IMM-3646-97
YU LAN GUO
Applicant
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
HELD AT: Federal Court of Canada
330 University Ave., 8th floor
Courtroom 1
Toronto, Ontario
HELD ON: October 23, 1998
REGISTRAR: Sandra McPherson, Ms.
REPORTER: Robert Dudley, CVR
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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HELD BEFORE: Mr. Justice Muldoon |
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HELD AT: Federal Court of Canada |
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330 University Ave., 8th floor |
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HELD ON: October 23, 1998 |
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REGISTRAR: Sandra McPherson, Ms. |
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REPORTER: Robert Dudley, CVR |
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PETER J. KROCHAK, ESQ. -- For the Applicant |
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STEPHEN GOLD, ESQ. -- For the Respondent |
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I N D E X O F P R O C E E D I N G S
Pages
Reasons for Judgment ........................... 1 - 7
| HIS LORDSHIP: The Court is prepared to render a decision orally from the bench. This is an Application for Judicial Review of the decision (U91-06013) of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board, dated August 5, 1997, in which the CRDD determined that the applicant is not a Convention refugee within the meaning of 2(1) of the Immigration Act, which is R.S.C. 1985, Chap. I-2. |
| Leave to commence an Application for Judicial Review was granted and that is the reason this matter appears before the Court today. |
| The CRDD issued very brief reasons, so brief that it overlooked two matters upon which it could have, had it dealt with them adequately, found the applicant to be a Convention Refugee. |
| The Court notes that, in terms of credibility, which may be matters of intelligence, as well as memory, as well as failure of understanding, or even outright prevarication, but in terms of credibility, the applicant is no prize; however, there are two factors which come into play in this particular case. |
| First of all, although it was plain before the board in evidence, they did not deal with mainland China's PRC's one child policy. |
| Now, the applicant has a child, a little girl, now just over two years old, born in Canada. That is to say, this little child is a Canadian citizen. The type of treatment accorded a second child, whether it be the requirement of a payment of a fine, whether it be imprisoning the second or subsequent child, or denying rations to the second or subsequent child, is nothing which this Court ought to allow to happen to a Canadian citizen. |
| On the other hand, the applicant does not have to take her infant Canadian citizen back to China with her if she were forced to return to China. |
| Whatever may be the reasoning and considerations there, this board failed to deal with them. |
| The other matter upon which they failed to deal was the fact articulated and testified to by the applicant that, within two months prior to the CRDD hearing, her younger brother had told her that the Chinese police are still looking for her. |
| Now, much of this she brought on her own head, through her stupidity by not making a clean assertion to the police when they came questioning for her husband, that she did not know his whereabouts, and then when she did find out that he had gone to Japan, she didn't tell them right away that he had gone to Japan so far as she knew. |
| And her explanations are bizarre, or one hesitates to say, but that is stupid, if not only bizarre. |
| Ultimately, she seemed to think that the Chinese police would have the right to go to Japan to search for and arrest and deport her husband. |
| I suppose if he hd escaped to the United States, she would have not thought that. He escaped only to the United States' great ally, Japan, and from some fuzzy, dim understanding, she came to the conclusion that her husband might be in jeopardy in Japan. |
| She and her husband are estranged. It is a relationship which is likely to end in divorce, and so when and if she had to return to China, she would not be accompanied by her husband and she would be able to say, even if the authorities are still looking for her, that she and her husband no longer have a relationship. |
| Well, that is a matter, too, with which the CRDD ought to have dealt, ought to have given some consideration, but it failed to do that, and those are important failures. Those are failures which reflect on its conduct and, of course, after all, that is what the Court has to do in these cases; not to decide, itself, whether the applicant be or be not a Convention refugee, but rather how the board conducted the inquiry, and the board conducted the inquiry not well in this case, because of failure to deal with the two matters which could reflect on persecution, or a well-founded fear of persecution on the part of the applicant. |
| It should be noted that the Federal Court of Appeal, in Cheung v. MEI [1993] 2 F.C. 314, found that women in China who have more than one child and are faced with forced sterilization due to this, form a particular social group so as to come within the ambit of the definition of Convention refugee. |
| This finding was made notwithstanding the fact that forced sterilization may be accepted as a law of general application; therefore, the applicant may be able to succeed in her claim on the basis that China's one-child policy may operate to create in her a well-founded fear of persecution, and the panel erred in not considering her testimony and the documentary evidence on this issue. |
| On the other hand, she should not take, if she were to return to China, and this may sound harsh and cold...the Court does not mean to be harsh and cold...she should not take her little Canadian citizen infant into that environment, and if she did not, then, of course, since the one-child policy operates in China but not abroad, she would return as the mother of only one child, and arrangements could be made to leave her second child here in Canada. |
| All these are matters which the CRDD ought to have considered but did not, and for that reason, the Court will allow the applicant's application to quash, set aside the CRDD decision, which was earlier mentioned by number and date, and to refer the applicant's Convention refugee claim back to a newly and differently constituted panel of the CRDD for determination of refugee status and adjudication generally. |
| The counsel who appeared for each party in this case indicated that there is no serious question of general application which, if it were determined in the applicant's favour, could change the verdict, could change the determination of Convention refugee status, and therefore no such question will be certified. |
| The Court appreciates the professional conduct of counsel and their responsibility, and is pleased to have had the opportunity to hear such counsel in this matter. |
| And one final matter is to ask each counsel in turn, anything else? Any questions? |
| MR. KROCHAK: No, My Lord. |
| HIS LORDSHIP: Thank you. Court will rise. |
--- Upon recessing at 10:35 p.m.
| I hereby certify the foregoing to be a true and accurate transcription of the above noted proceedings held before me on the 23rd day of October, 1998 and taken to the best of my skill, ability and understanding. |
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| } _______________________________ |
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| } Certified Verbatim Reporter |
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