Chan v. Minister of Employment and Immigration, (1995) 187 N.R. 321 (SCC)

• Judge: Gonthier, Cory, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 31, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 187 N.R. 321 (SCC);[1995] 3 SCR 593;128 DLR (4th) 213;[1995] SCJ No 78 (QL);[1995] ACS no 78;[1995] FCJ No 78 (QL);187 NR 321;1995 CanLII 71 (SCC);58 ACWS (3d) 287

Chan v. MEI (1995), 187 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Kwong Hung Chan (appellant) v. The Minister of Employment and Immigration (respondent) and Immigration and Refugee Board and Canadian Council for Refugees (intervenors)

(File No. 23813)

Indexed As: Chan v. Minister of Employment and Immigration

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Sopinka,

Gonthier, Cory, Iacobucci and Major, JJ.

October 19, 1995.

Summary:

The Convention Refugee Determination Division of the Immigration and Refugee Board determined that Chan was not a Con­vention refugee. Chan appealed, claiming to have a well-founded fear of persecution (i.e., he would be subject to China's forced sterilization policy if he returned to China).

The Federal Court of Appeal, Mahoney, J.A., dissenting, in a decision reported 156 N.R. 279, dismissed the appeal. Chan appealed again.

The Supreme Court of Canada, La Forest, L'Heureux-Dubé and Gonthier, JJ., dissent­ing, dismissed the appeal.

Aliens - Topic 1322

Admission - Refugees - Grounds - Well-founded fear of persecution - Chan claimed to be a Conven­tion refugee (Im­migration Act, s 2(1)), alleging a well-founded fear of persecution because he would be subject to China's forced sterili­zation policy if he returned to his home­land - The Supreme Court of Canada assuming, without deciding, that Chan was a member of a particular social group within the meaning of s. 2(1), held that there was no legal basis upon which the Refugee Board could have accepted him as a Convention refugee because he failed to establish that he had a well-founded fear of persecution (sterilization) - The evi­dence respecting his subjective fear of persecution was equivocal at best and he failed to adduce any evidence to establish on a balance of probabilities that his alleged fear of forced sterilization was objectively well-founded - See paragraphs 1 to 56.

Aliens - Topic 1322

Admission - Refugees - Grounds - Well-founded fear of persecution - The Supreme Court of Canada stated that the bipartite test for establishing a fear of persecution was set out by La Forest, J., in Canada v. Ward as follows: "... '(1) the claimant must subjectively fear persecu­tion; and (2) this fear must be well-founded in the objective sense' ..." - See paragraph 24 - The court stated that "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 ... 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 ..., as a 'serious possibi­lity'" - See paragraph 25.

Aliens - Topic 1322

Admission - Refugees - Grounds - Well-founded fear of persecution - The Supreme Court of Canada stated that "... 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" - See paragraph 33.

Aliens - Topic 1322

Admission - Refugees - Grounds - Well-founded fear of persecution - The Supreme Court of Canada stated that "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" - See paragraph 38.

Aliens - Topic 1323.1

Admission - Refugees - "Particular social group" defined - In Ward v. Canada (S.C.C., 1993), La Forest, J., set forth guidelines for determining whether a refu­gee claimant fell within a "particular social group" - In 1995, La Forest, J., of the Supreme Court of Canada, in a dis­senting judgment, commented on his rea­sons in Ward - La Forest, J., stated that "... only a working rule was enun­ciated in Ward, not an unyielding deter­minist 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' were to remain the para­mount consideration in determining a claimant's membership in a particular social group" - La Forest, J., also explained his earlier remarks on "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 claim­ant's pur­ported volun­tary association" - See para­graphs 138 to 143.

Aliens - Topic 1323.1

Admission - Refugees - "Particular social group" defined - In Ward v. Canada (S.C.C., 1993), La Forest, J., referred to three categories of social groups, including category (2), being "groups whose mem­bers voluntarily associate for reasons so funda­mental to their human dignity that they should not be forced to forsake the associ­ation" - In 1995, La Forest, J., of the Supreme Court of Canada, in a dis­senting judgment, stated that "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 voluntarily associate, ally, or consort with kindred persons." - See paragraph 143.

Aliens - Topic 1326.3

Admission - Refugees - Refugee Division - Composition of panel - The Supreme Court of Canada stated that it is the re­sponsibility of the Presiding Member of the Immigration and Refugee 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 court stated that "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" - See paragraphs 28, 29.

Aliens - Topic 1331

Admission - Refugees - Evidence - [See all Aliens - Topic 1322 ].

Aliens - Topic 4082

Practice - Hearings - Interpreter - The Supreme Court of Canada noted the diffi­cult task of an interpreter in refugee deter­mination proceedings and commented that it was hardly surprising that simultaneous translation can sometimes lead to minor infelicities of style - The court stated that the Immigration and Refugee Board (and the court when reviewing the written record) were well equipped to look past grammatical errors and to grasp the import of a claimant's testimony - This was a fundamental part of the sympathetic approach to the evidence advocated in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status - See paragraphs 28, 29.

