Zheng v. Canada (Minister of Citizenship and Immigration), (2011) 384 F.T.R. 125 (FC)

• Judge: Scott, J.
• Court: Federal Court (Canada)
• Case Date: February 01, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 384 F.T.R. 125 (FC);2011 FC 181

Zheng v. Can. (M.C.I.) (2011), 384 F.T.R. 125 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. MR.012

Jian Hua Zheng (applicant) v. Minister of Citizenship and Immigration (respondent)

(IMM-3781-10; 2011 FC 181)

Indexed As: Zheng v. Canada (Minister of Citizenship and Immigration)

Federal Court

Scott, J.

February 15, 2011.

Summary:

Zheng, born in China, was pregnant at the time she applied for refugee protection, and had since given birth. A significant portion of her submissions before the Immigration and Refugee Board was directed towards arguing that she would be personally at risk in the event that her Canadian-born son returned to China with her because her son was born out-of-plan. The Immigration and Refugee Board refused Zheng's claim after determining that she was neither a convention refugee nor a person in need of protection. Zheng applied for judicial review.

The Federal Court granted the application. It was unreasonable for the Board to base its determination on the premise that the applicant could leave her son in Canada. The Board's treatment of the applicant's risk as speculative was also unreasonable. Its failure to deal with country conditions also constituted a reviewable error. The court sent the matter for reconsideration by a differently constituted Board.

Aliens - Topic 1313.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee protection - Rejection of claims where refugee protection ceased (incl. compelling reasons exception) (IRPA, s. 108) - [See third Aliens - Topic 1322 ].

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The applicant, born in China, was pregnant at the time she applied for refugee protection, and had since given birth - The basis of her claim was that she would be personally at risk in the event that her Canadian-born son returned to China with her because her son was born out-of-plan - The Federal Court found that the applicant was right to submit that the refusal of the Immigration and Refugee Board to analyse her risk based on that eventuality constituted a reviewable error - "This is especially the case given how unlikely it is for a mother to choose, regardless of the circumstances, to abandon her infant child in a country where that child has no family to care for him or her" - The Board erred in conducting its analysis based on the premise that the applicant could return to China without her infant son - Its assertion in that regard was unreasonable - See paragraphs 32 to 36.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - In support of her claim for refugee protection, the applicant alleged that she did not want to return to China because she feared forced sterilization should she marry (she indicated that she wanted to marry and have more children) - The Immigration and Refugee Board concluded that, since marriage or further children was only speculative, the alleged harm was also speculative - The Federal Court agreed with the applicant that the Board's reasoning was "problematic" - If the Board was going to accept that sterilization was a real possibility in the event that the applicant did become married or have further children, then it should also have considered whether preventing the applicant from getting married or from having further children by threatening forced sterilization might, in and of itself, amount to persecution - Thus, the Board's reasons did not demonstrate justification, transparency and intelligibility within the decision-making process and were unreasonable - It was also unreasonable for the Board to have ignored the country conditions evidence as it related to forced abortions and sterilizations in China - See paragraphs 37 to 45.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The applicant was born in China - She was pregnant at the time of her application for refugee protection, and had since given birth - The Immigration and Refugee Board refused her claim - On judicial review, the applicant argued that the Board erred in finding that s. 108(4) of the Immigration and Refugee Protection Act ("compelling reasons") did not apply - She submitted that because she previously underwent a forced abortion for an out-of-plan pregnancy, and because she now feared a forced sterilization for an out-of-plan birth, s. 108(4) should apply - The Federal Court found there was nothing unreasonable about the Board's conclusion that there "has not been a change in circumstances and therefore there is no trigger in order to consider the exception" - At no point did the Board find that there was a valid refugee (or protected person) claim - Nor did it find that the reasons for any potential claim had ceased to exist - See paragraphs 46 to 51.

Aliens - Topic 1335

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - [See all Aliens - Topic 1322 ].

Cases Noticed:

Liu v. Canada (Minister of Citizenship and Immigration) et al. (2009), 353 F.T.R. 132; 2009 FC 877, refd to. [para. 16].

Velez et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 620; 2010 FC 923, refd to. [para. 17].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Obasohan v. Canada (Minister of Citizenship and Immigration) (2001), 103 A.C.W.S.(3d) 1011; 2001 FCT 92, refd to. [para. 19].

De Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655; 345 N.R. 73; 2005 FCA 436, refd to. [para. 20].

Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164; 266 N.R. 380; 102 A.C.W.S.(3d) 592 (F.C.A.), refd to. [para. 23].

Kanagaratnam v. Minister of Employment and Immigration (1994), 83 F.T.R. 131; 49 A.C.W.S.(3d) 350 (T.D.), refd to. [para. 24].

Anmar v. Canada (Minister of Citizenship and Immigration) (2006), 49 A.C.W.S.(3d) 350; 2006 FC 1041, refd to. [para. 25].

Varga et al. v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 3; 357 N.R. 333; 2006 FCA 394, refd to. [para. 26].

Narcisse v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 354; 157 A.C.W.S.(3d) 613; 2007 FC 514, refd to. [para. 31].

Idahosa v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 385 N.R. 134; 307 D.L.R.(4th) 368; 2008 FCA 418, refd to. [para. 34].

Chi v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 73; 112 A.C.W.S.(3d) 132; 2002 FCT 126, refd to. [para. 41].

Dini v. Canada (Minister of Citizenship and Immigration) (2001), 202 F.T.R. 39; 104 A.C.W.S.(3d) 549; 2001 FCT 217, refd to. [para. 47].

Brovina v. Canada (Minister of Citizenship and Immigration) (2004), 254 F.T.R. 244; 2004 FC 635, refd to. [para. 50].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 108(4) [para. 48].

Counsel:

Marvin Moses, for the applicant;

Khatidja Moloo, for the respondent.

Solicitors of Record:

Marvin Moses Law Office, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on February 1, 2011, before Scott, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated February 15, 2011.