Date: 20050208
Docket: IMM-1849-04
Citation: 2005 FC 179
BETWEEN:
LI MIN LAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of a member of the Immigration and Refugee Board (the "Board"), dated February 12, 2004 (the "Decision"), wherein the Board determined that Li Min Lai (the "Applicant") is neither a Convention refugee nor a person in need of protection.
THE FACTS
[2] The Applicant is a 47-year old citizen of China who, from 1980 until 2000 worked at the Fushun Bus Company (the "Company") in the position of Office Manager of Family Planning. The Company had approximately 3800 female employees and the Applicant had a staff of ten. Women were not allowed to have more than one child under Chinese law. However, prior to 1985, several women at the Company had had two children and, as a result, the Company paid significant fines.
[3] The evidence disclosed that the Applicant never forced a woman to have an abortion, but instead used arguments, education, and financial incentives to persuade women to comply with the law. She was very successful. After 1985, every employee who became pregnant contrary to the family planning laws agreed to have an abortion in her first trimester.
[4] In May of 2000, the Applicant discovered that Yuan Wang, the daughter-in-law of the general manager of the Company, was six months pregnant, despite having already had a daughter. Thereafter, the Applicant went to Yuan Wang's house every second day and stayed from three to six hours. During these visits, the Applicant told Yuan Wang that if she had the baby:
- she and her husband would lose their well-paid jobs
- they would be fined
- they would not be able to register their second child in the Household Registry, which would meant that the child would have no education
- she would be arrested
[5] Apparently, all these threats were true, except the last one. The Applicant said that she added the last one when the timing became critical. Eventually, Yuan Wang agreed and the Applicant accompanied her to the hospital for the abortion (the "Abortion"). Afterwards, the Applicant learned that Yuan Wang's father had been in the process of getting a false medical certificate, which would have permitted Yuan Wang to have the child.
[6] The Applicant alleged that she suffered serious consequences because she persuaded Yuan Wang to have the Abortion. The windows of her home were broken, she was badly beaten three times and she lost her job. The police would not intervene and the Public Security Bureau ("PSB") pursued her. She sought assistance from the Provincial Family Planning authorities and from the People's Complaints Department, but nothing was done. Finally, the Applicant paid an agent and, with his assistance, left China for Canada.
[7] The Applicant arrived in Canada on September 26, 2001 and claimed refugee status on October 18, 2001.
THE DECISION
[8] The Board concluded that the Applicant was excluded from Convention refugee status because she had committed a crime against humanity. The Board also found that her account of persecution by the authorities was implausible.
Exclusion - Article 1(f)(a) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the "Convention")
[9] The Board concluded that the Applicant had "forced" Yuan Wang to have the Abortion using relentless and extreme pressure. The Board came to this conclusion based on the Declaration of the Immigration Officer, dated January 9, 2002, which describes the interview he held with the Applicant on October 18, 2001 (the "Declaration"). The Declaration states that, during the interview, which was conducted with the services of a Mandarin interpreter, the Applicant stated that she was "very serious in carrying out her duties and had done a lot of enforcing, e.g. forced abortions and sterilization". The Board considered the issue of translation, and whether the word "forced" was used, or whether the Applicant might actually have stated that she had "pressured" or "convinced" the women. Based on the experience of the interpreter, as well as that of the Immigration Officer, the Board was satisfied that the word "forced" had not been casually or mistakenly used.
[10] When she used the word "forced", the Board understood the Applicant to mean that she had exerted extreme pressure on the women so that they consented to abortions they otherwise would have refused. The Board did not think that the Applicant had physically forced anyone to have an abortion. The Board stated that: "[the Applicant] put such extreme pressure on Yuan Wang that, when she was seven months pregnant, she went along with [the Applicant] to have an abortion, even though she had been clearly and resolutely opposed to the abortion."
[11] The Board, having concluded that the Applicant had forced Yuan Wang to have the Abortion, assessed whether this should result in exclusion. The Board concluded that the Applicant's purpose was not cruel - it was to enforce China's one child policy. However, the Board also concluded that a policy which involves forcing a woman to have an abortion is a crime against humanity. In this regard, the Board relied on Mr Justice Evans' decision in Yang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 174. The Board found that the Applicant had taken pride in her work and clearly knew what she was doing.
[12] Applicant's counsel submitted to the Board that the Applicant was simply enforcing China's one-child policy, which the Supreme Court of Canada has found has no persecutory intent. However, the Board noted that enforcement of the policy could amount to persecution and that it had reached that point in this case.
Plausibility
[13] The Board did not accept that the Company's general manager would have been hostile to the Applicant, given that he had the power to stop her before she persuaded Yuan Wang to have the Abortion. Similarly, the Board did not accept that the Family Planning authorities would refuse to assist her, given her long enforcement of the one child policy and the fact that she had simply been doing her job.
