Date: 20011127
Docket: IMM-914-01
Neutral Citation: 2001 FCT 1298
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
FAN GAO
Respondent
[1] This is an application for judicial review brought by the Minister of Citizenship and Immigration under the authority of subsection 82.1(1) of the Immigration Act (the "Act"), against the decision of the Immigration and Refugee Board (the "Board") rendered on January 22, 2001 wherein the Board determined that the respondent, Ms. Fan Gao, qualified as a Convention refugee.
FACTS
[2] The respondent is a Chinese citizen from the Tianjin province who arrived in Canada for the first time on September 23, 1996 to pursue her studies.
[3] When the respondent arrived in Canada, she was married to a Chinese citizen, whom she later divorced in February 2000.
[4] In October 1999, the respondent began a relationship with a married man who was a Canadian citizen from Vietnam of Chinese origin.
[5] In the spring of 1998, the respondent discovered she was pregnant. An abortion was performed in June 1998.
[6] In October 1999, the respondent returned to China for about one month to finalize the divorce proceedings with her husband and to visit her ailing mother.
[7] In November 1999, the respondent discovered once again that she was pregnant.
[8] However by January 2000, the respondent found herself alone and abandoned by her Canadian boyfriend.
[9] On June 20, 2000, the respondent gave birth to a daughter named Melanie who is a Canadian citizen.
[10] She filed her claim for refugee status in April 2000, as she feared returning to China on the basis of membership in a particular social group (women) and nationality.
ISSUE
[11] Did the Board err in finding that the respondent qualified as a Convention refugee?
ANALYSIS
Standard of Review
[12] First and foremost it is necessary to define the standard of review applicable by this Court in regards to the Board. Generally, the standard of review for questions of fact and fact and law is patently unreasonable, whereas for questions of pure law it is correctness.
[13] In Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.), Evans J. stated:
[para 45] On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratnam test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness.
[14] Later in Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.), Pelletier J. found:
[para 5] The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193.
[15] In the present case, the issues raised by the applicant are those related to fact. Therefore, the standard of review to be applied is that of patent unreasonableness.
[16] I have carefully reviewed the Board's decision; the Board held:
The Panel has considered all the testimony and documentary evidence presented in this case and an oral decision will now be rendered.
[17] After this general expression, there is one short paragraph entitled "Introduction" and one paragraph entitled "Facts".
[18] Following are two paragraphs entitled "Analysis" which include quotes from the claimant's testimony, and a clear finding that the claimant was credible.
[19] Unfortunately, there is not a single line of real analysis nor a single sentence about the reasons why the oral testimony or the documentary evidence amounts to persecution.
[20] There is a lack of assessment of the evidence.
[21] The Board has an obligation to provide the reasons as to why it finds that the claimant is a refugee.
[22] The Board has identified different facts relevant to the determination of the claimant's status.
[23] However, the Board failed to clearly identify what could occur if the claimant were to be returned to China.
[24] The Board has identified some elements revealing that her situation, that of having given birth to a child outside marriage, is forbidden.
[25] Both parties rely on the Tian Jin Birth Planning Regulations which read at Article 24:
Each side of male and female give birth without marriage will be punished by their unit, country, towns, government and neighbourhood office.
[26] The Board failed to identify the sort of punishment or sanction which could eventually amount to persecution.
[27] The denial of housing, the denial of access to education, the denial of the right to work and to earn a living are identified as possible sanctions.
[28] The claimant mentioned in her testimony (Tribunal Record, p. 308) that the authorities could refuse to give her an identity card, which provides her access to education, the right to work, medical attention, etc.
[29] Given the magnitude of the consequences that could affect the claimant's future, one would think that the Board would have provided relevant reasons for its decision; this is not the case.
[30] The applicant has convinced the Court that it should intervene.
ORDER
THEREFORE, THIS COURT ORDERS THAT:
- This application be granted;
- The Board's decision rendered on January 22, 2001 is set aside, and the matter is returned to a differently constituted panel for reconsideration.
[31] Neither counsel suggested question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
November 27, 2001