Ottawa, Ontario, January 26, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT ANDJUDGMENT
[1] Mr. Chang Xiong Zou came to Canada from China in 2003. He claims that family planning authorities in China served him with a notice that he must undergo a sterilization procedure. He and his wife already had a son. She could not be sterilized, or even employ a birth control device, because of health problems.
[2] Mr. Zou, not wanting to undergo the procedure, sought refugee protection here. A panel of the Immigration and Refugee Board dismissed his claim primarily because it believed that Mr. Zou could appeal the sterilization notice if he returned to China. Mr. Zou argues that the Board erred in making that finding and asks me to overturn its decision. I agree that the Board erred and must, therefore, allow this application for judicial review.
I. Issue
Did the Board err in finding that Mr. Zou could appeal his sterilization notice?
II. Analysis
[3] I can overturn the Board's decision only if I find that it was unsupported by the evidence.
[4] The Board canvassed documentary evidence showing that forced sterilizations are increasingly rare in China and contrary to official state policy. But they do exist. The Board also expressed some doubt about the authenticity of the notice Mr. Zou had received. Still, it concluded that Mr. Zou had "recourse to appealing any order for forced sterilization if he was to return to China" according to family planning regulations.
[5] The regulation relied on by the Board (Art. 45) provides that "persons who contest the decision made by the Family Planning Department to impose the 'unplanned parenthood fine' or other fines should first apply to the Family Planning Department at a higher level for a review of the case ". This provision deals only with appeals from fines imposed for bearing children without planning or for adopting them illegally. It does not deal with sterilization or appeals from a sterilization notice. I have reviewed the regulations in their entirety and can find no provision that would give Mr. Zou relief from the sterilization notice. Indeed, I note that state authorities are encouraged to urge persons to undergo "effective birth control measures" (Art. 40). Those who refuse to do so should "undergo education" and, if they continue to refuse, they will suffer "economic penalties" (Art. 43).
[6] Accordingly, the Board's conclusion that Mr. Zou was not in need of protection because he could appeal his sterilization notice was not supported by the evidence. I must, therefore, allow this application for judicial review and order a new hearing. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is granted and a new hearing is ordered;
2. No question of general importance is stated.
FEDERAL COURT
NAME OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: IMM-1176-05
STYLE OF CAUSE: CHANG XIONG ZOU v. MCI
PLACE OF HEARING: Toronto, ON.
DATE OF HEARING: January 10, 2006
REASONS FOR JUDGMENT
APPEARANCES:
Shelley Levine FOR THE APPLICANT
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Levine Associates FOR THE APPLICANT Toronto, ON
tOTTT
Toronto, ON FOR THE RESPONDENT