Docket: IMM-4323-16
Citation:
2017 FC 443
Ottawa, Ontario, May 03, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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YINGYI LIANG
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, a 30 year old citizen of China,
claims that the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board of Canada failed to properly assess her risks in returning to China as an
unwed mother. She argues that she would be subject to discrimination in
housing, medical services, and education for her child. She also argues that
the RAD engaged in speculation with respect to her ability to pay a fine that
will be levied against her by the family planning authorities in China.
[2]
For the reasons that follow, I conclude that the
RAD properly assessed the Applicant’s risk based upon the evidence it had
before it. The RAD reached a reasonable decision; therefore, this judicial
review is dismissed.
I.
The RAD Decision
[3]
The RAD acknowledged that the Applicant was at
risk of being fined for being an unwed mother in China. However, the RAD noted
that there was inconclusive evidence as to whether children born outside China
were subject to the fine. Further, as the fine is one of general application of
the family planning policy in China, it would not be applied to the Applicant
in a persecutory way. Therefore, the Applicant’s return to China would not
personally subject her to a risk to her life, or to a risk of cruel and unusual
treatment or punishment.
[4]
The RAD concluded that the Applicant is not a
Convention refugee according to section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], nor that she is a person in
need of protection under subsection 97(1) of the IRPA.
II.
Issue
[5]
The only issue raised by the Applicant in this
matter is whether the RAD’s finding that she will not face persecution upon her
return to China, by reason of violations to the Family Planning policy, is
reasonable.
III.
Analysis
[6]
The Applicant argues that the RAD failed to
properly consider the various forms of discrimination the Applicant will face
if she returns to China as an unwed mother. In addition to a fine, which may be
double to that imposed on married couples, she will also face discrimination in
housing, accessing medical services and accessing affordable education for her
child. The Applicant argues that while the RAD acknowledges these issues (see
paragraphs 46 -48 of the RAD’s Reasons and decision), it failed to fully
analyze those issues and rather, speculated that the Applicant would be able to
afford the fine imposed.
[7]
A review of the RAD decision reveals that it
considered the documentary evidence relating to unwed mothers, and children
born out of wedlock. The RAD also expressly considered evidence relating to the
Applicant’s home province (Guangdong). Although the RAD noted that the
documentary evidence was mixed, it reasonably concluded that the application of
the Chinese law did not rise to the level of persecution.
[8]
The RAD’s findings are in keeping with previous
decisions from this Court that have held that the imposition of a fine of
general application is insufficient to amount to persecution. In Li v Canada
(Citizenship and Immigration), 2011 FC 610 the Court states:
[17] This Court has determined that the
fines imposed for breaching China’s family planning policy are generally not
persecutory. The Respondent relies on Lin v Canada (Minister of Employment
and Immigration), (1993), 66 FTR 207, 24 Imm LR (2d) 208 (Fed TD), in which
Justice Paul Rouleau stated at paragraph 6 that “economic sanctions, as a means
to enforce compliance with the law, does [sic] not amount to persecution.”
[19] […] Although the fines levied against
unwed mothers are higher than those for married couples, there is no evidence
that this distinction is discriminatory, let alone persecutory. The sole basis
for the Applicant’s argument that the fine is persecutory appears to be the
amount. However, in the absence of any evidence or argument to this effect,
there is no basis for the Court to interfere with the Board’s finding that the
fine is not persecutory.
[9]
It is not the role of the RAD to prove that the
Applicant will not be persecuted. The burden is on the Applicant to establish
that she would face a serious possibility of persecution should she return to
China. (Sanmugalingam v Canada (Citizenship and Immigration), 2016 FC
200 at para 10)
[10]
Here, the Applicant failed to show that the fee
for the child would be levied against her, or, if so, that the fee would be
prohibitively expensive. The onus was on the Applicant to produce evidence
before the RAD to corroborate her claims, and she has failed to discharge her
burden of proof in that regard.
IV.
Conclusion
[11]
The RAD considered the evidence and was not
unreasonable in denying the Applicant’s claim. The RAD’s decision is therefore
entitled to deference on a reasonableness review.
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