[14] The Board also discounted much of the Applicant's documentary evidence. Two letters from her husband were given no weight because they were from an interested party. The letter from her employee, Kong Lina was discounted as the Board did not believe that she would write a letter accusing the general manager of persecution and then send an envelope showing the Company's address as the return address. There were also three Writs of Summons, which the Board found were too vague to be helpful. Two Approvals for Disciplinary Action were also discounted, as they merely stated that she had been absent from work.
[15] The Board did accept the Applicant's medical evidence and concluded that Yuan Wang's husband may have attacked the Applicant for her role in convincing Yuan Wang to have the Abortion. However, the Board found that this did not amount to persecution. Further, the Board drew an adverse inference from the Applicant's failure to mention her troubles with the Public Service Bureau at her interview on October 18, 2001 and found that, even if the harm inflicted by Yuan Wang's husband could have amounted to persecution, she had not shown that state protection was unavailable.
[16] The Applicant also submitted that she had been put at increased risk because of inquiries made of the Company by Citizenship and Immigration Canada.
THE ISSUES
1. Did the Respondent breach the rules of natural justice or procedural fairness by not providing full disclosure to the Applicant?
2. Did the Board err with respect to Article 1(F)(a) of the Convention when it concluded that the Applicant forced women to have abortions?
3. Did the Board err in its plausibility findings?
4. Did the Board err with respect to the sur place claim?
5. Did the Board err on the issue of state protection?
ANALYSIS
Issue 1 - Fairness
[17] The Applicant submits that the Respondent failed to provide full disclosure when it redacted certain portions of email communications with the Canadian Embassy in Beijing. Also, the notes made by the Officer who contacted the Company were not produced. The Applicant submits that the missing information could be highly relevant to her sur place claim. It is submitted that this conduct is a breach of natural justice or procedural fairness.
[18] If the Applicant was concerned about non-disclosure, she or her counsel should have raised the issue before the Board. The emails to which the Applicant refers were not entered as evidence before the Board. In my view, the Applicant waived her right to complain when she did not raise the issue at the first opportunity.
Issue 2 - Exclusion
[19] The Applicant is critical of the Board's finding that the Declaration was "reasonably accurate" even though it was not made under oath and was not signed until almost three months after the interview. The Applicant also submits that the finding was contrary to the Board's statement that "it is not obvious from the face of the Declaration how this information was recorded and how the accuracy of the information was checked." The Applicant submits that, in these circumstances, it was unreasonable to accept the Declaration's statement that the Applicant forced women to have abortions over her denial that she used the word "forced".
[20] In my view, this issue is not material. Quite apart from what she may have said to the Immigration Officer, it is clear from her own evidence that with her relentless, and highly abusive tactics, she forced pregnant women in the Company to have abortions.
Issue 3 - Plausibility
[21] On this issue, the Applicant submits, in particular, that the Board erred in discounting the letter from her employee without referring to her explanation. She explained that her employee was able to mail the letter because her husband worked at the Post Office. However, since this explanation did not address the significant issue, which was the employee's use of the Company's address as the return address, there was, in my view, no need for the Board to mention the Applicant's explanation.
Issue 4 - Sur Place Claim
[22] The Applicant's position is that the Board summarily dismissed her sur place claim without carefully examining the evidence and without mentioning it in the Decision. The Applicant's evidence was that after the first day of the Board's hearing, her husband was taken away by Chinese authorities as a result of the Respondent making contact with the Company.
[23] In my view, since the basis for the claim (namely persecution at the hands of the employer and the Public Security Bureau) was found to be not credible, the Board was not required to deal with this issue.
Issue 5 - State Protection
[24] The Applicant's position on this issue is that the Board erred by not considering the possibility that there was no effective state protection because the state refused to enforce its laws. The Applicant cites Elcock v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J No 1438 in support of this submission.
[25] In Elcock, supra, the applicant was found to be credible and had documentary evidence showing that state authorities in Granada did not intervene in domestic abuse situations. Therefore, the presence of legislation and policies was not meaningful. However, in my view, this submission is not relevant to the facts of this case because the Applicant's allegations of persecution were not believed.
CONCLUSION
[26] For all these reasons an order will me made dismissing this application.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
February 8, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: LI MIN LAI v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: SEPTEMBER 16, 2004
APPEARANCES:
MR. SIMON K. YU
FOR APPLICANT
MR. BRAD HARDSTAFF
FOR RESPONDENT
SOLICITORS OF RECORD:
FOR APPLICANT
EDMONTON, ALBERTA
JOHN H. SIMS, Q.C.
DEPUTY ATTORNEY GENERAL OF CANADA
FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA