Citation: 2019 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2019
Panel: A. Lopes Morey
Counsel for the claimant(s): Shelley S Levine
Country: China
RPD Number: TB8-10761
ATIP Number: A-2020-01124
ATIP Pages: 000093-000098
[1] This is the decision in the claim of [XXX] (“the claimant”). She claims to be a citizen of China and is claiming refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).
ALLEGATIONS
[2] The allegations are set out in the claimant’s Basis of Claim form (BOC)i and were detailed further in her oral testimony. In summary, the claimant alleges she fears persecution at the hands of Chinese authorities due to her violation of the Family Planning Policy.
DETERMINATION
[3] The panel finds that the claimant has established that she faces a serious possibility of persecution in China on the basis of her membership in a particular social group, namely as a woman who violated the family planning policy.
ANALYSIS
Identity
[4] The panel is prepared to accept the identity of the claimant on a balance of probabilities based on the certified true copy of her passport at Exhibit 1.
Credibility
[5] The determinative issue in the claim was credibility. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities. The panel found the claimant entirely credible in this claim. Her testimony was detailed, spontaneous, expressive and entirely consistent with her narrative and with the documentary evidence that she provided. The panel finds the claimant was forthcoming where the panel had questions about missing documents, and that minor inconsistencies were reasonably explained. The panel therefore finds that the claimant has established her allegations on a balance of probabilities.
a. Forced insertion of IUD, Abortion, Fine, and threat of Sterilization
[6] The panel finds that the claimant established on a balance of probabilities that she was forced to wear and IUD and then forced to undergo an abortion when it was discovered she was pregnant for a third time, as alleged.
[7] The claimant was able to describe in detail her experience under the family planning policy as it impacted her directly. She testified that she was first forced to wear an IUD in 2008 after the birth of her first child. Given the child was a female, the claimant was allowed to apply for a permit to have a second child. The claimant testified that she made the application and had her IUD removed in 2012. After her second daughter was born in [XXX] 2015, the claimant was again forced to wear an IUD and undergo pregnancy checks three times per year. Due to medical complications, however, the claimant had her IUD removed in [XXX] 2017.
[8] The claimant provided a document from [XXX] Hospital to corroborate the insertion of the IUD in 2015 after the birth of her second child, and the removal of the IUD for health reasons in 2017.ii On examination of the original documents, the panel found no inconsistency with its form or its content as compared to the claimant’s testimony. The panel therefore finds that the document is genuine on a balance of probabilities, and finds that the claimant has established both that she was forced to wear an IUD and that it was removed in 2017 for health reasons.
[9] The claimant testified that after the removal of the IUD she was put on the birth control pill and required pregnancy checks four times per year. On [XXX], 2018 during one of these checks, it was discovered that the claimant was pregnant. The claimant was therefore not allowed to leave the hospital and was put under anesthesia, at which time she underwent an abortion against her will. When she woke up, the claimant was informed that she had not been sterilized because after the abortion she had bled too much and was too weak to endure another procedure. However, she had been left with two documents from Family Planning officials: the first was a notice to pay a fine, and the second a notice instructing her or her husband to report for sterilization. The claimant has provided these two documents in evidence.iii As the panel found no issues with the content or form of the documents, they are presumed genuine. The panel finds that the claimant underwent an abortion and was targeted for sterilization by authorities as alleged.
Objective Basis
[10] Country condition documents are consistent with the claimant’s allegations that there is a serious possibility she would face persecution should she return to China. Further, the Courts have found that forced abortion constitutes persecution, which the claimant has established she has already endured.
[11] The panel acknowledges that the country condition evidence in the National Documentation Package (NDP) about China’s family planning policy and implementation is varied within and between provinces.iv There is a lack of information on implementation specific to Jiangsu province; however, despite variances, existing documentation suggests that common tools used to implement the family planning policy are still in practice across China. Until there is a clearer picture of whether and to what extent the local and provincial levels are relaxing implementation of the family planning polices, decisions must be made on available information, which suggest that coercive measures are still in effect.
[12] For example, item 5.5 of the NDP, from October 2019, indicates that “despite the change in demographic landscape, the two-child policy is still being ‘strongly’ enforced.”v It points to the discrepancy between the views of Chinese leadership, which recognizes the need for higher birth rates, and the interests of local government officials who derive a large amount of revenue and power from the continued strict implementation of the policy. The same document notes “despite the encouragement from Chinese leaders for couples to have more children, local government officials… have a vested interest in ‘maintaining the rules that justify their jobs and authority”, even if violence is used.vi It cites multiple sources which each indicate that, while less common, forced abortions, sterilizations, and other invasive measures such as the coerced insertion of IUDs and regular pregnancy checks continue to be used.vii This is further corroborated in the documentary evidence provided by counsel.viii
[13] Further, the United Kingdom Home Office Country Information and Guidance Report on China entitled Contravention of National Population and Family Planning Laws states that “couples who exceed their government-mandated birth limit continue to be punished with crushing fines equal to two to ten times their annual household income.”ix
[14] The panel therefore finds that overall the documentary evidence corroborates the claimant’s allegations that the government continues to impose harsh penalties on those who violate the family planning policy, that she herself underwent an abortion against her will upon discovery of her third pregnancy, that she was subject to a significant fine as a result of that pregnancy, and that she has been targeted for sterilization.
[15] The claimant already has two children, as evidenced by their birth certificatesx, and, as indicated above, she has already been identified by family planning officials as a target for a fine and forced sterilization. Therefore, even if implementation of the family planning policy in Jiangsu province is relaxed in the future, the claimant is unlikely to benefit from the change on a forward-looking basis such that she would no longer face a serious possibility of persecution.
[16] Having considered all of the evidence, both in testimony and the documentary evidence, the panel finds the claimant has established that there is a serious possibility of persecution should she return to China, in the form of sterilization and the limiting of her future reproductive choices. The panel finds that the claimant’s fear is well-founded.
State Protection
[17] States are presumed to be capable of protecting their citizens except in situations where the state is in a state of complete breakdown. To rebut the presumption of state protection, a claimant has to provide clear and convincing evidence of a state’s inability or unwillingness to protect its citizens.
[18] In this case, the agent of persecution is a branch of the State itself which is implementing an official State policy. The panel therefore finds on a balance of probabilities that State protection would be unavailable to the claimant in China.
Internal Flight Alternative
[19] Given that the State is the agent of persecution, and that the claimant is known to State authorities, the panel finds that there is a serious possibility of persecution for the claimant throughout China. Therefore, there is no internal flight alternative available to her.
CONCLUSION
[20] Based on the totality of the evidence, the claimant has established that she faces a serious possibility of persecution on a Convention ground, namely her membership in a particular social group, as a woman who has violated the family planning policy. Therefore, the panel finds that she is a Convention refugee and accepts her claim.
(signed) A. Lopes Morey
November 7, 2019
i Exhibit 2
ii Exhibit 9, p. 4-7
iii Exhibit 9, p. 8-11
iv Exhibit 3, NDP China, version 28 June 2019, for example Item 5.7
v Exhibit 3, NDP China, version 28 June 2019, for example Item 5.5, RIR CHN106235.E
vi Exhibit 3, NDP China, version 28 June 2019, Item 5.5, RIR CHN106235.E
vii Ibid
viii Exhibit 5
ix Exhibit 3, NDP China, version 28 June 2019, Item 5.6, section 5.5.2
x Exhibit 7, p. 20-23