BETWEEN:
YIN HUAN
SHEN HUI SHAN CAO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, dated February 10, 2005 wherein it was determined that the Applicants were not Convention refugees and not persons in need of protection.
[2] The Applicants are a husband, wife and their daughter, a minor. All are citizens of the Peoples' Republic of China (PRC) and formerly resided in Guangzhou City, Guandong province, PRC. They arrived in Canada in December, 2003 directly from the PRC and immediately made a claim for protection as Convention refugees on the basis of a well-founded fear of persecution on the basis of membership in a particular social group, family planning. The wife claims that, having had one child in China, she was forced to have an IUD inserted, became pregnant none-the-less and was forced to have an abortion as a result. This abortion caused her trauma and the family claims that it was terrorized by birth-control officials (PSB) who frequently went to their home, made demands, and damaged personal possessions.
[3] Since arriving in Canada the Applicants have had a second child and claim that they fear a return to China in that one or both of the parents will be forced to undergo sterilization as a result of having two children.
[4] Their application for protection was heard on two occasions in 2004 and by a written decision dated February 8, 2005, was rejected. The Board member summarized the decision at page 7 of the decision:
The claimants have failed to provide credible and trustworthy evidence in support of their claims. I find, on a balance of probabilities, that the female claimant was never the subject of a forced abortion, nor were any of the claimants ever sought by the PSB or any other authority. I find that they can safely return to Chinaas there is only a mere possibility that they will face persecution for the reason they allege.
Moreover, based on same evidence, I am unable to conclude that there are substantial grounds to believe that the claimants face a risk of harm pursuant to subsections 97(1)(a) or (b) of the Immigration and Refugee Protection Act
[5] The Applicants submit that the findings of the Board member were patently unreasonable, that there were numerous errors made as to factual findings, the sum of which means that the decision must be set aside.
[6] The Respondent submits that, even of there were errors made by the member, the essential circumstance of the case is that the Applicants, even having now two children, would not be subject to persecution if returned to China and no objective case for fear of persecution has been made out. To this the Applicants respond that there is evidence that is equally persuasive that they will face persecution in the form of forced sterilization, if returned to the PRC.
[7] There is no doubt that the Board member, in assessing the evidence, appears to have made a number of findings that cannot reasonably be supported by the evidence. The first finding as to the date upon which the female Applicant was to have a check-up following involuntary insertion of an IUD was based on an obvious misunderstanding between the Board member and the female Applicant or interpreter. The female Applicant has the IUD inserted in May and was to be examined quarterly. Her first examination was in June. The Board member somehow inferred that examinations were to be conducted every three months after insertion hence June was an improbable date. That is not the evidence, she was to be examined quarterly, the first examination happened to be in June. There is nothing improbable as to the female Applicant simply fitting into a schedule established generally. There is no suggestion that each person is treated individually.
[8] The second finding is that the female Applicant's IUD book was of questionable veracity. This book was sent to the RCMP for scrutiny and their report was that the results were inconclusive. While finding the book questionable as opposed to inconclusive may not seem an error or at least not one of great concern, the Board member combined this with the first finding as to IUD check-up to conclude that the female Applicant's assertion that she was forced to have an abortion was fabricated and said that he did not find the documents credible. There simply is no basis in the evidence for such findings.
[9] The Board member next found that the Applicants' evidence that they went into hiding was not consistent with their testimony that they went to an uncle's house to meet with an agent to get them out of the country. Hiding does not necessarily mean concealment and it is entirely probable that one would have to go somewhere in order to plan an escape from the country.
[10] The next set of findings as to whether the female Applicant was pregnant in September 2003 and forced to have an abortion, which the Board member found not to be the case, can only be based on a misunderstanding of the female Applicant's oral testimony. The questioning on this point only shows that the member and female Applicant did not seem to understand each other in this area of questioning:
PRESIDING MEMBER: I said that wasn't the question. Why do you think you would be sterilized?
CLAIMANT #2: Because I have contravened the family planning law.
COUNSEL: And before you came to Canada, had you contravened the family planning law?
CLAIMANT #2: No.
PRESIDING MEMBER: You did not? So why were you forced to have an abortion?
CLAIMANT #2: I want to have more children and I was not allowed to do that and, also, sterilization, that is all (inaudible), therefore, I come here.
PRESIDING MEMBER: The thing is
COUNSEL: Okay.
PRESIDING MEMBER: ---- you did contravene the law by getting pregnant. Is that not a fact?
CLAIMANT #2: Dragged to have the abortion.
PRESIDING MEMBER: What's that?
CLAIMANT #2: I was pregnant and I would be forced to have this foetus aborted.
PRESIDING MEMBER: Yes, I understand that. What I am saying, however, is that, in the eyes of the authorities, you contravened the family planning law.
CLAIMANT #2: Because I did not---
PRESIDING MEMBER: But ---
CLAIMANT #2: ---I did not want to have this baby on my own volition.
PRESIDING MEMBER: So I asked you at the beginning to wait for the questions before you jump in. As I'm saying, you contravened the law. True, you were forced to abort the child, but you were not sterilized. So why do you believe, if you went back home after having this baby, you'll be sterilized?
CLAIMANT #2: I was only allowed to have one child. If I'm going to bring with me an additional child and, therefore, I must be forced to be sterilized.
[11] The issue most relied upon by the Respondent was the finding by the Board member that this couple, now with two children could "safely return to China as there is only a mere possibility that they will face persecution for the reason they allege".
[12] The Applicants' testimony was that one and probably both parents would undergo forced sterilization if returned to Guangzhou in the PRC. Respondent's counsel pointed out documents before the Board such as "Perspective Series, Chinese State Birth Planning in the 1990's and Beyond" which states, inter alia that Chinese citizens who give birth to children while abroad are generally exempt from the birth-planning regiment and consequent punishments. Applicants' counsel pointed out that this document speaks of students and business persons who are abroad for "ordinary reasons" and not to those like the Applicants who have hidden, fled and sought refugee status abroad. Applicants' counsel point to other documents before the Board from the Population Research Institute which state that forced sterilization continues to be practiced by PRC officials.
[13] Considering the matter in its entirety there are numerous inconsistencies between the evidence and the findings of the Board member such that it can only be concluded that the findings were patently unreasonable. This matter should be sent back to be dealt with anew by a different Board member.
[14] No party suggested that there was a question for certification and none is found.
[15] There will be no order as to costs.
JUDGE
Toronto, Ontario
November 21, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1426-05
STYLE OF CAUSE: JUN YONG CAO
YIN HUAN
SHEN HUI SHAN CAO
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 17, 2005
APPEARANCES:
Hart A. Kaminker FOR THE APPLICANTS
Sharon Stewart Guthrie FOR THE RESPONDENT
SOLICITORS OF RECORD:
Hart A. Kaminker
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.