Facts

The respondent is 29 y.o. citizen of China. The basis of her refugee claim is that the couple is afraid of the enforcement of China’s one child policy. At the time of the hearing the responded was pregnant with her first child and the couple’s intention was to have more children in the future.

Decision under Review

The Board found that the respondent and her husband were genuine in their strongly-held views about family planning. The couple was able to establish that they were planning on having at least two kids, they were not interested in using an Intra Uterine Device for birth control or be sterilized. It was the view of the Board that in the eyes of the Chinese government and its one child policy, the couple’s view would constitute a political opinion in opposition to the government.

Despite the fact that the Board agreed with the Minister’s submissions that the claimants’ long term fear about facing sterilization at some point in the future was based on too many unknowns, the Board found that the cumulative effect of a compulsory fitting of an IUD and regular periodic examination would amount to persecution in the claimants’ circumstances.

Because it was the female applicant who would face these problems, the Board found that the problems the husband would face upon his return to China did not constitute an objective fear of persecution pursuant to s 96 of the IRPA.

The Minister submitted an application for judicial review of the decision.

Analysis

The standard of review was determined to be reasonableness (per CIC v Ma, 2009 FC 779 at para 31; Kulasingam v CIC, 2012 FC 543 at para 23) As such, the Court needed to determine that the Board’s findings fell within the “range of possible, acceptable outcomes which are defensible in respect of the facts of the law” ( per Dunsmuir v New Brunswick, [2008] 1 SCR 190 at 47).

The applicant argued that the Board’s reasons were inadequate and based on the conjecture and speculation.

The Court was of the opinion that given the amount of jurisprudence which has recognized that coercive and physically intrusive interference with a woman’s reproductive liberty constitutes persecution, the matter did not warrant the Court’s intervention on the basis of inadequacy of the reasons.

The Minister was arguing that the Board’s decision was speculatively based on the notion that the couple will continue to hold strong views with respect to birth control and having more children. However, the Court noted that the Minister failed to point out to any evidence supporting the fact that the couple would not continue to hold these strong views. As a result, the Court found that there was no basis for finding an error in the Board’s reasons.

Furthermore, given that the standard for the Board’s reasons is not perfection (as per Newfoundland Nurses, [2011] 3 SCR 708), the Court found that the Board’s analysis of the respondent’s claim was reasonable.

Even though the Board in its reasons did not refer to specific documentation before it that supported the respondent’s claim that she upon birth of her first child she would be subjected to compulsory fitting for an IUD and regular periodic examination, the Court found that there was enough objective evidence to support these allegations.

 

The applicant argued that the Board’s reasons show a contradictory finding. Specifically, in one para the Board claimed that the couple claimed refugee protection before starting a family and therefore, their fear of facing sterilization at some point is based on too many unknowns. In another para, the Board agreed with the counsel’s submissions with respect to the female claimant, that given the claimant’s unique background and strong views about family, a process of compulsory IUD fitting amounts to persecution.

The Court noted that the evidence supports the Board’s distinction between the likelihood of sterilization and the likelihood that the respondent would face a compulsory fitting of an IUD. The risk of sterilization depends on the gender of the couple’s first child. In contrast, a forced use of an IUD was a serious possibility for the respondent.

For these reasons, the Court found the Board’s analysis of the objective basis for the claim reasonable and dismissed the application for judicial review.