Chan v. Canada (Minister of Employment and Immigration) [1995] 3 S.C.R. 593: Immigration -- Convention refugee -- Well-founded fear of persecution because of membership in particular social group or political opinion -- Likelihood of forced sterilization following breach of China's one-child policy -- Confession as to involvement in pro-democracy movement -- Whether or not appellant had well-founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion

Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Immigration -- Convention refugee -- Well-founded fear of persecution because of membership in particular social group or political opinion -- Likelihood of forced sterilization following breach of China's one-child policy -- Confession as to involvement in pro-democracy movement -- Whether or not appellant had well-founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion -- Whether or not sterilization a form of "persecution" within the meaning of s. 2(1)(a) of the Immigration Act -- Whether or not persons facing forced sterilization members of a "particular social group" -- Whether or not persons refusing forced sterilization expressing a "political opinion" -- Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) "Convention refugee", (a)(i), (ii), (b), 3(g), 19(1)(c).

Appellant sought Convention refugee status because of his fear of being forcibly sterilized for a violation of China's one-child birth control laws. To be classified a Convention refugee, the appellant had to establish that he had a well-founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion. He had been visited at his restaurant on a number of occasions by the Public Security Bureau (PSB) because of alleged involvement in the pro-democracy movement and had signed a confession to this effect in July 1989. He had been visited at home on five occasions by the PSB following the discovery of the second child in April 1990 and his wife lost her job because of the breach. To end these PSB visits appellant submitted a written undertaking to undergo sterilization within three months. He then fled China. Appellant alleged a fear of persecution by being forced to undergo sterilization. He testified that since leaving, his family had suffered harassment from the PSB and that, if returned to China, he might face arrest, imprisonment, long-term unemployment or even murder. The Immigration and Refugee Board found that the appellant was not a Convention refugee. It held that forced sterilization did not constitute a form of persecution, so made no finding as to whether the appellant had a well-founded fear of forced sterilization. The Federal Court of Appeal upheld the Board's decision. The issues to be considered here included: (1) whether forced sterilization is a form of "persecution" within the meaning of s. 2(1)(a) of the Immigration Act; (2) whether persons facing forced sterilization are members of a "particular social group"; (3) whether those refusing forced sterilization are expressing a "political opinion"; and (4) whether, assuming persons who have a well-founded fear of sterilization for violating China's one-child policy are eligible to be considered Convention refugees, the appellant has a well-founded fear of forced sterilization or of other persecution.

Held (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting): The appeal should be dismissed.

Per Sopinka, Cory, Iacobucci and Major JJ.: A person facing forced sterilization was assumed (without its being decided) to be a member of a particular social group. The claimant, to establish a well-founded fear of sterilization, must demonstrate subjective fear persecution and establish that this fear is well-founded in the objective sense, both on a balance of probabilities.

A refugee claimant must establish to the Board's satisfaction that the alleged fear exists in his or her mind in order to meet the subjective aspect of the test for a well-founded fear of persecution. Normally the claimant's evidence will be sufficient to meet the subjective aspect of the test where the claimant is found to be a credible witness and his or her testimony is consistent. Here, appellant's testimony, even with respect to his own fear of forced sterilization, was equivocal and inconsistent at times.
The appellant did not meet the burden of proof on the objective aspect of the test. Evidence with respect to the enforcement procedures used within a claimant's particular region at the relevant time was not presented to the Board. Such evidence, if not available in documentary form, can be established through testimony with respect to similarly situated individuals. Appellant provided neither. Nor did he produce any evidence that the forced sterilization is inflicted upon men in his area. In fact, the documentary evidence produced by the appellant strongly suggested that penalties for breach of the one-child policy only applied against women. Then, too, the local authorities had taken no action to enforce appellant's signed consent to sterilization even though more than a year had lapsed and the fine levied for the breach of the birth control laws had still not been paid and, indeed, had been reduced. Absent any evidence to establish that his alleged fear of forced sterilization was objectively well-founded, the Board was unable to determine that the appellant had a well-founded fear of persecution in the form of a forced sterilization. The issue of whether or not the forced sterilization was related to the appellant's alleged involvement with the pro-democracy movement was not raised by the appellant at the Board level or on appeal and was not before this Court.

Per La Forest, L'Heureux-Dubé and Gonthier JJ. (dissenting): The Court could not safely decide whether or not there was evidence on which the Board could conclude that the appellant was a member of a particular group. The matter should be remitted back to the Board to be decided in accordance with the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (the "UNHCR Handbook"). Using these guidelines for establishing the facts of a given case, a determination could be made as to whether a Convention refugee was entitled to any benefit of the doubt regarding his story.

Here, the appellant's account of events so closely mirrors the known facts concerning the implementation of China's population policy that, given the absence of any negative finding as to the credibility of the appellant or of his evidence, his quite plausible account is entitled to the benefit of any doubt that may exist. Sections of his testimony should not be seized upon in isolation. Such a technique is antithetical to the guidelines of the UNHCR Handbook. In light of these explicit guidelines, Canada's refugee burden should not be thwarted by an unduly stringent application of exacting legal proof that fails to take account of the contextual obstacles customary to refugee hearings.

The implementation of China's one-child policy, through sterilization by local officials, can constitute a well-founded fear of persecution. The alleged persecution does not have to emanate from the state itself to trigger a Convention obligation. Serious human rights violations may well issue from non-state actors or from subordinate state authorities if the state is incapable or unwilling to protect its nationals from abuse. Determination of the precise degree of involvement by the Chinese government was neither necessary nor possible from the evidentiary record.

When the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution is crossed. Canadian judicial bodies may at that juncture pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status, assuming of course that the claimant's credibility is not in question and that his or her account conforms with generally known facts.

Basic human rights transcend subjective and parochial perspectives and extend beyond national boundaries. Recourse can be had to the municipal law of the admitting nation, nevertheless, because that law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights. Forced sterilization constitutes a gross infringement of the security of the person and readily qualifies as the type of fundamental violation of basic human rights that constitutes persecution. Notwithstanding the technique, forced sterilization is in essence an inhuman, degrading and irreversible treatment.

A well-founded fear must be evaluated both subjectively and objectively. The fact that the appellant did not specifically invoke the term "fear of persecution" or equivalent words to that effect was of no particular import. The testimony of his harassment, together with his flight from China, directs a finding that he had an implicit well-founded fear of persecution. The generally known facts establish the existence of objective grounds for appellant's fearing forced sterilization. This was an issue for consideration by the Board.

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. Rather, he or she must be voluntarily associated with a particular status for reasons so fundamental to that person's human dignity that he or she should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right. The right asserted can be categorized as the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. This fundamental right has been recognized in international law. The possibility also exists that the appellant may have a well-founded fear of persecution on the basis of a political opinion held by or imputed to him.

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