Aliens - Topic 4082

Practice - Hearings - Interpreter - [See Aliens - Topic 1326.3 ].

Cases Noticed:

Cheung et al. v. Minister of Employment and Immigration, [1993] 2 F.C. 314; 153 N.R. 145; 102 D.L.R.(4th) 214; 19 Imm. L.R.(2d) 81 (F.C.A.), dist. [paras. 11, 73].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, consd. [paras. 14, 57].

Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680; 132 N.R. 24 (F.C.A.), refd to. [para. 25].

R. v. Secretary of State for Home Depart­ment; Ex parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.), refd to. [para. 25].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273; 31 D.L.R.(4th) 1; 13 C.P.C.(3d) 6, refd to. [para. 91].

W.I.H., Re, [1989] C.R.D.D. No. 15, refd to. [para. 105].

Di v. Carroll (1994), 842 F.Supp. 858 (E.D. Va.), refd to. [para. 106].

Zhang v. Slattery (1994), 859 F.Supp. 708 (S.D.N.Y.), refd to. [para. 106].

Chang, Re (1989), Int. Dec. 3107 (BIA), refd to. [para. 106].

Minister of Employment and Immigration v. Mayers, [1993] 1 F.C. 154; 150 N.R. 60; 97 D.L.R.(4th) 729 (F.C.A.), refd to. [para. 126].

Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.), refd to. [para. 130].

Chai v. Carroll (1995), 48 F.3d 1331 (4th Cir. Ct.), refd to. [para. 135].

Zhao v. Schiltgen, 1995 W.L. 165562 (N.D. Cal.), refd to. [para. 135].

W.R.A., Re, [1989] C.R.D.D. No. 98, refd to. [para. 135].

H.H.K., Re, [1991] C.R.D.D. No. 484, refd to. [para. 135].

D.K.X., Re, [1989] C.R.D.D. No. 293, refd to. [para. 135].

Statutes Noticed:

Convention on the Elimination of All Forms of Discrimination against Women (March 1, 1980), Can. T.S. 1982, No. 31, art. 16(1)(e) [para. 144].

Immigration Act, R.S.C. 1985, c. I-2, sect. 2(1) [paras. 5, 57]; sect. 3(g) [para. 113]; sect. 19(1)(c) [para. 123].

International Covenant on Civil and Politi­cal Rights (December 19, 1966), Can. T.S. 1976, No. 47, art. 23(2) [para. 144].

Program of Action of the United Nations International Conference on Population and Development (Draft), pp. 9, 34 [para. 144].

Authors and Works Noticed:

Aird, John S., Slaughter of the Innocents: Coercive Birth Control in China (1990), p. 71 [para. 46].

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, generally [para. 106].

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, pp. 52 [para. 111]; 53 [para. 122].

Lin, Stanford M., China's One-Couple, One-Child Family Planning Policy as Grounds for Granting Asylum - Xin-Chang Zhang v. Slattery (1995), 36 Harv. Int'l L.J. 231, generally [para. 106].

Macklin, Audrey, Canada (Attorney Gen­eral) v. Ward: A Review Essay (1994), 6 Int'l J. Ref. L. 362, p. 375 [para. 143].

Moriarty, Tara A., Guo v. Carroll: Political Opinion, Persecution and Coercive Pop­ulation Control in the People's Republic of China, 8 Geo. Imm. L.J. 469, gen­erally [para. 106].

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, generally [para. 106].

United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (1979), paras. 38 [para. 24]; 42 [para. 39]; 43 [paras. 39, 42]; 46 [para. 131]; 196, 197 [para. 103]; 198 [para. 131]; 201, 202, 203, 204 [para. 103].

United States State Department, Coun­try Reports on Human Rights Prac­tices (1991), generally [para. 41].

United States State Department, Coun­try Reports on Human Rights Prac­tices (1994), pp. 605 [para. 108]; 609 [para. 107].

Valpy, Michael, The Suspicion of a Gelded Refugee Process, Globe and Mail, March 7, 1995, p. A2 [para. 100].

Counsel:

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.

Solicitors of Record:

Legal Services Society, Vancouver, British Columbia, for the appellant;

John C. Tait, Ottawa, Ontario, for the respondent;

Gowling, Strathy & Henderson, Ottawa, Ontario, for the intervener, Immigration and Refugee Board;

Parkdale Community Legal Services, Toronto, Ontario, for the intervener, Canadian Council for Refugees.

This appeal was heard on January 31, 1995, before La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ., of the Supreme Court of Canada. The judgment of the court was delivered in both official languages on October 19, 1995, including the follow­ing opinions:

Major, J. (Sopinka, Cory and Iacobucci, JJ., concurring) - see paragraphs 1 to 56;

La Forest, J., dissenting (L'Heureux-Dubé and Gonthier, JJ., concurring) - see paragraphs 57 to 151.