterilization runs contrary to the available evidence and generally known facts it is not an appropriate instance in which to apply the benefit of the doubt in order to establish the appellant's case. The appellant's evidence is more consistent with the appellant's later comment that the major concern of the local officials was the loss of their bonus owing to the breach of the one-child policy, a concern which presumably would have been substantially alleviated by the payment of the stiff fine imposed by those authorities.
146 I am also unable to accept the conclusion of La Forest J. that the treatment of the appellant with respect to his second child was harsher because of his political opinions expressed by his giving food to pro-democracy demonstrators. There is no suggestion in the appellant's evidence that he considered the visits to his restaurant and the enforcement of the one-child policy to be related. Nor does the evidence suggest that the appellant was treated unusually harshly under the policy: as was noted above, he retained his managerial position and the fine imposed on him was significantly reduced to reflect the loss in earnings of his wife who did lose her job.
147 Of greater concern, however, is the fact that no appeal was ever taken from the Board's finding that the appellant did not face persecution for his pro-democracy political opinion. Thus, the Board's decision on the question of persecution in relation to the appellant's pro-democracy political opinion is final. This Court should not seek to overturn the Board's determination by introducing new factors at this level into an issue which was finally determined at the Board level and not appealed. Furthermore, the appellant did not raise the possibility that he might face forced sterilization for his pro-democracy political opinion either at the Board level or at any level on appeal. It is not open to this Court to decide the appellant's case on the basis of an issue on which leave to appeal was not granted. No argument was heard by the Court on this issue and no reliance was placed on it by the appellant himself.
148 The only issue raised in this appeal which involved political opinion was whether the action of having a child in contravention of China's one-child policy was an action which was sufficiently expressive of a political opinion to independently found a refugee claim. Given my finding that the appellant did not establish a well-founded fear of persecution, I do not find it necessary to deal with this issue.
149 In light of the fact that not all persons who have breached the one-child policy in China face a reasonable chance of forced sterilization, the appellant must establish a well-founded fear of forced sterilization before he can attempt to rely on the decision in Cheung. The appellant failed to adduce any evidence to establish on a balance of probabilities that his alleged fear of forced sterilization was objectively well-founded. On the basis of the oral testimony and documentary evidence presented by the appellant, forced sterilization remains no more than a "mere possibility" for the appellant. In the absence of that evidence, the Board was unable to determine that the appellant has a well-founded fear of persecution in the form of a forced sterilization.
150 This conclusion is decisive of the appeal as the appellant has failed to establish on the evidence presented an essential component of the definition of Convention refugee. In the absence of the appellant's meeting the burden of establishing a proper fact foundation on a balance of probabilities, appellate courts are handicapped in attempting to determine legal issues not grounded on the facts and should not attempt to do so. Therefore, the question of whether Cheung should be followed in light of the decision of this Court in Ward should await a case in which the necessary facts have been established in the refugee determination hearing.
151 The appellant failed to present any evidence with respect to a crucial element of his claim. There was, therefore, no legal basis upon which the Board could accept him as a convention refugee. The appeal must, therefore, be dismissed.
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